Commonwealth v. Orie

• Decision Date: 06 March 2014
• Citation: 88 A.3d 983,2014 PA Super 44
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jane C. ORIE, Appellant.

88 A.3d 983

2014 PA Super 44

COMMONWEALTH of Pennsylvania, Appellee

v.Jane C. ORIE, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 10, 2013.

Filed March 6, 2014.

William Costopoulos, Lemoyne, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: DONOHUE, J., OTT, J., and PLATT, J.^*

OPINION BY OTT, J.:

Jane C. Orie brings this appeal from the judgment of sentence imposed on June 4, 2012, in the Court of Common Pleas of Allegheny County. Orie was found guilty by a jury of theft by diversion of services (two counts), conspiracy—theft by diversion of services, conflict of interest (two counts), and tampering with or fabricating physical evidence (two counts) ¹ (Docket No. 10285–2010). On a separate information, the jury found Orie guilty of forgery (two counts), and tampering with or fabricating physical evidence (five counts) ² (Docket No. 12098–2011). The trial court sentenced Orie to an aggregate sentence for both cases of 30 to 120 months' imprisonment, and ordered Orie to pay restitution,³ and reimbursement for outside counsel fees incurred by the Senate Republican Caucus (Caucus) in the amount of $110,650.00, pursuant to 18 Pa.C.S. § 5303. Orie presents ten questions for our review, involving issues of double jeopardy, preclusion of testimony, suppression, weight and sufficiency of the evidence, reimbursement under 18 Pa.C.S. § 5303, merger, alleged animus of the prosecutor, and the constitutionality of Pennsylvania's conflict of interest statute, 65 Pa.C.S. § 1103(a). Based upon the following, we affirm.

The case at Docket No. 10285–2010 began after a graduate student intern filed a handwritten complaint with the Office of the District Attorney of Allegheny County, alleging that while she worked in the district office of Orie, a Pennsylvania Senator representing the 40th Senatorial District, she had observed staff members engaging in political campaign work. The case proceeded to trial, but ended in a mistrial when, during jury deliberations, altered defense exhibits were discovered. That discovery led to the charges at Docket No. 12098–2011. As the trial court more fully explained:

... [Orie] was originally charged at [Docket No.] 201010285, pursuant to a presentment issued by the A2008 Allegheny County Investigating Grand Jury on April 4, 2010, with three counts of Theft by Diversion of Services (18 Pa.C.S.A. § 3926(b)); one count of Criminal Conspiracy–Theft by Diversion of Services (18 Pa.C.S.A. § 903(A)(1)); three counts of Violating the Conflict of Interest Statute (65 Pa.C.S.A. § 1103(a)); and three counts of Tampering [W]ith [or] Fabricating Physical Evidence (18 Pa.C.S.A. § 4910(1)).

The first trial on those charges ended in a mistrial on March 3, 2011.¹

¹ [Orie] was tried together with Janine Orie, her sister, who was charged with similar offenses.

The case was scheduled for retrial. [Orie] filed a motion seeking to bar the retrial on double jeopardy grounds. In an Opinion and Order dated April 5, 2011, the Motion was denied. [Orie] filed a Petition with the Superior Court seeking leave to file an interlocutory appeal from the denial of her Motion seeking to bar the retrial on double jeopardy grounds. The Superior Court denied the Petition on April 13, 2011 on the basis that the appeal was frivolous and [Orie] filed a Petition for Allowance of Appeal from the Supreme Court. On June 23, 2011 the Supreme Court vacated the Superior Court order as it pertained to the determination that the appeal was frivolous and remanded the matter to that Court to address that issue.²

² [Orie] also appealed [the trial] Court's denial of the request made, with the filing of the Motion to Dismiss, that [the trial] Court recuse. The Supreme Court affirmed the Superior Court's ruling affirming [the trial] Court's denial of the Motion to Recuse.

The Superior Court, in turn, remanded the matter to [the trial] Court to prepare a supplemental Opinion on the issue of frivolousness. That Opinion was filed on July 14, 2011 and the matter was retransmitted to the Superior Court. In an Order dated August 31, 2011, the Superior Court affirmed. A Petition for Allowance of Appeal was filed but denied by the Supreme Court on September [27], 2011.

On August 29, 2011, [Orie] was charged, at [Docket No.] 201112098 with sixteen (16) additional criminal offenses. These new offenses arose out of the events that occurred at the first trial that caused the Court to declare a mistrial.... In essence, forged documents were offered into evidence by the defense at that trial; documents that were authenticated by [Orie] and admitted into evidence by the Court. It was not until jury deliberations had commenced that the forged nature of the documents was discovered. The investigation into those documents led to the additional charges.

[At Docket No. 201112098, Orie] was charged with five (5) counts of Perjury (18 Pa.C.S.A. § 4902(a)); two (2) counts of Forgery–Uttering a Forged Writing (18 Pa.C.S.A. § 4101(a)(3)); six (6) counts of Tampering With or Fabricating Physical Evidence (18 Pa.C.S.A. § 4910(2)); one count each of Obstructing the Administration of Law or Other Governmental Function (18 Pa.C.S.A. § 5101); Perjury Under the Election Code (25 Pa.C.S.A. § 3502); and one count of Violating the Election Code Regarding the Reporting Obligations of Candidates (18 Pa.C.S.A. § 3246(a)).³

³ The new charges were joined for trial with the original charges. The case of the co-defendant, Janine Orie, was severed from this trial because of the new charges against this defendant, which did not involve Janine Orie.

This matter proceeded to trial before a jury on February 27, 2012. On March 26, 2012, the jury returned verdicts at both cases. At [Docket No.] 201010285, the jury found [Orie] guilty of the Theft by Diversion of Services charges at Counts 1 and 3; the Conspiracy charge at count 4[;] the Conflict of Interest charges at counts 5 and 6; and [ ] the Tampering With or Fabricating Physical Evidence charges at counts 8 and 9. The jury found [Orie] not guilty of the Theft by Diversion of Service charge at count 2; the Conflict of Interest charge at count 7; and the Tampering [W]ith or Fabricating Physical Evidence charge at count 10.

At [Docket No.] 201112098, the jury found [Orie] guilty of Forgery charges at counts 6 and 7; [five] of the [six] Tampering With or Fabricating Physical Evidence charges, filed at counts 8, 9, 10, 11 and 12; [Orie] was found not guilty of the five (5) Perjury counts, five (5) Perjury charges at counts 1 through 5; the Tampering With or Fabricating Physical Evidence charge at Count 13; the Obstruction of Justice charge at count 14; the Perjury charge at count 15; and the Election Code Reporting Violation at count 16. Sentencing was originally scheduled for May 21, 2012, but was postponed. The Commonwealth filed a Petition with the Court seeking, in addition to standard restitution and costs of prosecution, reimbursement pursuant to 18 Pa.C.S.A. § 5303 and for the imposition of the penalty provided for 65 Pa.C.S.A. § 1109. The defense filed a Memorandum in Opposition.

On June 4, 2012, [Orie] was sentenced, at [Docket No.] 201010285, to not less than six (6) nor more than twenty-four (24) months at counts 1, 3 and 4, to run consecutive to one another, for an aggregate term of imprisonment at that case of not less than eighteen (18) nor more than seventy-two (72) months. No penalty was imposed on the remaining counts for which a verdict of guilty was returned.

At [Docket No.] 201112098, the Court sentenced [Orie] to not less than four (4) nor more than twelve (12) months at each of the two Forgery counts; to not less than two (2) nor more than twelve (12) months at the Tampering With Physical Evidence charges at counts 8 and 10, and to no further penalty on the remaining counts. Those sentences were likewise ordered to run consecutive to one another and consecutive to the sentences imposed in the other case. The aggregate sentence imposed for both cases was not more than thirty (30) nor less than one hundred and twenty (120) months incarceration [sic]. The Court deferred the ruling on the request for restitution and reimbursement pending a further hearing and the submission of briefs by the parties. In the Memorandum Opinion [and Order] filed on July 3, 2012, the Court addressed the request for restitution and reimbursement.⁴

Trial Court Opinion, 1/17/2013, at 2–6.

On June 15, 2012 ⁵, Orie timely filed post-sentence motions, which were denied by the court on August 29, 2012. Orie then filed a notice of appeal on September 6, 2012,⁶ and filed her Pa.R.A.P. 1925(b) statement of errors complained of on appeal on September 25, 2012. The trial judge, the Honorable Jeffrey A. Manning, filed his Rule 1925(a) opinion, dated December 28, 2012, on January 17, 2013. This opinion supplemented five previous opinions that address issues raised in this appeal.⁷

The trial court opinion and record were transmitted to this Court on March 14, 2013. Thereafter, Orie timely filed her brief on April 22, 2013, and the Commonwealth timely filed its brief on June 12, 2013, having requested and been granted an extension of time. Orie filed a reply brief on June 25, 2013. This appeal was then listed for oral argument on the first available list in Pittsburgh, scheduled to convene September 24–26, 2013. However, the appeal was removed from the argument list on August 22, 2013, due to recusal issues, and returned to the Prothonotary of this Court for relisting. On September 18, 2013, Orie filed an application for relief, requesting that the case be relisted for argument in October, 2013. In response, this Court, on September 26, 2013, issued a per curiam order, granting the application to the extent that the appeal would be listed for argument before the panel sitting in Harrisburg on December 10–12, 2013. Oral argument took place as scheduled on December 10, 2013.

Orie...