Appeals, Nos. 41 to 48, inclusive, Oct. T., 1958, from judgment of Court of Quarter Sessions of the Peace of Delaware County, March T., 1957, Nos. 297 to 308, inclusive, in case of Commonwealth of Pennsylvania v. Clarence Hansell. Judgment reversed.
Leon Bernstein, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, with him J. Harold Hughes, First Assistant District Attorney, and Raymond R. Start, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 444]
Defendant was tried and convicted by a jury in the Court of Quarter Sessions of Delaware County on four bills of indictment (Nos. 297, 301, 304, and 307, March Sessions, 1957) charging common law bribery, and on four bills of indictment (Nos. 299, 300, 303, and 306, March Sessions, 1957) charging extortion. Defendant was acquitted on four bills of indictment charging bribery of servants and employes. His motion for a new trial, as amended, was refused, and he was sentenced on bill of indictment No. 299, March Sessions, 1957, charging extortion, to pay a fine of $100 and costs, and to undergo imprisonment in the county jail for a minimum of three months or a maximum of six months. Defendant has appealed to this Court after the court below refused his motion for a new trial.
[ 185 Pa. Super. Page 445]
The first contention of appellant is that the trial judge erred in not sustaining appellant's demurrer to the Commonwealth's evidence produced at the trial on all the bills of indictment. The Commonwealth's evidence established that appellant was a member of the police force of the Township of Upper Darby, Delaware County, at the time the offenses charged allegedly took place. The principal witness for the Commonwealth was Louis Lambert, president and manager of McCleary Republican Club located at 7055 Garrett Road, Upper Darby. The club was involved in litigation during 1955, the object of which was to bring about the padlocking of the club. Appellant frequently visited the club during this period, some times while on duty and in uniform and at other times when "out of uniform." Appellant, purporting to act for his superiors in the police force, told Lambert that for $100 per week the police pressure on the club would be removed. Later the demand was reduced to $50 every two weeks, and pursuant to the arrangement appellant was paid $50 in cash by Lambert at the club on Sunday afternoon, December 4, 1955. Thereafter, pursuant to the same arrangement, Lambert paid appellant $50 on each of the following dates - December 18, 1955, January 1, 1956, and January 22, 1956. The payment on January 1, 1956, was witnessed by an employe of the club. After the fourth payment, Lambert, acting on the advice of his counsel, refused to make any further payments.
Appellant's argument on the demurrer is that he could not have been guilty of the offenses with which he was charged as the Commonwealth merely showed that he was acting as an intermediary or agent for his superior officers. We find no merit in this contention. The Commonwealth's evidence, if believed, warranted the finding by the jury that appellant used his position
[ 185 Pa. Super. Page 446]
as an officer of the police force to demand and extort unlawful payments, and that he accepted the same for the nonperformance of his official duties or for the protection of the club. The evidence established the guilt of the accused as found by the jury. See Com. v. Wilson (No. 1), 30 Pa. Superior Ct. 26, 31. The fact that appellant may have been acting as the agent for his superiors or in concert with them would not excuse him. At least, it was shown that he joined in the commission of the offenses for which he was convicted. See Com. v. Lowry, 374 Pa. 594, 600, 98 A.2d 733. A person who commits an unlawful act is not relieved from the penalty because he was employed by another to do so or because he acted as his agent. Com. v. Kolb, 13 Pa. Superior Ct. 347, 354.
We find merit in appellant's contention that the trial judge erred in excluding the testimony of a witness called by appellant's counsel to establish the bad reputation for truth and veracity of Louis Lambert, the principal witness for the prosecution. Appellant's witness, Frederick Gentner, a general contractor for twenty-three years, lived in Upper Darby and had completed a contract for renovation of a bar for Lambert in Prospect Park, Delaware County. Gentner had given appellant employment on this project at Lambert's request. Certainly it was permissible for appellant to have Gentner testify, if qualified, to Lambert's reputation for truth and veracity at the time. This could be established by evidence of the present general reputation for truth and veracity of the witness whose credibility is attacked. Smith v. Hine, 179 Pa. 203, 207, 36 A. 222. It may be ...