Opinion
No. 1234 C.D. 2011 No. 1737 C.D. 2011 No. 1738 C.D. 2011 No. 1739 C.D. 2011 No. 1740 C.D. 2011
06-20-2012
Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Home Assn. Charles Nitterhouse Post 1599, Appellant Commonwealth of Pennsylvania v. Donald William Hershey, Appellant Commonwealth of Pennsylvania v. Home Assn. Charles Nitterhouse Post 1599, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Home Association Charles Nitterhouse Post 1599 (Club) and Donald William Hershey (Hershey) seek review of the Court of Common Pleas of the 39thJudicial District, Franklin County Branch's (trial court) June 6, 2011 order suspending the Club's liquor and small games of chance licenses, and June 6, 2011 verdict finding the Club and Hershey (collectively, Appellants) guilty of several summary violations of the Local Option Small Games of Chance Act (LOSGCA). The issues for this Court's review are: 1) whether this Court should consider if Appellants' constitutional challenges to LOSGCA's requirement that small games of chance proceeds be spent for "public interest purposes" is unconstitutionally vague, despite the trial court's order ruling that Appellants' constitutional challenges were waived; 2) whether the LOSGCA's requirement that small games of chance proceeds be spent for "public interest purposes" is unconstitutionally vague; 3) whether the "public interest purposes" requirement of the LOSGCA is ambiguous; 4) whether during his interview with an enforcement officer from the Pennsylvania State Police, Bureau of Liquor Control Enforcement (BLCE), Hershey was entitled to warnings under Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings); and (5) whether subsequent statements made by Hershey should be suppressed as "fruit of the poisonous tree." We affirm.
Act of December 19, 1988, P.L. 1262, as amended, 10 P.S. §§ 311-327. Although the LOSGCA was recently amended and the sections renumbered (Act of February 2, 2012, P.L. 7, as amended, 10 P.S. §§ 328.101 to 328.707), for purposes of clarity, unless otherwise indicated, this Opinion will refer to the sections as they applied to Appellants in the instant action.
The Club is the home association of the Charles Nitterhouse Post 1599. It is a private, members-only organization, and holds Pennsylvania Catering Club Liquor License No. CC-5257. The Club also holds a permit issued pursuant to LOSGCA, which allows the Club to sell small games of chance. Hershey is the Club's manager.
Harry B. Royer (Royer) is an enforcement officer with the BLCE. Between January 2, 2008 and August 15, 2008, Royer conducted an administrative investigation of the Club. On March 19, 2008, as part of his investigation, Royer interviewed Hershey and Eugene Corapi (Corapi), the Quartermaster of Post 1599. The interview had been scheduled in advance for a mutually agreed-upon time, and occurred at the Club's premises.
Hershey provided Royer with pertinent information regarding the Club's purchase and sale of small games of chance. During the interview, Hershey made the following incriminating admissions:
1) That Hershey, Corapi, and some or all of the members of Club's Board of Directors decided to "run" certain unrecorded "pull-tab" games and deposit the proceeds of those games into the general account to cover Club's operating expenses.
2) That the Club had only kept and maintained records covering approximately 30% of the small games of chance purchased and sold between February and March of 2008 and that the sales of the other games were not documented.
3) That proceeds from the small games of chance were used by the Club to pay for utilities, insurance premiums, repairs, liabilities, and liquor and beer purchases.
Royer asked Hershey to provide a written statement, including the admissions, which Hershey did. After the interview, Royer reviewed the records provided by Hershey and determined that, between February 11, 2008 and March 16, 2008, the Club had recorded payouts as follows:
| • Week beginning February 11, 2008: | $15,610.00 |
| • Week beginning February 18, 2008: | $11,130.00 |
| • Week beginning February 25, 2008: | $16,210.00 |
| • Week beginning March 3, 2008: | $12,870.00 |
| • Week beginning March 10, 2008: | $ 5,040.00 |
|---|---|
| $60,860.00 |
| • Week beginning February 11, 2008: | $15,065.00 |
| • Week beginning February 18, 2008: | $26,915.00 |
| • Week beginning February 25, 2008: | $35,140.00 |
| • Week beginning March 3, 2008: | $36,230.00 |
| • Week beginning March 10, 2008: | $15,195.00 |
|---|---|
| $128,545.00 |
On October 2, 2008, the Club was issued an administrative citation alleging:
1) violation of Section 471 of the Liquor Code and Section 5(b) of the LOSGCA in that during the relevant periods, the Club awarded prizes of more than $5,000.00 in a seven-day period; and,
2) violation of Sections 471 and 493(12) of the Liquor Code, Section 1 of the LOSGCA, 10 P.S. §311, and Section 901 of Department of Revenue's Regulations in that the Club failed to keep truthful records.After a hearing, an administrative law judge (ALJ) fined the Club $2,000.00, and suspended the Club's liquor license for 181 days. On appeal, the Liquor Control Board affirmed the ALJ's order. The Club appealed to the trial court.
On December 22, 2008, the Pennsylvania State Police filed summary criminal charges against the Club for failing to use small games of chance proceeds for a public interest purpose, failing to maintain records of the sale of small games of chance, and exceeding the $5,000.00 weekly payout limit. Hershey was charged with failing to maintain books and records. Both were found guilty on all counts. Appellants appealed to the trial court, which consolidated the license suspension with the summary criminal citation.
At a scheduling conference before the trial court in February 2010, Appellants' counsel notified the trial court that they intended to assert constitutional challenges to relevant sections of the Liquor Code and the LOSGCA. Due to the complexity of the constitutional issues, the trial court ordered that the matters be briefed by May 10, 2010. On May 24, 2010, in order to accommodate Appellants' counsel, the trial court amended its scheduling order, requiring that Club's brief be filed by July 1, 2010 and reply briefs be filed by August 2, 2010. Oral argument was scheduled for September 3, 2010. Appellants failed to file their brief by July 1, 2010 or August 2, 2010. On August 4, 2010, the trial court cancelled oral argument, noting that "at no time have Appellants sought any adjustment to the briefing schedule or any extension or enlargement of time for briefing, the Court hereby finds that Appellants have waived all legal/statutory issues raised on appeal...." Trial Ct. Order, August 4, 2010. On August 12, 2010, in its standard Pre-Trial Conference Order, the trial court stated:
The issues waived did not include Appellants' suppression issues.
The Court clarified for counsel that the sanction imposed for Appellants' failure to comply with item 4 of this Court's Order of May 24, 2010 is the preclusion of any evidence related to or arguments on the so-called 'constitutional issues' raised by Appellants earlier in the proceedings. The Court finds that Appellants' failure to comply constitutes a waiver of those claims for purposes of this litigation.Pre-Trial Conf. Order, ¶ 4(c).
On August 20, 2010, more than 45 days past the court-ordered deadline, the Appellants filed their brief, together with a request for reconsideration of the trial court's sanction. The trial court denied the request. On June 6, 2011, the trial court found Appellants guilty of the summary criminal charges, sustained the Club's liquor license suspension, and suspended the Club's small games of chance permit. Appellants timely appealed to this Court.
The trial court's August 16, 2011 Opinion Sur Pa. R.A.P. 1925(a) in the criminal actions (1925(a) Op.) also notes that "to date, counsel has provided no explanation for their failure to timely file a brief." 1925(a) Op. at 4.
"The Court's review of a conviction for a summary offense is limited to determining whether constitutional rights were violated or whether the trial court abused its discretion or committed an error of law." Commonwealth v. Waltz, 749 A.2d 1059 n.1 (Pa. Cmwlth. 2000). "This Court's standard of review in a Liquor Code enforcement appeal is limited to determining whether the trial court committed an error of law or an abuse of discretion." Pa. State Police v. Harrisburg Knights of Columbus Home Ass'n, 989 A.2d 39, 43 n.5 (Pa. Cmwlth. 2009).
Appellants first argue that, although the trial court ordered the constitutional issues waived, in the interests of justice, this Court should still review the LOSGCA to determine whether it is unconstitutionally vague. We disagree.
"Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). By virtue of the trial court's order sanctioning Appellants and barring them from asserting constitutional issues, the issues were not raised below and therefore cannot be heard on appeal.
Appellants argue that Nolan v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 159 (Pa. Cmwlth. 2003) supports their position. However, the Court in Nolan specifically noted that: "In a petition for review . . . the validity of a statute need not be raised before the government agency in order to be challenged on appeal." Id., 819 A.2d at 161 n.6 (emphasis added). Similarly, in Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Beer & Pop Warehouse, Inc., 603 A.2d 284, 286 n.1 (Pa. Cmwlth. 1992) (emphasis added), this Court held "such issue need not be preserved before a governmental unit whose adjudication is reviewed by this Court on the basis of a petition for review (as opposed to the appeal from a trial court and the notice of appeal . . . )." Appellants point to no similar authority involving an appeal from a trial court and a notice of appeal, nor do they identify any appellate rule that would apply to the instant matter.
More importantly, Appellants did not merely fail to raise the constitutional issues before the trial court, they chose not to adhere to the trial court's order requiring the submission of briefs on the issue of the LOSGCA's constitutionality. Therefore, the trial court affirmatively ordered that the issues had been waived. Appellants have not challenged that exercise of the trial court's discretion. Accordingly, the constitutional issues are waived.
Appellants do not argue that the trial court abused its discretion when it ordered that Appellants had waived their constitutional arguments for failing to adhere to the scheduling order. In fact, Appellants recognize "that as a result of submitting an untimely brief concerning a vagueness challenge to the LOSGCA, the trial court, within its rightful discretion, ordered the issue as waived." Appellants' Br. at 17 (emphasis added). Thus, there has been no challenge raised as to whether the trial court properly exercised its discretion in ordering the constitutional issues waived, and that issue itself is deemed waived. See AFSCME, Dist. Council 47, Local 2187 v. Pa. Labor Relations Bd., 41 A.3d 213 (Pa. Cmwlth. 2012).
Even if this Court was to consider the Appellants' assertions that the "public interest purpose" requirement of the LOSGCA is unconstitutionally vague, that argument would fail. This Court has held that:
A statute is presumed to be constitutional, and a person challenging the constitutionality of a statute has a heavy burden of persuasion. A statute is only found to be unconstitutionally vague when 'persons of common intelligence must necessarily guess at its meaning and differ as to its application.' A statute is not unconstitutionally vague if, 'the terms, when read in context, are sufficiently specific that they are not subject to arbitrary and discriminatory application.'Burns v. Pub. Sch. Emps. Ret. Bd., 853 A.2d 1146, 1151 (Pa. Cmwlth. 2004) (citations omitted). The Superior Court has also noted:
[T]he void for vagueness doctrine does not mean that statutes must detail criminal conduct with utter precision. 'Condemned to the use of words, we can never expect mathematical certainty from our language.' Indeed, due process and the void for vagueness doctrine are not intended to elevate the 'practical difficulties' of drafting legislation into a 'constitutional dilemma.' Rather, these doctrines are rooted in a 'rough idea of fairness.' As such, statutes may be general enough to embrace a range of human conduct as long as they speak fair warning about what behavior is unlawful. Such statutes do not run afoul of due process of law.Commonwealth v. Thur, 906 A.2d 552, 560 (Pa. Super. 2006) (citations omitted). Further, the Pennsylvania Supreme Court has held:
A statute may be 'vague' in the sense that it contains no ascertainable standard of conduct, or it may be 'vague' in the sense that the ascertainable standard of conduct may or may not include certain types of conduct. If the statute contains no standard of conduct, or if the standard of conduct prohibits conduct which is protected by the first amendment, the statute will be declared unconstitutionally 'vague' without regard to the particular conduct of the
individual challenging the statute . . . . If, however, the statute contains an ascertainable standard which does not infringe upon protected first amendment rights, the 'vagueness' issue may be finally determined only with reference to the conduct of the person challenging the statute.Commonwealth v. Mack, 467 Pa. 613, 616-17, 359 A.2d 770, 772 (1976) (citations omitted).
Section 4 of the LOSGCA, 10 P.S. § 314, requires that "[a]ll proceeds of games of chance shall be used exclusively for public interest purposes or for the purchase of games of chance . . . ." "Public interest purposes" are defined in Section 3 of the LOSGCA. Although the LOSGCA may not define each possible public interest purpose with "mathematical certainty", it does "speak fair warning about what behavior is unlawful." Thur, 906 A.2d at 560. This warning is evidenced by the Appellants' own actions. Clearly, the relevant provisions put Appellants on notice enough that Appellants took intentional, affirmative steps to conceal the LOSGCA violations so that a large number of games could be played, and proceeds could be spent on the Club's operating expenses. Those steps included the decision by some or all of the Club's Board of Directors to run unrecorded small games of chance as well as "keeping a secret accounting book and a separate bank account to dispose of funds of its illicit gambling." 1925(a) Op. at 10. When a defendant's own conduct clearly demonstrates that the defendant knew the behavior to be proscribed, a statute will not be deemed vague as applied to that defendant. See Commonwealth v. Adamo, 637 A.2d 302 (Pa. Super. 1994). Accordingly, we conclude that even if Appellants had not waived their constitutional arguments, Appellants' vagueness argument would fail.
Section 3 of the LOSGCA defines "public interest purposes" as:
(1) Benefiting persons by enhancing their opportunity for religious or education advancement, by relieving or protecting them from disease, suffering or distress, by contributing to their physical, emotional or social well-being, by assisting them in establishing themselves in life as worthy and useful citizens or by increasing their comprehension of and devotion to the principles upon which this nation was founded.
(2) Initiating, performing or fostering worthy public works or enabling or furthering the erection or maintenance of public structures.
(3) Lessening the burdens borne by government or voluntarily supporting, augmenting or supplementing services which government would normally render to the people.
(4) Improving, expanding, maintaining or repairing real property owned or leased by an eligible organization and used for purposes specified in paragraphs (1), (2) and (3).
10 P.S. § 313.The term does not include the erection or acquisition of any real property, unless the property will be used exclusively for one or more of the purposes specified in this definition.
These expenses included utilities, insurance premiums, repairs, liabilities and state store and beer distributor purchases.
Appellants next argue that the LOSGCA is ambiguous and, pursuant to the "rule of lenity," Appellants should not be found to have violated the statute. When a statute is ambiguous, "courts must interpret the statute in the light most favorable to the accused." Sawink, Inc. v. Phila. Parking Auth., 34 A.3d 926, 932 (Pa. Cmwlth. 2012). However, because the "public interest purpose" provision of the LOSGCA is not ambiguous, as is demonstrated by Appellants' attempts to hide their unlawful conduct, this argument must likewise fail.
Finally, Appellants argue that all evidence arising from the BLCE's interview with Hershey should be suppressed because Hershey was not provided with Miranda warnings. We disagree.
The Pennsylvania Supreme Court has held:
Miranda warnings are only required when a defendant is subject to a custodial interrogation. A person is in custody for purposes of Miranda only when the objective circumstances suggest that [he] was physically deprived of [his] freedom or was in a situation where [he] reasonably could have believed that [his] freedom of movement was being restricted. The fact that the officer questioning a person has 'focused' on that individual does not in itself prove custody for Miranda purposes. Similarly, the fact that the officer subjectively believes that the individual being interviewed is a suspect is irrelevant to the question of custody, if the officer has not communicated the fact to the individual.Commonwealth v. Smith, 575 Pa. 203, 224, 836 A.2d 5, 18 (2003) (citations omitted). Thus, the inquiry in the instant matter is not whether Hershey considered himself in custody, but rather, whether "objective circumstances" suggest that he was in custody. Id.
The trial court, based upon the evidence presented, found the following facts in concluding that Miranda warnings were not necessary. The interview was scheduled in advance at a mutually agreed-upon time. On that date, Royer came to the Club alone, was not in uniform and did not have a weapon. Further, the scheduled interview took place in Hershey's office where the records were located, and the door was kept open. Both Hershey and Corapi were free to move around and, in fact, did leave the room at times during the interview. At one point, Hershey even offered Royer a drink. Both Hershey and Corapi were also free to leave the interview, if they chose, as Corapi did. When it became noisy, Hershey closed the door to the office. When it became even noisier, Hershey suggested that they move to the downstairs bar. Royer did not arrest Hershey. Given these facts, there was sufficient evidence to conclude that a reasonable person would not have believed that he was in custody. Thus, Miranda warnings were not required.
Trial Court Decision and Verdict at 3, 7.
Because we have concluded that Hershey was not entitled to Miranda warnings, we need not address Appellants' "fruit of the poisonous tree" argument. --------
For the reasons set forth above, the trial court's order and verdict are affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 20th day of June, 2012, the Court of Common Pleas of the 39th Judicial District, Franklin County Branch's June 6, 2011 order and verdict are affirmed.
/s/_________
ANNE E. COVEY, Judge