J-S23013-17
                              2017 PA Super 214

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

WILLIS BERRY,

                         Appellant                   No. 3839 EDA 2015


        Appeal from the Judgment of Sentence December 11, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008847-2014

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

OPINION BY OLSON, J.:                                  FILED JULY 10, 2017

      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:
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     From January 1996 to [June 2009, Appellant] served as a
     Common       Pleas   Court    Judge   in   Philadelphia County,
     Pennsylvania. . . . Prior to becoming a judge in January 1996,
     [Appellant] had purchased several properties for investment
     purposes. . . . After becoming a judge in 1996, [Appellant]
     continued to own these properties and purchased an additional
     one, owning at one point a total of 16 different vacant or
     occupied properties. Several of the occupied buildings [were]
     multi-unit rental properties operated by [Appellant].

     Many of the properties purchased by [Appellant] were in poor
     condition and non-compliant with various safety, building[,] and
     licensing codes when initially purchased, and issues concerning
     property condition and/or code compliance [] continued to exist
     while under [Appellant’s] ownership.        From January 1996
     through and including August 2007, [Appellant] was issued in
     excess of 70 citations by the City of Philadelphia Department of
     Licenses & Inspections ([] “L&I”) for various violations of safety,
     building[,] and licensing codes. The various citations issued by
     L&I included failure to obtain or maintain the proper licenses or
     permits, and violations involving public nuisance, building,
     health[,] and safety requirements. As a result of the issuance of
     these citations, [Appellant] was required to take corrective
     measures to achieve compliance with the applicable code(s) or
     be subject to further enforcement action.

     From January 1997 through April 2007, [Appellant] used his
     judicial office and judicial resources, including his secretary,
     Carolyn Fleming ([] “Fleming”), to assist him in the day-to-day
     operations concerning his properties. During this time period,
     Fleming engaged in . . . the following activities concerning
     [Appellant’s] rental properties on a regular and continuing basis
     on behalf of [Appellant], at the request of [Appellant] and/or
     with [Appellant’s] full knowledge and complicity: maintained
     physical files at her work station on each of [Appellant’s]
     tenants, containing leases, rent payment receipts, letters[,] and
     other correspondence; contacted prospective or current tenants
     in writing or by telephone; met with prospective or current
     tenants at the Criminal Justice Center, either in [Appellant’s]
     chambers or other parts of the building, for purposes of signing
     leases, collecting rent[,] or addressing other rental issues;
     prepared lease agreements, eviction complaints, affidavits of
     possession, writs[,] and other court documents relating to rental
     properties; prepared [] payments[ and] mailed correspondence


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     to tenants regarding delinquent rental payments; filed eviction
     complaints, judgments[,] and other court documents [] at
     Landlord Tenant Court; appeared at landlord/tenant proceedings
     concerning [Appellant’s] eviction actions; placed advertisements
     for [Appellant’s] rental properties with local newspapers;
     received and returned telephone calls from prospective tenants
     resulting from the advertisements; corresponded with, and/or
     telephoned, utility companies which serviced [Appellant’s] rental
     properties; prepared and mailed payment checks to utility
     companies for bills relating to [Appellant’s] rental properties;
     prepared and made bank deposits of rental payment proceeds;
     [and] organized receipts relating to [Appellant’s] properties for
     submission to an accountant for preparation of [Appellant’s] tax
     returns.

     Fleming engaged in . . . the following activities concerning all of
     [Appellant’s] properties (both rental and non-rental), on a
     regular and continuing basis, on behalf of [Appellant], at the
     request of [Appellant] and/or with [Appellant’s] full knowledge
     and complicity: corresponded with, telephoned[,] and/or visited
     L&I concerning violations issued to [Appellant]; corresponded
     with, telephoned[,] and/or visited various government offices
     (i.e. Water Department and Department of Revenue) for
     purposes of paying bills or property taxes; received invoices,
     prepared and mailed checks for payment of various bills relating
     to [Appellant’s] properties, including utility companies,
     construction contractors, government agencies[,] and retail
     vendors.

     The[se] activities . . . were performed by Fleming primarily at
     her work station in [Appellant’s] judicial chambers between the
     hours of 8:30 a.m. and 4:30 p.m. At times, when it was
     necessary for [Appellant] to advertise a rental vacancy, he used,
     or otherwise permitted, his judicial office address and/or
     telephone    number      to  be   listed   in   classified  rental
     advertisements,     written  correspondence      to   tenants   or
     prospective tenants, and on rental signs. While engaging in the
     conduct described . . . above, [Appellant] and Fleming utilized
     court resources, including but not limited to, computers,
     telephones, fax machine, paper, envelopes[,] and postage.

In re Berry, 979 A.2d 991, 994–996 (Pa. Ct. Jud. Disc. 2009) (Kurtz, J.,

opinion announcing the judgment of the court) (certain paragraph breaks


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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

1
    65 Pa.C.S.A. § 1103(a).
2
    18 Pa.C.S.A. § 3926(b).
3
   This procedure violated 18 Pa.C.S.A. § 1106(c)(2) as interpreted by
Commonwealth v. Deshong, 850 A.2d 712 (Pa. Super. 2004).                In
Deshong, this Court held “that restitution must be determined at the time
of sentencing if the restitution is imposed as a direct sentence.”
Commonwealth v. Schrader, 141 A.3d 558, 562 (Pa. Super. 2016).
Furthermore, this Court held that when restitution is not imposed at the
same time as the judgment of sentence, the restitution order makes the
judgment of sentence a final, appealable order. Id., citing Deshong, 850
A.2d at 714 n.1. Therefore, Appellant’s judgment of sentence did not
become final until February 4, 2016. Pursuant to Pennsylvania Rule of
Appellate Procedure 905(a)(5), Appellant’s notice of appeal is considered
filed as of that date.


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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:

      1. Whether the trial court erred, abused its discretion, and
         unfairly prejudiced [Appellant] when [it] denied the motion to
         discharge and dismiss the case[?]

      2. Whether the trial court erred, abused its discretion, and
         unfairly prejudiced [Appellant] when [it] foreclosed defense
         counsel from questioning a witness about an oral agreement
         not to prosecute[?]

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, 85 A.3d 482 (Pa. 2014) (citation

omitted).




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        “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, 134 A.3d

56 (Pa. 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, 91 A.3d

162 (Pa. 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.

4
    Section 3926(a)(1) provides that it is illegal for an individual to

        obtain[] services for himself or for another which he knows are
        available only for compensation, by deception or threat, by
        altering or tampering with the public utility meter or measuring
        device by which such services are delivered or by causing or
        permitting such altering or tampering, by making or maintaining
        any unauthorized connection, whether physically, electrically or
        inductively, to a distribution or transmission line, by attaching or
        maintaining the attachment of any unauthorized device to any
        cable, wire or other component of an electric, telephone or cable
        television system or to a television receiving set connected to a
        cable television system, by making or maintaining any
        unauthorized modification or alteration to any device installed by
        a cable television system, or by false token or other trick or
        artifice to avoid payment for the service.

18 Pa.C.S.A. § 3926(a)(1).


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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, we

decline to modify the trial court’s sentencing order.

      Appellant argues that section 1103(a) is facially unconstitutional for

three reasons.   First, he argues that it exceeded the General Assembly’s

authority under the Pennsylvania Constitution. Second, he argues that it is

unconstitutionally overbroad because it infringes upon his right to freedom

of speech. Third, he argues that it is unconstitutionally vague.

      Section 1103(a) provides that, “No public official or public employee

shall engage in conduct that constitutes a conflict of interest.” 65 Pa.C.S.A.

§ 1103(a). “Conflict of interest” is defined as

      Use by a public official or public employee of the authority of his
      office or employment or any confidential information received
      through his holding public office or employment for the private
      pecuniary benefit of himself, a member of his immediate

5
  Section 3926(b) provides that it is illegal for an individual to “hav[e]
control over the disposition of services of others to which he is not entitled,
[and] knowingly divert[] such services to his own benefit or to the benefit of
another not entitled thereto.” 18 Pa.C.S.A. § 3926(b).
6
  To the extent that Appellant argues that section 3926(b) violates the
separation of powers doctrine, that argument is without merit.     See
Commonwealth v. Orie Melvin, 103 A.3d 1, 15 (Pa. Super. 2014), appeal
discontinued, 440 WAL 2014 & 441 WAL 2014 (Pa. Oct. 28, 2014).


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J-S23013-17


      family[,] or a business with which he or a member of his
      immediate family is associated. The term does not include an
      action having a de minimis economic impact or which affects to
      the same degree a class consisting of the general public or a
      subclass consisting of an industry, occupation or other group
      which includes the public official or public employee, a member
      of his immediate family[,] or a business with which he or a
      member of his immediate family is associated.

65 Pa.C.S.A. § 1102.

      Appellant first contends that section 1103(a) violates the doctrine of

separation of powers in that the General Assembly overstepped its authority

in passing the statute.   As our Supreme Court has explained, “Under the

doctrine of separation of powers, the legislature may not exercise any power

specifically entrusted to the judiciary, which is a co-equal branch of

government. . . . Legislation that infringes on [our Supreme] Court’s

authority over courts is invalid.”   Kremer v. State Ethics Comm’n, 469

A.2d 593, 595 (Pa. 1983) (citations and paragraph break omitted). Article

V, section 10(c) of the Pennsylvania Constitution defines the authority of our

Supreme Court over the judiciary and the judicial branch of state

government. It provides, in relevant part, that our

      Supreme Court shall have the power to prescribe general rules
      governing practice, procedure and the conduct of all courts,
      justices of the peace and all officers serving process or enforcing
      orders, judgments or decrees of any court or justice of the
      peace, including . . . the administration of all courts and
      supervision of all officers of the Judicial Branch[.]




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Pa. Const. art. V, § 10(c). Appellant argues that section 1103(a) infringes

upon our      Supreme    Court’s power under     section 10(c) to       regulate,

exclusively, members of the judiciary.

        Although neither this Court nor our Supreme Court has addressed a

separation of powers challenge to section 1103(a), we find instructive this

Court’s analysis of a similar issue in Commonwealth v. Orie Melvin, 103

A.3d 1 (Pa. Super. 2014), appeal discontinued, 440 WAL 2014 & 441 WAL

2014 (Pa. Oct. 28, 2014). Former-Justice Orie Melvin was convicted of theft

of services, conspiracy to commit theft of services,7 conspiracy to tamper

with evidence,8 and misapplication of entrusted property.9         The conviction

arose from use of chambers personnel, office equipment, and supplies in the

course of her campaign for our Supreme Court. Like Appellant in the case

sub judice, she argued that these criminal statutes, as applied to members

of the judiciary, violated the doctrine of separation of powers.

        This Court rejected Orie Melvin’s argument explaining that, in the

cases in which our Supreme Court invalidated statutes pursuant to the

separation of powers doctrine, e.g., Commonwealth v. Stern, 701 A.2d

568 (Pa. 1997), Kremer, and In re Dobson, 534 A.2d 460 (Pa. 1987), our

        Supreme Court had adopted rules regulating the specific conduct
        of attorneys and judges, thus establishing in each instance [our]

7
    18 Pa.C.S.A. §§ 903, 3926.
8
    18 Pa.C.S.A. §§ 903, 4910.
9
    18 Pa.C.S.A. § 4113(a).


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      Supreme Court’s intention to exercise its authority to regulate
      the conduct at issue. More importantly, in each of those cases,
      the Legislature attempted to regulate precisely the same conduct
      covered by [our] Supreme Court rules. That symmetry does not
      exist in this case.

Orie Melvin, 103 A.3d at 15

      The other two cases cited by Appellant are similar to Stern, Kremer,

and Dobson.     In Wajert v. State Ethics Comm’n, 420 A.2d 439 (Pa.

2003), our Supreme Court held that a statute prohibiting former judges from

practicing before courts they had served on for one year after leaving the

bench was unconstitutional. Id. at 442. As our Supreme Court explained,

“Long before the [statute] was enacted, [our Supreme] Court adopted the

Code of Professional Responsibility enunciating the standards governing the

professional conduct of those engaged in the practice of law in this

Commonwealth[.]” Id. Thus, because the General Assembly attempted to

regulate precisely the same conduct, our Supreme Court determined that

the statute violated the doctrine of separation of powers.

      Our Supreme Court invalidated 65 Pa.C.S.A. § 1103(g) on similar

grounds in Shaulis v. State Ethics Comm’n, 833 A.2d 123 (Pa. 2003).

Section 1103(g) prohibited former government employees from representing

any person before his or her former government employer.       Our Supreme

Court explained that this prohibition targeted the practice of law. Id. Thus,

in both Wajert and Shaulis, the unconstitutional statutes directly regulated

the practice of law, over which our Supreme Court has exclusive control.



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      As in Orie Melvin, the symmetry present in Stern, Kremer, Dobson,

Shaulis, and Wajert is not present in this case. At all times relevant to this

case, the Code of Judicial Conduct provided that a judge “should not lend the

prestige of [his or her] office to advance the private interests of others[.]”

Pennsylvania Code of Judicial Conduct Canon 2B (2004); Pennsylvania Code

of Judicial Conduct Canon 2B (2006). This prohibition is not the same as the

conduct criminalized by section 1103(a).     Section 1103(a) criminalizes the

use of the authority of an individual’s office, not the prestige associated

therewith. Neither the pre-2005 nor the post-2005 versions of the Code of

Judicial Conduct specified that a judge should not use the authority of his or

her office to advance his or her own private interest. Instead, both the pre-

2005 and post-2005 versions of the Code of Judicial Conduct only required a

judge to disqualify himself or herself if an assigned case impacted his or her

pecuniary interests.   See Pennsylvania Code of Judicial Conduct Canon

3C(1)(c) (2004); Pennsylvania Code of Judicial Conduct Canon 3C(1)(c)

(2006). As is evidenced by the factual background of this case, Appellant

did not hear cases in which he had a personal financial interest. Instead, he

used the authority of his office by directing his secretary to administer his

real estate business and used court resources to avoid overhead costs.

      We acknowledge that the Court of Judicial Discipline found that

Appellant violated the Code of Judicial Conduct by bringing the judiciary into

disrepute.   See Berry, 979 A.2d at 1001-1003.       That very broad finding



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under the Code of Judicial Conduct, however, is insufficient for us to

conclude that section 1103(a) governs a precise form of conduct regulated

by our Supreme Court. As this Court has explained:

      Both the pre–2005 and post–2005 versions of the Code [of
      Judicial Conduct] contain seven “canons.” Canon 2A sets forth
      the directive from [our] Supreme Court that “judges should
      respect and comply with the law.” Thus, under [Appellant’s]
      theory, no judge could be prosecuted for the violation of any
      criminal statute. The absurdity of this hypothesis is self-evident.

Orie Melvin, 103 A.3d at 16 n.6 (ellipsis omitted).

      Recently, our Supreme Court re-affirmed that general restrictions, i.e.,

those that apply to all Commonwealth employees and not just attorneys

and/or judges, do not offend the separation of powers doctrine. See Yocum

v. Gaming Control Bd., 2017 WL 2291771, *9 (Pa. May 25, 2017).

Section 1103(a) is one such general restriction.      It prohibits conflicts of

interest by all public employees and not just judges and attorneys.

Combined with the fact that our Supreme Court has not explicitly regulated

conflicts of interest in the Code of Judicial Conduct, this indicates that

section 1103(a) does not infringe upon our Supreme Court’s authority to

regulate members of the judiciary.         Accordingly, we hold that section

1103(a), as applied to jurists, does not violate the doctrine of separation of

powers.

      Appellant’s   argument   that   section   1103(a)   is   unconstitutionally

overbroad because it infringes upon his right to freedom of speech is also

without merit.   This Court has held that section 1103(a) does not infringe


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upon an individual’s right to freedom of speech. Commonwealth v. Orie,

88 A.3d 983, 1026 (Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa.

2014).   In a related challenge, Appellant attempts to show that section

1103(a) is unconstitutionally vague on its face.   As this Court explained,

however:

     For a court to entertain challenges of facial vagueness, the
     claims must involve First Amendment issues. When a case does
     not implicate First Amendment matters, vagueness challenges
     are to be evaluated in light of the facts at hand—that is, the
     statute is to be reviewed as applied to the defendant’s particular
     conduct.

Id. at 1024 (citation omitted). As noted above, this case does not implicate

First Amendment matters. Accordingly, we must examine Appellant’s void-

for-vagueness challenge as an as-applied challenge and not a facial

challenge.

     As this Court explained

     A statute may be deemed to be unconstitutionally vague if it fails
     in its definiteness or adequacy of statutory expression. This
     void-for-vagueness doctrine, as it is known, implicates due
     process notions that a statute must provide reasonable
     standards by which a person may gauge his future conduct, i.e.,
     notice and warning.

     Specifically with respect to a penal statute . . . to withstand
     constitutional scrutiny based upon a challenge of vagueness a
     statute must satisfy two requirements. A criminal statute must
     define the criminal offense with sufficient definiteness that
     ordinary people can understand what conduct is prohibited and
     in a manner that does not encourage arbitrary and
     discriminatory enforcement.




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Commonwealth v. Kakhankham, 132 A.3d 986, 990–991 (Pa. Super.

2015), appeal denied, 138 A.3d 4 (Pa. 2016) (internal quotation marks and

citations omitted).

       Appellant contends that the definition of conflict of interest is

unconstitutionally vague in two respects.    First, he argues that the term

“private pecuniary gain” does not provide defendants with adequate notice

of which conduct is criminalized by the statute. Second, he argues that the

term “de minimis economic impact” similarly does not provide defendants

with adequate notice of which conduct is criminalized by the statute.

       Appellant’s argument that section 1103(a) is unconstitutionally vague

because of the term “private pecuniary gain” is without merit.      “There is

nothing unclear about the concept of . . . private pecuniary benefit.”

Commonwealth v. Habay, 934 A.2d 732, 738 (Pa. Super. 2007), appeal

denied, 954 A.2d 575 (Pa. 2008).     Thus, this Court has held that section

1103(a) is not unconstitutionally vague because of that phrase. Id. at 738-

739.

       In this case, Appellant acquired a vast array of private pecuniary

benefits. He received free postage, telephone calls, and office supplies for

his private business. He was not required to rent an office as he used his

judicial chambers. Most glaringly, Appellant used his secretary as a de facto

employee for his rental business.    The criminal characterization of these

pecuniary benefits is not vague. An ordinary person would understand this



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conduct is included within the definition of conflict of interest. Moreover, it

was not arbitrary and capricious to find that Appellant’s conduct led to

private pecuniary gain.

      This Court has also specifically rejected Appellant’s argument that

Skilling v. United States, 561 U.S. 358 (2010) rendered section 1103(a)

unconstitutionally vague. Commonwealth v. Feese, 79 A.3d 1101, 1128

(Pa. Super. 2013).

      As this Court explained:

      In Skilling, the Supreme Court of the United States held that
      the honest services statute, 18 U.S.C. § 1346, was limited in
      application to bribe and kickback schemes, and that any
      additional interpretations, particularly those that included
      deprivations not only of money or property, but also of
      intangible rights, would run afoul of the vagueness doctrine.

      The statutory text of the honest services statute at issue in
      Skilling is not remotely similar to that of the instant case.
      Furthermore, the Commonwealth did not allege any sort of
      intangible right deprivation as the basis of charging [a]ppellant
      with violations of [section 1103(a)]. Accordingly, Skilling does
      not undermine the holding in Habay, nor does it have any
      controlling or persuasive authority in the instant case.

Feese, 79 A.3d at 1128 (internal alteration, quotation marks, and

citation omitted).   The same is true in the case sub judice.        The

Commonwealth did not allege that Appellant deprived it of intangible

benefits. Instead, the Commonwealth alleged that Appellant deprived

the Commonwealth of tangible benefits, e.g., the funds and resources

expended in the administration of Appellant’s real estate business.

Therefore, Appellant’s reliance on Skilling is misplaced.


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      Appellant’s argument that section 1103(a) is unconstitutionally vague

because of the term “de minimis economic impact” is also without merit.

Section 1102 defines the term “de minimis economic impact” as “[a]n

economic consequence which has an insignificant effect.”         65 Pa.C.S.A.

§ 1102.   This is a straightforward definition which uses common words.

Appellant’s use of court resources over an extended period of time, as

recounted above, clearly had an economic consequence which was not

insignificant. See Berry, 979 A.2d at 1001. In addition to using court funds

to send mail related to his rental business, Appellant did not hire a

secretary, rent office space, or obtain a business telephone line. Instead, he

used his position as a judge on the Philadelphia Court of Common Pleas to

attain these goods and services.     Accordingly, we conclude that section

1103(a) is not void-for-vagueness as applied to Appellant.

      In his second issue, Appellant argues that the trial court abused its

discretion in limiting his re-direct examination of Samuel Stretton, Esq., who

represented him before the Court of Judicial Discipline.10 Appellant’s counsel

asked Attorney Stretton, “Did you have any understanding with the

adversary about whether or not there was going to be any criminal

prosecution of Judge Berry?”    N.T., 7/22/15, at 27.    The Commonwealth

objected and the trial court sustained the objection.        We review a trial

court’s decision to limit re-direct examination for an abuse of discretion.

10
   Attorney Stretton also represented Appellant before the trial court in his
criminal proceedings.


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See Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943, 972 (Pa.

Super. 2009), appeal denied, 19 A.3d 152 (Pa. 2011).

      The evidence Appellant attempted to elicit from this question was

irrelevant. In order for evidence to be relevant, it must have a “tendency to

make a fact more or less probable than it would be without the evidence.”

Pa.R.Evid. 401(a).     Whether Appellant or Attorney Stretton had an

understanding regarding prosecution following the proceedings before the

Court of Judicial Discipline did not make it more or less likely that Appellant

violated section 1103(a) and/or 3926(b). Instead, this question related only

to whether Appellant’s prosecution was barred by an agreement with the

Commonwealth. That is a purely legal question which is for the trial court,

and not the jury, to determine.     Cf. Commonwealth v. Ginn, 587 A.2d

314, 316-317 (Pa. Super. 1991) (affirming trial court’s enforcement of non-

prosecution agreement as it was a purely legal question). As the evidence

Appellant attempted to elicit by this question was irrelevant, we ascertain no

abuse of discretion in the trial court’s order sustaining the Commonwealth’s

objection.

      Finally, we sua sponte consider the legality of Appellant’s sentence.

See Commonwealth v. McCamey, 154 A.3d 352, 357 (Pa. Super. 2017)

(citation omitted).   On February 4, 2016, as part of its judgment of

sentence, the trial court ordered Appellant to pay restitution to the




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Commonwealth.11     Nine months later, in Commonwealth v. Veon, 150

A.3d 435 (Pa. 2016), our Supreme Court held that the Commonwealth

cannot be a victim eligible for restitution under 18 Pa.C.S.A. § 1106. Id. at

448-455. As such, we conclude that Appellant’s sentence was illegal insofar

as it ordered him to pay restitution to the Commonwealth. As the restitution

was a critical part of the sentencing scheme, we vacate Appellant’s entire

judgment of sentence and remand for resentencing. See id. at 456.

      In sum, 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. We conclude that the trial court properly excluded an

alleged    non-prosecution    agreement      between    Appellant   and    the

Commonwealth.       Appellant’s sentence, however, is illegal since        the

Commonwealth cannot be deemed a “victim” for purposes of ordering

restitution.   Accordingly, we affirm Appellant’s convictions, vacate his

judgment of sentence, and remand for the sole purpose of resentencing.

      Judgment of sentence affirmed in part and vacated in part.          Case

remanded. Jurisdiction relinquished.




11
   The trial court did so in accordance with this Court’s then-binding
precedent of Commonwealth v. Veon, 109 A.3d 754 (Pa. Super. 2015),
vacated, 150 A.3d 435 (Pa. 2016).


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J-S23013-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017




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