NO. 178 OCTOBER 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 1203 October Term 1976
John Rogers Carroll, Philadelphia, for appellant.
Bernard L. Siegel, Deputy District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Hester and Watkins, JJ. Watkins, J., files a concurring opinion.
[ 324 Pa. Super. Page 511]
This case is before us on remand by the Supreme Court. By opinions and order dated July 11, 1980, a panel of this court reversed the judgments of sentence and ordered appellant discharged. Commonwealth v. Bellis, 279 Pa. Super. 421, 421 A.2d 271 (1980) (WATKINS, J., joined by HESTER, J., SPAETH, J., concurring). The Commonwealth petitioned the Supreme Court to allow a further appeal, and on March 13, 1981, the petition was granted. By opinion dated December 23, 1981, the Supreme Court vacated our order of July 11, 1980, and remanded with instructions that we decide issues that appellant had raised before us but that we had not reached. Commonwealth v. Bellis, 479 Pa. 323, 440 A.2d 1179 (1981) (KAUFFMAN, J., O'BRIEN, C.J., and WILKINSON, J., dissenting, NIX, J., not participating in the decision). Appellant petitioned the Supreme Court for reargument, but on February 24, 1982, the Court denied the petition. Appellant then filed a motion with this court, requesting that the matter be reassigned to the three-judge panel that had previously heard his appeal, for supplemental briefing, and for further argument. We granted the motion for reassignment and for supplemental briefing, but denied further argument.
The facts are fully stated in our prior decision, and also, the Supreme Court's, and we shall therefore only indicate them here. At the time in question, appellant was an elected member and the majority leader of the City Council of Philadelphia. The charge is that appellant and one Joseph Daly were involved in a scheme by which architects working on City projects were required to "kick-back" five percent of their fees to the Democratic City Committee, with the result that John Betts, an architect, paid appellant $9,000. Appellant was tried in the Municipal Court of Philadelphia for conspiracy and extortion under the Penal
[ 324 Pa. Super. Page 512]
Code of 1939, and for the common law offenses of misfeasance, malfeasance and nonfeasance in office. He was acquitted of conspiracy and extortion but convicted of the common law offenses. He appealed to the Philadelphia Court of Common Pleas, and after a trial de novo before a jury, was again convicted of the common law offenses. Post-trial motions were denied, and he was sentenced to a term of two to seven years in prison and to pay a fine of $9,000 and the costs of prosecution.
In our prior decision, the majority of the panel, WATKINS and HESTER, JJ., held that the evidence showed that appellant's actions were punishable as extortion under the Penal Code and that therefore appellant could not be convicted of the common law offenses. This conclusion was based on the provisions of Section 1104 of the Code, 18 P.S. § 5104, that one may not be convicted of common law offenses where the conduct in question is a violation of a specific statutory penal provision. We therefore ordered appellant discharged. 279 Pa. Super. at 427, 421 A.2d at 274. In reversing, the Supreme Court held that the elements of the common law offenses were not the same as the elements of the statutory offense of extortion, from which it followed that even though appellant could have been convicted, and had been acquitted, in Municipal Court of extortion, he might still be convicted in the Court of Common Pleas of the common law offenses. The Supreme Court further held that the evidence was "more than adequate", 497 Pa. at 331, 440 A.2d at 1183, for the jury to find that appellant had committed the common law offenses. The Court therefore reversed our order discharging appellant and remanded the case.
The issues that we must decide on remand are: (1) whether, when appellant appealed from Municipal Court to the Court of Common Pleas, the Commonwealth impermissibly changed the charges against him; (2) whether, because appellant had been acquitted in Municipal Court of the statutory offenses, the Commonwealth was collaterally estopped from introducing certain evidence; (3) whether in
[ 324 Pa. Super. Page 513]
the charge to the jury the trial court erred in defining the common law offenses; and (4) whether appellant's sentence was legal. We have concluded that the Commonwealth did not impermissibly change the charges, and that it was not collaterally estopped. We have also concluded, however, that the trial court erred in its charge to the jury, and that the sentence was illegal. We therefore reverse and order a new trial.
In arguing that when he appealed from the Philadelphia Municipal Court to the Court of Common Pleas, the Commonwealth impermissibly changed the charges against him, appellant particularly relies on Commonwealth v. Nelson, 230 Pa. Super. 89, 326 A.2d 598 (1974). There, the defendant was convicted on two charges in Municipal Court but upon appeal to the Court of Common Pleas, was indicted on those plus two additional charges. In affirming an order quashing the additional charges, we reasoned that Municipal Court proceedings ordinarily serve as a defendant's preliminary hearing, at which he is made aware of the charges and evidence against him. We therefore concluded that if upon the defendant's appeal to the Court of Common Pleas the charges are increased, and no further preliminary hearing is provided, with respect to the new charges the defendant has been denied his right to a preliminary hearing.
The facts of this case, however, do not establish a violation of the rule set forth in Nelson. Appellant was fully apprised of the charges and evidence against him in the Municipal Court proceedings. The Municipal Court complaint expressly referred to both statutory extortion and the common law offenses, and appellant was in fact convicted of the common law offenses. On appellant's appeal from the Municipal Court the Commonwealth did not change or enlarge the charges but merely set them forth in more specific language.
[ 324 Pa. Super. Page 514]
Appellant's argument that the Commonwealth was collaterally estopped from introducing certain evidence at the trial in the Court of Common Pleas, may be considered in two parts. Appellant argues that his acquittal in Municipal Court of statutory extortion collaterally estopped the Commonwealth from introducing at his trial in the Court of Common Pleas evidence of payments made by Betts to appellant, and that his acquittal of conspiracy collaterally estopped the Commonwealth from introducing evidence of a May 1971 conversation between Daly and Betts regarding the five percent kick-back scheme.
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court held that the doctrine of collateral estoppel in criminal cases is embodied in the Fifth Amendment guarantee of the United States Constitution against double jeopardy. Under the doctrine, "[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit." Id. at 443, 90 S.Ct. at 1194. Where a judgment of acquittal is based on a general verdict, a court must examine the record to determine whether "'a rational [fact-finder] could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Id. at 444, 90 S.Ct. at 1194 (citation omitted). See also Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (plurality opinion by Justice NIX, analyzing collateral estoppel aspect of double jeopardy).
Appellant argues that the Municipal Court acquittal of statutory extortion necessarily implied a determination that no payments were made by Betts to appellant. We disagree. Appellant relies on the following language in the Supreme Court's opinion reversing and remanding to this court:
The conviction of appellee [now, on remand, appellant] for the common law crimes was supported by the evidence
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and was not inconsistent with acquittal of the extortion charges. 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 [ i.e., the $9,000 allegedly paid appellant by Betts] had not been proved beyond a reasonable doubt. ...