Com. v. Bardascino
| Decision Date | 16 June 1967 |
| Citation | 210 Pa.Super. 202,232 A.2d 236 |
| Parties | COMMONWEALTH of Pennsylvania v. Joseph BARDASCINO, Appellant. COMMONWEALTH of Pennsylvania v. Ruth MARMON, Appellant. |
| Court | Pennsylvania Superior Court |
Frank F. Truscott, Joseph Sharfsin, Leon W. Silverman, Philadelphia, for appellant Marmon.
John A. McMenamin, Asst. Dist. Atty., Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, for the Commonwealth.
These are appeals from the judgment of sentence by the defendants-appellants, Ruth Marmon and Joseph Bardascino, imposed after convictions on indictments charging bribery, extortion, violation of the Magisterial Act of 1937 and conspiracy.
The facts upon which the convictions were based were largely uncovered as a result of an investigation of the Philadephia Magisterial system conducted by the Attorney General of Pennsylvania and may be summarized as follows:
On August 29, 1963, a Thursday, Mr. and Mrs. Walker contacted John J. Welsh, a committeeman and state assemblyman, in the hope that he could do something with regard to Mr. Walker's arrest that morning on a lottery charge.
The next morning Welsh awaited the arrival of the defendant Marmon outside the police court in which she was to preside as magistrate that day. He spoke to her upon her arrival pleading Walker's noninvolvement in the numbers business. Magistrate Marmon said, 'it would be $100 or $1,000 bail.' Under the arrangement, she would discharge for $100. In the alternative, she would hold Walker for court on $1000 bail, the premium for which would be the equivalent of the proposed bribe.
Welsh then told Marmon that one Crittendon, the Walker's lodger, was the true culprit. Crittendon heard part of the conversation. At the hearing for Walker, Walker was discharged and Crittendon was held for a hearing the next day at the instigation of Magistrate Marmon. Crittendon was thereupon arrested and held for a hearing, Saturday, August 30, 1963.
On Saturday morning Magistrate Marmon beckoned Welsh to approach the bench and told him it was 'still a $100 or $1000 bail.' Welsh reported this to the Walkers Monday was Labor Day. The Walkers could not withdraw the balance from their bank. Welsh telephoned Marmon's office and was informed by her regularly appointed clerk that Bardascino was not there. Bardascino called Welsh that night and arranged another appointment for noon Wednesday at Welsh's office. Having obtained the $50 from Walker on Tuesday, the balance of the bribe was to be given by Welsh to Bardascino when he kept the Wednesday appointment. Welsh then paid the balance of $50 to Bardascino. Since convictions were had the above summary of facts are taken in the light most favorable to the Commonwealth.
but they only had $50. This was reported to Magistrate Marmon and she told Welsh to 'talk to my clerk', indicating the defendant Bardascino, then sitting beside her on the bench. Bardascino took Welsh into a side room. He took the $50 from Welsh for the payoff and made arrangements for payment of the $50 balance. Crittendon was discharged.
Appellants raise numerous questions alleging many errors in the trial and charge to the jury. We will attempt to dispose of them in an orderly fashion.
First, they contend that the investigation and prosecution by the Attorney General were in violation of Section 907 of the Administrative Code and without legal basis.
This is patently incorrect. Section 907 of the Administrative Code established one means by which the attorney general may be brought into a criminal proceeding in any of the several counties of the Commonwealth. This, however, is not a limitation on the overall powers and duties of the office. He is the chief law enforcement officer of the Commonwealth, and is charged with the duty of seeing that the law throughout the Commonwealth is enforced, and he has the power and duty to investigate alleged violations thereof and take such enforcement steps as may be necessary. Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952). He has all the powers and attributes of attorneys general under the common law. Appeal of Margiotti, 365 Pa. 330, 75 A.2d 465 (1950); Com. ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1937).
The action of the attorney general in the instant cases was taken after a request to the Governor by several judges of Philadelphia County; he acted at the direction of the Governor and carried out his investigation with the assistance and cooperation of the District Attorney of Philadelphia County.
Appellant Marmon contends that the statements presented in the complaint to the magistrate issuing the warrant for arrest were not sufficient to allow the magistrate to make an independent determination of probable cause. The complaint was executed and sworn to by an investigator for the Department of Justice, was presented to a judge of the Court of Oyer and Terminer of Philadephia County sitting as a committing magistrate and was as follows:
It is enough if the information states a criminal offense committed by defendant, its general nature, and its time and place. The information must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. Where the information sets forth some detail of the circumstances, where there is reason for crediting the source of the information which is disclosed, and when a magistrate has found probable cause, we should not invalidate warrants by interpreting the affidavits in a hyper-technical, rather than a common sense manner. We find there was sufficient information and probable cause for issuance of the warrants. Com. v. Amertrane, 205 Pa.Super. 567, 210 A.2d 902 (1965). It should also be noted that the defendants waived a hearing before the court sitting as a committing magistrate.
Appellant Bardascino contends that under the circumstances there was so much pre-trial confusion that he did not have a reasonable opportunity to challenge the array of the grand jury. From the record it appears there were two arrests and three separate presentments to the grand jury and three sets of indictments. Warrants for the arrest of appellants were issued by Judge Sloane on July 14, 1965 and the appellants were arrested on July 15, 1965, were preliminarily arraigned before the same judge on July 21, 1965 and bills presented to the grand jury on August 12, 1965 and the appellants were indicted that same day.
At this time, because of petitions for writs of habeas corpus, motion to quash warrants, stay orders and phone calls, confusion reigned supreme.
The Attorney General, in order to protect the record from any future contingencies, on August 20, 1965, filed a new complaint against both appellants before Judge Carroll of the court below who, the same day, issued warrants for their arrest. Appellants were again arrested on August 23, 1965, a preliminary hearing was set for August 27, 1965 at which time both waived the hearing and on August 30, 1965, with the statute of limitations about to run on several of the charges, they were again indicted. These same bills were again presented to the grand jury and another set of indictments had on October 28, 1965.
Appellant Bardascino, by his attorney, notified the Attorney General by letter on August 27, 1965 that he intended to challenge the array, but took no further action. The term for this grand jury started on August 2, 1965.
Appellant relies on the case of Com. v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), in which the defendant was held for action by the grand jury by a magistrate and indicted the same day. The Supreme Court discussed the new Rule 203 of the Rules of Criminal Procedure, 19 P.S. Appendix, and the question of the violation or circumvention of defendant's constitutional rights because of a speedy indictment not giving the defendant a reasonable opportunity to challenge the array at page 187 as follows: Rule 203 provides: (Adopted June 30, 1964; effective January 1, 1965).
'Rule 203. Objections to Grand Jury and Grand Jurors.
'Either the attorney for the Commonwealth or a defendant who has been held to answer may challenge the array of jurors or an individual grand juror. A challenge to the array may be made only on the ground that the grand jury was not selected, drawn, or summoned substantially in accordance with law. An individual grand juror may be challenged on the ground that he is not legally qualified or that a state of mind exists on his part which may prevent him from acting impartially. All challenges must be made before the jurors are sworn unless opportunity did not exist prior thereto; in any event a challenge must be made before the bill of indictment is submitted to the grand jury. All challenges shall be heard and determined by the court. If a challenge to the array is sustained, the grand jury shall be discharged, if a challenge to an individual grand juror is...
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