*2 WATKINS, SPAETH, JJ. and Before HESTER WATKINS, Judge: Pleas, to us from the Court Common
This comes appeal Division, defendant-appellant’s involves the Criminal common law crimes his convictions of the appeal malfeasance, in office. De- misfeasance, and nonfeasance extortion and the conspiracy, charged fendant had been acquitted conspiracy common law crimes. He was tried first in the Defendant charges. extortion appealed and then Philadelphia County Municipal Court novo trial before the Court his conviction for a de He was tried before County. of Philadelphia Common Pleas on March of the common law crimes and convicted jury 28, 1977, defendant was sentenced to a September On $9,000 fined (2) (7) years term in to seven prison of two his conviction appeals the costs of He now plus prosecution. of the common law crimes. that the defendant it was established trial
At defendant’s of Philadelphia Council City was an elected member one It was also established that leader. majority and its in obtaining who was interested was an architect John Betts buildings Philadelphia work design contracts for was an Joseph Daly At this time one Airport. International Democratic City Treasurer assistant to the Party, was a member of the Democratic Committee. Beilis party Philadelphia. the majority political lunch Beilis at the Betts was invited to May, had told Betts that he Philadelphia. Beilis Locust Club from downtown” which “to meet some people wanted Betts people was to meet some to mean that he Betts understood meeting This from the Democratic Committee. Beilis also testimony. Betts’ according Beilis initiated time Beilis knew lunch. At this to the same Daly invited and had Party, in the Democratic position knew of his Daly, *3 do with anybody to “long anything known him before he had meeting Daly At the time of the lunch at Committee”. City of an planning was involved “was aware that Betts through . . . Airport at the International airport structure . . the grapevine.” . left the table. At that meeting the lunch Beilis
During work discussing Betts’ at the began and Betts point Daly budget for the discussed the amount airport. They The contract, fee, proceeding. how the work was Betts’ it $180,000. then told Betts that Daly fee was not to exceed of their fee to the give for to 5% architects “customary immediately agreed Betts Democratic Committee”. City were discussed at that of the pay-off do this. No details table, no further discussion time, Beilis returned that time. place of the contracts took contract for design In Betts received a June Beilis called Betts and $5,000. or about June On money some at this time”. give Betts to “them requested $4,000. “us” On June give Beilis told Betts that he should were he 29, 1971, Country went to the Philmont Club Betts $4,000 in Beilis containing cash. gave envelope Beilis an pocket. into his October placed envelope for an City Betts received the final contract with the addi- $175,000. tional fee Beilis Betts and an phoned requested
On July $5,000 on 1972 Betts July additional “contribution” $5,000 at the gave containing to Beilis Stouffer envelope Philadelphia bringing Restaurant in downtown the total $9,000. amount cash given pay- to Beilis Betts to The $9,000 ments of made to Beilis amounted 5% $180,000 fee. engineering design contract April
On Beilis and Betts had a conversation which that Betts been informed during Betts told Beilis had there was no record of Betts’ a donation to the giving Beilis told Betts Democratic Committee. City had It was also money “spread party”. been around established that Council had the “final approved capital improve- as to what was to be say” ments at airport. first on is that his convic- argument appeal
Defendant’s tions of the common law crimes should be reversed because specific statutory of the existence of crimes which deal with As au- charged. conduct of which the defendant for this the defendant cites former 18 thority proposition provides P.S. which that: en- provided duty “In all cases where a or remedy joined, directed to be done any thing act of the direction of said act provisions any assembly, inflicted, shall be and no shall be strictly pursued; penalty *4 or done of the com- anything agreeably provisions cases, be necessary mon law in such further than shall 1 such act into effect.” carrying Thus, actions amount to violations of if the defendant’s his convictions of the common criminal enactments statutory misfeasance, malfeasance, and nonfeasance charges law of in office cannot be sustained. repealed by Act of December
1. This section was Pa.C.S.A. § of a positive breach is “either the in office Misfeasance official of a a by public performance or the statutory duty motive”. corrupt or improper with an act discretionary (1942). Pa. Peoples, as the “breach has also been defined in office Malfeasance of a discretion- performance or the statutory duty positive motive.” McNair’s corrupt or improper an act with ary Thus, it is clear that (1936). Petition, Pa. 187 A. in office and misfeasance office the terms malfeasance or at best two same conduct to describe the are often used Common- the same offense. committing modes of different We Dolny, wealth therefore, interchangeably. the terms will, use we held that a defend- supra, Dolny, and nonfeasance be convicted of malfeasance ant may and conspiracy acquitted bribery he is although office the same proscribe does not bribery crime of because the misfeasance, malfea- law offenses conduct as the common that the reason office. We held sance and nonfeasance bribery may only a conviction for this was because the offender establishes that evidence sustained where the for his payment accept monetary or accepted agreed of which defendant offenses law action. The common or “improper the actor have require only convicted the instant is analysis applicable This corrupt motive”. of extortion rather charge statutory case which involved a (former 18 P.S. charge of extortion than because the bribery required of bribery, case of the crime 4318), as is the a “fee or reward” receive, take, to receive agree the actor or was not established which “fee or reward” for his conduct that the distinction Thus, outset appear law. it would at the extortion, on bribery between the crimes misfeasance, crimes of hand, law the one and the common hand, other office, on the nonfeasance in malfeasance and as an offenses) require, (statutory the fact that the former re- improperly offense, the defendant element of the other monetary payment some ceived or to receive agreed in the latter while in return for his conduct “reward” *5 is that the actor crimes) required law all that is be (common motive. “improper” “corrupt” motivated Bellis, However, the case of reversed the Supreme Court malfeasance, mis conviction of the offenses of defendant’s office, feasance, former 18 citing and nonfeasance in P.S. code, Code, (of the Penal Act of former 1104). case the defend June P.L. In that Sec. law ant was and the common crimes. bribery convicted of The reversed the convictions on common Supreme Court The bribery but conviction. Com law crimes affirmed from the distinguish monwealth to that case in attempts case that in case the defendant by pointing stant out our (which not was found of extortion we have found to guilty to analogous bribery be the crime of for our here as purposes above) discussed law crimes. guilty common This, argues, the Commonwealth indicates that no strongly remedy did in fact exist which was co-extensive statutory A analysis with the common law crimes. close that however, advanced opinion, reveals no such rationale there The held that since a statuto merely in. Court that case penalty existed for defendant’s misconduct Section ry the common law offenses. The precluded conviction for Court stated its opinion: guilty contention is he is not
“Appellant’s fourth malfeasance on mis- grounds his aforementioned (the could punished conduct be under Section only statute) and not under the common law. We bribery with this agree contention.” The Court then on to cite discussed that went Section application section’s to the case Peo of malfea ples, supra, reversed defendant’s conviction sance, misfeasance, doing, nonfeasance in office. In so (Section 4667) statutory the court stated “A penalty that: misconduct; therefore, pursuant exists for appellant’s for his miscon punished cannot Section (malfeasance).” in a of the common law duct based violation We Bellis, interpret holding this supra. Commonwealth v. convicted of defendant could have been mean if the offense, with the facts adduced consistent the case, he not also be then could the trial during *6 Whether not he common law offenses. convicted of the does not offenses was in fact convicted the at trial instant case the facts adduced matter. In the of defendant jury enable a to convict the were sufficient to did in reveals that the defendant extortion. The evidence $9,000 payments in improper receive cash fact personally Democratic that no record the The fact Betts. exists, and that money received this having Committee soon trip wife a to after Europe his on defendant took $4,000 coupled on July first receiving payment the defendant, himself who re with the it was the fact that evidence to certainly the was sufficient ceived payment fact, had, improp find defendant the to permit jury Therefore, a statutory because erly money. received the according law offense and not under the common Bellis, For that reason holding supra. malfeasance, we reverse misfea defendant’s conviction in office.2 sance and nonfeasance reversed; discharged. Judgments of sentence defendant SPAETH, J., concurring opinion. files a SPAETH, concurring: Judge, my but as agree discharged,
I must appellant separate the I this majority’s reasons differ from submit opinion. Municipal conviction Court
Following appellant’s
appeal
misbehavior in office and his
to the lower court for a
novo,
trial de
filed
information con-
the Commonwealth
first
sisting
charged
two counts. The
count
$4,000
with the
with misbehavior in office
connection
29, 1971;
Betts
payment
from John
on June
the
he received
I,
(18
The Act
December
No.
Section
Pa.C.S.A.
107(b),
1973),
June
abolished
law crimes
effective
common
providing
it is a
crime
that: “No conduct constitutes
crime unless
under this
or another statute of the Commonwealth.”
title
in connection with
the same offense
charged
count
second
Betts on July
received from
$5,000
payment
the
bill of
filed a
subsequently
1972. The Commonwealth
charged
that he was
informing appellant
particulars
1)
“[djuties imposed
because he
breached
these offenses
Rule
Home
Philadelphia
under the
officials
upon public
seq.,”
1.1-100 et
Charter,
Pennsylvania
Title
Code §
10.10-100; 2)
duties set forth in section
those
specifically
he,
John Betts that
conveyed
impression
“deliberately
of a contract
defendant,
awarding
influence the
could
International Terminal at
regarding
3)
gave
impression
Airport”;
“deliberately
International
Betts,
he,
making
political
Betts that
John
to John
occasions”;
Betts
4) “gave
John
two
contribution on
defendant’s
acting
as
Joseph Daly
reason
believe
political
where
the Locust Club
meeting
at a
agent
*7
and John
Joseph Daly
between
contributions were discussed
1
Betts.”
of the Common-
points
the salient
The
outlines
majority
in the
most favor-
proof
light
wealth’s
that
proof. Viewing
Commonwealth,
the Commonwealth
giving
and
able to the
therefrom,
reasonably arising
inferences
the benefit of all
27,
Arizini,
v.
277
1. The Commonwealth
guilty
the acts thus set forth
in office because of
was
in the bill of
of misbehavior
particulars,
other acts. Common
and not because of
Simione,
473,
(1972);
764
Commonwealth
Commonwealth
447 Pa.
291 A.2d
wealth v.
v.
151,
(1978);
Russell,
Pa.Super.
261
[(1942)]; McNair’s
Evans,
[(1936)].”
supra,
of a
performance
120, 907, In [(1940)]. 14 A.2d its sense misbe mere errors in encompass judg havior in office does not discretion, but an ment or from sound official departures duties which the exer perform require must those official interest of the Common cise of a sound discretion to the willful arbitrarily, wealth and not and with a capriciously, Brownmiller, supra and .... corrupt design. Com. The willful need not arise from corrupt per and motive Evans, sonal supra, benefit.” Commonwealth 190 Pa. 225-26, 154 Accord, Super, (1959). at 82 Common- Schwartz, wealth 210 Pa.Super. mem.,
(1967), (divid aff’d (1968) denied, court), ed cert. U.S. S.Ct. (1970). L.Ed.2d 541 argues
The Commonwealth that appellant performed a act with an discretionary improper corrupt motive when he “used his as a position powerful official” to cause Betts “to whether or question not contract with city] [his on might depend payment of the sums [requested appel- Commonwealth Brief at 11-12. This argument, lant].” however, overlooks the distinction set forth in Common- Blatstein, wealth v. 317-319, between “misconduct of one while in office” and misconduct “in the exercise the duties of office.” [] Blatstein,
In the coordinator of a committee established by the City of expedite planning and con- struction of a new stadium sports was convicted of bribery misbehavior office. This court affirmed the bribery conviction, but reversed the conviction of misbehavior in office because the Commonwealth had failed to prove more than the defendant’s solicitation a bribe: office,
In order to show misconduct in it is not sufficient to show that Blatstein solicited or even accepted a bribe. The Commonwealth must demonstrate that Blatstein fol- lowed the sought course conduct which the bribe secure. As Professor Perkins has said: officer,
“The corrupt receipt of a bribe for exam- office, is ple, criminal misconduct one while but such a in the exercise recipient clearly acting not office, the duties of his nor is this act wrongful under office, color of his has been bribery always recog- fact, nized as if an officer separate offense. corruptly corruptly receives a bribe and then does what do, he has been bribed to he is of both guilty bribery added.) in office.” R. Per- (Emphasis misconduct kins, Criminal Law 482 of solicitation of bribe not proof necessarily
Since does office, entail of misconduct in *9 Sherry his offer to upon acted that Blatstein had to show so, which the to do failing the committee. advising trial, it to failed at admitted virtually Commonwealth in office. of misconduct guilty was that Blatstein prove of this proof its failed in having The Commonwealth erred when element, lower court additional necessary, on of judgment in arrest motion dismissed appellant’s it malfeasance, misfeasance charging the indictment nonfeasance in office. 317-318, A.2d at 515.
231 Pa.
Super,
While the Common-
case.
present
controls the
Blatstein
prove
to
been sufficient
evidence
have
may
wealth’s
accepted
Betts or
money
either extorted
appellant
appel-
evidence that
bribe,2
no
presented
the Commonwealth
councilman, or
his
as
position
act in
any
lant committed
he
with the
office,
payments
in connection
under color of
was
Indeed,
there was
what evidence
Betts.3
received from
appel-
he never asked
testified that
to
Betts
contrary.
his airport
to
regard
his behalf with
on
lant to intervene
intervene;
contract;
volunteered
never
appellant
intervene; and that
did not
appellant
knowledge
that to his
Aviation
with
exclusively
representatives
he dealt
of Com-
Department
Philadelphia’s
Division of the
is,
course, unnecessary
evidence was
whether the
to decide
2.
It
acquitted
appellant
since
these crimes
sufficient to establish
charged
bribery.
Municipal
and was not
of extortion
Court
office is defined as
An act under color of
act,
right
one who has no
pretense
made
official
to do an
“a
authority
pretext or cover for the
right;
as a
act;
of official
such
the use
wrongfully
corrupt
done
an act
or vicious
commission of some
by
authority
pretended
his office.”
an officer under
Bruno,
denied,
refused,
U.S.
Super,
xxxiii
cert.
allocatur
(1965), quoting
As contract indirectly any or directly interested or be for paid kind to be any of of property for the purchase directly he be interested nor shall City Treasury, from the any erection of for the any contract indirectly paid to be services structure, supplying any or for the nor shall he solicit or City Treasury, for out of the stating, assume, explicitly that in order Many without of our cases in office because of a of misbehavior to be convicted for an official breach of clear, duty, It is' positive statutory must be wilful. the breach however, negligent See breach is insufficient. of a 2), (No. Hubbs (1934); Brown, 175A. 748 (1939); Perkins, Law, 3(D)-Misconduct in Office Ch. R. Criminal position to any any person appointment recommend the per- service, be interfere nor shall in the civil Philadelphia members the duties formance of department, in any Police, employees other any or of City. board or commission Commonwealth, received when According in Betts’s interest Betts, $9,000 acquired from he total of this violation contract with nice several argument presents This provision. 10-100’s of section scope as to the problems
construction present However, if we assume even prohibitions.5 he when provision violation of this purposes appellant’s Betts, appellant’s accepted payments requested still improper. in office was of misbehavior conviction *11 (1963)6 notes, provides: 5104 18 P.S. majority As the § enjoined, or duty remedy provided where a In all cases provisions penal to be done the thing by directed any said act shall assembly, act of the directions any inflicted, or shall be no penalty and strictly pursued; of the common the provisions done agreeably anything for cases, necessary shall be further than law in such act into effect. such carrying the indictment of a prohibits section 5104
It is settled that
has
legislature
where the
for a common law offense
person
offense.
criminal
a
alleged
made the
misconduct
486,
(1979)
A.2d 397
Bellis,
399
v.
484 Pa.
Commonwealth
576,
345 Pa.
Peoples,
v.
Commonwealth
opinion);
(plurality
Bruno,
Com
supra;
v.
(1942);
28
Commonwealth
80,
(1955). See
Commonwealth
Brown,
v.
cf.
Commonwealth
(1946);
Brown,
v.
Pa.Super.
Commonwealth
(1943);
Bruno, supra. reached
For these reasons I concur in the result majority.8 Home Rule Charter 10-109 of the
7. Under section
$300,
may
imprisoned 90
person
days,
be fined
who violates section 10-100
Thus,
10-100 is a
and removed from office.
section
Schenk,
generally
Tp.
provision,
see
Lower Merion
was authorized
because its enactment
*12
1949,
17,
21,
665,
April
53 P.S. 13131
§
the Act of
P.L.
under
and article
Constitution,
IX,
Pennsylvania
the
it has
2 of the
section
Assembly.
by
legislation passed
Com-
the
force of criminal
monwealth v.
General
Cabell,
(1962).
Pa.Super.
Filed
18, 1980.
Appeal
Allowance of
Denied Dec.
Petition for
holding
I
Bellis to hold no
not believe this to
of Bellis.
read
be
e.,
concurring opinion,
when the
in this
i.
more than what is set forth
nothing
more than the breach
Commonwealth’s
establishes
statute,
may
penal
of a common law
not be convicted
the accused
Where, however,
proscribes
offense that
the same conduct.
proscribes
from the conduct
conduct different
common law offense
proscribed
evidence,
statute,
may, upon
sufficient
the accused
See
or both offenses.
Common
be convicted of either
(1975).
Dolny,
Pa.Super.