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COMMONWEALTH PENNSYLVANIA v. JAMES M. BENDER (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES M. BENDER, APPELLANT



Appeal from the Order of the Court of Common Pleas, Civil Division, Allegheny County, at No. 1063 of 1975.

COUNSEL

Jonathan W. Delano, Pittsburgh, with him Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.

Joel M. Kaufman, Assistant District Attorney, Pittsburgh, with him Robert E. Colville, District Attorney, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Jacobs and Cercone, JJ., dissent. Van der Voort, J., did not participate in the consideration and decision of this case.

Author: Hoffman

[ 248 Pa. Super. Page 505]

Appellant contends that we must reverse his conviction of criminal harassment*fn1 and arrest the judgment of sentence because: (1) the Commonwealth did not produce sufficient evidence to prove appellant guilty of criminal harassment, (2) appellant's alleged criminal conduct at most constituted

[ 248 Pa. Super. Page 506]

    a de minimis infraction not warranting criminal sanctions,*fn2 and (3) his conviction abridges his constitutional rights to petition the government for redress of grievances and to speak freely. See U.S.Const. Amends. I, XIV; Pa.Const. Art. I, §§ 7, 20. We believe that the Commonwealth failed to produce sufficient evidence that appellant committed criminal harassment. Accordingly, we vacate appellant's judgment of sentence and order that appellant be discharged.

On October 2, 1975, two Pittsburgh police officers, Regis L. Diggans and Robert Smolensky, filed identical private criminal complaints against appellant. Each complaint alleged that appellant harassed the victim in violation of 18 Pa.C.S. § 2709, supra, by "making formal complaints against the victim at the Internal Affairs Div., City of Pittsburgh, Police Dept., at the Mayor's Service Center, without justification, and reason, the defendant also makes calls and persists in harassing the victim at the Public Safety Bldg., which did alarm and seriously annoy the said victim . . . and which served no legitimate purpose." On October 20, 1975, a magistrate found appellant guilty of harassment and ordered appellant to pay $111 in fines and costs. Appellant paid this sum and exercised his right to a trial de novo before the Allegheny County Court of Common Pleas. Rule 67, Pa.R.Crim.P., 19 P.S. Appendix.

On February 12, 1976, the Commonwealth presented the following testimony at trial. On July 28, 1975, appellant went to the Gunner's Den, owned by Burton Bennett, in Pittsburgh and attempted to procure a Ruger .44 Magnum firearm. Appellant completed a standard permit application and forwarded it to the Gun Registration Section of the Pittsburgh Police Department. Upon receipt of the application, the section supervisor, Sergeant Regis L. Diggans, assigned Officer Robert Smolensky to handle the application. While processing this application, Officer Smolensky discovered that marijuana and theft charges were currently

[ 248 Pa. Super. Page 507]

    pending against appellant.*fn3 In accordance with departmental regulations barring the issuance of a gun permit to persons with outstanding criminal charges, Officer Smolensky denied appellant's application and notified Burton Bennett of his action. Bennett, in turn, informed appellant, observed that he was upset, as were most of his customers in similar situations, and suggested that appellant contact the police officers in the Gun Registration Section in order to ascertain why the department denied his application. On or about July 30, appellant telephoned Officer Smolensky at the police station. Officer Smolensky testified that he explained why he refused to issue a permit and suggested that if appellant really desired this particular gun, appellant could arrange to have a friend, without a criminal record of any kind apply for a permit and purchase the gun. If the charges pending against him were dismissed, appellant could then apply for a transfer permit. On August 1, a friend of appellant received a permit and purchased the desired firearm.

On August 25, 1975, the outstanding drug charges against appellant were dismissed. Appellant immediately applied for a transfer permit. On August 26, 1975, Officer Smolensky processed the transfer application and again discovered that drug and theft charges against appellant were still pending because the police department records had not yet been updated to reflect the dismissal of the drug charges or to correct the original error in listing the theft charge. On the morning of August 27, Officer Smolensky informed Bennett that he would not issue a transfer permit, and Bennett so informed appellant. On August 29, appellant telephoned Officer Smolensky at the police department to find out why his transfer application had been rejected. Officer Smolensky responded ...


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