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COMMONWEALTH v. DOLNY (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
DOLNY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 860 of 1973, in case of Commonwealth of Pennsylvania v. Richard J. Dolny.

COUNSEL

Alexander A. DiSanti, with him Richard, Brian, DiSanti & Hamilton, for appellant.

F. Ned Hand, Assistant District Attorney, with him William H. Lamb, District Attorney, for Commonwealth, appellee.

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

Author: Price

[ 235 Pa. Super. Page 244]

The appellant, Richard J. Dolny, was indicted*fn1 for the statutory crimes of extortion*fn2 and bribery,*fn3 and the common law crimes of blackmail, conspiracy, solicitation of a bribe, and misfeasance and nonfeasance in office.

Trial began on September 25, 1973. At the conclusion of the Commonwealth's case, a demurrer to the charges of blackmail, extortion and solicitation of a bribe was sustained. The other charges were submitted to the jury, which acquitted appellant of bribery and conspiracy and convicted him of malfeasance*fn4 and nonfeasance in office. Appellant's motions for new trial and in arrest of judgment were denied by the court en banc on November 22, 1974. On December 10, 1974, appellant was sentenced to pay a $500.00 fine plus the costs of prosecution, to make restitution, and to undergo imprisonment for a minimum of three and a maximum of twelve months.

The instant appeal was taken from the judgment of sentence. Appellant has raised eight objections which he feels warrant a new trial. We find no merit in these contentions, and will affirm.

Appellant first contends that the evidence was insufficient to sustain his conviction. In testing the sufficiency

[ 235 Pa. Super. Page 245]

    of the evidence, we must review the testimony in a light most favorable to the verdict winner, Commonwealth v. Palmer, 229 Pa. Superior Ct. 1, 323 A.2d 69 (1974), and where the verdict of the jury is supported by the record, we will not overturn the conviction. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). So viewed, the evidence supports the jury's conclusion that appellant, as the Chief of Police of Phoenixville, permitted the illegal activities of Thomas Mastrangelo (Timmy), a known bookmaker and gambler, to continue from 1967-1970, without interference by the police department.

Testimony revealed that since 1951, Timmy had owned and operated a cigar store called the "Blue Jay" in Phoenixville. At the rear of the store, a gambling operation was conducted. Appellant visited the store two or three times a week when he was a patrolman, and occasionally placed a bet. When he became a sergeant, appellant increased the number of his visits to two or three times a day. He continued to place an occasional bet and accepted free cigarettes.

In 1966, appellant became the Acting Chief of Police. In an attempt to become the Chief, he drove to the Blue Jay, and asked Timmy to speak to several influential people, including Paul Mastrangelo (Paul) about the promotion. Timmy agreed to do so, took two $20.00 bills from his pocket and laid them on the car seat. Appellant said, "Thank you." Three months later, in January of 1967, appellant became the Chief of Police. Paul testified that he visited appellant shortly thereafter and told him that Timmy wanted to start crap games. In February of 1967, crap games began at Timmy's store, with the Chief's personal knowledge.

At approximately that time and continuing for six to eight weeks, Timmy gave one of his employees fifty dollars weekly, accompanied with the instruction to deliver the money to Paul and tell him it was ...


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