177 Pa. Super. 556 | Pa. Super. Ct. | 1955
Opinion by
At April Sessions, 1952, the. Allegheny County Grand Jury returned eight bills of indictment as follows: No. 209 charging Ernest Dequenne with accepting a bribe from Fred Fiori; No. 210 charging Dequenne with misbehavior in office; No. 211 charging Fiori with giving a bribe to Caesar Ricci; No. 212 charging Fiori with giving a bribe to Dequenne; No.
The governing body of the third class city of Clair-ton consists of four councilmen and a mayor, each being entitled to one vote. Ricci and Dequenne were members of council, and Mullen was the mayor. The city owned a tract of approximately 66 acres of land containing coal deposits, and known as the Gun Club Site. In 1948 and again in 1950 council discussed letting a contract for stripping this coal in order to raise additional revenue. Public bids Avere advertised for, but none were received. Subsequently, a Mr. Lhormer made an offer of 50^ a ton, which he later increased to 60^ a ton, and a contract was awarded to him. Fiori was to be a sub-contractor under Lhormer. This contract was afterward cancelled by mutual agreement. In April, 1951, Fiori attended a council meeting and discussed the terms of the coal stripping project. According to Mullen’s testimony, during the week of October 14, 1951, Dequenne came to his home and said “that he had a proposition that had been brought to him by Councilman Ricci, whereby he could make some money from the coal up at the Gun Club Site, . . . that Mr. Fiori had offered to give the three of us each one thousand dollars, with the
We have detailed some of the more significant evidence because of the vigorous attack by appellants upon its sufficiency. Except as to Fiori’s conviction on bill No. 213 (bribery of Mullen), it is argued that the court below should have granted all of the motions in arrest of judgment. See the Act of June 15, 1951, P. L. 585, 19 PS §871. Ricci contends that Mullen’s testimony as to the meeting with Dequenne during the week of October 14, and as to the meeting with Fiori on October 24, was not received as evidence against him, with the consequence that the only date on which testimony was admitted relative to his alleged participation in the bribery and conspiracy was October 31. Ricci and Dequenne contend that the evidence consisted solely of admissions or confessions which, without proof of the corpus delicti, were inadmissible. Fiori takes the same position, except as to bill No. 213. , It is settled law that a confession
Ricci and Dequenne next contend that there was no proof of conspiracy by independent evidence, wherefore the declarations of the alleged conspirators were incompetent. The offense of conspiracy is complete the moment the parties agree to do an unlawful thing: Commonwealth v. Kelson, 134 Pa. Superior Ct. 132, 3 A. 2d 933, but their confederation need not be formally proved: Commonwealth v. Ott, 154 Pa. Superior Ct. 647, 36 A. 2d 838. A conspiracy may be, and usually is, established inferentially by showing the relation, conduct or circumstances of the parties: Commonwealth v. Smith, 151 Pa. Superior Ct. 113, 30 A.
All three appellants contend that the verdicts were against the weight of the evidence, against the law, and against the charge of the court. The real issue was that of credibility between Mullen and other prosecution witnesses on the one part and appellants and their witnesses on the other. This was a question for the jurors, and they resolved it against appellants. It must be borne in mind, that on appeal the evidence must be considered in the light most favorable to the Commonwealth: Commonwealth v. Stroik, 175 Pa. Superior Ct. 10, 102 A. 2d 239. And see Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733. It is argued that the trial judge instructed the jury that the date of the offenses was October 24, 1951, but that there is no testimony in the record to sustain a finding that either Eicci or Dequenne had received a bribe on that date. This argument is apparently based on the initial recital by the trial judge of the contents of the several indictments. Subsequently, and throughout the charge, the jury was instructed that it was necessary to find that the acts occurred on or about October 24, 1951. We do not believe that the jury was
It is also contended that the testimony of Yitori and Eunatz was contradiction of Dequenne on a collateral matter. The situation here is entirely different from that in Commonwealth v. Truitt, 369 Pa. 72, 85 A. 2d 425, which is the authority upon which counsel principally rely.- In the Truitt case, the witness was questioned concerning his membership in a certain political party, a matter which the Supreme Court said was collateral to the prosecution and without probative or relevant value. In rebuttal, testimony was offered to attack the credibility of the witness, who had denied affiliation with the party. In the case at bar, Dequenne denied that Yitori and Eunatz had discussed the bribery, one of the charges under consideration. Where there are two or more actors involved in a crime, considerable discretion is given to the trial judge as to the order and admissibility of the evidence: Commonwealth v. Hendrie, 97 Pa. Superior Ct. 328. In any event, the testimony of Yitori and Eunatz was relevant on the theory of an implied admission by Dequenne. The fact that it was received in rebuttal rather than in chief did not constitute reversible error: Commonwealth v. Hradesky, 170 Pa. Superior Ct. 24, 84 A. 2d 393.
Finally, it is contended on behalf of Fiori “that many errors, if taken singly, would not be reversible”, but the cumulative effect thereof was prejudicial. We
After a thorough review of the entire record and the charge of the trial judge, upon which defense counsel commented favorably,
On cross. examination Mullén explained that he “wanted to find out-what it was all abont and who. was invplved”.
“As far as the defense is concerned, it’s perfectly satisfied with the charge of the Court. We consider it fair and just and we don’t want an exception”.