Commonwealth v. Pi Delta Psi, Inc.

Citation211 A.3d 875
Decision Date23 May 2019
Docket NumberNo. 458 EDA 2018,458 EDA 2018
Parties COMMONWEALTH of Pennsylvania v. PI DELTA PSI, INC., Appellant.
CourtSuperior Court of Pennsylvania

211 A.3d 875

COMMONWEALTH of Pennsylvania
PI DELTA PSI, INC., Appellant.

No. 458 EDA 2018

Superior Court of Pennsylvania.

Argued February 12, 2019
Filed May 23, 2019

I. Introduction

Near the close of the 2013 fall semester, student members of Pi Delta Psi, Inc. traveled from their college campus in Manhattan to the Pocono Mountains. They rented a house to perform the final rites and rituals of their new-member program, as they had quietly done in previous semesters. This time, something went horribly wrong.

A ritual known as "The Crossing," a gauntlet where members tackle and body-slam associate members,1 killed a freshman. The Commonwealth filed charges against the student members; certain national officers; and Pi Delta Psi, Inc., itself. A jury convicted the corporation of hazing, involuntary manslaughter, aggravated assault, conspiracy to commit aggravated assault, hindering apprehension, and conspiracy to hinder apprehension.2 The corporation now appeals from its judgment of sentence, imposing an aggregate of ten years of probation and fining it $ 112,500.00. It raises many appellate issues, including new, constitutional theories regarding its Due Process rights. As we will explain, none of its claims have merit.

However, the trial court imposed a probationary condition barring the corporation from conducting any business in Pennsylvania for a decade. This Court can find nothing in our statutes or at common law that affords a trial court authority to outlaw a corporation from an entire state. We therefore must vacate, sua sponte , that illegal sentence and remand for resentencing.

In all other respects, we affirm.

II. Factual Background

Pi Delta Psi, Inc. came into being on April 14, 1995, when its founders incorporated it as non-profit corporation3 under

211 A.3d 880

New York law. They established it as a national, Asian-interest-based fraternal organization. Like most fraternities, the corporation has constituted subsidiaries of itself (a process known as "colonization") on various college and university campus throughout the United States.

The corporation developed, published, and directed a nation-wide, new-member-education program for would-be brothers in its "Pledge Manual." The new-member curriculum included physical rites and rituals.

In this case, the Baruch College Colony of Pi Delta Psi took its associate members to Pennsylvania for the final stages of the program. The members performed the Crossing Ritual quite brutally and caused the death of an associate member. Two other New York-based chapters of the corporation were also present at the hazing event. The Pennsylvania State University Chapter of Pi Delta Psi (the only functioning subsidiary in the Commonwealth) had no involvement with or knowledge of this incident.

The corporation, by and through its national president, directly participated in at least one new-member event of the Baruch Colony, although no national officers attended the Crossing. The national president (who is an alumnus member of Pi Delta Psi) also helped the student members and officers conceal the cause of death and the corporation's connection to it from investigators. He instructed the student members and officers to lie to police and to hide the fraternity's letters, heraldry, and regalia before officers searched the rented house.

Facing criminal homicide charges, members decided to cooperate with prosecutors and began to implicate the corporation. The Commonwealth eventually charged the corporation with a host of crimes, the most severe of which was murder of the third degree.4 The jury acquitted the corporation of murder and voluntary manslaughter but convicted it on charges of involuntary manslaughter and many lesser offenses.

The trial court fined and sentenced the corporation to probation. The conditions of probation required the corporation to "pay all fines, restitution, and costs within five years;" to cease all "business within the Commonwealth during its period of probation, which shall include maintaining, creating, endorsing, or hosting any chapter, associate chapter, or colony at any college, university, or other institution of higher education, and hosting, convening, or attending any event or activity within the Commonwealth;" and to notify all colleges and university with a Pi Delta Psi chapter or colony of its conviction and sentence. N.T., 1/8/18, at 28 – 29.

The corporation timely appealed.

211 A.3d 881

III. Analysis

The corporation raises ten appellate issues. They are:

1. Did the trial court deprive the corporation of its constitutional rights to present its defense by excluding an expert opinion?

2. Did the trial court deprive the corporation of its constitutional rights to present its defense by excluding exhibits as irrelevant?

3. Did the trial court deprive the corporation of its constitutional rights to present its defense by curtailing cross-examination of a witness?

4. Did the trial court deprive the corporation of its constitutional rights to present its defense by refusing to grant "use immunity" to its co-defendants?

5. Did the trial court deprive the corporation of its constitutional rights to present its defense by impairing its closing argument?

6. Did the trial court prejudice the corporation by allowing the Commonwealth to call it "the fraternity?"

7. Did the verdict slip violate the Due Process Clauses of both constitutions, by shifting the burden of proof to the corporation when the word "Guilty" preceded "Not Guilty?"

8. Did the trial court violate the Due Process Clauses of both constitutions when it used the term "defendant" during jury instructions, rather than "the accused?"

9. Did the trial court err by refusing to give certain jury instructions the corporation requested?

10. Did the trial court err by refusing a curative instruction regarding the prosecutor's closing argument?

See Pi Delta Psi's Brief at 4-5.

We will address each of the corporation's claims of error in turn. After explaining why they are all waived or meritless, we will consider the legality of the corporation's probationary sentence.

A. The Exclusion of Expert Testimony

First, the corporation claims the trial court deprived it of a fair trial by excluding certain expert testimony. The trial court prohibited David L. Westol, an expert on collegiate fraternities, from testifying that the corporation met the national standard of care by promulgating and enforcing an anti-hazing policy. The corporation argues that decision was incorrect.

Such an argument disregards our deferential standard of review for a trial court's evidentiary rulings. When reviewing a decision to admit or to exclude expert opinion testimony, we use an abuse-of-discretion standard. See Commonwealth v. Powell , 171 A.3d 294, 307 (Pa. Super. 2017), appeal denied , 183 A.3d 975 (Pa. 2018). Abuse of discretion only "occurs if the trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious; that fails to apply the law; or that is motivated by partiality, prejudice, bias or ill-will." Hutchinson v. Penske Truck Leasing Co. , 876 A.2d 978, 984 (Pa. Super. 2005). In other words, a reasonable judgment by the trial court is not an abuse of discretion, even if this Court disagrees with that judgment.

Here, the corporation makes no argument that the trial court's decision to prohibit Mr. Westol from testifying about the standard of care was manifestly unreasonable. Nor does it identify which Rule of Evidence the trial court supposedly violated. The corporation merely contends the trial court's decision was incorrect and negatively impacted its defensive strategy. The corporation's assertion of an incorrect

211 A.3d 882

judgment does not persuade us that the trial court abused its discretion.

The trial court, in preventing Mr. Westol from opining for the jury that the corporation's anti-hazing policy and training met Greek Life's national standard of care, explained its ruling as follows:

An opinion is not excludable merely because it embraces an ultimate issue. PA R.E. 704. An expert opinion that embraces an ultimate issue may be objectionable on other grounds, however, as the Pennsylvania Superior Court observed:

Pennsylvania law allows expert opinion testimony on the ultimate issue. As with lay opinions, the trial judge has discretion to admit or exclude expert opinions on the ultimate issue depending on the helpfulness of the testimony versus its potential to cause confusion or prejudice.

McManamon v. Washko , 906 A.2d 1259, 1278-1279 (Pa. Super. 2006).

* * * * *

As to Mr. Westol's opinion that "[the corporation] acted within the standard of care, custom, and practice within the community of Greek-lettered organizations" and that it "was not negligent nor did it violate any duty of care towards [the victim]," Mr. Westol did not testify using legal terms of art, i.e., "standard of care," "negligence," etc., as he did in his Report. From reading the Report, it is not clear that he makes these assertions independent of an opinion that [the corporation's] conduct was consistent with the standards within Greek-lettered organizations.

Whether [the corporation] acted in conformity

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