Commonwealth v. Stetler

• Decision Date: 18 August 2014
• Citation: 2014 PA Super 112,95 A.3d 864
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Stephen H. STETLER, Appellant.

95 A.3d 864

2014 PA Super 112

COMMONWEALTH of Pennsylvania, Appellee

v.Stephen H. STETLER, Appellant.

Superior Court of Pennsylvania.

Argued April 1, 2014.

Filed June 3, 2014.

Reargument Denied Aug. 18, 2014.

Barbara A. Zemlock, Harrisburg, for appellant.

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

BEFORE: DONOHUE, ALLEN, and STABILE, JJ.

OPINION BY ALLEN, J.:

Stephen H. Stetler (“Appellant”) appeals from the judgment of sentence imposed after a jury convicted him of conflict of interest, four counts of theft, and one count of conspiracy.¹ We affirm.

Appellant's convictions were based on allegations of misconduct during his service as a state legislator. On September 25, 2012, the trial court sentenced Appellant to an aggregate term of eighteen (18) to sixty (60) months of imprisonment. In addition, the trial court ordered Appellant to pay $466,621.45 in restitution.² This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues:

A. WHERE THE TRIAL COURT MET WITH THE JURY OUTSIDE OF THE PRESENCE OF [APPELLANT] AND COUNSEL AND ANSWERED QUESTIONS WHICH PERTAINED TO THE COURT'S CHARGE AND ELEMENTS OF THE OFFENSE, WAS [APPELLANT] DEPRIVED OF HIS RIGHT TO COUNSEL AND TO A FAIR TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE [1], SECTION 9 OF THE CONSTITUTION OF THE COMMONWEALTH, AS WELL AS PA.R.CRIM.P. 647(C)?

B. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY OF ENGAGING IN A “CONFLICT OF INTEREST?”

C. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY OF THEFT BY UNLAWFUL TAKING OR DISPOSITION?

D. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY OF THEFT OF SERVICES?

E. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY OF THEFT BY DECEPTION?

F. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY OF THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION OF FUNDS?

G. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT [APPELLANT] WAS GUILTY OF CONSPIRACY?

H. WHERE THE TRIAL COURT PERMITTED A CHART WHICH WAS NOT ADMITTED INTO EVIDENCE TO BE PROVIDED TO THE JURY IN THE DELIBERATION ROOM, WHETHER SUCH VIOLATED [APPELLANT'S] RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF THE COMMONWEALTH OF PENNSYLVANIA, AS WELL AS THE RULES OF CRIMINAL PROCEDURE?

I. WHETHER THE DELIBERATE DESTRUCTION BY [THE PENNSYLVANIA OFFICE OF ATTORNEY GENERAL] OF WITNESS INTERVIEW NOTES AND PROFFER STATEMENTS VIOLATED [APPELLANT'S] RIGHTS UNDER THE CONSTITUTIONS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA, AS WELL AS PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 573?

J. WHERE: (1) THE [TRIAL] COURT AWARDED RESTITUTION TO AN ENTITY WHICH THE LAW DOES NOT RECOGNIZE AS AN ENTITY TO WHICH RESTITUTION CAN BE AWARDED; AND (2) THE IMPOSITION OF RESTITUTION IN THE AMOUNT OF $466,621.45 IS NOT SUPPORTED BY THE RECORD, WHETHER THE IMPOSITION OF RESTITUTION WAS IMPROPER AND CONTRARY TO LAW?

Appellant's Brief at 3–4.

Unfortunately for the citizens of Pennsylvania, a recent spate of case law involving similar conduct by state legislators, and involving similar issues raised by Appellant, has evolved. See, e.g., Commonwealth v. Orie, 2014 Pa.Super. LEXIS 116, 88 A.3d 983 (Pa.Super.2014); Commonwealth v. Feese, 79 A.3d 1101 (Pa.Super.2013); and Commonwealth v. Habay, 934 A.2d 732 (Pa.Super.2007).

After careful review, we conclude that the Honorable Todd A. Hoover, sitting as the trial court, has applied the pertinent legal principles of such cases to the detailed facts he references in his Pa.R.A.P. 1925(a) opinion—facts which we need not repeat. Moreover, President Judge Hoover thoroughly discussed each issue raised by Appellant, citing pertinent case law and procedural rules, and correctly rejected each one.

This case is unusual in that the trial court, with the permission of both parties' counsel, acted as a go-between/conduit between the jury and counsel during the jury's deliberations.

Regarding Appellant's first issue, we agree with the Commonwealth that Appellant waived this issue because he did not make a specific objection at the time of trial. See generally,Pa.R.A.P. 302; see alsoPa.R.Crim.P. 647(B) (providing that challenges to a trial court's instruction to a jury must be made at the time the allegedly erroneous information was given). In his reply brief, Appellant asserts that he had no basis to question the trial court's veracity during the trial proceedings. Appellant's Reply Brief at 4. However, because “[a]ll interaction between the judge and jury was stenographically recorded,” Commonwealth v. Johnson, 574 Pa. 5, 828 A.2d 1009, 1013 (2003), Appellant could have raised the matter during trial or in a post-sentence motion. Indeed, after returning from speaking to the jury, Judge Hoover described to counsel what transpired, including informing counsel that the jury had additional questions. See N.T., 6/26/12, at 1171–1172.

Our review reveals that the parameters of the information the trial court was to impart to the jury outside the presence of Appellant and his counsel was never established on the record. Moreover, Appellant's citation to parts of the record to advance his claim is a selective and self-serving reading of Judge Hoover's comments to the jury. See, e.g., Appellant's Reply Brief at 3–4; N.T., 6/26/12, at 1174.

We further note that Appellant's reliance upon Johnson, supra, is inapposite, since in Johnson, no such arrangement existed, and trial counsel specifically requested the defendant be present for any additional instructions on the record. See Johnson, 828 A.2d at 1011 (citing trial counsel's statement, “just for the record, we would ask that there not be a charge to the jury, or anything happen without counsel or the client being here”).

Although we discern no improprieties in Judge Hoover's instructions to the jury, at no time did Appellant's trial counsel raise any objection. Compare Johnson, 828 A.2d at 1015 (explaining that “the performance of counsel is not implicated, for counsel timely objected to the exclusion”). If Appellant now perceives that trial counsel's agreement to this arrangement was ineffective, he may pursue post-conviction relief. At this juncture, however, given trial counsel's acquiescence, we have no basis upon which to grant Appellant relief.

Based on the foregoing, and relative to all of Appellant's issues, we adopt President Judge Hoover's comprehensive and well-reasoned August 14, 2013 opinion in disposing of this appeal. The parties shall attach a copy of the opinion in the event of future proceedings.

Judgment of sentence affirmed.

TRIAL COURT OPINION

On June 27, 2012, a jury found Stephen Stetler (“Defendant”) guilty of six felony offenses based upon allegations of misappropriation of taxpayer-funded resources during the years 2004 through 2006. On September 25, 2012, the court sentenced Defendant to an aggregate term of imprisonment of 18 to 60 months as follows:

Count 1, Conflict of Interest, 65 Pa.C.S. § 1103—Not less than 4 months nor more than 12 months incarceration, a fine of $15,000, plus the costs of prosecution;

Count 2, Theft by Unlawful Taking, 18 Pa.C.S. § 3921—Not less than 14 months nor more than 48 months incarceration, to run consecutively to the sentence imposed at Count 1, a fine of $10,000, plus the costs of prosecution;

Count 3, Theft of Services, 18 Pa.C.S. § 3926. Count 4, Theft by Deception, 18 Pa.C.S. § 3922 and Count 5, Theft by Failure to Make Required Disposition of Funds Received, 18 Pa.C.S. § 3927—Merged for purpose of sentencing;

Count 6, Criminal Conspiracy (Conflict of Interest/Theft Counts) 18 Pa.C.S. § 903—Not less than 4 months nor more than 12 months incarceration, to run concurrently with the previous sentences.

The sentences at Counts 1 and 2 shall run consecutively.

Restitution in the amount of $466,621.45, subject to modification.

(Transcript of Proceedings, Sentencing, September 25, 2012, p. 11)

Defendant filed a Motion for Bail Pending Appeal on October 5, 2012, The court issued an Order on October 9, 2012 which revoked bail. On the same date, the court issued an Amended Sentencing Order which amended the sentence at Count 2 to not less than 14 nor more than 48 months, less one day. All other aspects of the sentence remain unchanged,

FACTUAL BACKGROUND

The facts, viewed in the light most favorable to the Commonwealth, as a verdict winner, are as follows:

Defendant served as an elected state representative from January 1991 through July 2006, and policy chairman of the Democratic caucus (hereinafter, “caucus”) between 2002 and 2006. (Transcript of Proceedings, Jury Trial, June 6–7, 2012, June 18–21, 2012 and June 25–27, 2012) (Hereinafter, “N.T.”) In addition, during the years 2004 and 2005, Defendant served as operations chairman of the House Democratic Campaign Committee, the “HDCC”. The HDCC is a privately funded organization dedicated to the effort to elect Democrats to office. (N.T. pp. 134–135).

The Commonwealth presented its case through the testimony of numerous caucus staff employed by the legislature under Defendant's supervision during his tenure as a state representative. The Commonwealth called Erin Madison Grace as a witness.¹ Ms. Madison, who testified under a grant of immunity, was employed by the HDCC from 2004 through 2006. (N.T. p. 134) Ms. Madison was initially employed as a fundraiser during the time Defendant served as chairman of the HDCC. (N.T. p. 136) At the end of the campaign cycle in November or December 2004, Ms. Madison left the HDCC because of a lack of funding for her position, and began working as a research analyst for Defendant in a taxpayer-paid legislative position with the caucus. (N.T. p. 138)

At that time, Defendant served in his elected capacity as the...