Commonwealth v. Berry
Decision Date | 10 July 2017 |
Docket Number | No. 3839 EDA 2015.,3839 EDA 2015. |
Citation | 167 A.3d 100 |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Willis BERRY, Appellant |
Court | Pennsylvania Superior Court |
Matthew F. Sullivan, and Nino V. Tinari, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, and Jennifer A. Peterson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Appellant, former Court of Common Pleas of Philadelphia County Judge Willis Berry, appeals from the judgment of sentence entered on December 11, 2015, as made final by the order entered on February 4, 2016. In this case, we hold that the statute criminalizing conflicts of interest does not violate the doctrine of separation of powers, is not void for vagueness, and is not overbroad. As we conclude that Appellant's remaining challenges to his convictions are without merit, we affirm his convictions. A decision rendered by our Supreme Court during the pendency of this appeal, however, renders Appellant's sentence illegal. Accordingly, we vacate Appellant's judgment of sentence and remand for the sole purpose of resentencing.
The Court of Judicial Discipline previously summarized the factual background of this case as follows:
In re Berry, 979 A.2d 991, 994–996 (Pa. Ct. Jud. Disc. 2009) ( )(certain paragraph breaks and paragraph numbers omitted); see also Commonwealth's Exhibit 1 (stipulation of facts entered into by Appellant upon which the above factual summary was based).
The procedural history of this case is as follows. On September 4, 2014, the Commonwealth charged Appellant via criminal information with conflict of interest1 and theft of services.2 On February 9, 2015, Appellant moved to dismiss the charges. The motion was denied prior to trial. On July 22, 2015, Appellant was found guilty of both offenses. On December 11, 2015, the trial court sentenced Appellant to an aggregate term of three years' probation and deferred a determination regarding the amount of restitution owed by Appellant.
On December 15, 2015, Appellant filed a notice of appeal. On February 4, 2016, the trial court set the amount of restitution.3 On February 8, 2016, the trial court ordered Appellant to file a concise statement of errors complained of on appeal ("concise statement"). See Pa.R.A.P. 1925(b). On February 29, 2016, Appellant filed his concise statement. On April 26, 2016, the trial court issued its Rule 1925(a) opinion. Both of Appellant's issues were included in his concise statement.
Appellant presents two issues for our review:
Appellant's Brief at 4 (complete capitalization omitted).
In his first issue, Appellant argues that the trial court erred in denying his motion to dismiss because 65 Pa.C.S.A. § 1103(a) and 18 Pa.C.S.A. § 3926(a)(1) are unconstitutional. As the constitutionality of a statute is a pure question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Proctor, 156 A.3d 261, 268 (Pa. Super. 2017) (citation omitted). "Our Supreme Court has instructed that we must presume that statutes are constitutional and require those challenging the constitutionality of a statute to demonstrate that it clearly, plainly, and palpably violates the constitution." Commonwealth v. Felder, 75 A.3d 513, 516 (Pa. Super. 2013), appeal denied , 624 Pa. 671, 85 A.3d 482 (2014) (citation omitted).
"When attacking the constitutionality of a statute, an appellant can raise two types of challenges: facial and as-applied." Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa. Super. 2014), appeal denied , ––– Pa. ––––, 134 A.3d 56 (2016) (citation omitted). Appellant facially challenges sections 1103(a) and 3926(a)(1). A defendant "can succeed in a facial challenge to the constitutionality of a statute only by establishing that no set of circumstances exists under which the challenged statute would be valid, i.e. , that the law is unconstitutional in all of its applications [.]"
Commonwealth v. McKown, 79 A.3d 678, 687 (Pa. Super. 2013), appeal denied , 625 Pa. 648, 91 A.3d 162 (2014) (citations omitted).
Appellant first challenges the constitutionality of section 3926(a)(1).4 Although the docket and judgment of sentence state Appellant was convicted under section 3926(a)(1), these were patent and obvious clerical errors. See Commonwealth v. Young, 695 A.2d 414, 419–420 (Pa. Super. 1997). Appellant was charged with, and convicted of, violating 18 Pa.C.S.A. § 3926(b).5 See Criminal Information, 9/11/14, at 1; N.T., 7/22/15, at 32. Accordingly, we need not address the constitutionality of section 3926(a)(1) as Appellant was not convicted of violating that statute.6 As we ultimately vacate Appellant's judgment of sentence and remand for resentencing, w...
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