Petition for Writ of Certiorari — Schwartz v. Pennsylvania

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(ConSTITUTIONAL PROVISIONS INVOLVED .......seeeeeceeree

STATEMENT OF THE Cee cc cccccccscesescvesstseuseese®e

REASONS FOR ALLOWING WRIT .....--.--eeseererreereress

1. The Decision of the Pennsylvania Supreme Court Is

Directly Contrary to the Decisions of This Court in

Bruton v. United States and Roberts v. Russell ...... 12

2. The Decision of the Pennsylvania Supreme Court Is

Contrary to the Decision of This Court in Bouie v.

City of Columbia ........0--+eeeeee seers eee eceees 16

3, The Affirmance of Petitioners’ Convictions by a Divided

Three-to-Three Vote of the Pennsylvania Supreme

Court Violates the Due Process Clause of the 14th

Amendment .........0eee eee eee eeeeeeeeeeners 21

SOCKET EDSVO SEES SHSSELOOOEDD HOH VIDA EPS? SPO

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AQPENDIX 2.0.0 ccccccccccvcccccccsssssccovecessccsocrrs

Opinion and Order Sur Motions in Arrest of Judgment

and New Trial (Both Cases) ......---++++eeeeees lb

Order (Both Cases) ....-.--eseeeeereecereesereceees 26b

Judgment of Sentence (Siegel Case) .cccccccvvvvsvcess 27b

Judgment of Sentence (Schwartz Case) .....--+++++e++ 28b

Opinion of the Superior Court of Pennsylvania .......- 29b

Petition for Allowance of Appeal From the Superior Court 50b

Opinion of the Supreme Court of Pennsylvania ........-. 56b

Dissenting Opinion, Cohen, J. ocesvcveceevessouee 57b

Dissenting Opinion, Roberts, J. ...-.-+-+++e+e++05 57b

Excerpts From Notes of Testimony ...-----+++++++++++ 70b

John P. Mason, Esq., recalled—Direct Examination 70b

TABLE OF CASES CITED.

Atwell v. United States, 398 F. 2d 507 (Sth Cir. 1968) ..... 15

Bouie v. City of Columbia, 378 U. S. 347 (1964) ..11, 16, 17, 20,2)

Branch vy. State, 212 So. 2d 29 (Fla. Ct. App. 2d Dist. 1968) 15

Brooks v. United States, 164 F. 2d 142 (5th Cir. 1947) ...., 21

Bruton v. United States, 391 U. S. 123 (1968)

9, 10, 11, 12, 13, 14, 15

Commonwealth v. Bosman, 213 Pa. Super. 258, 247 A. 2d 647

SEE. Fi neh ued oan eb VArdene ie rhbe ten eebebes cabenen 15

Delli Paoli v. United States, 352 U. S. 232 (1957) ........ 13, 15

Gelis v. State, 215 So. 2d 86 (Fla. Ct. App., 2d Dist. (1968) 15

Morrison v. People of State of California, 291 U. S. 282 (1933) 2)

People v. Barrett, 267 Cal. App. 154, 72 Cal. Reptr. 681 (2d

NE, VRV Ee bw 8 nee Sb Mee Ke ONe er RK KS ORY es enbause 15

People v. Bastone, 30 A. D. 2d 828, 293 N. Y. S. 2d 709 (2d

SR Nanny eh sede es cawkys v600 000s e 08d dean 15

People v. Boone, 22 N. Y. 2d 476, 293 N. Y. S. 2d 294, 239

Py MEP Ee ED Son 04 ved endnvsnnsdensecesecener 15

People v. Burwell, 30 A. D. 2d 842, 292 N. Y. S. 2d 965 (2d

PE SEE Sabot chev sR ecb vee neh e eNeseounen sb iuas 15

People v. Cassidy, 30 A. D. 2d 795, 291 N. Y. S. 2d 822 (1st

Re SE 4 ices vd dn dy0 Weed nd cor nndyedessaenaneen 15

People v. Jackson, 22 N. Y. 2d 446, 293 N. Y. S. 2d 268, 239

Oe err rere er rere err 15

People v. Miller, 238 N. E. 2d 407 (Ill. 1968) ............ 15

People v. Scott, 100 Ill. App. 2d 473, 241 N. E. 2d 579 (1st

| EE TLE ETT CETTE TT ETT CEE TEE Phen re 15

People v. Weis, 30 A. D. 2d 877, 292 N. Y. S. 2d 986 (2d

SEE, $4004 5 6 san hie ob ead Necker shuteeseeiuaee 15

Roberts v. Russell, 392 U. S. 293 (1968) ....9, 10, 11, 12, 13, 14, 15

Serro v. United States, 401 F. 2d 989 (D. C. Cir. 1968) .... 15

Smithson y. State, 5 Md. App. 378, 247 A. 2d 543 (1968) .. 15

TABLE OF CASES CITED (Continued).

Page

Speiser v- Rete S57 1). G. Bel GIP) ov cvcvsccvesecvcs 21

Townsend v. Henderson, 405 F. 2d 324 (6th Cir. 1968)

(Tenn.) .seeeeeeeeeeeceeeeeeeeeeeeeeeeeeeneeeeness 15

United States v. Kelly, 399 F. 2d 692 (3d Cir. 1968) ........ 15

United States v. Lyon, 397 F. 2d 505 (7th Cir. 1968) ...... 15

United States ex rel. Johnson v. Yeager, 399 F. 2d 508 (3d

Cir. 1968) (N. J.) .cccccccccccscccccccscccccescvees 15

United States ex rel. Joseph v. LaVallee, 290 F. S. 90 (N. D.

W.V. BOER) CF. V.) nc ccrccvcvcccsicvvccecesccesees 15

STATUTES AND AUTHORITIES CITED.

Page

Act of March 30, 1875, P. L. 35, §1,.as amended, 12 P. S.

GULL coe cece cee ccc e cence reece eee ete eeeeetaeecees 17

Act of May 10, 1927, P. L. 866, 42 P. S. §§ 1041-74 ........ 17

Act of June 15, 1937, P. L. 1743, 42 P. S. §§ 1101-47 ....... 17

Act of May 9, 1949, P. L. 1028 ........ eee cece ee eee eee 17

20 Pennsylvania Law Encyclopedia, Judges, §45 .........-. 17

BU. S. C. $1257(3) .....ccccvccsvcccseccnvccsvscceves 2

Pennsylvania Constitution, Article V, §2 .........++.+.+++- 4,21

U. S. Constitution :

Article I, Section 10 .......cccccccccccscccccccccvees +

Pree ery err re eT te 3, 4, 13

14th Amendment ..........ccccceccccessceees 3, 4, 11, 12, 13

BLEED THROUGH POOR COPY

IN THE

Supreme Court of the United States

October TERM, 1968

No.

HARRY C. SCHWARTZ AND ABRAHAM SIEGEL,

Petitioners,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA. :

OPINIONS BELOW.

The opinion of the Court of Quarter Sessions of Phila-

delphia County denying Petitioners’ motions in arrest of

judgment and for new trials is unreported and is printed at

pages 1b to 25b' of the Appendix hereto. The opinion f

of the Superior Court of Pennsylvania affirming the judg- j

ments of sentence entered by the Court of Quarter Sessions

of Philadelphia County is reported at 210 Pa. Super. 360, j

933 A. 2d 904, and is printed at pages 29b to 49b of the

2 Petition for Writ of Certiorari

Appendix hereto. The per curiam opinion of the Supreme

Court of Pennsylvania affirming the order of the Pennsyl.

vania Superior Court and the dissenting opinions of Justices

Roberts and Cohen, are reported at 432 Pa. 522, 248 A. 94

506, and are printed at pages 56b to 58b of the Appendix

hereto. The per curiam order of the Pennsylvania Supreme

Court denying Petitioners’ application for reargument is

not reported and is printed at page 69b of the Appendix

hereto.

JURISDICTION.

The original order of the Pennsylvania Supreme Court

was entered on November 14, 1968; the order denying

Petitioners’ application for reargument was entered on

January 8, 1969. The jurisdiction of this Court is invoked

under 28 U. S. C. § 1257(3).

1. References followed by the letter “b” are to the Appendix to

this Petition; those followed by the letter “a” are to the certified

printed record of the proceedings in the Court of Quarter Sessions of

Philadelphia County, which is being filed concurrently herewith.

ae)

Petition for Writ of Certiorart

QUESTIONS PRESENTED.

1. Did the admission into evidence at Petitioners’ joint

trial of the unsworn statement of Petitioner Harry C.

Schwartz inculpating Petitioner Abraham Siegel constitute

a violation of Petitioners’ constitutional rights under the

Due Process Clause of the 14th Amendment to the United

States Constitution and under the Sixth Amendment of the

United States Constitution?

2 Did the conviction of Petitioner Harry C. Schwartz

of the common-law offenses of misbehavior in office, official

oppression and malfeasance as a Magistrate of the City of

Philadelphia on the basis of his disposing of valid small

claims brought before him by a collection agency in which

his wife was an officer and stockholder, which conduct had

not theretofore been declared criminal by statute or by

judicial precedent, constitute a violation of Petitioner’s

constitutional rights under the Ex Post Facto and Due

Process Clause of the United States Constitution?

3. Did the affirmance by the Pennsylvania Supreme

Court of Petitioners’ conviction by a divided vote of 3-3,

although Petitioners’ appeal to that tribunal had been

argued before a full constitutional court of seven, violate

Petitioners’ constitutional rights under the 14th Amend-

ment to the United States Constitution?

4 Petition for Writ of Certiorari

CONSTITUTIONAL PROVISIONS INVOLVED.

The first paragraph of Article I, Section 10 of the

United States Constitution provides in pertinent part as

follows :

“*Sec. 10. No State shall . . . pass any... ex

post facto Law... .”’

The second sentence of Section 1 of the 14th Amend.

ment to the United States Constitution provides in perti-

nent part as follows:

“*. . . nor shall any State deprive any person of life,

liberty, or property, without due process or law... .”

The 6th Amendment to the United States Constitution

provides in pertinent part as follows:

“In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him... .”’

Article V, §2 of the Pennsylvania Constitution (as ef-

fective prior to January 1, 1969)? provides as follows:

‘“*The Supreme Court shall consist of seven judges,

who shall be elected by the qualified electors of the

State atlarge....”’

2. On April 23, 1968, the citizens of Pennsylvania adopted an

entirely new judiciary article to the Pennsylvania Constitution which

became effective January 1, 1969. Section 2 of this Article also pro-

vides for a Supreme Court consisting of seven judges.

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Petition for Writ of Certiorart 5

STATEMENT OF THE CASE.

This Petition arises out of the conviction of Petitioners

in the Court of Quarter Sessions of Philadelphia County,

Pennsylvania (now Court of Common Pleas of Philadelphia

County, Criminal Trial Division), of various offenses re-

lating to their conduct in office, as Magistrate in the case of

Harry C. Schwartz, and as Constable in the case of Abra-

ham Siegel. Defendants were sentenced on December 14,

1966 to serve terms of imprisonment of 11 to 23 months in

the Philadelphia County Jail and to pay fines in the total

amount of $10,000 in the case of Magistrate Schwartz and

$5,000 in the case of Constable Siegel (27b-28b). The

jadgments of sentence entered in the trial court were af-

firmed on appeal by the Pennsylvania Superior Court and

by an equally divided Pennsylvania Supreme Court. Review

is now sought in this Court.

The state court proceedings had their beginnings in

the special probe of the Philadelphia magisterial courts

conducted by the Attorney General of Pennsylvania during

the fall and winter of 1964-65. On January 26, 1965, as

part of the probe, Magistrate Schwartz, alone and unrepre-

sented, and without having been advised of his rights to

obtain counsel or to remain silent, was subjected to inten-

sive questioning by two Special Assistant Attorney Gen-

erals concerning the operation of his court. This interroga-

tion, which was not under oath, lasted from approximately

1:30 P. M. in the afternoon until 8:30 P. M. at night, with-

out recess for dinner.

Thereafter, on January 17 and 18, 1966, on the basis of

the evidence obtained during the investigation, Petitioners

were indicted by the Grand Jury on a total of twenty-one

bills of indictment (17a-41a). Magistrate Schwartz was

charged with the common-law offenses of misbehavior in

office, official oppression and malfeasance (20a-25a), and

both Petitioners with the offense of obtaining money by

6 Petition for Writ of Certiorari

faise pretenses and conspiracy, all arising out of the dis.

position of certain specified cases brought before Magistrate

Schwartz by Constable Siegel and the Active Colleetion

Agency (hereinafter referred to as ‘‘ACA’’). The basic

accusation against Magistrate Schwartz was that he acted

improperly by sitting in judgment in these cases with knowl.

edge that his wife was an officer and a principal stockholder

of ACA. The false pretense bills were based upon the aie.

gations that Constable Siegel wrongfully added to the claims

involved in these cases interest, costs and other sums which

he knew to be illegal or unauthorized, and that Magistrate

Schwartz also had knowledge of these additional items and

that they were illegal or unauthorized.

Petitioners moved to quash the Bills of Indictment for

various reasons, including the indefiniteness of the common.

law Bills as against Magistrate Schwartz (44a). The Court

for the most part, denied Petitioners’ motions, although six

of the fifteen original false pretense Bills were quashed

prior to trial because barred by the Statute of Limitations.

An additional Bill was dismissed for Jack of evidence at

the end of the trial.

Petitioners were tried together in a joint trial before

the Honorable John J. McDevitt and a jury from April 12

to 20, 1966. At the outset of the trial, Constable Siegel

moved for a severance, which was denied (181a-82a). Later

both defendants moved to suppress the Commonwealth’s

evidence against them, including the transcribed notes of

the interrogation of Magistrate Schwartz, on the ground

that the evidence was unlawfully obtained.* These motions

3. Petitioners had moved to suppress the evidence on these

grounds prior to their indictment (3a-5a) and a hearing was held

with respect thereto before the Honorable Stanley Greenberg, Judge

of the Court of Common Pleas of Philadelphia County (109a-78a).

Judge Greenberg denied the motions to suppress, but left open for

later disposition any question regarding the admissibility of particular

evidence, including Magistrate Schwartz’ statement. obtained as a re-

sult thereof (14a-16a).

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Petition for Writ of Certiorart 7

yere also denied by the trial judge (50a-56a).*

The principal evidence introduced at the trial con-

cerned the handling and collection of a number of small

daims by Constable Siegel and ACA. In general, the claims

had been referred to ACA by the Philadelphia Credit

Bureau on behalf of the original creditor. These accounts

were referred to ACA only after both the Philadelphia

Credit Bureau and the original creditor had failed in their

attempts to recover the amounts due.

In all of the instances presented to the jury, Constable

Siegel, in order to collect the debt, was required to secure

the issuance of a summons notifying the debtor to appear

for a hearing before Magistrate Schwartz. Some of the

debtors appeared, others did not. In these specific cases

the Magistrate simply entered ‘‘judgment”’ against the

debtor. The actual amount of the judgment, namely the

debt claimed by Constable Siegel on behalf of ACA to be

owed the creditor, was then entered by the clerk in the court

dockets. The amount generally included the principal debt,

interest in the amount of $1.50, $2.50, $3.50 or $4.50 and

costs of $7.50 or $9.00.

There was testimony that ACA had not been requested

to collect interest on these claims and that the proper

amount of costs allowable for service of summons was $5.00

plus mileage. The Court refused to permit cross-examina-

tion or the introduction of evidence as to the custom among

constables, and its approval by public officials, to impose

additional charges, including the amounts of $7.50 (for one

defendant) and $9.00 (for two defendants) as costs for

service of summons to show lack of criminal intent on be-

half of Constable Siegel in collecting these amounts.

4. Judge McDevitt’s opinion is reported at 39 D. & C. 2d 607

(1966).

8 Petition for Writ of Certiorart

The total amount of the over-charges involved in the

four instances set forth in the bills of indictment charging

false pretenses was $24.00.

Magistrate Schwartz’ connection with the above acts

was based upon evidence that prior to his election as

Magistrate in 1960 he had been a constable himself, had

appointed Constable Siegel as deputy constable, and had

operated ACA as a sole proprietorship; that the business

was incorporated immediately after his election; and that

his wife, Lillian, was a principal shareholder, together with

Constable Siegel, in the corporation (182a-93a). There was

also read into the record excerpts from the statement made

by Magistrate Schwartz during his examination by the

Special Assistant Attorneys General with regard to his

relationship with Constable Siegel and ACA (819a-41a,

70b-79b). The Court admitted this evidence, over the ob-

jection of both Petitioners (919a-20a, 70b), although in-

structing the jury that ‘‘the information contained in the

transcript may not be considered or used in any respect

against Constable Siegel, even though Constable Siegel’s

name may appear from time to time in it’’ (804a).

The fourteen remaining indictments were presented to

the jury on the above evidence, and on April 20, 1966, the

jury returned a verdict finding defendants guilty as charged

on all of the bills.

Petitioners thereupon filed motions in arrest of judg-

ment and for new trial in which Magistrate Schwartz al-

leged, inter alia, that ‘‘the charges of which defendant was

convicted are unconstitutionally vague and indefinite’’ and

that ‘‘the defendant was improperly convicted of common

law crimes’’ (65a) and in which Constable Siegel alleged,

inter alia, that ‘‘the Court erred in refusing to grant the

defendant atrial severance’’ (79a). The basis for Constable

Siegel’s contention in this respect was that he was preju-

diced by the introduction into evidence of Magistrate

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Petition for Writ of Certiorart 9

schwartz’ statement and that he was entitled, as a matter

of fairness’ and due process, to a separate trial free from

the effect of such damaging evidence.

These motions were dismissed by the court en banc on

December 7, 1966, in an opinion written by the trial judge,

Judge McDevitt, which expressly rejected the constitutional

questions raised by Petitioners in the allegations recited

above (7b-10b, 15b-16b).

These same constitutional questions were presented on

appeal to the Pennsylvania Superior and Supreme Courts

(53b-54b) and were likewise rejected (38b-42b, 48b-49b).

The appeal in the Pennsylvania Supreme Court was argued

before all seven judges then constituting the Court on Janu-

ary 9, 1968. No decision was rendered, however, until No-

vember 14, 1968, when the Court filed a per curiam opinion,

stating ‘‘The Court, being equally divided, the order of the

Superior Court is affirmed’? (56b). The opinion further

noted that Mr. Justice Musmanno, who had died on October

12, 1968, and who sat with the Court at the time of oral

argument, ‘‘did not participate in the decision of this case’’

(ibid), causing the equally divided Court. Dissenting opin-

ions were filed by Mr. Justice Cohen and by Mr. Justice

Roberts, in which Mr. Justice O’Brien joined. The dissent

of Justice Roberts and Justice O’Brien was expressly based

upon this Court’s decisions in Bruton r. United States, 391

U.S. 123 (1968) and Roberts rv. Russell, 392 U.S. 293 (1968),

which were decided on May 20 and June 10, 1968, re-

spectively, during the pendency of this appeal before the

Pennsylvania Supreme Court. It was their opinion that the

introduction into evidence of Magistrate Schwartz’ state-

ment implicating his co-defendant deprived Petitioners of

their constitutional rights to due process and required the

granting of new and separate trials.

Petitioners immediately filed a Petition for Reargu-

ment with the Pennsylvania Supreme Court, alleging that

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10 Petition for Writ of Certiorari

the Court’s decision was directly contrary to the interven.

ing decisions of this Court in Bruton and Roberts, and that

they were entitled, as a matter of due process, to have the

matter determined by the full constitutional seven judge

Court and a decision thereon rendered by a full four judge

constitutional majority (59b-69b). In particular, Petitioners

requested an opportunity to argue the effect of the Bruton

and Roberts cases, which were handed down subsequent to

the oral argument on Petitioners’ appeals and to argue the

novel constitutional issues raised by the three to three

division of the Court. This petition was denied by the Court

in a per curiam opinion on January 8, 1969 (69b).

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Petition for Writ of Certiorart 11

REASONS FOR ALLOWING WRIT.

1. The decision of the Pennsylvania Supreme Court

affirming the conviction of Petitioners at a joint trial at

which there was introduced into evidence a statement by

Magistrate Sci:wartz inculpating his co-defendant Constable

Siegel in violation of Petitioners’ rights to due process of

law under the 14th Amendment to the United States Con-

stitution is directly contrary to the decisions of this Court

‘n Bruton v. United States, 391 U. S. 123 (1968) and Roberts

r. Russell, 392 U. S. 293 (1968) and must be overruled.

9. The decision of the Pennsylvania Supreme Court

implicitly holding that the conviction of Petitioner Harry C.

Schwartz of the common-law offenses of misbehavior in

office, official oppression and malfeasance on the basis of

his sitting in judgment on the ACA claims with knowledge

that his wife was an officer and stockholder of ACA did not

violate the Petitioner’s rights to due process of law under

the 14th Amendment to the United States Constitution, al-

though this conduct had not theretofore, in the 200 year

history of the magisterial system, been declared criminal by

statute or by judicial precedent, is contrary to the principles

enunciated by this Court in Bouie v. City of Columbia, 378

U.S. 347, 352-54 (1964), and constitutes a determination of

a substantial federal constitutiona’ issue not previously

ruled upon by this Court.

3. The decision of the Pennsylvania Supreme Court

implicitly holding that the affirmance of Petitioners’ con-

victions by a three-to-three vote of less than all of the seven

judges comprising the Court and hearing the argument

thereon did not violate Petitioners’ rights to due process of

law under the 14th Amendment to the United States Con-

stitution constitutes a determination of a substantial federal

constitutional issue not previously ruled upon by this Court.

12 Petition for Writ of Certiorari

1. The Decision of the Pennsylvania Supreme Court };

Directly Contrary to the Decisions of This Court in

Bruton v. United States and Roberts v. Russell.

At the very outset of the trial in the state court, Peti.

tioner Abraham Siegel, knowing that the Commonwealth

intended to introduce into evidence the statement of his ¢p-

defendant, Harry C. Schwartz, moved for severance of the

joint trial. This motion was denied and the Commonwealth

did in fact introduce the transcribed notes of Magistrate

Schwartz’ interrogation as an exhibit and had portions

thereof read into the record before the jury (70b-79b).

During the course of the statement, Magistrate

Schwartz continually referred to Constable Siegel and their

mutual relationship. In particular, there was read to the

jury portions of the statement in which Magistrate

Schwartz noted that Constable Siegel’s compensation from

ACA had increased greatly after his own election as Magis.

trate and that it was Constable Siegel, not the creditor,

who added interest ‘‘merely to try to collect the claim”

(74b-75b, 77b-78b) These excerpts clearly had the effect of

inculpating Constable Siegel in a conspiracy with Magis.

trate Schwartz as charged to use their public offices for the

purpose of self-enrichment and were obviously prejudicial to

the conduct of his defense, despite the trial court’s instruc-

tions to the jury not to consider the statement with regard

to Constable Siegel. Since Magistrate Schwartz did not

take the stand, Constable Siegel had no way of confront-

ing the author of these damaging comments so as to refute

their implications. Under these circumstances, the refusal

of the state courts to grant Constable Siegel a separate

trial deprived him of his right to due process of law under

the 14th Amendment to the United States Constitution and

was directly contrary to the teachings of this Court in

Bruton v. United States, supra and Roberts v. Russell,

supra.

BLEED THROUGH POOR COPY

Petition for Writ of Certiorart 15

In Bruton, the Court held that the introduction into

evidence at a joint trial of the statement of one codefend-

ant which inculpates a second defendant constitutes a vio-

lation of the second defendant’s right of confrontation

under the 6th Amendment to the United States Constitu-

tin. The opinion expressly repudiated the rule of Delli

Paoli v. United States, 352 U. S. 232 (1957), relied upon

by the lower state courts, that statements of this sort were

admissable provided that the jury was instructed to dis-

regard the statement as to the second defendant (391 U. S.

at 135-37) :

‘‘(T]here are some contexts in which the risk that

the jury will not, or cannot, follow instructions is so

great, and the consequences of failure so vital to the

defendant, that the practical and human limitations of

the jury system cannot be ignored. . . . Such a context

is presented here, where the powerfully incriminating

extrajudicial statements of a codefendant . . . are

deliberately spread before the jury in a joint trial. . .

‘<(I]n the context of a joint trial we cannot accept

limiting instructions as an adequate substitute for

petitioner’s constitutional right of cross-examination.

The effect is the same as if there had been no instruc-

tion at all.’’

In Roberts, the Court held that the constitutional prin-

ciples enunciated in Bruton, a federal court proceeding,

were equally applicable to state court proceedings under

the Due Process Clause of the 14th Amendment to the

United States Constitution, and were further applicable

retroactively to criminal trials conducted prior to the

Bruton opinion. These decisions require the reversal of

14 Petition for Writ of Certiorari

the judgments below and the grant of new and separate

trials to both Petitioners.

This is obviously true as to Constable Siegel. It is

equally so as to Magistrate Schwartz. Under Bruton ang

Roberts, the prosecution has the choice of trying two or

more defendants jointly and foregoing the use of state.

ments derived from any of them, or trying them separately

and utilizing the statement of one of the defendants in his

own trial. In the instant case, the Commonwealth did

both and thereby gained the illegal advantage over Magis.

trate Schwartz of the admissibility of the statement, as well

as the inferences resulting from the joint trial with the

defendant, Abraham Siegel, who was alleged to have

actively conducted the collection business which was the

crux of the Commonwealth’s case.

Certainly the conduct of Magistrate Schwartz’ defense

was seriously prejudiced by the presence of both of these

factors. The statement was the principal item of evi-

dence against him; it provided proof of the vital elements

of the Commonwealth’s case against the Magistrate other.

wise missing from the evidence. If it had been excluded,

there would not have been sufficient evidence to support

Magistrate Schwartz’ conviction; if there had been a sep-

arate trial, his strategy in counteracting its effect could

have been different. Thus, it is clear that Magistrate

Schwartz’ constitutional right to due process and a fair

trial, as well as Constable Siegel’s, were violated as a re-

sult of the procedure followed in this case, and that he,

too, is entitled to a reversal under the doctrine of the

Bruton and Roberts cases.

The decisions in both Bruton and Roberts were handed

down during the pendency of Petitioners’ appeals before

the Pennsylvania Supreme Court, after oral argument but

before that Court’s disposition thereof. Although Peti-

BLEED THROUGH POOR COPY

Petition for Writ of Certiorart 15

tioners did not have an opportunity to brief and argue the

effect of these cases, the Court was aware of their existence

and that they overruled the precedents (e.g., Delli Paoli v.

United States, supra) relied upon by the lower courts in

rejecting Constable Siegel’s request for severance. The

dissenting opinion of Mr. Justice Roberts expressly pointed

out to the Court that Bruton and Roberts rendered the

procedure followed in the instant trial constitutionally de-

fective. The affirmance of Petitioners’ convictions despite

this clear warning is contrary not only to the cited deci-

sions of this Court, but to the decisions of the many federal

and state courts,® including the Pennsylvania Superior

Court,° which have set aside convictions obtained under

the same invalid procedure. For this reason alone, it is

submitted, a writ of certiorari should be issued to review

the order of the Pennsylvania courts in the instant matter.

5. People v. Barrett, 267 Cal. App. 154, 72 Cal. Reptr. 681 (2d

Dist. 1968) ; Gelis v. State, 215 So. 2d 86 (Fla. Ct. App., 2d Dist.

1968); Branch v. State, 212 So. 2d 29 (Fla. Ct. App. 2d_ Dist.

1968) ; People v. Miller, 238 N. E. 2d 407 (Ill. 1968) ; People v.

Scott, 100 Ill. App. 2d 473, 241 N. E. 2d 579 (1st Dist. 1968) ;

Smithson v. State, 5 Md. App. 378, 247 A. 2d 543 (1968) ; People v.

Boone, 22 N. Y. 2d 476, 293 N. Y. S. 2d 294, 239 N. E. 2d 885

(1968) ; People v. Jackson, 22 N. Y. 2d 446, 293 N. Y. S. 2d 268,

39 N. E. 2d 869 (1968) ; People v. Bastone, 30 A. D. 2d 828, 293

N. Y. S. 2d 709 (2d Dep't. 1968) ; People v. Weis, 30 A. D. 2d 877,

202 N. Y. S. 2d 986 (2d Dep't. 1968) ; People v. Burwell, 30 A. D.

2d 842, 292 N. Y. S. 2d 965 (2d Dep't. 1968) ; People v. Cassidy, 30

A. D. 2d 795, 291 N. Y. S. 2d 822 (1st Dep't. 1968) ; United States

er rel. Johnson v. Yeager, 399 F. 2d 508 (3d Cir. 1968) (N. J.);

United States ex rel. Joseph v. LaVallee, 290 F. S. 90 (N. D.N. =

1968) (N. Y.); Townsend v. Henderson, 405 F. 2d 324 (6th Cir.

1968) (Tenn.) ; Serro v. United States, 401 F. 2d 989 (D. C. Cir.

1968) ; United States v. Kelly, 399 F. 2d 692 (3d Cir. 1968) ; Atwell

v. United States, 398 F. 2d 507 (5th Cir. 1968) ; United States v.

Lyon, 397 F. 2d 505 (7th Cir. 1968).

6. Commonwealth v. Bosman, 213 Pa. Super. 258, 247 A. 2d

647 (1968).

16 Petition for Writ of Certiorari

2. The Decision of the Pennsylvania Supreme Court Js

Contrary to the Decision of This Court in Bouie y,

City of Columbia.

Throughout these proceedings, Magistrate Schwartz

has contended that Bills of Indictment Nos. 881-883 and

885 were unconstitutionally vague and indefinite and that

his conviction thereon violated the due process and ex post

facto clauses of the United States and federal constity.

tions. These Bills charged Magistrate Schwartz with

committing the common-law offenses of misbehavior in

office (Bill Nos. 881 and 882), official oppression (Bill Nos.

881 and 883) and malfeasance (Bill Nos. 881 and 885):

‘“*, . . by wilfully, knowingly and corruptly issuing

civil summonses and sitting in judgment upon the civil

cases set forth and at the dates set forth in the at-

tached list, with the knowledge that his wife, Lillian

Schwartz, was an officer and principal owner of the

Active Collection Agency, Inc., which then and there

was the collection agency or subagent of the various

creditors of said claims, would obtain a direct pecuni-

ary benefit from the results of the said cases by re-

ceiving a commission on all judgments and costs paid

by the alleged debtors and that he, therefore, would

indirectly benefit thereby.’’

The principal defect in these allegations is the total

lack of any statutory or judicial precedent prohibiting a

magistrate from disposing of a case in which his wife has

an indirect interest such as that alleged herein. This is

the first occasion such conduct has been considered crim-

inal, despite the 200 year history of the magisterial sys-

tem in the City of Philadelphia and the numerous legisla-

tive efforts which have been made to correct the abuses

Petition for Writ of Certiorart 17

therein: Act of May 10, 1927, P. L. 866, 42 P. S. $§ 1041-74;

Act of June 15, 1937, P. L. 1743, 42 P. S. §§ 1101-47; Act

of May 9, 1949, P. L. 1028.

Both the Trial court (9b) and the Pennsylvania

Superior Court (42b)*’ conceded that there was no

legislative or judicial precedent pertaining to Magistrate

Schwartz’ conduct in sitting in the ACA cases, but none-

theless upheld the conviction on these charges as an exten-

sion of old common-law crimes to new conduct. In other

words, the state courts, unable to find an established crime,

whether statutory or common law, to fit the facts of this

case, retroactively created a new crime which did. It is

submitted that this judicial legislation of criminal law was

constitutionally improper under the principles promulgated

by this Court in Bouie v. City of Columbia, supra.

The Bouie case concerned the conviction of two negro

college students under the South Carolina criminal tres-

pass statute as a result of a sit-in demonstration at a

drugstore lunch counter. The statute prohibited the ‘‘entry

upon the lands of another . . . after notice from the owner

or tenant prohibiting such entry. . . .’’ It was conceded

that the defendants had not been notified that their pres-

ence in the restaurant area was prohibited prior to their

entry therein, although they admittedly refused to leave

when requested to do so. Their conviction was affirmed,

however, by the South Carolina Supreme Court on the

7. The Superior Court, in passing, did refer to the Act of March

30, 1875, P. L. 35, § 1, as amended, 12 P. S. § 111, which provides

for a change of venue when the judge, or a near relative of the judge,

is a party to a suit or is personally interested in the event thereof.

This act pertains solely to venue, and has no relation whatsoever to

criminal responsibility. It is inapplicable, moreover, to situations

such as involved herein where the relative is merely acting as an agent

or as counsel, or where the relationship is by affinity rather than by

consanguinity. 20 Pennsylvania law Encyclopedia, Judges, § 45,

and cases cited therein.

18 Petition for Writ of Certiorari

basis of a judicial construction, adopted by the court in a

companion case, extending the coverage of the statute

to the act of remaining on the premises of another after

receiving notice to leave. The defendants contended (378

U. S. at 350):

**. . . that by applying such a construction of the

statute to affirm their convictions in this case, the

State has punished them for conduct that was not

criminal at the time they committed it, and hence has

violated the requirement of the Due Process Clause

that a criminal statute give fair warning of the conduct

which it prohibits... .”’

This Court agreed (378 U. S. 351-52) :

“It is true that in the . . . typical applications

of the principle, the uncertainty as to the statute’s

prohibition resulted from vague or overbroad language

in the statute itself, and the court concluded that the

statute was ‘void for vagueness.’ The instant case

seems distinguishable, since on its face the language

. of the South Carolina Code was admirably nar.

row and precise. . . . The thrust of the distinction,

however, is to produce a potentially greater depriva-

tion of the right to fair notice in this sort of case,

where the claim is that a statute precise on its face

has been unforeseeably and retroactively expanded by

judicial construction, than in the typical ‘void for

vagueness’ situation. . . . When a statute on its face

is narrow and precise, however, it lulls the potential

defendant into a false sense of security, giving him no

reason even to suspect that conduct clearly outside

the scope of the statute as written will be retroactively

brought within it by an act of judicial construction. ...

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Petition for Writ of Certiorari 19

“There can be no doubt that a deprivation of the

right of fair warning can result not only from vague

statutory language but also from an unforeseeable and

retroactive judicial expansion of narrow and precise

statutory language. As the Court recognized in Pierce

y. United States, 314 U. S. 306, 311, ‘judicial enlarge-

ment of a criminal Act by interpretation is at war with

a fundamental concept of the common law that crimes

must be defined with appropriate definiteness.’ Even

where vague statutes are concerned, it has been pointed

out that the vice in such an enactment cannot ‘be cured

in a given case by a construction in that very case plac-

ing valid limits on the statute’. . . .’’ (Emphasis

added.)

These principles are equally applicable to the instant

case. The common-law crimes alleged herein, such as of-

feial oppression, are so vague and indefinite in description

that they do not, without prior judicial application to

specific conduct, inform the public as to the nature of the

uts prohibited thereby and this defect is aggravated, not

cared, by the judicial extension to conduct not theretofore

proscribed. If the judicial expansion of a precisely worded

criminal statute poses ‘‘a potentially greater deprivation

of the right tu fair notice’’ than the judicial application of

«vaguely worded statute, how much more the deprivation

where there is not even a statute tu begin with. Surely,

in the absence of a statute, or judicial precedent, there is

an even greater likelihood that a potential defendant will be

lulled ‘‘into a false sense of security’’ that his conduct

will not be retroactively circumscribed.

This is particularly true here. The transfer by Magis-

trate Schwartz, immediately after his election, of his owner-

ship in ACA to a corporation in which his wife was a

20 Petition for Writ of Certiorari

stockholder and officer, a matter of public record, evidences

his good faith belief that he was divesting himself of any

improper interest he may have had in a possible litigant

in his court. There was no standard at that time by which

he could judge that any more was required of him; none,

we submit can be retroactively established by the courts,

As this Court noted in Bowie (378 U. S. 353-54):

**[AJn unforeseeable judicial enlargement of a crini-

nal statute, applied retroactively, operates precisely

like an ex post facto law, such as Art. I, § 10, of the

Constitution forbids . . . an ex post facto law has been

defined by this Court as one ‘that makes an action done

before the passing of the law, and which was innocent

when done, criminal. . . . If a state legislature is

barred by the Ex Post Facto Clause from passing such

a law, it must follow that a State Supreme Court is

barred by the Due Process Clause from achieving pre-

cisely the same result by judicial construction. Cf.

Smith v. Cahoon, 283 U.S. 553, 565. The fundamental

principle that ‘the required criminal law must have

existed when the conduct in issue occurred,’ . . . must

apply to bar retroactive criminal prohibitions emanat-

ing from courts as well as from legislatures. If a

judicial construction of a criminal statute is ‘unex.

pected and indefensible by reference to the law which

had been expressed prior to the conduct in issue,’ it

must not be given retroactive effect... . .’’ (Emphasis

added.)

This principle, invalidating the creation of new crimes

by judicial interpretation of legislation must, a fortiori,

restrict the judicial creation of new common-law crimes.

Clearly then, the decision of the Pennsylvania Supreme

Court in affirming such judicial legislation by the trial court

BLEED THROUGH POOR COPY

Petition for Writ of Certiorart 21

conflict with the basic premise underlying this Court’s

is in

‘ion in Bouie. At the very least, the conclusion of the

sate courts that Magistrate Schwartz’ conviction did not

violate his right to due process in this respect constitutes a

determination of a substantial, and novel, federal consti-

tion which should be determined by this Court.

tutional ques

3, The Affirmance of Petitioners’ Convictions by a Divided

Three-to-Three Vote of the Pennsylvania Supreme

Court Violates the Due Process Clause of the 14th

Amendment.

Article V, §2 of the Pennsylvania Constitution® pro-

vides that the Supreme Court of Pennsylvania ‘‘shall con-

gist of seven judges’’, Petitioners’ appeals were argued

tothe Court on January 9, 1968 before all seven judges then

constituting the Court, and they are entitled to have the

matter decided by the full court. There is no provision in

the State Constitution or statutes authorizing the Court to

act with less than seven judges or to render a decision other

than by a majority vote of four. In particular, there is no

authority permitting the Court to affirm a criminal convic-

tion by an evenly divided vote.

On the contrary, the principles of due process and the

presumption of innocence which underlie our criminal pro-

cedure preclude the affirmance of the judgments in this

criminal matter by a divided vote. The Commonwealth has

the burden in a criminal matter of proving the factual ele-

ments of guilt beyond a reasonable doubt. Morrison v.

People of State of California, 291 U. S. 282, 288-89 (1933) ;

Speiser v. Randall, 357 U.S. 521, 523-24 (1958); Brooks v.

United States, 164 F. 2d 142 (Sth Cir. 1947). This is a

8. Although Article V of the Pennsylvania Constitution was

completely revised effective January 1, 1969, the provision as to the

number of justices constituting the Court remained unchanged. See

Note 2, supra.

urane

aoe ca

22 Petition for Writ of Certiorari

burden which continuously remains on the Commonwealth

until final adjudication by a court of last resort. Thus, the

Commonwealth should have the burden of convincing a con.

stitutional majority of the appellate court that there is no

legal deficiency, in substance or in procedure, with respect

to the verdict reached by the jury.

This issue clearly could not have been anticipated prior

to the decision of the Pennsylvania Supreme Court and

therefore was not briefed nor argued before that Court.

It was presented to the Court by way of a Petition for Re.

argument (59b-69b), almost immediately after Petitioners

received notice of the Court’s original decision. The Court's

rejection of this Petition, without further argument, also

constitutes a determination of a novel federal constitutional

issue which should be ruled upon by this Court.

CONCLUSION.

For the reasons set forth above, certiorari should be

granted.

Respectfully submitted,

Marvin Comisky,

Epwin P. Rome,

Goncer M. Kresrat,

Four Penn Center Plaza,

Philadelphia, Penna. 19103,

Attorneys for Petitioners.

Of Counsel:

Buiank, Rome, Kiaus & Comisxy.

APPENDIX.

opINION AND ORDER SUR MOTIONS IN ARREST

OF JUDGMENT AND NEW TRIAL.

(Both cases.)

Before McDevitt, P. J.; Barsrert, J; and Spaers, J.

Defendants, Abraham Siegel and Harry C. Schwartz,

yere arrested, indicted, tried and found guilty on a variety

of charges all arising out of the investigation of the Magis-

trates’ Courts in the City of Philadelphia, which was com-

pleted in April 1965. Several issues are raised by defend-

ants on these Motions which will be considered and disposed

of, The principal charge is that these defendants conspired

together to commit certain acts which resulted in an abuse

of the powers of their respective offices.

The evidence, in view of the verdicts against both de-

fendants (Commonwealth v. Reginelli, 208 Pa. Superior

Ct. 344, 349 (1966) ), established the following facts:

In 1954, Harry C. Schwartz was an elected Constable

in the City of Philadelphia. On January 4, 1955, he ap-

pointed defendant, Abraham Siegel as Deputy Constable

(N. T. 47). Siegel took the oath of office on February 14,

1955. Subsequently, and on November 5, 1957, Siegel was

elected Constable, effective for six years from January 2,

1958 (N. T. 49). Defendant, Schwartz, was reelected as

Constable on the same date, effective as of January 2, 1958

(N. T. 49).

Schwartz was thereafter appointed to serve as Magis-

trate of Court No. 11, effective as of December 23, 1960

(N. T. 50), and was elected to serve a full six-year term

effective from January of 1962 (N. T. 50-51). Constable

Siegel was again reelected to serve a six-year term effective

from January of 1964.

(1b)

2b Opinion and Order Sur Motions (Both)

At the time when defendant Schwartz was a duly elected

Constable of the City of Philadelphia, and on January 20,

1954, he caused the name of Active Collection Agency to be

registered as the name under which he would operate his

collection business (N. T. 53, 54). On January 4, 1961,

articles of incorporation were filed with and approved by

the Secretary of the Commonwealth, incorporating Active

Collection Agency, Inc. (N. T.55). As of January 10, 1961,

the officers of the corporation were: Lillian Schwarty,

President; Sidney B. Goldstein, a Certified Public Account.

ant (N. T. 816), Secretary; and Abraham Siegel, Treasurer

(N. T. 57).

Lillian Schwartz in and was at all times material to

this case, the wife of defendant, Harry C. Schwartz (N. T.

57). Lillian Schwartz was not active in the operation of the

collection business, although she received a substantial

salary as President of the corporation (N. T. 89-94).

Before Schwartz was elected as a Magistrate, he did

collection work for Philadelphia Credit Bureau (N. T. 71).

Active Collection Agency, Inc. continued to do work for

Philadelphia Credit Bureau, but in much larger volume

(N. T. 86-94; 685-687).

On numerous occasions, defendant, Siegel made im-

proper service of the summons (N. T. 273, 485, 489, 550,

594) ; improper service of execution and levy; or failed to

make a levy of any kind (N. T. 557) ; and filled in as stand-

ard practice identical descriptions of property levied upon

in his returns (See Commonwealth Exhibits (-6, 7, 14, 15,

16, 19, 23, 24, 26, 27). In the cases proved, certain amounts

of money were added to the principal debt owed by the

debtor. In each ease, arbitrary amounts of interest were

added (N. T. 234, 655, 708-719), which were pocketed by the

collection agency and not paid to the creditor (N. T. 67, 75,

105-06). Siegel also added mileage fees without regard to

BLEED THROUGH POOR COPY

Opinion and Order Sur M otions (Both) 3b

actual mileage (N. T. 689-707), and notwithstanding that

the ‘service’? was often improperly made. In addition, in

each case costs were imposed of $7.50 or $9.00, in direct

contravention of the statutory fee of $2.50 (N. T. 581-589).

The nexus or connection between Schwartz and Siegel

yas proved by the following facts. Magistrate Schwartz

had been a Constable prior to his election as a Magistrate.

4s a Constable he appointed Siegel as his Deputy Con-

stable, and also operated the Active Collection Agency.

Upon his elevation to the minor judiciary, Schwartz turned

over the collection business to his wife, Lillian, and defend-

ant Siegel, who continued on as a Constable. Schwartz,

notwithstanding his wife’s position in Active (she owned

75% of the voting and 65% of the preferred stock from the

date of incorporation until the end of 1963; thereafter 50%

of each and received a salary for 1961 of $5,200.00, which

was increased to $18,785.94 in 1964) continued to sit in

judgment on cases where the creditor was represented by

Active Collection Ageney, Inc. The inescapable conclu-

sion is that the business of Active increased as a direct

result of the relationship between Siegel and Schwartz.

Significantly, although Mrs. Schwartz was president and

principal stockholder of Active, and received until 1964, a

substantially greater proporiion of the profits by way of

what was called salary, she actually contributed no actual

work or effort to the collection business (N. T. 819). De-

fendant Siegel was, for ali practical purposes, Active Col-

lection Agency, Ine. Philadelphia Credit Bureau’s repre-

sentative testified he dealt directly with Siegel (N. T. 475).

Although Active had its own office (N. T. 55), Siegel

operated primarily out of Magistrate Court No. 11. In vir-

tually every ease testified to by Magistrate Schwartz’s

Clerk, the docket or daybook contained only the name of

Seon) A

te SUA a a la TAREE vi

4b Opinion and Order Sur Motions (Both)

the parties, address of defendant, $2.50 for costs, summons

number, date of issuance and return date (N, T. 492-509),

To ascertain the other information about the disposition of

cases before Magistrate Schwartz, it was necessary to ex.

amine the so-called ‘‘jackets’’ in which the suit papers

and other documents were kept (N. T. 492-509). On the

face of these jackets appeared the notation *«judgment”’,

and amounts corresponding to the principal debt, interest

and costs (N. T. 506-507). Notations in the dockets or day.

books were made by the Magistrate’s Clerk (N. T. 508),

however notations on the jackets were made by the Con.

stable (N. T. 522).

In at least one case, Magistrate Schwartz entered a

judgment where the debt due exceeded $100.00, the limit of

his civil jurisdiction (N. T. 467-468; 484-489). Interest and

costs added to the judgment increased the debtor’s liability

from $105.36 to $129.60 (N. T. 489).

The pattern of Siegel’s conduct was that he would re.

ceive an IBM card or notice of claim with the name and

address of the debtor, the amount of the real debt and the

date of the last communication or payment by the debtor,

Siegel would then add to the claim an arbitrary sum for

interest (N. T. 357-361, 722) and in some cases, without

explanation, increased the amount of the real debt (N. T.

263-265; 444). .\ summons was then made out by Siegel

(N. T. 327, 330-331), and after issuance by Magistrate

Schwartz, service was made, often by mail rather than per-

sonally (N. T. 485, 489, 593, 594, 658) as required by law

(N. T. 352-355) and on some occasions the summons was

never actually served (N. T. 273, 550). This was followed

by the entry of judgment by Schwartz in favor of the cred-

itor (N. T. 421). Although by law the Constable is entitled

to receive a fee of $2.50 plus $.10 per mile for service of the

summons (N. T. 361), he was consistently awarded $5.00

BLEED THROUGH POOR COPY

Opinion and Order Sur Motions (Both) db

for one defendant and $6.50 for two defendants, without

regard to the actual amount to which he was entitled and

yithout regard to the improper service (N. T. 276, 459-460,

539). The Constable would fill in the amount of the debt on

the summons after its issuance by Magistrate Schwartz

(N. T. 327).

After judgment was entered, Schwartz permitted

Siegel to send out writs of execution under his, Schwartz’

name, but Schwartz never followed up Siegel’s actions

(N. T. 708-721). Siegel’s levies were uniform in their im-

propriety—notices of levy and inventory of goods levied

upon were prepared in Siegel’s office and were all virtually

identical. See Commonwealth Exhibits C-6, 7, 14, 15, 16,

19, 23, 24, 26, 27. Notices were either mailed to the debtor

or left in the debtor’s mailbox, without entry into the

debtor’s home. Siegel claimed and collected fees for this

service which was improperly performed (N. T. 485, 489,

539, 660), and the fees claimed and collected did not con-

form to the statutory fee bill. The various creditors did

not ask that interest be added or collected, and never re-

ceived more than the real debt (N. T. 67, 75, 105-106). The

creditor sometimes received less than the real debt even

though it was actually collected in full (N. T. 536).

Finally, by Magistrate Schwartz’ own admission, he

was Active Collection Agency until he became a Magistrate

(XN. T. 815). Thereafter, he stated ‘‘We formed a corpora-

tion in that name immediately after I became a Magistrate”’

(N. T. 815). He also confirmed that his wife, Lillian

Schwartz, retained the controlling interest in the corpora-

tion, although generally she did not perform any vital

services for the business (N. T. 819). The tenor of the

statements made by Schwartz clearly indicates that, even

after he became a Magistrate, he regarded himself as being

6b Opinion and Order Sur Motions (Both)

in the collection business (N. T. 819-821). To make that

even clearer, Schwartz said ‘‘I handle all this business for

one reason. If my wife makes money, I’m going to benefit

by it because I have an opportunity to spend some of the

money she makes, being the president of the company that

employs the Constable who handles the work.”’

On this state of the record, the defendants assert that

the Commonwealth failed to make out a case. The basic

charge against these defendants is that they conspired to.

gether to cheat and defraud, abuse and misuse their offices

of public trust to personal advantage. The Penal Code

Act of June 24, 1939, P. L. 872, § 302, 18 P. S. § 4309,

provides:

‘‘Any two or more persons who falsely and mali-

ciously conspire and agree to cheat and defraud any

person of his moneys, goods, chattels or other property,

or the prejudice of another, are guilty of con-

spiracy. . .’’

The conspiracy is the agreement, combination or com-

mon understanding, to do an unlawful act, or to do or com-

mit a lawful act in an unlawful manner. Commonwealth

v. Rosen, 141 Pa. Superior (Ct. 272 (1940). The heart of the

offense is the common understanding, no matter how it came

into being. Commonwealth v. Yobbagy, 410 Pa. 172 (1963);

Commoniealth v. Neff, 407 Pa. 1 (1962).

**Evidence to sustain a charge of conspiracy must be

‘such as reasonably and naturally justifies an inference of

guilt of the accused and is of such volume and quality as to

overcome the presumption of innocence and satisfy the

jury of the accused’s guilt beyond a reasonable doubt. . . .

A conviction will not be allowed to stand if it is based solely

upon suspicions and conjectures. . . .’’’ Commonwealth

BLEED THROUGH POOR COPY

———— lr

Opinion and Order Sur Motions (Both) 7b

», Yobbagy, 410 Pa. 172, 176-77 (1963) ; Commonwealth v.

Frans, 190 Pa. Superior Ct. 179, 201 (1955).

At the same time, the acts and conduct of the defend-

ants themselves, done in pursuance of the original scheme,

may be considered as proof of the unlawful intent, and

the conspiracy may be established by proof of the relation,

conduct or circumstances of the parties, Commonwealth

r. Smith, 151 Pa. Superior Ct. 113, 116, 117 (1943). Other-

wise stated, where the conduct of the parties indicates that

they were acting together with a common and corrupt pur-

pose in view, the jury may properly infer that a conspiracy

did exist. Commonwealth v. Albert, 151 Pa. Superior Ct.

184 (1943) ; Commonwealth v. Rosen, 141 Pa. Superior

('t. 272 (1940).

We conclude that the evidence was of such quality

and quantity as to prove, beyond a reasonable doubt, that

Magistrate Schwartz and Constable Siegel did conspire

together to commit the subversion of judicial process

charged. It is inconceivable that these two defendants

could have operated as closely together as they did, vir-

tually sharing the same office facilities, and with such

identity of purpose and design, without there having been

a common understanding or agreement existing between

them. Commonwealth v. Cohen, 203 Pa. Superior Ct. 34

(1964), cert. denied, 379 U. S. 985. The nexus or connec-

tion between these two defendants was much more con-

eretely demonstrated than was the case in Commonwealth

v. Reginelli, 208 Pa. Superior Ct. 344 (1966) and Common-

wealth v. Price, 208 Pa. Superior Ct. 356 (1966).

Defendant, Schwartz, was also separately indicted and

found guilty of the crimes of malfeasance and misbehavior

in office and official oppression, and both defendants were

found guilty of having obtained money by false pretenses.

Schwartz argues that the charges of official oppression,

malfeasance and misbehavior in office are too vague and

8b Opinion and Order Sur Motions (Both)

indefinite and therefore may not be permitted to stand,

citing Bouie v. City of Columbia, 378 U. S. 347 (1964).

Lanzetta v. New Jersey, 306 U. S. 451 ( 1939) ; and Chester

v. Elam, 408 Pa. 350 (1962).

Defendant further argues that there is no authority

for holding as criminal, his conduct in sitting in judgment

on cases wherein he has an indirect pecuniary interest.

And to buttress this argument, in his brief defendant states

‘*In not one of these cases was it alleged or shown that the

debtor was not indebted to the creditor or that the adjudi-

cation against the debtor was otherwise improper.’ This

is not so. (See e.g., N. T. 216-234; 257-291.)

Magistrate Schwartz asks this Court to assume, in the

face of evidence and jury verdicts to the contrary, a com-

plete separate identity between himself and Siegel and

Lillian Schwartz. He also asks this Court to find as a mat-

ter of law that he cannot be implicated in Siegel’s conduct.

What the evidence revealed was a systematic scheme

whereby Schwartz abused and misused his office as Magis-

trate, while attempting to remain within the strict letter

of law applicable to his duties as a Magistrate. See, e.g.,

Act of March 30, 1875, P. L. 35, §1, as amended, 12 P. §.

§ 111; Act of April 14, 1934, P. L. 333, § 37, 17 P. 8. § 581,

which require disqualification of a judge when the judge or

a near relative is a party or is interested in the outcome,

and Act of June 15, 1937, P. L. 1743, No. 368, $3, 42 P.S.

§ 1103, which prohibits magistrates from engaging in any

other business, and prohibits him from receiving money or

other thing of value for the performance or nonperform-

ance of his duties.

At the same time, Schwartz apparently seeks to ab-

solve himself of responsibility because of his delegation of

authority. Salzman, his clerk, kept Schwartz’s books and

said this was his responsibility (N. T. 322), and Siegel

wee

Opinion and Order Sur Motions (Both) 9b

made the notations on case jackets (N. T. 327, 330-331, 522-

504). The responsibility for maintaining these records

rests upon the Magistrate. Act of June 15, 1937, P. L. 1748,

No. 368, §§ 6, 7 as amended, 42 P. S. §§ 1106, 1107.

The mere fact that there is no precise precedent, and

no specific statute which makes Schwartz’ conduct criminal

dues not bar indictment and conviction. See Kessler,

Penna. Criminal Procedure, vol. 1, p. 170; Act of June 24,

1939, P. L. 872, § 1101, 18 P. S. § 5101. See also Common-

wealth v. Mohn, 52 Pa. 243 (1866) ; Commonwealth v. Mc-

Hale, 97 Pa. 397, 408-411 (1881) ; Commonwealth v. Evans,

190 Pa. Superior Ct. 179, 227, 228 (1959), aff’d, 399 Pa.

387, cert. denied, 364 U. S. 899, rehearing denied, 364 U.S.

939; Commonwealth v. Cano, 182 Pa. Superior Ct. 524, 532-

536 (1956) (the rule invoked ‘‘is applicable only to such

ct which is inherently offensive to the public peace,

condu

morals, and economy, . . .”’); Commonwealth v. Mochan,

177 Pa. Superior Ct. 454 (1959) ; Commonwealth v. Peoples,

148 Pa. Superior Ct. 595, 598-601 (1942), reversed on other

grounds, 345 Pa. 576; Commonwealth v. Brownmiller, 141

Pa. Superior Ct. 107, 120-122 (1940); Commonwealth v.

DeGrange, 97 Pa. Superior Ct. 181 (1929) ; Commonwealth

v, Miller, 94 Pa. Superior Ct. 499 (1928) ; Commonwealth

v. Hartung, 39 A. 2d 734 (Pa. Superior Ct. 1944); ef,,

Commonwealth v. Neff, 195 Pa. Superior Ct. 420 (1961),

reversed for insufficiency of evidence, 407 Pa. 1; Common-

wealth v. Lawton, 170 Pa. Superior Ct. 9 (1951).

Paraphrasing Judge Jacobs in Commonwealth v. Mc-

Karski, 208 Pa. Superior Ct. 376, 379 (1966), the question

involved on these Motions is whether the acts charged in

the indictments and proven to the satisfaction of the jury

amount to offenses for which the perpetrator may legally

be indicted and punished under the laws of this Common-

RYDER Sy

OLR ROY ORI EIT ene

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RIA 2 ta ea ORR Rha

10b Opinion and Order Sur Motions (Both)

wealth. The Superior Court, quoting Judge Gawthrop in

Commonwealth v. Miller, supra, at 507, said:

‘*The common law is sufficiently broad to punish asa

misdemeanor, although there may be no exact prece.

dent, any act which directly injures or tends to injure

the public to such an extent as to require the state to

interfere and punish the wrongdoer, as in the case of

acts which injuriously affect public morality, or ob.

struct, or pervert public justice, or the administration

of government.”’

See also, Commonwealth v. Orris, 136 Pa. Superior Ct. 137,

146 (1939) ; Commonwealth v. Mack, 111 Pa. Superior Ct.

494 (1934); Commonwealth v. Sharpless, 2 8. & R. 91

(1815).

We are of the opinion that the Commonwealth has

proved and the jury found, such conduct on the part of

this defendant as to represent a most outrageous and

heinous obstruction and perversion of the judicial process.

Under these circumstances, the convictions on indictments

charging the common law offenses of official oppression,

malfeasance and misbehavior in office, will not be set aside.

Both defendants were charged with obtaining money

by false pretenses. The Penal Code defines this offense,

in pertinent part, as follows:

**Whoever, by any false pretense, . . . obtains

from any . . . person any . . . money. . ., with in-

tent to cheat and defraud any person of the same, or

being an officer, manager, agent, employee of or in

any way interested in any person, by false pretense,

knowingly, and with intent to defraud, procures, ob-

tains, or aids, assists, or abets in obtaining from any

Opinion and Order Sur Motions ( Both) 11b

other person, any . . . monies. . . for such person

of which he is an officer, manager, agent, employee

or in which he is in any way interested . . .’’ is guilty.

The cases are in agreement that three elements must be

or co-exist to make out the crime. They are (1) a

false pretense; (2) an intent to defraud; and (3) the ob-

taining of something of value. Commonwealth v. Buzak,

197 Pa. Superior Ct. 514 (1962); Commonwealth v.

Petrosky, 194 Pa. Superior Ct. 94 (1961).

Four bills of indictment were returned against each

defendant charging the offense of false pretense. They

involved, respectively, the following debtors: Dorothy E.

Fiseley, Kasmir Cybulski, Gustavius J. Huston and Ber-

nard Granoff. The charge relates to the assessment of

costs and interest by Constable Siegel. Siegel added in-

terest to each of these debts, which he collected and credited

to Active Collection Agency rather than the creditor.

Further, as to each of these debtors, Siegel imposed im-

proper costs, and charged costs where the service of proc-

ess was not properly made. These monies were credited

or paid to Active. Defendants had no right to any money

collected in excess of that allowed by law, or in excess of

that sought by the legitimate creditor. The Commonwealth

proved in each of these cases that Siegel received money

without warrant or authority of law, and in direct contra-

vention of law. False charges were added to these claims,

which were collected and pocketed by defendant, Siegel, for

Active Collection Agency, Inc. By not paying over the

so-called interest charges to the various creditors in-

volved, Siegel’s conduct manifested his knowledge of the

falsity of that part of these claims. Under the circum-

stances, his conduct fell within the definition of the offense

charged against him. And without the active assistance

12b Opinion and Order Sur Motions (Both)

of defendant, Schwartz, and the facilities of Schwarty’

judicial office, Siegel could not have been successful. The

verdicts are fully warranted under the evidence presented

to the jury.

In support of their Motions in Arrest of Judgment,

defendants also advance the argument that the entire

magisterial probe was illegal, and therefore any prosecp.

tions emanating therefrom and any evidence seized as

result thereof are void. These questions were raised be-

fore the Trial Judge in defendants’ motions to suppress.

We concur in his rulings, the reasons for which are noted

in 39 D. & C. 2d 607 (1966). To avoid the trial court’s

findings and conclusions, the defense now asserts that the

investigation was surrounded by ‘‘circumstances of deceit

and coercion’’ which so permeated ‘‘the investigation with

illegality as to invalidate all the proceeding(s) flowing

therefrom... .’’ Neither the factual setting nor the cases

cited, support the conclusion now urged upon the Court.

Numerous arguments are advanced in support of de-

fendants’ motions for new trial. The admission of so-

called ‘‘jackets’’ and Magistrate Schwartz’ unsworn testi-

mony is pointed to as error. As stated above, we believe

the trial judges rulings thereon were proper. See opinion

reported in 39 D. & C. 2d 607 (1966). We are not called

upon to rule on defendants’ assertion that evidence of

cases not listed in the Bills of Indictment was improper

as defendants conceded in oral argument that this was a

matter within the discretion of the Court and that such

discretion was not abused in the circumstances. See Com-

monwealth v. Cohen, 203 Pa. Superior Ct. 34 (1964), cert.

denied, 379 U. S. 902; Commonwealth v. Petrosky, 194 Pa.

Superior Ct. 94 (1961); Commonwealth v. Evans, 190 Pa.

Superior Ct. 179 (1959), affirmed, 399 Pa. 387, cert. denied,

364 U. S. 899, rehearing denied, 364 U. S. 939.

—

Opinion and Order Sur Motions (Both) 13b

Defendants assert that the trial judge unduly par-

in the trial of the case, citing as proof thereof

that the Court interrupted defense counsel in their at-

tempts to cross-examine the Commonwealth’s witnesses,

and certain alleged inflammatory remarks concerning prac-

tices of Magistrates and Constables. The comments re-

ferred to at N. T. 403 and 406 were out of the hearing of

the jury and related to certain evidentiary rulings made

by the Court (N. T. 402-407). Defendants’ briefs fail to

note this fact. Defendant Siegel sought to elicit on cross-

examination testimony that investigators for the Attorney

General’s Office learned that there was discussion between

constables, magistrates and City officials concerning fees

or costs that were being assessed and charged. At sidebar

and out of the hearing of the jury (N. T. 402), a lengthy

discussion was had, during the course of which the Court

stated: ‘I think as you all know, just as a matter of com-

ment, Constable and Magistrate charges have been inflated

in a scandalous matter for years, but that doesn’t make

it right,"’ and in response thereto, Edwin P. Rome, Es-

quire, attorney for Siegel, responded ‘‘It may not make

it right, but it goes to the point of whether there is the

requisite mental intent to constitute a crime’’ (N. T. 403).

The other comment referred to was made during the

course of the same sidebar discussion (N. T. 406). Neither

these comments nor any belief or opinion of the Trial

Judge as to innocence or guilt of the defendants was ever

transmitted to the jury. As stated in Commonwealth v.

Clairborne, 175 Pa. 42, 49 (1954), quoted by defendants,

“A defendant has a right to a trial by a fair and impartial

jury whose consideration of his cause is not influenced by

any language of the court which would create resentment

or prejudice against him... .”’ This right was fully

recognized by the Court, and given full weight. With

respect to the interruptions referred to, an examination

14b Opinion and Order Sur Motions (Both)

of the record discloses the total impropriety of defendants’

argument. Defendant refers to N. T. 80 as an example,

The ‘‘interruption’’ by the trial judge was caused by an

objection by the prosecutor (N. T. 78) and argument

thereon and the Court’s ruling in favor of defendant (N, T.

81). The defense also points to N. T. 438. Examination

of the testimony (N. T. 435-440) reveals no trespass

upon the legitimate scope of defense counsels’ cross-exam.

ination. The extent and ingenuity of counsel in attacking

the conduct of the Trial Judge is clearly evidenced by

the final thrust. As stated in defendant’s brief, ‘‘Indeed,

toward the end of the trial, the Court began to use the

word ‘we’ in referring to the prosecution’s case (N. T,

838).’’ At page 837, the Court said, in ruling on a defense

objection ‘‘If all they have to do is check the motor regis-

tration or check the telephone book and find that was his

address during the period in question, then you are just

wasting our time.’’ Then at page 838, during the course

of the same lengthy colloquy, the Court said ‘‘I just feel if

we are wrong on the address, certainly, you ought to make

the objection. But if it is just a matter of chasing out and

get some record to prove what you know to be a fact . . .”’.

This one comment in a discussion which covered four com-

plete pages in the notes of testimony at ten minutes before

five in the afternoon of the fifth day of trial seems rather

ridiculous. Furthermore, in the context, it is clear that the

word ‘‘we’’ was referred to the Court and jury in the

same manner as the word ‘‘our’’ was used shortly before

then. Examination of the record as a whole discloses that

these defendants were accorded a fair trial by an impar-

tial tribunal. Counsel and the defendants were treated

with courtesy and respect, notwithstanding the sometimes

trying circumstances and arduous nature of the trial.

It is also argued that the newspaper publicity made

a fair trial an impossibility, citing: Sheppard v. Maxwell,

ht ae od od a od Ohm Po BP | eee lee - ee ed ets

Opinion and Order Sur Motions (Both) 15b

994 U. S. 333 (1966) ; Estes vr. State of Texas, 381 U. S. 532

(1965) 5 Commonwealth v. Mainer, 26 D. & C. 2d 540

(Mercer Co. 1961). The striking differences between those

cases and the instant case compels a different result. News-

paper publicity, in and of itself, is not a basis for conclud-

ing that the defendants were deprived of due process of

law. There was no ‘‘earnival atmosphere at trial’’; the

witnesses were sequestered and generally insulated from

the press; the jury was sequestered and not permitted to

have access to any press or news media; counsel did not

indulge in a trial by press, T. V. and radio, and in fact

there was no bias on the part of the trial judge or any of

the jurors evidenced in the conduct of the trial. The de-

fense points to the participation of John P. Mason as

trial counsel, and also appearing as a witness for the prose-

eution. Mason was not the prosecutor, and when objec-

tion was raised as to his participation, the court noted he

was not acting as counsel and instructed the jury that he

was merely a witness sitting at counsel table (N. T. 182-

197, 212, 213). Mr. Mason was the principal investigator

for the Department of Justice and trial counsel relied upon

his knowledge of the case. Under the circumstances, the

defense position that the trial was weighted against de-

fendant unfairly is without merit.

Three matters remain for consideration of these mo-

tions. Constable Siegel complains that his motion for

severance was improperly denied. This argument is based

upon the assertion that the defendants were respectively

charged with different offenses, and as a result evidence

only admissible against Schwartz was allowed in evidence

as against Siegel. Siegel cites and relies upon Common-

wealth v. Schmidheiser, 111 Pa. Superior Ct. 283 (1933) ;

Commonwealth v. Dauphinee, 121 Pa. Superior Ct. 565

(1936) ; Commonwealth v. Reilly, 125 Pa. Superior Ct. 340

16b Opinion and Order Sur Motions (Both)

(1937). The difficulty with this argument is that the

charges were not ‘‘separate and distinct’’ in the sense and

meaning of the cases. The charges against Schwartz and

Siegel arose out of the relationship of the defendants and

their conduct with respect to each other and third persons,

See Act of March 31, 1860, P. L. 427, $40, 19 P. §. § 785;

Commonwealth v. Cohen, 203 Pa. Superior Ct. 34, 70-71

(1964) ; Commonwealth v. Sonis, 81 Pa. Superior Ct. 205

(1923); Commonwealth v. Kloiber, 378 Pa. 412 (1954) ;

Commonwealth v. Patrick, 416 Pa. 437 (1965).

The only evidence admitted at the trial which was

applicable to defendant Schwartz alone were his admis-

sions. As to those, the Court carefully instructed the jury

at the time of their admission (N. T. 797) and in his charge

to the jury (N. T. 1016) that these admissions could only

be considered as against Schwartz. The motion for sever-

ance was properly denied. Della Paoli v. United States,

352 U. S. 232 (1957).

Defendant Schwartz argues that reputation evidence

presented by and in behalf of Siegel was improperly limited

to Siegel. The circumstances or setting was as follows:

Near the close of the Commonwealth’s case, a conversation

occurred between counsel and the Court. As a result of

that conversation, Siegel was permitted to introduce evi-

dence of his good reputation and also of Magistrate

Schwartz’ good reputation (N. T. 904, 905). In the prior

discussions counsel for the Commonwealth and the defense

discussed the advantage sought to be gained by the defense.

The defense wanted to have the final argument. To get

that supposed tactical advantage, Schwartz’ counsel de-

cided that he would introduce no reputation evidence. By

agreement between defense counsel, it was decided that de-

fendant Siegel would produce all the reputation evidence;

that is, evidence of his own good reputation, and also of

or cen THO TIIin 6 6DMmMmRD CODY

Opinion and Order Sur Motions ( Both) 17b

Schwartz’ good reputation. Of course, the testimony as to

Siegel’s good reputation was admitted generally and was

considered as applicable to all the charges against Siegel.

The Trial Judge was maneuvered into a rather difficult

position inasmuch as the defense presented a novel request.

Over the strenuous objection of the Commonwealth, the

Court permitted the defense to use this scheme to deny to

the Commonwealth its rebuttal (N. T. 950). Before de-

livery of instructions to the jury, discussion was had be-

tween the Court and counsel concerning Schwartz’ attor-

ney’s reference to the good reputation of Schwartz (N. T.

960-962) at which time the precedure and limitations were

again discussed (N. T. 968-969). The Court’s general

charge on reputation evidence was given as regards de-

fendant Siegel, who was given the full benefit and weight

of that evidence (N, T. 1023-1025). In addition, in line

with the agreement of counsel, the Court charged the jury

that they could consider the evidence of Schwartz’ good

reputation in the light of the fact that to sustain a charge

of conspiracy they must find an unlawful agreement (N. T.

1025).

Defendants argue it was error to instruct the jury to

consider reputation evidence presented by and in behalf of

Siegel, only in Siegel’s case. This argument is made by

way of analogy to cases holding generally that inculpating

evidence presented by one defendant would have been ad-

missible in evidence generally, citing Commonwealth v.

Farley, 168 Pa. Superior Ct. 204 (1951) which does not

support the proposition, and Borum v. United States, 56

F. 2d 301, 305 (D. ©. Cir. 1932), which held only that a de-

fendant may be convicted on the uncorroborated testimony

of an accomplice. It is argued therefrom that exculpatory

evidence likewise should have been received generally.

REUSE BILE He

ane et

18b Opinion and Order Sur Motions (Both)

The basic fallacy to this position is the nature of the

evidence introduced. Siegel was permitted to introduce

evidence of Schwartz’ good reputation only because he,

Siegel, was charged with having joined in a conspiracy with

Schwartz. Had the jury accepted this evidence as estab.

lishing the innocence of Siegel necessarily Schwartz would

have likewise been acquitted on the charge of conspiracy,

The evidence of Schwartz’ good reputation would not have

been admissible under any other circumstance in Siegel’s

case. Schwartz knowingly and with full understanding of

the consequences, decided to rest his case, considering the

final argument to the jury as more important than pres.

entation of evidence. The prejudice to Schwartz, under

the circumstances of this case, is not apparent. Schwartz

did benefit from the evidence, and the Commonwealth

should not be penalized by the decision of Schwartz and his

experienced and competent counsel. Commonwealth »,

Cohen, 103 Pa. Superior Ct. 496 (1931) is not applicable,

Schwartz was not denied the right to introduce evidence of

his good reputation. On the contrary, he declined to pro-

duce such testimony in his own defense.

Finally, the defendants say they are entitled to a new

trial as a result of the Court’s refusal to permit cross-

examination as to ‘‘custom’’ and in rejecting Siegel’s offer

to prove ‘‘custom.’’ At the outset it must be understood

that the crimes with which Siegel was charged required, as

an element, proof of criminal intent. Commonwealth »v.

Benz, 318 Pa. 465 (1935) ; Commonwealth v. Matthews, 196

Pa. Superior ('t. 60 (1961); Commonwealth v. Ferguson,

95 Pa. Superior Ct. 153 (1928) ; Commonwealth v. Schmidt,

95 Pa, Superior Ct. 102 (1928). It is, generally stated, a

proper defense that the accused did not have the requisite

intent at the time when the act was committed. As stated

in Commonwealth v. Junkin, 170 Pa. 194, 199 (1895), ‘‘The

pr ocemt TLIO MmIirhw DMmMD CODY

Opinion and Order Sur Motions ( Both) 19b

essential element of crime, unless otherwise declared by

statute, is the intent to commit it, or the willfulness of it.’’

If follows, therefore, ‘‘ ‘As a general rule, a bona fide and

reasonable belief in the existence of facts which, if they

did exist, would render an act innocent, is a good defense.’

Clark and Marshall, Crimes (4th ed.) § 55, p. 83. And see

Com, v. Unkrich, 142 Pa. Superior Ct. 591, 597, 16 A. 2d

737; Com, v. Schambers, 105 Pa. Superior Ct. 467, 471,

472, 161 A. 624.” Commonwealth v, Lefever, 151 Pa. Su-

perior Ct. 347, 353, 354 (1943).

An extension of this rule has developed which permits,

in certain limited cireumstances, the proof of custom to

negative criminal intent. In Commonwealth v. Trunk, 311

Pa. 355 (1933), defendants were charged with false im-

prisonment and assault and battery. In connection with the

frst charge, defendants sought to prove that they had

taken the victim into custody in reliance upon a customary

practice existing in the county and in many other counties

of the Commonwealth. The trial judge charged the jury,

in part, that ‘‘ Any person who accepts public office must be

presumed to know the law with respect to the administra-

tion of the duties of the office accepted.’’ Mr. Justice

Schaffer, speaking for the Supreme Court, 311 Pa. at 573,

said ‘This was virtually an instruction by the judge that

the defendants had been engaged in an illegal act and

that their motives and intent, or mistake if they were mis-

taken, were not to be considered by the jury in determining

their guilt or innocence. We could not for a moment sanc-

tion such a ruling.’’ The custom in Trunk was one which

had developed under a statute which had never been con-

strued and which was not clear and unambiguous on its

face. See also Commonwealth v. Wilson, 158 Pa. Superior

Ct, 198 (1945). In Wilson, the defendant was charged with

failing to appear pursuant to a subpoena. The practice in

20b Opinion and Order Sur Motions (Both)

the county was to serve one subpoena to appear for the

grand jury and another for the trial, although the act ap-

parently required the issuance of only the first subpoena,

Defendant was never served the second subpoena and failed

to appear at trial. The Superior Court, 158 Pa. Superior

Ct. at 205, 206, by Judge Rhodes, said: ‘‘We should be slow

to overrule a practice steeped in local tradition, even if we

saw reasons for doubting it, where sudden non-adherence

would make one subject to criminal prosecution. A Witness

in the position of this defendant might find himself jm.

prisoned because his honest judgment did not anticipate

the possible implication of a subpoena and the alleged ob-

ligation imposed thereby in direct contradiction to the

interpretation given, and the practice followed, by the

representatives of the Commonwealth in Mercer County,

men learned in the law.’’ (Emphasis added) At the same

time, it has been held that ‘A custom or usage repugnant

to the express provisions of a statute is void, and whenever

there is a conflict between a custom or a usage and a statu-

tory regulation the statutory regulation must. control,”

Commonwealth v. Ellis (No. 1), 46 Pa. Superior Ct. 72, 78

(1911). See also Commonwealth v. Shaffer, 32 Pa. Su-

perior ('t. 375 (1907). Defendants rely principally upon

Commonwealth +. Bollinger, 197 Pa. Superior Ct. 492

(1962). As stated in Bollinger, the defendant’s ‘‘theory

was that he had no criminal intention for the reasons (a)

that the practice which he followed was in accord with the

custom which prevailed in York County, and (b) that he

had sought advice in connection therewith from several

public officials and had at no time been informed that the

practice was improper.’’ The circumstances were that

Bollinger was a constable in York County; that he regu-

larly employed certain persons who were not deputy con-

Opinion and Order Sur Motions (Both) 21b

gables to actually serve process for him; that this was a

common practice for constables in York County; that not

only was this practice common, it was known to the district

attorney’s office and controller’s office; and finally that

Bollinger had actually sought the advice of a judge and an

assistant district attorney concerning the legality of the

practice. The practice followed by Bollinger did not result

in payment of double fees, or in payment of more money

than was provided by law. Finally, the practice was not in

direct contravention of positive statutory mandate. In

these circumstances, the Superior Court, in a four to three

decision, held it was error not to permit defendant to at-

tempt to prove his theory. There was no question of Bol-

linger’s knowledge of facts supporting his theory of de-

fense since Bollinger testified as to the inquiry he had

personally made of enforcement officials.

Does Sicgel’s offer of proof meet the requirements set

forth in the cases? It should be noted at the outset that

the evidence disclosed Siegel was demanding and receiving

monies in excess of those provided by law. In this respect

his conduct was in breach of a positive statutory mandate.

In addition, he charged fees for mileage without regard to

the statutory requirements for establishing such fees, and

generally in excess of the fee properly chargeable by

statute. In two eases Siegel raised the principal debt

claimed by the creditor. No custom, it would seem, should

be accepted which permits the increase of a debt without

regard to law or any agreement to such an increase.

Lastly, Siegel added arbitrary amounts to judgments for

interest, at no set rate, which after collecting he pocketed

or credited to his own or the account of Active. Ostensibly

the money was collected in behalf of the creditor, but with-

out the creditors knowledge, instruction or consent, and

22b Opinion and Order Sur Motions (Both)

retained by Siegel, in addition to the fees he charged for

collection.

In Bollinger, the Superior Court, at page 496, affirms

as true that ‘‘it never was and never can be a defense to

any crime that other people also were violating the law.”

We believe, after careful analysis of the authorities, the

evidence in the record, and the offer of proof, the trial

court’s rulings were correct. At best, all that Siegel offered

to prove was that other persons were also violating the lav.

The defense sought to establish that creditors had a

practice of adding a surcharge to delinquent bills, which

the Court would not permit (N. T. 82). Then, at N. 7

389-390, defendant Schwartz attempted through cross.

examination to establish that it was ‘‘a custom and practice

with the Magistrates in Philadelphia County to charge $7.50

for a summons’’ to which attempt an objection was sus-

tained. The evidence disclosed that in every case, Mag.

istrate Schwartz charged $2.50 costs for issuance of the

summons. This money was paid to the City Treasurer, and

receipts therefor were accounted for to the City Controller,

as required by law. Even if the Magistrate had charged

$7.50 for the issuance of a summons, no so-called custom

could be invoked to protect the Magistrate if he had, con-

trary to law, pocketed all or any part of such sum to his

own use and benefit. And again, Schwartz sought to deter-

mine what costs were discovered by the Attorney General’s

Office to have been cnarged by other Magistrates in Phila-

delphia. Again, at N. T. 402-407, the defense sought to go

into the question of discussions between constables, mag-

istrates, district attorneys and city solicitors. All of this

was attempted to be introduced by way of cross-examination

of John P. Mason. With respect to the first two matters,

clearly the fact that other magistrates and constables

violated the law would not be a defense. As to the attempt

to establish acquiescence by city officials through Mason,

=. os eee eee 020UO 6 oe ee 6 ee 6 NL Se ee

Opinion and Order Sur Motions (Both) 23b

it is quite clear that he could not testify in any respect to

matters which could not possibly be linked up to these

defendants, by his testimony. Furthermore, his testimony,

if admitted would clearly have been hearsay, and no ex-

ception to the rule was pointed to as allowing for its ad-

mission in evidence.

Counsel for Siegal made an offer to prove, by a Mr.

Winitz, a constable of the County of Philadelphia, that

Winitz was familiar with Constables’ fees, with certain

mectings with unidentified City representatives and of the

“eystomary’’ fees charged by constables for services in

Philadelphia. The offer of proof went further, in that

Siegel offered to prove by one Benjamin Katz, Esquire, that

department stores customarily added charges to their bills,

that they knew the fees charged by constables, and knew

that constables sometimes added to their claims, and that

such practices were known to the District Attorney’s and

City Solicitor’s Offices in the City. These offers were also

rejected.

Basically, the defense offered to prove that the con-

stables and magistrates believed the fees provided by law

were either inadequate or difficult of application, and as a

result, they met and mutually agreed to increase the fees

above those allowed by statute. Therefore, in an effort to

justify these actions, the constables and magistrates in-

formed the City’s representatives of what they had done.

Now these defendants come in to Court and assert that by

such conduct, a custom was created. Nothing in the cross-

examination proposed or in the offers of proof would |

establish or tend to establish that (1) the fees charged or

interest collected or raising of claims was sanctioned by

law, (2) the fees charged were not in violation of statute,

(3) the defendants, or either of them, acted in reliance upon

or with the knowledge of, the so-called custom sought to be

proved. All that the offer of proof would have shown is

24b Opnion and Order Sur Motions (Both )

that some constables got together and decided the statutory

fee bill was too low and had not been increased commen.

surate with the cost of living, so they took it upon them.

xelves to increase the fees without legislative approval. The

offer did not go to the improper charge and retention of

interest or raising of debt. We therefore believe that the

offers of proof were properly denied. At best, all that

defendants could have proved was the commission of similar

offenses by others. They could not prove bona fide and

reasonable reliance upon facts which would, if true, have

rendered their conduct innocent. One final matter requires

comment. During the course of his speech or argument to

the jury, which as previously noted, was the final argument,

counsel for Schwartz made reference to various matters in

direct contravention of prior rulings of the Court (N. T.

961-967).

Schwartz’ counsel argued, pointing to the mass of

records produced from Magistrate Court No. 11, that of the

thousands of cases heard by Schwartz only in these few

were any irregularities or improprieties discovered. Conse.

quently the Court, in its charge to the jury mentioned the

attempt by the Commonwealth to introduce into evidence

additional jackets and their contents to show or establish

the pattern of defendants’ conduct (N. T. 1021). It was

suggested in oral argument before the Court en bane that

this comment by the Trial Judge was prejudicial to de-

fendants. It was not.

The Court sustained the objections of both defendants

to the introduction of additional case records or jackets in

cases not named in the bills of indictment. As conceded in

oral argument, evidence of cases not noted in the Bills of

Indictment were properly admissible in a conspiracy case

involving charges of fraud. Commonwealth v. Cohen, 203

Pa. Superior Ct. 34 (1964). Furthermore, since these were

BLEED THROUGH POOR COPY

Opinion and Order Sur Motions (Both) 25b

-. or official records (see Commonwealth v. Schwartz,

99 D. & C. 2d GOT (1966)), and were original records, they

cere the best evidence of their own contents, See 1 Henry,

Penna. Evidence, Ch. 8.

The Court exeluded thix evidence on the ground, after

lengthy argument by all counsel, that evidence in addition

to that already adduced might be prejudicial to defendants,

and not because the offered evidence was otherwise in-

admissible (N. 'T. 753-776). And the Court made it clear

to counsel for both defendants that they could not properly

argue the Commonwealth only proved a few cases of im-

iety from the Court's sustaining of their objections.

Schwartz’ counsel had the laxt unrebutted argument, and

attempted thereby to gain an unfair advantage by referring

to matters explicitly ruled beyond the scope or compass of

fair comment. Furthermore, the Court’s comment, taken

in context, merely required the jury to weigh the sufficiency

of the evidence actually before them, without regard to

whether the Commonwealth could or could not have pro-

duced more. Properly considered, there was neither error

nor prejudice to defendants.

We conclude, after a careful consideration of the

record and the briefs and arguments of counsel, that de-

fendants’ motions in arrest of judgment or for new trial

must be dixmissed. The Trial Judge shall impose such

ventence ax he deems appropriate in the circumstances,

By THE COURT,

McDevrrr, II, /’. J.

Filed: Dee, 7, 1966

Copies to:

Kowtx P. Rome, Ese,

Marvix Commky, Ese..

Ricuann A. Spracce, Fay.

raw

26b Order (Both)

ORDER.

(Both cases.)

Now, this 7th day of December, 1966, the defendants’

Motions in Arrest of Judgment and for New Trial are

hereby denied.

Sentence on the verdicts is deferred to Wednesday,

December 14, 1966, at 10:00 A. M., in Room 195, City Hall,

Philadelphia.

By THE COURT,

McDevrrrt, III, P. J.

Copies to:

Evwis P. Rome, Esq.,

Marvis Comisky, Ese.,

Ricuarp A. Spracue, Eso.

Judgment of Sentence (Siegel) 27b

JUDGMENT OF SENTENCE.

(Siegel case.)

Dec. 14, 1966—And now Sentence:

880—Not less than 11 months nor more than 23

months in the Philadelphia County Prison.

393—Not less than 11 months nor more than 23

months in the Phila. County Prison to run con-

current with sentence on bill 880 and pay a fine

of $1,250.

296—Not less than 11 months nor more than 23

months in the Phila. County Prison and pay a fine

(prison sentence on bill 896 to run concurrent with

bill 893).

g98—Not less than 11 months nor more than 23

months in the Phila. County Prison to run concurrent

with bill 896 and pay a fine of $1,250.

900—Not less than 11 months nor more than 23

months in the Philadelphia County Prison, to run

concurrent with sentence on bill 898 and pay a fine

of $1,250.00

28b Judgment of Sentence (Schwartz)

JUDGMENT OF SENTENCE.

(Schwartz case.)

Dec. 14, 1966—And now Sentence:

880—Not less than 11 months nor more than 23

months in the Philadelphia County Prison.

Eo die Same Bail to stand pending Appeal—

Supersedeas allowed on payment of fines.

881—Sentence Suspended.

882—-Sentence Suspended.

883—Sentence Suspended.

884—-Sentence Suspended.

885—Sentence Suspended.

891—Not less than 11 months nor more than 23

months in the Philadelphia County Prison, to run

concurrent with sentence on bill 880, and pay a fine

of $2,500.00.

892—Not less than 11 months nor more than 23

months in the Philadelphia County Prison, to run

concurrent with sentence on bill 891, and pay a fine

of $2,500.00.

897—Not less than 11 months nor more than 23

months in the Philadelphia County Prison, to run

concurrent with sentence on bill 892, and pay a fine

of $2,500.00.

905—Not less than 11 months nor more than 23

months in the Philadelphia County Prison, to run

concurrent with sentence on bill 897, and pay a fine

of $2,500.00.

Opinion of Superior Court of Pa. 29b

OPINION OF THE SUPERIOR COURT

. OF PENNSYLVANIA.

Opinion by Ervin, P. J. Fitep: September 14, 1967

These are appeals of Harry C. Schwartz, a magistrate,

and Abraham Siegel, a constable, from judgments of sen-

tence, after having been found guilty by a jury on a variety

of charges arising out of the investigation of the Mag-

strates Courts in the City of Philadelphia.

Both defendants were found guilty of the crime of

conspiracy, Indictment No. 880 charging that they did

“falsely and maliciously conspire to insult public justice ;

to commit official oppression while exercising their respec-

tive public offices ; to use the power of their respective offices

for their own personal gain—Constable Siegel directly and

Magistrate Schwartz indirectly through his wife—and to

cheat and defraud the debtors in the civil cases set forth in

the attached list by adding to each of said claims a false and

fictitious sum represented to be interest owed by the alleged

debtors to the creditors; and did further conspire to violate

the Constable’s Fee Bill, Act of July 20, 1917, P. L. 1158,

as amended, 13 P. S. §61, by demanding, imposing and

adjudging in each claim a false, fictitious and excessive sum

for constable’s travelling expenses instead of the legal

sum provided by Act of Assembly.’’ Each defendant was

sentenced to from 11 to 23 months in the Philadelphia

County Prison for this crime.

Schwartz was also found guilty on Indictment No. 881,

which charged that he ‘‘in his capacity as magistrate,

did commit malfeasance, misbehavious in office and official

oppression by willfully, knowingly and corruptly issuing

civil summonses and sitting in judgment upon the civil cases

set forth and at the dates set forth in the attached list, with

the knowledge that his wife, Lillian Schwartz, as an officer

and principal owner of the Active Collection Agency, Inc.,

30b Opinion of Superior Court of Pa.

which then and there was the collection agent or sub-agent

of the various creditors of said claims, would obtain a direet

pecuniary benefit from the results of the said cases by

receiving a commission on all judgments and costs paid by

the alleged debtors and that he, therefore, would indireetly

benefit thereby.’’ The court suspended sentence on this

indictment.

Schwartz was also found guilty by the jury on Indict.

ment No. 883, which charged that he ‘‘a magistrate of the

City and County of Philadelphia, in his capacity as mag.

istrate, did commit misbehavior in office’’ and then the lan-

guage on this indictment is similar to that set forth for

the preceding indictment. Sentence was suspended by the

court on this indictment.

Schwartz was also found guilty by the jury on Indict-

ment No. 883, which charged that he a **magistrate of the

City and County of Philadelphia, in his capacity as mag-

istrate, did commit official oppression by wilfully, knowingly

and corruptly issuing civil summonses and sitting in judg-

ment upon the civil cases set forth and at the dates set

forth in the attached list’’ and then the language of this

indictment is similar to that set forth in the preceding

indictment. Sentence was suspended on this indictment by

the court.

Schwartz was also convicted on Indictment No. 884,

which charged that he ‘‘a Magistrate of the City of Phila-

delphia, did, in connection with the thousands of civil cases

filed in his Court, and more particularly the civil cases set

forth and at the times set forth in Schedule attached hereto,

wilfully and corruptly neglect and fail to perform the duties

of his office by:

‘1. Failing to strike off the false and fraudulent

amounts represented by Constables to be interest allegedly

owed by debtors to the creditors of said claims;

BLEED THROUGH POOR COPY

Opinion of Superior Court of Pa. 31b

«2, By failing to award and enter judgment for proper

and legal constable fees and travelling expenses in said

cases ;

“3. By failing to require adequate and legal constable’s

returns of service in the said cases; and

“4, By failing to require the constable to endorse on

the execution or a schedule thereto attached, the goods or

chattels levied upon and the time of such levies when such

levies were made.’’ Sentence was also suspended on this

indictment.

Schwartz was also found guilty by a jury on Indictment

No. 885 charging that he ‘‘a magistrate of the City and

County of Philadelphia, in his capacity as magistrate, did

commit malfeasance by knowingly and corruptly issuing

civil summonses and sitting in judgment upon the civil

cases set forth and at the dates set forth in the attached

list”? and then the language in this indictment is similar to

that in Indictment No. 883. Sentence was also suspended

by the court on this indictment.

Schwartz was also found guilty on Indictment No. 891,

which charged that he ‘‘a Magistrate of the City of Phila-

delphia, who was interested in Constable Abraham Siegel

and the Active Collection Agency, Ine. unlawfully and

feloniously did then and there falsely and designedly pre-

tend and represent to Dorothy and Richard Iseley, by issu-

ing a summons and entering judgment thereon: (1) That

there was claimed by the Bell Telephone Company, a

creditor in a civil claim against Dorothy and Richard Iseley,

the sum of $2.50 as interest on the claim and that the said

interest was owed by defendants to the said creditor ;

whereas, in truth, and in fact as he, the said Magistrate

Schwartz then and there well knew, the said creditor and its

agent for collection, the Philadelphia Credit Bureau, which

had sent the claim to Abraham Siegel or to Active Collec-

——

32b Opinion of Superior Court of Pa.

tion Agency, Inc., of which Abraham Siegel was then an ;

ficer, and of which said Magistrate Schwartz’s wi

Lillian Schwartz, was a principal share holder and pre;

dent, did not claim any interest from the said Dorothy a

Richard Iseley and had not asked the said Abraham Sieg

or Active Collection Agency, Ine. to collect any intere

from said Dorothy and Richard Iseley; and that the sa

sum of $2.50 was fictituous and false, and which he wi

knew had been fraudulently added to the claim by Abraha

Siegel or Active Collection Agency, Inc.; and

‘**(2) that the lawful constable’s fee and mileage fi

Constable Abraham Siegel’s service of Summons No. 3608

issued by Magistrate Harry ('. Schwartz in connection wi

the above mentioned claim, was $6.50 whereas in fact, t]

said sum was a greater compensation for service of

summons and mileage than is provided by law and was

fictitious and false amount,

‘the, the said Magistrate Harry C. Schwartz well knov

ing said pretences to be false, by means of which he d

aid, assist, or abet Constable Abraham Siegel and tl

Active Collection Agency, Inc. in obtaining from the sai

Dorothy and Richard Iseley the sum of $9.00 with inter

to defraud the said Dorothy and Richard Iseley.’’ On th

Indictment Schwartz was sentenced to a term of 11 to ¢

months in the Philadelphia County Prison to run coi

currently with the sentence on the bill No. 880 and he ws

also directed to pay a fine of $2,500 on this bill of indictmen

Schwartz was also found guilty on a similar bill ¢

Indictment No. 892 for defrauding Kasmir and Elva Cylbi

ski. A similar sentence was imposed as that which was in

posed on the preceding indictment.

Schwartz was also found guilty on another bill of ir

dictment No. 897, similar to the preceding indictment, fo

BLEED THROUGH POOR COPY

Opinion of Superior Court of Pa. 33b

defrauding Lillian and Gustave Huston. A similar sen-

tence was imposed on this indictment as on the preceding

indictment.

Schwartz was also found guilty on another bill of in-

dictment, No. 905, similar to the preceding indictment, for

defrauding Bernard and Tilly Granoff, and a similar sen-

tence was imposed as on the preceding indictment.

Siegel was found guilty by a jury on Indictment No.

993, which charged that he ‘‘a Constable of the City of

Philadelphia and an officer of Active Collection Agency,

Inc. unlawfully and feloniously did then and there falsely

and designedly pretend and represent to Kasmir and Elva

(ylbuski :

(1) That there was claimed by Gimbel, a creditor in

a civil claim against Kasmir and Elva Cylbuski, the sum

of $1.50 as interest on the claim and that said interest was

owed by defendants to the said creditor; whereas, in truth

and in fact as he, the said Abraham Siegel then and there

well knew, the said creditor and its agent for collection,

the Philadelphia Credit Bureau, which had sent the claim

to Abraham Siegel or to Active Collection Agency, Inc. of

which Abraham Siegel was then an officer, for collection,

did not claim any interest from the said Kasmir and Elva

Cylbuski and had not asked Abraham Siegel or Active Col-

lection Agency, Ine. to collect any interest from said Kas-

mir and Elva Cylbuski; and whereas in fact he knew that

the sum of $1.50 was fictitious and false; and

(2) that his, the said Abraham Siegel, lawful con-

stable’s fee and mileage for his service of Summons

No. 37131 issued out of Magistrate Court No. 11, in

connection with the above mentioned claim, was $6.50,

whereas in fact, the said sum was a greater compensation

for his fees for service of the summons and mileage than

34b Opinion of Superior Court of Pa.

is provided by law, and was, as he well knew a false and

fictitious sum,

‘the, the said Abraham Siegel well knowing said pre.

tences to be false, by means of which he did obtain from

the said Kasmir and Elva Sylbuski the sum of $8.00 with

intent to defraud the said Kasmir and Elva Cylbuski.””

On this indictment he was sentenced to a term of not

less than 11 nor more than 23 months in the Philadelphia

County Prison, to run concurrently with the sentence im-

posed on Bill No. 880. He also was sentenced to pay a fine

of $1,250.

Siegel was also found guilty on three other similar

indictments, Nos. 896, 898 and 900, to defraud Dorothy and

Richard Iseley, Lillian and Gustave Huston and Bernard

and Tilly Granoff. Similar sentences were imposed on

these indictments as that imposed under the indictment

No. 893.

The evidence, viewed in the light most favorable to

the Commonwealth, established the following facts: In 1954

Harry C. Schwartz was an elected constable in the City of

Philadelphia. On January 4, 1955 he appointed defendant

Abraham Siegel as deputy constable. On November 5,

1957 Siegel was elected constable, effective for six years

from January 2, 1958, and Schwartz was reelected a con-

stable on the same date, effective as of January 2, 1958.

Schwartz was thereafter appointed to serve as magistrate

of Court No. 11, effective as of December 23, 1960, and was

elected to serve a full six year term, effective from January

of 1962. Constable Siegel was again reelected to serve a

six year term effective from January of 1964.

At the time when defendant Schwartz was a duly

elected constable of the City of Philadelphia, and on Janu-

Opinion of Superior Court of Pa. 30b

ary 20, 1954, he caused the name of Active Collection

Agency to be registered as the name under which he would

operate his collection business. On January 4, 1961 articles

of incorporation were filed with and approved by the Secre-

tary of the Commonwealth incorporating Active Collection

Agency, Inc. As of January 10, 1961 the officers of the

corporation were Lillian Schwartz, president; Sidney B.

Goldstein, a certified public accountant, secretary; and

Abraham Siegel, treasurer.

Lillian Schwartz was at all times material to this case

the wife of defendant Harry C. Schwartz. Lillian Schwartz

was not active in the operation of the collection business,

although she received a substantial salary as president of

the corporation.

Before Schwartz was elected as a magistrate he did

collection work for Philadelphia Credit Bureau. Active

Collection Agency, Ine. continued to do work for the Phila-

delphia Credit Bureau but in much larger volume.

On numerous occasions defendant Siegel made im-

proper service of the summons, improper service of execu-

tion and levy, or failed to make a levy of any kind, and filled

in as standard practice identical descriptions of property

levied upon in his returns. In the cases proved, certain

amounts of money were added to the principal debt owed by

the debtor. In each case aribtrary amounts of interest

were added, which were pocketed by the collection agency

and not paid to the creditor. Siegel also added mileage

fees without regard to actual mileage, notwithstanding that

the ‘service’? was often improperly made. In addition, in

each case costs were imposed of $7.50 or $9.00, in direct

contravention of the statutory fee of $2.50.

The connection between Schwartz and Siegel was

proved by the following facts. Magistrate Schwartz had

been a constable prior to his election as a magistrate. As

36b Opinion of Superior Court of Pa.

a constable he appointed Siegel as his deputy constable,

and also operated the Active Collection Agency. Upon his

elevation to the minor judiciary Schwartz turned over the

collection business to his wife, Lillian, and defendant Sie.

gel, who continued on as a constable. Schwartz, notwith.

standing his wife’s position in Active Collection Ageney

(she owned 75% of the voting and 65% of the preferred

stock from the date of incorporation until the end of 1963;

thereafter 50% of each and received a salary for 1961 of

$5,200, which was increased to $13,785.94 in 1964), con.

tinued to sit in judgment on cases where the creditor was

represented by Active Collection Agency, Inc. The ines.

capable conclusion is that the business of Active Collection

Agency, Inc. increased as a direct result of the relation-

ship between Siegel and Schwartz. Significantly, although

Mrs. Schwartz was president and principal stockholder of

Active Collection Agency, Inc., and received until 1964 a

substantially greater proportion of the profits by way of

what was called salary, she actually contributed no actual

work or effort to the collection business. Defendant Siegel

was, for all practical purposes, Active Collection Agency,

Inc. Philadelphia Credit Bureau’s representative testified

he dealt directly with Siegel.

Although Active Collection Ageney had its own office,

Siegel operated primarily out of Magistrate Court No. 11.

In virtually every case testified to by Magistrate Schwartz’

clerk, the docket or daybook contained only the name of the

parties, address of defendant, $2.50 for costs, summons

number, date of issuance and return date. To ascertain

the other information about the disposition of eases before

Magistrate Schwartz, it was necessary to examine the so-

called ‘*jackets’’ in which the suit papers and other docu-

ments were kept. On the face of these jackets appeared

Opinion of Superior Court of Pa. 37b

the notation ‘‘judgment,’’ and amounts corresponding to

the principal debt, interest and costs. Notations in the

dockets or daybooks were made by the magistrate’s clerk ;

however, notations on the jackets were made by the con-

stable.

In at least one case Magistrate Schwartz entered a

judgment where the debt due exceeded $100, the limit of his

civil jurisdiction. Interest and costs added to the judgment

nereased the debtor’s liability from $105.36 to $129.60.

The pattern of Siegel’s conduct was that he would re-

ceive an IBM card or notice of claim with the name and

address of the debtor, the amount of the real debt and the

date of tie last communication or payment by the debtor.

Siegel would then add to the claim an arbitrary sum for in-

terest and in some case, without explanation, increased

the amount of the real debt. A summons was then made

out by Siegel and, after issuance by Magistrate Schwartz,

service was made often by mail rather than personally, as

required by law, and on some occasions the summons was

never actually served. This was followed by the entry of

judgment by Schwartz in favor of the creditor. Although

by law the constable is entitled to receive a fee of $2.50

plus $10 per mile for service of the summons, he was con-

sistently awarded $5.00 for one defendant and $6.50 for two

defendants, without regard to the actual amount to which

he was entitled and without regard to the improper service.

The constable would fill in the amount of the debt on the

summons after its issuanee by Magistrate Schwartz.

After judgment was entered, Schwartz permitted

Siegel to send out writs of execution under his, Schwartz’

name, but Schwartz never followed up Siegel’s actions.

Siegel’s levies were uniform in their impropriety—notices

of levy and inventory of goods levied upon were prepared

in Siegel’s office and were all virtually identical. Notices

38b Opinion of Superior Court of Pa,

were cither mailed to the debtor or left in the debtor's maj.

box, without entry into the debtor's home. Siegel claimed

and collected fees for this service which was im

performed, and the fees claimed and collected did not cop.

form to the statutory fee bill. The various creditors dig

not axk that interest be added or collected, and never re.

ceived more than the real debt. The creditor sometimes ro.

ceived less that the real debt even though it wax actually

collected in full,

Finally, by Magistrate Schwartz’ own admission, he

was Active Collection Agency until he became a magistrate,

Thereafter, he «tated, ‘‘We formed a corporation in that

name immediately after I became a Magistrate." He also

confirmed that hix wife, Lillian Schwartz, retained the eon.

trolling interest in the corporation although generally she

did not perform any vital services for the business, The

tenor of the statements made by Schwartz clearly indicates

that, even after he became a magistrate, he regarded him.

self as being in the collection business. To make that even

clearer, Schwartz said: ‘‘I handle all thix business for one

reason. If my wife makex money, b’'m going to benefit by

it because I have an opportunity to spend some of the

money she makes, being the president of the company that

employs the Constable who handles the work."’

Appellants first argues that appeals Nos, 881, 882, 8&3

and 885 are not sufficient to charge an indictable common

law crime. It ix argued that the allegations of “‘indirect”

benefit, on their face, are not sufficient to constitute the

required corrupt and criminal motive nor otherwise aver

an indictable common law crime.

What conduct may be punished under the common law

is described in Com. v. Evans, 190 Pa. Superior Court 179,

14 A. 2d 57, affirmed 399 Pa. 387, cert. denied 364 U. 8.

Opinion of Superior Court of Pa. 39b

@, rehearing denied 364 U. 5. 939. In that case this

Court stated, at page 225; ‘‘Misbehavior in office is a com-

gon law offense. Com. v. Brownmiller, supra, 141 Pa.

Saperior Ct. 107, 120, 14 A. 2d 907. The offense occurs

chen there is a breach of a positive statutory duty or

the performance by a public official of a discretionary act

«ith an improper or corrupt motive. Com, vr. Peoples, 345

Pa, 576, 579, 28 A. Zl 792; MeNair’s Petition, 324 Pa. 48,

3, 187 A. 498. Evans and Torrance here were charged

sith the performance of a discretionary act with an im-

or corrupt motive. A discretionary duty must be

ereised with reason as opposed to caprice or arbitrary

action; the term discretion * “imports the exercise of judg-

ment, wisdom, and skill, as contra-distinguixshed from from

gnthinking folly, heady violence and rash injustice.’’’

Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107,

120, 14 A. 2d 907, 913. In its penal sense misbehavior

in office does not encompass mere errors in judgment or

departures from sound discretion, but an official must

perform those official duties which require the exercise of

a sound discretion to the interest of the Commonwealth

and not capriciously, arbitrarily, and with a willful and

corrupt design. Com. r. Brownmiller, supra, 141 Pa. Su-

perior Ct. 107, 120, 121, 14 A. 2d 907. The willful and

corrup motive need not arixe from personal benefit. See

Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 121,

122, 14 A. 2d 907.""

In the recent case of Com. v. McKarski, 208 Pa. Supe-

rior Ct. 376, 381, 222 A. 2d 411, Judge Jacovs, for this

Court, reviewed a number of cases on this subject in the

following language: ‘‘What is a common law offense?

There are many statements, helpful and otherwise, in our

cases on this subject.

40b Opinion of Superior Court of Pa.

‘In Commonwealth v. McHale, 97 Pa. 397, 408 (1881),

the Supreme Court said: ‘The highest authority upon this

point is Blackstone. In chap. 13, of vol. 4, of Sharswood’;

edition, it is thus defined: “The last species of offenses

which especially affect the Commonwealth are those against

the public police or economy. By the public police and

economy I mean the due regulation and domestic order of

the kingdom, whereby the individuals of the state, like

members of a well-governed family, are bound to conform

their general behavior to the rules of propriety, good neigh.

borhood and good manners, and to be decent, industrious

and inoffensive in their respective stations.”’’

**In the same case, at p. 410, it was said: ‘We are

of opinion that all such crimes as especially affect public

society are indictable at common law. The test is not

whether precedents can be found in the books, but whether

they injuriously affect the public police and economy.’

**In Commonwealth v. Mochan, 177 Pa. Superior Ct.

454, 458, 110 A. 2d 788 (1955), this Court said: ‘Any act

is indictable at common law which from its nature sean.

dalously affects the morals or health of the community.’

“In Commonwealth v. Miller, 94 Pa. Superior Ct.

499, 507 (1928), it was said: ‘The common law is sufficiently

broad to punish as a misdemeanor, although there may

be no exact precedent, any act which directly injures or

tends to injure the public to such an extent as to require

the state to interfere and punish the wrong doer, as in the

case of acts which injuriously affect public morality, or

obtruct, or pervert public justice, or the administration of

government.’

**In Commonwealth v. Orris, 136 Pa. Superior (t. 137,

146, 7 A. 2d 88 (1939), it was said: ‘Among the offenses

described as misdemeanors at common law are those less

than felony, but such ‘‘trespasses against good morals” as

tend ‘‘to outrage decency."’ ’

ee ee ee ee

ert ae |

Te OOS lCUSOlCCTCOCOTCUC COlUC lUCUDCS

Opinion of Superior Court of Pa. 41b

“4 consideration of the factual context of each of

these cases is helpful in understanding the kind of conduct

these broad statements were aimed at. In Commonwealth

¢. McHale, supra, the charge was procuring false counts

and returns of votes at an election and depositing false

dection ballots. In Commonwealth v. Mochan, supra, the

defendant made numerous telephone calls to a married

oman, accusing her of being a lewd and immoral woman,

and used disgusting and indecent language in his telephone

talks. Commonwealth v. Miller, supra, involved a police

officer indicted for malfeasance in office. In Commonwealth

r. Orris, supra, there was an attempt to carnally know a

twelve year old girl.’’

We are convinced that the language of Indictments

Nos. 881-3 and 885 is sufficient to charge a common law

crime. We are also convinced that Schwartz had a statu-

tory duty not to sit in those cases. The Act of March 30,

1875, P. L. 35, as amended, 12 P. S. § 111, provides in part

that “Changes of venue shall be made in any civil cause,

in law or in equity, depending in any of the courts of this

Commonwealth, in the cases following; namely—First.

Whenever the judge . . . shall be personally interested. . .

“Third. Whenever any near relative of such judge

shall be a party to any such cause, or interested in the

event thereof. . . .'. These statutory provisions clearly

show what the public policy is in this state. The law has

always considered the relationship between spouses as &

very close one. In fact, they are regarded as one person

and not as separate entities, and the married women’s acts

have not changed this concept; Alles v. Lyon, 216 Pa. 604,

606, 66 A. 81. The relationship, unlike that of other per-

1. The Canons of Judicial ’

of Pennsylvania on ate 1 1968, alee provides “A fodge should

not act in a controversy where a near relative is a party.

42b Opinion of Superior Court of Pa.

sons, may not be entered into nor dissolved without the

consent of the state. What affects one affects the other and

we cannot conceive of a closer human relationship. We are

further convinced that Schwartz had a corrupt motive

for sitting in these cases. All litigants ‘‘are entitled toa

hearing and determination by an impartial tribunal, and

hence no judge should preside in a case in which he is not

wholly free, disinterested, impartial, and independent,”

20 P. L. E., Judges, § 41; 48 C. J. S., Judges, §§ 72, 78 and

85. See also Dunmore Borough Election, 299 Pa. 517, 594,

149 A, 733; McNair’s Petition, 324 Pa. 48, 54, 187 A. 498,

In the present case Schwartz tried to conceal his inter-

est by setting up a corporation and making his wife the

nominal owner. Certainly the jury could infer from this

alone that he would indirectly receive a benefit. This was

his corrupt motive.

In England a magistrate may be prosecuted if he sits

in a case in which he has an interest: King v. Davis, Lofft

63.

It may be that there is no case in Pennsylvania exactly

the same as this one, but, as was so well stated in Com, v.

Mochan, 177 Pa. Superior Ct. 454, 457, 110 A. 2d 788, ‘‘The

test is not whether precedents can be found in the books

but whether the alleged crimes could have been prosecuted

and the offenders punished under the common law.”’ Fur-

thermore, both defendants breached numerous statutes reg-

ulating their official actions. Constable Siegel failed to

make proper service as required by 42 PS § 422 and 12

PS § 318, and failed to make proper returns of service as

required by 12 PS § 355. He also failed to perform the

basic duties in levies as required by 42 PS § 233. And

Magistrate Schwartz failed to take any steps to hold his

active partner Siegel in check. He failed to perform his

positive statutory duties as a judge.

Opinion of Superior Court of Pa. 43b

It is also argued that the sole proof showing bene-

to Magistrate Schwartz came from his own sworn depo-

fit

sition in which he frankly admitted that he received a

benefit because he had an opportunity to spend some of

the money which his wife, as president of Active Collection

Agency, received. From all the other facts proved, the

jury could and undoubtedly did infer that Schwartz re-

ceived a benefit. This was a reasonable inference to be

drawn under all the facts and circumstances surrounding

them.

It is argued that Schwartz’ statement should not have

heen admitted because he did not have counsel at the time

it was taken and because he was not advised of his right

to remain silent. Undoubtedly Magistrate Schwartz, who

had presided in hundreds of criminal arraignments and

hearings, knew that he had the right to counsel and the

right to remain silent. Furthermore, Schwartz and 25

other magistrates were interviewed only after they had

voluntarily agreed to discuss with the investigators the

magisterial system of Philadelphia. Arrangements for

these discussions were made through the chief magistrate

and through the solicitor to the board of magistrates He

had not been coerced into making any statement and, on

the contrary, he frankly admitted that the investigators

had been ‘‘very, very fair.’’ His argument that the state-

ment was inadmissible because the alleged benefit, which

is part of the corpus deliciti in the crimes charged, was

not established by separate and independent evidence, is

without merit. If Magistrate Schwartz had sold or given

his prior collection agency to an outsider rather than to

his wife, there might be some substance to this argument.

The jury, however, could infer from the fact that he gave

it to his wife that he was doing so in order to retain the

benefit for himself. His admission of such benefit was not

SREY

44b Opinion of Superior Court of Pa.

necessary to prove the corpus delicti in this case. Under

all the circumstances the jury could and probably did

infer that his statement was given by and with the consent

of counsel, who, with the chief magistrate, arrranged for

the meeting.

As to Indictment No. 884, it is argued that Magistrate

Schwartz could not be held accountable for the improper

interest charges awarded and for the award of improper

fees and expenses to the constable and for requiring proper

returns of service of writs of execution, because these items

were entered or performed by either the constable or the

magistrate’s clerk. The magistrate may not hide behind

thse associates. The statute expressly places the duty

upon him to do these things or see that they are properly

done by his associates.

It is also argued that the conspiracy bill, No. 880, was

not proven by sufficient evidence and that there was a

failure to produce clear and sufficient evidence as to the

alleged conspiracy. The Penal Code, Act of June 24, 1939,

P. L. 872, § 302, 18 PS § 4302, provides: ** Any two or more

persons who falsely and maliciously conspire and agree

to cheat and defraud any person of his moneys, goods,

chattels or other property, or do any other dishonest, mali-

cious, or unlawful act to the prejudice of another, are guilty

of conspiracy... .”’

The conspiracy is the agreement, combination or com.

mon understanding, to do an unlawful act, or to do or

commit a lawful act in an unlawful manner: Com. v. Rosen,

141 Pa. Superior Ct. 272, 14 A. 2d 833. The heart of the

offense is the common understanding, no matter how it

came into being: Com. v. Yobbagy, 410 Pa. 172, 188 A. 2d

750; Com. v. Neff, 407 Pa. 1, 179 A. 2d 630.

**. . . evidence to sustain a charge of conspiracy must

be ‘such as reasonably and naturally justifies an inference

Opinion of Superior Court of Pa. 45b

of guilt of the accused and is of such volume and quality

as to overcome the presumption of innocence and satisfy

the jury of the accused’s guilt beyond a reasonable doubt

__A conviction will not be allowed to stand if it is

based solely upon suspicions and conjecture.’ ’’ Com. v.

Yobbagy, 410 Pa. 172, 176, 177, 188 A. 2d 750; Com. v.

Frans, 190 Pa. Superior Ct. 179, 201, 154 A. 2d 57.

At the same time, the acts and conduct of the defendants

themselves, done in pursuance of the original scheme, may

be considered as proof of the unlawful intent, and the con-

spiracy may be established by proof of the relation, conduct

or circumstances of the parties: Com. v. Smith, 151 Pa.

Superior Ct. 113, 116, 117, 30 A. 2d 339. Otherwise stated,

where the conduct of the parties indicates that they were

acting together with a common and corrupt purpose in

view, the jury may properly infer that a conspiracy did

exist: Com. v. Albert, 151 Pa. Superior Ct. 184, 30 A. 2d

184; Com. v. Rosen, 141 Pa. Superior Ct. 272, 14 A. 2d 833.

We conclude that the evidence was of such quality and

quantity as to prove, beyond a reasonable doubt, that

Magistrate Schwartz and Constable Siegel did conspire

together to commit the subversion of judicial process

charged. It is inconceivable that these two defendants could

have operated as closely together as they did, virtually shar-

ing the same office facilities, and with such identity of

purpose and design, without there having been a common

understanding or agreement existing between them: Com.

v. Cohen, 203 Pa. Superior Ct. 34, 199 A. 2d 139, cert. denied,

375 U.§. 985. The connection between these two defendants

was much more concretely demonstrated than was the case

in Com. v. Reginelli, 208 Pa. Superior Ct. 344, 222 A. 2d

605, and Com. v. Price, 208 Pa. Superior Ct. 354, 222

A. 2d 610.

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46b Opinion of Superior Court of Pa.

It is argued that the transfer of ownership of Active

Collective Agency to the wife after his election as magis-

trate shows that Schwartz was acting in good faith to

divest himself of any improper interest. If the sale had

been to an outsider and not to his wife, this conclusion

would undoubtedly follow. The transfer to the wife, how-

ever, negatives the idea of good faith and the jury could

and probably did infer that this\was done so that Schwartz

could continue his interest in Active Collection Agency. No

judge should be permitted to sit in cases in which he had

such an interest and to do so was highly improper.

The evidence was sufficient to sustain the charges as to

false pretenses as against both defendants. The Common.

wealth proved that the appellants, in legal documents issv-

ing from their public offices, falsely pretended that they

were entitled to receive certain arbitrary additions to the

sums claimed by plaintiff creditors, fictitious interest, un-

lawful costs and excessive fees. The Commonwealth also

proved that the defendants obtained money by these pre-

tenses and the mere fact that the amounts were not large

is immaterial. The Commonwealth also proved that the

debtors were defrauded and that the creditors were also

defrauded because they did not receive the amounts paid

as interest. While the indictments did not specifically

charge that the creditors were cheated, the evidence was

material and relevant to prove an intent to defraud the

debtors because it showed that the interest was not turned

over to the creditors, who would have been the only people

entitled to receive it. The convictions for false pretenses

were adequately sustained by the evidence.

It is also argued that the court erred in excluding from

the evidence an alleged custom as to the practices of the

magistrates and constables to charge greater amounts for

services than the amounts authorized by statute. A custom

or usage repugnant to the express provisions of a statute

Opinion of Superior Court of Pa. 47b

is void: Com. v. Ellis, 46 Pa. Superior Ct. 72, 78; Allen v.

Mack, 345 Pa. 407, 412, 28 A. 2d 783; Lanigan v. Lewis, 210

Pa, Superior Ct. 273, — A. 24 —. The case of Com. v.

Bollinger, 197 Pa. Superior Ct. 492, 179 A. 2d 253, does not

support appellants’ argument because in that case the con-

stable was charged with cheating from the county sums in

payment for work which had been done, not by him but by

his associates. This conduct was not regulated by statute

and he was, therefore, permitted to show the custom. In

the present case the charges were specifically fixed by

statute.

Appellants also argue that the instructions concerning

certain evidence which had been excluded were in error.

The bills of indictment charging Magistrate Schwartz with

conspiracy and malfeasance referred to the impropriety of

the magistrate sitting in 28 specified cases which are listed

in an attached schedule. In proving the illegality of the

magistrate’s acts in this respect, the Commonwealth pre-

sented detailed evidence as to six of those cases listed. In

addition similar evidence was presented over defendants’

objections as to nine cases not listed. The trial judge then

refused to permit the Commonwealth to introduce evidence

of other cases not listed in the indictment for the reason that

such evidence would be prejudicial and repetitious. It is

argued that the trial judge in his charge erroneously re-

ferred to these excluded cases and told the jury that they

could consider them. In his argument to the jury counsel

for Schwartz stated that the Commonwealth had only pro-

duced evidence as to a few of the many civil cases in Mag-

‘strate Schwartz’ court. In his charge the trial judge re-

minded the jury that the Commonwealth had attempted the

proof of other cases but he was careful to instruct the jury

that they could consider these other cases only as they

relate to the alleged conspiracy and as they relate to the

48b Opinion of Superior Court of Pa.

issue of design, plan or intent. This was not error: Com,

v. Cohen, 203 Pa. Superior Ct. 34, 45, 70, 199 A, 24 139;

Com. v. Raymond, 412 Pa. 194, 194 A. 2d 150; Com, »,

Grosso, 192 Pa. Superior Ct. 513, 162 A. 2d 421, affirmed

401 Pa. 549, cert. denied, 365 U. S. 835.

Appellants also argue that the trial court erred in

permitting John P. Mason, Esq., the Commonwealth’s chief

witness, to sit at counsel table and act as associate prosecut.

ing attorney. The record does not indicate that Mr. Mason

was a prosecuting attorney in this case. Mr. Mason was

merely a witness and he had a perfect right to sit at counsel

table, as county detectives often do in the trial of a criminal

case.

Appellants also argue that the trial court erred in its

instructions to the jury as to reputation evidence in the

case against Schwartz. The trial court expressly limited

the reputation evidence to the case against Siegel. This was

not error under the circumstances surrounding the trial.

Schwartz presented no evidence in his defense and there-

fore gained the tactical advantage of the final speech to the

jury. Siegel, however, presented reputation witnesses and

the trial judge permitted these witnesses to testify also as

to Schwartz’ reputation on the theory that two such emi-

nently respectable gentlemen would never conspire to com-

mit acrime. The court charged the jury in this connection

as follows: ‘‘This evidence was admitted for the limited

purpose of establishing in the case against Siegel, that be-

cause neither he nor Schwartz were capable of having com-

mitted the crimes alleged—in other words, they were of

good reputation—that he, Siegel, could not have committed

the offense of conspiracy . . . . You may consider this

reputation evidence respecting Schwartz, in the light of this

principle.’’? We find no error in this charge under the

circumstances of this case.

Opinion of Superior Court of Pa. 49b

The motion to sever the Siegel case from the Schwartz

ease was refused and this was within the sound discretion

of the trial judge and we find no manifest abuse of dis-

cretion or prejudice or clear injustice to the defendant in

this regard: Com, v. K ubacki, 208 Pa. Superior Ct. 523, 224

4, 2d 80; Com. v. Patrick, 416 Pa. 437, 206 A. 2d 295. To

have granted separate trials would have entailed a repeti-

tion of the same testimony. All the charges grew out of

the same occurrences. There was a close relationship be-

tween the substantive offenses and the conspiracy which

justified a joint trial. In a conspiracy charge defendants

should generally be tried together. See Com. v. Giambrone,

183 Pa. Superior Ct. 283, 130 A. 2d 254.

It is also argued that all of the indictments were illegal

because the attorney general had no right to investigate the

magisterial system of Philadelphia absent a formal request

by the Board of Judges of the Common Pleas Courts of

Philadelphia. We can see no error in this respect: Com.

ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524;

Margiotti Appeal, 369 Pa. 330, 75 A. 2d 465; Com. v. Fude-

nan, 396 Pa. 236, 152 A. 2d 428; Com. v. Wheeler, 200 Pa.

Superior Ct. 284, 189 A. 2d 291.

Judgments of sentence affirmed and the defendants are

directed to appear in the court below at such time as they

may be there called, and that they be by that court com-

mitted until they have complied with the sentences, or any

part of them which had not been performed at the time

the appeals were made a supersedeas.

Horrman, J., took no part in the consideration or decision

of this case.

Sear

ALY LORE LAID ETE OSE Py OT

0b Petition for Allowance of Appeal

PETITION FOR ALLOWANCE OF APPEAI,

FROM THE SUPERIOR COURT.

1. Appellant, Harry C. Scuwartz, is a duly elected

Magistrate of the City of Philadelphia. Appellant Appa.

HAM SIEGEL is a duly elected Constable of the City of

Philadelphia.

2. The prosecution below arose out of the special probe

of the Philadelphia magisterial courts conducted by the

Attorney General of the Commonwealth of Pennsylvania

during the fall and winter 1964-65.

3. Appellants were indicted on a total of twenty-one

separate bills of indictment for various offenses relating to

their activities as magistrate and constable and were tried

together in the Court of Quarter Sessions of Philadelphia

County before the Honorable John J. MeDevitt and a jury,

commencing April 12, 1966.

4. On April 20, 1966, the jury returned a verdict finding

appellants guilty on the following charges:

(a) Magistrate Schwartz:

(i) Malfeasance, misbehavior in office and offi-

cial oppression in disposing of small claims brought before

him by co-defendant Constable Abraham Siegel and Active

Collection Agency, Inc. with knowledge that his wife was

an officer and principal shareholder of the said corporation.

Bill Nos. 881-885 (20a-25a).

(ii) False pretenses in permitting Constable

Siegel to assess certain charges in executing the judgments

entered against the debtors in these cases. Bill Nos. 891,

892, 897, 905 (26a-29a, 34a-35a, 40a-41a).

(iii) Conspiracy with Constable Siegel to com-

mit the above offenses. Bill No. 880 ( 17a-19a).

Petition for Allowance of .Appeal o1b

(b) Constable Siegel:

False pretenses in assessing certain charges in

the execution of judgments entered against debtors by his

wo-defendant Magistrate Harry C. Schwartz in small claims

brought before the Magistrate by appellant Abraham Siegel

and Active Collection Agency, Inc., Bill Nos. 893, 896, 898,

900 (30a-33a, 36a-39a).

Conspiracy with Magistrate Schwartz to commit

various offenses relating to the handling and disposition of

small claims by appellants Abraham Siegel and Harry C.

Schwartz. Bill No. 880 (17a-19a).

5. Appellants’ motions for arrest of judgment and for

new trial were denied by the Court below on December 7,

1966 (80a-106a). Appellants were sentenced on December

14, 1966 to terms of imprisonment in the Philadelphia

County Prison of 11 to 23 months and the payment of

$10,000 fine in the case of Magistrate Schwartz and a $5,000

fine in the case of Constable Siegel (107a-08a).

6. Appellants thereafter appealed to the Superior

Court of Pennsylvania as of October Term, 1967, Nos. 227-

241, and that Court affirmed the judgment of sentence of

the Court below in an opinion filed on September 14, 1967,

acopy of which is attached hereto as Exhibit ‘‘A’’.

7. The principal evidence introduced at the trial con-

cerned the handling and collection of a number of small

daims by Constable Siegel and Active Collection Agency,

Inc. by the institution of proceedings in Magistrate

Schwartz’ Court. Active Collection Agency, Ine., which

was originally a sole proprietorship operated by Magistrate

Schwartz when he was a constable, was incorporated upon

his election as magistrate with Constable Siegel and Magi-

strate Schwartz’ wife, Lillian, as its stockholders and offi-

cers (182a-93a). In general, the amounts collected by Con-

stable Siegel and Active Collection Agency, Inc. included

the principal debt, interest in the amount of $1.50, $2.50,

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RIE PETS EAE NS PAIN RSIR ES PA Cae eR aE eT,

jh Petition for Mowauce of Appeal

3.0) and $4.50 and costs for service of summons of $75

or $9.00. In one instance, an additional sum of $5.00 was

added to the amount of the debt by Constable Siege!

(483a-90a ).

John P. Mason, the Special Axxistant Attorney Gep.

eral, who participated in the investigation of the Magis.

terial xystem (and who acted ax an associate prosecuting

attorney), testified as a witness as to the proper amount of

costs allowable for service of summons ($2.50 for the city;

$2.50 plus mileage for the constable) (396a-401a, Tifa).

A state policeman further testified as to the various mile.

ages to the residences of the several debtors (7210-39.

S52a-60a).

The Court refused to permit cross-examination (219,

430a, 442a-47a), or the introduction of evidence (891a-97a),

as to the custom among constables, and its approval by

public officials, to impose additional charges, including the

amounts of $7.50 (for one defendant) and $9.00 (for two

defendants) as costs for service of summons, unless the

constable took the stand to testify

The amount of the overcharges involved in each in.

stance set forth in the billx of indictment charging false

pretenses are as follows:

Bill of

Indict-

Name of ment In-

Debtors No. terest Costa Extras Total

Cybul«ky 892593 $1.50 $2.72 $422

Eisley 591,896 $250 $2.56 $ 506

Huston 897,898 $250 $290 $5.00 $1040

Granoff 9003905 $250 $182 $ 422

99.00 $1000 $5.00

Total for all four count« against both

SES vessneesudcuddbeneuedcaee $24.00

Petition for Allowance of Appeal j3h

The facts are more fully set forth in appellants’ State-

ment of Case in their Brief before the Superior Court,

copies of which accompany this Petition.

8. The questions raised by these appeals are as fol-

lows:

(a) Did Magistrate Schwartz’ conduct in disposing

of valid small claims brought before him by a collection

agency in which his wife was an officer and stockholder

constitute an indictable common law offense, in view of

the lack of statutory or judicial precedent designating such

conduct as criminal!

(b) Was there substantial evidence in the record

to sustain appellants’ conviction on any of the charges

alleged in the bills of indictment, particularly that of

Conspiracy!

(c) Did the court below err in excluding evidence

of custom in the City of Philadelphia ax to amounts charged

by Constables in small claims cases?

(d) Was the entire proceeding below illegal ax arix-

ing out of an unauthorized common law investigation by

the Attorney General of the Commonwealth of Pennsyl-

vania!

(ec) Did the court below err by referring in its

charge to crimes not alleged in the bills of indictmen t, since

evidence of these crimes had been excluded during the

trial!

(f) Did the court below err in permitting John

P. Mason, Exquire, one of the Commonwealth's chief wit-

nesses to sit at counsel table and act as an associate prose-

enting attorney during the course of the trial?

Hb Petition for Allowance of Appeal

(g) Did the court below err in failing to instruet

the jury to consider the testimony as to Magistrate

Schwartz’ reputation introduced in Constable Siegel's

case as evidence in Magistrate Schwartz’ case?

(h) Did the court below err in permitting the Com.

monwealth to introduce into evidence the transcript of yp.

sworn statement made by Magistrate Schwartz to Special

Assistant Attorney Generals Arlen Specter and John P.

Mason during the magisterial probe without having been

advised of hix rights to counsel or to remain silent?

(i) Did the court below err in refusing to grant

Constable Siegel's motion for a separate trial?

9. Appellants request that this Court allow an appeal

from the decision of the Superior Court of Pennsylvania

for the following reasons:

(a) The decision of the Superior Court (Exhibit

**A’’, pp. 10-14) that the conduct of Magistrate Schwart:

was indictable ax a common law offense constitutes a

judicial extension of the common law crimes charged in

the indictments to completely novel circumstances which

have not heretofore been expressly prohibited by this

Court or the General Assembly of Pennsylvania and

should, therefore, be reviewed by this Court. It is sub-

mitted that such an extension of the common-law offenses,

without prior judicial or legislative sanction is contrary

to the ex post facto and due process clauses of the United

States and Pennsylvania Constitutions and should not be

sustained by this Court.

(b) The decision of the Superior Court (Exhibit A,

pp. 16-17) that there was sufficient evidence to sustain ap-

pellants’ conviction on the conspiracy indictment is con-

Petition for Allowance of Appeal 55b

trary to this Court’s decision in Commonwealth v. Yob-

bagy, 410 Pa. 172 (1963).

(c) The decision of the Superior Court (Exhibit

A, p. 18) that evidence of custom in the costs and fees

charged by Constables in the City of Philadelphia was

properly excluded because Constable's costs were regulated

by statute is directly contrary to this Court’s opinion in

Commonwealth v. Trunk, 311 Pa. 559 (1933), which ex-

pressly stated that conduct of public officials can be justi-

fed on the basis of custom although such conduct was in

violation of a statutory mandate.

(d) The decision of the Superior Court (Exhibit A,

p. 21) that the Attorney General of Pennsylvania possessed

the common law power to investigate the Philadelphia

magisterial xystem rests upon 4 legal principle recently

questioned by this Court in its opinion in Smith v. Gal-

lagher, 408 Pa. 551, 605 (1962) and should be reviewed

by this Court.

(e) The remaining issues resolved by the Superior

Court also raise novel questions of law which should be

considered by this Court.

10. Copies of appellants’ Brief and Record in the

Superior Court accompany this Petition.

Wuererore, petitioner prays that he be allowed to

appeal from the judgment of the Superior Court to the

Supreme Court of Pennsylvania.

Marvin Comisky,

Marvin Comisky,

Epwix P. Rome,

Edwin P. Rome,

Attorneys for Appellants.

o6b Opinion of Supreme Court of Pa.

IN THE

SUPREME COURT OF PENNSYLVANIA

Eastern District.

No. 131, January Term, 1968.

AppeaL From THE OrberR OF THE SUPERIOR CovuRT oF

PENNSYLVANIA TO Nos, 227-241 October Term,

1967, AFrIRMING JUDGMENTS OF THE CouRT

oF Quarter Sessions oF PHILADELPHIA

County To Nos. 880-885, 891-893, 896-

898, 900, 905, January Sessions,

1966.

ENTereD: Octoser 17, 1967.

COMMONWEALTH OF PENNSYLVANIA

v.

HARRY C. SCHWARTZ

AND

ABRAHAM SIEGEL,

Appellants,

OPINION.

Per Curiam: Fitev: November 14, 1968

The court being equally divided the order of the Sv-

perior Court is affirmed.

Mr. Justice Cohen files a dissenting opinion.

Mr. Justice Roberts files a dissenting opinion in which

Mr. Justice O’Brien joins.

Mr. Justice Musmanno did not participate in the de-

cision of this case.

Dissenting Opinion (Sup, Ct. Pa.) a7b

DISSENTING OPINION.

Fitep: November 14, 1968

(‘OHEN, J

I conclude that the Attorney General improperly super-

ceded the District Attorney.

I dissent.

DISSENTING OPINION.

Roserts, -/. Fivep: November 14, 1965

The majority, in failing to grant appellant Siegel a

new trial, ignores two recent Supreme Court decisions.

During the course of the trial the Commonwealth intro-

duced Magistrate Schwartz's unsworn statement which in-

culpated Constable Siegel. It is coneeded that cautionary

instructions were given to the jury warning them to disre-

gard Schwartz's statement in evaluating the Common-

wealth’s case against Siegel. Further, under the rule

originally established in Della Paoli v. United States, 552

U.S. 232, 77 S. Ct. 294 (1957), it was assumed that a prop-

erly instructed jury would ignore the confessor’s ineulpa-

tion of the nonconfessor in determining the latter's guilt.

If followed from this assumption, that there could be no

violation of the noneonfessor’s right to confrontation, be-

cause the case was treated as if the confessor had made no

statement inculpating the nonconfessor.

However, in Bruton v. United States, — U. 8S. —, 88

S. Ct. 1620 (1968), the Supreme Court expressly overruled

Della Paoli, and held that because of the substantial risk

that the jury might look to the confessor’s statements in

determining the nonconfessor’s guilt, any admission of

such a statement in a joint trial violated the nonconfessor’s

right of eroxs-examination as guaranteed by the confronta-

58b Dissenting Opinion (Sup. Ct. Pa.)

tion clause of the sixth amendment. The Supreme Cour

opinion states: ‘‘Despite the concededly clear instructions

to the jury to disregard Evans’ [Bruton’s codefendant’s]

inadmissible hearsay evidence inculpating petitioner, jp

the context of a joint trial we cannot accept limiting jn.

structions as an adequate substitute for petitioner’s con-

stitutional right of cross-examination.

The facts in the instant appeal are so similar to those

in Bruton that they clearly compel a new trial for appel-

lant Siegel. Schwartz made implicating statements, never

took the stand and therefore was not subject to cross-ex.

amination. Although it might be contended that Schwartz’

statements did not prejudice Siegel, even the Common-

wealth in its brief concedes that this was possible by noting

that: ‘‘There was nothing in the statement which impli-

cated Siegel which had not already been proved aliunde.”

Nor can a valid argument be made that because the damag.

ing evidence in Schwartz’ statement was also proved else-

where, the error in introducing the statement at Siegel’s

trial was harmless. This Court has clearly enunciated that

in order to prove ‘harmless error, the Commonwealth

must now demonstrate, beyond a reasonable doubt, that

there was no reasonable possibility that the evidence com.

plained of might have contributed to the conviction.” Com-

monwealth v. Pearson, 427 Pa. 45, 49, 233 A. 2d 552, 554

(1967). A cursory glance at the record indicates that it

would be impossible for the Commonwealth to meet this

burden. Since the Supreme Court has declared that Bru-

ton is completely retroactive, Roberts v. Russell, — U. S.

—, 88 S. Ct. 1921 (1928), it seems clear to me that it is

incumbent upon this Court to award Siegel a new trial.

Therefore I dissent.

Mr. Justice O’Brien joins.

Petition for Reargument 59b

IN THE

SUPREME COURT OF PENNSYLVANIA

Eastern District.

No. 131, January Trem, 1968.

AppeaL From THE Orper DatEep OcTOBER 17, 1967, or THE

Superior Court or PennsyLvania TO Nos. 227-241, Oc-

ropeR TERM, 1967, AFFIRMING JUDGMENTS OF THE

Court or QuarTeR Sessions OF PHILADELPHIA

County To Nos. 880-885, 891-893, 896-898,

900, 905, January Sessions, 1966.

COMMONWEALTH OF PENNSYLVANIA

v.

HARRY C. SCHWARTZ,

AND

ABRAHAM SIEGEL,

Appellants.

PETITION FOR REARGUMENT.

To the Honorable, the Chief Justice and Associate Justices

of the Said Court:

The Petition of appellants, Harry C. Schwartz and

Abraham Siegel, by their attorneys, respectfully repre-

sents :

60b Petition for Reargument

HISTORY.

1. This appeal arises out of the conviction of appel.

lants Harry C. Schwartz, a duly elected Magistrate of the

City of Philadelphia, and Abraham Siegel, a duly eleeted

Constable of the City of Philadelphia, of the following

alleged offenses relating to their conduct in public office:

a. Magistrate Schwartz:

(i) Malfeasance, misbehavior in office and of.

ficial oppression in disposing of small claims

brought before him by co-defendant Constable

Abraham Siegel and Active Collection Agency,

Inc., with knowledge that his wife was an officer

and principal shareholder of the said corporation.

Bill Nos. 881-885 (Rec. 20a-25a).

(ii) False pretenses in permitting Constable

Siegel to assess certain charges in executing the

judgments entered against the debtors in these

cases. Bill Nos. 891, 892, 897, 905 (Rec. 26a-29a,

34a-35a, 40a-41a).

(iii) Conspiracy with Constable Siegel to

commit the above offenses. Bill No. 880 (17a-19a).

b. Constable Siegel:

(i) False pretenses in assessing certain

charges in the execution of judgments entered

against debtors by his co-defendant Magistrate

Harry C. Schwartz in small claims brought before

the Magistrate by appellant Abraham Siegel and

Active Collection Agency, Inc., Bill Nos. 893, 896,

898, 900 (Rec. 30a-33a, 36a-39a).

(ii) Conspiracy with Magistrate Schwartz to

commit various offenses relating to the handling

and disposition of small claims by appellants

Petition fur Reargument 61b

Abraham Siegel and Harry C. Schwartz. Bill No.

880 (Rec. 17a-19a).

9, These changes emanated from the special probe of

the Philadelphia magisterial courts conducted by the At-

torney General of the Commonwealth of Pennsylvania dur-

ing the fall and winter 1964-65.

3. Appellants were tried together in the Court of

Quarter Sessions of Philadelphia County before the Hon-

orable John J. McDevitt and a jury, commencing April

12, 1966, and a verdict of guilty was returned on the above

hills of indictment on April 20, 1966.

4, Appellants’ motions for arrest of judgment and for

new trial were denied by the Court below on December 7,

1966 (Rec. 80a-106a). Appellants were sentenced on De-

cember 14, 1966 to terms of imprisonment in the Philadel-

phia County Prison of 11 to 23 months, and the payment

of $10,000 fine in the case of Magistrate Schwartz and a

$5,000 fine in the case of Constable Siegel (Rec. 107a-08a).

5. Appellants thereafter appealed to the Superior

Court of Pennsylvania as of October Term, 1967, Nos. 227-

941, and that Court affirmed the judgment of sentence of

the Court below in an opinion filed on September 14, 1967

(Supp. Rec. 1b-22b).

6. This Court granted appellants’ Petition for Al-

lowance of Appeal by order dated September 29, 1967

(Supp. Ree. 37b), and oral argument was heard before

the seven judges then constituting this Court on January

4, 1968.

7. On November 14, 1967, this Court filed a per curiam

opinion stating, ‘the Court being equally divided, the order

4

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4

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F

TEE NE IRA AREA Ge Le Rie

62b Petition for Reargument

of the Superior Court is affirmed.’’ Dissenting opinions

were filed by Mr. Justice Cohen and by Mr. Justice Roberts,

in which Mr. Justice O’Brien joined. The opinion noted

that Mr. Justice Musmanno, who had died on October

12, 1968 (and who sat with the Court at the time of oral

argument), ‘‘did not participate in the decision of this

case’’, causing the equally divided Court.

EVIDENCE.

8. The principal evidence introduced at the trial con.

cerned the handling and collection of a number of smal]

claims by Constable Siegel and Active Collection Agency,

Inc. by the institution of proceedings in Magistrate

Schwartz’ Court. Active Collection Agency, Inc., which

was originally a sole proprietorship operated by Magis.

trate Schwartz when he was a constable, was incorporated

upon his election as magistrate with Constable Siegel and

Magistrate Schwartz’ wife, Lillian, as its stockholders and

officers (Rec. 182a-93a).

In general, the amounts collected by Constable Siegel

and Active Collection Agency, Inc., included interest and

costs for service of summons of $7.50 or $9.00 instead of

the $5.00 plus mileage allowed by statute (Rec. 396a-401a,

754a). In one instance, an additional sum of $5.00 was

added to the amount of the debt by Constable Siegel (Ree.

483a-90a). The amount of the alleged overcharges in-

volved in all of the instances set forth in the bills of in-

dictment charging false pretenses totalled $24.00 (Appel-

Inats’ Brief, p. 6). 3

The Court refused to permit cross-examination (Ree.

219a, 430a, 442a-47a), or the introduction of evidence (Ree.

891a-97a), as to the custom among constables, and its ap-

proval by public officials, to impose additional charges, in-

Petition for Reargument 63b

cluding the amounts of $7.50 (for one defendant) and

$9.00 (for two defendants) as costs for service of sum-

mons, unless the constable took the stand to testify. It also

refused to permit this same evidence on behalf of Magis-

trate Schwartz, even though in practical effect he had

taken the stand, because of an admission by him on this

issue read into the testimony.

The Court permitted to be introduced into evidence

testimony by Mr. Mason as to certain statements made by

Magistrate Schwartz during his examination by the Special

Assistant District Attorney General with regard to his re-

lationship with Mr, Siegel (Ree. 819a-41la), merely instruct-

ing the jury that ‘‘the information contained in the tran-

seript may not be considered or used in any respect against

(Constable Siegel, even though Constable Siegel’s name

may appear from time to time in it (Rec. 804a).

The facts are more fully set forth in appellants’

Statement of Case in their Brief before this Court.

QUESTIONS ON APPEAL.

9, The questions raised by these appeals are as fol-

lows :

(a) Did Magistrate Schwartz’ conduct in disposing

of valid small claims brought before him by a collection

agency in which his wife was an officer and stockholder

constitute an indictable common law offense, in view of the

lack of statutory or common law precedent designating

such conduct as criminal?

(b) Was there substantial evidence in the record

to sustain appellants’ conviction on any of the charges

alleged in the bills of indictment, particularly that of con-

spiracy?

64b Petition for Reargument

(c) Did the court below err in excluding evidence

of custom in the City of Philadelphia as to amounts charged

by constables in small claims cases?

(d) Was the entire proceeding below illegal as aris.

ing out of an unauthorized common law investigation by

the Attorney General of the Commonwealth of Pennsyl.

vania?

(e) Did the court below err by referring in its

charge to crimes not alleged in the bills of indictment, since

evidence of these crimes had been excluded during the trial!

(f) Did the court below err in permitting John P.

Mason, Esquire, one of the Commonwealth’s chief wit-

nesses, to sit at counsel table and act as an associate prose-

cuting attorney during the course of the trial?

(g) Did the court below err in failing to instruet

the jury to consider the testimony as to Magistrate

Schwartz’ reputation introduced in Constable Siegel’s case

as evidence in Magistrate Schwartz’ case?

(h) Did the court below err in permitting the Com-

monwealth to introduce into evidence the transcript of un-

sworn statement made by Magistrate Schwartz to Special

Assistant Attorney Generals Arlen Specter and John P.

Mason during the magisterial probe without having been

advised of his rights to counsel or to remain silent?

(i) Did the court below err in refusing to grant

Constable Siegel’s motion for a separate trial in view of

the introduction into evidence of Magistrate Schwartz’

statement inculpating him?

ona eae ageecs eee @ame 426 6 4286 @ _— -— - —— -— -— . -—s

Petition for Reargument 65b

REASONS FOR REARGUMENT.

10. Appellants request that this Court grant a reargu-

ment with respect to these issues for the following reasons:

(1) The decision of this equally divided Court, in

condoning the admission of Magistrate Schwartz’ unsworn

statement inculpating his codefendant Constable Siegel, is

directly contrary to two recent decisions of the United

States Supreme Court. Bruton v. United States, 391 U.S.

123 (1968) ; Roberts v. Russell, 392 U. 8. 293 (1968).

In Bruton, the Court held that the introduction into

evidence at a joint trial of the statement of one codefend-

ant which inculpates a second defendant constitutes a vio-

lation of the second defendant’s constitutional right of con-

frontation. The opinion expressly repudiated the rule of

Delli Paoli v. United States, 352 U. S. 232 (1957), relied

upon by the courts below, that statements of this sort were

admissable provided that the jury was instructed to disre-

gard the statement as to the second defendant (391 U.S.

at 135-137) :

“(There are some contexts in which the risk that the

jury will not, or cannot, follow instructions is so great,

and the consequenees of failure so vital to the defend-

ant, that the practical and human limitations of the

jury system cannot be iguored. . . . Such a context

is presented here, where the powerfully incriminating

extrajudicial statements of a codefendant . . . are

deliberately spread before the jury in a joint trial

“fT ]n the context of a joint trial we cannot accept lim-

iting instructions as an adequate substitute for peti-

tioner’s constitutional right of cross-examination. The

66b Petition for Reargument

effect is the same as if there had been no instruction

at all.’’

In Roberts, the Court held that the constitutional prin.

ciples enunciated in Bruton, a federal court Proceeding

were equally applicable to state court proceedings under the

Due Process Clause of the 14th Amendment to the United

States Constitution, and were further applicable retro.

actively to criminal trials conducted prior to the Bruton

opinion.

It has been appellants’ position throughout the course

of these proceedings that the binding instructions of the

trial court herein were legally insufficient and that the ad.

mission of Magistrate Schwartz’ statement into evidence

at the joint trial was improper for the exact same reasons

as were stated by the Supreme Court in Bruton and

Roberts. These decisions require the reversal of the judg-

ments below and the grant of new and separate trials to

appellants.

At the very least, since the decisions in Bruton and

Roberts was handed down by the United States Supreme

Court subsequent to oral argument of the matter before

this Court, appellants should be granted a rehearing for

the purposes of arguing the effect of these decisions on the

instant case.

(2) Appellants argued their appeals before a full con-

Stitutional seven-judge court, and are entitled to have the

matter decided by the full court. Article V, §1 of the

Pennsylvania Constitution (Article V, §2 of the revised

Judiciary Article which becomes effective January 1, 1969)

provides for a seven-judge court and there is no constitu-

tional or statutory provision authorizing the Court to act

with less than seven judges or to render a decision other

Petition for Reargume

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