Com. v. Froelich

• Decision Date: 16 October 1974
• Parties: , 70 A.L.R.3d 1146 COMMONWEALTH of Pennsylvania, Appellant, v. Wesley W. FROELICH, Appellee.
• Court: Pennsylvania Supreme Court

Page 364

326 A.2d 364

458 Pa. 104, 70 A.L.R.3d 1146

COMMONWEALTH of Pennsylvania, Appellant, v. Wesley W. FROELICH, Appellee.

Supreme Court of Pennsylvania.

Oct. 16, 1974.

William H. Lamb, Dist. Atty., F. Ned Hand, Asst. Dist. Atty., West Chester, for appellant.

John E. Stively, Coatesville, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

Appellee Froelich was indicted and found guilty before a jury of the statutory crimes of blackmail and extortion. Post-trial motions were filed and the trial court after argument granted a motion in arrest of judgment and the Commonwealth appealed. The Superior Court affirmed, Per curiam, without opinion. Commonwealth v. Froelich, 224 Pa.Super. 745, 301 A.2d 884 (1973). We granted allocatur and we now reverse.

Where, as here, a jury has convicted the defendant of certain charges and the Commonwealth appeals from the trial court's grant of a motion in arrest of judgment, our task is to determine whether the evidence offered by the Commonwealth was sufficient to support the jury's verdict. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). To sustain the trial judge, we must find that,

'. . . accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed the jury could properly have based its verdict, it would be nonetheless insufficient in law to find beyond a reasonable doubt that the appellee is guilty of the crime charged.'

Commonwealth v. Blevins, Supra, 453 Pa. at 483, 309 A.2d at 422. See also, Commonwealth v. Williams, 455 Pa. 539, 316 A.2d 888 (1974); Commonwealth v. Ponton, 450 Pa. 40, 299 A.2d 634 (1972); Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970); Commonwealth v. Frye, 433 Pa. 473, 252 A.2d 580 (1969).

A review of the record satisfies us that the jury had ample evidence upon which it could properly support its finding of guilt on the bill of indictment charging blackmail and also the indictment charging extortion. We therefore hold that the trial court was in error in the grant of a motion in arrest of judgment and that the verdict of the jury must be reinstated.

The indictment charging blackmail was based upon section 801 ¹ of the penal code which provides:

'Whoever by means of written, printed or oral communications, intimidates, or levies blackmail, or extorts money, property or other valuable thing from any person or by such means attempts to intimidate, annoy, or levy blackmail, or extort money, property or other valuable thing from any person, is guilty of a misdemeanor. . . .'

In Commonwealth v. Neubauer, 142 Pa.Super. 528, 16 A.2d 450 (1940), the Superior Court in discussing substantially the same language as that appearing in Section 801 ² properly observed:

'To extort is to wrest from, to exact, to take under a claim of protection, or the exercise of influence contrary to good morals and common honesty. Threats and violence may be used but are not necessarily involved in the offense described. The exercise of dishonest ingenuity in creating the impression of influence to protect from crime may amount to the exacting of money or other property.' (citations omitted) 142 Pa.Super. at 533, 16 A.2d at 452.

The other indictment charging extortion was drawn under the Act of June 24, 1939, P.L. 872, § 318; 18 P.S. § 4318 which provides:

'Whoever, being a public officer, wilfully and fraudulently receives or takes any reward or fee to execute and do his duty and office, except such as is or shall be allowed by some act of Assembly, or receives or takes, by color of his office, any fee or reward whatever, not, or more than is, allowed by law, is guilty of extortion, a misdemeanor. . . .'

The criminality described in this section consists in the willful and fraudulent receipt of and/or taking a reward or fee by color of office.

Although the taking of or receipt of the fee or reward must be under the color of the official's office, this does not necessarily mean to imply that it must be taken for an act or service which he has a duty to perform or even that he must have the power, by virtue of the authority vested in him, to perform the act. It is sufficient if the official asserted that he possessed the power to perform the act for which the fee was received. Commonwealth v. Wilson, 30 Pa.Super. 26 (1906).

With this understanding of the nature of the charges we must turn to the evidence produced during the course of the trial. The Commonwealth offered testimony to establish that Wesley Froelich, the appellee, was a duly certified justice of the peace and in that capacity had received a criminal complaint accusing one Sydney Kaufman of the crime of rape. After his arrest, Kaufman appeared before the appellee for the pourpose of having bail set. During this proceeding Froelich is alleged to have suggested a particular individual to post bond to avoid having the matter 'go to West Chester and then we cannot pay those pigs (apparently referring to the complainants) off.' The next meeting between Kaufman and Froelich occurred at the time of the preliminary hearing. Kaufman described the conversation that then took place as follows:

'A Mr. Froelich told me that it would be in my best interest, because it would preserve my reputation, my job, my wife and family, and all kinds of sad stories; he told me that he could avoid me from having--by paying those pigs off--that is his words--and I told him--

'Q Do you know who he was referring to?

'A. Yes.

'Q Who?

'A These ladies that--like Miss Long and Miss Goodwin.

'Q And he said you could avoid all this by--

'A Yes, and it would only be $700. So I told him for no money at all I would want them, if they accused me of rape, and they do it unjustly, then let them go to San Quentin. That is what I told him, and furthermore, I told Mr. Froelich, I don't have any money of that kind. I showed him that I only had a $10 bill of my own and I showed him money that belonged to the company out of another pocket, and while I was telling him that this is not my money, it is company money, he took that money out of my hands, and said, that will quiet those pigs down.

'Q How much money was there?

'A $200.'

'Q And what did Mr. Froelich say to you at that point?

'A He said to me, to go outside and wait on the grass and he told everybody in the adjacent courtroom, which is in the basement, he told us to walk out, there is a storm door, something like an open door that you can go from the outside into the basement, and he told us all to go on the grass.

'A few minutes later he opened the door; he says, 'It is all over, can go home.' That is the whole story. . . .

'Q What did he tell you he was going to do?

'A He was going to call these women and tell them, it is all over.'

The evidence further established that the prosecution was terminated after that proceeding and that although the principal complainant did agree to the withdrawal of the charges, she testified that she did not receive any money from the appellee.

From this testimony the jury was free to find, as it apparently did, that a public officer, under the color of his office, unlawfully took a fee to discharge a duty of his office or in the alternative to refrain from performing his duty depending upon whether they viewed the termination of the proceedings at that juncture appropriate in view of the complaint's agreement to withdraw the charges. In either event the charge under section 318 would then have been established. The testimony also supports the finding that the appellee exacted from Kaufman upon a promise to exercise influence contrary to good morals the sum of $200. Thus, the finding of guilt under section 801 was also appropriate.

The court below, however, interpreted our decision in Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955) as requiring a degree of consent on the part of the victim in cases of extortion and blackmail that would be incompatible...