Petition for Writ of Certiorari — Southern Railway Co. v. Guilford National Bank of Greensboro

a . re | ' Office-Supieme ‘Court, US |

7 ; FELED

“IN THE

_ Supreme Court of the United tatdOy 16 196:

| AOHNN F, DAVIS, CLERN.

Term, 196

JOHN. E. FRANCIS, :

: . — ' Petitioner

; 2 |

- COMMONWEALTH OF PENNSYLVANIA,

Respondent

PETITION FOR A WRIT OF. CERTIORARI

TO THE SUPERIOR COURT OF

.. PENNSYLVANIA

es :

DOMENICK VITULLO..

‘A. CHARLES PERUTO

| . : Counsel for Petitioner

202 North Broad Street .

Philadelphia, Penna. 19102

THE LEGAL INTELLIGENCER, 10 S. 37TH ST., PHILA. 4

.

m eet

INDEX aap

; 7 Page .

Opinions below ae, 5 1

Jurisdigtion - 3 2 2

~ Questions presented? ; \2

__ Constitutional provisions involved: | ; 7 3

» State. nt of the case . 3

_ Reasons for: granting the writ | ae 10

1. Petitioner’s Sworn Statement - oO,

de: * Evidence of an Unrelated Offense Spee 12

3. Admission of Unauthenticated Records and

=

Letters - ~ ae

: “/. Equal Protection of the Law 13

5. Adverse Publicity Bec, 14 he

6. Suppression of Evidence ae eg 14.°-

Conclusion ees. Se eee 15

_ Appendix A—Opinion of the Superior Couit of Penn-

‘sylvania >, ee

Memorandum Opinion of the trial ‘lan 29

Appendix B—Judgment sought to be reviewed . 84

a ia ae ee CITATIONS

Cases; _ | )

Brady v. Maryland, 373 US. 83, 83 S. Ct. 1194 ae

Commonwealth v. Boulden; 179 Pa. Super. 328, 116 ©

A. 2d 867 - ey

ee

| Commonwealth v. Burdell, 380 Pa. 43, 110 A 2d 193 12

i

~ CITATIONS (Continued)

Cases: :. | | Page

Haynes v. Washington, 370 U.S. 902, 83 S.°Ct..1336 11.

Lynumn v. Illinois, 372 U.S. 528, 838.Ct.917 =. 1

Constitation and Statutes: . Sete he

U.S. Constitution, Fourteenth’'Amendment _ ; 18, 14

Penal Code of Pennsylvania,- Act of June 24, 1939, >

P.L. 872, Section 836, 18 PS Section 4836 . \

oe

a

. red

Meni

ii’

a

IN THE . °

Supreme Court of the United States

——-

heat A | Term, 196 .

- ; |

Miscellaneous No. /

o < E ' f

JOHN E. FRANCIS, / _

. eee. 4 Petitioner

& “ 2 v . * ff

CoM MON WEALTH OF PENNSYLVANIA,

Respondent |

- “es

bond.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF

PENNSYLVANIA - -

* - f Petitioner,/JOHN E. FRANCIS, prays that a writ

of certiorari igstie to review the judgment of the Superior

+ . Court of Pennsylvania entered in the above entitled case | -

~~ on June 12, 1963.

_/ OPINIONS BELOW

' > The memorandum opinion of the trial judge of the |

“Court of Quarter Sessions of Philadelphia County, Penn-

sylvania, is unreported and is printed in Appendix:A hereto,

- infra, p. 29. The opinion of the Superior Court of Penn-

sylvania, printed in Appendix B- hereto, infra, p. 16, is

reported in 20F Pa. Super. 313, 191 A. 2d 884.

° 1 / 7

o

arene

J URISDICTION.

‘The judgment of the Superior Court of Hniaatiniate

“was Antered on June 12, 1963, A petition for allowance of

"appeal ffom the Superior Court of ‘Pennsylvania to the

Supreme Court of Pennsylvania was filed and the petition

for allowance of appeal was denied ptr curiam by the

Supreme Court of Pennsylvania on August 19, 1963..

(Commonwealth of Pennsylvania v. John E. Francis, Peti-

titioner, No. 198 Allocator Docket No. 4). The jurisdiction © -

of this Court is invoked under 28 U. S. C:, Section 1257 (3).

QUESTIONS PRESENTED

1. Ini the trial of a defendant in a state court on felony

charges, is it in violation of due process to disclose to the

jury the contents of a statement which was’ rin ead ob-

" tained from the defendant?

2. In the trial of a defendant in a state court on felony

charges, is it in vjolation of due process to admit evidence

of an alleged unrglated offense for which the —— was je

_ never convicted? Seem, .

- . 8. Inthe trislofa defendant j in a state court on ade

' \ charges, is it-in ‘violation of due process to admit records

. and letters without any evidence as to the authenticity or ~

‘genuineness of the records and letters?

4. In the trial of a defendant in a state.court on a

series of felony charges, is it in violation of equal protection

of the laws to reverse the convictions on charges on which

evidence was improperly admitted but to permit the convic-

- tions on the remaining charges to stand?

; 5: In the trial of a defendant i in a state court on shiie

charges, is it in yiolation of due process when extensive ad-

verse publicity by news media prevents a fair and impartial

trial? ;

&

6. In the trial of a defendant in a state court on felony

_ charges, is it in violation of due process for the prosecution -

~ to suppress evidence which may/ ee ‘beneficial to. the defend-

ant? 3 | -&

~

| CONSTITUTIONAL PROVISION INVOLVED

The constitutional pr vision tavelved ‘is the 14th

Amendment to/the Constit

provides:

“Nor shall any’st state eS any person of life, liberty,

or property, without due process of law; nor deny to’

any person within its aeons the — ——

of the laws.” .

STATEMENT OF THE CASE.

The Grand Jury. of Philadelphia, Pennsylvania, re-

turned true bills of indictment against the petitioner as of,

July Session, 1961; Nos. 1474 to 1482, inclusive, charging

bribery: by a servant and employee; Nos. 1483 to 1485, in-

clusive, charging cheating by false pretenses, a felony under

Section 836 of the Penal Code of Pennsylvania, Act of June

24, 1939, PL 872, Section 836, 18 PS Section 4836; Nos.

1486 to 1494, ‘charging extortion; No. 1572 charging false

documents; and Nos. Abt. to 1576 bacionive, charging con-

spiracy.

- The petitioner ‘went on trial vidhati a jury on May 7;

1962, and after six trial days.on-May 14, 1962, the jury ©

returned verdicts of guilty on indictments 1474-to 1480, \-°

inclusive; on indictments 1486 to 1490, inclusive; on indict-

/. ments 1493 and 1494; on indictments, 1483, 1484 and

/ “1485; and indictments 1573 to 1576, inclusive. The jury

“4 returned. verdicts bf not guilty on indictments 1481, 1482,

1491 and 1492. A Gemurrer was sustained to indictment”

— 1572.

ion ef the United States which -

The petitioner filed motions in’arrest of judgment and

_ for new tridl. After the filing of briefs and arguments, the —

- .trial judge granted the motion in arrest of judgment on

indictments 1474, 1475, 1476, 1480, 1486, 1490, 1493, 1494 ©

and 1576 and the petitioner’ was discharged on these indict- —

rients. The motion in arrest of judgment was dismissed as

to the remaining. indictments and the motion for a new trial

_.was also dismissed. The petitioner was sentenced to a term -

of 111% to 23 months in the Philadelphia County Prison on 2

indictment 1483, charging cheating by false pretensés, @

felony, and sentence was suspended on the remaining in-

dictments on which he stood convicted. An appeal was taken ~

on behalf of the petitioner. to the Superior Court of Penn-

sylvania. That court sustained the appeal. and discharged ;

the petitioner on. indictments 1487, 1488, 1489, 1573 and

1574. However, the appeal was dismissed as to indictments

1477, 1478, 1479, 1483, 1484, 1485 and 1575. A petition

+ for the allowance of an appeal from the Superior Court of

Pemegen we filed withthe Supreme Court of Penn-

- sylvania and without argument or an opinion, this petition

was denied per cur iam ‘by the Rupreme Court of Pennsyl- |

vania.

-. The gutitiinke. from December 27, 1954, to May 5,

1961, held the position of Deputy Commissioner in the :

Department of Public Property of the City of Philadelphia..

It. was the theory of the Commonwealth of -Pennsylvania,

that the petitioner, together with Harold-V. Varani, who

held the position of Chief of Architecture and Engineering

in the Department of Public Property, Benjamin D. Barone,

Secretary to the Commissioner of Public Property, and Eli

G. Travis; a contractor, committed unlawful acts in con-

nection with a contract awarded to-.one of Travis’s com- -

panies by. the City of Philadelphia. According to. the Com-

monwealth of Pennsylvania, Travis gave to the petitioner,

Varani and'Barone, money and other gifts and they in turn

‘assisted Travis in obtaining the contract and also conspired

with Travis in connection with alleged work short-cuts on

the contract. Travis pleaded guilty and was placed on pro-.

J

- 5

- bation-for a period of two years. Veta and Barone were

both acquitted. 6 7 rae

1. On April 15,° 1961, which: was weeks prior to the

arrest of the petitioner, the petitioner was summoned to

“the office of the Controller of the City of Philadelphia. With-

out being given any reason for this summons, he was sworn

and subjected to an intensive interrogation by the-Controlle

_and the members of -his staff. These questions and: —-

_ were taken stenographically at that session and subse-

quently transcribed. At the petitioner’s trial, the Assistant

. - District Attorney, asked that, this transcription be marked

for identification‘'as Commonwealth’s Exhibit C-11g and it

was ‘identified by a Commonwealth. witness, William T.-

Gennetti, who was présent at the time of the interrogation

and who was 2t tHfat time Commissioner of Public Property

of the City of Philadelphia, as the sworn statement of the

petitioner. Objections were inte:posed by ‘defense counsel |

_to the marking of the statement as. an exhibit and to its .

identification by the witness. ‘These objections were over-

ruled by the. trial judge. Mr. Gennetti was then asked by

the Assistant District Attorney whether there was: any

duress connected with the taking of the statement frorn the

-- petitioner and the witness answered that there was not.

_(N. T. 142-145). However, during his cross-examination, <

Mr. Gennetti, who is also a lawyer and a member of the —

Bar-of the City of Philadelphia, testified that there was

duress connected with the taking of the statement: from, the.

petitioner. (N. T. 253-254). Nevertheless, ‘on re-direct’ ex-

amination, the Assistant: District Attorney asked Mr. Gen- ©

_ netti a series of leading questions which the witness was

permitted to answer by the trial judge over objection by

defense counsel. These leading questions and the answers to °

these questions disclosed to the jury the contents of the

statement which Mr. Gennetti had previously testified was"

taken ‘from the petitioner under duress. .(N. T. 256-262).

2. There was admitted into.evidence against the peti-

tioner at “his trial, testimony concerning the petitioner's

a

XL

6 ™

| alleged involvement i in a totally unrelated offense for which |

he was never‘convicted or even krrested. This testimony

was admittetl.over. objections interposed on behalf of peti-

tioner, which objections were overruled, (N.T. 55-57, 145-

149)- 4,

3 At the petitioner’s trial hers were read to the jury

and admitted into evidene, over abjections | by defense -

". gofnsel which were overruled,.a series of Commonwealth

,

-cluded that which purported to be a letter and bill fromthe

exhibits consisting of that which purported-to be business

records of the Diner’s Club Inc.; Astor’ Hotel, *Wew York.

-City; and other memoranda and letters with:absolutely no

testimony introduced as to the genuineness or authenticity

of these records, memoranda,and letters. Commonwealth .

Exhibits C-17 and C-18 included bills of Diner’s Club Ine.

made out ta the petitioner which. were read to the jury and

admitted into evidence over objections by defense counsel.

(N.T. 290-291, 591). Commonwealth Bxhibit C-12 in

Hote! Astor, New York City. This was read to the jury and

admitted into evidence over objections by defense counsel.

(N.T. 288, 286, 590). Commonwealth-E&hibits C-1la and

| * C-11d are letters purportedly authored by individuals who

were never called as witnesses nor were they ever arrested

in connection “with this case, nor were any signatures on

these letters ever identified. as being the signatures of the ~

purpo thors. These letters were read to the jury and

-admitté¢d into evidence over objections by defense counsel. .

0-133, 590).

(N.T.1

. petitioner filed a motion in arre&t of judgment

4.

"as to each of the indictments on which he was found guilty

by the jury. The trial judge granted the motion and dis-

charged the petitioner on three indictments charging’

bribery and three indictments charging extortion, all hav-

. ing to do with the alleged payment by Travis for the peti-

ao of Diner’s Club bills and a bill of the Hotel Astor,.

New York City. The petitioner argued both before the trial _

ialee and the Superior Court of Pennsylvania, that docu-

Say,

7

ments which purported to be business records of the Diner’s

Club, Inc. and the Hotel Astor were improperly adraitted

into evidence because no one, from either Diner’s Club, Inc..

. .or the Hotel Astor, testifiéd as to the authenticity or gen-

uineness of these documents. The Superior Court of Penn-

sylvania, in its Opinion, disregarded this contention on the

ground that the cases relating to the payment of the Diner’s

Club bills and the bill of the Hotel Astor were not before it

because the trial judge granted motions in arrest of judg-

ment as.to the indictment specifically covering these items.

The petitioner argued in his petition for the allowance of

appeal from the Superior Court of Pennsylvania filed with —

‘the Supreme Court of Pennsylvania that: “The Superior —

Court indicates that the issue of admissability of these rec-

ords is moot’ because these records pertain to indictments

not presently. before the court. However, there is not. in-

volved here 26 separate cases covered by 26 separate indict-

ments. This is one case..The theory of the Commonwealth

is that the petitioner réceived certdin things of value in

exchange for which he did certain things for Travis. The

petitioner was found guilty by the jury in the indictments

specifically relating to the Astor Hotel and Diner’s Club,

- Ine. The court should not be permitted to eliminate’ the

. prejudicial effect of this evidence, improperly admitted,

‘simply by ‘granting a motion in arrest of judgment to the

indictments specifically relating to the Astor Hotel and

Diner’s Ciub. Moreover, the jury may well have found the

petitioner guilty of false “ etenses and conspiracy because

of this improper evidenc@ In other words, once cancer has

been permitted to spread throughout the entire system, it

does the victim no good whatsoever to then cut out the organ.

which was initially affected.” The Supreme Court of Penn-

sylvania denied per curiam the petition for allowance of

appeal from the Superior Court of Pennsylvania.

5. The petitioner and his alleged co-conspirators were

arrested in connection with this case in May, 1961. The

petitioner went on trial on May 7, 1962. The circumstances —

8

which gave rise to the instant case received extensive news-

‘paper, radio and -television coverage preceding the trial. |

This extensive coverage included not only accounts of al- .

. leged facts presented at the trial; but also accounts of. al-

leged facts which ‘were not presented at the trial; facts

which could not have been legally presented at the trial>

For example, the. news accounts included alleged pay-offs

* and gifts given by Travis to numerous other city employees.

‘Application was made for a Grand Jury investigation and

this also received extensive news coverage and some, if

- not all, of the Philadelphia newspapers openly favored

such an investigation. The application was ultimately

granted and a Grand Jury is still in session conducting an

investigation. Not only was there extensive news coverage

preceding the trial, but in addition, there was extensive

news coverage of the trial itself. Also, during the petition-

er’s trial, disclosure was made of an alleged scandal in-

volving other municipal agencies. The petitioner went on

_ trial on Monday, May 7, 1962. The Commonwealth rested ©

its case on Friday, May 11, 1962. The Court recessed. for

the day at approximately 4 P.M. On that Friday evening,

City Controller Alexander Hemphill, decided to make

known to the members of the press, radio and television, the

results cf an investigation, which had been proceeding for — -

some time, concerning another municipal “seandal”. The

jury separated each day and no warnings were given by

the trial judge not to read newspapers or listen to or. watch

radio and television accounts of the trial until the conclusion

of the fourth day of trial. (N.T. 8-9, 86-87, 218, 383, 507)

Even the warning at that time only had to do with the read-

ing of news articles. No warning was given concerning

radio and television. At the conclusion of Friday’s session, _

shortly before Alexander Hemphill made the disclosure of

the alleged new scandal, no warning was given concerning

newspapers, radio and television. (N.T. 592) On Monday |. -

morning, May 14, 1962, defense counsel moved for the with-

drawal of a juror because of the news coverage of the al-

o

9

leged new scandal and because of the news coverage of the

trial itself. This motion was denied. .(N.T. 6134614).

6. Prior to the trial of the petitioner, there was filedon © ».

his behalf, a motion for the production of the books and

records of Eli G. Travis and his companies, which motion

was denied by the Court of Quarter Sessions of Philadel-

-phia. At the petitioner’s trial, Travis testified that he made

a $5000.00 cash pay-off to the petitioner’s alleged co-con-

spirator, Varani, and a $5000.00 cash pay-off to the peti-

tioner’s alieged co-conspirator, Barone, in the month of ©

May, 1959, and that. this $10,000.00 came from one ‘of his

‘ corporations. (N.T. 297, 324-325). At Varani’s trial, to

support Travis’s testimony that he gave Varani and Barone

$10,060.00 in May, 1959, the Commonwealth produced three

checks of one of Travis’s companies, the Hughes Steel Erec-

‘tion Company, made payable to “Payroll” from which

Travis obtained the $10,000.00. The first check, in the

amount of $3,333.33, is dated May 11, 1959. The second

check, in the same amount, although dated May 20, 1959,

cleared the bank on May 18, 1959. The third check, in the

amount $3,333.34, is undated but cleared the bank on June

11, 1959. On the other hand, defense counsel preduced two

checks of the Hughes Steel Co. also made payable to “Pay-__.

- roll”. The first check, in the amount of $5,300.00, is dated ~

May 6, 3959, and the second check, in the amount of $4,- _

700.00, is dated May 20, 1959. According to the evidence

produced at Varani’s trial, the latter two checks consti-

tute the only combination of checks drawn on the account of

the Hughes Steel Erection Co. in May, 1959, totalling $10,- °

900.00. Neither of these checks were endorsed and both of

them were cashed at: the bank on which they were drawn.

Significantly, on May 6, 1959, the date of the first check

produced by defense counsel, $5,300.00 in cash was de-

posited by Travis in a new account opened at another bank

in the names of Eii G. Travis and Wallace Mathis, as

President and Treasurer, respectively, of another of ©

Travis’s companies. On May 21, 1959, the day after the date

10

of the second check, $4,700.00 in cash was deposited in that

new account. The obvious conclusion to be drawn from this

ig that Travis took $10,000.00 from the Hughes Steel Erec- .

tion Co. in May, 1959, but did not give it to the petitioner’s

alleged co-conspirators, Varani and Barone, rather, he |

‘converted the $10,000.00 to his own use. Unfortunately,

defense counsel did not become aware of the existence of

these important facts until after the petitioner's trial. The

peint here made is important especially since after these |

facts were made known, both Varani and Barone were

acquitted. The petitioner did not have the benefit ‘of these —

facts. This point was argued before the Superior Court of

Pennsylvania, but, that court simply — it and no

- mention of it is made in its Opinion. .

REASONS FOR GRANTING THE WRIT

1. Petitioner’s Sworn Statement o.

Through the medium of leading questions, the Assist-

ant District Attorney had the Commonwealth witness, Mr.

_ Gennetti, testify that in the petitioner’ s statement the peti-

ioner admitted that he was in charge of ‘the work covered

by the contract involved in this case and that the petitioner’s

alleged co-conspirator, Varani, worked under him. He also

had ihe witness testify that the petitioner admitted going

to Stone Harbor,: which had to do with one of the gifts al-

legedly given to the petitioner by Travis. (N.T. 256-262)

Also, the witness testified that the petitioner was dismissed ©

from his position as Deputy Commissioner of Public Prop-

erty as.a result of the statement. (N.T: 262) Whether the’

petitioner was in fact in charge of the contract involved

in this case and whether the alleged co-conspirator; Varani,

did in fact work under him and whether the petitioner did

in fact go to Stone Harbor were important issues in this °

case ard they should not have been resolved through the

>

Soe | a

use of a statement obtained: from the petitioner under

duress. Under these circumstances, the petitioner’s sworn

statement can certainly be considered in the nature of a-

. confession.

~ It is well settled that the Supreme Court of the United

States will overturn a felony conviction in a State Court if

at the trial an involuntary confession is admitted into _

evidence because such a trial violates due process. Lynumn

v. Illinois, 372 U. S. 528, 83 S. Ct. 917; Haynes v. Wash-

ington, 370 U. S. 902, 83 S. Ct. 1336..In the instant’ case

there can be no doubt that the petitioner’s statement or

confession was‘ obtained under duress. The Common-

wealth’s own witness testified that it was obtained under

duress and only after the Commonwealth itself opened the

door to this line of inquiry. Moreover, the Superior Court of

Penngylvania in its opinion, agrees with the position of the

, petitioner that: his statement was illegally obtained because

that opinion states that the trial judge in his charge to the

jury ruled out the-statement and the Superior Court could

‘not say that the trial a abused his discretion in n ae

p. 26) ~

Although the trial ‘iia ruled out the statement} in

his charge to the jury, he did not rule out the testimony dis-

closing the contents of the statement to the jury. As a mat-

.ter of fact, in his charge the trial judge reviewed the testi-

mony concerning the statement and repeated the testimony -

that.the petitioner was dismissed from his position as a re-

sult of this” statement. (N.T. 703-704) To be strictly ac-

curate, the trial judge could not rule out the statement be-

cause the statement was never offered into evidence. The

Assistant District Attorney had accomplished his purpose

without offering the statement into evidence by disclosing

to the jury, through the medium of leading questions, the

contents of the statement. To rule out the statement; which |

was not offered into evidence, without ruling out the testi-

mony disclosing the contents of the statement to the jury /

was a vain act. In any event, this prejudicial evidence could

not have been erased from the minds of the jurors through

120

instructions. The statement was obtained under duress and

. to disclose its contents to the jury violated due process.

2. Evidence of an Unrelated Offense

_At the petitioner’s trial, evidence was admitted against

him of a totally unrelated offense for which he was never.

arrested, tried, or convicted. One of the most fundamental ©

principles in the administration of crjminal justice is that ©

a distinct crime cannot be given in evidence against a de--

fendant who is being tried for another crime. Common-

wealth v. Burdell, 380 Pa. 43, 110 A. 2d 193. The objection .

- to this sort of evidence is that iticompels the defendant to

meet a charge of which he had no notice. It confuses. him in

his defense, raises collateral issues, diverts the attention

of the jury from the crime immediately being tried, and

‘generally shows that the defendant should be convicted be- —

cause he is a bad man. Commonwealth v. Boulden, 179 Pa..

- Super. 328, 116 A. 2d 867. It is submitted that to admit -

such evidence against a defendant on trial in a state court

‘for felony is such basic and fundamentai: error as to be a

violation of due process.

3. Admission of Unauthenticated Records and Letters

There is nothing more basic. and fundamental in the

administration of criminal justice than to afford a defend-

ant on trial on felony ¢harges the opportunity ‘to be con-

fronted by witnesses appearing against him; to have wit-

nesses appearing ayainst him testify only under oath; and,

to afford the defendant the opportunity to cross-examine

_ such witnesses. The admission into evidence of records and

letters without producing anyone to authenticate the rec-. .

ords and.without producing the purported authors of the

letters, is a flagrant violation of this principle. The ad-

mission into evidence against the petitioner of records and

letters without confronting the petitioner with the authors

. of these records and letters and without placing the author

under oath and without affording the petitioner the oppor-

13

tunity to cross-examine them was in violation of the Due

Process Clause of the Fourteerith Amendment.

4. Equal-Protection of the Law

The petitioner was tried at the same time on 26 bills

of. indictment. However, a]l of these indictments resulted

from the same alleged facts and circumstances or series of

alleged facts and circumstances. The petitioner argued

before the trial judge. that that which purported to be rec-...-

ords of the Astor Hotel and the Diner’s Club, Ine-was i im-

properly admitted into evidence because no one from the

Astor Hotel or Diner’s Club Inc. was called to testify con-

cerning the authenticity er genuineness of these records.

The trial judge reversed the convictions on the indictments

specifically referring to the Astor Hotel and the Diner’s

Club, ‘Inc. It was argued before the Superior Court. of

~ Pennsylvania, that these records were improperly: admitted

_into evidence. The Superior ‘Court disregarded this argu-

ment on the ground that the issue of admissability of these

records was moot because these records pertained to indict-

ments which were not before that court. However, there is

not involved here 26 separate cases covered by 26. separate

indictments. This is one case. The theory of the Common-

- wealth is that the petitioner received certain things of value

in exchange-for which he did certain things for Travis. The

petitioner was found guilty by the jury on the indictments

specifically relating to the Astor Hotel* and Diner’s Club?

Ine. The court. should not be permitted to eliminate the —

prejudicial effect of this evidence; inyproperly admitted,

simply by reversing convictions as to the indictments speci- _

fically. relating to the Astor Hotel and Diner’s Club, Inc.

Moreover, the jury may well have found the petitioner

guilty of cheating by false pretenses, a felony, and: con-

spiracy because of this improper evidence. The petitioner,

as every other defendant convicted of ‘a crime in the cogrts

of the Commonwealth of Pennsylvania, had the righ? of

appeal. By reversing the convictions on indictments on

e

14

which evitinns was improperly admitted: and by using this

as a-basis.for refusing to consider the appeals on other in-

dictments to’ which the improperly admitted evidence also ~

= applied, was in effect a denial to the petitioner of his right

ef appeal and constitutes a violation of his rights under

the mane Protection Clause of the Fourteenth Amendment.

5: Ad verse. Publicity

As hereinbefore pointed out, there was extensive cov-

erage by newspapers, television and radio concerning the .

alleged facts and circumstances giving rise to this case

before and during trial. The sensational news stories

concerned not only The petitioner, ‘but many other city

-_ officials and employees and concerned also alleged scandals

which had absolutely nothing to do with the petitioner. ‘It

is felt that-the release of the news story concerning alleged

scandals in another city department in the midst of the peti-

tioner’s trial, ‘was calucluated to prejudice .the petitioner.

The extensive and adverse publicity by the news media

made a fair trial impossible and resulted in violation of the

petitioner’s rights under the Due Process Clause of the

Fourteenth Amendment.

6. Suppression of Evidence ee

In Brady v. Maryland, 373 U: S. 83, 88 S. Ct. 1194, it

-. ‘was stated: .

“We now hold that the suppression by the prosecution

- of evidence favorable to an accused upon: request vio-

lates due process where the evidence is material either

to guilt or punishment, irrespective of the. good faith

or bad faith of the cise aval

The petitioner in the instant case asked for the’ produc-

tion of the books and records-of Travis and his companies

prior to the trial. This request was denied to him and as a

result he was unable to produce evidence which may have

a:

&

‘certiorari should be granted.

x

been beneficial to him and which may well have resulted in

his acquitta!. Evidence concerning the taking by Travis of

_. $10,000.00 from one of the companies with which he was

‘associated and converting it to his own use at the very time

when he was supposed to have given the same sum of money

to two of the petitioner's alleged co-conspirators was

certainly material to the issue involved in this case. An

examination of the books and records of Travis and his

companies would have disclosed this information -to. the

petitioner aid made it available for him at his trial. The

suppression of this important ‘evidence hy the prosecution

violated due process.

- CONCLUSION

a’

For the foregoing reasons, this petition for a writ of

Respectfully submitted,

DOMENICK VITULLO

A. CHARLES PERUTO

Counsel for Petitioner

202 North Broad Street Serpe

Philadelphia, Penna. 19102

‘ e435 : \

‘aed 16 7

a | _ APPENDIX “Ars

OPINION OF THE SUPERIOR COURT ;

OF PENNSYLVANIA © °

Opinion. by Montgomery, f Filed: June 12, 1963

These appeals by John E. Francil’ defendant, are from -

a judgment of sentence on one indictment charging “false

pretenses” (1483) and the suspension of sentence on eleven

‘others, viz.: 1477, 1478, 1479, charging bribery; 1484, .

1485, charging false pretenses; 1487, 1488, 1489, charging

extortion; and- 1573, 1574, 1575, charging ¢onspiracy; fol-

lowing his convictions thereof by a jury and the dismissal

of his motions. for a new trial and in the arrest of the

judgments. He had been tried on twenty-six indictments

~ consolidated for trial purposes, but was suceessful in

obtaining a demurrer to -one, not guilty verdicts on four, .

and the arrest of judgment on nine others. All of the indict-

ments were based ofi appellant’s activities in connection

‘with contracts which the City of, Philadelphia had with

Hughes Steel. Erection Company and A: Berlanger and

Sons, Inc., for rehabilitation work'.on the Frankford Ele-

vated Railway in that city. During such activities appellant

held the position of Deputy Commissioner in the Depart-

“ment of Public Property of that city and had the responsi-

bility of. overseeing the work being done under the con--

tracts. Eli G. Travis, hereinafter mentioned, was Vice

President of the Hughes Steel Erection Company-and the:

owner of twenty per cent of its stock: John Hughes owned

- another twenty per cent and the Belanger brothers, who

‘also owned A. Belanger and ‘Sons, Inc., owned the remaining

sixty per cent.

Appellant’s present general contentions are, (1) that

- the evidence produced by the Commonwealth (appellant

1 The main repairs were replacement of ballasts, and repairing

expansion joints, trusses, cross beams, center girders, and hand

Tails.

slides _ -: : | ia 17 :

offered nd evidence) was insufficient to sustain the convic-

tions; and (2) that he was denied‘a fair trial fer various

reasons. = ,,

The cases now under consideration may be grouped as _

follows: ,;

1477 — Bribery and 1489 Biitertion, resulting

from a gift of clothing (value $305) from Travis to

‘Francis.

1478 — Bribery and 1488 Extortion, resulging 7

’ from gift of television set (value $533. ad from Travis

_to Francis. .

1479 — Bribery and 1487 Extortion, resulting

from the gift of an installment payment by Travis on’

a debt owed by Francis (amount $132).

1575 — Conspiracy and 1485 False Pretenses,

resulting from a $32,475 payment by Philadelphia City

‘to Hughes Steel Erection Company on December 31,

1959, for work not performed.

1574 — Conspiracy and 184 Faise Pretenses, a —

similar payment of $18 1635, gnade December 16, 1960,

for work not performed.

"158 Conspiracy and 1483 Paleo Pretenses, a |

‘ similar payment of $33,440.90 made March 9, 1960, for

_ work not-performed. _ . \

SUFFICIEN cy OF. Evinexce

Giving the Commonwealth the benefit of ail the favor-

able testimony and all reasonable inferences arising there-

- from, the relevant facts may be stated as follows: The City

of Philadelphia and the Philadelphia Transit Company, hav-

ing agreed to repair the Frankford Elevated section of the

transit system, advertised for bids, and as a result thereof.

entered into four contracts (Nos. 725, 726, 727, and 728) |

with the. low bidder, A. Berlanger and Sons, Inc. During

| a ;

the progress of the work under these contracts, Travis, the

representative of the contractor, established friendly rela-

tions with Benjamin Barone, secretary to William T. Gen-

netti, the Commissi6ner of the Philadelphia Department of

Public Property, and with Harold Varani, the acting Chief

Engmeer of the City of Philadelphia, who was also attached.

‘to the Department of. Public Property, In return for their

S

good will and help in performing the contracts, Travis gave ~—

and promised to give them valuable emoluments; however,

since appellant was their superior, it was suggested by them —

that. Travis méet appellant. This was accomplished and

appellant shared the hospitality afforded by Trav hen

the bids were opéned for the fifth contract (No.

and the possibility of readvertising for new bids instead of

awarding the,contract to the low bidder wag discussed by

Travis with Barone and Varani, and later with appellant.’

This. was subsequently accomplished, ‘with the cooperation

of appellant, by changing the requirements of the specifica-

tions of the contract so as to eliminate the cement work and

substitute other work relating to the repair of expansion

joints. With conndential information as tothe estimate

made by the City Engineer on the probable cost of the work '

covered by the revised specifications for contract 729, sup-

-plied by Barone, Varani, and at least with the knowledge

and acquiescence of appellant, Huge Steel Erection Com-

pany submitted the lowest bid and was awarded the con-

tract. Hbwever, after performing part of the contract,

Travis informed Barone, Varani and appellant that he was

29),°

neither company represented by Travis was the low bidder

. going to lose money and could not perform the work of ©

“jacking the bents” (as required in the contract). for. the

cleaning and otherwise repairing of the expansion joints of

the trackage. Item 47 of the contract covered 52 joints at

$500 per joint or a total cost of $26,000 and item 48 covered

50 at $590 each or a total of $25,000. The Hughes Company °

_ did jack a few of the bents in cleaning the joints but failed

to jack the others. This constituted inferior work with less

effective results, nevertheless, the Hughes Company claimed

3.

. e a t

ig ° . : . , ‘

. - -

Nee

19

and was paid the fh! smoun of the’ contract price with

extras totaling $44,440.* With full knowledge that the work

;

had not been done in accordance with the contract appellant ©

permitted vouchers for the payments to be prepared by and .-

cleared through his office on the certificate of his construc- :

tion engineer and of Varani, then his Director of Architec- ‘

ture and Engineering. Appellant not only enjoyed the hos- ’

- pitality of Travis but received from him the items of value

ae 2s mentioned. — *

. Fares ‘PRETENSES —

( In connection with these eharges appellant argues that

1) his signature on the three vouchers on which the pay-

ments relating to items 47 and 48 of the contract were made :

. has not been sufficiently proved; (2) the. particular ‘omis-

sions in pérformance of the work‘have not been identified

with the separate vouchers, and (3) there is no evidence

.that payment was made on the strength of the‘vouchers.

. ‘ Appellant’s signature does not appear on vouchers 8, 9;

and 10, although he did'sign the earlier vouchers 1, 2, 3, and

4 on contract 729. However, his certification is not the

determining factor. Under the Act of June 24, 1939, P.L.

872, $836, as amended, 18 P.S. 4836, one who aids, assists

- or abets another in defrauding i is guilty of the crime. Appel-’

lant, with Knowledge that the contractor was not perform- -

ing his contract but was nevertheless certifying that it had -

fully and properly performed it in order to secure ‘full -

payment, was rendering aid and assistance to the defrauder |

by his acquiescence and failure to protect his employer’s

interest, even though he may not havg performed the final

act of certifying the vouchers.

Identifying each separate joint with one of the three

vouchers would be impractical, if not impossible, and was

2 The original bid was $299,842. The total payments were $344;-

282. Voucher 10 certified that items.47 and 48 had been one hundred

per cent completed for which Hughes was paid $26, 000 on item 47

and $25,000 on item 48.

ae 7,

r .

i 3

.

«

“ . :

‘

- 20°

unnecessary. The contract provided for the cleaning of 102

joints by jacking the bents. Travis testified they jacked only

. a few. There can be no other conclusion adopted but that

some joints under both items 47 and 48 were not properly

cleaned. This was sufficient since it it establishes that in the

case of each voucher which referred to either item 47 or 48

Hughes fraudulently received payment for work it had not

done."

From the record as a whole it can be reasonably infer-

red that the payments authorized by the vouchers were

— es Hughes.

?

CONSPIRACY

Since Hughes fraudulentJy secured money from the

‘ of Philadelphia through ihe knowing cooperation of

lant and others, the verdicts of guilty are supported by

ord. There was suffigient evidence on which the jury

and did .find present the elements constituting con-

acy which were enumerated by Mr. Justice JONES in —

Commonwealth v. Neff, 407.Pa. 1, 7, 179 A.2d 630, 632,

quoting Commonwealth v. Mittelman, 154 Pa. Superior Ct.

“572, 36 A.2d 860, “. .. a concerted action pursuant to a com-

_ mon design to accomplish a common purpose.” It must have

seemed clear to the jury that Travis, Barone, Varani, appel-

lant and possibly George Smith, Jr., were engaged in con-

certed action to help Hughes Steei Erection ampeay avoid

a loss on contract* 729, at.. the expense of appeiiant’s

empioyer, the City of Philadelphia. This possible loss was

occasioned by its low bid w hich had been based on informa-

tion, nrobably incorrect, obtained from the office of appel-

lant. However, the evidence can support but one charge of

conspiracy based on the agreement or understanding of

Travis, Barone, Varani and appellant made at the time .

contract 729 was partially performed and at which time the -

pending loss was realized. The preparation of the vouchers —

_and the clearing of them. through: appeilant’s office were

-therely overt acts, carrying out*the purpose of the con-

spiracy, The preparation and clearing of the separate

21 ea

-vouchers did not constitute separate crimes of conspiracy

and theréfore, the three indictments for conspiracy were

repetitious and the judgments on two of them should have

been arrested. We shall sustain the appeal as to the two

later ones (1573 and 1574) in point of time, but not as to-

the earliest (1575), which will be affirmed.

EXTORTION AND BRIBERY

Appellant was tried for statutory extortion .and brib-

ery. The record shows that the’ District Attorney made his

election to proceed on statutory extortion rather than the

common: law crime and the charge of the court was on-this

basis. : ? :

Statutory extortion is defined as: “Whoever, being a

public officer, wilfully and fraudulently receives or takes

any reward or fee to execute and do his duty and office,

except such as is or shall be allowed by some act of “Assem-

bly, or receives or takes, by color of his office, any fee or

reward whatever, not, or more than is, allowed by law, is

guilty of extortion, a misdemeanor. . . .” Act of June 24,

1939, P.L. 872, $318, 18 P.S. 4318. What appellant took was

clearly not for doing his duty; but in violation of same.

Therefore, the first provision would have no application, and

if he received sordething not allowed or more than was

allowed by law-“by color of his office”, he might be guilty. :

‘We have held many times that the extraction of money or

other things of value under a threat of using the power of

one’s office-may constitute extortion. Such provision of the

. Statute is the same as it is under the common law crime.

Commonwealth v. Burns, 197 Pa. Superior Ct. 282, 178

A.2d 619; Commonwealth v. Norris, 87 Pa. Superior Ct.

61; Commonwealth v. Wilson, 30 Pa. Superior Ct. 26;

Commonwealth v. Brown, 23 Pa. Superior Ct. 470. How-

ever, in.all of these cases, as well as many others examined

by us, when there has been. an extraction of money by

“color-ef office” there has always been some threat, veiled

or expressed, incident to it. We must therefore conclude

-

~,

«

22

that under the statutory definition of extortian, when the

offense is “by color of his office”, some threat to perform

the duty of or to éxercise the rights or power of that office

i..’st be established.

Although we have recognized that the crimes of com-

mon law extortion and bribery may coincide at times, Com- .

monwealth v. Wilson, supra, it is generally held that they

are mutually exclusive crimes. 11 C.J.S., ‘Bribery, $16, 5

P.L.E., Bribery; § ~

We find no evidnes in the present record which, in

any way, indicates that appellant secured.the gifts given

him by Travis through any coercion or threat, implied or

expressed. Barone and Varani needed his cooperation to

render the help they had promised to Travis, and even on

the occasion when Travis sought a way to avoid performing

part of the contract appellant: was approached. He made~

no overtures to them. In connection with the first bids on

contract 729, when he was approached about readvertising

for new bids he was very reluctant to give out any hope ©

that it could be accomplished. It was not until after he had

told Travis it would be done that Travis said to him, “If ~.

you can get this thing through for me, I will pay you .

$3,000.” This. we think, was a strictly voluntary gesture on

the part of Travis. However, that promise does not concern

‘us since appellant has been exonerated in that case. _

We conclude that the evidence is not sufficient to sus-

n the convictions on the indictments charging extortion.

On the contrary, the evidence is overwhelming to sus-

tain the convictions for bribery. Although there was some

margin of dispute as to the criminal intent of appellant,

am element of the case, the jury ‘has resdlved that issue’

against appellant.

Bribery is defined as “. “or whoever being an agent,

employe, or: servant, solicits, -aécepts, or receives or takes,

directly cr indirectly, any. commission, money, property, or

other yaluable thing as an inducement, brihe or reward for

_ doing or omitting to do any act, or for showing any favor or

disfavor in relation to the affairs or business of his princi-

23

pal, employer, or master, is guilty of a misdemeanor. .. .”

Act of June 24, 1939, P.L. 872, §667, 18P.S. 4667.

Appellant was an agent and employe of the City of

Philadelphia, he took, the gifts aforementioned, he did

favors for Travis, and he omitted doing /acts required of —

him in the protection and furtherance“of his employer’s

interests. It was for the jury to determine whether the

favors shown and the acts omitted were induced by these

gifts. Although the purpose of such gifts is not generally

expressed, since such matters are secretive, the circum- -

-* stances under which they are given may be properly con-

sidered by the jury in resolving the issue. Commonwealth v.

Friedman, 193 Pa. Superior Ct. 640,:165 A.2d 67& The

established circumsfances in this case were sufficient to -

sustain the verdicts of guilty on the bribery hemes

TRIAL ERRORS

Reference to an investigation of “alleged frauds” in

the trade-in of city motor vehicles by Commonwealth wit-

ness Alan Hyman, Deputy Personnel Director, and Commis-

sioner Gennetti was not prejudicial error. Mr. Hyman was

called for the purpose of establishing the duties, salary, and

work records of appellant,.Varani and Barone. Counsel for

appellant, on cross-examination, then undertook to establish

his client’s reputation for integrity and competency by

questions and answers covering fifteen pages of the record.

The District Attorney thereupon undertook to. refute the

impression this created by interrogating further as to the

cause of appellant’s separation from the city. In this further

interrogation the matter of the investigation was mentioned

and that appellant had been included i in it. However, it was

further shown that although there were several dismissals

_ asa result of the investigation, Mr. Francis had not been

dismissed. He resigned months later.

Appellant complains next that the Commonwealth did

not produce or make available essential- witnesses. Many of

_ these were witnesses to transactions not presently under

24

consideration by us and their testimony was in relation to

other charges from which appellant has already been exon- .

erated. However, as to those who had any connection with

the cases now before us, we find no error.’ A district attor-

ney normally has the duty to produce eyewitnesses, but if he

does not wish to use them he should make them available

to the. defense. Commonwealth v. Drew, 190 Pa. Superior -

Ct. 478, 154 A.2d 285. He need not call all witnesses named

in an indictment or even all eyewitnesses if he believes,

after examination or investigation, that their testimony is

unréliable, or unworthy of belief, or surplusage or irrele-

vant. His only obligation under those circumstances is to

notify defense counsel he does not intend to cail all of the

- named witnesses. The calling of witnesses is within the dis-

cretion of the district attorney under the general supervi-

sion of the trial judge. Commonwealth v. Horn, 395 Pa. .

585, 150 A.2d 872. The lower court did not censider, and

_ we think properly, Walter Mathias, an empoye or agent

of Travis who may have made the car payment for Travis,

or certan unidentified inspectors on the transit jobs, or the

dummy stockholders of the Consolidated Industries, Inc.

(another of Travis’ enterprises), such persons as the Dis-

trict Attorney was compelled to call, or make available.

-Furthermore, they were all known to appellant. Varani and

Barone were under indictinent fér their participation in the

matter and were likewise known and available to appellant

- -had he wished to call them. , ,

Appeliant’s next assignment of ¢ error is that the court

improperly and over objection admitted testimony of Com-

_missioner Gennetti concerning an interrogation of the

appellant by the City Controller, Alexander Hemphill, on or

about April 15, 1961. The record shows that the District

Attorney asked Commissioner Gennetti only whether he

had been present in the office of the City Controller on April

15, 1961, when Mr. Francis was interrogated, and thgn

asked the court to identify the sworn statement as “Exhibit

11g”. This was allowed over appellant’s objection. The Dis-

trict Attorney thereupon asked the witness to describe the

25

circumstances under which it had been taken. He asked a

nothing about the-content of the document and proceeded ~

to another phase of the case, after which he turned the

witness over to appellant’s counsel for cross-examination.

On cross-examination’ appellant’s counsel _asked further’

about the circumstances surrounding the taking of the

statement, and referred to the statement for the purpose of.

determining the circumstances that existed during the time

_ it was taken. The following ¢olloquy between the court-and—

_ defense counsel demonstrates the situation very clearly::

~ (Page 246) “Mr. Peruto: At this point I should

like to make it abundantly clear that I am cross-exam-

ining for the purpose of admissibility of the statement,

and it is not to be construed in any fashion that I am

having it testified to open the door, as it were, to hav- ,

ing the statemént read. .

*-- * * ‘* *

_ (Page 247) “The Court: ... You know, gentlemen,

the interesting part of this is that there was a state-

-Ment mentioned and that is all. There was nothing

more.

“Mr. Peruto: Over objection, I might say.

| “The Court: That’s right, over objection. Now,

Mr. Peruto, under cross-examination you are making

use of a statement about which we have heard nothing,

and as Mr. Fitzpatrick says, you are opening the door.

You may proceed and determine just how far you go

with this, and the Court will determine how far Mr.

Fitzpatrick may go.”

Thereupon Mr. Peruto made particular references to

the statement in asking questions as to whether appellant.

was accused of lying, given an opportunity to secure coun-’

sel or advised of his constitutional rights. Finally, the wit-

ness was asked by the coum if the answers had been given

- voluntarily. His reply was (Page 254):

. r cee

WP —o

26

“.,. I would say if he had been some one coming in off

the street and not a city employee, I might conclude

that there was no duress; but being a city employee

made all the difference in the world. He hada job at.

stake, and I guess he kad really but little choice to an- —

swer questions in fear of losing his job.”

/ On redirect a by the District saad the

court ruled that ( Page 259

. I have permitted wide -latitude to defendant’s

ania on cross-examination. The door has been

opened, and I am permitting on redirect examination

the privilege of allowing the district attorney;to pro-

ceed with his questioning on matters whigh were

brouzht out on cross-examination. .. .”

Relying on this ruling, and ostensibly to overcome the

implication that appellant had been compelled to give false

answers to questions put to him, the witness was asked

whether.he had given any false answers. The witness said

he could not answer such 3 question. Thereupon the Dis-

trict Attorney asked specific, questions relating to appel-

lant’s position in the Department of Public Property, and

as to his acceptance of gifts (all other questions related to

duress), to establish tha appellant had not been forced to —

give false answer&. The witness testified that appellant had

given the correct answers as to his position and kad denied

the acceptance of any gifts, There was nothing prejudicial

to appellant in these questions and answers. In fact, they

may have been beneficia} to him.

In its charge, he jury was instructed concerning a

viz., “C-11g was a statement of the defendant which I had

ruled out. You are not to consider that.” We cannot say the

lower court abused its discretion in acting as it did on such

a controversial point of the case. In ruling out the state-

ment it sustained appellant’s position that it had been ob-

tained under improper circumstances and was therefore

Not to be considered,

° r 27

-_ In’view of the fact that appellant’s counsel indicated

no objection to the offer of Exhibits C-13, C-14, and C-15,

whieh were the only ones relating to these cases before us

...{Page 590), we do not consider this assignment of error as

meriting our discussion as it Félates to them.

As to Exhibits C-1la, C-11b, C-il¢, C-11d, and C-11f

being correspendence betweer Varani and the independent

_ engineers on these jobs, Yule, Sticklen, Jordan and McNee,

between Varani and the Procurement Department of the

city, and other interdepartmentai memoranda, appellant's

only objection to them was that they had not been properly

identified. Our review of the record leads us to a contrary

view. ioe ar ar ;

The conspiracy charge previously discussed in this

opinion was sufficient to make admissible the statements of

the coconspirators, as given by Travis, which related to the

- cases now before us.

We\find no prejudice to Warrant a new trial on account

of any aliegéd delay in bringing these cases to trial. The

granting of.a continuance is discretionary with the lower:

court and we find no abuse of that discretion present in this ~

case. |

The remaining arguments of the appellant deal with

the same subject of prejudice arising from the acéeptance

. of incompetent. testimony, remarks of the District Attor-.

ney, of the court, of the Commonwealth, of the press, radio

and television, and of the general public, creating, as ex-

pressed by appellarit’s counsel, “The Atmosphere and Tone

of the Entire Proceedings”. We have studied very carefully

appellant’s arguments, as well as the record; but fail to find

any reason for the grant of a new trial. ro

In cases of public importance involving matters of pf%-

lic interest and public officials, the creation of “Atmosphere

and Tone” to the proceedings cannot be avoided. However,

unless the jury is prevented thereby from reaching a fair

and impartial verdict, it does not compel the postponement

of the trial or aretrial.

28

The jury was selected if this case after separate voir

dire interrogations during’ which each juror was asked if

he or she had read anything, about the case in the news-

papers.

In his learned and careful charge, Judge REIMEL ad-

monished the jury to put aside-all prejudice and sympathy,

to decide the case on the evidence before it, and not upon

any suspicion, particularly:

“You may have ‘heard or read something about

other scandals itt the city in other departments having

occurred over the weekend. It has nothing to do with

this case, and therefore you were not cautioned about —

not reading or talking about anything else other than

this case, but perchance maybe you have or you have

- heard some one discuss it or you have read the news-

papers. I must caution. you that you in rendering your

verdict in this case must confine yourselves without

suspicion and without prejudice and without sympathy

and without consideration of any other thing which

has happened in any other place other than in the evi- -

dence before you. So, you must disregard any such

thing, and if anything should happen to be in the back

of your mind, dismiss it.”

Further, the fact that appellant was exonerated on ..

* four of the charges indicates the fair-mindedness of the

jury and that it was not swayed by prejudice against ap-

pellanc.

Nor do we find any ‘abuse of discretion by the ‘lower

court in refusing appellant's pretrial motions.

The record indicates the able handling by the lower

court of a difficult situation, and we are of the opinion that

appellant had a fair trial with full observ ation of his con-

stitutional right to due process of law. —

This appeal is sustained-as to the three charges of ex-

tortion, being 1487, 1488, and 1489, July Sessions, 1961, and

on the two charges of conspiracy at 1573 and 1574, ‘July

29

Sessions, 1961 of the court below, on each of.which sentence

was suspended, and appellant is discharged on those

charges;/but the appeal is dismissed as to the charges of

_ bribery at Nos. 1477, 1478, and 1479, July Sesions, 1961, on.

ach of which sentence was suspended, and: as to the

charges of false pretenses at 1483, 1484, and 1485, July Ses-

sions, 1961, on the first of which judgment of sentence was

imposed (1483), and on the remaining two, suspended (1484

and 1485), and as to the charge of conspiracy at 1575, July

Sessions, 1961, on which sentence was also suspended ;

. _. And appellant is ordered to appear in the court below

at such time as he may there be called, and that he be by

that court committed until he has complied with his sen-

tence or any part of it which had not been performed at

_ the time he was released on.bail by the lower court.

MEMORANDUM OPINION

OF THE TRIAL JUDGE

REIMEL, J.

This matter came before the Court on Defendant’s Mo--

tion in Arrest of Judgment and Motion for New Trial as

the Defendant was found guilty by the jury on seven bills

charging bribery; seven charging extortion: three charg-

ing cheating by fraudulent pretenses; and four charging °

conspiracy. = = © ‘

The jury returned verdicts of not guilty on two indict-

ments charging bribery and on two indictments charging

extortion, and the Court sustained Defendant’s Motion in

Arrest of Judgment in regard to four bills charging hrib-

ery, four bills charging extortion, and one bill charg'ng con-

spiracy. . — | &

The Defendant. contends that the Act of March 31,

1860, P. L. 382, Section 49, 18 P.S. Section 2 requires that

there be corroborating evidence.. The Court need not decide

- whether this Act-is applicable, for it is the opinion of the

,

Bee

Court that corrobarating evidence was presented. The cir-

cumstances of this case show a course of conduct on the

part of the co-conspirators that could’ reasonably lead a

jury to find the Defendant guilty. The Commonwealth’s

charges were supported by documentation, and the testi-

mony of the contractor that he deliberately did not perform

the contract is supported by the circumstances of this case.

_ The Befendant was Deputy Commissioner of Public

Property of the City of Philadelphia, and he contends that — y

he was not a public officer as defined by the Act of June‘24,

1939, P. L. 872, Section 318; 18 P.S. Section 318, and, there-.

fore, he could not be convicted under this section of the

Penal Code. It is the opinion of the Court that the Defend-

ant was a public officer. He performed some of the furic-

. tions of government, and he was responsible for the fulfill-

‘ment of grave and important duties: See Richie v. Philadel-

phia, 225 Pa. 511, 74 Atl. 430 (1909). His.was not a mere

ministerial position requiring the services of a clerk but a

position of trust and responsibility.

The Defendant further contends that the evidence did

not show that the Defendant accepted the gifts in exchange

for any “favor” or “by color of his office,” and, therefore,

the Defendant cannot be convicted of bribery or extortion.

- The Defendant maintains that the Commonwealth only es- —

tablished that articles of value were taken or received. It is

clear. that the receipt of these gifts was connected with tHe

fact that the Defendant occupied the office of Deputy Com-

missioner of Public Property. His acceptance of these gifts

from a person upon whom he could ¢onfer favors by reason

of his public office, regardless of whether or not he did con-

fer such favors is sufficient to constitute the crimes of brib-

ery and extortion.

This Court finds that the evidence was sufficient in re-

gard to the six indictments relating to the payment vouch-

ers. The Commonwealth established that these vouchers

were paid, and that it was the responsibility of the Defend-

ant to ensure that the work to be performed. ( the jacking

of ihe bents) was actually performed. .

, 3

?

31

__ As far as the Indictments for conspiracy are concerned,

the Court. finds that the evidence was sufficient to sustain a”

conviction. If the Defendant knew of the plan of non-per-

formance of the contracts, and it was his responsibility to

ensure performance, and he accepted gifts from one of the

parties involved in the plan for non-performance, he can be

considered a-co-conspirator with the other planners.

In regard to Defendant’s.Motion for New Trial, it is

_ the opinion of the Court that none of the réasons the De-

fendant presents for granting this Motion are sufficient.

The verdict of the.jury was supported by the evidence. The

evidence showed, and the jury so found, that the Defendant.

accepted gifts during the time in which he held public office

from parties upon whom he could confer favors, and that

he violated the responsibility placed upon him by failing to

ensure performance of contracts within his sphere of re-. -

_Sponsibility: — Beh :

It is not reversible error for the Commonwealth to

elicit testimony from two of its witnesses concerning the

Defendant’s reputation and his fulfillment of the duties

imposed by his office as this area of inquiry was opened by

the Defendant’s counsel when he attempted to establish

the Defendant’s reputation, and these questions were con-

cerned with his reputation.

_ The Defendant contends that the Commonwealth failed

to produce and make available to him particular eye wit-

nesses. However, the Defendant must be referring to cor-

roborative witnesses rather than actual eye witnesses.

Furthermore, the jury was instructed that it could infer

from the non-production of any witnesé’that his testimony

would be adverse to the party who it: believes should have

called the witness. es J Sp

There was no need for a continuance since the Défend-

ant had more than ample time to prepare his defense.

Since the Commonwealth established that the Defend-

_ ant accepted gifts from someone who could benefit, it was

reasonable for the jury to conclude that his acceptance of

these gifts made him a co-conspirator. Therefore, since the ©

i a ae

conspiracy was proved, there was no error in the introduc- é.

tion of the statements of the co-conspirators. a

‘There is no substance to Defendant’s contention that

his constitutional rights were violated when a pre-trial

' statement was introduced. Assuming that this statement

- was iilegally obteined, once it was introduced by the De-

. fendant in cross-examination, it became proper for the

Commonwealth to rebut in re-direct examination implica-

tions about the statement brought out during eross-exami-

“nation.

w . It is n6t- hearsay evidence if an executive ‘head of a

‘department of city governthent testifies to facts which re-

late to. the normal business of that department and which

he discovered through normal gsr races channels of in-

formation,

‘It was not reversible error to admit into evidence the

models of portions of the Frankford Elevated System since

. ‘the jury was instructed and cautioned in regard to these

‘models and the Defendant was n¢t prejudiced.

It was not reversible error to permit the Common-

wealth’ Ss witness, Eli G. Travis, to read from his business

records and to admit these records into evidence. These rec- |

ords are included within Section 2 of the Uniform Business

Records Act, May 4, 1939, P. L. 42, No. 35, Section 2; 28 P.S.

Section 91B. All the records which related to the business

of the Department of Public Property were also admissible

since they were properly qualified.

j The reference by the “Assistant District Attorney’ to

“the fact that defense counsel represented other alleged co-

conspirators was not prejudicial tocthe Defendant as the

Defendant made no objection when the statement was

made. The Defendant was not prejudiced by the istant

District Attorney's Opening Address to the jury, nof by th

Assistant, | District en 8 conduct during the trial.

‘ ree /

: "1 v4

. . e / .

wealth’s witness, Fli G. Travis, during er s-examination

about bias and prejudice on the part of investigator,

the investigator’s opinion of Travis, the possible falsifica-\

tions of Travis’ business records, in regard to other matters

and the mariner in which Travis spent the money cf his

companies for entertainment. ‘The’réfusal to permit ‘these

questions was within the discretion of the Trial Judge. The

_ Defendant was not prejudiced 'y the comments of the Com-

monwealth’s witness, Eli G. Travis, during cross-examina-

tion. Oo / aga a

The Trial Judge pr ly refused to permit the-counsel

for the ‘Defendant to “ead during his summation a manual

which was not presefted as evidence at the trial. There was o

no error in the dehiaYof the Defendant’s pre-trial motions”

The Defendant was -not prejudicedby the pubbitity-

concerning this trial. The Trial wasa fair trial. “47

The Defendant’s Motions for New Tria!.and’in Arrest

entare denied o> ; Kr |

.

paar

“ 34

. APPENDIX “Bs

6 sepegnt SOUGHT TO BE REVIEWED \ jf

fs

The judgment of the Superior Court of a shies , f

sought to be reviewed is as follows: ~ : }

“This appeal is sustained as to‘the three charges /

~~. of extortion, being 1487,.1488, ana 1489, July Sessions; j .

--1962;-and on the two charges of conspiracy at 1573 and /

1574, July Sessions, 1961 of the court below, on each of

which sentence’ was suspended, and appellant is dis- f

' charged on those charges’ but -the-appéal is dismissed. /

as to the charges of bribery at Nos. 1477, 1478, and /

1479, July Sessions, 1961, on each of. which sentence’ .

was suspended, and as to the charges of false pretenses

at 1483, 1484, alfa 1485, July Sessions, 1961, on the first

of which judgment of sentence was imposed (1483),

and on the remaining two, suspended (1484 and 1485),

and as to the charge of conspiracy at 1575, July Ses-

sions, 1961, on which sentence was also suspended :

/ “And appellant is ordered to appear in the court

below at such time as he may there be called, and that

he be. by that court committed until he as complied

with his sentence or any part of it which had not been

performed at the time he was released * bail by the

lower court.”

*

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