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COMMONWEALTH v. NELSON (09/23/74)

decided: September 23, 1974.

COMMONWEALTH, APPELLANT,
v.
NELSON



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, Nos. 1205, 1207 and 1208, in case of Commonwealth of Pennsylvania v. Caesar Nelson.

COUNSEL

Thomas E. Butler, Jr., Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.

Donald J. Goldberg, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 230 Pa. Super. Page 90]

Caesar Nelson, together with two co-defendants, Henry Dorsey and William Alexander, were charged and convicted in Philadelphia's Municipal Court of bribing and conspiring to bribe members of the vice squad of the Philadelphia Police Department, specifically, police officer Richard Byrd. The Commonwealth's evidence tended to prove that on the morning of June

[ 230 Pa. Super. Page 9125]

, 1971, Officer Byrd was approached by Dorsey on a Philadelphia street. Dorsey gave Officer Byrd $10 and arranged for him to meet with Nelson at 9:00 P.M. that evening. The 9:00 P.M. meeting took place, at which time Nelson told Officer Byrd he would pay the vice squad $150 each month on the 15th of the month, in exchange for protection of Nelson's lottery operation; the first $150 payment was made at that time. Immediately after Nelson finished his pay-off arrangements with Officer Byrd, similar arrangements were made by Alexander, who agreed to pay $120 to the vice squad every month. Alexander, however, said he would meet Officer Byrd the following Monday, June 28, 1971, to make the first $120 payment. Officer Byrd met with Alexander and Dorsey on the 28th and received the $120 as previously arranged. The Commonwealth's evidence did not connect Nelson with this $120 payment.

Following his conviction in Municipal Court,*fn1 Nelson appealed to the Court of Common Pleas for a trial de novo, as was his right under the Pennsylvania statute creating the two-tier Philadelphia Court system.*fn2 Subsequently, indictments were returned charging Nelson with bribery on June 25, 1971, and with conspiring to commit bribery and two charges of bribery on June 28, 1971.

Upon defendant's motion, all of these indictments were quashed by the Common Pleas Court. The Commonwealth's appeal involves only two of those indictments, charging: Bribery of Government Officers and

[ 230 Pa. Super. Page 92]

Employees on June 25, 1971, and Conspiracy to Bribe Governmental Officers and Employees on June 28, 1971.

Defendant Nelson contended before the Court of Common Pleas, that by presenting charges against him in addition to those originally raised at the Municipal Court trial, the Commonwealth was attempting to place a penalty on his exercise of the statutory right to seek a new trial de novo following his conviction before the Municipal Court. The trial court agreed. The recent U. S. Supreme Court decision, Blackledge v. Perry, 417 U.S. 21 (1974) concluded that a defendant's 14th Amendment Due Process rights were contravened when the prosecution enlarged the charges against him in response to his exercise of a statutory right to a new trial de novo.*fn3 In Blackledge, the defendant was charged and convicted in a North Carolina District Court with the misdemeanor of assault with a deadly weapon; when he exercised ...


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