Nos. 80-3-536 and 80-3-537, Appeals from Orders of Superior Court at Nos. 1518 and 1519, October Term, 1978, entered October 12, 1979, affirming Orders of Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 1424-1425 & 1427-1430 and Nos. 1431-1433 & 1435-1437, September Sessions, 1976, entered April 12, 1978, granting Appellees' Petitions for Writs of Habeas Corpus, Dismissing All Charges and Discharging Appellees.
Eric B. Henson, Deputy Dist. Atty., Gaele McLaughlin Barthold, Asst. Dist. Atty., for appellant.
Donald J. Goldberg, Philadelphia, for appellee in No. 536.
Howard Gittis, Philadelphia, for appellee in No. 537.
Roberts, C.j., and Nix,*fn* Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., concurs in the result. Roberts, C.j., filed a concurring and dissenting opinion in which McDermott, J., joins. Hutchinson, J., filed a concurring and dissenting opinion. Flaherty, J., did not participate in the decision of this case.
These are appeals of the Commonwealth, by allowance, from orders of the Superior Court, 270 Pa. Super. 554, 411 A.2d 1224, affirming orders of the Court of Common Pleas of Philadelphia which dismissed the criminal charges filed against appellee Francis J. Lynch, a state senator, and appellee Stephen R. Wojdak, a former state representative. The charges, which include bribery in official and political matters, attempted theft by extortion, attempted theft by deception, speculating or wagering on official action or information (attempted and actual), official oppression, and conspiracy, were contained in informations filed by the Attorney General of Pennsylvania following the issuance of presentments by a special investigating grand jury which had probed appellees' alleged involvement relating to the
admission of a student to the School of Dentistry of Temple University. After a preliminary hearing, appellees were held for court.*fn1 On October 20, 1977 a petition for writ of habeas corpus was filed on behalf of both appellees. The matter was heard by Judge John E. Lavelle, specially presiding.*fn2 After argument Judge Lavelle determined that the evidence presented by the Commonwealth at the preliminary hearing failed to establish a prima facie case.
In this appeal the Commonwealth argues that the testimony presented against appellees did establish a prima facie case as to each of the crimes charged.*fn3 The premise of appellant's argument is that the evidence produced demonstrated appellees' participation in an alleged illegal scheme to obtain a sizeable monetary remuneration in return for their efforts. It is charged that the habeas court, and the Superior Court in the latter's affirmance, considered the Commonwealth's evidence "myopically and in 'bits' and 'pieces'." For the reasons that follow, we reverse in part and affirm in part the Order of the Superior Court.
The criminal charges in this matter relate to the alleged improper interference of appellees in the admittance of one Andrew Goldenberg to the dental school of Temple University in 1976. At the time pertinent to these charges appellees were both members of the General Assembly, appellee Lynch serving as a Senator and appellee Wojdak as a Representative. Dr. Donald Goldenberg, the father of Andrew, testified at the hearing that he had made numerous
efforts to secure his son's admission to dental school at Temple University ("Temple"). Among the efforts was a promise to a Dr. Cook, an officer of Temple's Alumni Association, that Temple would receive a substantial contribution from Dr. Goldenberg if his son was successful in gaining admittance. After a number of months had passed without action on the application, Dr. Goldenberg contacted Samuel Biener ("Biener"). According to Dr. Goldenberg, Biener represented that he could be of assistance for a substantial sum of money. It was further understood that the money was not to be paid until the admission of Andrew was confirmed. At some later point, Biener requested and obtained from Dr. Goldenberg a transcript of the applicant's grades.
Dr. Goldenberg did not receive further word in connection with the matter until June 29, 1976, when Dr. Cook contacted him and advised that Andrew had been accepted. A short time thereafter Dr. Goldenberg received a second telephone call from Biener also indicating the situation looked favorable and suggesting it was as a result of his efforts. In an attempt to ascertain whether he was obligated to Dr. Cook or Biener for his son's admission, Dr. Goldenberg called Dr. Cook and was advised by Dr. Cook that Andrew had been admitted without any help. At or about 9:30 p.m. on June 29, 1976, Dr. Goldenberg called Biener and related to him the conversation with Dr. Cook. Within the next two days, Dr. Goldenberg again spoke with Biener wherein Biener told him to "forget about everything" and wished his son well. Dr. Goldenberg did not know either of the appellees or of their alleged involvement in the matter.
Biener testified that after initially speaking with Dr. Goldenberg he contacted appellee Lynch and told him of his conversations relating to Andrew's admission to Temple. He stated to Lynch, "I have got a boy that wants to get into dentistry and I can get ten thousand dollars" (emphasis added).*fn4 Lynch stated that he would "get back to [him]".
About a month later Lynch contacted Biener and requested a transcript of Andrew's grades. It was stipulated that Lynch did not make any effort to secure the admission of Andrew. When Biener received a call from Dr. Goldenberg advising him of the successful admission,*fn5 he called Lynch and told him "let's forget about it". Lynch stated that he would "get back" to him. Later Lynch spoke with Biener and stated that an effort would be made to stop the letter acknowledging Andrew's admission. Two days after the above conversation Lynch notified Biener that he could not stop the letter and warned Biener to stay away from Dr. Goldenberg. There was no testimony from Biener that Lynch at any time asked for or discussed money for his assistance for any services he might provide. Biener further testified that he did not know Wojdak or of any participation by Wojdak in this matter.
Thomas Elliott, Temple University's Assistant Vice-President, offered testimony bearing upon the events that transpired after Dr. Goldenberg was verbally notified of his son's acceptance on June 29, 1976. He stated that he received a telephone call from Wojdak asking him to check on a dental school application of admission by an applicant named "Rosenberg". Elliott testified that he was accustomed to receiving recommendations, expressions of interest, and inquiries as to the status of applications for admissions from all segments of the community. He stated that it was his practice, whenever a legislator expressed interest, to inform the legislator as soon as action was taken, before notification was given to the applicant. His purpose was to afford the legislator the opportunity to be the first to give the news to the applicant's family.
After an investigation, Elliott found that there was no pending application by a person with the surname of Rosenberg. Wojdak then requested him to check for a "berg" that may have just been accepted. Elliott found the Goldenberg acceptance and relayed the information to Wojdak. Wojdak inquired whether the letter of acceptance had been sent out, and if not, whether it could be held up for a day. After further inquiry, Elliott learned that Temple had already sent the notification, and he relayed that information to Wojdak. Elliott further testified that prior to Wojdak's inquiries, which came after the admission decision, there was no expression of interest in the admission of Andrew by any member of the legislature.
It is also of significance that there was no direct evidence that Lynch spoke with Wojdak concerning the admission of Andrew.*fn6 The Commonwealth concedes that there is no evidence of Wojdak's knowledge of or involvement in the matter until after the June 29th call between Dr. Goldenberg and Biener, advising Biener of the acceptance. As previously stated, Dr. Goldenberg and Biener did not know nor did they have any contact with Wojdak.
At this juncture it is appropriate to set forth a summarization of the basic principles of law that must guide us in the instant analysis of the evidence presented. The Commonwealth bears the burden at a preliminary hearing of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). To sustain that burden it is well settled that the Commonwealth must produce evidence,
such as to present "sufficient probable cause to believe that the person charged has committed the offense stated" (United States v. Johns, [4 U.S. (4 Dall.) 412, 413, 1 L.Ed. 888 (1806)]; in other words, it should make out a prima facie case of guilt. It should be such that if presented at the trial in court, and accepted as true, the judge would be warranted in allowing the case to go to the jury.
Commonwealth ex rel. Scolio v. Hess, 149 Pa. Super. 371, 374-75, 27 A.2d 705, 707 (1942) (Emphasis in original).
In the instant prosecution, the Commonwealth had sought to establish appellees' complicity by reliance upon circumstantial evidence. The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts that have been established. See Commonwealth v. Whitman, 199 Pa. Super. 631, 186 A.2d 632 (1950). Accord, Commonwealth v. Gladden, 226 Pa. Super. 13, 311 A.2d 711 (1973). An understanding of the nature of an inference thus is crucial to an evaluation of the sufficiency of the evidence under consideration.
An inference is no more than a logical tool enabling the trier of fact to proceed from one fact to another, if the trier believes that the weight of the evidence and the more experiential accuracy of the inference warrant so doing.
Commonwealth v. Shaffer, 447 Pa. 91, 105-06, 288 A.2d 727, 735-36, cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). Accord Commonwealth v. Mason, 483 Pa. 409, 397 A.2d 408 (1979).
The test for reviewing statutory and common law inferences is well established:
Evidentiary inferences, like criminal presumptions, are constitutionally infirm unless the inferred fact is "more likely than not to flow from the proved fact on which it is made to depend." Turner v. United States, 396 U.S. 398 [90 S.Ct. 642, 24 L.Ed.2d 610] (1970); Leary v. United States, 395 U.S. 6 [89 S.Ct. 1532, 23 L.Ed.2d 57] (1969); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972);
the person charged has committed the offense, the absence of evidence as to the existence of a material element is fatal. See Commonwealth v. Prado, supra; Commonwealth ex rel. Scolio v. Hess, supra. Thus where the Commonwealth's case relies solely upon a tenuous inference to establish a material element of the charge, it has failed to meet its burden of showing that the crime charged was committed. Commonwealth v. Hudson; supra; Commonwealth v. Farquharson, supra; Commonwealth v. Fields, supra; Commonwealth v. Simpson, supra.
Certain of the charges are so clearly inapplicable that an extended explication or an individual analysis of the facts as they relate to each of the appellees is unnecessary. We will first dispose of those charges before addressing the remaining offenses which require a fuller explanation.
The informations charging both appellees with speculating or wagering on official action or information, 18 Pa.C.S. § 5302, and the related counts charging a conspiracy and an attempt to commit that offense were clearly not established by the alleged scheme. An essential element of the crime of speculating or wagering on official action or information is the possession of confidential information which was obtained by virtue of the actor's official position. The only information in the scenario presented by the Commonwealth's evidence was the knowledge that Dr. Goldenberg's son was attempting to gain admission to Temple and subsequently that he had been admitted. Neither of these pieces of information were confidential items obtained by virtue of the appellees' office. Thus, the charges of speculating or wagering on official action or information, conspiracy and attempt to commit the substantive offense were properly dismissed.
Equally without any foundation in the evidence are the counts charging both appellees with attempted theft by extortion, 18 Pa.C.S. § 3923. The crucial missing element in
this instance is the absence of an extortive threat. The Commonwealth argues that this element is supplied by the testimony relating to the inquiry as to the possibility of temporary delay of the formal notice of acceptance. There was no intention to use a possible delay of the letter as an extortive threat to coerce Dr. Goldenberg into making a payment of money. To the contrary, it is evident that any actions relating to a delay in notification were never intended to be communicated to Dr. Goldenberg. Moreover, Dr. Goldenberg was not being coerced into making a payment; rather Dr. Goldenberg's only question was to whom his tender should be made.
Bribery in Official and Political Matters
Both Lynch and Wojdak were charged with a violation of 18 Pa.C.S. 4701. Section 4701(a) provides:
(a) Offenses defined. -- A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another or solicits, accepts or agrees to accept from another:
(1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient;
(2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, ...