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COMMONWEALTH PENNSYLVANIA v. BENNIE GOLDBARD (03/21/80)

filed: March 21, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
BENNIE GOLDBARD, APPELLANT



No. 1192 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information No. 1373, March Session, 1977 and No. 522, May Session, 1977.

COUNSEL

Jay A. Hurvitz, Doylestown, for appellant.

Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Watkins

[ 276 Pa. Super. Page 195]

This is an appeal from the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, by the defendant-appellant, Bennie Goldbard, after conviction, non-jury, of bribery and conspiracy. The defendant was sentenced to concurrent terms of imprisonment of six (6) to twelve (12) months on each charge. On appeal, defendant claims that the evidence produced at his trial was insufficient to convict him of bribery or conspiracy and that his sentence was excessive.

The evidence produced at trial established that on February 10, 1977, the Westmoreland Coal Company purchased an airplane from Don F. Love and Associates of Clinton, Iowa. Philip Weinstock, the tax manager of Westmoreland Coal Company, decided that a tax return had to be filed with the Commonwealth of Pennsylvania as a result of this transaction. On February 14, 1977, Weinstock called the defendant, a Field Investigator for the Pennsylvania Sale and Use Tax Department, in order to get the proper tax forms. The forms were then delivered to the defendant.

[ 276 Pa. Super. Page 196]

On February 28, 1977 defendant and a William Weselyk a co-defendant, who was also a Field Investigator for the Tax Department, went to Westmoreland's Philadelphia offices and met with Weinstock. Weinstock had determined that his employer's tax liability was $31,500 on the purchase of the aircraft. Weselyk then told Weinstock that he could arrange for the company to pay only one-half its tax liability and that Weselyk, the defendant, and the company would split the other one-half of the tax, the company receiving one-half and defendant and Weselyk receiving $8,000 total. Weinstock told the defendants that he would have to consult with higher authorities in the company. Defendant left his phone number with Weinstock.

Weinstock reported the incident to his superior and then both reported the matter to the Justice Department. A meeting was arranged between Weinstock, his superior, Weselyk and the defendant for March 7, 1977. Defendant told Weinstock to have $8,000 in cash ready at the meeting. At the meeting, defendant and Weselyk proposed a new deal whereby they would receive $10,000 total and nothing would be paid to the Commonwealth. Weselyk told Weinstock and his superior that he could arrange to destroy the appropriate records to prevent future inquiry into the transaction. He then directed Weinstock's superior to give defendant the $8,000 and to have $2,000 more for defendant in cash for the following day. As defendant and Weselyk left the meeting they were arrested by law enforcement officials. Defendant had the $8,000 in his possession at the time.

Defendant's first contention is that the evidence adduced at his trial was insufficient to convict him of the crime of bribery because in order to sustain a conviction on such a charge it must be proven that defendant violated a legal duty which, defendant claims, the Commonwealth failed to do because it failed to prove at trial that Westmoreland Coal Company had a duty to pay the tax. Thus, defendant claims he should have been charged with extortion or theft by deception and not with bribery. The Crime of Bribery is defined in 18 Pa.C.S.A. ยง 4701 as follows:

[ 276 Pa. Super. Page ...


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