No. 254 October Term, 1977, Appeal from Judgment of Sentence Entered on October 7, 1976, by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section as of August Sessions, Nos. 0052-0062.
Raymond J. Bradley, Philadelphia, with him Alan J. Davis, Philadelphia, for appellant.
James A. Shellenberger, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Cercone, Van der Voort and Spaeth, JJ. Spaeth, J., concurred in the result. Hoffman and Price, JJ., did not participate in the consideration or decision of this case.
[ 252 Pa. Super. Page 20]
This appeal arises from appellant's conviction on indictments charging him with violations of the Election Code, bribery, and malfeasance, misfeasance and nonfeasance in office. Several claims of error are presented in support of his allegations that he is entitled to arrest of judgment or a new trial. For the reasons that follow, we deem none of the alleged errors sufficiently meritorious to afford relief, and accordingly affirm the judgment of sentence entered below.
In June, 1972, the District Attorney of Philadelphia petitioned the Court of Common Pleas of Philadelphia County for a special grand jury investigation of alleged criminal conduct involving organized crime groups and public officials and employees. The Honorable Harry A. Takiff granted the petition, and charged the grand jury accordingly. On May 16, 1973, the grand jury filed its third presentment,
[ 252 Pa. Super. Page 21]
recommending that appellant be indicted on charges of bribery, malfeasance, misfeasance and nonfeasance in office, and violation of the Election Code.
Briefly, the investigating grand jury found that appellant violated the laws of the Commonwealth and his oath of office as a Philadelphia city councilman by improperly using his official position and influence in dealings with ARA Services, Inc., and the City of Philadelphia, as follows:
1) Negotiation of a five-year lease extension for certain concession privileges at Philadelphia International Airport on behalf of Aero Newsstands, Inc., a company owned by ARA, for which services Bellis demanded $50,000, and was subsequently paid $12,000;
2) Negotiation of a fifteen-year lease extension for the use of certain equipment at Philadelphia International Airport on behalf of Ground Services, Inc., for which services appellant received $30,000 cash, and $250,000 in ARA stock when ARA subsequently acquired Ground Services;
3) Negotiation of an agreement to provide Ground Services with certain counter space on the ground floor of Philadelphia International Airport, for which services appellant received a single cash payment of $10,000;
4) Negotiation of the sale of six acres of land near Philadelphia International Airport, owned by Philadelphia Industrial Development Corporation, to ARA for $60,000, for which services appellant was to receive $50,000, but received only $10,000, because ARA stopped payments to him on advice of counsel;
5) Negotiation of a fifteen-year restaurant contract for Philadelphia International Airport on behalf of ARA, for which services appellant received no payment on advice of ARA legal counsel;
6) Receipt of an illegal campaign contribution in the form of a $2500 check from William Fishman, President of ARA, to Harriet Lipman, secretary to appellant, which check was endorsed over to the Rizzo for Mayor Committee
[ 252 Pa. Super. Page 22]
at the direction of appellant. Record at 89a-103a.
On June 28, 1973, following appellant's unsuccessful attempt to quash the grand jury presentment, the June, 1973 grand jury indicted appellant on thirteen counts of malfeasance, misfeasance and nonfeasance, eight counts of bribery, and one count of violation of the Election Code. Appellant then filed a petition for a writ of prohibition in the Supreme Court seeking a Municipal Court trial, which was granted in a per curiam order. The Honorable Harry M. Montgomery, specially assigned, presided over the Municipal Court trial, and found appellant guilty of eight counts of bribery, seven counts of malfeasance, misfeasance and nonfeasance and one Election Code violation. Six counts of malfeasance, misfeasance and nonfeasance were dismissed.
After this conviction was appealed to Common Pleas Court of Philadelphia, appellant was re-indicted by the August, 1974 grand jury, and the Honorable John A. Cherry was specially assigned to hear the case. On April 25, 1975, the jury returned guilty verdicts on all charges.
Appellant's post-trial motions were filed and argued before a three judge panel en banc, which denied the motions on August 18, 1976. Appellant was then sentenced to pay a $500 fine and $50 costs on each of the eleven indictments and placed on two years probation. This appeal followed.
Ten issues have been raised for our consideration: four in support of the contention that judgment should have been arrested, and six in support of a new trial. We will first ...