No. 81-3-381, Appeal from the Order of the Superior Court Dated July 11, 1980, at No. 178, October Term, 1978, Reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, as of October Session, 1976, No. 1203 and Discharging Defendant.
Eric B. Henson, Deputy Dist. Atty., Bernard Siegel, Philadelphia, for appellant.
John Rogers Carroll, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., and Wilkinson, J., dissent on the basis of Judge Spaeth's concurring opinion in the court below. Nix, J., did not participate in the decision of this case.
This is an appeal by the Commonwealth from a Superior Court order reversing convictions of appellee, Isadore H. Bellis, for the common law crimes of misfeasance, malfeasance and nonfeasance in office (hereinafter collectively referred to as "common law crimes"). At issue is whether Section 1104 of the Penal Code precludes prosecution of an accused for both a statutory offense and a common law offense when the misconduct charged could factually support a conviction for both, but the elements of the offenses are different.*fn1 We conclude that a common law prosecution is not barred simply because the facts alleged would also support conviction of a statutory crime which includes elements not found in the common law offense.
Appellee originally was tried in the Municipal Court of Philadelphia and convicted of the common law crimes, but acquitted of charges of conspiracy and extortion. After a trial de novo before the Court of Common Pleas of Philadelphia, a jury convicted appellee of two counts of the common law crimes. Post verdict motions were denied, and appellee was sentenced to a prison term of two to seven years, fined $9,000, and ordered to pay the costs of prosecution. The Superior Court thereafter reversed the judgment of sentence and ordered appellee discharged. Commonwealth v. Bellis, 279 Pa. Super.Ct. 421, 421 A.2d 271 (1980). We granted allocatur and now reverse.*fn2
At the time of the offenses charged, appellee was an elected member of the City Council of Philadelphia and was its majority leader. In May, 1971, appellee invited an architect, who was interested in obtaining a design contract for construction of a terminal at Philadelphia International Airport, to lunch at a Philadelphia dining club.*fn3 Also invited by appellee to the same lunch was Joseph Daley, an assistant to the treasurer of the Democratic City Committee. During the lunch meeting, at a time when appellee had temporarily left the table, Daley and the architect discussed the airport contract and Daley told him that it was "customary for architects to give 5% of their fees to the Democratic City Committee." The architect immediately agreed to do so.
In June of 1971, the architect received an interim design contract from the City involving a fee of $5,000. Shortly thereafter, appellee called him and requested a payment of $4,000 in cash. The architect complied the very next day by handing appellee an envelope containing $4,000 in cash. Several months after this payment the architect received the final airport contract with the City for an additional fee of $175,000, and on July 26, 1972 appellee requested an additional $5,000 "contribution." The following day, the architect gave appellee an envelope containing $5,000 in cash.*fn4 The records of the Democratic City Committee do not reflect receipt of any sums in these amounts from the architect or from appellee, and the architect never received any acknowledgement of the payments. At a 1975 meeting, however, appellee informed the architect that the $9,000 had been "spread around the Party."
In Municipal Court, appellee was charged with extortion under Section 318 of the now-repealed Penal ...