Appeal, No.159, April T., 1951, from judgments of Court of Quarter Sessions of Fayette County, Dec. T., 1950, No. 74, in case of Commonwealth of Pennsylvania v. Frank Hradesky and James Paull.
Anthony Cavalcante, with him Joseph P. Matuschak, for appellant.
J. K. Spurgeon, Assistant District Attorney, with him Fred L. Brothers, District Attorney, for appellee.
Before Rhodes, P. J., Hirt, Reno, Dithrich, Ross and Arnold, JJ. (gunther, J., absent).
Frank Hradesky and James Paull were indicted for attempted extortion, attempted bribery, and conspiracy to commit extortion and bribery. In addition, Hradesky was charged with misconduct in office. Paull entered a plea of guilty to the charges against him, and became a witness for the Commonwealth at the trial of Hradesky, who was found guilty by a jury. He was sentenced by the Court of Quarter Sessions of Fayette County. On this appeal from judgment and sentence he does not question the sufficiency of the evidence to sustain his conviction, but alleges that certain trial errors require that he be granted a new trial.
At the time of the commission of the alleged crimes, appellant was the Chief Assessor of Fayette County. The Commonwealth's evidence showed that appellant and Paull conspired to extort, and that they did extort $400 from Ralph Campbell, manager of the Wright Poster Advertising Company of Brownsville, Fayette County, on the representation that for such payment the advertising company's billboards or roadsigns would not be assessed for tax purposes. These billboards had not been assessed in the year 1959 or previous years. On a day in July, 1950, when Campbell was in appellant's office on other matters, appellant suggested that the advertising company had better be prepared for a tax program on their billboards. Later, on August 28, 1950, appellant met Campbell in a hotel lobby and told him, "'in signing up your contracts for the coming year you had better be prepared to pay a tax.'" Campbell said he was willing to pay any reasonable tax that might be imposed.
Paull first contacted Campbell in Brownsville the morning of September 15, 1950, and, after some general conversation, told him, in substance, that for a payment of $700 the signs of the advertising company would be kept off the tax blotter, thereby saving the company about $2,000 a year in taxes. Paull said to Camobell: "'Frank [appellant] will be down here at one-thirty. . . at the hotel for lunch, . . .you better be there to meet with him. . . .if you don't, you will be put on the blotter the next day and turned over tothe commissioners on Monday.'" Campbell reported the matter to the authorities who instructed Campbell to continue negotiations with Paull's authority to act for appellant. Paull next arranged a meeting with Campbell and appellant in the latter's car on September 19th, near the library in Brownsville. Appellant there told Campbell "'whatever Jimmy [Paull] has told you is okay with me.'" Appellant and Paull both assured Campbell at this meeting that Wright Poster Advertising Company's structures would never appear on the assessment blotters of Fayette County providing the $700 was paid. Appellant urged Campbell to pay the money and get over with it, remarking "'You know you can go to jail for a thing like this.'" Appellant went so far as to suggest that representatives of other outdoor advertising companies would be turned over to Campbell who could arrange "'what fee they might be able to pay,'" and that "'if they don't go along they are really going to get rocked.'" Campbell objected to a payment of $700 and the amount of the demand was reduced to $400.
Campbell reported his latest meeting wtih appellant and Paull to the authorities who referred the case to the state police. Campbell secured $400 from a bank in Uniontown and the police noted the serial numbers of the bills. Paull arranged to meet Campbell again on September 26th, but since appellant was not present Campbell did not pay over the $400. Campbell later met appellant and Paull in appellant's office on September 28th, at which time appellant suggested they put a nominal assessment on the billboards "'to make it look good.'" When Campbell rejected this suggestion as ridiculous, appellant said: "'Well, okay, hurry up and get this thing over with.'"
On October 5th, Paull called Campbell and urged him to come to the Square Tavern in Brownsville to meet appellant and Paull, at 7:15 p.m. When Campbell arrived Paull said that appellant had to leave to keep another engagement. After some conversation in Campbell's car, Campbell paid Paull the $400 since he had been instructed by the police to do so regardless of appellant's absence. As Campbell and Paull stepped out of the car, the police, on a prearranged signal by Campbell, arrested Paull and found the $400 on his person.
In order to show a general scheme, plan, and design on the part of appellant to use his office for personal gain, the Commonwealth called several other witnesses from whom appellant had allegedly, in some instances with Paull's assistance, attempted to extort money on threat of higher assessments on property owned by them. Frank Magazine, owner of a construction business and lumber yard at Republic, Fayette County, which had been assessed for some years at $3,500, received a notice from appellant's office of an increase ot $175,000. Magazine testified Paull interviewed him and stated that for a payment of $500 the assessment would be reduced to $10,000. Magazine offered $300; whereupon Paull called appellant on the telephone, and Magazine, listening on an extension in his own office, heard appellant tell Paull not to settle for $300 but to get the $500.
Clarence Dennis, an automobile dealer, also testified that appellant came to his place of business and demanded that Dennis deliver to him a new car worth $3,317, make the necessary one-third down payment, give him $500 in cash to use in paying off a bank loan, and accept in trade a used car which had a lien against it to the extent of its full market value, or $1,700. When Dennis refused appellant said: "'Well, you might as well deal with me. You know I could raise your assessment. . . . You might as well put it out that way as any way.'"
The testimony of Dennis was offered by the Commonwealth in rebuttal, and received over the objection of trial counsel for appellant, and its admission is one of the complaints on this appeal. Appellant contends that the admission of testimony showning other offenses having no connection with those for which he was tried was error. This evidence was clearly admissible to show scheme, plan, design, intent, and motive upon the part of appellant to use his office to extort money from taxpayers for his personal enrichment. Evidence of other offenses closely related to those charged is admissible for such purposes. Com. v. Dempsey, 146 Pa. Superior Ct. 124, 127, 22 A.2d 76; Com. v. Thurman, 167 Pa. Superior Ct. 642, 646, 76 A.2d 483; Com. v. Darcy, 362 Pa. 259, 282, 66 A.2d 663. The admission of testimony not strictly rebuttal is within the discretion of the trial court, and if relevant the mere fact that it was received in rebuttal when it should have been offered in chief is not reversible error. Com. v. Bell, 166 Pa. 405, 413, 31 A. 123; Com. v. Libonati, 346 Pa. 504, 511, 31 A.2d 95; Com. v. Viscosky, 83 Pa. Superior Ct. 96, 106. Appellant's accomplice Paull testified for the Commonwealth concerning the arrangement whereby he acted as the tool of appellant in attempts to extort money from property owners on threat of higher assessment. Paull testified, without objection, to at least two instances, in addition to the Magazine and Campbell cases, where he and appellant had attempted to obtain money from property owners, namely, in the cases of a taproom called The Pined and a hotel known as the White Pillars.
Appellant's contention that the trial judge committed error in limiting the introduction of defense evidence is entirely without merit. He was permitted to present his defense in great detail. Any error that may have resulted from the exclusion of defense testimony at one point was harmless as appellant was given full opportunity to make denials and explanations at another. Com. v. Neill, 362 Pa. 507, 516, 67 A.2d 276; Com. v. Balles, 163 Pa. Superior Ct. 467, 471, 62 A.2d 91; Com. v. Hoffman, 103 Pa. Superior Ct. 433, 440, 441, 157 A. 221. Appellant took the stand and testified at length in his own behalf. He admitted that he knew Paull and that he took several automobile trips with him, but he denied ever discussing the question of assessments with Paull. Appellant admitted discussing assessments with Campbell and other witnesses for the Commonwealth, but he denied any ...