April 16, 1959
Appeal, No. 51, March T., 1959, from judgment of Court of Quarter Sessions of Dauphin County, Jan. T., 1957, No. 219, in case of Commonwealth of Pennsylvania v. G. Franklin McSorley. Judgment reversed.
Carl B. Shelley and Harold E. McCamey, with them Warren G. Morgan, and Shelley, Reynolds & Lipsitt, and Dickie, McCamey, Chilcote & Robinson, for appellant.
Huette F. Dowling, District Attorney, and Thomas D. McBride, Attorney General, with them Mary E. Hoerner, Assistant District Attorney, Alfred P. Filippone, Deputy Attorney General, Isaiah W. Crippins, Deputy Attorney General, and Vincent G. Panati, Special Assistant Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 189 Pa. Super. Page 225]
OPINION BY GUNTHER, J.
Defendant, G. Franklin McSorley, has appealed his conviction and sentence in the Court of Quarter Sessions of the Peace of Dauphin County for misbehavior in office. This charge grew out of an investigation of the Pennsylvania Turnpike Commission by a Grand Jury which investigation was requested by the Attorney General of Pennsylvania, alleging misconduct by various persons in the Turnpike Commission. The Attorney General's petition, however, made no reference to the defendant.
On January 18, 1957, the Grand Jury made its report and presentment in which it recommended the indictment of the defendant for malfeasance, misfeasance and nonfeasance.
On January 21, 1957, before indictment, defendant moved the court to quash that part of the presentment which involved him, assigning the reason that the presentment was not within the scope and limitations placed upon the investigation by the court. This motion was overruled and on January 23, 1957, pursuant to an order of the court below directing the district attorney to prepare indictments in accordance with the offenses charged in the presentment, the regular Grand Jury returned a true bill charging defendant with malfeasance, misfeasance and nonfeasance in office. Thereafter, a motion to quash the indictment was presented on the grounds that the presentment, upon which the indictment was based, was not within the authority
[ 189 Pa. Super. Page 226]
of the investigating Grand Jury; that remarks concerning the case made by the Governor on radio and television just prior to the convening of said body were prejudicial, and that the prosecuting officers improperly participated in its deliberations and erroneously advised the special Grand Jury. This motion was denied.
From such action an appeal was filed to this Court and on March 18, 1957, after argument, we quashed the appeal for the reason that the order of the Court of Quarter Sessions of Dauphin County dismissing defendant's petition was interlocutory and not appealable.
On November 12, 1957, the defendant was brought to trial and at the conclusion of the Commonwealth's evidence, the defendant's demurrer was overruled. A point for binding instructions was likewise refused and the jury returned a verdict of guilty. Motions for new trial and in arrest of judgment were made and refused and the defendant sentenced. This appeal followed.
Two questions are raised for our consideration: (1) Under the Act of June 15, 1951, P.L. 585, 19 P.S. Section 871, should the motion in arrest of judgment, because of insufficiency of evidence to sustain the conviction, have been granted; and (2) should the presentment of the investigating Grand Jury and the indictment subsequently found thereon be quashed? As our disposition of the first question effectively disposes of this appeal, we shall not consider the second question.
The Act of June 15, 1951, P.L. 585, supra,*fn1 imposes upon the court the duty to consider the entire record
[ 189 Pa. Super. Page 227]
to determine whether there is sufficient evidence to establish the guilt of the defendant. The court was not given jurisdiction to pass upon the credibility of the witnesses, or to review the evidence as a fact finder, or to determine whether it would have arrived at the same verdict as the jury did. We must, therefore, reject all of the defendant's evidence which the jury had a right to disbelieve. After a verdict of guilty, we must accept as true all of the Commonwealth's evidence upon which the jury could have properly based its verdict. Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455 (1953).
The common law crime of misfeasance in office has been clearly defined by our appellate courts to mean either the breach of a positive statutory duty or the performance by a public official of a discretionary act with a corrupt motive. Commonwealth v. Peoples et al., 345 Pa. 576, 28 A.2d 792; McNair's Petition, 324 Pa. 48, 187 A. 498; Commonwealth v. Hubbs (No. 2), 137 Pa. Superior Ct. 244, 8 A.2d 618. Misconduct or malfeasance in office, in its penal sense, is not merely
[ 189 Pa. Super. Page 228]
error in judgment or departure from should discretion, but the act, omission or neglect must be wilful, corrupt and amount to a breach of duty legally required by one who has accepted public office. Commonwealth v. Brown et al., 116 Pa. Superior Ct. 1, 175 A. 748.
It is conceded by all that the defendant violated no positive statutory duty in the performance of the alleged acts here involved. An examination of the Pennsylvania Turnpike Northeastern Extension Act of September 27, 1951, P.L. 1430, 36 P.S. 660 et seq., clearly discloses this to be a fact. The General Assembly has constituted the Pennsylvania Turnpike Commission as an instrumentality of the Commonwealth and, therefore, a member of the Turnpike Commission is a public officer. See Act of May 21, 1937, P.L. 774, 36 P.S. section 652(d). The Commonwealth had to prove, therefore, that the defendant performed a discretionary act with a corrupt motive. In order to sustain this conviction, the Commonwealth had the duty to prove the act complained of and that the defendant acted from a corrupt motive.
The facts of this case are not complicated. The defendant, a prominent businessman, with no former governmental experience, was appointed a member of the Pennsylvania Turnpike Commission. After serving a few months he replaced as chairman, T. J. Evans, who had been a member of the commission for approximately 16 years. After McSorley became chairman, Evans was not on the payroll of the turnpike or the Commonwealth. The evidence establishes that immediately after Evans was replaced as a member of the Commission, McSorley had David J. Dalto, a turnpike employe, assigned to Evans as a chauffeur for a period of 8 months at a cost to the Commission of approximately $2800 paid by it to Dalto in salary. Dalto drove exclusively for Evans, and those for whom Evans
[ 189 Pa. Super. Page 229]
asked him to drive. He furnished no other service to the Commission or to the Commonwealth.
Whether this act of McSorley was good practice or sound judgment is not for our consideration in this case; we are concerned with whether the act was criminal. If McSorley had a corrupt motive, it was. If this motive in assigning the chauffeur to Evans was to obtain gain for himself or his political party, or to bestow a gratuity upon a relative or a friend or a political ally at the expense of the Commonwealth, his motive would be corrupt and he would be guilty of the offense charged. The Commonwealth need not present detailed testimony to establish the motive, but evidence must be produced which discloses facts from which a corrupt motive can be inferred.
Criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743. The jury may not be permitted to guess or surmise at an evil or corrupt motive.
The Commonwealth relies on three sets of circumstances from which, it argues, an inference of corrupt motive may be deducted. First, it relies upon the fact that the defendant on three occasions between July 1, 1955 and March 1, 1956 publicly acknowledged that Dalto was performing services for Evans. This merely is evidence of the admitted fact that McSorley assigned Dalto to drive for Evans, but is no evidence of his motive or his reason for assigning the chauffeur. Next, it argues that the fact that defendant directed Dalto to perform personal services for Evans after the termination of the latter's term of office as a member of the Pennsylvania Turnpike Commission would of itself raise the inference of a corrupt motive.
[ 189 Pa. Super. Page 230]
Establishing by sufficient evidence the act of assigning the chauffeur to Evans for his personal use does not automatically establish the corrupt motive. The act and the motive are separate issues to be separately determined. A corrupt motive can be inferred from the act*fn2 only within a climate of facts which makes that inference reasonable.
The third circumstance upon which, the Commonwealth argues, a corrupt motive can be inferred, involves a "leave" granted Dalto when he became injured in an automobile accident. The evidence disclosed that on January 9, 1956, Dalto, while driving Richard Evans, the son of T. J. Evans, was involved in an automobile accident in which Richard Evans was fatally injured and Dalto received injuries requiring hospitalization.
William H. Cooper informed the defendant of the accident and suggested to him that he, Cooper, would place Dalto on sick leave. The defendant concurred in that suggestion. Thereafter, Cooper left defendant's office without any further conversation in regard to Dalto and obtained a blank leave slip which he delivered to William J. Roberts, controller for the Commission. The leave slip was filled out by Roberts and dated January 6, 1956. The leave granted Dalto, however was a one day vacation leave for January 9, 1956. Cooper testified that the slip was made out by the personnel department, whereas Roberts testified that the information was obtained from Cooper. The evidence clearly shows, therefore, that the entries made on the leave slip were prepared by persons other than the defendant.
The defendant's only connection with the leave was to acquiesce in the statement by Cooper that he would
[ 189 Pa. Super. Page 231]
place Dalto on sick leave. The evidence did not disclose that the defendant had any knowledge that Dalto was to be granted vacation leave for January 9, 1956, or that the leave slip was to be dated back. None of these circumstances nor the inferences therefrom, either singly or collectively, show any corrupt motive.
What was the motive of the defendant in supplying Evans with a chauffeur at Turnpike expense? The Commonwealth would certainly admit that he did not do so to acquire any present or future personal financial gain. There is no evidence from which it could be concluded that the motive was political gain or reward for the defendant or his political party or political friends. (Evans was a Republican and McSorley, a Democrat). There is no evidence that McSorley and Evans were relatives or friends. (They did not know each other until McSorley was appointed to the Commission). There is no evidence from which it could be inferred that McSorley or any person or organization with which he was associated, ever received or hoped to receive any personal favor or thing of value from Evans or from any person or persons he might influence.
McSorley testified that when he became Chairman of the Commission, which was during a hundred million dollar construction program with which Evans was familiar, he was anxious to have Evans available for advice and suggestions, thus utilizing his long experience as a member and Chairman of the Commission, and that after discussing this with Evans, he gave him a chauffeur paid by the Commission so that he might be driven to Harrisburg and be willing to give information to the new chairman. The expenditure of $2800 of the Commission's money to secure advice on a hundred million dollar project from one with experience nowhere else available, negatives a finding
[ 189 Pa. Super. Page 232]
of criminal intent or corrupt motive.*fn3 There was evidence by the Commonwealth's witnesses that Evans came to the Commission offices after the chauffeur was assigned to him, and that he did consult with McSorley.
But McSorley's explanation of his motive could have been rejected by the jury, and therefore, we cannot use it to determine the defendant's motive. If there would appear in the evidence anything from which the jury could find that the defendant's motive was corrupt, we would be required to sustain the conviction. The evidence which could sustain this conviction might indicate a benefit or gain to the defendant, his political party, his relative, his friends, or the hope thereof, but there is absolutely nothing in the evidence upon which the jury could infer any such benefit or gain. Furthermore, the defendant had two distinct presumptions in his favor which had to be overcome by positive evidence. The first of these was the presumption of innocence. The presumption of innocence is a conclusion drawn by the law in favor of the accused and when he is brought to trial, he must be acquitted unless proved to be guilty beyond a reasonable doubt. This presumption does not shift and remains with the accused during the entire trial.
The second presumption, involving public officers, has been firmly established in our law. In Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892, the Supreme Court said that "an official act of a public official is presumed to have been performed in accordance with
[ 189 Pa. Super. Page 233]
the law and in good faith and with the proper motive, i.e., for the purpose of promoting the public good and protecting the public interest." In Hill v. Alexander et al., 338 Pa. 26, 32, 11 A.2d 884, the Court laid down the following general principle: "... honesty of purpose and good faith in the performance of acts in their official capacity will be assumed by the courts on the part of persons holding responsible public positions, until the contrary clearly appears..." In Barnes et al. v. Scranton Poor District, 105 Pa. Superior Ct. 149, 160 A. 241, we said: "The presumption is that the acts of executive officers are done for public good. When their actions are challenged, the burden of showing to the contrary rests on those asserting it, and it is a heavy burden..." This presumption shifts if, and only if, the Commonwealth proves both elements of the crime here involved. The presumptions here involved, strongly imbedded in our law, cannot be overcome by vague references to inferences to be drawn from circumstances proved. The former is positive and the latter is negative in the sense that one must supply that which is found to be lacking.
In passing on the inferences relied on by the Commonwealth, we must point out that the inferences drawn by it could be equally drawn in favor of the defendant. In Commonwealth v. New, 354 Pa. 188, 221, 47 A.2d 450, the following pointed observation was made by the Supreme Court: "When two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty. When a party on whom rests the burden of proof in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither."
[ 189 Pa. Super. Page 234]
The case relied upon by the Commonwealth is not applicable here to show a corrupt motive. The case of Commonwealth v. Brownmiller, 141 Pa. Superior Ct. 107, 14 A.2d 907, is clearly distinguishable. In that case, the Secretary of Highways employed over 9,000 employes in Luzerne County before an election, a great majority of whom did no highway work, did not report for duty but worked in a political campaign. The motive shown there was to win an election through the padding of the payroll. The testimony revealed that Brownmiller approved a plan continuing the work in that county and signed a letter authorizing the transfer of funds to the maintenance account of Luzerne County, and that until November 7, 1938, the day before the election, the number of men had increased to more than 18,000 when 368 men normally could have manned the 734 miles of State highway.
There is nothing in the Commonwealth's case here to show that the defendant was dishonest. There was no testimony to indicate that he, his relatives, his friends, his political party, or any organization or association in which he may have been interested, were the recipient of any type of remuneration, reward or favor in return for assigning Dalto to Evans. No attempt was made to explain, as proof of a corrupt motive, why such action was taken by the defendant or to show that the Commission received no benefit from such an arrangement. While Dalto testified that during the period here involved he did no work for the Commission, if in fact Evans performed services for the Commission, the fact that Dalto drove for Mr. Evans would prove just the contrary. The testimony of a Commonwealth witness disclosed that during the first two months after Evans left the Commission, both Evans and Dalto were in Harrisburg every week for a day or so and were seen in the office of the Commission.
[ 189 Pa. Super. Page 235]
Under these circumstances, it is difficult to understand why the Commonwealth failed to produce evidence, if it had any, to show that the Commission in fact received no benefit from the arrangement involved and to show a corrupt motive on the part of the defendant.
We are of the opinion that there is no evidence from which the jury could have inferred a corrupt motive on the part of the defendant.
The judgment of the court below is reversed and the defendant is discharged.
CONCURRING OPINION BY WATKINS, J.:
I concur in the majority opinion but would answer affirmatively the other question raised by this appeal. The presentment of the investigating Grand Jury and the indictment subsequently found thereon should be quashed.
The instrumentality of an investigating Grand Jury by its very nature, unless strictly and rigidly circumscribed by the Court, lends itself to persecution and abuse. Its unbridled use may well result in grave injustice.
It is well established that the authority of an investigating Grand Jury is limited by the scope of the petition which caused its impanelling. Commonwealth v. Soloff, 175 Pa. Superior Ct. 423, 107 A.2d 179; Grand Jury Investigation of Western State Penitentiary, 173 Pa. Superior Ct. 197, 96 A.2d 189; In re Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 2 A.2d 783. An examination of the Attorney General's petition requesting the impanelling of the Grand Jury (par. 6) alleges that "members of the said Commission... unlawfully misbehave
[ 189 Pa. Super. Page 236]
themselves in public office by wilfully, knowingly and corruptly permitting the purchase of supplies and materials and the letting of contracts for materials and supplies without requiring competitive bidding..." The entire plan as outlined by the Attorney General was to ferret out criminal violations involving the Commission and Manu-Mine as the same related to the construction of the Northeastern Extension of the Pennsylvania Turnpike. The Attorney General reserved the right to expand and enlarge upon the scope of the Grand Jury investigation by supplemental petition or petitions but the record discloses no request to enlarge upon the scope of the investigation. Nowhere in this petition is there any allegation involving the present defendant or the subject matter presently under review. We cannot say that under this petition the investigating grand jury was empowered to examine the Turnpike Commission in every and all phases of its activity in order to determine whether any member of the Commission breached either a positive statutory duty or the negligent performance of any discretionary act, regardless of relationship to the system of crime or crimes complained of. Neither can we say that the court below conferred upon the Grand Jury any investigatory authority more sweeping or unbridled than was sought for in the Attorney General's petition. While in some states the power of the Grand Jury to investigate is virtually unlimited, we have imposed definite limitations upon its investigatorial powers. See McNair's Petition, 324 Pa. 48, 187 A. 498.
While the scope of its investigation is wide, the activities of the Grand Jury are restricted by the charge of the court and then under prescribed limitations. McNair's Petition, supra; Commonwealth v. Hubbs (No. 1), 137 Pa. Superior Ct. 229, 8 A.2d 611; Commonwealth v. Soloff, supra. An examination of the
[ 189 Pa. Super. Page 237]
charge given to the Grand Jury by the court below, however, discloses that, while the charge of bribery and conspiracy were defined, no explanation or definition was given on the common law crime of malfeasance, misfeasance or nonfeasance in office. We are at a loss to explain this omission. The only possible explanation may be found in the tenor of the Attorney General's petition in which the main emphasis was placed on bribery and conspiracy. This omission set the stage for the defective presentment which was handed down in the present case. In our view, the presentment did not indicate the commission of a crime or a probable cause therefor. The presentment read as follows:
"Mr. McSorley did cause one Daniel J. Dalto, an employee of the Pennsylvania Turnpike Commission to absent himself from normal duties in order to place himself at the disposal of and for the sole use of employment of Thos. J. Evans, his guests and others at a time when Mr. Evans was no longer affiliated with the Turnpike Commission. This act was apparently committed during the period of June or July 1955 and continued through March of 1956, a period of approximately 8 months. It appears that the said Mr. Dalto was paid a sum of money in the amount of figures $2,800 by the Turnpike Commission for which the Turnpike Commission received no material or other thing of value."
Nowhere can we find that the Grand Jury found that there was reasonable cause to believe that the defendant acted from a corrupt motive. It merely stated that "In consequence of the foregoing, the members of this Special Grand Jury (with at least twelve members having voted in the affirmative) do hereby find probable cause for the following: C. The charge of the crime of malfeasance, misfeasance and nonfeasance as in respect to the following: (a) G. Frank McSorley."
[ 189 Pa. Super. Page 238]
applied to an officer of the Commonwealth of Pennsylvania indictment be drawn charging defendant with the crime of malfeasance, misfeasance and nonfeasance in that he "knowingly, wilfully and corruptly procured, permitted and allowed Daniel J. Dalto" to work for and render services to Thomas J. Evans.
It is safe to assume that the same witnesses appeared before the indicting Grand Jury as appeared before the special Grand Jury. Upon the same testimony if the investigating Grand Jury could find no probable cause, it is difficult to see how the indicting Grand Jury could have remedied that defect.
Compounding the omissions referred to were the improprieties of the prosecuting officers in being present during the deliberations of the Grand Jury, the enlargement of its investigation and the usurpation of the court's prerogative in furnishing legal instructions to it. The presentment was made on January 18, 1957. On January 16, 1957, two prosecuting officers entered the room upon the apparent request of the foreman, when, inter alia, the following colloquy took place:
"Foreman of the Grand Jury: Mr. District Attorney, Mr. Deputy Attorney General, the members of the Grand Jury would like a further explanation of the crime of malfeasance, misfeasance and nonfeasance in office by an officer of the Commonwealth."
The minutes of the Grand Jury reveal that it was the Deputy Attorney General who enlarged the scope of the investigation when he said:
"Reducing everything to the very simplest of language, as an investigating Grand Jury you have to be satisfied whether there is sufficient evidence amounting to probable cause for returning a presentment against certain individuals; and then, describe, as best
[ 189 Pa. Super. Page 239]
you can, what the areas are, and what you think the charges should be.
"The formulizing of all that will fall on the shoulders of the local prosecutor. Yours is informal, unofficial accusation.
"I just suggest this to you, that the best way to do it, if you find the evidence is there, is to make the presentment. If the evidence is there, to the amount of probable cause, you are discharging your duties by making a presentment. What happens from that point on is in the hands of some other tribunal, as to whether all the presentments will go ahead in the manner that you have actually set them out.
"But your duty is to look over the evidence, look and determine in your own minds whether sufficient cause to make out probable cause of a criminal act of any of the people who have been described by the various and numerous witnesses that have come before you. It is as simple as that."
From the time of Blackstone, it has always been the practice that the presiding judge must give whatever legal instructions are required. If the Grand Jury have any doubt with respect to the propriety of admitting any part of the evidence offered to them, they may request advice from the court. See 4 Blackstone Commentaries 303, 305. If the court is to instruct the Grand Jury on subjects for its consideration, it them follows that this body cannot receive instructions from any other source on questions which are to be determined by it. The Grand Jury is not the arm of the prosecuting officials but that of the court and any attempts to interfere in matters exclusively belonging to the court cannot be sanctioned.
It also appears from this colloquy that some instructions have been given previously in the Grand Jury room on the crime of malfeasance, misfeasance and nonfeasance
[ 189 Pa. Super. Page 240]
in office. The foreman requested a further explanation. Considering the fact that the court below gave no instructions on this matter, the previous instruction must have come only from the prosecuting officers. To set a precedent in allowing such illegal and prejudicial practices would be tantamount to revitalizing the evils and abuses of star chamber proceedings which were so odious to our forefathers. This is a matter of serious concern which violates substantive rights of every citizen who might be subject to a presentment, indictment and subsequent prosecution for a crime. The function of the prosecuting officer is to aid the grand jurors in the examination of witnesses and to give such general instructions as they may require, but he may not attempt to influence their action or be present when they are deliberating on the evidence or voting on a matter under investigation. Commonwealth v. Bradney, 126 Pa. 199, 17 A. 600; Commonwealth v. Brownmiller, 141 Pa. Superior Ct. 107, 14 A.2d 907; Commonwealth v. Judge Smart, 368 Pa. 630, 84 A.2d 782.
One other irregularity crept into these proceedings. An examination of the speeches delivered by the Governor on the eve of convening the Grand Jury and the following evening disclose a disturbing interference with orderly judicial process. The speeches themselves indicate without any doubt the telling effect it had upon those who heard or saw the program. Excerpts from these speeches are set out in a footnote hereto.*fn1
[ 189 Pa. Super. Page 241]
The stations carrying these programs admittedly had a wide coverage of Harrisburg and Dauphin County and
[ 189 Pa. Super. Page 242]
were heard and viewed by large numbers of residents of the area. The statements of the Governor were
[ 189 Pa. Super. Page 243]
quoted repeatedly by the daily press, radio and television. It would be a tenuous assumption to state
[ 189 Pa. Super. Page 244]
that members of the investigating Grand Jury or prospective members of the indicting Grand Jury and petit
[ 189 Pa. Super. Page 245]
jury did not hear or see these broadcasts. While the court below stated that it had no reason to believe that the Grand Jury disregarded the admonitions relative to political speeches, it can be safely said that the indicting Grand Jury or the trial jury did not have the benefit of the court's admonition. Coming, as it did, from the Governor himself, the speeches undoubtedly had a forceful and prejudicial effect which tainted the proceedings. And while we do not ascribe any evil motive to the Governor in making these speeches at this time, we do say that they had a judicially undesirable effect when considerations of fairness and due process are involved and when the unbiased deliberations of an investigating Grand Jury were of utmost importance.
We believe that the irregularities referred to interfered with the substantial rights of the accused. Under the circumstances here presented, we cannot subscribe to the contention of the Commonwealth that these irregularities were cured by the action of the indicting Grand Jury because it had actual information before it, which information was placed in the presentment. Nor is it much solace to state that the use of the minutes
[ 189 Pa. Super. Page 246]
of the Grand Jury was improper. We cannot say that it was.
The motion to quash the presentment should have been granted under these circumstances. Failing so to do, the indictment should have fared no better. Cf. Commonwealth v. Gross, 172 Pa. Superior Ct. 85, 92 A.2d 251. The extraneous factors here involved make out a clear case detrimental to the substantial rights of the defendant.
ING OPINION BY RHODES, P.J.:
I would affirm the judgment of sentence on the opinion of Judge KREIDER, the trial judge (reported in 72 Dauphin County Reporter 241), and the opinion of Acting President Judge NEELY as to the validity of the indictment charging defendant with misbehavior in office. Therefore I dissent.