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filed: October 12, 1979.


No. 2538 October Term, 1978, No. 1518 October Term, 1978, No. 1519 October Term, 1978, No. 2539 October Term, 1978, Appeals from the Orders of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, at Nos. 1424-25, 1427-30, 1431-33, 1435-37 September Sessions, 1976.


Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Barry Schwartz, Philadelphia, for appellee Lynch.

Donald J. Goldberg, Philadelphia, for appellee Wojdak.

Van der Voort, Hester and Montgomery, JJ. Van der Voort, J., concurs in the result. Montgomery, J., files a concurring and dissenting statement.

Author: Hester

[ 270 Pa. Super. Page 559]

By order of the Supreme Court dated February 28, 1979, (Allocatur Docket No. 3926) we have been directed to rule on the Commonwealth's petitions*fn1 to extend the time under Pa.R.Crim.P. 1100(c) for bringing the defendants to trial, in conjunction with our decisions in the Commonwealth appeals from the granting of the writs of habeas corpus and the discharge of the defendants by the lower court (Lavelle, J.) which are now before us. Therefore, we must first direct our attention to the habeas corpus matters since the Rule 1100 issue becomes moot if the orders of the lower court discharging the defendants are affirmed.


On or about September 26, 1976, Criminal Informations were filed by the District Attorney of Philadelphia County against the defendant-appellee Francis J. Lynch and a co-defendant-appellee, Stephen R. Wojdak, charging them with (1) bribery in official and political matters (18 C.P.S.A. § 4701), (2) conspiracy to commit theft by deception, bribery, speculating or wagering on official action or information, theft by extortion, and official oppression (18 C.P.S.A. § 903), (3) speculating or wagering on official action or information (18 C.P.S.A. § 5302), (4) attempt -- official oppression (18 C.P.S.A. §§ 901, 5301), (5) attempt -- theft by

[ 270 Pa. Super. Page 560]

    extortion (18 C.P.S.A. §§ 901, 3923), (6) attempt -- theft by deception (18 C.P.S.A. §§ 901, 3922), and (7) attempt -- speculating or wagering on official action or information (18 C.P.S.A. §§ 901, 5302).

On November 10, 1976, Judge G. Thomas Gates, 52nd Judicial District, specially assigned, ruled that the defendants were to be afforded a preliminary hearing. The hearing was held July 19, 1977. Judge Gates, who presided over the preliminary hearing, dismissed Informations 1426 and 1434 September Term, 1976, charging attempts to commit official oppression, and determined that defendants be held for court on the remaining charges.*fn2 He directed that the defendants be released on their own recognizance. The defendants, not having entered into any recognizances or bonds to secure their release, continued in the custody of their counsel as directed earlier by Judge Richette.

Counsel for defendants, on or about October 6, 1977, petitioned for writs of habeas corpus to test the sufficiency of the evidence presented by the Commonwealth at the preliminary hearing to warrant the detention of the defendants on the charges on which they were held by Judge Gates.

The habeas corpus petitions were considered by Judge Lavelle, 21st Judicial District, also specially assigned, on the record made at the preliminary hearing before Judge Gates. Judge Lavelle discharged the appellees on all counts. The Commonwealth then appealed.

[ 270 Pa. Super. Page 561]

Although the evidence in this case has been considered by a special investigating grand jury, which made presentments that formed the basis for the informations filed by the Philadelphia District Attorney, and by Judge Gates and Judge Lavelle, it now becomes our duty to review it again to determine whether it is sufficient to establish prima facie cases against the defendants on any or all of the charges. The only issue presented to us in the habeas corpus appeals is the sufficiency of the evidence given at the preliminary hearing before Judge Gates.*fn3

Our examination of the record made before Judge Gates indicates the following evidence: viz

In the fall of 1975, Dr. Donald Goldenberg, a Philadelphia practicing dentist, being desirous of having his son, Andrew, admitted to the Dental School of Temple University, sought recommendations from various persons he thought had influence with that school. One of those solicited was Dr. Edward Cook, an officer of the Alumni Association of Temple University. Dr. Goldenberg told him he would make a substantial contribution to Temple University if his son was accepted. By the spring of 1976, his son not having received notice of his acceptance, he then sought the help of a friend and patient, Samuel Biener, whom he knew had political influence. When contacted, Mr. Biener said he would see what he could do and suggested that a fee might be required. In later discussions, Mr. Biener stated the fee would be $15,000 in cash and that he could be of assistance. In early May, Mr. Biener requested a transcript of Andrew's grades, which was supplied. The next time Mr. Goldenberg heard from Mr. Biener was on June 29th when Mr. Biener called him and told him that his "boy is in" and "to get the package ready" meaning the money. However, on the same day, June 29th, 1976, prior to receiving the call from Mr. Biener, Dr. Goldenberg had received a call from Dr. Cook congratulating him on the acceptance of his son and informing

[ 270 Pa. Super. Page 562]

    him he would be receiving a letter of acceptance in the mail.

Realizing he was obligated on his promise to Dr. Cook for a contribution to Temple University and on his promise to Mr. Biener, Dr. Goldenberg went to Atlantic City to discuss the matter with his wife and from there he called Dr. Cook between 9 and 10 that evening, informing him of his dilemma. Following this conversation, he called Mr. Biener and told him he had information from inside the school that his son had been admitted on his own record and without any influence from friends of politicians, and he was going to check on it, which he did through phone calls to the Dean, the President of the school, the Vice President and some of the teachers. The next day or the day thereafter, he received another phone call from Mr. Biener and was told that he also had confirmed that Andrew had been admitted "without any help and to forget about it."

Dr. Goldenberg had never heard of the defendants, Senator Lynch or Mr. Wojdak, a member of the Pennsylvania House of Representatives; and it was stipulated they had done nothing to accomplish the acceptance of Andrew by Temple University.

Following his conversation with Dr. Goldenberg in which $15,000.00 was suggested as the fee for accomplishing the admission of Andrew, Mr. Biener had contacted the defendant, Senator Lynch and told him, "I have a boy that wants to get into dentistry and I can get ten thousand dollars".*fn4 Senator Lynch said, "I will get back to you". The foregoing is the entire record relating to Biener's first contact with appellee Lynch. About two weeks later, Biener received a call from Senator Lynch asking him to get a transcript of

[ 270 Pa. Super. Page 563]

    the boy's grades. In response, Mr. Biener received the transcript of Andrew Goldenberg's grades as previously stated and delivered it to Senator Lynch personally. Two weeks later, Senator Lynch called him again, asking for the boy's first name, which he secured and gave to Senator Lynch by phone, and again the Senator said he would get back to him.

Thereafter, following the conversation between Dr. Goldenberg and Mr. Biener on June 29th, during which Dr. Goldenberg told Mr. Biener his boy had been accepted without his help, Mr. Biener called Senator Lynch and told him "the boy got in on his own, you didn't do nothing. Let's forget about it, I will get back to you." Senator Lynch did not reply at this time, but a day or two later called Mr. Biener and said "they are going to try and stop the letter", referring to the letter of Andrew's acceptance. This was followed by a later call from Senator Lynch to Mr. Biener telling him, "They couldn't stop the letter -- and for me to stay away from him, The Doctor -- you are going to get boxed in."

Thomas W. Elliott, Assistant Vice President of Governmental Relations at Temple University, is a registered lobbyist in Harrisburg. On June 30, 1976, he received information that he was to contact Mr. Wojdak's office in Harrisburg. He went there and was instructed to and did call Mr. Wojdak, who was then a patient in a Philadelphia hospital. Wojdak asked Elliott to check on the Dental School admission of any applicant named Rosenberg. Mr. Elliott then called the admissions office of Temple University Dental School to inquire whether an applicant named Rosenberg had been recently admitted and was told "No." He again called Mr. Wojdak and gave him that information. He was asked to check again for anyone with a similar sounding name and was advised a person named Goldenberg had been accepted. He again called Mr. Wojdak and relayed the information to him. In this conversation, Mr. Wojdak inquired whether the letter of acceptance had gone out, and if it had not, "could it be held for a day." After several more calls between Mr. Elliott and the admissions office, it was

[ 270 Pa. Super. Page 564]

    determined that the letter had in fact been mailed and Mr. Wojdak was again called and so advised, and he replied, "They are trying to go around me."

Mr. Elliott keeps a list of applicants for admission to Temple University in whom legislators have shown an interest and as a general policy notifies those persons when the University takes action on the applications. In this case, he felt he was in the middle of something and was being "used". Mr. Wojdak had shown no previous interest in Andrew Goldenberg, although he frequently indicated an interest in other applicants. On the other hand, Senator Lynch rarely, if ever, had indicated such an interest. Mr. Wojdak and the Senator were members of the State Legislature and joint occupants with two other persons of an apartment in Harrisburg. Mr. Biener did not know Mr. Wojdak and never had any contact with him.

The Commonwealth finally submitted Exhibit C-1 (telephone records) showing various phone calls were placed at divers times between Biener and Dr. Goldenberg, Biener and Lynch, and between Wojdak and his Harrisburg apartment. The Commonwealth concedes these records were not strictly necessary to establish a prima facie case. The Exhibit fails to demonstrate that: 1) Lynch called Wojdak and spoke to him about the Goldenberg matter; 2) Biener ever called Wojdak; or 3) Wojdak ever spoke with Lynch about the matter.

[ 270 Pa. Super. Page 565]

At this point, it is appropriate to observe that our review is limited to deciding whether a prima facie case was established at the preliminary hearing. The preliminary hearing is, of course, designed to protect an individual, accused of criminal conduct, from unlawful detention. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978). At such a proceeding, the prosecution has the burden to establish at least a prima facie case that a crime has been committed and the accused is the one who committed it.*fn5 Commonwealth v. Page 565} Mullen, 460 Pa. 336, 341, 333 A.2d 755 (1975). Proof of guilt beyond a reasonable doubt is clearly not required at this stage. Commonwealth v. Rick, 244 Pa. Super. 33, 366 A.2d 302 (1976). Rather, our cases hold that the Commonwealth must show "sufficient probable cause" that the defendant committed the offense. Commonwealth v. Smith, 212 Pa. Super. 403, 244 A.2d 787 (1968). In Commonwealth ex rel. Scolio v. ...

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