No. 2361 Philadelphia., 1981, No. 2364 Phila., 1981, Appeal from the Orders of the Court of Common Pleas of August 5, 1981, Criminal Division, of Philadelphia County at Nos. C.P. Misc. 81-OO 8037 and 81-00-8038 (M.C. 80-11-1210 and 80-11-1211).
Mark Stuart Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Leo H. Loffel, Philadelphia, for appellees.
Brosky, McEwen and Watkins, JJ.
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In these consolidated appeals by the Commonwealth it is contended that the orders entered by the court of Common Pleas of Philadelphia County discharging the defendants from charges of conspiracy (18 Pa.C.S.A. § 903) and bribery
[ 311 Pa. Super. Page 448]
in official and political matters (18 Pa.C.S.A. § 4701) for failure to establish a prima facie case at the preliminary hearing was error.
The defendants, George Clarke and James Banks, are the owner and manager of the Thomas Jefferson Democratic Club in West Philadelphia, a private club under the provisions of the Pennsylvania Liquor Code. They were arrested on the charge of conspiracy to bribe and five counts of bribery of a Philadelphia police sergeant to ignore afterhour sales of alcoholic beverages at the club beyond the 3 A.M. limit set forth by the law.
After a preliminary hearing before Judge J. Earl Simmons of the Municipal Court of Philadelphia County, the defendants were discharged for lack of a prima facie case. On appeal to, the Court of Common Pleas by way of rearrest, a second preliminary hearing was held before Honorable Edward J. Blake, the Criminal Motions Judge, who also determined that a prima facie case was not established by the Commonwealth. Rearrest was the appropriate procedure for the Commonwealth. Commonwealth v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978).
The Commonwealth's evidence at the rearrest preliminary hearing was as follows: Sergeant James McDonald testified that when working the morning tour it was his duty to insure that no alcoholic beverages were sold or other Liquor Code violations committed after the 3:00 A.M. deadline at the club. On August 4, 1980, Banks told him that "he was hurting and he needed more time to operate the club to make money." Berks then introduced him to Clarke, who told the officer he would take care of him for "extra time". When McDonald arrived at the club the next day at 3:20 A.M., he was given $25.00, the defendant saying they appreciated the extra time. On four separate occasions in the following weeks when McDonald came to the club after 3:00 A.M., one or the other of the defendants gave him cash totally $125.00 and thanked him for the time. McDonald also testified that during this time period from August 4, 1980 to September 24, 1980, he observed illegal sales after
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:00 A.M. which he believed to be alcoholic beverages although he never investigated to determine that they were ...