APPEAL FROM THE JUDGMENT OF SENTENCE ENTERED JANUARY 14, 1986 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CRIMINAL DIVISION AT NO. CC8413254.
Thomas A. Livingston, Pittsburgh, for appellant.
John H. Reed, Harrisburg, for Com., appellee.
Cirillo, President Judge, and Rowley and Popovich, JJ.
[ 360 Pa. Super. Page 251]
This is an appeal from a judgment of sentence for violation of the State Ethics Act and for unsworn falsification. We affirm.
The following issues are presented for our review: (1) whether the evidence was sufficient to convict appellant for violating the State Ethics Act and having committed the offense of Unsworn Falsification to Authorities; (2) whether the trial court erred in the admission of evidence; (3) whether the trial court erred in denying appellant's request for a non-jury trial; (4) whether the judge erred in failing to recuse himself; (5) whether the trial court erred in imposing sentence; (6) whether the fine imposed was a violation of 65 P.S. § 409(c), 42 Pa.C.S. § 9726(c)(d), and Pa.R.Crim.P. 1407(c); (7) whether 65 P.S. § 409(c) is unconstitutional; (8) whether the trial court erred in refusing to allow appellant to respond to the Commonwealth's argument; and (9) whether the conviction and sentence violate 65 P.S. § 407(9), as well as deprive appellant of the due process of law.
We will first summarize the salient facts as found by the trial court. Appellant, Louis T. Cherpes, conducted his own insurance agency in Ross Township, Allegheny County. He also conducted business through a West Virginia corporation known as Allegheny Consulting, Inc., and a Pennsylvania corporation known as Scurdo Industries.
In 1980, at the time of the alleged offenses, Cherpes served as Chairman of the Board of Commissioners of Ross Township, an elective position. At this time, the Board was considering a proposal for a new shopping mall by Frank Nascone, a real estate developer.
In April of 1980, while serving as Chairman of the Ross Township Board of Commissioners, Cherpes wrote to one of Mr. Nascone's companies, Maret Development Corporation, to solicit insurance business. Maret accepted Cherpes's bid for a large-scale, three-year policy. As agent for this policy, Cherpes received a standard commission which amounted to approximately $66,000.
[ 360 Pa. Super. Page 252]
One month later, on May 12, 1980, the Ross Township Board of Commissioners began formal action on Nascone's proposed development, called the "Ross Park Mall." On that date, Cherpes asked the township solicitor to draft a proposed ordinance endorsing Nascone's application to rezone the land for his proposed development from residential to commercial.
On August 11, 1980, the Board approved an ordinance which rezoned Nascone's land from residential to commercial. Cherpes voted in favor of this ordinance.
On September 14, 1981, Cherpes again voted in favor of ordinances which rezoned additional land needed for Nascone's development. On December 14, 1981, the Board voted 5-4, with Cherpes in favor, to accept a deed from Nascone to the township for dedication of land to be used as a public street to connect the new Ross Park Mall development with an existing street. Prior to the above vote, in response to Cherpes's request, the township solicitor informed Cherpes that "he knew of no reason why [Cherpes] could not vote." At three subsequent meetings, Cherpes also cast his vote as a Board member in favor of Nascone's development.
On or about April 24, 1981, Cherpes filed a financial disclosure statement, as required by law, but failed to include income derived from his insurance business or any income greater than $500 from a single source, as required by the Ethics Act.
The evidence therefore indicates that Cherpes sought the insurance business of Nascone, who was seeking concessions from the Board of which Cherpes was chairman. The record also discloses that the insurance agency which had formerly handled Nascone's business was unceremoniously dropped. Nascone's insurance policy was the largest that Cherpes had ever handled and it was secured without competitive bidding.
We will discuss the issues seriatim.
[ 360 Pa. Super. Page 253]
Cherpes asserts that the evidence presented at trial was insufficient to support his conviction for violation of the State Ethics Act, 65 P.S. §§ 403(a) & (b), and Unsworn Falsification to Authorities, 18 Pa.C.S. § 4904(a). We find that the evidence presented at appellant's jury trial was sufficient to sustain his convictions.
Our standard of review in assessing the sufficiency of the evidence is to "view the evidence in the light most favorable to the Commonwealth as verdict winner, and accept as true all evidence and reasonable inferences therefrom, upon which if believed, the fact finder could properly have based its verdict." Commonwealth v. Taraschi, 327 Pa. Super. 179, 185, 475 A.2d 744, 747 (1984).
The sections of the State Ethics Act which the jury found Cherpes to have violated, 65 P.S. §§ 403(a) & (b), provide that:
(a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated.
(b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby.
The record indicates that Cherpes solicited business for his insurance agency from a developer who needed the
[ 360 Pa. Super. Page 254]
approval of the Board of Commissioners, on which Cherpes sat, in order for the development to succeed. It is also clear that the developer changed from his former insurance agency and gave Cherpes a substantial premium for a large policy shortly before Cherpes voted as a Board member in favor of several proposals presented to the Board by the developer.
Viewing all the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all reasonable inferences therefrom, we conclude that the jury could find beyond a reasonable doubt that Cherpes used his position as Board member to gain the insurance premium from the developer with the understanding that Cherpes's vote would be influenced thereby. Thus, we are satisfied that the elements of §§ 403(a) & (b) have been satisfied beyond a reasonable doubt.
Cherpes argues, however, that the trial court's grant of a motion for judgment of acquittal on a bribery charge, pursuant to 18 Pa.C.S. § 4701, established that the insurance premium was not received in exchange for Cherpes's favorable votes. Section 4701(a)(1) provides:
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 . . . .
The elements of § 403(b) and § 4701(a)(1) are not the same. The plain language of § 403(b) refers to an understanding that a vote will be influenced by a public official's acceptance of something of value. Section 4701(a)(1) refers to the acceptance of a pecuniary benefit as consideration for the public official's vote. Thus, § 403(b) contemplates a much broader scenario than a simple quid pro quo transaction.
We also find support for our conclusion in principles of statutory interpretation. When seeking to construe legislative intent, we are instructed "to look to the occasion and
[ 360 Pa. Super. Page 255]
necessity for the enactment, the circumstances under which it was enacted, the mischief to be remedied and the object to be obtained." Township of Moon v. Police Officers of the Township of Moon, 508 Pa. 495, 504, 498 A.2d 1305, 1309 (1985); 1 Pa.C.S. § 1921(c).
When the Pennsylvania Legislature enacted the State Ethics Act, of which 65 P.S. § 403(b) is a part, it stated the purpose of the Act as follows:
The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure.
1978 Pa.Laws 883. (emphasis added).
The stated purpose of the Legislature was to assure the public that the financial interests of public officials would not conflict with their duty to place the interests of the public before all other considerations. This is a much higher duty than the simple duty to refrain from engaging in bribery. Therefore, acquittal on a bribery charge does not determine elements necessary for prosecution pursuant to § 403(b).
Additionally, Cherpes makes a separate argument that under the principles of res judicata, the grant of a motion for judgment of acquittal on § 4701(a)(1) bars conviction on § 403(b). We disagree for many of the same ...