Commonwealth v. Bellis
| Decision Date | 11 July 1980 |
| Citation | 279 Pa.Super. 421,421 A.2d 271 |
| Parties | COMMONWEALTH of Pennsylvania, v. Isadore H. BELLIS, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Sept. 12, 1979.
John Rogers Carroll, Philadelphia, for appellant.
Bernard L. Siegel, Deputy Dist. Atty., Philadelphia, for Commonwealth, appellee.
Before SPAETH, HESTER and WATKINS, JJ.
This appeal comes to us from the Court of Common Pleas, Criminal Division, and involves the defendant-appellant's appeal from his convictions of the common law crimes of misfeasance malfeasance, and nonfeasance in office. Defendant had been charged with conspiracy, extortion and the common law crimes. He was acquitted of the conspiracy and extortion charges. Defendant was tried first in the Municipal Court of Philadelphia County and then appealed his conviction for a de novo trial before the Court of Common Pleas of Philadelphia County. He was tried before a jury and convicted of the common law crimes on March 4, 1977. On September 28, 1977 defendant was sentenced to a term in prison of two (2) to seven (7) years and fined $9,000 plus the costs of prosecution. He now appeals his conviction of the common law crimes.
At defendant's trial it was established that the defendant was an elected member of the City Council of Philadelphia and its majority leader. It was also established that one John Betts was an architect who was interested in obtaining contracts for design work for buildings at the Philadelphia International Airport. At this time one Joseph Daly was an assistant to the Treasurer of Philadelphia Democratic City Committee. Bellis was a member of the Democratic Party, the majority political party in Philadelphia.
In May, 1971 Betts was invited to lunch by Bellis at the Locust Club in Philadelphia. Bellis had told Betts that he wanted Betts "to meet some people from downtown" which Betts understood to mean that he was to meet some people from the Democratic City Committee. This meeting was initiated by Bellis according to Betts' testimony. Bellis also invited Daly to the same lunch. At this time Bellis knew Daly, knew of his position in the Democratic Party, and had known him "long before he had anything to do with anybody at City Committee". At the time of the lunch meeting Daly "was aware that Betts was involved in planning of an airport structure at the International Airport ... through ... the grapevine."
During the lunch meeting Bellis left the table. At that point Daly and Betts began discussing Betts' work at the airport. They discussed the amount of the budget for the contract, Betts' fee, and how the work was proceeding. The fee was not to exceed $180,000. Daly then told Betts that it was "customary for architects to give 5% of their fee to the Democratic City Committee". Betts immediately agreed to do this. No details of the pay-off were discussed at that time, Bellis returned to the table, and no further discussion of the contracts took place at that time.
In June of 1971, Betts received a design contract for $5,000. On or about June 28, 1971, Bellis called Betts and requested Betts to give "them some money at this time". Bellis told Betts that he should give "us" $4,000. On June 29, 1971, Betts went to the Philmont Country Club were he gave Bellis an envelope containing $4,000 in cash. Bellis placed the envelope into his pocket. In October of 1971, Betts received the final contract with the City for an additional fee of $175,000.
On July 26, 1972 Bellis phoned Betts and requested an additional $5,000 "contribution" and on July 27, 1972 Betts gave an envelope containing $5,000 to Bellis at the Stouffer Restaurant in downtown Philadelphia bringing the total amount given to Bellis by Betts to $9,000. The cash payments of $9,000 made to Bellis amounted to 5% of the $180,000 engineering design contract fee.
On April 2, 1975, Bellis and Betts had a conversation during which Betts told Bellis that Betts had been informed that there was no record of Betts' giving a donation to the Democratic City Committee. Bellis told Betts that the money had been "spread around the party". It was also established that the Philadelphia City Council had the "final say" as to what was to be approved for capital improvements at the airport.
Defendant's first argument on appeal is that his convictions of the common law crimes should be reversed because of the existence of specific statutory crimes which deal with the conduct of which the defendant was charged. As authority for this proposition the defendant cites former 18 P.S. § 5104 which provides that:
"In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions 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." [1]
Thus, if the defendant's actions amount to violations of statutory criminal enactments his convictions of the common law charges of misfeasance, malfeasance, and nonfeasance in office cannot be sustained.
Misfeasance in office 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". Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942). Malfeasance in office has also been defined as the "breach of a positive statutory duty or the performance of a discretionary act with an improper or corrupt motive." McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). Thus, it is clear that the terms malfeasance in office and misfeasance in office are often used to describe the same conduct or at best two different modes of committing the same offense. Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975). We will, therefore, use the terms interchangeably.
In Commonwealth v. Dolny, supra, we held that a defendant may be convicted of malfeasance and nonfeasance in office although he is acquitted of bribery and conspiracy because the crime of bribery does not proscribe the same conduct as the common law offenses of misfeasance, malfeasance and nonfeasance in office. We held that the reason for this was because a conviction of bribery may only be sustained where the evidence establishes that the offender accepted or agreed to accept a monetary payment for his action. The common law offenses of which defendant was convicted require only that the actor have an "improper or corrupt motive". This analysis is applicable to the instant case which involved a statutory charge of extortion rather than bribery because the charge of extortion (former 18 P.S. § 4318 ), as is the case of the crime of bribery, required that the actor receive, take, or agree to receive a "fee or reward" for his conduct which "fee or reward" was not established by law. Thus, it would appear at the outset that the distinction between the statutory crimes of bribery and extortion, on the one hand, and the common law crimes of misfeasance, malfeasance and nonfeasance in office, on the other hand, is the fact that the former (statutory offenses) require, as an element of the offense, that the defendant improperly received or agreed to receive some monetary payment or other "reward" in return for his conduct while in the latter (common law crimes) all that is required is that the actor be motivated by an "improper" or "corrupt" motive.
However, in the case of Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979), the Supreme Court reversed the defendant's conviction of the offenses of malfeasance, misfeasance, and nonfeasance in office, citing former 18 P.S. § 5104 (). In that case the defendant was convicted of bribery and the common law crimes. The Supreme Court reversed the convictions on the common law crimes but affirmed the bribery conviction. The Commonwealth attempts to distinguish that case from the instant case by pointing out that in our case the defendant was found not guilty of extortion (which we have found to be analogous to the crime of bribery for our purposes here as discussed above) and guilty of the common law crimes. This, the Commonwealth argues, strongly indicates that no statutory remedy did in fact exist which was co-extensive with the common law crimes. A close analysis of that opinion, however, reveals no such rationale advanced therein. The Court in that case merely held that since a statutory penalty existed for defendant's misconduct Section 5104 precluded conviction for the common law offenses. The Court stated in its opinion:
The Court then went on to cite Section 5104, discussed that section's application to the case of Commonwealth v Peoples, supra, and reversed defendant's conviction of malfeasance, misfeasance, and nonfeasance in office. In so doing, the court stated that: "A statutory penalty (Section 4667) exists for appellant's misconduct; therefore, pursuant to Section 5104, appellant cannot be punished for his misconduct based in a violation of the common law (malfeasance)." Commonwealth v. Bellis, supra. We interpret this holding to mean that if the defendant could have been convicted of the statutory offense, consistent with the facts adduced during the trial of the case, then he could not also be convicted of the common law offenses. Whether or not he was in fact convicted of the statutory offenses does not matter. ...
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Com. v. Bellis
...421 A.2d 271 279 Pa.Super. 421 COMMONWEALTH of Pennsylvania, v. Isadore H. BELLIS, Appellant. Superior Court of Pennsylvania. Argued Sept. 12, 1979. Filed July 11, 1980. [279 Pa.Super. 422] John Rogers Carroll, Philadelphia, for appellant. Bernard L. Siegel, Deputy Dist. Atty., Philadelphia......