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COMMONWEALTH v. ORNATO (03/24/60)

March 24, 1960

COMMONWEALTH
v.
ORNATO, APPELLANT.



Appeal, No. 14, April T., 1960, from judgment of Court of Quarter Sessions of the Peace of Allegheny County, March T., 1958, No. 444, in case of Commonwealth of Pennsylvania v. Albert Ornato. Judgment affirmed.

COUNSEL

James P. McArdle, with him James E. McLaughlin, and McArdle, Harrington & McLaughlin, for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Woodside

[ 191 Pa. Super. Page 583]

OPINION BY WOODSIDE, J.

Albert Ornato was tried with others before a jury in the Court of Quarter Sessions of Allegheny County on a number of charges involving bribery, corrupt solicitation, conspiracy and operating a lottery. He was convicted of corrupt solicitation. The jury either acquitted him or could not agree upon a verdict on the other indictments.

After the court below refused the defendant's motion for arrest of judgment and for a new trial, he was sentenced to pay a fine of $1000 and to undergo imprisonment of not less than one nor more than two years. He appealed to this Court contending that the evidence was insufficient to sustain the conviction and that there were trial errors entitling him to a new trial.

The Act of June 15, 1951, P.L. 585, § 1, 19 PS § 871, provides: "... if the court, after consideration of the entire record, shall decide that there is not sufficient evidence to sustain the conviction, it shall forthwith discharge the defendant and dismiss the case." Prior to the enactment of this statute the only relief the court could grant when it decided that there was not sufficient evidence to sustain the conviction was to grant a new trial. In considering the entire record under this statute, the court must ignore the evidence of the defendant and his witnesses which the jury had the privilege of rejecting, and must accept as correct all the evidence which supports the verdict, and must draw from the evidence such reasonable inferences as will support the verdict. Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956).

Ornato was convicted of violating section 304 of the Act of June 24, 1939, P.L. 872, 18 PS § 4304, which provides as follows: "Whoever directly or indirectly, by offer or promise of money, office, appointment, employment,

[ 191 Pa. Super. Page 584]

    testimonial or other thing of value, or by threats or intimidation, endeavors to influence any... public officer, in the discharge, performance, or nonperformance of any act, duty or obligation pertaining to such office, is guilty of corrupt solicitation,..."

There was evidence before the jury to support a finding that Ornato was engaged in an illegal lottery operation. Ornato was arrested on August 21, 1956, and again on September 21, 1956, for operating a lottery at his residence, 1904 Fifth Ave., Pittsburgh. John B. James, a Pittsburgh policeman and one of the arresting officers, testified that on the way to the police station after the last arrest, Ornato asked him "if there was any way we could forget about this particular case," and "said that he was all right downtown, there was no reason why him and I couldn't get together." The defendant then suggested to Officer James that he (James) and Tony Grosso should get together. The same evening Ornato called James at his flower shop, and suggested arranging an appointment with Grosso. The officer accepted the offer, and according to arrangements met Ornato at 2 o'clock that night under the clock outside Kaufmann's store. James left his car parked nearby and went with Ornato in the latter's car to the Fort Pitt Hotel where they parked. Ornato then excused himself for a few minutes and, as James said, "walked up to a car parked three or four cars ahead and in a matter of three or four minutes, he came back and took me up and introduced me to Mr. Grosso." Ornato then went back to ...


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