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COMMONWEALTH v. LENART (ET AL. (05/21/68)

decided: May 21, 1968.

COMMONWEALTH
v.
LENART (ET AL., APPELLANT)



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, Sept. T., 1965, Nos. 766 to 771, inclusive, in case of Commonwealth of Pennsylvania v. Gene P. Lenart.

COUNSEL

Harris J. Sklar, with him Gross & Sklar, for appellant.

Alan J. Davis, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones, Mr. Justice Cohen and Mr. Justice Eagen concur in the result. Concurring Opinion by Mr. Justice O'Brien. Mr. Justice Roberts joins in this concurring opinion.

Author: Musmanno

[ 430 Pa. Page 145]

On January 15, 1965, Irvin J. Cassel gave a notarized statement to detective Bundy, of the Pennsylvania State Police, in which he said that in 1963 he had paid $60 to Gene P. Lenart, who was to use his influence with Magistrate Margaret Ruth Marmon in having a charge of illegal lottery against Cassel dismissed. The charge was dismissed.

Gene P. Lenart was later indicted on twelve bills of indictment based on four separate incidents. Of the twelve indictments three were founded on Cassel's statement, and they charged Lenart with blackmailing and extorting from Cassel money by creating the impression of influence with Magistrate Marmon on September 22, 1963. At the trial of Lenart, Cassel refused to testify in accordance with the statement he had given to detective Bundy, pleading his privilege against self-incrimination under both the Federal and State Constitutions.

[ 430 Pa. Page 146]

Article I, § 9, of the Pennsylvania Constitution declares that an accused "cannot be compelled to give evidence against himself." The District Attorney, however, invoked § 32, Article III, of the Pennsylvania Constitution, which reads: "Any person may be compelled to testify in any lawful investigation or judicial proceeding against any person who may be charged with having committed the offense of bribery or corrupt solicitation, or practices of solicitation, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony, and any person convicted of either of the offenses aforesaid shall, as part of the punishment therefor, be disqualified from holding any office or position of honor, trust or profit in this Commonwealth."

In addition to this averred constitutional immunity from criminal prosecution, Cassel was assured by the district attorney that he would not be prosecuted because of the testimony he might present at the Lenart trial. The court also stated to Cassel that the statute of limitations had run against any criminal charges potentially pending against him. Cassel still refused to testify, and the judge held him in contempt of court, imposing a fine of $50 and a sentence of sixty days' imprisonment. Cassel appealed.

The sentence of the court must be reversed. The invoked § 32 of the Constitution had no application to the crimes on which Cassel was asked to testify. Section 32 speaks of bribery, corrupt solicitation and practices of solicitation. Lenart was on trial for blackmail, extortion, and common law extortion. The Commonwealth contends that the term "practices of solicitation" should be broadly construed so as to include the

[ 430 Pa. Page 147]

    offenses named in the Lenart indictment. The Commonwealth would thus stretch the meaning of the words definitively ...


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