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COMMONWEALTH v. ZEBRAK (12/11/69)

decided: December 11, 1969.

COMMONWEALTH
v.
ZEBRAK, APPELLANT



Appeal from judgment of Court of Quarter Sessions of the Peace of Allegheny County, April T., 1966, No. 497, in case of Commonwealth of Pennsylvania v. Louis J. Zebrak.

COUNSEL

John Daley, with him T. Robert Brennan, and Brennan & Brennan, for appellant.

Carol Mary Los, Assistant District Attorney, with her Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., and Watkins, J., would affirm the judgment of sentence.

Author: Hoffman

[ 216 Pa. Super. Page 34]

Appellant was convicted, without a jury, of conspiracy to commit blackmail. He appeals, alleging that the evidence against him was insufficient to prove

[ 216 Pa. Super. Page 35]

    guilt beyond a reasonable doubt. We agree and reverse.

The evidence can be summarized as follows:

Appellant was a police officer of the Borough of White Oak. He was one of two officers who signed a criminal information, charging one McCue with driving while under the influence of alcohol. Appellant, however, had not seen McCue driving. He relied, in signing the information, on facts given him by another officer, one Piekelek.

One Nevitt, a bondsman, posted a $1000 bond on McCue's behalf. He also approached McCue with an offer to "fix" the charge. Appellant was never mentioned as part of the "fix" although Nevitt tried to indicate that appellant would "go along." Appellant's cooperation in the "fix" however, was never necessary, since he could not incriminate McCue. McCue was duped into believing the contrary by Nevitt.

As part of his plan, Nevitt then arranged to pick up McCue and appellant before the hearing on the charge. Nevitt picked up McCue and then proceeded to appellant's house. When appellant entered the car, he asked Nevitt whether Nevitt had been paid. This question is subject to a number of interpretations, some consistent with innocence and some with guilt. We cannot, without more, choose one in order to convict, when others remain to raise a reasonable doubt. For instance, it is entirely possible that appellant, knowing Nevitt to be McCue's bondsman, asked Nevitt whether he had been paid for his services.

Nevitt responded that McCue would not pay until after his hearing, to which appellant responded, "That's okay." This, too, is subject to interpretations as consistent with innocence as with guilt. It is not unusual for bondsmen to be paid after ...


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