Com. v. McSorley

• Decision Date: 16 April 1959
• Citation: 189 Pa.Super. 223,150 A.2d 570
• Parties: COMMONWEALTH of Pennsylvania v. G. Franklin McSorley, Appellant.
• Court: Pennsylvania Superior Court

Page 570

150 A.2d 570

189 Pa.Super. 223

COMMONWEALTH of Pennsylvania v. G. Franklin McSorley, Appellant.

Superior Court of Pennsylvania.

April 16, 1959.

Carl B. Shelley (of Shelley, Reynolds & Lipsitt), Warren G. Morgan, Harrisburg, Harold E. McCamey (of Dickie, McCamey, Chilcote & Robinson), Pittsburgh, for appellant.

Huette F. Dowling, Dist. Atty., Mary E. Hoerner, Asst. Dist. Atty., Harrisburg, Alfred P. Filippone, Isaiah W. Crippins, Deputy Attys. Gen., Thomas D. McBride, Atty. Gen., for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

GUNTHER, Judge.

Defendant, G. Franklin McSorley, has appealed his conviction and sentence in the Court of Quarter Sessions of the Peace of Dauphin County for misbehavior in office. This charge grew out of an investigation of the Pennsylvania Turnpike Commission by a Grand Jury which investigation was requested by the Attorney General of Pennsylvania, alleging misconduct by various persons in the Turnpike Commission. The Attorney General's petition, however, made no reference to the defendant.

On January 18, 1957, the Grand Jury made its report and presentment in which it recommended the indictment of the defendant for malfeasance, misfeasance and nonfeasance.

On January 21, 1957, before indictment, defendant moved the court to quash that part of the presentment which involved him, assigning the reason that the presentment was not within the scope and limitations placed upon the investigation by the court. This motion was overruled and on January 23, 1957, pursuant to an order of the court below directing the district attorney to prepare indictments in accordance with the offenses charged in the presentment, the regular Grand Jury returned a true bill charging defendant with malfeasance, misfeasance and nonfeasance in office. Thereafter, a motion to quash the indictment was presented on the grounds that the presentment, upon which the indictment was based, was not within the authority of the investigating Grand Jury; that remarks concerning the case made by the Governor on radio and television just prior to the convening of said body were prejudicial, and that the prosecuting officers improperly participated in its deliberations and erroneously advised the special Grand Jury. This motion was denied.

From such action an appeal was filed to this Court and on March 18, 1957, after argument, we quashed the appeal for the reason that the order of the Court of Quarter Sessions of Dauphin County dismissing defendant's petition, was interlocutory and not appealable.

On November 12, 1957, the defendant was brought to trial and, at the conclusion of the Commonwealth's evidence, the defendant's demurrer was overruled. A point for binding instructions was likewise refused and the jury returned a verdict of guilty. Motions for new trial and in arrest of judgment were made and refused and the defendant sentenced. This appeal followed.

Two questions are raised for our consideration: (1) Under the Act of June 15, 1951, P.L. 585, 19 P.S. § 871, should the motion in arrest of judgment, because of insufficiency of evidence to sustain the conviction, have been granted; and (2) should the presentment of the investigating Grand Jury and the indictment subsequently found thereon be quashed? As our disposition of the first question effectively disposes of this appeal, we shall not consider the second question.

The Act of June 15, 1951, P.L. 585, supra, ¹ imposes upon the court the duty to consider the entire record to determine whether there is sufficient evidence to establish the guilt of the defendant. The court was not given jurisdiction to pass upon the credibility of the witnesses, or to review the evidence as a fact finder, or to determine whether it would have arrived at the same verdict as the jury did. We must, therefore, reject all of the defendant's evidence which the jury had a right to disbelieve. After a verdict of guilty, we must accept as true all of the Commonwealth's evidence upon which the jury could have properly based its verdict. Commonwealth v. Phillips, 1953, 372 Pa. 223, 93 A.2d 455.

The common law crime of misfeasance in office has been clearly defined by our appellate courts to mean either the breach of a positive statutory duty or the performance by a public official of a discretionary act with a corrupt motive. Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792; McNair's Petition, 324 Pa. 48, 187 A. 498, 106 A.L.R. 1373; Commonwealth v. Hubbs (No. 2), 137 Pa.Super. 244, 8 A.2d 618. Misconduct or malfeasance in office in its penal sense is not merely error in judgment or departure from sound discretion, but the act, omission or neglect must be wilful, corrupt and amount to a breach of duty legally required by one who has accepted public office. Commonwealth v. Brown, 116 Pa.Super. 1, 175 A. 748.

It is conceded by all that the defendant violated no positive statutory duty in the performance of the alleged acts here involved. An examination of the Pennsylvania Turnpike Northeastern Extension Act of September 27, 1951, P.L. 1430, 36 P.S. § 660.1 et seq., clearly discloses this to be a fact. The General Assembly has constituted the Pennsylvania Turnpike Commission as an instrumentality of the Commonwealth and, therefore, a member of the Turnpike Commission is a public officer. See Act of May 21, 1937, P.L. 774, 36 P.S. § 652d. The Commonwealth had to prove, therefore, that the defendant performed a discretionary act with a corrupt motive. In order to sustain this conviction, the Commonwealth had the duty to prove the act complained of and that the defendant acted from a corrupt motive.

The facts of this case are not complicated. The defendant, a prominent businessman, with no former governmental experience, was appointed a member of the Pennsylvania Turnpike Commission. After serving a few months he replaced as chairman, T. J. Evans, who had been a member of the commission for approximately 16 years. After McSorley became chairman, Evans was not on the payroll of the Turnpike or the Commonwealth. The evidence establishes that immediately after Evans was replaced as a member of the Commission, McSorley had David J. Dalto, a Turnpike employe, assigned to Evans as a chauffeur for a period of 8 months at a cost to the Commission of approximately $2,800 paid by it to Dalto in salary. Dalto drove exclusively for Evans, and those for whom Evans asked him to drive. He furnished no other service to the Commission or to the Commonwealth.

Whether this act of McSorley was good practice or sound judgment is not for our consideration in this case; we are concerned with whether the act was criminal. If McSorley had a corrupt motive, it was. If this motive in assigning the chauffeur to Evans was to obtain gain for himself or his political party, or to bestow a gratuity upon a relative or a friend or a political ally at the expense of the Commonwealth, his motive would be corrupt and he would be guilty of the offense charged. The Commonwealth need not present detailed testimony to establish the motive, but evidence must be produced which discloses facts from which a corrupt motive can be inferred.

Criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743. The jury may not be permitted to guess or surmise at an evil or corrupt motive.

The Commonwealth relies on three sets of circumstances from which, it argues, an inference of corrupt motive may be deducted. First it relies upon the fact that the defendant on three occasions between July 1, 1955 and March 1, 1956 publicly acknowledged that Dalto was performing services for Evans. This merely is evidence of the admitted fact that McSorley assigned Dalto to drive for Evans, but is no evidence of his motive or his reason for assigning the chauffeur. Next it argues that the fact that defendant directed Dalto to perform personal services for Evans after the termination of the latter's term of office as a member of the Pennsylvania Turnpike Commission would of itself raise the inference of a corrupt motive.

Establishing by sufficient evidence the act of assigning the chauffeur to Evans for his personal use does not automatically establish the corrupt motive. The act and the motive are separate issues to be separately determined. A corrupt motive can be inferred from the act ² only within a climate of facts which makes that inference reasonable.

The third circumstance upon which, the Commonwealth argues, a corrupt motive can be inferred, involves a 'leave' granted Dalto when he became injured in an automobile accident. The evidence disclosed that on January 9, 1956, Dalto, while driving Richard Evans, the son of T. J. Evans, was involved in an automobile accident in which Richard Evans was fatally injured and Dalto received injuries requiring hospitalization.

William H. Cooper informed the defendant of the accident and suggested to him that he, Cooper, would place Dalto on sick leave. The defendant concurred in that suggestion. Thereafter, Cooper left defendant's office without any further conversation in regard to Dalto and obtained a blank leave slip which he delivered to William J. Roberts, controller for the Commission. The leave slip was filled out by Roberts and dated January 6, 1956. The leave granted Dalto, however, was a one day vacation leave for January 9, 1956. Cooper testified that the slip was made out by the personnel department, whereas Roberts testified that the information was obtained from Cooper. The evidence clearly shows, therefore, that the entries made on the leave slip were prepared by persons other than the defendant.

The defendant's only connection with the leave was to acquiesce in the statement by Cooper that he would place Dalto on sick leave....