Commonwealth v. Marmon et al., Appellants.
Superior Court of Pennsylvania
June 16, 1967
210 Pa. Super. 202
Leon W. Silverman, with him Bernard L. Segal, for appellant.
Arlen Specter, District Attorney, with him Alan J. Davis, Assistant District Attorney, for Commonwealth, appellee.
OPINION BY WATKINS, J., June 16, 1967:
These are appeals from the judgment of sentence by the defendants-appellants, Ruth Marmon and Joseph Bardascino, imposed after convictions on indictments charging bribery, extortion, violation of the
The facts upon which the convictions were based were largely uncovered as a result of an investigation of the Philadelphia Magisterial system conducted by the Attorney General of Pennsylvania and may be summarized as follows:
On August 29, 1963, a Thursday, Mr. and Mrs. Walker contacted John J. Welsh, a committeeman and
The next morning Welsh awaited the arrival of the defendant Marmon outside the police court in which she was to preside as magistrate that day. He spoke to her upon her arrival pleading Walker‘s non-involvement in the numbers business. Magistrate Marmon said, “It would be $100 or $1,000 bail.” Under the arrangement, she would discharge for $100. In the alternative, she would hold Walker for court on $1000 bail, the premium for which would be the equivalent of the proposed bribe.
Welsh then told Marmоn that one Crittendon, the Walker‘s lodger, was the true culprit. Crittendon heard part of the conversation. At the hearing for Walker, Walker was discharged and Crittendon was held for a hearing the next day at the instigation of Magistrate Marmon. Crittendon was thereupon arrested and held for a hearing, Saturday, August 30, 1963.
On Saturday morning Magistrate Marmon beckoned Welsh to approach the bench and told him it was “still a $100 or $1000 bail.” Welsh reported this to the Walkers, but they only had $50. This was reported to Magistrate Marmon and she told Welsh to “talk to my clerk“, indicating the defendant Bardascino, then sitting beside her on the bench. Bardascino took Welsh into a side room. He took the $50 from Welsh for the payoff and made arrangements for payment of the $50 balance. Crittendon was discharged.
Monday was Labor Day. The Walkers could not withdraw the balance from their bank. Welsh telephoned Marmon‘s office and was informed by her regularly appointed clerk that Bardascino was not there. Bardascino called Welsh that night and arranged another appointment for noon Wednesday at Welsh‘s of-
Appellants raise numerous questions alleging many errors in the trial and charge to the jury. We will attempt to dispose of them in an orderly fashion.
First, they contend that the investigation and prosecution by the Attorney General were in violation of
This is patently incorrect.
The action of the attorney general in the instant cases was taken after a request to the Governor by several judges of Philadelphia County; he acted at the direction of the Governor and carried out his investigation with the assistance and cooperation of the District Attorney of Philadelphia County.
“On or about August 30, 1963, in the County of Philadelphia, the accused committed the following acts: they did conspire together to commit extortion and to violate the Magistrates Act of 1937 and did commit extortion and did violate the Magistrates Act of 1937 by extorting, demanding, taking and accepting the sum of $100.00 from an agent or intermediary of Andrew Crittendon, a defendant in case of Commonwealth v. Andrew Crittendon, all of which was against the peace and dignity of the Commonwealth of Pennsylvania and contrary to the pertinent Acts of Assembly. I ask that a warrant of arrest or a summons be issued and that the accused be required to answer the charges I have made, and I swear to or affirm the within complaint upon my knowledge, information and belief, and sign it on July 14, 1965 before Honorable JOSEPH SLOANE whose office is that of President Judge, Common Pleas No. 7.”
It is enough if the information states a criminal offense committed by defendant, its general nature, and its time and place. The information must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. Where the information sets forth some detail of the circumstances, where there is reason for crediting the source of the information which is disclosed, and when a magistrate has found probable cause, we should not invalidate warrants by interpreting the affidavits in a hyper-techni-
Appellant Bardascino contends that under the circumstances there was so much pretrial confusion that he did not have a reasonable opportunity to challenge the array of the grand jury. From the record it appears there were two arrests and three separate presentments to the grand jury and three sets of indictments. Warrants for the arrest of appellants were issued by Judge SLOANE on July 14, 1965 and the appellants were arrested on July 15, 1965, were preliminarily arraigned before the same Judge on July 21, 1965 and bills presented to the grand jury on August 12, 1965 and the appellants were indicted that same day.
At this time, because of petitions for writs of habeas corpus, motion to quash warrants, stay orders and phone calls, confusion reigned supreme.
The Attorney General, in order to protect the record from any future contingencies, on August 20, 1965, filed a new complaint against both appellants before Judge CARROLL of the court below who, the same day, issued warrants for their arrest. Appellants were again arrested on August 23, 1965, a preliminary hearing was set for August 27, 1965 at which time both waived the hearing and on August 30, 1965, with the statute of limitations about to run on several of the charges, they were again indicted. These same bills were again presented to the grand jury and another set of indictments had on October 28, 1965.
Appellant Bardascino, by his attorney, notified the Attorney General by letter on August 27, 1965 that he intended to challenge the array, but took no further
Appellant relies on the case of Com. v. Dessus, 423 Pa. 177, 224 A. 2d 188 (1966), in which the defendant was held for action by the grand jury by a magistrate and indicted the same day. The Supreme Court discussed the new Rule 203 of the Rules of Criminal Procedure, and the question of the violation or circumvention of defendant‘s constitutional rights because of a speedy indictment not giving the defendant a reasonable opportunity to challenge the array at page 187 as follows:
“Rule 203. Objections to Grand Jury and Grand Jurors.
“Either the attorney for the Commonwеalth or a defendant who has been held to answer may challenge the array of jurors or an individual grand juror. A challenge to the array may be made only on the ground that the grand jury was not selected, drawn, or summoned substantially in accordance with law. An individual grand juror may be challenged on the ground that he is not legally qualified or that a state of mind exists on his part which may prevent him from acting impartially. All challenges must be made before the jurors are sworn unless opportunity did not exist prior thereto; in any event a challenge must be made before the bill of indictment is submitted to the grand jury. All challenges shall be heard and determined by the court. If a challenge to the array is sustained, the grand jury shall be discharged, if a challenge to an individual grand juror is sustained, he shall be retired or discharged and the court may replace him from the persons drawn or selected for grand jury service.”
The court held in that case, “under all the circumstances, we shall interpret the Rule liberally, in order to preserve if promptly exercised, defendant-appellee‘s
The contention of appellant Bardascino, that the charge of the court regarding alibi was error, is without merit. When read as a whole, the charge fairly placed the burden of proof on the Commonwealth and explained the possibility that alibi evidence, either alone or together with other evidence, may be sufficient to create a reasonable doubt as set forth in Com. v. Bonomo, 396 Pa. 222, 151 A. 2d 441 (1959).
The appellants contend as error the court‘s charge as to reputation evidence being limited as substantive evidence to the crimes charged of conspiracy, bribery and extortion and excluding it from their consideration of the charged violation of the
This trial presented a very novel and difficult situation, in that crimes were charged which require criminal intent for conviction and also the violation of the
Appellant Marmon contends that the charge of the court regarding the crime of bribery was fundamental error. With this we must agree. The court charged as follows: “You may convict the defendants upon the uncorroborated testimony of an accomplice provided his testimony satisfies you of the guilt of the defendants bеyond a reasonable doubt.” No attempt was made to eliminate the bribery charge from this instruction even though the
“Bribery; witness testifying to be exempt from prosecution; testimony of accomplice....
“Provided, that the accused shall not be convicted on the testimony of an accomplice, unless the same be corroborated by other evidence, or the circumstances of the case.”
The crime of bribery is one offense.
The court below, in its opinion, distinguishes the briber from the one bribed since one is guilty of а misdemeanor and the other a felony, and that, therefore, one could not be the accomplice of the other. This is error. There was only one offense of bribery with different punishments but both punishments are imposed for violation of the same act and for purposes of immunity under
Com. v. Hopkins, 165 Pa. Superior Ct. 561, 69 A. 2d 428 (1949), holds that the test of determining if one is an accomplice of the accused on trial is whether or not he could be indicted and punished for the crime with which the aсcused is charged. Certainly the giver of the bribe may be indicted and convicted under the
We come now to the final question and that is whether the trial court erred in admitting the testimony of assistаnt district attorneys, and the records of ten unrelated cases which came before appellant Marmon, as rebuttal. Appellant Marmon testified that in the cases of Walker and Crittendon, she discharged
The Commonwealth was then permitted to introduce testimony on these ten proceedings, all except one of which had to do with numbers violations, out of several hundred cases she had heard, to show that she did not rely on the advice of the assistant district attorneys as she had indicated, “almost always“.
Once admitted, the Commonwealth then proceeded to read into the record the prosecutor‘s side of the case. Upon request of defense counsel the defense testimony, the disposition made by appellant Marmon and the recommendations of the assistant district attorney were also read into the record. The Court also charged on the duties of a magistrate in such cases.
The door was thrown open to numerous inferences, innuendoes and collateral decisions to be made by the jury. They could not help but try to determine whether she acted properly in these unrelated cases and be influenced by their decision in them. The original purpose for the testimony becomes hopelessly lost in the web of events having nothing to do with the case at issue. So much so, that no admonishment by the court, or attempt to limit the purpose for the testimony can wipe it cleаn in the mind of a juror. We cannot agree, under all the circumstances of this case, with the contention of the Commonwealth that “even if error (the introduction of the cases) it was not prejudicial in the context of the trial.” How do you define
Judgment of sentence reversed and a new trial is granted both appellants.
DISSENTING OPINION BY ERVIN, P. J.:
The factual background of this case is adequately set forth in the majority opinion and need not be repeated in this dissenting opinion. The majority opinion satisfactorily disposes of all the points raised by the appellants in these appeals with the exception of two points and, because of these two, reverses the judgments of sentence and grants a new trial to the appellants. I would also reject these two contentions and affirm the judgments of sentence.
Appellants argue that the trial judge‘s following instruction to the jury was error: “You may convict the defendants upon the uncorroborated testimony of an accomplice provided his testimony satisfies you of the guilt of the defendants beyond a reasonable doubt. However, you must bear in mind that the testimony of an accomplice comes from a corrupt and often unreliable source. You must, therefore, carefully, critically and closely scrutinize any such testimony. The reason that such testimony is considered as emanating from a corrupt source is that it comes from a person or persons who admittedly are involved in, or a part of, a serious criminal offense and it must, therefore, bе received with some suspicion. If, on the other hand,
It is argued that the statutory law of Pennsylvania prohibits the conviction of any person charged with bribery upon the uncorroborated testimony of an accomplice and that it was fundamental error for the trial judge not to have thus instructed the jury. The argument is presented notwithstanding the fact that this position was at no time asserted during the course of the trial nor was the failure to so instruct on this basis expressly excepted to. The appellants’ written requests for instructions made no such request.
The issue raised by appellants is based upon the
There is a serious question as to whether The Penal Code,
As to the bribery charge, I am also firmly convinced that Welsh was not an accomplice. Judge (later Justice) ARNOLD, in the case of Com. v. Hopkins, supra, very clearly gave the test for determining just what an accomplice is. Commencing at page 564 of that opinion he said: “We cannot sustain appellant‘s contention that each of the persons from whom the money was extorted was an accomplice of the defendant, who was entitled to a charge (requested and refused) on the quality of accomplice testimony.
“By the great weight of authority the test of determining if one is an accomplice of the accused on trial is whether or not he could be indicted and punished for the crime with which the accused is charged. One who could not be convicted of the crime with which the accused is charged is not an accomplice, regardless of how culpable his conduct may have been. See 22 C.J.S., Criminal Law, § 786, page 1334; 56 A.L.R. 407, 412; 111 A.L.R. 1393. In Underhill on Criminal Evidence (4th ed.) § 150, page 222, the rulе is thus stated: ‘One test as to whether or not a person is an accomplice is held to be whether there is sufficient evidence to indict for the crime upon which the accused is standing trial‘; citing cases from Arkansas, California, Delaware, Georgia, Idaho, Illinois, Iowa, Kentucky, Minnesota, Montana, New Mexico, Oklahoma, Oregon, Tennessee and Texas. To these must be added Utah (State v. Gleason, 86 Utah 26, 40 Pac. 2d 222) and Ohio (State v. Ruskin, 117 Ohio St. 426, 159 N.E. 568). We followed the weight of authority in Commonwealth v. Billingsley, 160 Pa. Superior Ct. 140, 50 A. 2d 703, aff. 357 Pa. 378, where the defendant was charged with attempted subornation of perjury of one House, who had testified falsely at the defendant‘s in-
Welsh was the giver of the bribe and the appellants were the receivers of the bribe. The charge of bribery against these appellants is based upon the
“The member of assembly, or officer, judge, juror, justice, referee, or arbitrator, who shall accept or receive, or agree to accept or receive such bribe, is guilty of receiving a bribe, a felony, and on conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment by separate or solitary confinement at labor not exceeding five (5) years, оr both.”
Appellant Marmon could not have been proceeded against for common law bribery: Com. v. Bausewine, 354 Pa. 35, 37, 46 A. 2d 491 (1946). The appellants were charged with receiving a bribe, a felony. Welsh, at best, could have been found to have offered a bribe, a misdemeanor. Welsh could not have been convicted of the crime of receiving a bribe. Whether Welsh is an accomplice does not depend upon the degree of his culpability in this matter. He certainly could not be indicted and punished for the crime with which the appellants are charged and therefore is not an accomplice.
The appellants also argue that the trial judge erred in permitting certain rebuttal testimony. Appellant Marmon had discharged Walker and had then instructed the police officers to arrest Crittenden. At the time she ordered the arrest of Crittenden, she had all the evidence against Crittenden before her, because it was presented on that Friday in the case against Walker. Yet the very next day, she discharged Crittenden on the same evidence.
That sequence of events led to an extremely damaging inference that appellant Marmon had some ulterior motive in causing Crittenden to be arrested on Friday (knowing all the evidence against him) and then discharging him the next day. It provided support for the Commonwealth‘s position that appellant Marmon‘s inconsistent action was motivated by the intervening bribe. Appellant Marmon tried to avoid the fatal in-
Thus, a key question in the entire case was Mrs. Marmon‘s reason for instructing the police officers to hold Crittenden and then later discharging him. The Commonwealth contended her reason was to enable her to extort a bribe of $100. Appellant Marmon tried to explain it away by saying “I followed with whatever they had asked me to do“, referring to advice from assistant district attorneys.
In the factual context of this case, it became crucial to show that appellant Marmon frequently disagreed with assistant district attorneys. That fact would show that her instruction to the police to hold Crittenden could not be explained in terms of following the assistant district attorneys’ recommendations, but her action was motivated by the bribe.
To prove that appellant Marmon did not follow “with whatever they [assistant district attorneys] had asked me to do,” the district attorney properly introduced into evidence numerous cases where appellant Marmon had acted directly contrary to what the аssistant district attorneys had requested. The Commonwealth did not seek to introduce into evidence the evi-
The Commonwealth also properly offered rebuttal testimony to contradict appellant Marmon‘s assertion that she never held anyone for more than $300 bail for court on a numbers case. This testimony was offered by appellant Marmon to show that Welsh could not possibly havе any basis for saying that she had demanded $100 or $1,000 bail for court. On direct examination appellant Marmon‘s counsel asked the question and she answered as follows: “Q. Did you on that morning say to Mr. Welsh, ‘It‘s a hundred dollars or a thousand dollars bail for court‘? A. No, sir. Now, I would like to tell you something. This was a numbers case and I believe all the while I was on the bench no numbers case was ever held over $300 bail for court. So I don‘t know where he would ever get a figure like $1,000 bail. Number cases to me were never, never really that important that you would hold them in high bail.” In rebuttal, the Commonwealth proved that there were numerous cases where appellant Marmon had held defеndants in numbers cases for more than $300 bail for court.
The rebuttal testimony was properly admitted in evidence to impeach appellant Marmon‘s credibility on an important and material issue in this case. See Flowers v. Green, 420 Pa. 481, 218 A. 2d 219; Com. v. Turner, 371 Pa. 417, 88 A. 2d 915 (1952); Com. v. Truitt, 369 Pa. 72, 85 A. 2d 425 (1951); Com. v. Duca, 312 Pa. 101, 165 A. 825 (1933); Blauvelt v. Delaware, L. & W. R. Co., 206 Pa. 141, 55 A. 857 (1903); Com. v. Weber, 167 Pa. 153, 31 A. 481 (1895); Wright v. Cumpsty, 41 Pa. 102 (1861); Com. v. Kettering, 180 Pa. Superior Ct. 247, 119 A. 2d 580 (1956); Com. v. Graham,
On the question of rebuttal evidence, the court below carefully instructed the jury on its limited purpose as follows: “Members of the jury, I am quite certain you realize that this testimony is not for the purpose of establishing some wrongful act that is not involved in this case, it is for the purpose of contradicting a portion of her testimony, and on that basis if you believe it does then it does go to her credibility and the weight that you are going to attach to her testimony.”
The evidence was sufficient to support the verdicts. I would affirm the judgments of sentence entered below.
WRIGHT and SPAULDING, JJ., join in this dissenting opinion.