Commonwealth v. Berry
167 A.3d 100
| Pa. Super. Ct. | 2017Background
- Willis Berry, a former Philadelphia County Common Pleas judge (served 1996–2009), owned multiple rental and other properties and received over 70 L&I citations for code violations. He used his judicial office and staff (notably his secretary Carolyn Fleming) and court resources to manage his private property business.
- The Court of Judicial Discipline found Berry used chambers personnel, equipment, and supplies to run his real estate business; Berry stipulated to the underlying facts.
- Berry was criminally charged (9/4/2014) with conflict of interest (65 Pa.C.S. § 1103(a)) and theft of services (charged under § 3926 but clerical references mistakenly cited § 3926(a)(1)); convicted on 7/22/2015.
- Sentenced 12/11/2015 to 3 years’ probation; restitution was set later (2/4/2016). Berry appealed, raising constitutional challenges to § 1103(a) and an evidentiary objection about exclusion of testimony regarding an alleged non‑prosecution understanding.
- The Superior Court affirmed convictions, held § 1103(a) did not violate separation of powers, was not unconstitutionally vague or overbroad, and sustained the trial court’s exclusion of the non‑prosecution evidence; but vacated the sentence and remanded for resentencing because restitution to the Commonwealth is unlawful after Commonwealth v. Veon.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Berry) | Held |
|---|---|---|---|
| Separation of powers challenge to 65 Pa.C.S. § 1103(a) | §1103(a) is a valid general criminal statute prohibiting conflicts of interest by public employees | §1103(a) impermissibly intrudes on judicial rulemaking authority over judges by criminalizing judicial conduct | Affirmed: §1103(a) is a general statute regulating all public employees and does not conflict with Supreme Court rules; no separation‑of‑powers violation |
| First Amendment overbreadth and vagueness of §1103(a) (terms: "private pecuniary benefit" and "de minimis economic impact") | Statute provides adequate notice; prosecutes tangible pecuniary gains, not intangible rights | Statute is overbroad (restricts speech) and vague (uncertain terms) | Affirmed: not overbroad re speech; not unconstitutionally vague as applied to Berry—terms are understandable and fit his conduct |
| Challenge re §3926(a)(1) citation | Commonwealth relied on proper theft‑of‑services statute | Berry raised constitutionality of §3926(a)(1) and other statutory issues | Court treated citation as clerical error; Berry was charged/convicted under §3926(b); no separate §3926(a)(1) ruling needed |
| Exclusion of testimony about alleged non‑prosecution understanding | Testimony about any agreement could bear on prosecution bar | Berry sought to elicit defense counsel’s testimony about an understanding with adversary that there would be no criminal prosecution | Affirmed exclusion: question was irrelevant to jury (legal question for court); trial court did not abuse discretion |
| Restitution to the Commonwealth | Restitution could be imposed for costs the Commonwealth incurred | Berry argued restitution to the Commonwealth was improper | Sentence reversed in part: restitution to Commonwealth unlawful per Veon; judgment of sentence vacated and remanded for resentencing |
Key Cases Cited
- In re Berry, 979 A.2d 991 (Pa. Ct. Jud. Disc. 2009) (disciplinary court findings and factual stipulation regarding Berry’s use of chambers resources)
- Commonwealth v. Orie Melvin, 103 A.3d 1 (Pa. Super. 2014) (legislative criminal statutes regulating general employee conduct do not necessarily invade judicial rulemaking authority)
- Kremer v. State Ethics Comm’n, 469 A.2d 593 (Pa. 1983) (separation‑of‑powers principles when Legislature regulates conduct already governed by Court rules)
- Shaulis v. State Ethics Comm’n, 833 A.2d 123 (Pa. 2003) (statute invalid where it directly regulates practice of law already governed by Court rules)
- Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016) (Commonwealth is not an eligible restitution "victim"; restitution to the Commonwealth unlawful)
- Skilling v. United States, 561 U.S. 358 (U.S. 2010) (interpretation of honest‑services statute and vagueness concerns; distinguished here as Berry’s prosecution alleged tangible pecuniary benefits)