Commonwealth v. Hershman

• Citation: 90 A.2d 314,171 Pa.Super. 134
• Decision Date: 17 July 1952
• Docket Number: 7590
• Parties: COMMONWEALTH v. RENNEKAMP (two cases).
• Court: Superior Court of Pennsylvania

90 A.2d 314

171 Pa.Super. 134

COMMONWEALTH v. RENNEKAMP (two cases).

No. 7590

Superior Court of Pennsylvania

July 17, 1952

Argued April 14, 1952.

Application for Allocatur Granted October 3, 1952

Appeals Nos. 56 to 62, inclusive, April T., 1952, from order of Court of Quarter Sessions of Allegheny County, Feb. Sessions, 1951 Nos. 655, 679 and 680, in cases of Commonwealth of Pennsylvania v. David Hershman, Same v. Nicholas Antonelli and Same v. Alice Rennekamp.

Indictments charging defendant and others with various offenses.

Orders entered quashing indictments, before Kennedy, Smart and Nixon, JJ., opinion Per Curiam. Commonwealth appealed.

Harry A. Estep, with him Earle T. Adair and Robert A. Doyle, Deputy Attorneys General, for appellant.

James P. McArdle, with him P. J. McArdle, for appellees.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ. Judge Gunther would affirm the order as to all counts.

OPINION

HIRT, J.

On petition of the Attorney General of the Commonwealth the Court of Quarter Sessions of Allegheny County directed that a special grand jury be impaneled to investigate alleged lack of law enforcement in certain boroughs within the County of Allegheny. The grand jurors called for that purpose when sworn, were instructed by the court as to their duties and the restrictions upon the scope of their inquiry. The investigation with which we are concerned has to do with the Borough of McKees Rocks. In its presentment the grand jury reported that it had heard more than 100 witnesses and examined bank accounts, deposit slips and checks and other exhibits including the Dockets of proceedings at hearings held by the Burgess of the Borough. From the evidence before it the investigating grand jury in the present presentment recommended the indictment of David Hershman, Burgess of McKees Rocks, for Misdemeanor [i.e., malfeasance] in Office. The special grand jury recommended other prosecutions in McKees Rocks. The presentment was filed in the court below on January 18, 1951 and thereupon the Attorney General was ordered by the court "to submit to a [regular] Grand Jury for its consideration the indictments as recommended in said Presentment". Three indictments, so ordered, were filed on February 23, 1951. They charged David Hershman, and other officers of the borough with various offenses. After the bills were returned by the regular grand jury, they were quashed on motion of the defendants by order of the lower court en banc. Although the Commonwealth appealed from the orders in each instance, the Deputy Attorney General appearing for appellant limited his argument before us to the first count of Bill No. 655 and agreed that the orders otherwise may be affirmed.

The first count of that bill and the only count with which we are concerned, charges that: "David Hershman, late of the County aforesaid, on the eighth day of December in the year of our Lord One Thousand Nine Hundred and Fifty, and divers other times prior to that date, at the County aforesaid and within the jurisdiction of this Court, being then and there a lawfully elected Burgess of the Borough of McKees Rocks, a municipal corporation under the laws of the Commonwealth of Pennsylvania, and being then and there duly qualified and acting as such Burgess of the Borough of McKees Rocks, did then and there wilfully misbehave himself in said office in that he knowingly, wilfully, and corruptly and in violation of his oath of office procured, permitted, and allowed Nicholas Antonelli, Chief of Police of said Borough of McKees Rocks, and all other subordinate officers or employees of said Police Department, to fail to enforce the laws of the Commonwealth of Pennsylvania, and in the official performance of his duties as such Burgess failed to enforce the laws of the Commonwealth of Pennsylvania by knowingly, wilfully, corruptly, and unlawfully permitting the commercial operation of houses of ill fame, gambling, houses frequented by persons for lewd and unchaste purposes, houses and places where intoxicating liquors were sold without license and contrary to the laws of the Commonwealth of Pennsylvania, and knowingly, wilfully, and corruptly permitted vice and corruption to exist in an open, notorious manner in the Borough of McKees Rocks and to the great scandal, dishonor and prostitution of the public justice of said Commonwealth, to the evil example of all others in like case offending and against the peace and dignity of the Commonwealth of Pennsylvania." (Italics supplied)

On motion of that defendant the court had ordered the Commonwealth to submit a bill of particulars. The opinion of the lower court indicates that it considered the bill of particulars as interpretive of the indictment and taking the view that proof of the facts to the extent so particularized could not sustain the charge, quashed the indictment in the exercise of its discretion. The well-settled rule is stated in Com. v. Hegedus, 44 Pa.Super. 157, 159, as follows: "Whilst it is true that a motion to quash a bill for matters dehors the record is addressed to the discretion of the court, a discretion regulated by judicial rule,...