# Petition for Writ of Certiorari — Schwartz v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1970
- **Citation:** 398 U.S. 957

## Text

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Questions PRESENTED .......2.cccecc cere cece eceeeneceee

(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

lb

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

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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.

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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-

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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

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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

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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

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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

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———— 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

“4
oa

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 prio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1541%3A1. Public record. Not legal advice.