# Commonwealth v. Besch

> Supreme Court of Pennsylvania · April 17, 1996 · 544 Pa. 1

URL: https://www.frixlaw.com/law-library/cases/9705576

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Steven A. BESCH, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** April 17, 1996
- **Citations:** 544 Pa. 1; 674 A.2d 655; 1996 Pa. LEXIS 735
- **Precedential status:** Published
- **Opinion:** Dissent by Nix
- **Judges:** Nix, Flaherty, Zappala, Cappy, Castille, Nigro, Newman
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705576

## How later opinions describe it (automated extraction)

- holding that intent of corrupt organizations statute is determined by preamble to statute and, accordingly, precludes applicability to drug dealers because the drug-dealing enterprise was not connected to a legitimate business; statute is only indicated when organized crime el…
- holding that the PCOA, as originally enacted, does not apply to conduct involving only wholly illegitimate businesses
- holding Pennsylvania’s corrupt organizations law applied only to the criminal infiltration of legitimate businesses
- holding corrupt organizations statute does not encompass prosecution of wholly illegitimate enterprise

## Opinion text

NIX, Chief Justice,
dissenting.
I believe that the Pennsylvania Corrupt Organizations Act (hereinafter “the Act”), encompasses illegitimate as well as *15 legitimate business enterprises. Accordingly, I respectfully dissent.
The Act defines a business enterprise as “any ... group of individuals associated in fact although not a legal entity.... ” 18 Pa.C.S. § 911(h)(3). The plain language of this statute would include both legitimate and illegitimate business enterprises. This was the conclusion of the United States Supreme Court in United States v. Turkette, 452 U.S. 576 , 101 S.Ct. 2524 , 69 L.Ed.2d 246 (1981). In Turkette , the Supreme Court considered the identical definition of “enterprise” found in the federal Racketeer Influenced and Corrupt Organizations statute at 18 U.S.C.S. § 1961 (4) 1 and concluded:
RICO is equally applicable to a criminal enterprise that has no legitimate dimension or has yet to acquire one. Accepting that the primary purpose of RICO is to cope with the infiltration of legitimate businesses, applying the statute in accordance with its terms, so as to reach criminal enterprises, would seek to deal with the problem at its very source.
Turkette, 452 U.S. at 591 , 101 S.Ct. at 2532 .
Turkette is but the capstone of a long line of federal cases which holds that the definition of “enterprise” in the federal statute includes illegitimate as well as legitimate enterprises. 2 *16 The majority fails to discuss this highly persuasive case law. I recognize that this well-established line of federal cases is not binding on us in interpreting our own state statute. However, in failing to follow these cases, the majority removes this Commonwealth from the mainstream of Racketeer Influenced and Corrupt Organizations jurisprudence and inexplicably posits us on the fringe of this area of the law.
The majority’s sole rationale for disregarding the plain language of the Act as well as the overwhelming weight of federal case law interpreting an identical provision in the federal statute is a single sentence in the preamble to the Act. Finding number (3) in the preamble to the Act states that “vast amounts of money and power accumulated by organized crime are increasingly used to infiltrate and corrupt legitimate businesses operating within the Commonwealth____” 18 Pa. C.S. § 911(a)(3). The majority holds that this language evidences the intent of the General Assembly to limit the reach of the Act to legitimate business enterprises. I disagree.
In Turkette , the United States Supreme Court considered the preamble to the federal Racketeer Influenced and Corrupt Organizations statute, which is substantially similar to the preamble found in the Act, and rejected a claim that applying the federal statute to legitimate businesses was contrary to the legislative history. The Court concluded:
Considering this statement of the Act’s broad purposes, the [narrow] construction of RICO suggested by respondent and the court below is unacceptable. Whole areas of organized criminal activity would be placed beyond the substantive reach of the enactment. For example, associations of persons engaged solely in “loan sharking, the theft of and fencing of property, the importation and distribution of narcotics and other dangerous drugs” [ 84 Stat. 922 -23] would be immune from prosecution under RICO so long as the association did not deviate from the criminal path. Yet these are among the very crimes that Congress specifically found to be typical of the crimes committed by persons *17 involved in organized crime ... and as a major source of revenue and power for such organizations.
Turkette, 452 U.S. at 589 , 101 S.Ct. at 2531 .
I agree with the reasoning of the United States Supreme Court. The majority, in footnote 8 of its opinion, suggests that the Act can be distinguished from the federal statute because our statute has a “lengthy and specific preamble which clearly delineates the intended scope of the legislation.” Majority Opinion at 13 n. 8. However, the preambles to both statutes are substantially the same. This similarity reflects the fact that the Act “is based upon Chapter 96 of Title 18 of the United States Code, 18 U.S.C. §§ 1961-1968 , entitled Racketeer Influenced and Corrupt Organizations (RICO).” Commonwealth v. Yacoubian, 339 Pa.Super. 413, 419 , 489 A.2d 228, 231 (1985). A closer examination of the two statutes reveals that four of the five findings of fact in the preamble to the Pennsylvania statute were taken almost verbatim from the federal statute, including finding (3) so heavily relied upon by the majority. 3 Thus, our statute simply does not contain *18 additional language outlining a more specific purpose as erroneously suggested by the majority. Accordingly, I would defer to the interpretation of the United States Supreme Court on this point and avoid rewriting this area of the law so that it is unique to Pennsylvania. In ignoring the reasoning of the federal courts, the majority isolates Pennsylvania from the mainstream of Racketeer Influenced and Corrupt Organizations jurisprudence and inexplicably makes it more difficult for our state law enforcement authorities to combat organized crime encompassing a wide range of nefarious activities.
In fact, just one year ago, a plurality of this Court stated in Commonwealth v. Wetton, 537 Pa. 100 , 641 A.2d 574 (1994): “[W]e find that neither the preamble nor the express language of the statute prevents its proscription from reaching enterprises organized and existing for illegal purposes.” Id. at 112 n. 5, 641 A.2d at 579 n. 5. (Opinion in Support of Reversal of Zappala, J., joined by Flaherty and Cappy, JJ.) (citing Commonwealth v. Yacoubian, 339 Pa.Super. 413 , 489 A.2d 228, 231 *19 (1985)). Although Wetton is a non-binding plurality opinion, no member of the Court expressly disagreed on this issue. Today, the majority fails to give any reason for such a startling turnaround on this point in such a short period of time.
I believe that the conduct of our General Assembly is more revealing of their intent than a preamble heavily borrowed from the federal statute. I find persuasive the inaction of the General Assembly in light of the overwhelming judicial interpretation of “enterprise” including illegitimate enterprises within the reach of Racketeer Influenced and Corrupt Organizations statutes. In addition to the United States Supreme Court and numerous lower federal courts, our Superior Court rendered such an interpretation in Commonwealth v. Yacoubian, 339 Pa.Super. 413 , 489 A.2d 228 (1985). In Yacoubian , a panel of our Superior Court held: “This section enables law enforcement to reach the criminal enterprise which has no legitimate dimension or has yet to achieve one.” Id. at 420-21 , 489 A.2d at 231 . Presumably aware of the case law in the federal courts and throughout the country, the General Assembly amended the Act in 1974, 1978, 1980, and 1990. Each time, the General Assembly failed to alter section 911 to limit its reach to only legitimate businesses. To me, this inaction on the part of the General Assembly is more revealing of its intent than the single sentence of the preamble quoted by the majority. In fact, the course suggested by the majority is so contrary to the generally accepted interpretation of Racketeer Influenced and Corrupt Organizations statutes, that I believe the General Assembly would have clearly and strenuously indicated its departure from the norm. Its failure to do so strongly suggests agreement with the generally accepted interpretation offered by our Superior Court and the federal courts.
For the reasons set forth above, I must dissent from the majority’s departure from the widely recognized principle that illegitimate enterprises are within the reach of Racketeer Influenced and Corrupt Organizations statutes and its decision to chart an ill-conceived new path in this area of the law. *20 Accordingly, I would affirm the Order of the Superior Court in its entirety.
CASTILLE and NEWMAN, JJ., join in this dissenting opinion.
. Compare 18 U.S.C. § 1961 (4) (" ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity”) with 18 Pa.C.S. § 911(h)(3) (“ ‘enterprise’ means any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity engaged in commerce.”)
. See, e.g., Russello v. United States, 464 U.S. 16 , 104 S.Ct. 296 , 78 L.Ed.2d 17 (1983); United States v. Errico, 635 F.2d 152, 155 (2d Cir.1980); United States v. Provenzano, 620 F.2d 985 (3d Cir.), cert. denied, 449 U.S. 899 , 101 S.Ct. 267 , 66 L.Ed.2d 129 (1980); United States v. Whitehead, 618 F.2d 523 , 525 n. 1 (4th Cir.1980); United States v. Aleman, 609 F.2d 298, 304-05 (7th Cir.1979), cert. denied, 445 U.S. 946 , 100 S.Ct. 1345 , 63 L.Ed.2d 780 (1980); United States v. Rone, 598 F.2d 564, 568-69 (9th Cir.), cert. denied, 445 U.S. 946 , 100 S.Ct. 1345 , 63 L.Ed.2d 780 (1980); United States v. Swiderski, 593 F.2d 1246, 1248-49 (1978), cert. denied, 441 U.S. 933 , 99 S.Ct. 2056 , 60 L.Ed.2d 662 (1979); United States v. Elliott, 571 F.2d 880, 896-98 (5th Cir.), cert. denied, 439 U.S. 953 , 99 S.Ct. 349 , 58 L.Ed.2d 344 (1978).
. Compare Organized Crime Control Act, Pub.L. No. 91-452, § 1 , 84 stat. 922, 922-23, cited in Turkette, 452 U.S. at 588-589 , 101 S.Ct. at 2531 :
The Congress finds that (1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud and corruption; (2) organized crime derives a major portion of its power through money obtained from such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation and distribution of narcotics and other dangerous drugs, and other forms of social exploitation; (3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic process; (4) organized crime activities in the United States weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens; and (5) organized crime continues to grow because of defects in the evidence-gathering process of the law inhibiting the development of the legally admissible evidence necessary to bring criminal and other sanctions or remedies to bear on the unlawful 'activities of those engaged in organized crime and because the sanctions and remedies available to the Government are unnecessarily limited in scope and impact.
*18 with 18 Pa.C.S.A. § 911(a):
The General Assembly finds that:
(1) organized crime is a highly sophisticated, diversified, and widespread phenomenon which annually drains billions from the national economy by various patterns of unlawful conduct including the illegal use of force, fraud, and corruption;
(2) organized crime exists on a large scale within the Commonwealth of Pennsylvania, engaging in the same patterns of unlawful conduct which characterizes its activities nationally;
(3) the vast amounts of money and power accumulated by organized crime are increasingly used to infiltrate and corrupt legitimate businesses operating within the Commonwealth, together with all of the techniques of violence, intimidation, and other forms of unlawful conduct through which such money and power are derived;
(4) in furtherance of such infiltration and corruption, organized crime utilizes and applies to its unlawful purposes laws of the Commonwealth of Pennsylvania conferring and relating to the privilege of engaging in various types of businesses and designed to insure that such businesses are conducted in furtherance of the public interest and the general economic welfare of the Commonwealth;
(5) such infiltration and corruption provide an outlet for illegally obtained capital, harm innocent investors, entrepreneurs, merchants and consumers, interfere with free competition, and thereby constitute a substantial danger to the economic and general welfare of the Commonwealth of Pennsylvania; ...

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705576. Public record. Not legal advice.