Commonwealth v. Feese

• Decision Date: 27 November 2013
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brett Owen FEESE, Appellant.
• Court: Pennsylvania Superior Court

79 A.3d 1101

2013 PA Super 255

COMMONWEALTH of Pennsylvania, Appellee

v.Brett Owen FEESE, Appellant.

Superior Court of Pennsylvania.

Argued March 5, 2013.

Filed Sept. 18, 2013.

Reargument Denied Nov. 27, 2013.

Joshua D. Lock, Harrisburg, for appellant.

Amy Zapp, Office of the Attorney General, Harrisburg, for Commonwealth, appellee.

BEFORE: BENDER, J., SHOGAN, J., and FITZGERALD, J.^*

OPINION BY BENDER, J.

Appellant, Brett Owen Feese, appeals from the judgment of sentence of an aggregate term of 4–12 years' imprisonment,¹ imposed for forty convictions involving public corruption, arising out of the use of public funds and manpower for campaign related activities. Appellant asserts five multi-part claims of error. After careful review, we affirm.

Appellant's case arises out of the scandal known as ‘Computergate,’ a scheme in which taxpayer funds, employees, and other resources were misused for partisan campaign purposes by elected members of the Pennsylvania House of Representatives (“House”), and, in particular, by members of the House Republican Caucus (“HRC”), from 2001–2007. The misused government resources were directed toward the purchase and implementation of technological services, equipment, and data that permitted the analysis of individual voter information for use in political campaigns. Emerging mobile communication technologies designed for political campaignworkers (“TelStar”) were integrated with massive databases of voter data (“Blue Card”) to provide campaign operatives with extensive capabilities to identify and mobilize voters for partisan get-out-the-vote operations and to facilitate direct messaging of information of interest to individual voters or particular groups of voters.

The facts adduced at trial demonstrated that the HRC used taxpayer funds to pay outside contractors to implement and provide ongoing support for these programs from 2001 until 2006. Contractors GCR, Inc. (“GCR”) from New Orleans, Louisiana, and Aristotle International (“Aristotle”), from Washington, D.C., worked in tandem with taxpayer funded legislative employees from the Republican Information Technology Services (“RITS”) to develop, implement, maintain, and integrate TelStar and Blue Card. During this time, Appellant, an elected member of the House, held various leadership positions with the HRC, where he served both as Director of the House Republican Campaign Committee (HRCC) and Chief Counsel for the HRC. The crux of the instant case revolved around the extent to which Appellant knew of, directed, and/or approved of the illegal use of taxpayer funded resources to develop, implement, and maintain the campaign technologies, as well as his subsequent efforts to cover up his involvement and hinder the investigation of the Office of Attorney General (“OAG”).

On July 9, 2010, the OAG filed a criminal information at CP–22–CR–0002585–2010 charging Appellant for crimes committed from 2001–2007. The charges included nine counts of conflict of interest, 65 Pa.C.S. § 1103(a); nine counts of theft by unlawful taking or disposition, 18 Pa.C.S. § 3921(a); nine counts of theft by deception, 18 Pa.C.S. § 3922(a)(1); nine counts of theft of services, 18 Pa.C.S. § 3926(a); nine counts of theft by failure to make required disposition of funds received, 18 Pa.C.S. § 3927(a); one count of hindering apprehension or prosecution, 18 Pa.C.S. § 5105; one count of obstructing administration of law or other government function, 18 Pa.C.S. § 5101; and eleven counts of criminal conspiracy, 18 Pa.C.S. § 903. On May 11, 2011, the OAG filed an additional criminal information at CP–22–CR–0001927–2011 for crimes committed from 2007–2009, therein charging Appellant with an additional four counts: hindering apprehension or prosecution, obstructing administration of law or other government function, and two counts of criminal conspiracy.

Appellant and nine co-defendants were initially charged, however, only co-defendant Jill Seaman proceeded to trial with Appellant; the remaining eight co-defendants entered guilty pleas, some of whom ultimately testified against Appellant and Seaman at trial. Following a twenty-three day jury trial on forty charges, the jury convicted Appellant on all counts.² On February 10, 2012, the trial court sentenced Appellant to an aggregate term of 4–14 years' incarceration, and ordered restitution in the amount of $1,000,000. Appellant was also required to pay $25,000 in fines.

Appellant filed a timely notice of appeal. The trial court then filed an order directing Appellant to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), with which Appellant complied.³ The trial court issued its opinion on June 20, 2012.

Appellant now raises the following questions for our consideration on direct appeal:

I. WHETHER THE MASSIVE, DELIBERATE DESTRUCTION BY THE [OAG] OF WITNESS INTERVIEW NOTES AND PROFFER STATEMENTS VIOLATED THE DEFENDANT'S RIGHTS UNDER THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 573, PENNSYLVANIA RULE OF PROFESSIONAL CONDUCT 3.8(D), AND DEPRIVED HIM OF A FAIR TRIAL[?]

II. WHETHER THE [HOUSE] HAS THE CONSTITUTIONAL AND STATUTORY RIGHT AND AUTHORITY TO REGULATE THE WORKING HOURS OF ITS OWN EMPLOYEES, SUCH THAT IT WAS ERROR FOR THE TRIAL COURT TO PERMIT THE [OAG] TO PRESENT EVIDENCE THAT ELECTED MEMBERS OR EMPLOYEES OF THE [HRC] COMMITTED A CRIMINAL ACT IF THEY ENGAGED OR DIRECTED OTHERS TO ENGAGE IN ANY CAMPAIGN ACTIVITY DURING A “NORMAL” WORKDAY AS DEFINED BY “REGULAR” DAILY HOURS, RATHER THAN BY REFERENCE TO THE OFFICIAL [HRC] SCHEDULE OF 37.5 HOURS PER WEEK[?]

III. WHETHER THERE WAS SUFFICIENT EVIDENCE PRESENTED BY THE PROSECUTION AT TRIAL TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT AUTHORIZED OR DIRECTED ANY EMPLOYEE OF THE [HRC] TO DEVOTE LESS THAN 37.5 HOURS PER WEEK TO LEGISLATIVE WORK; OR THAT ANY SUCH EMPLOYEE IN FACT WORKED LESS THAN 37.5 HOURS PER WEEK[?]

IV. WHETHER THERE WAS SUFFICIENT EVIDENCE PRESENTED BY THE PROSECUTION AT TRIAL TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF OBSTRUCTING ADMINISTRATION OF LAW, HINDERING APPREHENSION, OR CONSPIRACY[?]

V. WHETHER THE CONFLICT OF INTEREST PROVISIONS OF THE PUBLIC OFFICIAL AND EMPLOYEE ETHICS ACT ARE UNCONSTITUTIONALLY VAGUE, OR VAGUE AS APPLIED TO THIS CASE[?]

Appellant's Brief, at 2–3.

Destruction of Evidence Claims

Appellant's first claim of error asserts that the OAG engaged in prosecutorial misconduct when it allegedly destroyed notes and proffer statements (collectively, hereinafter, “interview notes,”) prepared by OAG agents during interviews conducted with 94 of the witnesses that testified at the Grand Jury. Appellant contends that the destroyed interview notes potentially contained exculpatory and/or impeachment evidence or information that may have led to the discovery of exculpatory and/or impeachment evidence. Appellant argues that the interview notes were destroyed in bad faith and that he was deprived of a fair trial as a result, because his ability to effectively cross-examine the Commonwealth's witnesses regarding prior inconsistent statements was impeded. Appellant asserts that the OAG's destruction of the interview notes violated the OAG's express written policy, the Due Process Clause of the Constitution of the United States; Article 1, Sec. 1 of the Constitution of the Commonwealth of Pennsylvania; the Rules of Criminal Procedure; and the Rules of Professional Conduct, in contravention of relevant state and federal case law.

In the landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. The Brady rule is not limited exclusively to directly exculpatory evidence. Because the reliability of a witness may ultimately affect a finding of guilt or innocence, the Brady mandate also encompasses impeachment evidence. See U.S. v. Bagley, 473 U.S. 667, 677, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Thus, the Supreme Court of the United States held that: “[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Our Supreme Court has explained, however, that the scope of the Brady mandate on prosecutors is not boundless:

[T]he [United States Supreme] Court has noted that the duty imposed upon the prosecution under Brady is a limited one. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) (“[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one”); see also [Kyles v. Whitley, 514 U.S. 419, 436–37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ] (“[T]he Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.... We have never held that the Constitution demands an open file policy....”). This Court has also recognized Brady's limited requirements, and has noted that Brady does not grant a criminal defendant unfettered access to the Commonwealth's files. See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883, 887 n. 3 (2004) (defendant has no general right under the Constitution or Brady to search Commonwealth files); Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1176 (1999) (“[T]he Commonwealth is, in the first instance, the judge of what information must be disclosed.... ‘Defense co...