No. 178 October Term, 1978, Appeal from Judgment of Sentence Entered on September 28, 1977 by the Court of Common Pleas of Philadelphia County Trial Division, Criminal Section, as of October Term, 1976, No. 1203.
John Rogers Carroll, Philadelphia, for appellant.
Bernard L. Siegel, Deputy District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Hester and Watkins, JJ. Spaeth, J., files a concurring opinion.
[ 279 Pa. Super. Page 422]
This appeal comes to us from the Court of Common Pleas, Criminal Division, and involves the defendant-appellant's appeal from his convictions of the common law crimes of misfeasance, malfeasance, and nonfeasance in office. Defendant had been charged with conspiracy, extortion and the common law crimes. He was acquitted of the conspiracy and extortion charges. Defendant was tried first in the Municipal Court of Philadelphia County and then appealed his conviction for a de novo trial before the Court of Common Pleas of Philadelphia County. He was tried before a jury and convicted of the common law crimes on March 4, 1977. On September 28, 1977, defendant was sentenced to a term in prison of two (2) to seven (7) years and fined $9,000 plus the costs of prosecution. He now appeals his conviction of the common law crimes.
[ 279 Pa. Super. Page 423]
At defendant's trial it was established that the defendant was an elected member of the City Council of Philadelphia and its majority leader. It was also established that one John Betts was an architect who was interested in obtaining contracts for design work for buildings at the Philadelphia International Airport. At this time one Joseph Daly was an assistant to the Treasurer of Philadelphia Democratic City Committee. Bellis was a member of the Democratic Party, the majority political party in Philadelphia.
In May, 1971, Betts was invited to lunch by Bellis at the Locust Club in Philadelphia. Bellis had told Betts that he wanted Betts "to meet some people from downtown" which Betts understood to mean that he was to meet some people from the Democratic City Committee. This meeting was initiated by Bellis according to Betts' testimony. Bellis also invited Daly to the same lunch. At this time Bellis knew Daly, knew of his position in the Democratic Party, and had known him "long before he had anything to do with anybody at City Committee". At the time of the lunch meeting Daly "was aware that Betts was involved in planning of an airport structure at the International Airport . . . through . . . the grapevine."
During the lunch meeting Bellis left the table. At that point Daly and Betts began discussing Betts' work at the airport. They discussed the amount of the budget for the contract, Betts' fee, and how the work was proceeding. The fee was not to exceed $180,000. Daly then told Betts that it was "customary for architects to give 5% of their fee to the Democratic City Committee". Betts immediately agreed to do this. No details of the pay-off were discussed at that time, Bellis returned to the table, and no further discussion of the contracts took place at that time.
In June of 1971, Betts received a design contract for $5,000. On or about June 28, 1971, Bellis called Betts and requested Betts to give "them some money at this time". Bellis told Betts that he should give "us" $4,000. On June 29, 1971, Betts went to the Philmont Country Club were he gave Bellis an envelope containing $4,000 in cash. Bellis
[ 279 Pa. Super. Page 424]
placed the envelope into his pocket. In October of 1971, Betts received the final contract with the City for an additional fee of $175,000.
On July 26, 1972 Bellis phoned Betts and requested an additional $5,000 "contribution" and on July 27, 1972 Betts gave an envelope containing $5,000 to Bellis at the Stouffer Restaurant in downtown Philadelphia bringing the total amount given to Bellis by Betts to $9,000. The cash payments of $9,000 made to Bellis amounted to 5% of the $180,000 engineering design contract fee.
On April 2, 1975, Bellis and Betts had a conversation during which Betts told Bellis that Betts had been informed that there was no record of Betts' giving a donation to the Democratic City Committee. Bellis told Betts that the money had been "spread around the party". It was also established that the Philadelphia City Council had the "final say" as to what was to be approved for capital improvements at the airport.
Defendant's first argument on appeal is that his convictions of the common law crimes should be reversed because of the existence of specific statutory crimes which deal with the conduct of which the defendant was charged. As authority for this proposition the defendant cites former 18 P.S. § 5104 which provides that:
"In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect."*fn1
Thus, if the defendant's actions amount to violations of statutory criminal enactments his convictions of the common law charges of misfeasance, malfeasance, and ...