J-A23016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ARNOLD STEINBERG,

                            Appellant                       No. 1761 WDA 2012


       Appeal from the Judgment of Sentence entered October 24, 2012,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division, at No(s): CP-02-CR-0013930-2011


BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                                   FILED AUGUST 26, 2014

                                                     pro se from the judgment of

sentence entered after a jury convicted him of two counts of the

                                           .1 We affirm.



convictions as follows:

              The [Commonwealth] charged Appellant with [the]
           unauthorized practice of law. There were two separate
           accusations of criminality: the first inv
           resolution of a personal injury matter for Marcie Caliguire;

           Mrs. Batis in     a financial securities matter.    In both
           instances, the    [Commonwealth] accused [Appellant] of
           practicing law    after he was disbarred [by consent] on
           [January 29,]     2009.    The [Commonwealth] presented
           evidence from     Ms. Caliguire, her father, John, opposing
____________________________________________


1
    42 Pa.C.S.A. § 2524.
J-A23016-14


       counsel in the securities matter, Mrs. Batis[,] and an
                                                          The

       exhibits.

          Personal Injury   Caliguire Matter

         Marci Caliguire was in an automobile accident in North
       Carolina in September, 2007. She talked with her father
       about it and he recommended she call [Appellant]. She

       the attorney-


       sent a form letter to Ms. Caliguire.     The topic was the

       statement to her was as follows:


          $5,000.00 and the check and Release are on the way
          to my office. We could not get more because of
          notations in the records that you had other vehicular
          accidents and that you had told the doctors that you
          had basically recovered. Based upon everything,
          this is far better than having to retain North Carolina
          counsel to file an action that would be a major
          distraction to you in the forms of depositions,
          hearings, independent medical exams, etc. Please


       The date of this communication from [Appellant] was
       November 10, 2009. The date of his disbarment was 9
       months earlier    [on] January 29, 2009. At no time did
       [Appellant] inform Ms. Caliguire that he was no longer a

       evidence.

                                  ***

          Financial Securities   Batis Matter

          Through hard work, Carol and Nicho
       accumulated some assets through their 37 years of
       marriage. They chose to invest this money. They gave
       their money to a brokerage firm, Stifel Nicholaus.
       Sometime in 2008, Batis wanted to sell some of their stock

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       in response to the market correction the United States was
       experiencing. Their contact person, Mr. Phillip Kontul,

       result, their stock was not sold as quick as they would
       have liked. They lost money. Batis estimated it to be
       about $95,000.

          This was not the first time Batis experienced such an
       event.    Around 2001, Batis suffered more substantial
       losses around $250,000. Batis pursued the matter in an
       arbitration forum. In 2003, the arbitration panel ruled in
       Bati
       [Appellant].

          With this history of success, Batis reached out to
       [Appellant] to help them with the more recent matter. In
       August, 2008, Batis entered into a contract with
       [Appellant]. [Appellant] agreed to act as their attorney to

       inference can be drawn that Appellant was paid the $1,000
       called for in the agreement to start his representation.]
       [Appellant] filed a Statement of Claim on behalf of Batis.
       This document details the particulars of the claim. A
       hearing date was set for late October, 2009.

          About a month before the hearing, [Appellant]
       communicated an offer he received to settle the case. The
       offer was $30,000. His advice was that Batis

       the entire 95-
       success, the offer was rejected by Batis.

          A few days before the hearing, [Appellant] and Batis
       [met] in his office to prepare. The meeting also included
       the presence of expert witnesses. [Appellant] told Batis
       they were needed. Batis accepted the advice. The hearing

       far different than the $95,000 Batis calculated and
       significantly less than the $30,000 that was negotiated by
       [Appellant].

          At home that evening, Batis began to do some
       research. [They] learned [Appellant] was disbarred. Batis
       was never told by [Appellant] that he was disbarred. They
       never received a letter from him saying he was disbarred.
       His date of disbarment was January 29, 2009.

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Trial Court Opinion, 8/5/13, 3-6 (citations to notes of testimony, exhibits

and footnotes omitted).

       In his defense, Appellant testified and, as to both matters, asserted

that the clients suffered no harm. In addition, Appellant claimed that what




the jury convicted Appellant of two counts of the unauthorized practice of

law.    On October 24, 2012, the trial court sentenced Appellant to an

aggregate term of eighteen months of probation, as well as restitution and

court costs. This timely appeal followed. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

       Appellant raises the following issues:

          1.


          2. Whether the cumulative effect of the numerous errors
          and instances of prejudice committed by the Trial [Court],
          served to deprive [Appellant] of a fair trial?

          3. Whether the acts of which [Appellant] was accused
          were de minimus to the point where the Trial Court should
          have dismissed the charges brought against [Appellant]?

          4. Whether the Trial Court erred in refusing to include the
          Proposed Jury Instructions of [Appellant] as part of its
          Charge to the Jury?




comply with Pa.R.A.P. 2116(a), in that each of the above issues are not


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supported by a separate delineated argument section.       This has rendered



Commonwealth contends that all of Appellan

      Citing Pa.R.A.P. 302(a), the Commonwealth first contends that



raise the issues with the trial court, and notes that Appellant cannot rectify

his error by raising the issues for the first time in his Pa.R.A.P. 1925(b)

                                           -7 (quoting Commonwealth v.

Kohan, 825 A.2d 702, 706 (Pa. Super. 2003)).                Additionally, the

Commonwealth asserts that any issue raised by Appellant that did not

appear in his Rule 1925(b) statement is waived. Pa.R.A.P. 1925(b)(4)(vii).

Finally, the Commonwealth supports its waiver argument by averring that all



Brief at 7. Accordin

either because Appellant does cite to the record or relevant legal authority,

Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005), or has

inadequately   developed    his   claim   for   relief.    See       generally,

Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011). The trial court has also

found waiver with regard to several issues. See Trial Court Opinion, 8/5/13.

We will address waiver relative to each issue raised by Appellant.

      Appellant first mounts a constitutional challenge to the UPL statute.

The pertinent statutory section reads as follows:

         § 2524. Penalty for unauthorized practice of law

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J-A23016-14


          (a) General rule. Except as provided in subsection (b)
        [(relating to practice by associations)], any person,
        including but not limited to, a paralegal or legal assistant,
        who within this Commonwealth shall practice law, or who
        shall hold himself out to the public as being entitled to
        practice law, or use or advertise the title of lawyer,
        attorney at law, attorney and counselor at law, counselor,
        or the equivalent in any language, in such a manner as to
        convey the impression that he is a practitioner of the law
        of any jurisdiction, without being an attorney at law or a
        corporation complying with 15 Pa.C.S. Ch. 29 (relating to
        professional corporations), commits a misdemeanor of the
        third degree upon a first violation.          A second or
        subsequent violation of this subsection constitutes a
        misdemeanor of the first degree.

42 Pa.C.S.A. § 2524(a).

     In support of his constitutional challenge, Appellant asserts that




                                                                     inguishes

                                 -admitted attorneys versus people who had

                                           Id. at 14 n.10.    Thus, Appellant



              Id. at 14-15.

     As to his specific charges, Appellant additionally argues that in the



Director of Arbitration [and] he was acting without any intent to violate the

                          Id. at 13. As to the Caliguire matter, his actions in




                                     -6-
J-A23016-14



accidentally had the wrong letterhead, . . . would also appear to not violate

                                                                   d).




his Pa.R.A.P. 1925(b) statement resulted in waiver of his claim. Our review

of the statement sup                                                     See generally,

Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011). Nonetheless,



declared unconstitutional unless it clearly, palpably and plainly violates the

                  Commonwealth v. Cotto, 753 A.2d 217, 219 (Pa. 2000)



                                                         Id.

resolved    in   favor   of   finding   that   the   legislative   enactment     passes

                              Commonwealth v. Waddell, 61 A.3d, 198, 202

(Pa. Super. 2012).



Supreme Court has summarized:

           A statute is constitutionally void if it is so vague that
           persons of common intelligence must necessarily guess at
           its meaning and differ as to its application. A vague law
           impermissibly delegates basic policy matters to policemen,
           judges, and juries for resolution on an ad hoc and
           subjective basis, with the attendant dangers of arbitrary
           and discriminatory application. However, a statute will not
           be deemed unconstitutionally vague if the terms, when
           read in context, are sufficiently specific that they are not
           subject to arbitrary and discriminatory applications.


                                         -7-
J-A23016-14



Cotto, 753 A.2d at 220 (citations omitted).



reasoning as follows:

           Our state Supreme Court has dealt with this broad issue
                              -for-vagueness standard, a statute

        that persons of common intelligence must necessarily

        Commonwealth v. Davidson, 938 A.2d 198, 207 (Pa.
        2007) (citations omitted). However, a statute will pass a
        vagueness constitutional challenge if the statute

        that ordinary people can understand what conduct is
        prohibited and in a manner that does not encourage
                                                                 Id.,
        (citations omitted). Due process requires that a criminal
        statute give fair warning of the conduct it criminalizes. Id.

        Assembl

        sought does not mean that the statute which it in fact
                                             Id., at 207-208
        (citations omitted).

                               int about the [UPL] statute is that it
        does not define that very phrase unauthorized practice of

        and many others to wonder what is acceptable conduct
        and what is criminal conduct.

           Our state Sup
        a comprehensive statement of what activities comprise the
        practice of law, nor have we believed it wise or necessary
        to engage in the task of defining what the practice of law
                                  Office of Disciplinary Counsel
        v. Marcone, 855 A.2d 654, 660 (Pa. 2004), citing the
        leading case on the topic, Shortz v. Farrell, 193 A. 20
        (Pa. 1937) (attempt to formulate a precise definition of the
        practice of law would be more likely to invite criticism than
        to ach
        have explained what specific activities constitute the

                                    -8-
J-A23016-14


         practice of law on a case-by-                  Id. While our
         focus is on the underlying facts [in this case], the 76 year
         old Shortz decision touched upon 3 broad categories of
         activity that would constitute the practice of law[:]

            (1) the instruction and advising clients in regards to
            the law so that they may pursue their affairs and be
            informed as to their rights and obligations;

            (2) the preparation of documents for clients requiring
            familiarity with legal principles beyond the ken of
            ordinary laypersons; and

            (3) the appearance on behalf of clients before public
            tribunals in order that the attorney may assist the
            deciding official in the proper interpretation and
            enforcement of law.

         Shortz, 193 A. at 21.


         parameters established by Shortz. As for the personal
         injury matter, [Appellant] advised Ms. Caliguire that the
         $5,000 settlement was the best that could be obtained.
         He reached that conclusion based upon his years of
         experience and knowing the likelihood of success if that
         monetary resolution was rejected. He also instructed Ms.
         Caliguire about the practical problems associated with an
         accident which happened in another state. Ms. Caliguire
         relied upon that advice. For the Batis matter, [Appellant]
         prepared a statement of claim. He used his experience to
         filter what pertinent facts needed to be included. He
         appeared in the arbitration matter and was the leader of
         the Batis team.      His team members included expert
         witnesses    which    [Appellant]     prepared    for  their
         presentation. At the end of the day, the Court does not
         see that a person of ordinary intelligence would continue to
         do tasks a lawyer normally does after being told you are
         no longer a lawyer.

                                    ***

            The present facts just do not allow [Appellant] to
         overcome [the presumption of constitutionality].

Trial Court Opinion, 8/5/13, at 9-11.

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J-A23016-14



                                                             onclusion that

Appellant failed to meet his burden of establishing that the UPL statute is



largely based on matters outside the record and therefore irrelevant, are

inapposite. Thus,




                                                           3. In support of

this issue, Appellant argues specific instances under seven subheadings,




     The subheadings raised by Appellant largely concern the conduct and



predisposition against Appellant, and demonstrates why the trial court

                                    -trial motion for recusal. See N.T., 9/4

 6/12, at 239. In each of these subheadings Appellant either lists out-of-



                                                                      errors

                                                                       See

                       -30.   Appellant does not reference any pertinent

authority to support his claims.   Because Appellant has not adequately




                                   - 10 -
J-A23016-14



developed any of these claims, we find them waived, and will not consider

them further. Spotz, supra.




Court has explained:

            If a party questions the impartiality of a judge, the
         proper recourse is a motion for recusal, requesting that the
         judge make an independent self-analysis of the ability to
         be impartial. If content with that inner examination, the
         judge must then decide whether his or her continued
         involvement in the case creates an appearance of
         impropriety and/or would tend to undermine public
         confidence in the judiciary. This assessment is a personal
         and unreviewable decision that only the jurist can make.
         Once the decision is made, it is final.

            This Court presumes judges of the Commonwealth are
         honorable, fair and competent, and when confronted with
         a recusal demand, have the ability to determine whether
         they can rule impartially and without prejudice. The party
         who asserts a trial judge must be disqualified bears the
         burden or producing evidence establishing bias, prejudice,
         or unfairness necessitating recusal, and the decision by a
         judge against whom a plea of prejudice is made will not be
         disturbed except for an abuse of discretion.

Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (citations

omitted).

      The trial court explained the context of the recusal motion, and its

reasons for denying it, as follows:

         When the Commonwealth ended their evidentiary
         presentation, the parties conferred with the Court. During
         this discussion, [Appellant] asked that the case be
         dismissed. Soon thereafter, [Appellant] moved to recuse
         this jurist from further participation.       After giving

                                      - 11 -
J-A23016-14


        [Appellant] the opportunity to argue, the motion was
        denied.

                                   ***

           [Druce, supra] requires [Appellant] produce evidence

        do. His oral argument at the time of his motion mimics
        what is contained in his [Amended Pa.R.A.P. 1925(b)
        Statement] that is the Court believed him to be guilty
        and that belief influenced its decision making. The Court
        does not run from its thought that [Appellant] was guilty of

        expressed when [Appellant] asked the Court to grant his
        request for judgment of acquittal.

          When faced with such a motion, a trial court must
        adhere to a certain standard[:]

           A motion for judgment of acquittal challenges the
           sufficiency of the evidence to sustain a conviction on
           a particular charge, and is granted only in cases in
           which the Commonwealth has failed to carry its
           burden regarding that charge. The standard we
           apply in reviewing the sufficiency of the evidence is
           whether reviewing all the evidence admitted at trial
           in the light most favorable to the verdict winner,
           there is sufficient evidence to enable the factfinder to
           find every element of the crime beyond a reasonable
           doubt.

        Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
        (Pa. Super. 2008) (citations and quotations omitted). The
        Court complied with this standard.      It articulated the
        factual inferences it was allowed to draw.        It made
        reference to the elements of the crime. It commented on
        how the facts and the law coalesced in such a way that it
                                  ecide what the true facts were.
        Commonwealth v. Neary, 512 A.2d 1226, 1233 (Pa.

        not exposed to any comments made by the judge, but

        the stre

Trial Court Opinion, 8/5/13, at 32-34.

                                    - 12 -
J-A23016-14



       After reviewing the trial transcript, we conclude that the trial court did



of his claim, Appellant asserts:

             [Appellant] contends that nothing could lend to a
          greater question of judicial impartiality [sic], when the trial
          judge makes a statement in front of the jury, that he
          believes [Appellant] committed the acts that constituted
          the violation of which he was accused. That not only sent
          a wrong message to the jury, but it also served as a
          warning that the judge would never rule favorably on any
          dispositive or other important motion brought by
          [Appellant] during the trial that could have resulted in the
          charges being dismissed.




support his assertion.      Assuming that Appellant is referring to the trial

                                                                              tal,

we note that the comments were made outside the presence of the jury.

See N.T., 9/4-9/6/12, at 233.      The fact that Appellant disagrees with the



a basis for recusal. Thus

       In his third issue, Appellant argues that the acts for which he was

                 de minimus to the point where the Trial Court should have



Appe        de minimus argument was the basis for his motion for judgment

of acquittal.   Once again, Appellant provides argument that is devoid of

citation to the relevant statute or pertinent case authority.           Thus, his

undeveloped claim is waived. Spotz, supra.

                                      - 13 -
J-A23016-14



         Appellant further argues that the trial court mislead him by stating

that the de minimus determination would be made by the jury. According to

Appellant, he tailored his defense strategy given this belief, and was



judgment of acquittal.       See                        -31.   Our review of the




court responded:


           would I grant a Motion for Judgment of Acquital [sic]? No.
           Would I - - would I find this a de minimus infraction? No;


              My responses are to procedural           questions    and
           standards, from the standards I have to

           prejudice you, whatever appeal you want to make to the
           jury. I think I have been very liberal in the course of this
           trial, trying to give you as much latitude as possible given
           the dyna
           to do in this situation other than to allow you to proceed as
           requested.

N.T., 9/4-9/6/12, at 237-238.2 In a response to a request by Appellant that

he be permitted to refer to a de minimus defense, the trial court further

                                                          Id. at 243. Thus, the


____________________________________________


2

trial.




                                          - 14 -
J-A23016-14




court.

         In his final claim, Appellant asserts that the trial court erred in refusing

to include his proposed jury instructions in its charge to the jury. According

to Appellant, the trial court further erred in failing to conduct a conference or



proposed by [Appellant], despite the fact that 9 of those had legal authority



that although Appellant asked the trial court to make certain clarifications,

he did not object following the t                                         See N.T.,

9/4-9/6/12, at 374-379.          Thus, the claim is waived.         See generally

Pa.R.A.P. 302(b); Commonwealth v. Sanchez, 82 A.2d 943 (Pa. Super.

2013).



challenge to part of a jury instruction, we must review the jury charge as a

whole to determine if it is fair and complete.             A trial court has wide

discretion in phrasing its jury instructions, and can choose its own words as

long as the law is clearly, adequately, and accurately presented to the jury

for its consideration.     The trial court commits an abuse of discretion only

                                                               Commonwealth v.

Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (citation omitted).

         Our standard for reviewing such a challenge is well-settled:



                                        - 15 -
J-A23016-14


         In reviewing a challenged jury instruction, we must review
         the charge as a whole and not simply isolated portions, to
         ascertain whether it fairly conveys the required legal
         principles at issue. We are reminded, as well, that a trial
         court possesses broad discretion in phrasing its instructions
         to the jury and is not limited to using particular language
         provided that the law is clearly, adequately and accurately
         presented to the jury.


Commonwealth v. Bracey, 831 A.2d 678, 684 (Pa. Super. 2003), appeal

denied



Commonwealth v. Smith, 956 A.2d 1029, 1034-35 (Pa. Super. 2008) (en

banc

instructions meets this standard.



without merit, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

       Judge Donohue concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




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