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COMMONWEALTH v. MCSORLEY (04/16/59)

April 16, 1959

COMMONWEALTH
v.
MCSORLEY, APPELLANT.



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.

COUNSEL

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.

Author: Gunther

[ 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 ...


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