Opinion by
Samuel Neff (Neff), James S. Macry (Macry), Robert Yoho (Yoho), and Leon Kaleta (Kaleta), appellants, were indicted by the grand jury of Beaver County on the charges of extortion and conspiracy to extort. The gravamen of these charges was that all four appellants, by reason of their respective official positions, had extorted money from certain contractors who leased equipment to the Pennsylvania Department of Highways (Highway Department) in Beaver County. All four appellants were convicted on both charges after a trial before Judge Morgan H. Sohn and a jury in the Court of Quarter Sessions of Beaver County.
After trial, each of the appellants filed motions for an arrest of judgment and a new trial. The court below arrested judgment on the charges of extortion against Neff and Macry, the basis of that ruling being that Neff, chairman of the Democratic party in Beaver County, and Macry, secretary of the same party in that county, were neither public nor quasi-public officers within the meaning and intent of the law relating to the offense of extortion. The validity of that ruling is not before us. The court below did not arrest judgment on the charges of extortion against Yoho and Kaleta, the basis of that ruling being that Yoho, assistant superintendent of the Highway Department, and Kaleta,
The primary issue presented upon these appeals is whether the evidence is sufficient to support the convictions of all four appellants on the charge of conspiracy to extort and to support the convictions of Yoho and Kaleta on the charge of extortion.
In connection with the charge of extortion it must be noted that The Penal Code (Act of June 24, 1939, P. L. 872, 18 PS §4101 et seq.) does specifically
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designate extortion as an offense: Act of 1939, supra, §318, 18 PS §4318. At common law and by this statute extortion “is the unlawful taking by an officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is due”:
Commonwealth v. Saulsbury,
In
Commonwealth v. Horvath,
In proving a conspiracy, direct and positive testimony of the corrupt agreement is not necessary; in fact,
“ ‘
the nature of the crime attempted usually makes it susceptible of no other proof than by circumstantial evidence. . . ”
Commonwealth v. Musser,
In the instant, as in all, criminal prosecutions, the Commonwealth had the burden of proving appellants’ guilt beyond a reasonable doubt, and, to sustain these convictions, the record must contain evidentiary proof of such quality and quantity as meets this burden. In determining whether the Commonwealth has met its
In the light of these principles we view the instant record. The principal Commonwealth witness was one of the alleged co-conspirators, Edward Nitsche,
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who admitted that his purpose in testifying was to “get even” with Neff. Nitsche, a construction foreman employed by the Highway Department, testified that in the winter of 1955-1956, at the instance of and accompanied by Yoho, he attended a meeting in Neff’s home at which meeting were present Neff, Yoho, Nitsche and Macry. Nitsche testified that the purpose of the meeting was “about raising funds for the campaign”. In reply to what plans were discussed at that meeting Nitsche testified: “Q. Mr. Nitsche, you were telling us now about the plans to raise money for the campaign. What plans were discussed there? A. Well, there was plans for a club, and I don’t know whether it was supposed — each man that worked for the Highway Department was supposed to give f 5 a month dues — each employee. Q. Tell us what you heard said about a club and who said it? A. I think Mr. Macry said about the club, that he was supposed to have tickets printed, but I didn’t see the tickets at that time, but I know they was printed afterwards. Q. Was there any discussion there about whether or not the club was a good idea? A. Well, there wasn’t much discussion there; but when we went back from Neff’s home, I was talking to Mr. Corcoran about it, and he said he didn’t agree with anything like that. Q. What else took place at Mr. Neff’s home? A. Well, the question come up about contrac
Nitsche related certain incidents: that, in collecting money from a contractor named Eocco from whom he secured $200, Eocco told him: “You know you can be arrested for this” and, when he related this to Neff, Neff told him “Well, don’t ask him for anything more”; that he collected from a contractor named Denny in Neff’s presence and shoved the money into his [Neff’s] pocket, stating to Neff, “This belongs to you”; that a contractor named Beards offered a $1,000 campaign contribution if Nitsche could secure summer work for a grader which Beards owned and, when Nitsche informed Neff of the offer, Neff told him “Well, go ahead and see if you can get an agreement through for him”. 4 Nitsche further testified that both Kaleta and Yoho turned over to him “money collected” from certain contractors. Near the end of Nitsche’s direct examination the following colloquy took place: “Q. What was the result of anybody who complained about paying? A. Well, the only thing that was said was ... I asked Mr. Neff what I should do in case somebody doesn’t pay and he says, ‘Well, don’t cancel their agreements,’ he says, ‘but don’t leave them work.’ Q. Where was that said? A. Oh, I don’t know where it was said. Either — I couldn’t remember where that was said.”
The Commonwealth also presented the testimony of six contractors
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who leased equipment to the Highway
Denny testified that he made various involuntary payments by check (totalling $500-$600) to both Nitsche and Kaleta; while Nitsche was the first to approach him for payments, Kaleta had previously apprised him of the proposed percentage; on one occasion in Neff’s presence, he gave Nitsche a check for $85
Certain other witnesses testified for the Commonwealth. The automotive equipment supervisor for the Highway Department in Beaver County, one Jacobyansky, testified that, for the period of the fiscal year ending June 30, 1958, statewide rentals of highway equipment dropped fl,000,000 whereas rentals in Beaver County were 68 percent higher during that period. On cross-examination, however, Jacobyansky thought that he remembered that in 1956 Beaver County was declared a disaster area and further that at the time of the trial Beaver County district was still the highest in highway equipment rental in the Commonwealth.
• • Bokich, a caretaker of .the Highway Department from July, 1955 to May, 1956, testified that in December, 1955 Yoho informed him of the proposed contributions and told him to contact and collect 5 percent from a contractor named Bogovich; that it was decided that he (Bogovich) would give 5 percent of his gross earn
Mr. Jacobs, Director of Special Audits for the Auditor General, testified that he made an investigation of the Highway Department situation and, in doing so, he interviewed approximately 15 out of 47 contractors renting equipment to the Highway Department. A Mr. Smith, Director of the Bureau of Elections for Beaver County, testified that none of the contractors was listed in the campaign receipts or returns filed in his office for the periods here involved. Mr. Buttermore and Mr. Hasenkopf, both of whom had served as superintendent of highways, testified that they witnessed Nitsche turn over money to Neff.
This is the sum and substance of the Commonwealth’s proof in support of its charges.
Neither the opinion of the trial court nor the majority opinion of the Superior Court sets forth or designates the exact time of the formation of the alleged corrupt agreement or confederation. In his concurring and dissenting opinion Judge Montgomery declared that the “conspiracy, was formed in the winter of 1955-1956, when Neff, Nitsche, Yoho and Macry met at the home of Neff.” For this conclusion, i.e., that a conspiracy was then formed, we are unable to find factual or legal support.
Granting the Commonwealth the benefit of the most favorable testimony and reasonable inferences arising therefrom, we conclude that there was a meeting at the home of Neff, that this meeting was held in the winter of 1955-56 and that it was attended by Nitsche and all the appellants, except ICaleta. The record indicates that at that meeting a discussion took place of measures to be undertaken to raise funds for political purposes and that one of the suggested measures was that
The closest the Commonwealth came to proof of an unlawful agreement, i.e., that contributions were to be extracted from the contractors by demands, threats or on a “no pay, no work” basis, is the testimony of Nitsche, who stated that, when he inquired of Neff as
Proof that contributions were made by the contractors does not per se prove that such contributions were made pursuant to a corrupt or unlawful agreement. In this connection, it must be noted that
not one contractor testified that any one of the appellants in the collection of contributions had threatened them with “no pay, no work”.
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The collection of the contributions proves, neither directly nor indirectly, the formation of an unlawful agreement and could be just as consistent with a lawful as an unlawful purpose. In
Dahly v. U. S.
(C.C.A. 8),
From the evidence upon this record a jury should not have been permitted to find the existence of a corrupt agreement or conspiracy; if there had been such an agreement or conspiracy it could and should have been revealed by Nitsche who, under his own testimony, would have been a party to any such agreement had there been an agreement. In so finding, we do not usurp, the function of the jury; we simply find that the evidence presented on this record fails to satisfy either qualitatively or quantitatively, the standard of proof required to sustain a conviction in a conspiracy case. Stripped of all its gloss, this record at most reveals agreement to secure contributions for political purposes and that such contributions were secured. While there is implication of record that offenses other than charged may have taken place, such fact, if it is a fact, does not aid in proving a charge of conspiracy where there- is an absence of proof of an unlawful agreement. Absent proof of the formation or existence of an unlawful agreement or conspiracy between appellants, the motions in arrest of judgment on the conspiracy to extort should have been granted.
On the charges against Kaleta and Yoho, with one exception, there is no evidence that either by color of their respective offices unlawfully took money from these contractors. The preponderance of the evidence clearly shows that the contributions were made by the contractors and received by Kaleta and Yoho as political contributions and not made to either of them for their personal use. It may well be that either Kaleta or Yoho or both pocketed some of the contributions and devoted them to their own personal use but the Commonwealth has not proven beyond a reason
In regard to the Act of 1939, supra, we cannot agree with the construction and interpretation placed thereon by the majority of the Superior Court who completely disregard the two year period of limitations as leading to absurdity. While the Act contains two distinct periods of limitations — a two year and a six year period — the applicability of each or either is dependent upon the facts and circumstances of each case. However, the Act is not faulty, but, in fact, is supported by reason and logic. In this regard and to this
We have carefully scrutinized this entire record, bearing in mind that “To prove a criminal conspiracy the evidence must rise above mere suspicion or possibility of guilty collusion”:
Commonwealth v. Burdell,
Both quantitatively and qualitatively the evidence is insufficient to prove the existence of an unlawful
Judgments reversed.
Notes
Judge Ervin wrote the majority opinion, Judge Montgomery wrote a concurring and dissenting opinion in which Judge Flood joined and Judge Watkins wrote a dissenting opinion in which Judge Woodside joined.
Cf: provisions of The Penal Code as to blackmail (18 PS §4801) and kidnapping (18 PS §4723).
Nitsche entered a plea of guilty and received a suspended sentence.
If believed this would appear to constitute bribery rather than extortion: C.J.S. Bribery, §1, p. 840.
The record reveals that there were 47 contractors who leased equipment to the State during this period. The 6 contractors who testified were Harry Harden, Belaud Peters, Clarence Corbin, Grayn Penny, V, Oarl Tragesser and Edward Walton.
In tliis connection an examination of tlie Act of April 6, 1939, P. L. 16, §1 (25 PS §2374) — presently not in issue — is of interest. That Act, popularly known as the “Anti-Macing Act”, provides, inter alia: “It shall be unlawful . . . for any public officer or employe, or any other person whatsoever, directly or indirectly, to demand from any . . . subordinate or employe holding any office or position of honor, trust or profit under this Commonwealth, or otherwise engaged or employed in the service of the Commonwealth ... or any person . . . having a contract with . . . the Commonwealth . . . any assessment or percentage of any money or profit, or their equivalent in any thing of value, with the understanding, express or implied, that the same may be used or shall be used for political purposes: Provided, however, That nothing m this act contained shall be construed to prohibit voluntary contributions to any political committee or organization -for legitimate political and campaign purposes to the extent such contributions are not prohibited by law.” (Emphasis supplied). This Act, distinguishing between lawful and unlawful methods of raising campaign funds, does so on the basis of demanded as contrasted with voluntary contributions.
Denny testified that Kaleta, instructing him to collect contributions, said: “You know you can be replaced; you collect it or else.”