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COMMONWEALTH v. MARMON ET AL. (06/16/67)

decided: June 16, 1967.

COMMONWEALTH
v.
MARMON ET AL., APPELLANTS



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, Oct. T., 1965, Nos. 0580, 1382, 1384, and 1386, in case of Commonwealth of Pennsylvania v. Ruth Marmon et al.

COUNSEL

Cormac J. Malloy, with him William D. Harris, for appellant.

Leon W. Silverman, with him Bernard L. Segal, for appellant.

Arlen Specter, District Attorney, with him Alan J. Davis, Assistant District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Dissenting Opinion by Ervin, P. J. Wright and Spaulding, JJ., join in this dissenting opinion.

Author: Watkins

[ 210 Pa. Super. Page 204]

These are appeals from the judgment of sentence by the defendants-appellants, Ruth Marmon and Joseph Bardascino, imposed after convictions on indictments charging bribery, extortion, violation of the Magistrates' Court Act of 1937 and conspiracy.

The facts upon which the convictions were based were largely uncovered as a result of an investigation of the Philadelphia Magisterial system conducted by the Attorney General of Pennsylvania and may be summarized as follows:

On August 29, 1963, a Thursday, Mr. and Mrs. Walker contacted John J. Welsh, a committeeman and

[ 210 Pa. Super. Page 205]

    state assemblyman, in the hope that he could do something with regard to Mr. Walker's arrest that morning on a lottery charge.

The next morning Welsh awaited the arrival of the defendant Marmon outside the police court in which she was to preside as magistrate that day. He spoke to her upon her arrival pleading Walker's non-involvement in the numbers business. Magistrate Marmon said, "It would be $100 or $1,000 bail." Under the arrangement, she would discharge for $100. In the alternative, she would hold Walker for court on $1000 bail, the premium for which would be the equivalent of the proposed bribe.

Welsh then told Marmon that one Crittendon, the Walker's lodger, was the true culprit. Crittendon heard part of the conversation. At the hearing for Walker, Walker was discharged and Crittendon was held for a hearing the next day at the instigation of Magistrate Marmon. Crittendon was thereupon arrested and held for a hearing, Saturday, August 30, 1963.

On Saturday morning Magistrate Marmon beckoned Welsh to approach the bench and told him it was "still a $100 or $1000 bail." Welsh reported this to the Walkers, but they only had $50. This was reported to Magistrate Marmon and she told Welsh to "talk to my clerk", indicating the defendant Bardascino, then sitting beside her on the bench. Bardascino took Welsh into a side room. He took the $50 from Welsh for the payoff and made arrangements for payment of the $50 balance. Crittendon was discharged.

Monday was Labor Day. The Walkers could not withdraw the balance from their bank. Welsh telephoned Marmon's office and was informed by her regularly appointed clerk that Bardascino was not there. Bardascino called Welsh that night and arranged another appointment for noon Wednesday at Welsh's office.

[ 210 Pa. Super. Page 206]

Having obtained the $50 from Walker on Tuesday, the balance of the bribe was to be given by Welsh to Bardascino when he kept the Wednesday appointment. Welsh then paid the balance of $50 to Bardascino. Since convictions were had the above summary of facts are taken in the light most favorable to the Commonwealth.

Appellants raise numerous questions alleging many errors in the trial and charge to the jury. We will attempt to dispose of them in an orderly fashion.

First, they contend that the investigation and prosecution by the Attorney General were in violation of Section 907 of The Administrative Code and without legal basis.

This is patently incorrect. Section 907 of The Administrative Code established one means by which the attorney general may be brought into a criminal proceeding in any of the several counties of the Commonwealth. This, however, is not a limitation on the over-all powers and duties of the office. He is the chief law enforcement officer of the Commonwealth, and is charged with the duty of seeing that the law throughout the Commonwealth is enforced, and he has the power and duty to investigate alleged violations thereof and take such enforcement steps as may be necessary. Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952). He has all the powers and attributes of attorneys general under the common law. Appeal of Margiotti, 365 Pa. 330, 75 A.2d 465 (1950); Com. ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1936).

The action of the attorney general in the instant cases was taken after a request to the Governor by several judges of Philadelphia County; he acted at the direction of the Governor and carried out his investigation with the assistance and cooperation of the District Attorney of Philadelphia County.

[ 210 Pa. Super. Page 207]

Appellant Marmon contends that the statements presented in the complaint to the magistrate issuing the warrant for arrest were not sufficient to allow the magistrate to make an independent determination of probable cause. The complaint was executed and sworn to by an investigator for the Department of Justice, was presented to a judge of the Court of Oyer and Terminer of Philadelphia County sitting as a committing magistrate and was as follows:

"On or about August 30, 1963, in the County of Philadelphia, the accused committed the following acts: they did conspire together to commit extortion and to violate the Magistrates Act of 1937 and did commit extortion and did violate the Magistrates Act of 1937 by extorting, demanding, taking and accepting the sum of $100.00 from an agent or intermediary of Andrew Crittendon, a defendant in case of Commonwealth v. Andrew Crittendon, all of which was against the peace and dignity of the Commonwealth of Pennsylvania and contrary to the pertinent Acts of Assembly. I ask that a warrant of arrest or a summons be issued and that the accused be required to answer the charges I have made, and I swear to or affirm the within complaint upon my knowledge, information and belief, and sign it on July 14, 1965 before Honorable Joseph Sloane whose office is that of President Judge, Common Pleas No. 7."

It is enough if the information states a criminal offense committed by defendant, its general nature, and its time and place. The information must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. Where the information sets forth some detail of the circumstances, where there is reason for crediting the source of the information which is disclosed, and when a magistrate has found probable cause, we should not invalidate warrants by interpreting the affidavits in a hyper-technical,

[ 210 Pa. Super. Page 208]

    rather than a common sense manner. We find there was sufficient information and probable cause for issuance of the warrants. Com. v. Ametrane, 205 Pa. Superior Ct. 567, 210 A.2d 902 (1965). It should also be noted that the defendants waived a hearing before the court sitting as a committing magistrate.

Appellant Bardascino contends that under the circumstances there was so much pretrial confusion that he did not have a reasonable opportunity to challenge the array of the grand jury. From the record it appears there were two arrests and three separate presentments to the grand jury and three sets of indictments. Warrants for the arrest of appellants were issued by Judge Sloane on July 14, 1965 and the appellants were arrested on July 15, 1965, were preliminarily arraigned before the same Judge on July 21, 1965 and bills presented to the grand jury on August 12, 1965 and the appellants were indicted that same day.

At this time, because of petitions for writs of habeas corpus, motion to quash warrants, stay orders and phone calls, confusion reigned supreme.

The Attorney General, in order to protect the record from any future contingencies, on August 20, 1965, filed a new complaint against both appellants before Judge Carroll of the court below who, the same day, issued warrants for their arrest. Appellants were again arrested on August 23, 1965, a preliminary hearing was set for August 27, 1965 at which time both waived the hearing and on August 30, 1965, with the statute of limitations about to run on several of the charges, they were ...


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