Commonwealth v. Tanner
205 A.3d 388
Pa. Super. Ct.2019Background
- Brian D. Tanner, former Shenango Township secretary‑treasurer, was charged (2015) with theft-related offenses after allegedly receiving $650,000 in unauthorized payments and using the Township credit card for personal charges.
- Trial began in February 2016; Tanner moved for change of venue based on local media coverage; the trial court denied the motion without prejudice.
- Mid-trial, after the Commonwealth’s third witness testified, Tanner entered a negotiated guilty plea to multiple counts of forgery, theft, and access device fraud; court imposed 2½–5 years incarceration, five years’ probation, and $449,000 restitution ($330,000 to Shenango Township; $119,000 to insurer).
- Tanner did not file a direct appeal; he filed a timely PCRA petition (2017) alleging ineffective assistance of counsel (trial/plea counsel), failure to pursue venue/venire relief, failure to move to dismiss for selective prosecution, and that restitution to the Township was illegal.
- The PCRA court denied relief; Tanner appealed. The Superior Court affirmed denial of PCRA relief on the ineffective-assistance, venue, and selective-prosecution claims, but held the restitution award to the Township and insurer illegal under Commonwealth v. Veon and vacated the restitution order and Tanner’s guilty plea entirely, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument (Tanner) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| 1. Ineffective assistance induced plea / lack of preparation | Counsel’s puffery, poor investigation, no investigators, inadequate preparation, threatened wife’s arrest, coerced mid‑trial plea | Counsel prepared, met repeatedly, reviewed discovery, consulted witnesses, explained plea and rights; Tanner’s on‑the‑record plea colloquy was knowing and voluntary | Court: Counsel not ineffective; plea valid on those grounds |
| 2. Failure to appeal denial of change of venue or request change of venire | Counsel should have appealed venue denial or sought change of venire given pervasive negative publicity | Venue denial was without prejudice; voir dire showed ability to seat impartial jurors; delay between publicity and trial allowed dissipation | Court: No ineffectiveness; no basis for interlocutory appeal; venire motion unnecessary |
| 3. Failure to move to dismiss for selective prosecution | Others (auditor, sewer secretary) similarly situated were not prosecuted; prosecution was selective | Record showed different roles/authority; no impermissible motive shown; Auditor General discovered misconduct; Tanner’s noncooperation hindered prosecution of others | Court: No prima facie selective‑prosecution claim; counsel not ineffective |
| 4. Legality of restitution to Township and insurer | Restitution to Shenango Township ($330,000) and insurer ($119,000) is illegal because a township/insurer is not a “victim” under 18 Pa.C.S. §1106/Crime Victims Act | Restitution was a negotiated plea term; specific performance of plea bargain should be enforced | Court: Followed Commonwealth v. Veon — township and insurer are not victims as defined; restitution illegal; vacated restitution and, because plea negotiations were tainted by this legal error, vacated the entire guilty plea and remanded |
Key Cases Cited
- Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016) (Commonwealth agency is not a “victim” under restitution statute; restitution to agency illegal)
- Commonwealth v. Melendez–Negron, 123 A.3d 1087 (Pa. Super. 2015) (when plea negotiations rest on an erroneous legal premise, guilty plea must be vacated to restore parties to pre‑plea status)
- Commonwealth v. Rucci, 670 A.2d 1129 (Pa. 1996) (pretrial publicity requires saturation and pervasiveness to warrant change of venue)
- Commonwealth v. Chambers, 685 A.2d 96 (Pa. 1996) (mere publicity does not create presumption of prejudice; court examines juror impartiality)
- Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011) (voir dire responses guide whether jurors can be impartial after publicity)
- Commonwealth v. Walter, 119 A.3d 255 (Pa. 2015) (an 11‑month cooling‑off period can dissipate prejudicial publicity)
- Commonwealth v. Murphy, 795 A.2d 997 (Pa. Super. 2002) (elements of a selective‑prosecution claim: similarly situated others not prosecuted and discriminatory motive)
- Commonwealth v. Townsend, 693 A.2d 980 (Pa. Super. 1997) (plea bargains are enforceable; court cannot unilaterally modify negotiated sentence)
- Commonwealth v. Coles, 530 A.2d 453 (Pa. Super. 1987) (modifying negotiated plea sentence can deprive the Commonwealth of its bargain)
- Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999) (legality of sentence issues may be reviewed in a timely PCRA)