J-S44043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : DMITRY KUPERSHMIDT, : : Appellant : No. 2261 EDA 2015

Appeal from the Order June 12, 2015 in the Court of Common Pleas of Pike County, Criminal Division, No(s): CP-52-CR-0000423-2014

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 08, 2016

Dmitry Kupershmidt (“Kupershmidt”) appeals from the Order denying his Motion for Bail Modification. We affirm.

The trial court set forth the relevant factual and procedural history as follows:

The Commonwealth filed a [C]riminal [Complaint] on [or about May 20], 2014, charging [Kupershmidt] with nine (9) counts of Forgery, [nine] (9) counts of Identity Theft, one [(1)] count of Criminal use of a Communication Facility, sixty-one (61) counts of Criminal Attempt pursuant to 18 Pa.C.S.[A.] § 4101(a)(2), sixty-one (61) counts of Criminal Attempt pursuant to 18 Pa.C.S.[A.] § 4120(a), one count of Criminal Conspiracy pursuant to 18 Pa.C.S.[A.] § 4101(a)(2), one count of Criminal Conspiracy pursuant to 18 Pa.C.S.[A.] § 4120(a), eight (8) counts of Tampering with Records or Identification, sixty-one (61) counts of Criminal Attempt pursuant to 18 Pa.C.S.[A.] § 4104(a), and one (1) count of Criminal Conspiracy pursuant to 18 Pa.C.S.[A.] § 4104(a), all relating to the election of officers for the Wild Acres Lakes Property Owners Association (“WALPOA”).

Bail was initially granted by Magisterial District Judge Alan Cooper in the amount of $40,000 on May 23, 201[4], including

J-S44043-16

the non-monetary condition that [Kupershmidt] refrain from any verbal, written and/or physical contact with [“]the alleged victim, directly [and/]or indirectly.[”] [Kupershmidt] posted the entire monetary bail in cash on the same day. [Kupershmidt’s] bail [O]rder was subsequently modified by Order dated July 23, 2014, to specify that [Kupershmidt] have no contact with Robert De[P]aolis [“DePaolis”] (a witness for the Commonwealth),[1] no contact with SOS Property Owners,[2] no contact with current or former WALPOA Board members except for participation in legal proceedings, and prohibiting [Kupershmidt] from entering the Conashaugh Lakes Community.[3]

[Kupershmidt] filed a Motion for Bail Modification (“the Motion”) on May 28, 2015, claiming financial hardship, that the non-monetary conditions prevent him from contact with his friends living in the Wild Acres Lakes Community, and that he did not present a significant flight risk due to his strong ties to the local community. Following a hearing, the [trial c]ourt denied [Kupershmidt’s] request by an Order filed on June 12, 2015.

The present appeal followed timely.

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Trial Court Opinion, 9/1/15, at 1-2 (footnotes added).4

On appeal, Kupershmidt raises the following issue for our review:

“Whether, where [Kupershmidt] has no prior record or history of witness intimidation and is currently charged with a non-violent offense, the lower court erred, in violation of [Kupershmidt’s] First Amendment rights, when it

[forbade] him [from having] contact, as a bail condition, with thousands of individuals?” Brief for Appellant at 7.

Kupershmidt contends that the no-contact provision, imposed by the trial court as a bail condition, is not permitted under the Pennsylvania Rules of Criminal Procedure, is not narrowly tailored, and is excessive. Id. at 12.

Kupershmidt asserts that “the lower court named the entire Wild Acres

[Lakes] Community as the victim in this matter.” Id. at 13. Kupershmidt

claims that the only potential victims in this case are the members of the Wild Acres Lakes Board and the individuals who had their ballots stolen, and that the bail condition forbidding him from having any contact with the thousands of individuals in the community of Wild Acres Lakes is particularly burdensome. Id. Kupershmidt argues that the “vast number of individuals with whom he is forbidden contact are not victims or witnesses.” Id.

Kupershmidt contends the bail condition prevents him from living happily in the community of Wild Acres Lakes, and that, as a result of the condition, he has had to move back to New York. Id. Kupershmidt contends that the bail

4 In its Opinion, the trial court incorrectly indicated that its Order was entered on June 12, 2014, when, in fact, it was entered on June 12, 2015.

J-S44043-16 condition infringes on his rights to freedom of speech and association, as guaranteed under the First Amendment of the United States Constitution.

Id. Kupershmidt asserts that there is no sufficiently important government interest at issue to justify the bail condition imposed. Id. at 14.5

The trial court set forth the relevant law, addressed Kupershmidt’s

issue, and determined that it lacks merit.6 See Trial Court Opinion, 9/1/15, at 4-6. We agree with the reasoning of the trial court and discern no abuse of discretion. See id. Accordingly, we affirm the trial court’s Order.

Order affirmed.

J-S44043-16

Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/8/2016 Circulated 06/09/2016 10:39 AM - IN THE COURT OF COMMON PLEAS OF PIKE COUNTY, PENNSYLVANIA CRIMINAL DIVISION ,.·,1 .,. "-"

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OPINIONSUBMITTED PURSUANT TO PENNSYLVANIA RULE OF APPELLATEPROCEDURE1925 ~-r . AND NOW, this 3( day of August, 2015, following thorough review of the record, we continue to stand by our decisionand respectfully request the Superior Court . . affirm the Order of Ju e 12, 2014.' This Court Would like to add, pursuant to Pennsylvania "--------- <; ! . Rule of Appellate Procedure 1925, the following: FACTUALAND PROCEDURAL HISTORY This appeal arises from the denial of Dipitry Kupershmidt' s ("Appellant") request for modification of bail. The Commonwealth filed a criminal information on October 27, 2014, charging Appellant with nine (9) counts of Forgery, (9) counts ofldentity Theft, one (1) count of Criminal Use of a CornmunicationFacility.jsixty-one i ·'""".':;. (61) counts of Criminal < Attempt pursuant to 18 Pa. C.S. §410l(a)(2), sixty-one (61) counts of Criminal Attempt pursuant to 18 Pa. C.S. §4120(a), one (1) count of Criminal Conspiracy pursuant to 18 Pa. ; C.S. 410l(a)(2), one (1) count of Criminal Conspiracy pursuant to 18 Pa. C.S. §4120(a), eight (8) counts of Tampering with Records-or . ' Identification, ~ sixty-one (61) counts of Criminal Attempt pursuant to 18 Pa. C.S. §4104(a), and one (1) count of Criminal Conspiracy pursuant to 18 Pa. C.S. §4104(a), all relating to the election of officers for the Wild Acres Lakes Property Owners Association ("W ALPOA"). Bail was initially granted by Magisterial District Judge Alan Cooper in the amount of $40,000.00 on May 23, 2015, including the non-monetary condition that Appellant refrain from any verbal, written and/or-physical ~ontact with the alleged victim, directly and/or indirectly. Appellant posted the entire monetary bail in cash on the same day. Appellant's bail order was subsequently modified by Order dated July 23, 2014, to specify that Appellant have no contact with Robert Depaolis (a witness for the Commonwealth), no contact with SOS Property Owners, no contact,.Yxith current or former W ALPOA Board members except for participation in legal proceedings, and prohibiting Appellant from entering the Conashaugh Lakes Community. Appellant filed a Motion for Bail Modification ("the Motion") on May 28, 2015, claiming financial hardship, that thenon-monetary conditions prevent him from contact with his friends living in the Wild Acres Lakes Community, and that he did not present a significant flight risk due to his strong ties to the local community. Following a hearing on the Motion, this Court denied Appellant's request by an Order filed on June 12, 2015. The present appeal followed timely. · ,,, _.,,,f.µp'• Appellant complains of four ( 4) issues in his Concise Statement of Matters Complained of on Appeal: 1. That this Court abused its discretion by failing to list the reasons for denying Appellant's Motion on the record or in its Order; -. ..,_~->ife-~~r--·· 2. That this Court abused its discretion in denying the Motion because there is no nexus between the no-contact bail condition and a government interest in the case;

3. That this Court abused its discretion by perpetuating a no-contact bail condition

which violates Appellant's First Amendment rights to Free Speech and Freedom of Association; and 4. That this Court abused its discretion in denying the Motion because Appellant has no prior record and the allegations against his are for non-violent offenses.

STANDARD OF REVIEW ·The trial court's order will be reversed only where it is established that the court .•. committed an error of law or abused its discretion. Id. .citing Cochran v. GAF Corp., 666 A.2d 245, 248 (Pa. 1995). "An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or where the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will." Pilon v. Bally Engineering Structures, 645 A.2d 282, 285 (PaSuper, ........ . 1994). . DISCUSSION Appellant provides four (4) issues for appeal. As they are interrelated and involve similar concepts of law, this Court will address the~_tggether. The primary issue in this case is whether the Trial Court abused its discretion in denying Appellant's Motion for Modification of Bail when the Court failed to list is reasons for doing so, there is no nexus between the non-monetary bail conditions arid a government interest, the bail conditions implicate Appellant's First Amendment Rights to Free Speech ,.1:,.,,..-.,;,?°"''' and Association, and the crimes alleged are non-violent in nature. We are confident that the discretion vested in this Court was not abused.

Rule 520(A) of the Pennsylvania Rules of Criminal Procedure states: "Bail before verdict shall be set in all cases as permitted by law:,. ,.Whenever bail is refused (emphasis added), the bail authority shall state in writing or on the record the reasons for that

determination." The term "bail authority" is defined as the district judge, magistrate, or judge authorized to set, modify, revoke or deny bail. Pa.R.Crim.P. 103. The bail authority

may impose additional conditions of release tO·";;;ure a defendant's appearance and compliance with the standard bail conditions. Pa._R.Crim.P. 52?(B).

(A) When the bail authority determines that, in addition to the conditions of the bail bond required in every case pursuant to Rule 526(A), nonmonetary conditions of release on bail are necessary; v.the categorl~s of nonmonetary conditions that the bail authority may'Impose are:

(1) reporting requirements; (2) restrictions on the defendant's travel; and/or (3) any other appropriate conditions designed to ensure the defendant's appearance and compliance with the conditions of the bail bond.

Pa.R.Crim.P. 527(A).

This Court disagrees with Appellant's allegations of abuse of discretion in deciding the Motion. First, Rule 520(A) clearly states that reasons need only be stated whenever bail is refused ( emphasis added). At no point in the case sub Judice was bail refused. The .:...:'";.

initial bail was set by the Magisterial District Judge and was thereafter modified in accordance with the Pennsylvania Rules of Criminal Procedure. The issue raised by the Appellant is not a refusal of bail, but the denial of a request for modification of a previous v-, ·S

bail order. The Rules of Criminal Procedure make no provision requiring the reasoning of the Court be placed on the record under these circumstances.

Contrary to the belief of Appellant, there is a rational basis for denying the Motion.

Appellant is accused of crimes related to tampering with the election of WALPOA Board

members. Preventing Appellant from being in a position to further influence members of that community is both appropriate and rational in ensuring his compliance with the standard conditions of bail, to wit, "neither do, nor cause to be done, nor permit to be done

on his or her behalf, any act proscribed by Section 4952 of the Crimes Code (relating to --· intimidation of witnesses or victims) or by Secti.~:m:4953 (relating to retaliation against witnesses or victims), 18 Pa.C.S. §§4952, 4953; and (5) refrain from criminal activity."

Pa.R.Crim.P. 526(A)(4)-(5).

Finally, there being no precedent concerning the constitutionality of the imposition

of non-monetary bail conditions in Pennsylvaniawe refer to the official comments of Pa.R.Crim.P. 527. Comment (5) states: "There may be cases when the relationship between the defendant and another person is such that the bail authority might require that the defendant refrain from contact with that other person." Constitutionally, there is a clear distaste regarding the imposition of', pre-conviction sanctions. Commonwealth v. ·~·

Truesdale, 296 A.2d 829, 834 (Pa. 1972). However, this Court believes the imposition of non-monetary bail conditions are warranted by the circumstances of this particular case.

As discussed, supra, preventing Appellant from being in a position to influence members

of the community where he is accused of election tampering is appropriate, rational, and '·:.-,;:t"';CI''"• permitted by the Rules of Criminal Procedure. This Court has no alternative but to ~ ,I \..S)

.. ,: .,• .... ··'°

conclude that the Magisterial District Judge had the authority to impose a similar condition on the Appellant in this case. Having neither overridden nor misapplied the applicable law in this matter, and because the decision was neither manifestly unreasonable __ ... _.,. nor the result of partiality, prejudice, bias or ill will, this Court is certain it has not abused its discretion in denying Appellant's Motion. CONCLUSION Following an extensive review ofthe record and Appellant's Concise Statement of Matters Complained of on Appeal, this Court continues to stand by its decisions in this case. As such it is respectfully requested that the Superior Court affirm our Order of June 12, 2015. BY THE COURT: --~ l-::J. [J__ HON. GREGORY H. CHELAK., J. cc: Paul J. Walker, Esq. /· Pike County District Attorney's Office Court Administration " JC