decided: December 23, 1981.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
ISADORE H. BELLIS, APPELLEE
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.
[ 497 Pa. Page 326]
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
[ 497 Pa. Page 327]
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 Code of 1939, which provided:
[ 497 Pa. Page 328]
Whoever, being a public officer, wilfully and fraudulently receives or takes any reward or fee to execute and do his duty and office, except such as is or shall be allowed by some act of Assembly, or receives or takes, by color of his office, any fee or reward whatever, not, or more than is, allowed by law, is guilty of extortion, a misdemeanor, and on conviction, shall be sentenced to pay a fine not exceeding five hundred dollars ($500), or to undergo imprisonment not exceeding one (1) year, or both.
18 P.S. § 4318.*fn5 On the basis of Section 1101 of the Penal Code, which preserved all common law offenses not provided for by statute, appellee also was charged with the common law crimes.*fn6 After trial, he was acquitted of extortion, but convicted of the common law crimes.
Misfeasance, malfeasance and nonfeasance in office are similar, closely-related offenses, and the terms are often used interchangeably.*fn7 These common law crimes involve "either the breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive." Commonwealth v. Peoples, 345 Pa. 576, 579, 28 A.2d 792, 794 (1942); McNair's Petition, 324 Pa. 48, 55, 187 A. 498, 501 (1936); Commonwealth v. Dolny, 235 Pa. Super.Ct. 241, 247-48, 342 A.2d 399, 403 (1975).
Appellee contends that Section 1104 of the Penal Code precludes prosecution for both the statutory crime of
[ 497 Pa. Page 329]
extortion and the common law crimes. We disagree. In reversing appellee's convictions under Section 1104, the Superior Court majority relied on our plurality opinion in Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979) (" Bellis I "). In Bellis I appellee's conviction of the statutory offense of bribery was affirmed, but his convictions for common law crimes were vacated because a "statutory penalty . . . exist[ed] for appellant's misconduct; therefore, pursuant to Section , appellant [could not] be punished for this misconduct based on a violation of the common law . . . ." 484 Pa. at 494, 399 A.2d at 400.
Although appellee was acquitted of the statutory crime charged in the case now before us, the Superior Court majority found that the jury could have convicted him of extortion and concluded that Bellis I therefore barred his conviction for the common law crimes. The plurality opinion in Bellis I, however, stands only for the proposition that when the evidence establishes nothing more than the breach of a penal statute, the accused may not also be convicted of a common law offense which proscribes the same conduct.*fn8 If, on the other hand, the elements of the statutory offense and the common law offense are different, the accused may, upon sufficient evidence, be convicted of either or both offenses. See Bellis I, 484 Pa. at 494, 399 A.2d at 400; Commonwealth v. Dolny, 235 Pa. Super.Ct. at 249, 342 A.2d at 403; Commonwealth v. Bellis, 279 Pa. Super.Ct. at 434-435 n.8, 421 A.2d at 278 n.8 (Spaeth, J., concurring).
Statutory extortion under Section 318 and the common law offenses charged in this case included separate and distinct elements. The former extortion statute proscribed the wilful and fraudulent receipt by a public officer of any reward or fee not allowed by law. 18 P.S. § 4318; Commonwealth v. Froelich, 458 Pa. 104, 109, 326 A.2d 364, 366 (1974). The common law crimes, on the other hand, addressed
[ 497 Pa. Page 330]
a public official's violation of a statutory duty or the performance by a public official of a discretionary act with a corrupt or improper motive. See Commonwealth v. Peoples, 345 Pa. at 579, 28 A.2d at 794; McNair's Petition, 324 Pa. at 55, 187 A. at 501; Commonwealth v. Dolny, 235 Pa. Super.Ct. at 248, 342 A.2d at 403 (police chief who failed to prosecute a known gambler after receiving pay-offs guilty of misfeasance in office); Commonwealth v. Steinberg, 240 Pa. Super.Ct. 139, 362 A.2d 379 (1976) (official who used his position to obtain work for his brother's newly formed company guilty of misbehavior in office).
The conviction of appellee for the common law crimes was supported by the evidence and was not inconsistent with acquittal of the extortion charges.*fn9 The Municipal Court judge reasonably could have concluded that appellee, with an improper and corrupt motive, misused his powerful official position to create the impression that he could and would influence the award of the design contracts, while also finding that appellee's fraudulent and wilful receipt of an illegal reward or a fee not allowed by law had not been proved beyond a reasonable doubt. See Commonwealth v. Dolny, 235 Pa. Super.Ct. at 249-250, 342 A.2d at 403.*fn10
[ 497 Pa. Page 331]
In the trial de novo before the Court of Common Pleas, the Commonwealth proceeded only on the common law crimes, see Commonwealth v. Nelson, 230 Pa. Super.Ct. 89, 326 A.2d 598 (1974), and the jury arrived at the same conclusion as the Municipal Court: appellee was guilty. We conclude that the evidence was more than adequate for the jury to find beyond any reasonable doubt that appellee improperly, corruptly and deliberately misused his powerful official position to orchestrate a kickback scheme in connection with the award of city contracts.*fn11
Accordingly, we vacate the Order of the Superior Court and remand for disposition of all issues raised in that Court but not yet decided.*fn12