No. 118 Appeal Docket 1984. Appeal from the January 20, 1984 Order of the Superior Court at No. 178, October Term, 1978, Reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at October Session, 1976, No. 1203 and Remanding for a New Trial. Pa. Super. ,
Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case. McDermott, J., did not participate in the decision of this case. Hutchinson, J., files a dissenting opinion in which Flaherty, J., joins.
This is a Commonwealth appeal by allowance from the Order of the Superior Court which granted Appellee a new trial due to error committed by the trial judge in instructing the jury as to the circumstances under which Appellee could be found guilty of the common law crimes of misfeasance, malfeasance and nonfeasance while in office.
The facts of this case have been fully set forth in the prior opinions of this Court and the Superior Court, and will be referred to in this Opinion only insofar as they are relevant. Appellee, Isadore Bellis, was tried in the Philadelphia Court of Common Pleas and found guilty by a jury of the common law crimes of misfeasance, malfeasance and nonfeasance while serving in the capacity of a city councilman for the City of Philadelphia. Appellee took an appeal to the Superior Court alleging, inter alia, that his conviction of the common law crimes was precluded by the existence of a specific statutory crime which dealt with the
conduct for which he was charged, i.e. extortion under former 18 P.S. § 4318, citing as authority former 18 P.S. § 5104 which provided that:
In all cases where a remedy is provided or duty enjoined, or anything directed to be done by the penal divisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect.
The Superior Court agreed with this argument, stating that the mere existence of the statutory offense precluded a conviction of the common law crimes; i.e. even if the statutory offense was also charged and the defendant was acquitted of same, the common law offenses were still precluded. The Commonwealth was granted allowance to appeal to this Court, and we held in Commonwealth v. Bellis, 497 Pa. 323, 440 A.2d 1179 (1981) (Bellis II) that a common law prosecution is not barred simply because the facts would also support conviction of a statutory crime which includes elements not found in the common law offense. Thus, since the statutory crime of extortion contained elements not found in the common law crimes, Appellee could be convicted of either or both crimes. On this basis, we reversed the Superior Court and sent the case back for resolution of the remaining issues raised by Appellee but not dealt with by that court. On remand, the Superior Court, in Commonwealth v. Bellis, 324 Pa. Super. 506, 472 A.2d 194 (1984), dealt with the issue of whether it was error to charge the jury that Appellee could be found guilty of the common law crimes if they found that he had breached the positive statutory duty imposed by Section 10-100 of the Philadelphia Home Rule Charter, 351 Pa.Code § 10.10-100, a duty the breach of which carries a penal sanction under § 10-109 of the Charter. The Superior Court concluded that it was indeed error and granted Appellee a new trial. We affirm.
In Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942), we held that the common law offenses of misfeasance, malfeasance and nonfeasance in office occur when there is "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." Id., 345 Pa. at 579, 28 A.2d at 794. (Emphasis added) The Superior Court correctly interpreted our holding in Bellis II to say that prosecution for the common law offenses would be allowed where the elements of the offense differed from those of the statutory offense. However, it does not follow that a common law offense can include a statutory offense which provides a separate penalty for its violation as an element where culpability can be based solely on violation of the statutory proscription. From this it follows that it was error for the trial judge to instruct the jury that defendant could be found guilty of the common law offense if it were found that he breached the positive duty set forth in § 10-100 of the Home Rule Charter. As was stated in Peoples, conviction of the common law crime requires proof of either a breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive. Since the statutory duty outlined in the charge provided a penal sanction for its violation, consistent with Bellis II, Appellee could only have been convicted of the common law crimes if the jury were to find that he had performed a discretionary act with an improper or corrupt motive, the second alternative leg of the offense.*fn1 Because the charge to the jury contained the statutory duty defined in § 10-100 of the Home Rule Charter,
however, it is unclear whether the jury improperly applied that duty to find Appellee guilty of the common law offenses or whether they found that he had performed a discretionary act with an improper or corrupt motive. "Where the trial court charges both correctly and incorrectly on the same proposition it is impossible to determine which instruction was followed by the jury, there must be a reversal. [sic]" Commonwealth v. Holloway, 212 Pa. Super. 250, 254, 242 A.2d 918, 920 (1968). On this basis we must agree with the Superior Court that the jury charge was error.
HUTCHINSON, Justice, dissenting.
I do not believe the City of Philadelphia has the authority, under the home rule provisions of the First Class Cities Code, to prescribe punishment for conduct which was punishable as a misdemeanor under the general common law. Instead, I believe the General Assembly has delegated to Philadelphia only the power to establish and punish summary offenses and those misdemeanors which describe minor criminal conduct of parochial concern to that municipality and not to the Commonwealth as a whole. See Commonwealth v. Cabell, 199 Pa. Superior Ct. 513, 185 A.2d 611 (1962). I also believe that the majority errs in holding that Section 1104 of the former Penal Code, 18 P.S. § 5104 (repealed), limits the penalty to which a Philadelphia official is subject for a misdemeanor in office, based upon breach of the substantive duties set forth in Section 10-100 of the Philadelphia Home Rule Charter, to the minor penalty prescribed in Section 10-109. Section 10-109 of the Charter
only prescribes the penalty for violations of the substantive conflict-of-interest provision set forth in Section 10-100. Here, however, the Commonwealth has ...