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COMMONWEALTH v. TIBERI (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
TIBERI, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Butler County, Dec. T., 1974, No. 171, in case of Commonwealth of Pennsylvania v. Thomas Tiberi.

COUNSEL

Leonard L. Martino, and Martino, Ferris & Zoffer, for appellant.

Robert F. Hawk, First Assistant District Attorney, and John H. Brydon, District Attorney, for Commonwealth, appellee.

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

Author: Cercone

[ 239 Pa. Super. Page 155]

The instant appeal arises from appellant's conviction, after a jury trial, of one count of extortion*fn1 and one count of "macing."*fn2 Appellant also was charged with bribery*fn3 and tampering with witnesses,*fn4 but on those charges the jury found him not guilty. The extortion and macing charges arose from the same series of discussions between appellant, Mr. Tiberi, who was an area superintendent with the Pennsylvania Department of Transportation (PennDot), Jerome Hornyak, a local superintendent with PennDot, and Floyd Critchlow, a heavy equipment operator. The facts giving rise to the verdicts of guilty are as follows:

Prior to April, 1971, Floyd Critchlow operated construction equipment for a private construction company in Butler County. On April 29, 1971, he signed-on with PennDot as an "operator number three." PennDot was scheduled to acquire a piece of equipment called a "grade-all," and Critchlow was a skilled operator of grade-alls. When Mr. Critchlow was hired, Mr. Tiberi was the Butler area superintendent of PennDot, and

[ 239 Pa. Super. Page 156]

    among his responsibilities with PennDot was the hiring, firing and promotion of workers on various crews in the Butler area. Mr. Tiberi told Mr. Critchlow that, because of his skill and experience at operating grade-alls, he would shortly be promoted to operator number four, with a concomitant increase in his wages -- a substantial factor in Critchlow's decision to join PennDot.

In the ensuing months with PennDot, Critchlow asked on several occasions about his promotion, to which appellant replied: "It's political. . . . We expect a donation when we get these raises." On other occasions appellant complimented Critchlow on the quality of his work and renewed his promise of promotion, but reminded Critchlow that the job was "political," sometimes while rubbing his fingers together in the well-known gesture meaning "money."

During 1972, Tiberi was promoted to regional superintendent, and Jerome Hornyak, Tiberi's co-defendant below, was subsequently promoted to fill Tiberi's job as area superintendent. Critchlow then discussed his promotion with Hornyak, who also remarked: "It's political. They will expect a donation." At that time Critchlow told Hornyak that he would not give more than one hundred dollars for the job. Hornyak replied that there were others who wanted the job, but that he would talk to Tiberi and see what he could do for Critchlow. A few weeks later Hornyak advised Critchlow that he had talked to Tiberi, and that one hundred dollars would be sufficient. Thereafter, Critchlow again spoke with Tiberi who congratulated him on his forthcoming promotion. Tiberi also told Critchlow that, because Hornyak had done so much to get Critchlow the promotion, he was going to make sure that Hornyak received half of the one hundred dollar payment. Subsequently, in April of 1973, Critchlow filled out the necessary papers for the promotion, made the one hundred dollar payment in cash to Tiberi, and received his operator-four card.

[ 239 Pa. Super. Page 157]

All the above facts came to light during a state police investigation in 1974 of suspected corrupt practices of PennDot employees. Although appellant thereafter had several discussions with Critchlow, wherein he allegedly noted his displeasure with Critchlow's informing the state police about the circumstances of his promotion, the jury declined to find that those conversations constituted tampering with a witness.

At trial, both Tiberi and Hornyak admitted that they had told Critchlow that operator number four was a "political" job, but they denied having suggested that Critchlow pay money for the job and denied having received money from Critchlow for the promotion.

I

Appellant first argues that the language of the antimacing statute is vague and overbroad, and that it exerts a chilling effect on the exercise of certain of the rights guaranteed to appellant by the First and Fourteenth Amendments. In pertinent part the anti-macing statute reads as follows: "It shall be unlawful for any . . . public . . . employe . . . to demand from any . . . subordinate . . . engaged or employed in the service of the Commonwealth . . . any assessment or percentage of any money . . . with the understanding, express or implied, that the same may be used or shall be used for political purposes: Provided, however, That nothing in this act contained shall be construed to prohibit voluntary contributions to any political committee or organization for legitimate political and campaign purposes to the extent such contributions are not prohibited by law." 25 P.S. ยง 2374.

The gist of appellant's argument is that, in Pennsylvania, political patronage is a recognized and "time honored" method of staffing governmental positions. See, e.g., A.F.S.C.M.E. v. Shapp, 443 Pa. 527, 536 (1971). ...


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