J-A16007-14 2014 PA Super 181

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JOAN ORIE MELVIN, : : Appellant : No. 844 WDA 2013

Appeal from the Judgment of Sentence May 7, 2013, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0009885-2012

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JOAN ORIE MELVIN, : : Appellant : No. 1974 WDA 2013

Appeal from the Order November 15, 2013, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0009885-2012 BEFORE: DONOHUE, OTT and MUSMANNO, JJ. OPINION BY DONOHUE, J.: FILED AUGUST 21, 2014 Here we decide two appeals by Appellant, Joan Orie Me lvin (“Orie Melvin”), a former Justice of the Supreme Court of Pe nnsylvania. First, at docket number 844 WDA 2013, Orie Melvin appeals from the judgment of sentence following her convictions of three counts of the ft of services, 18 Pa.C.S.A. § 3926(b), and one count each for conspiracy t o commit theft ofJ-A16007-14

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services, 18 Pa.C.S.A. § 903(a), misapplication of entru sted property, 18 Pa.C.S.A. § 4113(a), and conspiracy to tamper with or fabricate evidence, 18 Pa.C.S.A. § 903(a). For the reasons that follow, we affirm the judgment of sentence except that we eliminate the condition that the letters of apology to the members of the Pennsylvania judiciary be written on a photograph of Orie Melvin in handcuffs. Second, at docket number 1974 WDA 2013, Orie Melvin a ppeals the

trial court’s sua sponte order dated November 15, 2013 staying her criminal sentence in its entirety. On this second appeal, we reve rse the trial court’s order staying Orie Melvin’s criminal sentence and reinst ate the sentence set forth in the written sentencing order dated May 7, 20 13, as modified by the written order of the trial court on May 14, 2013 wit h the exception that the condition that the letters of apology to the members o f the Pennsylvania Judiciary be written on a photograph of Orie Melvin in handcuffs is

eliminated. In 1990, Orie Melvin was appointed to fill a vacancy o n the Court of Common Pleas of Allegheny County, and in 1991 she was elected to serve a full term on that court. In 1997, she was elected as a judge on the Superior Court of Pennsylvania, and she won a retent ion election for her seat on this Court in 2007. In 2003, Orie Melvin ran , unsuccessfully, for a seat as a Justice of the Supreme Court of Pennsylvania. In 2009, she ran for this position again and won a 10-year term.J-A16007-14

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On May 18, 2012, the Commonwealth filed a nine-count criminal complaint against Orie Melvin, alleging, inter alia , that she illegally used her judicial staff as well as the legislative staff of her sis ter, former State Senator Jane Clare Orie (“Jane Orie”), in connection with her 2003 and 2009 campaigns for the Supreme Court of Pennsylvania. At a preliminary hearing on July 30-31, 2012, the magisterial district judge dismissed two counts (official oppression and solicitation to tamper wi th evidence). 1 On August 14, 2012, the Commonwealth filed a seven-coun t information charging Orie Melvin with three counts of theft of ser vices (Counts 1-3), conspiracy to commit theft of services (Count 4), misapplic ation of entrusted property (Count 5), official oppression (Coun t 6), and conspiracy to tamper with or fabricate evidence (Count 7). Info rmation, 8/14/2012, at

1-3. A jury trial began on January 24, 2013, and on Febr uary 21, 2013, the jury returned guilty verdicts on all counts except f or Count 6, on which

it advised the trial court that it could not reach a un animous verdict. On May 7, 2013, the trial court sentenced Orie Melvin on Count 1 to county intermediate punishment (house arrest) for a maximum period of three

1 The magisterial district judge dismissed the count for official oppression relating to Jamie Pavlot (“Pavlot”), Jane Orie’s for mer Chief of Staff, but held over for trial the count (Count 6) for official oppression relating to Lisa Sasinoski (“Sasinoski”), Orie Melvin’s former Chief Law Clerk. In addition, the magisterial district judge dismissed the count for sol iciting Pavlot to tamper with evidence, but held over for trial the cou nt (Count 7) for conspiracy with Pavlot and Jane Orie to tamper with ev idence.J-A16007-14

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years, with the following conditions: that she be app roved for release to attend church services, that she volunteer in a soup kitche n three times per week, pay a $15,000 fine, and comply with DNA registr ation. The trial court imposed identical sentences with respect to Counts 3 a nd 4, and while not expressly stating that the sentences for Counts 1, 3, and 4 were to run concurrently, so indicated by ruling that all three wou ld commence at the same time (the date of sentencing, May 7, 2013). With respect to Counts 5 and 7, the trial court imposed terms of two years of pr obation and $5,000 fines. The trial court imposed no penalty on the convi ction under Count 2. The trial court incorporated all of these terms in a wr itten sentencing order dated May 7, 2013. Order of Sentence, 5/7/201 3, at 1-3. Not set forth in this written sentencing order, but as described in the transcript of the May 7, 2013 sentencing hearing, the trial court p urported to impose additional conditions on Orie Melvin, including that sh e was removed from the Supreme Court of Pennsylvania and could not use th e term “Justice” while on house arrest and probation. N.T., 5/7/2013, at 63-64. The trial court also instructed Orie Melvin that she would be req uired to write letters of apology to everyone on her judicial staff that did illegal work for her

benefit at her behest. Id. at 63. Finally, the trial court directed Orie Melvi n to pose in handcuffs for a photograph taken by the cour t photographer, on the front of which she would be compelled to write an apology, to be sent to every common pleas court and intermediate appellate cou rt judge inJ-A16007-14

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Pennsylvania as well as the Justices of the Supreme Court of Pennsylvania.

Id. at 64-65. At a subsequent sentencing hearing on May 14, 2013, th e trial court modified certain terms of Orie Melvin’s sentence. Specif ically, the trial court modified the sentences for Counts 1, 3, and 4 to provid e that each count would carry a one-year term of county intermediate pu nishment plus a $15,000 fine, and that these three sentences would run consecutively to each other. N.T., 5/14/2013, at 3. With respect to t he sentences on Counts 5 and 7, the trial court clarified that the two -year terms of probation for these counts would run concurrently with each other, and consecutively to the sentences on Counts 1, 3, and 4. Id. These modifications to Orie Melvin’s sentence, along with other terms of the sentence announced by the trial court on May 7, 2013 (including the writing of both types of apology letters), were subsequently set forth first in a writte n Amended Order of

Sentence and later in a written Corrected Amended Ord er of Sentence. 2

2 Inexplicably, all three sentencing orders are dated M ay 7, 2013, even though the Amended Order of Sentence and the Correct ed Amended Order of Sentence both contain terms that were not announced by the trial court until May 14, 2013. A notation at the bottom right -hand corner of these two orders reflects that they were printed on May 15, 2013 and May 17, 2013, respectively. In addition, all three sentencing orders were filed at the same docket entry (“#85 05/07/2013 Order – Sentence/ Penalty Imposed”). Orie Melvin’s Reproduced Record contains only the original Order of Sentence (R. 7714a-15a), but does not contain either Amended Order of Sentence or the Corrected Amended Order of S entence. The Commonwealth did not attempt to supplement the repro duced record to add these two sentencing orders.J-A16007-14

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On May 20, 2013, Orie Melvin filed a notice of appea l from the judgment of sentence at docket number 844 WDA 2013. Orie Melvin did not write or send letters of apology as demanded by the trial court at the sentencing hearing on May 7, 20 13, and in response, the trial court scheduled a violation of probation hea ring for October 15, 2013. On September 27, 2013, Orie Melvin applied t o this Court for a stay of the requirement that she write apology letters beca use to do so would violate her constitutional rights against self-incrimina tion. By Opinion dated November 6, 2013, this Court granted the requested sta y, indicating that it

would remain in effect “until such time as her direct a ppeal in this Court has

been decided.” Commonwealth v. Melvin , 79 A.3d 1195, 1202 (Pa. Super. 2013). In its Opinion granting the stay, this Court further indicated that it took no position regarding the merits of any of the issues raised by Orie Melvin on appeal. Id. Finally, this Court rejected the Commonwealth’s request to remand the case to the trial court immediate ly for resentencing because a stay would disrupt the trial court’s sentencing sch eme. Id. at

1204-05. Despite this Court’s express finding that “the grant of the Application for Stay does not disrupt the trial court’s sentencing sch eme,” on November 14, 2013 the trial court, on its own initiative, conve ned a “hearing on adjustments” to Orie Melvin’s sentence, at which it concl uded that this Court’s stay of the apology letters did disrupt its sente ncing scheme:J-A16007-14

- 7 - Now, my problem now is there seems to be, and I may well be overly sensitive about this, but the opinion I have here from the Superior Court, there seems to be little question as to whether or not this is a sentencing scheme. This is a sentencing scheme. There were several parts to the sentence. Your client, [Orie Melvin], was placed on house arrest for a certain period of time. She was ordered to pay certain fines. And she was ordered to do certain things while she was part of house arrest. Apparently, she likes all of that except one of the things I asked her to do. This is Column A, this isn’t Column B, Mr. Casey. This is one sentence. It’s all the same. And because of that, and because, to be honest with you – I read the opinion by the Superior Court and it was thought provoking. I would hate to think that the Superior Court – well, not hate to think. Well, yeah. If the Superior Court tells me that it’s a violation of her Fifth Amendment, it ma y well be. That would ruin the sentencing scheme. And the thought of your client serving house arrest and going to the soup kitchen and doing everything I told her to do, on a sentence which just was invalid, is not just. So what I’m going to do today is I’m going to grant the supersedeas of the whole sentence, tell the Probation Department to cut off the bracelet and take the equipment out of the house. So that everybody understands this is one sentence. N.T., 11/14/2013, at 4-5. On November 15, 2013, ov er Orie Melvin’s objection that the trial court lacked jurisdiction to d o so, the trial court issued an order staying her sentence in its entirety. On December 13, 2013, Orie Melvin filed a notice of a ppeal from the trial court’s November 15, 2013 order at docket number 1974 WDA 2013.J-A16007-14

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In the appeal at docket number 844 WDA 2013, Orie Me lvin raises

fifteen issues for our consideration and determination: I. Whether the criminal charges against Orie Melvin are unconstitutional because they infringe upon the Judiciary’s exclusive power to supervise the courts under Article 5, Section 10 of the Pennsylvania Constitution? II. Whether it violated due process to base criminal charges on alleged violations of an internal court rule governing conduct by court employees? III. Whether the warrant authorizing the seizure of Orie Melvin’s entire private email account was unconstitutionally overbroad in violation of the Fourth Amendment and Article 1, Section 8 of the Pennsylvania Constitution? IV. Whether it was error to decline to appoint an out -ofcounty judge to preside over this matter involving Orie Melvin who is a former member of the Allegheny County bench and where a key prosecution witness is the wife of a sitting Allegheny County judge? V. Whether the extension of the statue [ sic ] of limitations for ‘public officers or employees’ in 42 Pa.C.S.A. § 5552(c) applies to ‘Judicial officers’ lik e Orie Melvin? VI. Whether the criminal charges against Orie Melvin should have been dismissed with prejudice as a sanction for the prosecutor’s knowing introduction of false evidence and subornation of perjury? VII. Whether the case against Orie Melvin was properly joined with the cases against her sister, Janine Orie, where the charges are factually inconsistent and each faces charges not filed against the other?J-A16007-14

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VIII. Whether Orie Melvin had the right to have her expert examine original electronic evidence seized by the District Attorney from the office of former State Senator Jane Orie? IX. Whether Orie Melvin had the right to have her expert examine original electronic evidence in the possession of the Superior Court which was searched at the request of the District Attorney? X. Whether Orie Melvin’s request for habeas corpus relief should have been granted as a result of the Commonwealth’s failure to make out a prima facie case on the theft of services, misapplication of government property and conspiracy charges at the preliminary hearing? XI. Whether the trial court erred in excluding relev ant evidence relating to the productivity of Orie Melvin ’s judicial chambers as a means of negating the theft or diversion element of the theft of services charges? XII. Whether the trial court deprived Orie Melvin of a fair trial by offering personal opinions and improperly commenting on the evidence in front of the jury? XIII. Whether the trial court erred in concluding tha t the evidence at trial was sufficient to support a conviction for theft of services, misapplication of government property and conspiracy?

XIV. Whether it was error for the trial court to instr uct the jury on the issue of accomplice liability after the jury started deliberations? XV. Whether the trial court erred constitutionally, le gally and procedurally in attempting to require Orie Melvin to write letters of apology as part of her criminal sentence while she continues to maintain her innocence?

Orie Melvin’s Brief at 5-8.J-A16007-14

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In the appeal at docket number 1974 WDA 2013, Orie M elvin raises the following two issues for our review: I. Whether the trial court lacked jurisdiction and authority to sua sponte suspend Orie Melvin’s entire sentence while all conditions of county intermediate punishment were satisfied and while Orie Melvin’s direct appeal was pending in this Court?

II. Whether the trial court violated Orie Melvin’s ri ghts under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Pennsylvania Constitution by sua sponte staying her criminal sentence after jeopardy attached?

Orie Melvin’s Brief at 2-3.

I. TRIAL AND SENTENCING CLAIMS A. The Charges and Separation of Powers Doctrine For her first two issues on appeal at docket number 844 WDA 2013,

Orie Melvin contends that the trial court erred in not dismissing the charges against her because they amounted to nothing more tha n an unconstitutional attempt to criminalize non-criminal, co urt-imposed restrictions on the political activity of judicial emplo yees. According to Orie Melvin, the power to discipline members of the judiciar y is the exclusive province of the Supreme Court of Pennsylvania, and th at as a result, her convictions for theft of services, conspiracy to commit theft of services, andJ-A16007-14

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misapplication of entrusted property must be dismissed. 3 Orie Melvin further argues that because the Supreme Court’s rule ag ainst political activity by court employees does not specify any criminal sanctions for its violation, and because no criminal statute prohibits po litical conduct by court employees, she had no notice that political activit y by members of her staff could result in criminal prosecution. The notion of the inherent power of the judiciary is implicit in the doctrine of separation of powers. The separation of po wers doctrine provides that “the executive, the legislature and the judiciary are independent, co-equal branches of government.” Beckert v. Warren , 439 A.2d 638, 642 (Pa. 1981). The dividing lines among the three branches “are sometimes indistinct and are probably incapable of any precise

definition.” Stander v. Kelly , 250 A.2d 474, 482 (Pa. 1969) (plurality). “Under the principle of separation of the powers of g overnment, ... no branch should exercise the functions exclusively committe d to another

branch.” Sweeney v. Tucker , 375 A.2d 698, 706 (Pa. 1977). The Supreme Court’s authority to regulate the courts and the members of the judiciary is set forth in Article V, Sect ion 10 of the Pennsylvania Constitution:

3 In this regard, Orie Melvin makes no mention of he r conviction of conspiracy to tamper with or fabricate evidence (Count 7), and thus presumably does not contend that this conviction should be dismissed on this basis.J-A16007-14

- 12 - (a) The Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace, including authority to temporarily assign judges and justices of the peace from one court or district to another as it deems appropriate.

* * * (c) The 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, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.

P A . C ONST . art. V, § 10. Pursuant to the authority conferred by these constitutio nal provisions, the Supreme Court established the Code of Judicial C onduct to regulate the activity of judges, and also issued an order dated Nove mber 24, 1998 prohibiting political activity by court employees (here inafter, the “1998 Supreme Court Order”). Based upon these enactments, Or ie Melvin contends that the criminal charges against her infringed upon the Supreme Court’s exclusive power to regulate the courts of this Co mmonwealth. OrieJ-A16007-14

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Melvin’s Brief at 17-18. In support of this argument, Orie Melvin directs our attention to three Supreme Court decisions.

In Commonwealth v. Stern , 701 A.2d 568 (Pa. 1997), the Supreme Court affirmed a trial court’s order declaring unconsti tutional a statute prohibiting the payment by lawyers of referral fees t o non-lawyers. Id. at 569. The Supreme Court had already adopted a provi sion in the Rules of Professional Conduct and the Rules of Disciplinary Enfor cement prohibiting lawyers from paying referral fees to non-lawyers, and thus the Supreme Court ruled that the statute passed by the Pennsylvania Legislature infringed upon its exclusive authority to regulate th e conduct of attorneys practicing in the Commonwealth. Id. at 573. Similarly, in In re Dobson , 534 A.2d 460 (Pa. 1987), the Supreme Court rejected petitions for relief by court-appointed employees from a Supreme Court rule prohibiting said employees from en gaging in partisan political activities. Id. at 461. Although the Supreme Court had ruled that the election of the two petitioners to positions as schoo l board directors constituted partisan political activity in violation of its rule, the petitioners contended that they were entitled to relief because am endments to the Pennsylvania Election Code permitted candidates for schoo l board directorships to run on multiple political tickets (essen tially designating school board directorships to be nonpartisan positions). Based upon its exclusive constitutional supervisory power over the judici ary, including itsJ-A16007-14

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employees, the Supreme Court refused to grant the req uested relief, stating that “it is for this Court, not the legislature, to d etermine what amounts to prohibited political activity by judicial employees.” Id. at 464. Finally, in Kremer v. State Ethics Commission , 469 A.2d 593 (Pa. 1983), the Supreme Court found unconstitutional as app lied to judges the financial disclosure requirements in the state’s Ethics Act applicable to candidates running for office. Id. at 594. The Supreme Court ruled that the Code of Judicial Conduct applicable to judges set forth detailed provisions specifically designed to prevent conflicts of in terest (financial and otherwise), and that these provisions advanced the same i nterests sought to be preserved through enforcement of the Ethics Act. Id. at 595-96. The Supreme Court thus determined that application of the provisions of the Ethics Act was unconstitutional as applied to judges, as the conduct of judges running for office “must be accomplished through rules promulgated by this Court and not by legislative enactment.” Id. at 596. Orie Melvin argues that Stern , Dobson , and Kremer compel the conclusion that in her case “the District Attorney is seekin g to criminalize conduct that is already the subject of regulation by the Supreme Court.” Orie Melvin’s Brief at 22. We disagree. In those th ree cases, the Supreme Court had adopted rules regulating the specific conduct o f attorneys and judges, thus establishing in each instance the Supreme Co urt’s intention to exercise its authority to regulate the conduct at issue. More importantly, inJ-A16007-14

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each of those cases, the Legislature attempted to regulat e precisely the same conduct covered by the Supreme Court rules. That sy mmetry does not exist in this case. While the Supreme Court has ad opted a rule prohibiting political activity by court employees, Orie Melvin was not criminally prosecuted for using her judicial staff to ad vance her political aspirations. 4 None of the crimes for which she was prosecuted or convic ted specifically proscribes political activity. 5 Instead she was prosecuted for the

4 We note that in its charge to the jury, the trial co urt instructed the jury that Orie Melvin was not being prosecuted for violatio n of the court rule against political activity:

You have heard testimony about the Supreme Court Order dated November 24, 1998, prohibiting certain criminal activity by court employees. It is in evidence as [Orie Melvin’s] Exhibit Q. This Order is a work rule that applies to court employees. It is not a criminal law. A violation of a work rule is no t a crime. You are instructed you may not base your verdict of guilt or innocence in any way on any alleged violation of a court rule. N.T., 2/15/2013, at 2805-06. The 1998 Supreme Court Order was irrelevant to the ch arges against Orie Melvin. In the absence of any such order, it remaine d a violation of the theft of services statute, 18 Pa.C.S.A. § 3926(b), to use Commonwealth paid employees for activities inuring to her personal b enefit. Because we agree that Orie Melvin was not convicted for violating the Supreme Court’s rule against political activity, we lik ewise conclude that her convictions are not unconstitutional for lack of notice of potential criminal sanctions.

5 Section (b) of 18 Pa.C.S.A. § 3926, entitled “Thef t of services,” provides as follows: “Diversion of services -- A person is guilty of theft if, havingJ-A16007-14

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use, or rather the misuse, of her judicial staff in vi olation of criminal statutes prohibiting the diversion of services belonging to the Commonwealth to her own personal benefit. The polit ical nature of the

conduct did not serve as the basis of the criminal convicti on. Any conduct by her judicial staff that inured to Orie Melvin’s per sonal benefit constituted a diversion of services from the Commonwealth, whether or not said conduct violated the 1998 Supreme Court Order against political activity. In sum, Orie Melvin’s convictions were based on her theft of services by using her judicial staff and her sister’s senatorial staff, all of whom were paid with

control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or t o the benefit of another not entitled thereto.” 18 Pa.C.S.A. § 3926 (b). Section (a) of 18 Pa.C.S.A. § 903, entitled “Crimina l conspiracy,” provides that a person “is guilty of conspiracy with another perso n or persons to commit a crime if with the intent of promoting or fac ilitating its commission he: (1) agrees with such other person or persons that th ey or one or more of them will engage in conduct which constitutes such cri me or an attempt or solicitation to commit such crime; or (2) agrees to ai d such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.” 18 Pa.C.S.A. § 903(a ). Section (a) of 18 Pa.C.S.A. § 4113, entitled “Misapp lication of entrusted property of government or financial institutions,” st ates that “[a] person commits an offense if he applies or disposes of property that has been entrusted to him as a fiduciary, or property of the g overnment or of a financial institution, in a manner which he knows is un lawful and involves substantial risk of loss or detriment to the owner of t he property or to a person for whose benefit the property was entrusted.” 18 Pa.C.S.A. § 4113(a).J-A16007-14

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taxpayer dollars to advance her campaign for a seat on the Pennsylvania Supreme Court. 6

B. The Search Warrant For Personal Emails For her third issue on appeal, Orie Melvin argues that a warrant authorizing the seizure of her personal emails at oriemelvin@yahoo.com

and judgeoriemelvin4supreme@yahoo.com was overbroad. 7 For the

6 In addition to the 1998 Supreme Court Order, Orie Melvin likewise argues that the adoption of the Code of Judicial Conduct ev idences the Supreme Court’s exclusive power to regulate judges. Appellant’ s Brief at 17. Since Orie Melvin makes only an amorphous, non-particulariz ed reference to the Code of Judicial Conduct, we note generally the follo wing to highlight the faulty predicate for her analysis. Orie Melvin was char ged with crimes that took place during her 2003 and 2009 campaigns for the seat of a justice of the Pennsylvania Supreme Court. During these respectiv e campaigns, Orie Melvin was a judge of the Superior Court of Pennsylva nia. In 2003 and 2009, Orie Melvin (and all judges and justices in this Commonwealth) were bound by the Code of Judicial Conduct. Matter of Chiovero , 570 A.2d 57, 60 (Pa. 1990) (the Code of Judicial Conduct imposes stan dards of conduct upon the judiciary). The Code of Judicial Conduct dur ing both of these time periods was essentially unchanged since, although it was amended in 2005, this amendment only modified various references to ensur e that they were gender neutral. 35 Pa. Bull. 6647 (Dec. 10, 2005). Both the pre-2005 and post-2005 versions of the Code co ntain seven “canons.” Canon 2A sets forth the directive from the Pe nnsylvania Supreme Court that “judges should respect and comply with the l aw... .” Thus, under Orie Melvin’s theory, no judge could be prosecuted for the violation of any criminal statute. The absurdity of this hypothesis is self -evident. Moreover, Orie Melvin was not prosecuted for theft of services or a ny other crime arising from her direct campaign activities. Canon 7 articulates the standards applicable to jurist candidates. Given the crim es charged, Canon 7 has no relevance to Orie Melvin’s argument.

7 The January 5, 2010 warrant sought “[a]ll stored com munications and other files reflecting communications to or from user a ccount/user names oriemelvin@yahoo.com , judgeoriemelvin4supreme@yahoo.com ANDJ-A16007-14

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reasons set forth herein, we conclude that the warrant i n question was overbroad, but that the failure to suppress the content s of the email

account at trial was harmless error. In its Rule 1925(a) opinion, the trial court addressed this issue as

follows: This issue was not presented to this Court.

Furthermore, this issue was addressed by the Honorable Jeffrey A. Manning in his Memorandum Opinion Re: Suppression in Commonwealth v. Jane C. Orie and Janine Orie at CC201010285, CC2010010286. This Court adopts that analysis. Trial Court Opinion, 9/12/2013, at 8. We conclude that the issue was in fact presented to the t rial court and the trial court’s adoption of Judge Manning’s analysis was error because Judge Manning’s analysis and ruling were erroneous. I n the prior case involving Jane Orie and Janine Orie, Jane Orie chall enged as overbroad a warrant seeking, inter alia , “all stored communications and other files ... between August 1, 2009 and the present, including all documents, images, recordings, spreadsheets or any other data stored in digi tal format.”

Commonwealth v. Orie , 88 A.3d 983, 1008 (Pa. Super. 2014). Judge Manning ruled that “the search of the AOL account JaneOrie@aol.com (Com Ex. 10) was supported by sufficient probable cause and wa s not overbroad

orieonthemove@yahoo.com between August 1, 2009 and the present.” Search Warrant Continuation Pages, 1/5/2010, at 1. O n appeal, Orie Melvin does not contest the search or seizure of emails from the judgeoriemelvin4supreme@yahoo.com account.J-A16007-14

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or general.” Commonwealth v. Jane C. Orie and Janine Orie , CP-02- CR-0010285-86, at 26 (Court of Common Pleas of Alleg heny County, February 4, 2011) (unpublished memorandum). Judge Manning further

ruled that the warrant “authorized that the content of the e-mails be searched for anything that contained information relev ant to the crimes being investigated,” and thus “cannot be considered to b e overly broad.”

Id. at 26-27. On appeal, however, this Court concluded that the warr ant was overbroad. In so doing, we first set forth the appli cable law in this area:

Article I, Section 8 of the Pennsylvania Constitution provides, in pertinent part: ‘[N]o warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause....’ 21 P A . C ONST . Art. I § 8. This Court has explained:

It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched.... The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual's possessions to find which items to seize. This will result in the general ‘rummaging’ banned by the [F]ourth [A]mendment. A warrant unconstitutional for itsJ-A16007-14

- 20 - overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation. ... An overbroad warrant is unconstitutional because it authorizes a general search and seizure.

* * * The language of the Pennsylvania Constitution requires that a warrant describe the items to be seized ‘as nearly as may be....’ The clear meaning of the language is that a warrant must describe the items as specifically as is reasonably possible. This requirement is more stringent than that of the Fourth Amendment, which merely requires particularity in the description. The Pennsylvania Constitution further requires the description to be as particular as is reasonably possible.... Consequently, in any assessment of the validity of the description contained in a warrant, a court must initially determine for what items probable cause existed. The sufficiency of the description must then be measured against those items for which there was probable cause. Any unreasonable discrepancy between the items for which there was probable cause and the description in the warrant requires suppression. An unreasonable discrepancy reveals that the description was not as specific as was reasonably possible.

Commonwealth v. Rivera , 816 A.2d 282, 290–91 (Pa. Super. 2003) (citations omitted), appeal denied , 828 A.2d 350 (Pa. 2003). Because the particularity requirement in Article I, Section 8 is more stringent than in the Fourth Amendment, ifJ-A16007-14

- 21 - the warrant is satisfactory under the Pennsylvania Constitution it will also be satisfactory under the federal Constitution. Furthermore, the Pennsylvania Supreme Court has instructed that search warrants should ‘be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description will suffice.’ Commonwealth v. Rega , 593 Pa. 659, 933 A.2d 997, 1012 (2007) (citation omitted), cert. denied , 552 U.S. 1316 (2008).

Orie , 88 A.3d at 1002-03.

We then concluded that the warrant for Jane Orie’s ema il account was overbroad because while the supporting affidavit provi ded probable cause that evidence of criminal activity could be found in e mails in the account, it did not justify a search of every email therein, inclu ding those with no relation to criminal activity. Id. at 1008-09. Because the warrant permitted the seizure of every email in the account wi thout any attempt to distinguish the potentially relevant emails from those unrelated to the investigation, it permitted a general search and seizur e that was unconstitutionally overbroad. Id. The analysis in the Orie case did not, however, end there. In Orie , we declined to reverse Judge Manning’s denial of the s uppression motion based upon the “unique facts” presented. Id. at 1008. In particular, the

evidence there showed that while law enforcement had s eized Jane Orie’sJ-A16007-14

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entire email account, it did not conduct a search of its contents until after obtaining a second warrant that provided the particula rity that the first

warrant had lacked. Id. at 1009. The evidence further showed that law

enforcement had conducted this search in accordance with the specific parameters in the second warrant. Id. at 1007. While noting that two warrants are neither required nor preferred with resp ect to such searches and seizures, we concluded that under the “unique facts” presented, the search of Jane Orie’s email account passed constitutional mu ster. Id. at

1008 n.42. No such “unique facts” exist with respect to the warrant f or Orie Melvin’s email accounts. To the contrary, although the Commonwealth did subsequently obtain a second warrant that provided the specificity lacking in the first warrant, the certified record reflects that the Commonwealth began its review of Orie Melvin’s emails obtained pursu ant to the first

warrant before it obtained the second warrant. In the affidavit of probable cause in support of the second warrant, the affiant (Det ective Lyle M. Graber of the Allegheny County Office of the District Attorney) explained that when he was reviewing the documents received from Yahoo in response to the first warrant, he noticed a number of emails with subject lines relating to Orie Melvin’s campaign, and that up on further inspection of these emails he came across the name of Matthew Haverstick, a lawyer for the Senate Republican Caucus. Affidavit of Probable C ause, 1/27/2010, atJ-A16007-14

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12. As a result, he stopped further review of the ema ils and sought the second warrant, so that the documents could be reviewed b y the Special Master for privilege issues before distribution to the p arties. 8 Pursuant to our analysis in Orie , therefore, we must conclude that the warrant authorizing the seizure of Orie Melvin’s perso nal emails at oriemelvin@yahoo.com and judgeoriemelvin4supreme@yahoo.com was overbroad. Unfortunately, however, while Orie Melv in contends that her convictions should be reversed and she should be granted a new trial, Orie Melvin’s Brief at 35, she has not offered this Court an y legal basis for granting such relief. Similarly, the Commonwealth d oes not attempt to address the proper remedy in this case for the trial cour t’s failure to suppress the emails obtained pursuant to the warrant in question. “An appellate court may affirm a judgment or verdict for any reason appearing of record.” Commonwealth v. Parker , 919 A.2d 943, 948 (Pa. 2007). In Commonwealth v. Thornton , 431 A.2d 248 (Pa. 1981), our Supreme Court explained as follows:

The doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-settled proposition that ‘[a] defendant is entitled to a fair trial but not a perfect one.’

8 See infra at page 49 for a more detailed discussion of the appo intment of the Special Master.J-A16007-14

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Id. at 251 (1981). We may affirm a judgment based on h armless error sua sponte , even if the parties did not raise the argument. Commonwealth v.

Allshouse , 36 A.3d 163, 182, 182 n.21 (Pa. 2012), cert. denied , 133 S. Ct. 2336 (U.S. 2013). An error involving state or federal constitutional l aw “can be harmless only if the appellate court is convinced beyond a reason able doubt that the

error is harmless.” Commonwealth v. Story , 383 A.2d 155, 162 (Pa. 1978). The analysis is closely tied to the facts of the case and requires an

examination of the entire record. Id. at 166 n.24; Commonwealth v. Whiting , 517 A.2d 1327, 1333 (Pa. Super. 1986), appeal denied , 529 A.2d 1080 (Pa. 1987).

Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis ; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Hutchinson , 811 A.2d 556, 561 (Pa. 2002) (quoting

Commonwealth v. Robinson , 721 A.2d 344, 350 (Pa. 1999)), cert.

denied , 540 U.S. 858 (2003). Based upon our review of the entire certified record on appeal, the trial court’s failure to suppress t he contents of Orie

Melvin’s email account was harmless error.J-A16007-14

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At trial, the Commonwealth introduced 10 emails into evidence from Orie Melvin’s email account obtained pursuant to the ov erbroad warrant. 9

Six of these emails 10 were to or from Molly Creenan (“Creenan”), a membe r of Orie Melvin’s judicial staff from January 1998 thro ugh December 2009. N.T., 2/4/2013, at 1367. While Creenan’s tenure on Orie Melvin’s judicial staff spanned both the 2003 and 2009 political campaign s, given the scope of the warrant, the emails at issue here relate only to the 2009 campaign. 11 As a result, these six emails did not prejudice Orie Mel vin, or the prejudice

was de minimis, in large part because Creenan testified that she refuse d to perform any political activities during the 2009 campa ign. In particular, Creenan testified that she reluctantly performed vario us political activities during Orie Melvin’s 2003 campaign, but this changed o n Election Day in November 2003 when she refused to go to a poll site as directed by Janine

9 In her Reply Brief, Orie Melvin initially identif ied 21 such emails. Orie Melvin’s Reply Brief at 12. A review of the certifie d record, however, demonstrates that while the Commonwealth marked 21 em ails for identification, it only introduced 10 of them into ev idence. At oral argument on May 20, 2014, this Court asked counsel for Orie Melv in to provide a supplemental submission identifying all emails obtained pursuant to the warrant at issue that were introduced into evidence at trial, at which time counsel for Orie Melvin identified the 10 emails we di scuss herein.

10 Exhibit 34, Tabs 9, 11, 13, 14, 25, and 26.

11 As noted hereinabove, see supra footnote 7, the warrant sought only emails for the time period from August 1, 2009 to Ja nuary 5, 2010, and thus the documents produced in response related only to the 2009 political campaign.J-A16007-14

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Orie. 12 Id. at 1374. When Creenan learned in December 2008 tha t Orie Melvin intended to run again in the 2009 election, sh e testified that she

went to Orie Melvin and informed her that what she h ad done in 2003 “can’t happen in 2009” and made clear to Orie Melvin that she would no longer violate the 1998 Supreme Court Order prohibiting ju dicial employees from participating in political activity. Id. at 1384-86. As a result, when asked at trial about the six emails in question, Creenan test ified that she had no specific information about the events at issue or had not performed the political tasks requested of her. Id. at 1414-30.

We likewise conclude that another email 13 was not prejudicial or the prejudice was de minimis . In this email, Audrey Denise Mackie (then using her maiden name Rasmussen), a member of Jane Orie’s leg islative staff, merely provided Janine Orie (at Orie Melvin’s request ) with the telephone number of someone who had expressed an interest in hold ing a fundraiser for Orie Melvin. N.T., 1/31/2013, at 824. The three remaining emails introduced into evidence we re cumulative of other evidence already introduced at trial. In an email dated September 28, 2009 to John Degener (“Degener”), who served as a member of Orie

12 According to Creenan, when she refused to go to a po ll site, she was informed that she would have to go into the judicial office to answer the phones, even though Election Day was a paid holiday fo r state workers. Id. at 1374-76.

13 Exhibit 28, Tab 16.J-A16007-14

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Melvin’s judicial staff from January 1998 through 200 9, including as her Chief Law Clerk from 2004 through 2009, Orie Melvin asked Degener a question about summaries of certain pro-business decisions she had written or joined. 14 Degener testified only that he had received this em ail from Orie Melvin. N.T., 2/5/2013, at 1520. To the extent th at this email reflected that Degener assisted Orie Melvin in the 2009 politica l campaign by preparing summaries of her prior judicial decisions, thi s evidence was merely cumulative of Degener’s prior testimony that he performed various other political tasks for Orie Melvin’s 2009 campaign, including (without reference to this particular email in question) the pre paration of various summaries of her judicial decisions. Id. at 1499.

The final two emails at issue were to or from Pavlot. In an email dated August 6, 2009 (Exhibit 14, Tab 9), Pavlot for warded to Orie Melvin another email concerning the taking of a family phot ograph and video that were subsequently used in campaign literature. N.T., 1 /28/2013, at 229. In an email chain in September 2009 relating to a “g un bash” held by an organization with ties to the National Rifle Associatio n (Exhibit 14, Tab 17), Pavlot suggested to Orie Melvin that 500 “poll cards” r elating to her candidacy could be distributed to attendees, and Orie Me lvin responded by inquiring whether Josh Dott (“Dott”), a junior membe r of Jane Orie’s legislative staff, could attend the event to assist her in doing so. Id. at

14 Exhibit 35, Tab 5.J-A16007-14

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246-48. These two emails, however, are merely cumulat ive of extensive testimony by Pavlot regarding a wide range of politi cal activities she performed for the benefit of Orie Melvin’s 2009 poli tical campaign, id. at 207-362, including providing assistance to Orie Melvin at various other campaign events, e.g. , id. at 212, 216, 263, solicitation at fundraisers, id. at 238, 258-60, 268, obtaining endorsements from infl uential political organizations, id. at 253, distributing poll cards, id. at 256, filming campaign commercials, id. at 228, and sending Dott and other legislative staff members to provide assistance at these activities, id. at 260, 267. For these reasons, we conclude that the trial court’s fai lure to suppress the 10 emails seized pursuant to the warrant for Orie Melvin’s email accounts and their use at trial by the Commonweal th was harmless error, either because the emails were not prejudicial to Orie Melvin or the prejudice was de minimis , or because they were cumulative of other properly admitted evidence. Moreover, to the extent that these emails tend to prove that Orie Melvin diverted the services of mem bers of her judicial staff and Jane Orie’s legislative staff for the benefit of her 2009 political campaign, we note that the Commonwealth introduced in to evidence an overwhelming quantum of other uncontradicted evidence , from numerous other witnesses and a large volume of other exhibits un related to the 10 emails in question, that likewise demonstrated Orie Mel vin’s diversion of services. Thus, the prejudicial effect of these 10 emails is insignificant byJ-A16007-14

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comparison and in our view could not have contributed t o the verdict. As a result, no relief is due on Orie Melvin’s third issue on appeal. C. Recusal of the Entire Allegheny County Bench For her fourth issue on appeal, Orie Melvin contends that the trial court erred in denying her motion for recusal of the m embers of the Allegheny County bench in favor of an out-of-county t rial judge. In a ruling at the time of the preliminary hearing, Orie Melvin moved for the recusal of all members of the Allegheny County bench and requeste d the assignment of a trial judge from another judicial district to pre side over all future proceedings pursuant to Pennsylvania Rule of Judicial A dministration 701C. The trial court denied the motion, stating that it wo uld be improper to recuse all of the members of the Allegheny County bench , as the decision regarding whether or not a jurist should recuse is a deci sion that only the individual jurist can make. Trial Court Opinion, 6/2 7/2012, at 4. Instead, the trial court indicated that a request for recusal of the trial judge assigned to Orie Melvin’s case should be directed to that jurist. Id. at 5. On appeal, Orie Melvin takes issue with the trial court ’s contention that it is improper to recuse all members of a particula r bench, citing to

Commonwealth ex rel. Armor v. Armor , 398 A.2d 173 (Pa. Super. 1978) ( en banc ). In Armor , an en banc panel of this Court ruled that in a case where a member of the Montgomery County bench was the spouse of a party to a child support matter, no member of the Montgomery CountyJ-A16007-14

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bench could preside over the case. Id. at 356. Specifically, this Court ruled that although the record contained no evidence o f any bias, prejudice or unfairness on the part of any member of the local b ench, “it would be contrary to the appearance of integrity and independe nce of the judiciary” and would “not promote confidence in the integrity an d impartiality of the judiciary” to allow a fellow member of the Montgomer y County bar to preside over the case. Id . at 356-57. Orie Melvin argues the same reasoning should apply in this case, since she is herself a former member of the Allegheny Co unty bench and because an important witness in her case, her former Chie f Law Clerk, Sasinoski, is the wife of a member of the Allegheny Co unty bench (the Honorable Kevin G. Sasinoski). The trial court determ ined, however, that

Orie Melvin had not demonstrated the sort of direct con flict that clouded the appearance of impartiality and independence in Armor . Trial Court Opinion, 6/27/2012, at 4-5. As the trial court noted , Orie Melvin left the Allegheny County bench in 1997 and provided no good reasons as to why any current members of that bench could not preside over the present case with integrity and objectively. Id. Moreover, Armor involved support payments to the judge’s spouse, and thus arguably the j udge had a direct financial interest in the outcome of the litigation. In this case, in significant contrast, neither Sasinoski nor her husband, as non-part ies, had any direct

interest in the outcome of Orie Melvin’s case. Id.J-A16007-14

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Orie Melvin posits that having a direct interest in th e outcome of the

case is not the correct test under Armor , and that instead the appropriate inquiry is whether “the impartiality of a judge may reasonably be questioned if he or she is assigned to preside over a case where the defendant is a former member of the court and a key p rosecution witness is married to a sitting judge on the court.” Orie Melvi n’s Brief at 40. We disagree, as we do not read Armor to contemplate the recusal of an entire bench under the circumstances presented here. Armor involved two key facts, namely a current member of the bench with a dire ct financial interest

in the outcome of the case. Armor is thus inapposite to the present case, as there are no relevant factual parallels. Orie Melv in’s tenure on the Allegheny County bench ended in 1997, so she has no cur rent relationship as a colleague with any of its members. Moreover, neit her Sasinoski nor her husband has any direct interest (financial or otherw ise) in the outcome of Orie Melvin’s trial, and we do not believe that a witness’ spousal relationship with a judge, without more, automatical ly requires the recusal of an entire bench, as no appearance of impropriety ne cessarily arises from

that attenuated fact. In general, our Supreme Court has advised that a moti on for recusal is not directed to an entire bench, and that decisions r egarding recusal must be decided by the jurist whose impartiality is being cha llenged. See, e.g. , Commonwealth v. White , 734 A.2d 374, 384 (Pa. 1999).J-A16007-14

- 32 - As a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged. In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider 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 is a personal and unreviewable decision that only the jurist can make. ... In reviewing a denial of a disqualification motio n, we recognize that our judges are honorable, fair and competent.

Commonwealth v. Abu-Jamal , 720 A.2d 79, 89 (Pa.) (citations omitted),

cert. denied , 528 U.S. 810 (1998). “It is the burden of the par ty requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to p reside impartially.”

Id. In its ruling at the time of the preliminary hearing , the trial court, citing to Abu-Jamal , properly advised that “[w]hether the judge ultimat ely assigned to this case ... should recuse, is a matter that can only be addressed by that judge.” Trial Court Opinion, 6/27/ 2012, at 5. Orie Melvin did not, however, move for the recusal of the trial judge assigned to the trial of her case, the Honorable Lester G. Nauhaus, and at no time offered any evidence to establish that Judge Nauhaus co uld not preside over her case without bias, prejudice, or unfairness. As a resu lt, no relief is due

on this issue.J-A16007-14

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D. Statute of Limitations For her fifth issue on appeal, Orie Melvin contends t hat her convictions for crimes committed in 2003 were barred by t he statute of limitations, and that the trial court erred in ruling that 42 Pa.C.S.A. § 5552(c)(2) extended the limitations period for her cri mes. Orie Melvin argues that section 5552(c)(2) extends the limitations p eriod only for a “public officer or employee” and that judges cannot be so designated. Orie Melvin insists that judges are “judicial officers,” as tha t term is defined in 42 Pa.C.S.A. § 102, and thus section 5552(c)(2) does not ap ply in her

circumstance. Orie Melvin raises an issue of statutory interpretation . "In examining this determination of statutory interpretation, our sco pe of review is plenary, as it is with any review of questions of law. " Joseph F. Cappelli & Sons, Inc. v. Keystone Custom Homes, Inc. , 815 A.2d 643, 645 (Pa. Super. 2003) (quoting Phillips v. A-Best Prods. Co. , 665 A.2d 1167, 1170 (Pa. 1995)). When asked to construe a statute, "we ar e guided by the principles set out in the Statutory Construction Act, 1 P.S. §§ 1501-1991." Centolanza v. Lehigh Valley Dairies, Inc. , 658 A.2d 336, 339 (Pa. 1995). Moreover, [t]he object of all statutory inter pretation is to ascertain and effectuate the intention of the General Assembly. 1 P.S. § 1921(a);

see also Carrozza v. Greenbaum , 866 A.2d 369, 384 (Pa. Super. 2004),

affirmed , 916 A.2d 553 (Pa. 2007).J-A16007-14

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Section 5552(c)(2) provides as follows: (c) Exceptions.--If the period prescribed in subsection (a), (b) or (b.1) has expired, a prosecution may nevertheless be commenced for: (2) Any offense committed by a public officer or employee in the course of or in connection with his office or employment at any time when the defendant is in public office or employment or within five years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than eight years. 42 Pa.C.S.A. § 5552(c)(2). 42 Pa.C.S.A. § 102 defin es “judicial officer” as “[j]udges, magisterial district judges and appointive judicial officers.” 42 Pa.C.S.A. § 102. The phrase “public officer or emp loyee” does not appear to be defined anywhere in Title 42. 15

15 The trial court applied the definition of “public o fficial” in section 1102 of the Pennsylvania Ethics Act, 65 Pa.C.S.A. § 1102, when interpreting section 5552(c)(2). We disagree that this definition is applica ble here for two reasons. First, our Supreme Court has ruled that the E thics Act does not apply to judges. Kremer , 469 A.2d at 595-96. Second, the language of the Ethics Act specifically states that its definitions apply only to the terms in the Ethics Act itself. 65 Pa.C.S.A. § 1102 (“[t]h e following words and phrases when used in this chapter shall have ... the meanings given to them in this section ...). We likewise disagree with the trial court’s reliance on Commonwealth v. O’Kicki , 597 A.2d 152 (Pa. Super.), appeal denied , 626 A.2d 1156 (Pa. 1991). The issue of whether a judge is a “public office r or employee” was never raised in O’Kicki and thus our decision in that case provides no binding authority in the present circumstance.J-A16007-14

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When interpreting a statute, the Statutory Constructio n Act dictates that we must give plain meaning to the words therein. See 1 Pa.C.S.A. §§ 1901, 1903. “Absent a definition in the statute, stat utes are presumed to employ words in their popular and plain everyday sense , and the popular meaning of such words must prevail.” Centolanza , 658 A.2d at 340 (citing Harris-Walsh, Inc. v. Borough of Dickson City , 216 A.2d 329 (Pa. 1966)). In this regard, our Court, guided by our Su preme Court, has held that “dictionary definitions offer adequate direction for statutory interpretation consistent with the Statutory Constructio n Act.” Zator v.

Coachi , 939 A.2d 349, 353 (Pa. Super. 2007), appeal denied , 961 A.2d 859 (Pa. 2008); Centolanza , 658 A.2d at 340 (relying on Webster’s Ninth New Collegiate Dictionary to interpret an undefined statutory phrase). Black’ s Law Dictionary defines “Public Official” as “[o]ne who h olds or is invested with a public office; a person elected or appointed to carry out some portion of a government’s sovereign powers.” B LACK’S L AW D ICTIONARY 1119 (8 th ed. 2004). Employing the popular and plain everyday sense of the words, the phrase “public officer” refers to someone who holds a pub lic office (either by election or appointment) or is otherwise entrusted with carrying out

functions for the Commonwealth. The intent of the le gislature in enacting section 5552(c)(2) was to extend the statute of limitati ons for criminal offenses for this subset of individuals in recognition of the unique positionsJ-A16007-14

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that they hold. 16 As such, in our view, the legislature intended for judges, most of whom are elected and all of whom hold respected public offices and carry out the power of the judicial branch of governme nt, to be included within the ambit of section 5552(c)(2). 17 Accordingly, no relief is due on

this issue.

E. Prosecutorial Misconduct For her sixth issue on appeal, Orie Melvin maintains th at the trial court erred in not dismissing the charges against her base d upon an egregious instance of prosecutorial misconduct relating to an exhibit introduced during the testimony of Sasinoski. The tria l court summarized the relevant factual background of the incident as fol lows:

During the direct testimony of [Sasinoski], the Commonwealth entered into evidence without objection Exhibit 32, tab #19. (Transcript of Trial from January 24, 2013 through February 21, 2013 (hereinafter referred to as “TT”) at 1180). This exhibit was a one-page handwritten document stating ‘Lisa Do you have proposed answers for Questions 3, 8, & 10? Can I have this Monday.”. (TT at 1181). [Sasinoski] testified the document was hand-written by [Orie Melvin], and she was being asked to answer questions 3, 8, & 10 on a

16 While it is true that Orie Melvin also meets the d efinition of “judicial officer” under 42 Pa.C.S.A. § 102, she offers no goo d reason why the phrases “judicial officer” and “public officer” are mutu ally exclusive of each other. For the reasons explained herein, under sectio n 5552(c)(2), judges are both “judicial officers” and “public officers.”

17 Without specifically relying on this fact in reaching o ur conclusion, we note that judicial officers in Pennsylvania receive W-2 statements reporting salaries to the federal government as employees of the Commonwealth.J-A16007-14

- 37 - political questionnaire. [Sasinoski] was asked, ‘That would be an endorsement questionnaire of a special interest group?’ and she relied ‘Yes’. (TT at 1181). The Commonwealth then went on to ask questions about the next exhibit. On cross-examination, [Sasinoski] was asked about a letter containing a page with eleven questions that at some point had been attached to the single handwritten document she had testified about on direct examination (Commonwealth Exhibit 32 tab #19). [Sasinoski] replied that she had not seen the eleven-question document before. [TT at 1201- 1203]. The next court day, [Orie Melvin] filed a Defense Motion to Dismiss Criminal Charges Due to Prosecutorial Misconduct. The basis for the motion was that the testimony of [Sasinoski] was erroneous. The document she had testified about, Commonwealth Exhibit 32 tab #19, was actually written in 1998 and attached to a letter discussing an educational event at which [Orie Melvin] was a panel member. The five-page document was admitted into evidence as Defendant’s Exhibit H. The 1998 letter included eleven questions labeled Proposed Questions for Professional Development Roundtable. [Orie Melvin’s] handwritten note was from 1998 and had requested information for a legal education event, not a political endorsement questionnaire, as [Sasinoski] had incorrectly testified to on direct examination. Trial Court Opinion, 9/12/2013, at 9-10. After hea ring oral argument on the motion to dismiss, the trial court denied the moti on, ruling that the prosecutor was not guilty of intentional misconduct and h ad instead made a “mistake.” N.T., 2/1/2013, at 1237.J-A16007-14

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“Our standard of review for a claim of prosecutorial mi sconduct is

limited to ‘whether the trial court abused its discreti on.’” Commonwealth

v. Harris , 884 A.2d 920, 927 (Pa. Super. 2005) (quoting Commonwealth

v. DeJesus , 787 A.2d 394, 407 (Pa. 2001), cert. denied , 537 U.S. 1028 441 (2002)), appeal denied , 928 A.2d 1289 (Pa. 2007); Commonwealth

v. Culver , 51 A.3d 866, 871 (Pa. Super. 2012). “It is within the discretion

of the trial court to determine whether a defendant has been prejudiced by misconduct or impropriety to the extent that a mistria l is warranted.”

Commonwealth v. Baez , 720 A.2d 711, 729 (Pa. 1998), cert. denied , 528 U.S. 827 (1999).

The Pennsylvania Supreme Court has stated that ‘[t]he essence of a finding of prosecutorial misconduct is that the prosecutor, a person who holds a unique position of trust in our society, has abused that trust in order to prejudice and deliberately mislead [the factfinder].” Commonwealth v. Pierce , 645 A.2d 189, 197 (Pa. 1994). ... Prosecutorial misconduct will justify a new trial where the unavoidable effect of the conduct or language was to prejudice the factfinder to the extent that the factfinder was rendered incapable of fairly weighing the evidence and entering an objective verdict. If the prosecutorial misconduct contributed to the verdict, it will be deemed prejudicial and a new trial will be required.

Commonwealth v. Francis , 665 A.2d 821, 824 (Pa. Super. 1995) (some internal citations omitted). More recently, our Supr eme Court opined on the meaning of the phrase, “prosecutorial misconduct,” stating:J-A16007-14

- 39 - The phrase ‘prosecutorial misconduct’ has been so abused as to lose any particular meaning. The claim either sounds in a specific constitutional provision that the prosecutor allegedly violated or, more frequently, like most trial issues, it implicates the narrow review available under Fourteenth Amendment due process. See Greer v. Miller , 483 U.S. 756, 765 (1987) (‘To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial.’) (internal quota tion marks omitted); Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974) (“When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them.”). However, “[t]he Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.” Mabry v. Johnson , 467 U.S. 504, 511 (1984). The touchstone is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips , 455 U.S. 209, 219 (1982).

Commonwealth v. Cox , 983 A.2d 666, 685 (Pa. 2009). Given this authority, we focus not on the culpability of the prosecutor but rather on whether his actions deprived Orie Melvin of a fair trial by prejudicially rendering the jury incapable of fairly weighing the evidence and entering an objective verdict. Based upon our re view of the certified record, we conclude that the trial court did not err in denying Orie Melvin’s motion to dismiss. We do so for two reasons. First, the prejudice to Orie Melvin was minimal, as three other witnesses testified th at law clerks were required to fill out political questionnaires. N.T., 2/5/2013, at 1380J-A16007-14

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(Creenan); 1493-94 (Degener); 1629 (Katherine Squir es, hereinafter, “Squires”). Second, the trial court took appropriate steps to reduce any prejudice to Orie Melvin. During Sasinoski’s testimony before t he jury, the trial court questioned Sasinoski directly and made the jury aware o f the issues with respect to the prior exhibit: [THE COURT]: Your testimony was inaccurate. [SASINOSKI]: Oh, okay. [THE COURT]: Okay. As a matter of fact, the document that it was attached to was a four page document from Buchanan Ingersoll, which is a major law firm in the City of Pittsburgh. They were doing a continuing legal education seminar. The Questions 3, 8, and 10 were proposed questions for the judge; is that not accurate? [SASINOSKI]: I don’t have a recollection of that. [THE COURT]: Okay. This has been marked for identification. Ladies and gentlemen of the jury, you are to accept this as the document, this is the original document in which Tab 19 was, along with the attachment, which was submitted to Ms. Sasinoski whenever it was submitted. At the time that it was originally – the District Attorney was in possession of these additional pages, and they were not submitted to you during Ms. Sasinoski’s testimony. Also be aware of the fact that [the] defense was in possession of these four pages. They knew they were attached. All right. There is a question as to how they were attached. It is the defense’s belief that they were attachedJ-A16007-14

- 41 - with a paper clip, or a staple, which is the way it i s now, but when they got it, it was attached with a paper clip. And if you look at Tab 19, you will see that there is a paper clip. For whatever that means to you, take that. N.T., 2/4/2013, at 1253-55. Moreover, during its charge to the jury, the trial cou rt specifically advised the jury that Sasinoski had provided inaccurate testimony and gave a “false in one, false in all” instruction:

One of the Commonwealth’s witnesses, Lisa Sasinoski, gave inaccurate testimony concerning a handwritten note which was marked and admitted into evidence as Commonwealth Exhibit 32, Tab #19. Ms. Sasinoski testified related [ sic ] to a questionnaire from a special interest group when in fact it related to a continuing legal education seminar. As has been pointed out by one of the attorneys, there is a rule in the law which I learned as falsus in uno, falsus in omnibus , which translated from Latin means false in one, false in all. If you decide that a witness deliberately testified falsely about a material point, that is about a matter that could effect [ sic ] the outcome of this trial, you may for that reason alone choose to disbelieve the rest of his or her testimony, but you are not required to do so. You should consider not only the deliberate falsehood, but also all other factors bearing on the witness’ credibility in deciding whether to believe other part s of her testimony. N.T., 2/15/2013, at 2806-08. For these reasons, even to the extent that the prosecuto r here committed intentional misconduct (rather than a mere mi stake, as the trialJ-A16007-14

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court concluded), it was not error to deny Orie Melvin’ s motion to dismiss. The prejudice to Orie Melvin was minimal and the tria l court took appropriate steps to clarify for the jury the precise na ture of the issues relating to the handwritten note associated with the q uestionnaire. 18 Nothing in the certified record compels a conclusion that the jury was rendered incapable of fairly weighing the evidence an d entering an objective

verdict. F. Propriety of Joinder of Case With Janine Orie’s Case For her seventh issue on appeal, Orie Melvin claims tha t the trial court erred in granting the Commonwealth’s motion to join her case with that of her sister, Janine Orie. According to Orie Melvin, the trial court “failed to recognize or appreciate the differences that required s eparate trials.” Orie

Melvin’s Brief at 57.

18 In her appellate brief, Orie Melvin details anothe r instance of alleged introduction of false evidence by the Commonwealth d uring the testimony of Commonwealth witness Pavlot. Orie Melvin’s Brief a t 55-56. The certified record does not reflect that Orie Melvin move d for a mistrial or other relief, however, and therefore, this issue is w aived. See, e.g. , Commonwealth v. Strunk , 953 A.2d 577, 579 (Pa. Super. 2008) (“Even where a defendant objects to specific conduct, the failure to request a remedy such as a mistrial or curative instruction is suffici ent to constitute waiver.”); Commonwealth v. Jones , 460 A.2d 739, 741 (Pa. 1983) (claim of prosecutorial misconduct waived where defense counsel im mediately objected to the prosecutor's conduct but failed to request mistrial or curative instructions); Commonwealth v. Chimenti , 524 A.2d 913, 921 (Pa. Super.) (issue was waived where defense counsel ob jected to a question posed by the prosecutor but failed to ask the trial judge to do anything further after the question had been answered ), appeal denied , 533 A.2d 711 (Pa. 1987).J-A16007-14

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Whether cases against different defendants should be conso lidated for

trial “is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or p rejudice and clear injustice to the defendant.” Commonwealth v. Boyle , 733 A.2d 633, 635 (Pa. Super. 1999). Procedurally, Rule 582 of the Pe nnsylvania Rules of Criminal Procedure governs the joinder of separate cri minal informations. Rule 582 dictates, in pertinent part, as follows:

(1) Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction. Pa.R.Crim.P 582(A). The severance of offenses is govern ed by Pa.R.Crim.P. 583, which states that the trial court “may order separa te trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583. Based upon these rules, our Supreme Court has formulate d the following test for deciding the merits of a motion to sever:

Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment orJ-A16007-14

- 44 - information, or opposes joinder of separate indictments or informations, the court must [] determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses.

Commonwealth v. Collins , 703 A.2d 418, 422 (Pa. 1997) (quoting

Commonwealth v. Lark , 543 A.2d 491, 496–97 (Pa. 1988)), cert. denied , 525 U.S. 1015 (1998). For Orie Melvin, the first part of the Collins test requires us to determine whether the evidence introduced with respect to each of the offenses would be admissible in a separate trial for th e other. In a written opinion, the trial court reviewed in considerable de tail all of the charges against both Orie Melvin and Janine Orie and conclude d that joinder of the two cases was appropriate. Trial Court Opinion, 8/23/2 012, at 14. We need not review the entirety of this analysis, howeve r, since on appeal Orie Melvin challenges just two of the trial court’s determi nations. First, Orie Melvin argues that the conspiracy allegation s against her and Janine Orie differ in multiple respects. At docke t number CC 201010286, Janine Orie was charged with conspiring wit h Jane Orie and Pavlot to use the services of Jane Orie’s legislative sta ff for the benefit of Orie Melvin’s 2009 political campaign. In Count 4, Or ie Melvin was charged with conspiring with Jane Orie and Janine Orie to comm it theft of services inJ-A16007-14

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connection with Orie Melvin’s 2003 and 2009 political campaigns, including with respect to both Orie Melvin’s judicial staff and Ja ne Orie’s legislative staff. Orie Melvin identifies three principle differe nces with these charges. First, Orie Melvin was not alleged to have conspired wi th Pavlot at any time. Second, the Janine Orie-Jane Orie-Pavlot conspiracy was only for the 2009 political campaign and did not also encompass the 2003 c ampaign. Third, while Orie Melvin was charged with conspiring with Jani ne Orie to commit theft of services, Janine Orie was not similarly charged with conspiring with

Orie Melvin to do so. Orie Melvin’s Brief at 58-59. According to Orie Melvin, “[s]ince the alleged co-conspirators, relevant ti me period and object of the charged conspiracies are not the same, the evidence was not universally admissible.” Id. at 59. Nothing in the Pennsylvania Rules of Criminal Procedur e or the

Collins test, however, requires a perfect identity of the char ges against two defendants before their cases may be joined for trial. While Orie Melvin has identified certain differences between the charges again st the two defendants, she has not established that any evidence int roduced against

one of the defendants would not have been admissible i n a separate trial for the other. Orie Melvin was charged and convicted of conspiring with Janine Orie and Jane Orie to commit theft of services with resp ect to both her own judicial staff and Jane Orie’s legislative staff, includi ng in both her 2003 and 2009 political campaigns. That made Orie Melvin and J anine Orie co-J-A16007-14

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conspirators with respect to all of the theft of services c harges, and thus made admissible against each of them all of the acts o f the other in furtherance of the conspiracy. See, e.g. , Commonwealth v. Cimrose , 478 A.2d 1318, 1324 (Pa. Super. 1984). While Orie Melvin was not charged with conspiring with Pavlot, she was charged and convicte d, both as a principle and by and through two accomplices (Janine Or ie and Jane Orie), of diverting the use of Jane Orie’s legislative staff for the benefit of her 2009 political campaign – the object of the conspiracy in volving Pavlot. And while there was no reciprocal charge against Janine Ori e for conspiring with Orie Melvin to divert the use of Orie Melvin’s judicia l staff for the benefit of Orie Melvin’s 2003 and 2009 political campaigns, both were separately charged and convicted of doing precisely that (Orie Mel vin in Count 3 and Janine Orie in Count 1 at CC 201115981). Second, Orie Melvin contends that her case should not hav e been joined with Janine Orie’s case because Janine Orie alone was charged and convicted of tampering with and altering physical evide nce, namely the deletion of campaign-related computer files in 2009 an d 2010 (Counts 3 and 4 at docket number CC 201115981). Orie Melvin’s Brief at 60. The trial court rejected this argument, stating:

The alleged acts of [Janine Orie] in attempting to destroy or conceal evidence of the conspiracy to divert services is likely to be admissible against [Orie Melvin] as those acts, if they are proven to have occurred, were arguably made in furtheranceJ-A16007-14

- 47 - of the common design of the alleged underlying conspiracy. Certainly, the concealment of the documents that would constitute direct evidence of existence of the conspiracy would further the common design of this conspiracy: the diversion of the services of public employees to the private interests of the defendants. Trial Court Opinion, 8/23/2012, at 8-9. We find no abuse of discretion in this analysis, as Janin e’s acts of tampering with evidence were in furtherance of her con spiracy with Orie Melvin to divert public services to Orie Melvin’s bene fit, thereby making evidence of Janine’s acts admissible against Orie Melvin. Cimrose , 478 A.2d at 1324. In particular, we note that at trial, the Commonwealth presented evidence to prove the existence of the under lying conspiracy between Orie Melvin and Janine Orie, as the jury conv icted Orie Melvin of this charge (Count 4) and on appeal she does not challen ge the sufficiency of the evidence presented in support of this conviction. The cases cited by Orie Melvin in this regard are inapposite, as they inv olved circumstances in which severance should have been granted since one defend ant faced charges for which the other defendant clearly bore no potential responsibility. See Commonwealth v. Brookins , 10 A.3d 1251, 1257 (Pa. Super. 2010) (“Significantly, Brookins's conduct ap pears to bear no relationship to the planning and execution of the att empted kidnapping and robbery with which Jordan, McKeiver, and Thompson we re charged.”), appeal denied , 22 A.3d 1033 (Pa. 2011); Commonwealth v. Jackson , 303J-A16007-14

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A.2d 924, 925 (Pa. 1973) (“Since no evidence was given to link appellant to the Oakmont robbery, the fact that the crimes were simi lar in nature does not afford a sound basis for ordering their consolidatio n at trial.”). 19 Moving to the second part of the Collins test, Orie Melvin claims that the evidence relating to the different charges against her and Janine Orie were not capable of separation because “the conspiracies charged in this case are complex, involve different persons, relate to d ifferent time periods, and involve contradictory allegations.” Orie Melvin’ s Brief at 60. The trial court disagreed, concluding that the jury was capable of separating the evidence presented against each defendant and followin g any instructions to consider evidence against only one defendant as necessar y. Trial Court Opinion, 8/23/2012, at 9. Orie Melvin has offered n o convincing argument to suggest that the trial court abused its discretion in t his regard. Finally, with respect to the third part of the Collins test, namely prejudice to the defendant as a result of the joinder, we likewise conclude

that the trial court did not abuse its discretion in fin ding no such prejudice. On appeal, Orie Melvin argues that the “risk was unavo idable that the jury

would cumulate the evidence of the various crimes and f ind guilt even

19 Orie Melvin’s citation to Commonwealth v. Boyd , 461 A.2d 1294 (Pa. Super. 1983), likewise provides no support for her posi tion. Boyd did not involve the consolidation for trial of charges against separate defendants, but rather raised the issue of whether a single defenda nt should have been tried separately for wholly unrelated drug charges, as each charge involved “a totally discrete set of facts.” Id. at 1295-96.J-A16007-14

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though the evidence, when considered separately and app lied to each defendant individually, does not support a conviction.” Orie Melvin’s Brief

at 62. To the extent that the accumulation of eviden ce resulted in any prejudice, it would have been to Janine Orie, as the overwhelming preponderance of the evidence introduced at trial rela ted to Orie Melvin’s actions. Moreover, we note that on appeal, Orie Melv in has not identified any specific testimony or exhibit introduced at trial ag ainst Janine Orie that could not have been introduced at a separate trial aga inst her alone, or otherwise offered any basis for concluding that the intr oduction of any such evidence (if it exists) resulted in any substantial prej udice to her. G. Violation of Discovery Rights Regarding Jane Or ie’s Computer and Electronic Evidence For her eighth issue on appeal, Orie Melvin asserts the trial court’s denial of her request to inspect and examine original computer hard drives and electronic evidence seized from the legislative off ice of Jane Orie violated her rights to discovery under Rule 573(B)(1)( f) of the Pennsylvania

Rules of Criminal Procedure as secured in Brady v. Maryland , 373 U.S. 83 (1963), the Fifth and Sixth Amendments to the United States Constitution, and Article I, Section 9 of the Pennsylvania Constitu tion. Orie Melvin’s Brief

at 65. In our prior opinion in the Jane Orie case, we described the subpoena used to obtain electronic evidence at the forme r state senator’s legislative office as follows:J-A16007-14

- 50 - The December 11, 2009 search warrant for Orie's district office identified the items to be seized and searched as ‘all computer hardware’; ‘software’; ‘documentation’ to access the computer systems and passwords; and electronically stored data referencing: Joan Orie Melvin or her 2009 political campaign, and checks, campaign contributions, thank you letters, and masthead for [Orie Melvin's] 2009 political campaign, and Orie's 2001–2009 elections or political campaigns, and checks, campaign contributions, thank you letters, and masthead for Orie’s 2001 through present political campaigns. The accompanying 13–page affidavit of probable cause detailed the results of the Commonwealth’s investigation and described interviews with numerous employees of Orie, including [Joshua] Dott, Audrey Rasmussen, andPavlot, who each described political campaignrelated activities conducted in the office. Pavlot stated she had done campaign work on legislative time for [Jane Orie] since 2001, as well as campaign work for Orie's sister, [Orie Melvin], in 2009, and she described those duties. Pavlot and other staffers indicated that legislative computers andother office equipment were used for campaignrelated purposes.

Orie , 88 A.3d at 1005. Jane Orie and the Senate Republican Caucus both asserted various claims of privilege with respect to the seized materials, including attorneyclient privilege and the Speech and Debate Clause legi slative privilege (Article II, Section 15 of the Pennsylvania Constituti on). On December 29, 2009, the Honorable John A. Zottola, the Supervisin g Judge of the Grand Jury, appointed a Special Master (former Duquesne Law Professor Bruce Antowiak), to review for privilege all of the evide nce seized in connectionJ-A16007-14

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with Orie-related warrants. Id. at 1004. According to Detective Graber, all seized evidence was delivered (pursuant to a process establ ished by Judge Zottola) to the Special Master. After his review, the Special Master then sent the evidence to Judge Zottola, who (after his own review) sent, inter

alia , “a redacted viewable version” of the seized hard dri ves back to the District Attorney’s office. Id. at 1005 n.23; N.T., 12/13/2010, at 77-78. In

Orie , we concluded that this process ensured that all of the se ized evidence was reviewed by the Special Master and Judge Zottola b efore any of it was turned over to the District Attorney’s office, and tha t the purpose of the process was to guarantee that the District Attorney’s offi ce “had access only to non-privileged documents.” Orie , 88 A.3d at 1004, 1011. In April of 2010, the Senate Republican Caucus obtaine d forensic images of the hard drives seized from Jane Orie’s office . N.T., 12/14/2010, at 269. On October 29, 2012, the trial court granted Orie Melvin’s motion and directed the Senate Republican Caucus to make avail able to Orie Melvin “all original electronic evidence which, in whole or in part, was examined or searched in response to requests made by or subpoenas served by the Allegheny County District Attorney’s Office.” Trial C ourt Order, 10/29/2012, at 1. On November 7, 2012, after receipt of a moti on for reconsideration filed by the Senate Republican Caucus, the trial court vacated its prior order and referred the matter to Judge Zottola. On two su bsequent occasions, Judge Zottola denied requests by Orie Melvin for the original hard drives.J-A16007-14

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N.T., 12/21/2012, at 51-52 (“What it does is eliminat e the safeguards that the Court put in place with respect to privileged info rmation.”); N.T., 1/11/2013, at 18-19.

In Brady , the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to a n accused upon request violates due process where the evidence is materia l either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87. A Brady violation occurs when: (1) the prosecutor has suppressed evidence; (2) the evidence, w hether exculpatory or impeaching, is helpful to the defendant ; and (3) the suppression prejudiced the defendant. Commonwealth v. Paddy , 800 A.2d 294, 305 (Pa. 2002). Rule 573 of the Pennsylvania Rules of Criminal Proced ure was promulgated in response to the dictates of Brady

. Commonwealth v.

Green , 640 A.2d 1242, 1246 (Pa. 1994). Rule 573 provide s, in relevant part, as follows: Rule 573. Pretrial Discovery and Inspection

* * * (B) Disclosure by the Commonwealth. (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requestedJ-A16007-14

- 53 - items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items. (a) Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth;

* * *

(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence. Pa.R.Crim.P. 573(B). Upon a finding of violation o f Rule 573, the trial court “may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducin g evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.” Pa.R.Crim .P. 573(E). In this case, Orie Melvin does not deny that she received all of the evidence obtained by the Commonwealth after the priv ilege reviews by the Special Master and Judge Zottola. Instead, Orie Melvi n argues that pursuant to Rule 573(B)(1)(f), she had a right to ins pect and examine the original computer equipment seized from Jane Orie’s le gislative office. Orie

Melvin’s Brief at 63. She further contends that this is a matter of fundamental fairness, as “the Commonwealth was permitt ed to search the computer equipment for potentially relevant informat ion and was permittedJ-A16007-14

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to introduce evidence from that equipment at trial bu t Orie Melvin was denied the same opportunity.” Id. at 65. We disagree for several reasons. First, Orie Melvin has not cited to any evidence in the certified record to support her clai m that the Commonwealth had any opportunity to search the origin al computer equipment seized from Jane Orie’s office. As set forth hereinabove, the District Attorney’s office had no access to the original co mputer equipment or other evidence seized from Jane Orie’s office, as it was within the exclusive control of Judge Zottola and the Special Maste r. Both the District Attorney and Orie Melvin received the same access to the same nonprivileged evidence forthcoming after the privilege r eviews. In her appellate brief, Orie Melvin has not identified for this Court any evidence the

Commonwealth introduced at trial obtained from Jane Orie’s office to which she was denied access (either by the trial court, Judge Zo ttola, or the Commonwealth). Second, Brady

and Rule 573 set forth the Commonwealth’s obligations to provide discovery materials that are wit hin its possession to the defense. See Pa.R.Crim.P. 573(B)(1) (“the Commo nwealth shall disclose to the defendant’s attorney”); Commonwealth v. Collins , 957 A.2d 237, 253 (Pa. 2008) (the Commonwealth does not violate disclosure

rules when it fails to disclose to the defense evidence t hat it does not possess and of which it is unaware); see also Commonwealth v.J-A16007-14

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Boczkowski , 846 A.2d 75, 97 (Pa. 2004) (citing Commonwealth v.

Gribble , 703 A.2d 426 (Pa. 1997), abrogated on other grounds by

Commonwealth v. Burke , 781 A.2d 1136 (Pa. 2001)). As a result of the procedures established by Judge Zottola, the Commonwea lth here did not have custody or control of the original computer equipm ent sought by Orie Melvin, and had no ability to produce it to Orie Mel vin. As a result, Orie

Melvin has not established a violation of the Common wealth’s obligations

under Brady

or Rule 573. Finally, no Brady

violation occurs when the evidence is available to the defense through non-governmental sources. Commonwealth v.

Carson , 913 A.2d 220, 244-45 (Pa. 2006), cert. denied , 552 U.S. 954 (2007); Commonwealth v. Morris , 822 A.2d 684, 696 (Pa. 2003); Paddy , 800 A.2d at 305. The certified record in this case e stablishes that the non-governmental entities asserting privilege claim s with respect to the evidence in question, including the Senate Republican C aucus and Jane Orie, had duplicate copies of the hard drives removed f rom Jane Orie’s office. N.T., 1/11/2013, at 18-19. Orie Melvin coul d presumably have obtained the requested access to these sources from one or more of these

entities or individuals. H. Violation of Discovery Rights Regarding Superio r Court Computer and Electronic Evidence For her ninth issue on appeal, Orie Melvin maintains that the trial court erred in denying her requests to examine the comp uters used by herJ-A16007-14

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judicial staff in the possession of the Superior Court. In response to subpoenas issued by the Commonwealth, the Administrativ e Office of Pennsylvania Courts (“AOPC”) performed searches on the S uperior Court’s computers using key search terms set forth in the subpoena. N.T., 11/19/2012, at 8-9. The AOPC then provided the docu ments produced

from these searches to the Commonwealth and to Orie Mel vin. Id. On October 29, 2012, the trial court, at the request of, inter alia , Orie Melvin, entered an order directing the AOPC to “make availab le for inspection and examination by the computer forensic experts of the Def endants all original electronic evidence which, in whole or in part, was exam ined or searched in response to requests made by or subpoenas served by the A llegheny County District Attorney’s Office.” Order, 10/20/2012 , at 1. In response, the AOPC moved for reconsideration, emphas izing that it had not granted the Commonwealth physical access to the S uperior Court’s computers, and that instead it had merely run the sear ches delineated in the Commonwealth’s subpoenas. Motion for Reconsiderati on of the Court’s October 29, 2012 Order and for a Protective Order, 11 /19/2012, at 2. The AOPC objected to permitting Orie Melvin’s experts access to the Superior Court’s computers on a variety of grounds, including th at it exposed all of the Superior Court’s judicial data -- much of which is co nfidential and privileged -- to third parties, and indicated that n o mechanism existed to limit examination and inspection to information rele vant to this case. Id. atJ-A16007-14

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4. The trial court heard oral argument on November 19, 2012, at which time counsel for Orie Melvin renewed the request for a ccess to the Superior Court’s computers to “test the authenticity, the validit y, and the accuracy of the information that the AOPC produced to the Commo nwealth which the Commonwealth wishes to introduce into evidence against our client.” N.T., 11/19/2012, at 6. The trial court refused to do so, vacating its October 29, 2012 order. The trial court permitted Orie Melvin t o depose the AOPC personnel who conducted the key word searches.

No Brady

or Rule 573 issues are presented here, as Orie Melvin d oes not suggest that the Commonwealth had possession or contro l of the Superior Court’s computers. Accordingly, we review the trial court’s denial of Orie Melvin’s discovery motion for an abuse of discre tion.

Commonwealth v. Mendez , 74 A.3d 256, 260 (Pa. Super. 2013), (“Generally, on review of an order granting or deny ing a discovery request, an appellate court applies an abuse of discretion standar d.”), appeal denied , 87 A.3d 319 (Pa. 2014). Here we find no abuse of di scretion. Orie Melvin offered no basis to dispute the AOPC’s contention that p ermitting access to the Superior Court’s computers would provide unauthori zed access to a myriad of privileged and confidential documents, and o ffered no specific procedures or methods that could have been employed to satisfy the AOPC’s confidentiality and privilege concerns. Moreover , to the extent that Orie Melvin sought evidence from the Superior Court’s computers that hadJ-A16007-14

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not been produced by the AOPC in response to the Commo nwealth’s subpoenas, Orie Melvin could have issued her own subpoen a to the AOPC requesting the production of such information. The cert ified record does

not reflect that she ever did so. I. Defects in the Preliminary Hearing For her tenth issue on appeal, Orie Melvin claims th at at the preliminary hearing the Commonwealth failed to make out a prima facie case to support the charges for theft of services, misapplic ation of government property, or conspiracy to tamper with or f abricate evidence. Orie Melvin’s Brief at 68-74. The purpose of a preli minary hearing is to

avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish that a crime was committed and a p robability that the

defendant was connected therewith. See, e.g. , Commonwealth v.

Jackson , 849 A.2d 1254, 1257 (Pa. Super. 2004). Once a def endant has gone to trial and has been found guilty of the crime or crimes charged, however, any defect in the preliminary hearing is ren dered immaterial. See, e.g. , Commonwealth v. Sanchez , 82 A.3d 943, 984 (Pa. 2013).

Because Orie Melvin was convicted of the above-referenced crimes following a trial on the merits, she is entitled to no relief o n any alleged defects in the rulings of the magisterial district judge at the prel iminary hearing.J-A16007-14

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J. Evidence of Productivity of Orie Melvin’s Judic ial Chambers For her eleventh issue on appeal, Orie Melvin argues t he trial court erred in refusing to permit her to admit into eviden ce reports relating to the productivity of her judicial chambers in 2003 and 2009. Our standard of review for a trial court's evidentiary rulings is narro w, as the admissibility of

evidence is within the discretion of the trial court and will be reversed only if

the trial court has abused its discretion. Commonwealth v. Hanford , 937 A.2d 1094, 1098 (Pa. Super. 2007), appeal denied , 956 A.2d 432 (Pa. 2008). An abuse of discretion is not merely an error o f judgment, but is rather the overriding or misapplication of the law, t he exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill will or partiality, as shown by the evidence of record. Commonwealth v.

Mendez , 74 A.3d 256, 260 (Pa. Super. 2013), appeal denied , 87 A.3d 319 (Pa. 2014). On February 8, 2013, Orie Melvin called Delores Bianco (“Bianco”), the Deputy Director for the Superior Court, to testif y on her behalf. Bianco testified that she had brought with her monthly repor ts provided to the judicial chambers of each Superior Court judge on a mon thly basis, from 2003 through 2009. N.T., 2/8/2013, at 2148-49. Th ese reports begin in January of each year and cumulate the included informa tion each month, such that the December report shows the information for the full year. Id. According to Bianco, these monthly reports show, inter alia , the number ofJ-A16007-14

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cases assigned to, and completed by, each Superior Court j udge, including

Orie Melvin. Id. On cross-examination and through questions posed by the trial judge, Bianco indicated that the reports contain only “raw numbers,” and provide no information about the nature or compl exity of the cases, or how long or short the memoranda or opinions deciding t he cases may be.

Id. at 2153-53. Similarly, Bianco acknowledged that th e reports made no attempt to reflect the quality of the memorandum or opinion. Id. at 2154. Prior to Bianco testifying about information in the r eports specifically relating to Orie Melvin or any other Superior Court judge, counsel for Orie

Melvin moved for the admission into evidence of the ex hibits containing the monthly reports. The trial court deferred ruling on the admissibility. Id. at

2161. On February 12, 2013, the trial court ruled that the se monthly reports, and four charts summarizing their contents, we re irrelevant and

thus not admissible. Id. at 2536. On appeal, Orie Melvin contends that this evidence was relevant to negate the Commonwealth’s accusation that she diverted judicial resources to political activity in 2003 and 2009. As her counsel argued,

In this case, Judge, the determination of whether or not the services were properly utilized by my client, or whether they were improperly or illegally divert ed to an illegal exercise or non-judicial exercise is adetermination that has to be evaluated by the factfinder, the jury. That one measure, one measure, there may be others, but one measure is mostJ-A16007-14

- 61 - clearly what cases were decided, whether they were decided on time, and whether there was that productivity by the chambers. ... That measure of productivity indicates that the services are being properly applied to the decisions of the cases before the Court.

Id. at 2520-21, 2535. Counsel also asserted that the evid ence bore directly on the credibility of former members of her j udicial staff who testified that they spent a significant percentage of t heir workdays performing political, rather than judicial, tasks:

That is the very point of the argument, Judge. Sasinoski testifies, Squires testifies, Ms. Weibel [20] comes in here and testifies, and they say that there has been a theft, there has been a depreciation or a taking from the workday. Three hours a day in 2003 by Squires. For god’s sake, the evidence of the productivity of the offices defies what the testimony – it’s a credibility challenge.

Id. at 2533. For the reasons that follow, we find no error in the trial court’s decision not to admit the proffered evidence because we agree that the proffered evidence was not relevant. Evidence is relev ant evidence if it

tends to make the existence of a material fact more or less probable than it would be without the evidence. Pa.R.E. 401; Commonwealth v. Dillon , 925 A.2d 131, 136 (Pa. 2007).

20 Jackelyn Weibel is a detective in the Allegheny Cou nty District Attorney’s office who testified as an expert in forensic accounting. N.T., 2/7/2013, at 2020. She testified as to the value of the services Ori e Melvin allegedly diverted to her own use. Id. at 2048 ($27,702.68 in 2003 and $5,773.03 in 2009).J-A16007-14

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The trial court did not abuse its discretion in ruling t hat the monthly reports were irrelevant to the charges against Orie M elvin, as we conclude that her relevance arguments misconstrue the nature of the crime of theft

of services. To establish a theft of services under 18 Pa .C.S.A. § 3926(b), the Commonwealth only had to establish that Orie Mel vin utilized her judicial staff for purposes other than judicial work. The only appropriate inquiry under section 3926(b) is whether Orie Melvin r equired her judicial staff to perform, for her personal benefit, non-judici al ( i.e. , political) duties, 21 and it is irrelevant that they also performed their judicial tasks. The Commonwealth had no obligation to prove that th e diversion of services resulted in an inability to complete the judicial wor k for which they were employed by the Commonwealth. As the trial court cor rectly observed, “proof of no loss to the Commonwealth is not a defense to the charge of theft of services by diversion of services.” Trial Court Opinion, 8/12/2013,

at 15. In addition, the monthly reports provided only statist ics on the output of the entire chambers for the relevant time periods, and thus offer no indication as to the productivity of any particular law clerk during that period or in general. As such, they do not, as Orie Me lvin now contends, tend to contradict the testimony of a specific law cler k regarding the portion

21 As explained infra at 69-70, no judicial employee testified that he or she performed political services at Orie Melvin’s direction o n a volunteer basis.J-A16007-14

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of his or her time that was spent on non-judicial tasks. 22 In this regard, we note that the monthly reports offered no insight into the productivity (or lack thereof) of Squires or Janine Orie, who as secretar ies had no direct responsibility for researching or drafting the judicial decisions generated by

Orie Melvin’s chambers. Finally, even to the extent that the monthly report s in question provided some indication of the productivity of Orie Melvin’s Superior Court chambers as a whole, the trial court retained broad disc retion to exclude the evidence as potentially misleading or confusing to t he jury. See, e.g. , Leahy v. McClain , 732 A.2d 619, 624 (Pa. Super.), appeal denied , 751 A.2d 192 (1999); Egelkamp v. Egelkamp , 524 A.2d 501, 504 (Pa. Super. 1987); Gallegor by Gallegor v. Felder , 478 A.2d 34, 38 (Pa. Super. 1984). Without a substantial quantum of additional i nformation, the monthly reports at issue here may have done more to mi slead and confuse the jury than to instruct it. For example, the mont hly reports did not reflect the number or complexity of the issues in the cases assigned to Orie Melvin in any relevant time period, and similarly did not sh ow how Orie Melvin’s chambers managed its inventory of cases at specific points i n time, including, for instance, whether decisions on more complex and/or lengthy

cases were deferred until after elections in favor of sim pler, more

22 For example, Degener testified that during election periods “the appeals were still being turned out” because the law clerks “just worked hard” at “getting it done.” N.T., 2/5/2013, at 1491.J-A16007-14

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straightforward and routine cases. The monthly reports also set forth only the number of cases circulated and filed during the rele vant time periods, but do not specify the length of the individual memo randa and opinions produced or the complexity of the analysis involved in each such decision. Without this additional foundational information, t he monthly reports may have presented a highly misleading representation of the productivity of Orie Melvin’s judicial staff at any specific point in ti me, and thus the trial

court was within its discretion to exclude this evidence on this basis.

Because we conclude that the trial court did not abuse it s discretion in refusing to admit these monthly reports into evidence, no relief is due on Orie Melvin’s eleventh issue on appeal. K. Improper Comments by Trial Judge For her twelfth issue on appeal, Orie Melvin contends that the trial court deprived her of a fair trial by making the fol lowing communications to the jury:

• Expressed personal disbelief that court employees had no set or minimum work hours, N.T., 2/6/2013, at 1719, and after stating ‘I don’t understand any o f this,’ proceeded to question the AOPC Human Resource Director himself concerning this issue, id. at 1729-30. Apparently dissatisfied with the answers to his own questions, the court then said: ‘I didn’t clear anything up.’ Id. at 1733.

• Offered his personal opinion that time spent performing political tasks was not de minimis and the defense strategy of totaling minutes allegedly spent on political tasks was not credible. N.T.,J-A16007-14

- 65 - 2/1/2013, at 1068-69 (‘It really is a mischaracterization. It really is. I understand that you are taking down two and three minutes, but there is so much more being done. It’s a mischaracterization.’).

• Offered his personal opinion that defense strategies were not coherent or persuasive. ( See, e.g. , N.T., 1/29/2013, at 429-30 (‘[T]o be perfectly honest, I have no idea what you are trying to do.’); N.T., 2/5/2013, at 1463 (‘I would really like to knowwhere you are going. This is supposed to be crossexamination. Where are we going with this?’); Id. at 1466 (‘I’m reluctant to tell any lawyer how to tr y their case, but I need to know where you are going with this.’).

• Improperly limited relevant cross-examination of Pavlot concerning a pleading that was filed on her behalf in federal court because the pleading was signed by her lawyer, not Pavlot. N.T., 1/29/2013, at 463-64.

• Assumed that the introduction of false evidence by the prosecutor concerning the ‘Women in the Profession’ materials was a mistake, N.T., 2/1/2013, at 1237, and reinforced the notion of a mistake in a later colloquy with defense counsel, N.T., 2/4/2013, at 1276-77.

• Insisted that Sasinoski was ‘mistaken’ when she falsely testified that Orie Melvin took a car allowance from the Superior Court. N.T., 2/12/2013, at 2504-08.

• Made inconsistent hearsay rulings that favored the prosecution. For example, when the defense objected to admission of a hearsay statement by a former Senate staffer, the trial court ruled that the testimony must be allowed in front of jury because ‘you don’t know it’s hearsay until you hear what it is.’ N.T., 1/31/2013, at 890. Further, when the Commonwealth sought to elicit testimony from a former Senate staffer concerning advice that sheJ-A16007-14

- 66 - received, the trial court allowed the testimony because ‘somebody told her, it’s called state of mind.’ N.T., 2/5/2013, at 1675. By contrast, the trial court disallowed legitimate questioning of Judge Joseph Del Sole concerning the basis for his personnel actions concerning Lisa Sasinoski. N.T., 2/7/2013, at 2102.

• Shut down questioning of the Commonwealth’s expert concerning judicial staffers completing all of their assigned work by ruling that the question ‘was never asked,’ N.T., 2/7/2013, at 2071, when in fact each judicial staffer was asked whether all judicial work was completed. N.T., 2/1/2013, at 1215-16; N.T., 2/5/2013, at 1586-87, 1591.

Orie Melvin’s Brief at 79-80. Orie Melvin did not specifically raise any of these issues in her Rule 1925(b) concise statement of issues to be complained of o n appeal, and thus, they are waived. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v.

Hairston , 84 A.3d 657, 672 (Pa. 2014). Moreover, they are waived for lack of argument in Orie Melvin’s appellate brief. A judge’s remarks to counsel during trial do not warrant reversal unless the remarks so prejudice the jurors against the defendant that “it may reasonab ly be said [that the remarks] deprived the defendant of a fair and impart ial trial.” 23

23 We also note that in its charge to the jury, the tr ial court advised as follows: I have not attempted to indicate my opinion

concerning the weight which should be given to any of the evidence, or part of it. I do not want you t o think that I have. If during the course of the trial I have asked any questions of the witnesses, you are not to attach any more significance to thoseJ-A16007-14

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Commonwealth v. Jones , 912 A.2d 268, 287 (Pa. 2006) (citing Commonwealth v. England , 375 A.2d 1292, 1300 (Pa. 1977)). In her appellate brief, Orie Melvin fails to develop these cl aims by detailing the circumstances and context of each trial court statement, or otherwise explaining how each of these statement prejudiced her or deprived her of a fair trial. Pa. R.A.P. 2119(a); Commonwealth v. Wilson , 825 A.2d 710, 715 (Pa. Super. Ct. 2003) (holding waiver results whe n appellant fails to properly develop issue on appeal) (citing Commonwealth v. Ellis , 700 A.2d 948, 957 (Pa. Super. 1997), appeal denied , 727 A.2d 127 (Pa. 1998));

see also Commonwealth v. Miller , 721 A.2d 1121, 1124 (Pa. Super. 1998) (“We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when briefs are wholly inadequate to present specific issues for review, a court will not consi der the merits thereof.”); Commonwealth v. Einhorn , 911 A.2d 960, 970 (Pa. Super. 2006), appeal denied , 920 A.2d 831 (Pa. 2007); Commonwealth v.

Levanduski , 907 A.2d 3, 29 (Pa. Super. 2006), appeal denied , 919 A.2d 955 (Pa 2007).

questions and answers than to any other questions and answers. If during the trial I have exhibited what you felt to be annoyance or displeasure towards any witness or any lawyers, or I made any comment or displayed any facial expressions, you are not to assume that I am attempting to lead you to render a particular verdict. N.T., 2/15/2013, at 2810.J-A16007-14

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L. Sufficiency of Evidence For her thirteenth issue on appeal, Orie Melvin challe nges the sufficiency of the evidence to support her convictions for theft of services, misapplication of entrusted property, and conspiracy to tamper with or fabricate evidence. We apply the following standard of review when considering a challenge to the sufficiency of the evide nce:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Estepp , 17 A.3d 939, 943–44 (Pa. Super. 2011), appeal dismissed , 54 A.3d 22 (Pa. 2012).J-A16007-14

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1. Theft of Services 18 Pa.C.S.A. § 3926 of the Pennsylvania Criminal Cod e is entitled “Theft of services.” Its subsection (b) provides as follows:

(b) Diversion of services. --A person is guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto. 18 Pa.C.S.A. § 3926(b). Subsection (c)(2) states that w hen the value of the services diverted is more than $50, the crime will b e graded in accordance with 18 Pa.C.S.A. § 3903. 18 Pa.C.S.A. § 3 926(c)(2). 18 Pa.C.S.A. § 3903(a.1) provides that a theft of service s with a value in excess of $2,000 constitutes a felony of the third degre e. 18 Pa.C.S.A. § 3903(a.1). With respect to her conviction under Count 1 for diversi on of the services of her judicial staff, Orie Melvin directs our a ttention to the trial testimony of David Kutz (“Kutz”), AOPC’s Director of H uman Resources, who indicated that judges on the Superior Court have the authority to set office policy for members of their judicial staff, includ ing how many hours the law clerks and secretaries work. N.T., 2/6/2013, at 1704-06. Kutz

further testified that law clerks and secretaries did not have to fill out time sheets to get paid. Id. at 1727. Based upon this testimony, Orie Melvin contends that she was “vested with complete discretion to d irect the work of her staff and secretaries” and that there was “no req uirement that thoseJ-A16007-14

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employees devote any particular number of hours to the ir judicial assignments.” Orie Melvin’s Brief at 82. We cannot agree that Kutz’s testimony precluded a findi ng that Orie Melvin diverted services within the meaning of subsection 3925(b). At most, Kutz’s testimony established that Superior Court j udges have the discretion to set office policy and the number of hours p er week that employees are expected to work – in other words, to pr escribe how and in

what manner the judicial functions of their office are carried out. This in no way leads to a conclusion that Superior Court judges have any authority to divert the services of judicial employees to their own personal

benefit

. No judicial employee testified that he or she performe d political services on a volunteer basis. For example, Sasinoski test ified that she performed political tasks for Orie Melvin’s campaign so t hat she could keep her job, even though she knew that doing so was wrong. N.T., 2/1/2013, at 1105. Degener also testified that he thought that doing political work was wrong, but that Orie Melvin was his supervisor and he did not believe that objecting to doing the work would “stop it.” Id. at 1491, 1497. Squires testified that the political work she did was o utside her “judicially required responsibilities,” but that she performed the political tasks assigned to her because “it was given to me by [Janine Orie] to complete during my workday.” Id. at 1605-06.J-A16007-14

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With respect to her conviction under Count 3 for diversi on of the services of Jane Orie’s legislative staff, Orie Melvin cl aims that the Commonwealth offered no evidence to prove that she ha d control over the services of those employees, and that no legislative empl oyee testified that Orie Melvin directed them to perform any political wo rk on her behalf. Orie

Melvin’s Brief at 83. In rejecting this argument, the trial court noted that numerous members of Jane Orie’s legislative staff testified that they performed a substantial quantity of political work on Orie Melvin’ s political campaigns. Trial Court Opinion, 9/12/2013, at 22. The certifie d record supports this finding. In this regard, Pavlot testified that that she received numerous directives to perform political activity from both Jane Orie and Janine Orie, and that Jane Orie specifically advised her any order s he received from either Janine Orie and/or Orie Melvin was to be trea ted as an order directly

from her: Q. Why would you take orders from either

[Janine Orie or Orie Melvin]? A. Because [Jane Orie] told me, she told me from the beginning, she said, look, if either of my sisters, Janine or Joan, ever give you a directive or a request, whatever it might be, you need to follow that as though I were telling you to do that. Q. As a practical matter, did you receive requests from either [Janine Orie or Orie Melvin] that were political or campaign related?J-A16007-14

- 72 - A. Yes sir, I did. N.T., 1/28/2013, at 199. Furthermore, on appeal Orie Melvin does not challenge the sufficiency of the evidence in support of her conviction under Coun t 4 for conspiring

with Jane Orie and Janine Orie to divert the services of Jane Orie’s legislative staff to her political campaigns. Accordingly , even if Orie Melvin did not herself direct members of Jane Orie’s legislativ e staff to perform political tasks on her behalf, she is nevertheless responsib le for all of the acts of both Janine Orie and Jane Orie in doing so. See, e.g. , Commonwealth v. Murphy , 795 A.2d 1025, 1038 (Pa. Super. 2002) (“Even if the conspirator did not act as a principal i n committing the underlying crime, he is still criminally liable for the actions of his coconspirators in furtherance of the conspiracy.”), affirmed , 844 A.2d 1228 (Pa. 2004). 2. Misapplication of Entrusted Property Orie Melvin next challenges the sufficiency of the evide nce to support her conviction under Count 5 for misapplication of entr usted property. 18 Pa.C.S.A. § 4113(a), entitled “Misapplication of entr usted property and property of government or financial institution,” pro vides as follows:

(a) Offense defined.--A person commits an offense if he applies or disposes of property that has been entrusted to him as a fiduciary, or property of the government or of a financial institution, in a manne rJ-A16007-14

- 73 - which he knows is unlawful and involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted. 18 Pa.C.S.A. § 4113(a). Subsection (b) provides that the offense is a misdemeanor of the second degree if the amount involve d exceeds $50, and a misdemeanor of the third degree if the amount involved does not exceed $50. 24 18 Pa.C.S.A. § 4113(b).

The trial court found that the Commonwealth had intr oduced sufficient evidence to support this conviction based upon testimony that Orie Melvin, either directly or through others at her direction (in cluding Janine Orie), had used Superior Court office facilities and office equipme nt for political campaign activities. Trial Court Opinion, 9/12/2013, at 24-25. On appeal,

Orie Melvin contends that the Commonwealth did not in troduce any evidence to prove that she applied or disposed of entru sted property “in a

manner which was unlawful and involved substantial risk of loss or detriment to the owner of the property.” Orie Melv in’s Brief at 84. We conclude that this issue has not been preserved for a ppellate review. In her statement of errors complained of on a ppeal, Orie Melvin

24 Orie Melvin’s conviction under this provision was grade d as a seconddegree felony, despite the apparent absence of any evi dence of record that the value of the amount involved exceeded $50. Orde r of Sentence, 5/7/2013, at 2 (identifying the conviction as an “M2” ). Because Orie Melvin has not raised this issue on appeal, however, it is wai ved. See, e.g. , Commonwealth v. Smith , 17 A.3d 873, 903 (Pa. 2011), cert. denied , 133 S.Ct. 24 (U.S. 2012).J-A16007-14

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states only that there was insufficient evidence to suppor t her conviction under subsection 4113(a), but does not identify the spe cific element of the offense for which insufficient evidence was allegedly pr esented. As a result, the trial court did not address in its Rule 1925(a) wri tten opinion the specific issue now presented. For these reasons, we find t he issue to be

waived. If Appellant wants to preserve a claim that the

evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. The instant 1925(b) statement simply does not specify the allegedly unproven elements. Therefore, the sufficiency issue is waived.

Commonwealth v. Williams , 959 A.2d 1252, 1257 (Pa. Super. 2008). Although the Commonwealth did not object to this defe ct in Orie Melvin’s Rule 1925(b) concise statement, we observed in Williams that such a failure is of “no moment, because we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a selective manner dependent on an appellee’s argument ....” Id. 3. Conspiracy to Tamper With or Fabricate Evidence Finally, Orie Melvin claims that the Commonwealth did not introduce sufficient evidence to support her conviction under Coun t 7 for conspiracy to tamper with or fabricate evidence. To sustain a convict ion for criminal conspiracy, the Commonwealth must establish that the def endant (1)J-A16007-14

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entered into an agreement to commit or aid in an unl awful act with another person or persons, (2) with a shared criminal intent an d (3) an overt act was done in furtherance of the conspiracy. Commonwealth v. Hennigan , 753 A.2d 245, 253 (Pa. Super. 2000). “This overt act need not be committed by the defendant; it need only be committed by a coconspirator.” Id. With respect to the agreement element, we have explained: The essence of a criminal conspiracy is a common

understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.

Commonwealth v. McCall , 911 A.2d 992, 996-97 (Pa. Super. 2006) (quoting Commonwealth v. Johnson , 719 A.2d 778, 784–85 (Pa. Super. 1998) ( en banc )). Orie Melvin argues that there was no proof of either an agreement with Pavlot and/or Jane Orie to tamper with evidence , or that she intendedJ-A16007-14

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to facilitate or promote the crime of tampering. Ori e Melvin’s Brief at 85. We disagree. Pavlot testified that after she and othe rs in Jane Orie’s legislative office became aware that a student intern ( Jennifer Knapp Rioja) had reported improprieties to the Allegheny County D istrict Attorney’s office, she and Dott removed two boxes of documents from the office file drawers. N.T., 1/29/2013, at 330. When they were r emoving the boxes from the office, she thought she saw flashes from a camer a, and immediately contacted Jane Orie to report that she be lieved someone had taken pictures of the removal of the boxes. Id. at 331. Pavlot testified that she took the boxes to her basement and planned to give them to her attorney, but before she could do so she received a tele phone call from Jane Orie and Orie Melvin, which she described as follo ws:

I received a phone call from Jane Orie and she said, Jamie, this is Jane, I have [Orie Melvin] on the phone. [Orie Melvin] said, hi, Jamie. I said, hi, Judge. And they said to me, both of them had identified themselves and said to me, Jamie, what’s in those boxes. And I said, well, there are a number of things in the boxes. What are in the files? I said it appears to be some expense reports, it appears to be some contributors lists, looks like some political literature is in there, some other miscellaneous things are in there. And [Jane Orie] said, Jamie, anything that’s political of mine, I want you to pull those files out of those boxes. And [Orie Melvin] said, Jamie, anything political of mine, I want you to pull them out of those boxes. And I said, okay. But I didn’t do it.

Id. at 333-34.J-A16007-14

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Viewing Pavlot’s testimony in the light most favorable to the Commonwealth as the verdict winner, as our standard of review requires, there is sufficient evidence to support a conspiracy betwe en Orie Melvin, Jane Orie, and Pavlot to tamper with evidence. Orie Melvin argues that phone records do not establish that such a telephone call was ever made, but it is not for this Court to pass upon Pavlot’s cre dibility. Estepp , 17 A.3d at 943–44. An argument regarding the credibility of a witness’s testimony “goes to the weight of the evidence, not the sufficienc y of the evidence.”

Commonwealth v. Gibbs , 981 A.2d 274, 281-82 (Pa. Super. 2009), appeal denied , 3 A.3d 670 (Pa. 2010). Orie Melvin has not asserted a weight of the evidence claim. M. Accomplice Liability Jury Instructions After Co mmencement of Jury Deliberations For her fourteenth issue on appeal, Orie Melvin claims that the trial court erred in instructing the jury on the topic of accom plice liability after closing arguments had been completed and the jury had begun its

deliberations. Orie Melvin’s Brief a 85. For the r easons that follow, we conclude that the trial court’s supplemental instruction to the jury violated Rule 647(A) of the Pennsylvania Rules of Criminal Pro cedure. We further conclude, however, that Orie Melvin has not demonstrate d actual prejudice resulting from this violation to be entitled to any r elief on appeal. On February 14, 2013, the trial court conducted a char ging conference, at which time it provided the parties with a draft of its proposedJ-A16007-14

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charge to the jury and ruled on various requests for ad ditional instructions. N.T., 2/14/2013, at 2679-2703. During this charging conference, the Commonwealth did not request a charge on “accomplice li ability,” ask that the term be defined, or otherwise object to the absence of a charge or definition. During its charge to the jury, the trial court used the word “accomplice” four times, all while summarizing the charge s in the informations filed against the co-defendants. The fir st three references took place as the trial court reviewed the charges in th e information filed against Orie Melvin:

Count 1: Theft of Services. The actor, and when I use the term actor, I’m talking about [Orie Melvin]. It’s a euphemism the legislature came up with. Having control over the disposition of services of others, namely actor’s Superior Court Judicial staff, which she personally and through Janine Orie and [Jane Orie], accomplices pursuant to statute , utilized to facilitate and promote the actor’s politic al campaign for higher judicial office during the election cycles in both 2003 and 2009.... Count 3: Theft of Services. The actor, having control over the disposition of services of another, namely, the Senatorial staff of [Jane Orie], which she personally and through Janine Orie and [Jane Orie], accomplices pursuant to statute , utilized to facilitate and promote the actor’s political campaign for higher Judicial office during the election cycles in both 2003 and 2009.... Count 5: Misapplication of Entrusted Property or Property of Government or Financial Institutions. The actor applied or disposed of property valued at more than $50, namely, personally and through Janine Orie, an accomplice pursuant to statute ,J-A16007-14

- 79 - used her Superior Court office facilities and office equipment to facilitate and promote the actor’s political campaign activities in her bid for higher judicial office in both 2003 and 2009.... N.T., 2/15/2013, at 2776-79. The fourth reference to “accomplice” occurred as the tria l court reviewed the charges in the 2010 information filed ag ainst Janine Orie at

docket number CP-02-CR-0010286:

Count 2: Theft of Services. [Janine Orie], as an accomplice pursuant to the statute , having control over the disposition of the services of others, namely, certain members of the legislative staff of Senator [Jane Orie], did knowingly direct or cause to be directed those employees of the Commonwealth of Pennsylvania ... to engage in political fundraising and/or political campaign work, ... on behalf of [Orie Melvin’s] 2009 Judicial campaign, knowingly diverting said services to the benefit of another not entitled thereto.

Id. at 2785. 25 After the trial court completed its charge, the jury be gan deliberations and later that day it posed a question concerning “the definitions as to what [the trial court] read to us.” N.T., 2/15/2013, at 2817. THE COURT: What is it you want defined, Mr. [Forema n]?

25 The statute referenced in the trial court’s phrase “an accomplice pursuant to statute” is 18 Pa.C.S.A. § 306, entitled “Liability for conduct of another; complicity.” Section 306 of the Criminal Co de provides generally that a person “is guilty of an offense if it is committe d by his own conduct or by the conduct of another person for which he is le gally accountable, or both,” and defines and explains the parameters of accomp lice liability. 18 Pa.C.S.A. § 306.J-A16007-14

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FOREMAN: What we are asking is to have the definition s as

to what you read to us. We all have the counts that we wrote down, but what we want is the definitions, the one through four which you read to us. A JUROR: It was the criteria that you read under each, in

order to meet this, number one, number two, number three.

THE COURT: You want the crimes?

THE JURY: Yes. THE COURT: Here is what I’m going to do. I’ll will [ sic ]

basically reproduce what I gave you. I’ll send that up, along with the Informations.

Id. In the discussion between counsel and the trial court reg arding how to respond to the jury’s inquiry, 26 counsel for the Commonwealth for the first time asked the trial court to offer an expanded jury instruction to include a charge on accomplice liability. MR. CLAUS: Judge, I have a notice that accomplice was

obviously read by you as part of the charges. That is part of the standard charging, and I thought if that’s what — THE COURT: Well, you are little late, Mr. Claus, don ’t you

think?

MR. CLAUS: Well—

26 After a review of the Pennsylvania Rules of Crimina l Procedure, including in particular Rule 646(C)(3), the trial court reconside red its initial decision to provide the jury with the informations. N.T., 2/ 19/2013, at 2837. Instead, the trial court prepared a handout for the jury, agreeable to the parties, listing the elements and defenses for each char ge. Id. at 2841.J-A16007-14

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THE COURT: Yeah, I do. N.T., 2/15/2013, at 2820. Although the trial court initially indicated that th e request for an instruction on accomplice liability was too late, it agr eed to consider it over the holiday weekend. On the following Tuesday morni ng, the trial court

stated that it had reconsidered and would read to the jury an instruction on accomplice liability provided in writing by the Common wealth, to which counsel for Orie Melvin immediately objected 27 : THE COURT: All right. Mr. Claus would like the charg e on

accomplice given, and I don’t have a problem with that. MR. CASEY: I would object to Your Honor doing that. I think

its prejudicial to the defendant. He had the opportunity to take exceptions on Friday to the charge, and did not take an exception. And I understand that the Court — THE COURT: Mr. Casey, a song written I heard a long t ime

ago that Kenny Rogers sang, To know when to hold them, and know when to fold them. I’m going to let this go out with the jury. I’m going to give them the exact same thing you gave to me. And I’m also going to charge them on accomplice liability. MR. CASEY: I would take exception to accomplice liabili ty. THE COURT: You can take all the exception you want. MR. CASEY: Thank you.

27 Counsel objected to the giving of the charge itself, but not to any of the specific language contained therein.J-A16007-14

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N.T., 2/19/2013, at 2837-38. The trial court then i nstructed the jury as

follows: I used the term, and you will see in the document

that you get, of accomplice, and I did not define it for you. There is a way that one defendant can be proven liable for the conduct of another person or persons, and that is when the defendant is an accomplice of the person who actually commits the crime at issue. To be an accomplice, a person does not have to agree to help someone else. The person is an accomplice if he or she on his or her own acts to help the other person commit a crime. More specifically, you may find a defendant is an accomplice of another in this case if the following two elements are proven beyond a reasonable doubt. One, that the defendant had the intent of promoting or facilitating the commission of the offense; and two, that the defendant solicits, encourages, requests the other person to commit it, or aids the other person in planning or committing it. Accomplice liability must be assessed separately for each crime charged if two or more crimes are committed. The defendant before you is being charged as an accomplice for each of those crimes. He or she may not be found liable unless it is shown that each individual crime, that this defendant had the intent of promoting the specific crime and then solicited, encouraged, requested the other person to commit it, or aided the other person in planning or committing it. In other words, you must decide whether the prosecution proved beyond a reasonable doubt that this defendant was an accomplice for the first crime or the second crime, et cetera.J-A16007-14

- 83 - It is important to understand that a person is not an accomplice merely because he or she is present when a crime is committed, or knows that a crime is being committed. To be an accomplice, the defendant must specifically intend to help bring about the crime by assisting another in its commission. A person who is an accomplice will not be responsible for a crime if and only if the person[,] before the other person commits the crime[,] either stops his or her own effort to promote or facilitate the commission of a crime, and either wholly deprives his or her previous efforts in effectiveness in the commission of the crime, or gives timely warnings to law enforcement. N.T., 2/19/2013, at 2842-44. 28

28 In Janine Orie’s case only, on February 21, 2013, tw o days after the supplemental charge, the jury asked two questions regard ing accomplice liability, namely “can we get a more defined explana tion of ‘accomplice?’” and “[c]an it be applied to any of the charges?” The trial court then instructed the jury as follows:

Ladies and gentlemen of the jury, to be an accomplice, a person does not have to agree to help someone else. The person is an accomplice if he or she on his or her own acts to help the other person commit the crime knowingly. More specifically, you may find the defendant is an accomplice of another in this case if the following two elements are proven beyond a reasonable doubt. A, that the defendant had the intent of promoting o r facilitating the commission of the offense of theft of services and, two, that the defendant solicits, commands, encourages, requests the other person to commit it or aids, agrees to aid or attempts to aid the other person in planning or committing it.J-A16007-14

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Rule 647(A) provides as follows: (A) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge’s rulings on all written requests and which instructions shall be submitted to the jury in writing

. The trial judge shall charge the jury after the arguments are completed. Pa.R.Crim.P. 647(A). Rule 647(A) 29 was amended in 1985 to change prior practice, pursuant to which the trial court did not rule on prop osed jury instructions until after counsel for the parties had completed their closing arguments to the jury. As this Court recognized in Commonwealth v. Hendricks , 546 A.2d 79 (Pa. Super. 1988), appeal denied , 559 A.2d 35 (Pa. 1989),

The difference in the procedure following the 1986 amendment is that the court now is required to rule on proposed written jury instructions before closing arguments and charging the jury whereas

It is important to understand that a person is not an accomplice merely because he or she is present when a crime is committed or knows that a crime is being committed. To be an accomplice, the defendant must specifically intend to help bring about the crime by assisting another in its commission. N.T., 2/21/2013, at 2852-53.

29 On March 1, 2000 (effective July 1, 1985), Rule 111 9(A) was renumbered as Rule 647(A). See Pa.R.Crim.P. 647 Credits.J-A16007-14

- 85 - under the old procedure the court ruled on the requested jury instructions after closing arguments and the charge to jury.

Id. at 81 (emphasis in original). Noting that Rule 647 (A) effectively mirrors Rule 30 of the Federal Rules of Criminal Procedure, t his Court indicated that under both rules, the trial court “is required to rule on all proposed jury instructions prior to charging the jury and closing sum mations.” Id. We further recognized that “[t]he purpose of this rule is to require the judge to inform [counsel] in a fair way what the charge is going to be, so that they may intelligently argue the case to jury.” Id. (citing United States v.

Wander , 601 F.2d 1251, 1262 (3d Cir. 1979)); see also Commonwealth

v. Alston , 748 A.2d 677, 679 (Pa. Super.) (same), appeal denied , 795 A.2d 970 (Pa. 2000). At bottom, the rule requires the tr ial court to provide the parties with adequate notice of the instruction before closing argument, and the rule is plainly violated when the trial court pre sents a new theory of liability, or otherwise materially modifies the origi nal instructions, after closing arguments have been completed. See generally United States v.

Smith , 789 F.2d 196, 202 (3d Cir. 1986). The trial court’s decision to issue a supplemental instru ction to the jury on accomplice liability in this case after closing arg uments violated Rule 647(A). As indicated hereinabove, at no time prior t o closing arguments did

the trial court advise counsel that it intended to inst ruct the jury on the specifics of accomplice liability, and the Commonwealth di d not request aJ-A16007-14

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charge on accomplice liability or object to the absence of such a charge. It was only after closing arguments and after the jury be gan deliberating that the Commonwealth first requested that the trial court instruct the jury, through a supplemental charge, that Orie Melvin could be convicted as an accomplice. On appeal, the Commonwealth contends that the initia l charge contained an instruction on accomplice liability and that , in any event, the jury knew that Orie Melvin could be found liable as a n accomplice. Commonwealth’s Brief at 90 (“In charging the jury Ju dge Nauhaus instructed the jury that [Orie Melvin] had been charg ed as an accomplice but did not define the term.”). id. at 92 (“Accomplice liability had always been an issue in the case and the jury had been told th at they could find [Orie Melvin] guilty as an accomplice.”). We disagree. First, the trial court’s initial charge did not instruct the jury that Or ie Melvin was subject to accomplice liability. As set forth hereinabove, in summ arizing the charges in the informations filed against Orie Melvin and J anine Orie during its charge to the jury, the trial court referred to “accom plice” on four

occasions. A review of those four references reflects that on no occasion did the trial court refer to Orie Melvin as an accompli ce. To the contrary, in every such reference, the trial court referred to eithe r or both of her sisters, Janine Orie and Jane Orie, as the accomplices of Orie Me lvin. The

contention that Janine Orie and Jane Orie were the a ccomplices of OrieJ-A16007-14

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Melvin and/or that Orie Melvin may have acted throug h accomplices to commit various crimes does not, of course, make Orie Melvi n herself an accomplice. At no time did the trial court ever refer to Orie Melvin as an accomplice of her sisters (or anyone else). Second, it is simply untrue that Orie Melvin was charge d as an accomplice or that jury knew Orie Melvin could be found liable as an accomplice. In its August 14, 2012 information filed a gainst Orie Melvin, the Commonwealth did not charge her as an accomplice in any of the seven listed counts. Information, 8/14/2012, at 1-3. Simil arly, at trial the

Commonwealth never referred to Orie Melvin as an accom plice in either its opening or closing arguments to the jury, and on appea l it points us to no

evidence that it introduced at trial to establish her st atus as an accomplice. 30 Conversely, Orie Melvin does not suggest or argue tha t there was no evidence to support her conviction as an accomplice; she only argues that she was prejudiced by the timing of the cha rge.

30 In Commonwealth v. Spots , 716 A.2d 580 (Pa.), cert. denied , 526 U.S. 499 (1998), our Supreme Court held that it was not error for the trial court to instruct the jury on accomplice liability even t hough the defendant had been charged only as a principle, “as long as the de fendant is put on notice that the Commonwealth may pursue theories of li ability that link the defendant and another in the commission of crimes.” Id. at 588; see also Commonwealth v. Smith , 482 A.2d 1124, 1126 (Pa. Super. 1984) (despite being charged only as principal, defendant had sufficient notice of potential for accomplice liability theory, and trial co urt properly instructed jury on accomplice liability); Commonwealth v. McDuffie , 466 A.2d 660 (Pa. Super. 1983) “[T]he record before us shows that ap pellant should have been aware that liability might be imposed on him fo r the acts and conduct of [another].”).J-A16007-14

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For these reasons, the trial court’s supplemental charge o n accomplice liability advised the jury, for the first time , that Orie Melvin could be convicted on a new theory of criminal liabilit y (accomplice liability). Because this supplemental charge to the jury occurred afte r Orie Melvin’s closing argument, it violated Rule 647(A).

The Commonwealth also cites this Court’s decision in

Commonwealth v. Kidd , 380 A.2d 416 (Pa. Super. 1977), for the proposition that where “a jury submits on its own moti on a question to the court indicating confusion or a request for clarification, the court may properly clarify the jury’s doubt or confusion.” Id. at 419 (citing

Commonwealth v. Peterman , 244 A.2d 723 (Pa. 1968)); see also Pa.R.Crim.P. 647(C) (“After the jury has retired to consider its verdict, additional or correctional instructions may be given by the trial judge in the presence of all parties ....”). In this case, however, the trial court’s supplemental instruction cannot be categorized as an atte mpt to clarify any “doubt or confusion” expressed by the jury. To the cont rary, the jury made clear that it wanted to be informed again on the ele ments of the crimes charged, and in response the trial court provided the j ury with exactly that, namely a handout with a list of the elements of each of the crimes against the co-defendants and their corresponding defenses. At n o time did the jury request any information (definitional or otherw ise) about accomplice liability, and the definition of accomplice was not an element of any crimeJ-A16007-14

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charged in this case, as the trial court acknowledged. N.T., 2/15/2013, at 2821 (originally advising the prosecutor that the “def inition of accomplice is

not an element of the crime” and that as a result it w ould not be included in the handout to be provided to the jury). A violation of Rule 647(A), however, does not ipso facto mandate a

reversal for a new trial. In Alston , this Court reviewed its prior decision in

Hendricks before concluding that “prejudice is indeed a mandator y component” of a Rule 647(A) inquiry.

[T]he Hendricks court quoted federal case law when it stated that ‘[f]ailure of the court to comply with Rule 30 requires the granting of a new trial if “counsel's closing argument was prejudicially affected thereby.”’ [ Hendricks , 546 A.2d at 81] (quoting United States v. McCown , 711 F.2d 1441, 1452 (9 th Cir. 1983)). Further, the Hendricks court analyzed in great detail the jury instruction request s made by counsel and the closing argument made to the jury, drawing a nexus between the court's error and counsel’s specific statements. Finally, the Hendricks holding is quite clear: ‘Accordingly, we conclude that the court’s failure to inform counsel of its ruling on the requested points for charge prior to closing arguments and the jury instruction, was prejudicial to appellant's defense and warrants that a new trial be granted.’ Id. at 83. In light of all of these factors, we hold that Rule [647] relief is not warranted unless prejudice has been established.

Alston , 748 A.2d at 679. 31 Federal courts have likewise held that a “violation of Rule 30 requires reversal only when the defendant can show

31 We reject the trial court’s contention that no prejudice resulted because the jury had only been deliberating for a short time before receiving theJ-A16007-14

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actual prejudice.” United States v. Benson , 2006 WL 2520612, at *14 (E.D. Pa. 2006) (quoting United States v. Horton , 921 F.2d 540, 547 (4 th Cir. 1990)). In United States v. Gaskins , 849 F.2d 454 (9 th Cir. 1988), the federal court framed the question as “whether the district judge’s decision to give the aiding and abetting instruction d uring jury deliberations, after initially stating at the Rule 30 hearing that he would not, unfairly prevented Gaskin's counsel from arguing against an aidi ng and abetting theory to the jury.” Id. at 460. In accordance with this standard, Orie Melvin contends tha t she was prejudiced because she relied upon the absence of an accom plice liability instruction in preparing for closing argument. Orie M elvin’s Brief at 89-90. Specifically, she argues that “[h]ad the defense known t hat the trial court would reverse course and introduce the concept of accomplice liability after closing arguments concluded,” her counsel “would have dire ctly addressed the issue in the closing.” Id. at 90.

supplemental instruction. Trial Court Opinion, 9/12/ 2013, at 28 (“Any harm that occurred was minimal and not prejudicial since the jury only deliberated a short time before this [c]ourt gave t he expanded instruction of accomplice liability.”). As Hendricks makes clear, the potentially prejudicial aspect of a trial court’s decision to provide additional instructions after closing arguments is that it interferes with counse l’s ability to tailor his or her closing arguments to the trial court’s actual jur y charge. Hendricks , 546 A.2d at 81 (“It [is] the court’s failure to advise counsel of its ruling prior to closing argument, not the soundness of that rul ing, which violate[s] Rule 30 and prejudicially affect[s] counsel’s summation.”) (quoting Wright v. United States , 339 F.2d 578, 580 (9th Cir. 1964)).J-A16007-14

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Before proceeding to consider Orie Melvin’s contention t hat she suffered actual prejudice resulting from the trial court ’s clear error, we must note that Orie Melvin arguably waived this claim by f ailing to request the opportunity to offer additional argument to the jur y to address the supplemental charge after being informed that it woul d be given. Although this issue has not been discussed by any Pennsylvania appell ate court in connection with Rule 647(A), federal courts have held t hat prejudice resulting from violations of Federal Rule of Criminal Procedure 30 may in some cases be ameliorated or eliminated by permitting co unsel the opportunity for supplemental argument to the jury. See, e.g. , United

States v. Fontenot , 14 F.3d 1364, 1368 (9 th Cir. 1994) (when “a new theory is presented to the jury in a supplemental inst ruction after closing argument, the court generally should give counsel time for additional argument”) (quoting Horton , 921 F.2d at 547)); United States v. Civelli , 883 F.2d 191, 196 (2d Cir. 1989) (“[T]he principles t hat underlie Rule 30 may very well require that the district court allow further argument after an instruction has been given.”); Gaskins , 849 F.2d at 457 (new trial granted

for violation of Rule 30 after the district court deni ed defense counsel’s request to reopen closing argument); Vazquez v. Adams , 2011 WL 3420644, at *6 (C.D. Cal. June 27, 2011), report and recommendation adopted , 2011 WL 3419562 (C.D. Cal. Aug. 1, 2011) (same); but see Cruz

v. State , 963 A.2d 1184, 1192 (Maryland 2009) (“We are not persuadedJ-A16007-14

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that a supplemental closing argument would have cured t he problem created by the court’s eleventh hour insertion of this new theory of culpability.”). Because neither party raised or briefe d the waiver issue, and the novelty under Pennsylvania law of a violation of Rule 647(A), however, we will proceed to consider Orie Melvin’s claim of actua l prejudice on its

merits. On its merits, we must conclude that Orie Melvin has not established sufficient prejudice to entitle her to a new trial. While Orie Melvin contends, in the most general terms, that her counsel would have “directly addressed” accomplice liability in the closing argument, she offers no explication as to what the contents of such an argument would have includ ed or what evidence could have been referenced in support thereof. Without so stating, she is essentially arguing presumed prejudice. A s such, Orie Melvin has not provided this Court with any basis to evaluate the degree (if any) of any actual prejudice resulting from the trial court’s er ror. Moreover, based upon our review of Orie Melvin’s actua l closing argument to the jury, we are unconvinced that her coun sel would have “directly addressed” accomplice liability if the trial co urt had timely instructed the jury. In Orie Melvin’s closing argument , her counsel, inter

alia , attacked the credibility of key witnesses (including in particular Sasinoski and Pavlot), emphasized the productivity of h er judicial staff during her tenure on the Superior Court (including during 2003 and 2009),J-A16007-14

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and reviewed the testimony of the paid professionals (u nconnected to her judicial staff) who managed her political campaigns. N.T., 2/15/2013, 2705-27. Counsel began by describing Orie Melvin as a “courageous and honorable woman” and ended by insisting that she “got the work done, served her job, and ran her campaign with political pr ofessionals, and she paid for it with private funds.” Id. Importantly, the dominant theme of her closing argume nt was not that she bore no responsibility for any wrongdoing, bu t rather that no wrongdoing occurred . As such, even with respect to the three counts that alleged that she acted through accomplices (Counts 1 , 3, and 5), her counsel never directly addressed the Commonwealth’s specifi c charge that she diverted services “personally” and/or through her a ccomplices (Jane Orie and Janine Orie). Also, counsel did not directly address the charge that Orie Melvin conspired with others to divert service s because it was her

contention that no services were ever diverted. The cer tified record simply provides no basis on which to conclude that Orie Melvin suffered any prejudice as a result of the late instruction. Accordingly, in the absence of any showing of prejudice, we decline to grant Orie Melvin any relief on this issue. N. Letters of Apology and Letters of Apology Inscr ibed on Photograph in Handcuffs For her fifteenth issue on appeal, Orie Melvin raises three arguments related to the portion of her sentence requiring her to write letters ofJ-A16007-14

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apology to her judicial staff, and to the judges of th e courts of common pleas and intermediate appellate courts, and the Justice s of the Supreme Court of Pennsylvania on a photograph of her in hand cuffs. First, she contends that this portion of her sentence violates her r ights against selfincrimination under the Fifth Amendment to the Unite d States Constitution and Article I, Section 9 of the Pennsylvania Constituti on. Second, she claims that this portion of her sentence is not a lawful component of a criminal sentence under 42 Pa.C.S.A. § 9721. Third, sh e argues that the requirement that she write apology letters is not a p art of her sentence because it was not included in the written sentencing or der. We address

these contentions in turn.

1. Constitutional Violation Claims First, in Commonwealth v. Melvin , 79 A.3d 1195 (Pa. Super. 2013), this Court granted Orie Melvin’s request for a stay fr om the apology letters requirement on constitutional grounds, indicating that said stay would remain in effect “until such time as her direct appeal in this Court has been decided” and “pending final resolution by this Court o f her claims of illegality of sentence.” Id. at 1202, 1203. Apparently, she now seeks to extend the stay indefinitely, arguing that “[a]s lon g as Orie Melvin continues to assert her innocence, she cannot be required to apolog ize.” Orie Melvin’s Brief at 95. We cannot agree. In Melvin , this Court reviewed applicable decisions of our Supreme Court and determined that the requirement thatJ-A16007-14

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she write apology letters violated her right against se lf-incrimination during the pendency of her direct appeal. Id. at 1203. We are aware of no federal or Pennsylvania state law, and Orie Melvin has not c ited to any, that supports the notion that the right against self-incrimin ation extends beyond the pendency of a direct appeal. As a result, we must co nclude that Orie Melvin is not entitled to relief from the apology le tters requirement on constitutional grounds after her direct appeal has been decided. 2. Legality of Sentencing Under the Sentencing Cod e Second, Orie Melvin posits that the requirement that sh e write the apology letters is illegal because it is not a lawful com ponent of a criminal sentence under 42 Pa.C.S.A. § 9721. Whether the tria l court had the power to impose the challenged condition under the Sentencin g Code concerns the legality of sentence. Commonwealth v. Hall , 80 A.3d 1204, 1211 (Pa. 2013); Commonwealth v. Robinson , 931 A.2d 15, 21 (Pa. Super. 2007) ( en banc ). Challenges to an illegal sentence cannot be waived 32 and may

be reviewed sua sponte by this Court. Commonwealth v. Mears , 972 A.2d 1210, 1211 (Pa. Super. 2009); Commonwealth v. Merolla , 909 A.2d 337, 347 (Pa. Super. 2006).

32 In its Rule 1925(a) written opinion, the trial cour t contends that Orie Melvin cannot challenge the apology letter requiremen t on appeal because she did not file a post-sentence motion on this issue. Tr ial Court Opinion, 9/12/2013, at 31. Because challenges to the legality o f sentence, however, are non-waivable, Commonwealth v. Berry , 877 A.2d 479, 486 (Pa. Super. 2005), appeal denied , 917 A.2d 844 (Pa. 2007), no post-trial motion was necessary to preserve the issue for appeal.J-A16007-14

- 96 - The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Commonwealth v. Leverette , 911 A.2d 998, 1001–02 (Pa. Super. 2006) (citations omitted); Commonwealth v. Williams , 868 A.2d 529, 532 (Pa. Super. 2005), appeal denied , 890 A.2d 1059 (Pa. 2005); Commonwealth v. Zampier , 952 A.2d 1179, 1181 (Pa. Super. 2008). A challeng e to the legality of a sentence “is essentially a claim that the t rial court did not have jurisdiction to impose the sentence that it handed down. ... A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant’s

crimes.” Commonwealth v. Cappellini , 690 A.2d 1220, 1226 (Pa. Super. 1997) (quoting Commonwealth v. Catanch , 3581 A.2d 226, 228 (Pa. Super. 1990)). 42 Pa.C.S.A. § 9721(a) provides trial courts with seven alternative

forms of criminal sentences:

(a) General rule. --In determining the sentence to be imposed the court shall, except as provided in subsection (a.1), consider and select one or more of the following alternatives, and may impose them consecutively or concurrently: (1) An order of probation.J-A16007-14

- 97 - (2) A determination of guilt without further penalty. (3) Partial confinement. (4) Total confinement. (5) A fine. (6) County intermediate punishment. (7) State intermediate punishment. 42 Pa.C.S.A. § 9721(a). The trial court sentenced Ori e Melvin to county intermediate punishment. This Court has stated that the intent of the legislature in adopting intermediate punishment progr ams was to give trial courts another sentencing option which “would lie betwe en probation and incarceration with respect to sentencing severity; to prov ide a more appropriate form of punishment/treatment for certain types of nonviolent offenders; to make the offender more accountable to th e community; and to help reduce the county jail overcrowding problem.” Commonwealth v.

Poncala , 915 A.2d 97, 101 (Pa. Super. 2006) (citing Williams, 868 A.2d at 534), appeal denied , 932 A.2d 1287 (Pa. 2007). When imposing a county intermediate punishment, the t rial court may attach specified conditions to the sentence, as set forth i n 42 Pa.C.S.A. § 9763(b): (b) Conditions generally .—The court may attach

any of the following conditions upon the defendant as it deems necessary.J-A16007-14

- 98 - (1) To meet family responsibilities. (2) To be devoted to a specific occupation or employment. (3) To participate in a public or nonprofit community service program. (4) To undergo individual or family counseling. (5) To undergo available medical or psychiatric treatment or to enter and remain in a specified institution, when required for that purpose. (6) To attend educational or vocational training programs. (7) To attend or reside in a rehabilitative facility or other intermediate punishment program. (8) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons. (9) To not possess a firearm or other dangerous weapon unless granted written permission. (10) To make restitution of the fruits of the crime or to make reparations, in an affordable amount, for the loss or damage caused by the crime. (11) To be subject to intensive supervision while remaining within the jurisdiction of the court and to notify the court or designated person of any change in address or employment.J-A16007-14

- 99 - (12) To report as directed to the court or the designated person and to permit the designated person to visit the defendant’s home. (13) To pay a fine. (14) To participate in drug or alcohol screening and treatment programs, including outpatient and inpatient programs. (15) To do other things reasonably related to rehabilitation. (16) To remain within the premises of the defendant’s residence during the hours designated by the court. (17) To be subject to electronic monitoring. 42 Pa.C.S.A. § 9763(b). None of the conditions in section 9763(b) provides that the defendant may be compelled to write letters of apology or to re quire the defendant be photographed in handcuffs for distribution to a desig nated group of people (here, members of the Pennsylvania judiciary). We the refore we must determine whether either of the conditions imposed by the trial court fall within the “catchall” provision in subsection (15), nam ely “[t]o do other things reasonably related to rehabilitation.” Id. at § 9763(b)(15). In fashioning a sentence, we have acknowledged that tri al courts are vested with “great, but not unfettered” discretion. Commonwealth v.

Thier , 663 A.2d 225, 229 (Pa. Super.), appeal denied , 670 A.2d 643 (Pa.J-A16007-14

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1995). In Thier , for example, this Court ruled that imposing as a co ndition of probation “reasonably related to the rehabilitati on of the defendant” 33 a prohibition against engaging in a specific business for one year exceeded the trial court’s statutory authority under the Sente ncing Code. Id. More recently, our Supreme Court ruled that a trial court could not impose a condition that the defendant pay a monthly sum to the children of the victim of his crime, either for purposes of restitution o r rehabilitation. Hall , 80 A.3d at 1212-18. The scope of this catchall provision in subsection 9763(b) (15) is undefined, and thus we must apply basic principles of st atutory interpretation to ascertain and effectuate the intent ion of the legislature. The Statutory Construction Act requires penal provision s of statutes to be strictly construed, 1 Pa.C.S.A. § 1928(b)(1), and thus “such language should be interpreted in the light most favorable to the accused.” Commonwealth v. Huggins , 836 A.2d 862, 868 n.5 (Pa. 2003) (quoting

Commonwealth v. Booth , 766 A.2d 843, 846 (Pa. 2001)), cert. denied , 541 U.S. 1012 (2004); Hall , 80 A.3d at 1212. Moreover, When possible, every statute should be construed to give effect to all its provisions. Courts must read

33 42 Pa.C.S.A. § 9754(c)(13) provides that a sentencin g court may require the defendant to “satisfy any other conditions reasonabl y related to the rehabilitation of the defendant and not unduly restr ictive of his liberty or incompatible with his freedom of conscience.” 42 Pa.C.S. A. § 9754(c)(13).J-A16007-14

- 101 - and evaluate each section of a statute in the context of, and with reference to, the other sections of the statute, because there is a presumption that the legislature intended the entire statute to be operative and effective.

Poncala , 915 A.2d at 104. In so doing, we apply two closely related principles of interpretation. Noscitur a sociis (“it is known by its associates”), provides that the meaning of a word or phr ase may be determined by reference to the provisions immediately surrounding it.

B LACK’S L AW D ICTIONARY , 1087 (8 th ed. 2004); Mountain Village v. Bd. of Supervisors of Longswamp Twp. , 874 A.2d 1, 8 (Pa. 2005). Similarly, ejusdem generis (“of the same kind or class”), dictates that when a list of two or more specific descriptors is followed by a more gen eral descriptor, the otherwise wide meaning of the general descriptor m ust be restricted to the same general class of the specific descriptors that preced ed it. B LACK’S

L AW D ICTIONARY , 556 (8 th ed. 2004); Tech One Associates v. Bd. of Prop. Assessment, Appeals & Review of Allegheny County , 53 A.3d 685, 697 (Pa. 2012). The vast majority of the conditions in section 9763(b) a re not punitive in nature, although some may have ancillary punitive effects. In the broadest sense, the first three conditions all benefit th e family of the

defendant and make him or her more accountable to his or her community,

and the tenth condition benefits the victim of the crim e. The fourth, fifth, sixth, seventh, and fourteenth conditions provide for r ehabilitation throughJ-A16007-14

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consultation with professionals, and the eighth, ninth, eleventh and twelfth conditions all aim to prevent the defendant from commi tting additional crimes. Only the thirteenth, sixteenth, and seventeent h conditions are purely punitive in nature, providing the sentencing co urt with the authority to impose fines or to impose lesser alternatives to total confinement. In interpreting the permissible scope of the conditions t hat may be imposed under subsection 9763(b)(15) as “things reasonably related to rehabilitation,” we begin by concluding that the req uirement that Orie Melvin send letters of apology to both her former staf f and the members of the judiciary is a permissible condition under subsection 9 763(b)(15). Much like the condition of restitution or reparations for t he loss or damage caused by the crime, as permitted by subsection 9763(b)(10), t hese letters of apology force Orie Melvin to acknowledge the harm cause d by her crimes. This condition is also is reasonably tailored to Orie Me lvin’s rehabilitation, as it may force her to accept responsibility for the harm s he caused and, as such, is consistent with the goals of rehabilitation. See Hall , 80 A.3d at 1215 (identifying the goals of rehabilitation as “reco gnition of wrongdoing, deterrence of future criminal conduct, and encouragementof future lawabiding conduct”). We turn to the condition imposed by the trial court th at Orie Melvin write the apology letters to the members of the judici ary on photographs while posed in handcuffs. The certified record reflects that this conditionJ-A16007-14

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was not imposed to promote her rehabilitation, but ra ther merely to shame and humiliate her in the eyes of her former colleague s in the judiciary. The trial court unquestionably staged the photograph for maximum effect. At the time it was taken (immediately after sentencing), Orie Melvin was no longer in police custody and was otherwise free to go h ome to begin house arrest. She was not in restraints at that time, and th e trial court directed that she be placed in handcuffs only to take the photo graph. N.T., 5/7/2013, at 66 (“This is the picture. Put handcuffs on her.”). The trial court’s use of the handcuffs as a prop is emblematic of th e intent to humiliate Orie Melvin in the eyes of her former judi cial colleagues.

Our conclusion that the trial court’s decision to force Ori e Melvin to write apology letters on the degrading photograph wa s solely intended to shame her is further buttressed by the fact that it did not require her to do so for the apology letters to those most directly affecte d by Orie Melvin’s wrongdoing, namely the members of her judicial staff r equired to do political work and risk their jobs in the process. Inst ead, the trial court only ordered the use of the highly embarrassing photograph for the apology letters to the far broader and more dispersed group of recipients (members of the judiciary). As such, this condition was imposed sol ely for the purpose of humiliating and shaming her. In no sense can this unorthodox gimmick be construed a s legitimately intended for her rehabilitation, but rather as anoth er form of punitiveJ-A16007-14

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sanction for her crimes – not one authorized under the Sentencing Code. In this regard, we emphasize that the only catchall condit ion in section 9763(b) is its subsection (15), which authorizes “thin gs reasonably related to rehabilitation.” 42 Pa.C.S.A. § 9763(b)(15). T he statute does not authorize forms of punishment other than those specifical ly enumerated. While a defendant may conceivably (or idiosyncratically) experience some degree of shame from any of the section 9763(b) conditi ons, inflicting shame or humiliation on the defendant is not the prim ary purpose of any of the specifically defined conditions. Applying noscitur a sociis and ejusdem generis in this context, we must conclude that while a sentencin g court has

wide latitude under sub section 9763(b)(15) to design conditions to assist in efforts at rehabilitation, no condition may be imposed for the sole purpose of shaming or humiliating the defendant. Nothing in section 9763(b), or for that matter, anywhere else in the Sentencing Code, pr ovides (or even suggests) that shaming or humiliating a defendant is con sistent with either penological policies of this Commonwealth in general or the goals of rehabilitation in particular. In this regard, we note that the highest courts in at l east five sister states have reached similar conclusions, namely that shaming is not reasonably related to rehabilitation and may in many circumstances overshadow any possible rehabilitative effects that the punishment might otherwise provide. See, e.g. , State v. Schad , 206 P.3d 22, 35 (KansasJ-A16007-14

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2009); State v. Mohammad , 43 P.3d 318, 325 (Montana 2002); People v. Meyer , 680 N.E.2d 315, 318-19 (Illinois 1997); State v. Burdin , 924 S.W.2d 82, 87 (Tenn. 1996); People v. Letterlough , 655 N.E.2d 146, 148-49 (N.Y. 1995); but see United States v. Genentera , 379 F.3d 596, 607 (9 th Cir. 2004). The broad discretion under subsection 9763(b)(15) to fash ion creative conditions to county intermediate punishment to promot e efforts at rehabilitation does not extend to permit drastic depar tures from the sentencing concepts reflected in our Sentencing Code. The decision to permit shaming sentences, if determined to be appropria te, is best left to the realm of our legislature employing its usual safegu ards of legislative study and debate. At present, however, conditions on cr iminal sentences designed solely to shame and humiliate the defendant are not expressly or implicitly authorized by statute, and thus such condition s are illegal and subject to correction. Because the trial court exceeded its statutory authority in requiring Orie Melvin to write apology letters to the state’s ju dges on a photograph of herself in handcuffs, this condition of Orie Melvin’s sen tence of county intermediate punishment is hereby stricken as illegal. As ordered by the trial court, Orie Melvin will be required to write l etters of apology both to the members of her judicial staff and to every judge i n Pennsylvania, but such apology letters do not need be written on the pho tograph of OrieJ-A16007-14

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Melvin in handcuffs. This Court has the authority to correct an illegal sentence directly rather than to remand the case for re- sentencing so long as we do not disrupt the trial court’s sentencing scheme in doing so. See,

e.g. , Commonwealth v. Williams , 997 A.2d 1205, 1210 (Pa. Super. 2010); Commonwealth v. Dobbs , 682 A.2d 388, 392 (Pa. Super. 1996); Commonwealth v. Vazquez , 476 A.2d 466 (Pa. Super. 1984). Here, we

conclude that this amendment to the trial court’s senten ce does not disrupt the sentencing scheme. During sentencing, the trial cour t made clear that the apology letters were necessary to address Orie Melvi n’s refusal to accept responsibility for her crimes:

I don’t believe that [Orie Melvin] is an evil person. I’ve never believed that. I mean, you watch television, you see really, really evil people. I do n’t believe she is evil. But I do believe her arrogance i s stunning. Her arrogance is stunning. She is a person of privilege and, unfortunately, she believes she can pick and choose what rules she wishes to follow, and which are inconvenient and can be ignored. Truth be told, I honestly believe that in your heart of hearts, you don’t think you did anything wrong. Which is more of a pity. You have consistently refused to accept any responsibility for any of the harm you have done to the people who worked with you, the electoral process, to your colleagues in the Judiciary, and most of all your family. It’s real simple to say that just she violated the law. She ruined an awful lot of people. The victims of her crime [are] enormous. This was not a single error in judgment. This went on for an awfully long period of time. Two elections.J-A16007-14

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The defendant has left a trail of victims. Unbelievable. Your sister’s staff, your staff, you made them do things that you knew jeopardized their jobs and their livelihoods. You brought shame to the Judiciary. There are 500, at least 500 members of the Judiciary who have been tarnished by your behavior. N.T., 5/7/2013, at 49, 51. In our view, the trial court’s requirement that Orie Melvin write letters of apology to her judicial staff and to every judge in Pennsylvania directly

addresses the trial court’s intent to rehabilitate her b y requiring her to acknowledge her wrongdoing. Because our amendment of the sentence does not disrupt the trial court’s overall sentencing sche me, including its efforts to have Orie Melvin accept responsibility for he r crimes and their impact, remand for resentencing is unnecessary. 3. Written Sentencing Order Finally, we reject Orie Melvin’s contention that the requirement that she write apology letters is not a part of her sentence because it was not included in the written sentencing order. As explain ed hereinabove, the certified record on appeal reflects that the requireme nt of writing letters of apology was expressly set forth in a written Amended Or der of Sentence and again later in a Corrected Amended Order of Sent ence. See supra at 5. Accordingly, Commonwealth v. Foster , 324 A.2d 538 (Pa. Super.J-A16007-14

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1974), and its progeny have no application here. Id. at 539 (“Oral statements made by the judge in passing sentence, but no t incorporated in the written sentence signed by [the sentencing judge], a re not part of the judgment of sentence.”); Commonwealth v. Willis , 68 A.3d 997, 1010 (Pa. Super. 2013) (“It is well settled that, where t here is a discrepancy between the sentence as written and orally pronounced, the written sentence generally controls.”).

II. Sua Sponte Stay of Sentencing During Pendency of Appeal We turn to Orie Melvin’s appeal at 1974 WDA 2013 fro m the trial

court’s sua sponte order dated November 15, 2013 staying her criminal sentence in its entirety. For her first issue in this app eal, Orie Melvin insists that the trial court lacked jurisdiction and authority to sua sponte suspend Orie Melvin’s sentence while her direct appeal was pend ing in this Court. We agree and reverse the trial court’s November 15, 2 013 order staying

Orie Melvin’s sentence.

In Commonwealth v. Quinlan , 639 A.2d 1235 (Pa. Super. 1994), appeal dismissed , 675 A.2d 711 (Pa. 1996), this Court set forth the g eneral rules with respect to a trial court’s jurisdiction over i ts orders after an appeal has been taken.

Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if n o appeal is taken. 42 Pa.C.S.A. § 5505. Generally, once the thirty-day period is over, the trial court loses the power to alter its orders. Also, when anJ-A16007-14

- 109 - appeal is taken, the trial court has no jurisdiction to modify its sentence. Pa. R.A.P. 1701(a).

Id. at 1238 (case citations omitted); see also Commonwealth v.

Walters , 814 A.2d 253, 255 (Pa. Super. 2002), appeal denied , 831 A.2d 599 (Pa. 2003). Based upon this general rule, the trial court had no j urisdiction to enter a stay of its sentencing order. 34 In its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedu re, however, the trial court explained it acted in accordance with appell ate Rule 1701(b)(1), which provides trial courts with limited exceptions from the general rule to,

inter alia , preserve the status quo during the pendency of an appeal. The

trial court stated:

Pursuant to Pa. R.A.P. 1701(b)(1), the trial court is authorized to grant supersedeas after an appeal is taken. Pa. R.A.P. 1701(b)(1) states as follows: (b) Authority of a trial court or agency after appeal. After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:

34 The 30-day period for modifications under 42 Pa.C.S .A. § 5505 expired well before the trial court entered its November 15, 2013 stay order. While this Court has recognized an exception to section 5505’s 3 0-day period for modifications to correct clerical or other formal errors cl ear on the face of the record and which do not require an exercise of discre tion, ISN Bank v. Rajaratnam , 83 A.3d 170, 172-73 (Pa. Super. 2013) (citing Stockton v. Stockton , 698 A.2d 1334, 1337 n.3 (Pa. Super. 1997)), that exception is not at issue here.J-A16007-14

- 110 - (1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding. This [c]ourt has attempted to make it clear that the sentence imposed on May 14, 2013, was an entire sentencing scheme. (HT at 4). The conditions imposed on the sentence of intermediate punishment were all essential to the sentencing scheme. The sentencing conditions were imposed pursuant to 42 Pa.C.S.A. §9763(b)(15) and are required by the sentence. [Orie Melvin] cannot select the parts of her sentence that she wants to serve, and the parts that she doesn’t want to serve. This court imposed a sentence with multiple conditions, each of which was an essential component of the sentencing scheme. The Superior Court granted stay of the conditions imposed on house arrest requiring [Orie Melvin] to write apology letters to [Orie Melvin’s] staff and send a photograph with a short apology written thereon to the Pennsylvania judiciary. This [c]ourt’s sentence cannot be bifurcated. The sentence imposed on May 14, 2013, was an entire sentencing scheme. The conditions are integral to the sentence of house arrest. [Orie Melvin] stopped serving this Court’s sentence when the Superior Court stayed the apology requirement. Therefore, this [c]ourt stayed the entire sentence to preserve the status quo. This [c]ourt properly granted supersedeas of the entire sentence in the instant matter, pursuant to Pa.R.A.P. 1701(b)(1).J-A16007-14

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Trial Court Opinion, 3/24/2014, at 3-5. A supersedeas order “is an auxiliary process designed to sup ersede or hold in abeyance the enforcement of the judgment of an inferior tribunal.”

Goodstein v. Goodstein , 619 A.2d 703, 706 (Pa. Super. 1992) (quoting Young J. Lee, Inc. v. Com., Dept. of Revenue , 474 A.2d 266 (Pa. 1983)), appeal dismissed , 639 A.2d 1180 (Pa. 1994). Because the trial court’s November 15, 2013 order suspended its own senten cing order, rather than the “judgment of an inferior tribunal,” we question whether said order is properly designated as a “supersedeas.” We nee d not decide this question, however, since whether the November 15, 2013 order was a “supersedeas” or merely a stay to preserve the status quo, the trial court lacked any jurisdiction to enter it for at least two r easons. First, the trial court’s order did not preserve, but rather disrupted, t he status quo . At the time of its entry, Orie Melvin was serving her sentence of house arrest and complying with all of the conditions of said sentence wit h the exception of the requirement to write apology letters, which condit ion this Court stayed on November 6, 2013 during the pendency of her direct appeal. The trial

court’s order altered the status quo

. Second, and more importantly, in its November 6, 2013 opinion granting the stay of the apology letters requirement, this Court expressly rejected any contention that its stay either disrupted the trial court’sJ-A16007-14

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sentencing scheme or provided any basis for the trial co urt to revisit or modify its sentencing order at that time.

In its Response to Application for Stay, the Commonwealth requests that if this Court grants the stay, the case should be immediately remanded to the trial court for resentencing because the ‘entire sentencing scheme has been disrupted.’ We decline to do so for two reasons. First, the Commonwealth cites to no rule or other authority that would permit us to remand the case to the trial court at this time, even if we were otherwise inclined to do so. Second, and more importantly, the grant of the Application for Stay does not disrupt the trial court's sentencing scheme. Instead, it only stays a portion of the sentencing order pending resolution by this Court of constitutional and statutory arguments regarding its legality. The appropriate audience for the Commonwealth's argument is the merits panel of this Court. If it determines that the requirement that Orie Melvin write and send apology letters is illegal, and that eliminating the requirement disrupts the sentencing scheme, the case will be remanded to the trial court for resentencing (including, if appropriate, a term of incarceration). At this juncture, we do no more than postpone the performance of this part of the sentence until Orie Melvin's direct appeal is decided.

Melvin , 79 A.3d at 1204-05. On appeal, Orie Melvin contends that the trial court e ntered its sua sponte order staying the entire sentence “in defiance of this Court’s ruling on November 6, 2013.” Orie Melvin’s Brief at 25. W e agree. We note that in its appellate brief, the Commonwealth also agreed, indicating that “a panel of this Court refused to give Judge Nauhaus the opportunity to stayJ-A16007-14

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the entire sentence, explicitly rejecting the argument that the stay of the apology letters would disrupt the sentencing scheme.” Co mmonwealth’s Brief at 14. At oral argument of this appeal on Ma y 30, 2014, the Commonwealth declined to support the trial court’s con tention that it had any jurisdiction to enter the November 15, 2013 stay order. 35

III. CONCLUSION On the appeal at 844 WDA 2013, we affirm the judgme nt of sentence

after modification of the sentence as described in detail hereinabove. As ordered by the trial court, Orie Melvin will be requ ired to write letters of apology to the members of her judicial staff and to ev ery judge in Pennsylvania, but no apology letter need be written on photographs of

herself in handcuffs. On the appeal at 1974 WDA 2013, we reverse the trial court’s order staying Orie Melvin’s criminal sentence and reinstate the sentence set forth in the written sentencing order dated May 7, 2013 exce pt that the condition that the letters of apology to members of the Pennsylv ania Judiciary be written on a photograph of Orie Melvin in handcuffs is eliminated. Jurisdiction relinquished.

35 In light of our disposition of Orie Melvin’s first issu e in the appeal at 1974 WDA 2013, it is unnecessary to address her second issue on appeal.J-A16007-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/21/2014