Commonwealth v. Richard

• Decision Date: 18 May 2000
• Citation: 751 A.2d 647,561 Pa. 489
• Parties: COMMONWEALTH ex rel Mark C. BALDWIN, District Attorney, County of Berks, Appellee, v. Eden RICHARD, Jr., Appellant.
• Court: Pennsylvania Supreme Court

751 A.2d 647

561 Pa. 489

COMMONWEALTH ex rel Mark C. BALDWIN, District Attorney, County of Berks, Appellee, v. Eden RICHARD, Jr., Appellant.

Supreme Court of Pennsylvania.

Submitted February 5, 1998.

Decided May 18, 2000.

Michael J. Cammarano, Reading, for Cammarano & Tract.

Mark Baldwin, Dist. Atty., Richard P. Reynolds, Ellen R. West, Asst. Dist. Attys., for the Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

This direct appeal¹ raises the issue of whether a conviction for a crime that is neither a felony nor a crimen falsi offense constitutes an infamous crime for purposes of Article II, Section 7 of the Pennsylvania Constitution, which prohibits those who have been convicted of infamous crimes from holding public office. The common pleas court held that such offenses constitute infamous crimes. For the reasons that follow, we reverse.

The record establishes that in 1979, Eden Richard, Jr., Appellant, held his former girlfriend at gunpoint in an automobile for three hours at a parking lot in King of Prussia, Montgomery County. On August 14, 1979, he pled guilty in the Montgomery County Court of Common Pleas to unlawful restraint,² terroristic threats,³ firearms not to be carried without a license,⁴ possession of an instrument of crime⁵ and recklessly endangering another person.⁶ The court accepted Appellant's guilty plea and sentenced him to five years probation, a $500 fine and mandatory psychiatric treatment.

Eight years later, in November 1987, Appellant was elected to a four-year term as a borough councilman in the Borough of Birdsboro, Berks County. He was sworn into that position on January 11, 1988, and completed his term on December 31, 1991. Appellant was re-elected as a borough councilman in November 1993, and was sworn into office on December 29, 1993.⁷

On January 12, 1994, the District Attorney of Berks County, Appellee, commenced this quo warranto action in the Court of Common Pleas of Berks County.⁸ The action sought Appellant's removal from his borough council position on the grounds that Appellant was ineligible to hold office because his 1979 convictions constituted "infamous crimes" under Article II, Section 7 of the Pennsylvania Constitution.⁹

The parties filed cross-motions for summary judgment and the trial court heard oral argument. The court ruled that because Appellant's convictions disqualified him from serving as a juror, they constituted infamous crimes. By order dated December 23, 1996, the trial court granted the Commonwealth's motion for summary judgment and ordered: (1) that Appellant be removed from his present borough council position; (2) that the borough council seat be declared vacant effective immediately; and (3) that Appellant be precluded from holding any office of public trust or profit in the Commonwealth. This appeal followed.

Before we address the significant issue of whether Appellant's convictions constitute "infamous crimes," we must first dispose of Appellant's other arguments in support of reversing the lower court's decision. Appellant first claims that the trial court lacked jurisdiction over this action because his removal from office constituted an additional sanction that altered the terms of his Montgomery County plea agreement and sentence. According to Appellant, because the acts underlying the criminal conviction all occurred in Montgomery County, this quo warranto action should have been brought in the Court of Common Pleas of Montgomery County. We disagree.

By alluding to "punishment," Appellant mistakenly likens a quo warranto action seeking to remove a person from office pursuant to Article II, Section 7 of the Pennsylvania Constitution to a criminal proceeding. The purpose of removing one from public office under these circumstances is not to punish the officer. Instead, it is to assure the requisite good character of those individuals whom our citizens look to for governance. In In re Petition of Hughes, 516 Pa. 90, 532 A.2d 298 (Pa.1987), this Court quoted approvingly from a decision by the Supreme Court of Delaware explaining the purpose of a provision of the Delaware Constitution which was similar to Article II, Section 7:

To fully understand the operation of Art. II, § 21 [of the Delaware Constitution], it is necessary to examine its purpose. In our view, it is essentially a character provision, mandating that all candidates for State office possess high moral qualities. It is not a provision designed to punish an offender. While conviction of an infamous crime does not imply that an offender is incapable of functioning as a respected and productive member of society, it is irreversible evidence that the offender does not possess the requisite character for public office....

Petition of Hughes, 532 A.2d at 302 (emphasis added). Thus, Appellant's removal from office did not constitute an additional sanction that in any way affected the terms of his Montgomery County criminal plea agreement and sentence.

Moreover, Rule 1112(b) of the Pennsylvania Rules of Civil Procedure provides that:

An action brought in a court of common pleas in the name of the Commonwealth on the relation of the District Attorney may be brought only in the county where the political subdivision is located when the action is against an officer thereof.

Pa.R.Civ.P. 1112(b).

Here, because Appellant was a councilman in the Borough of Birdsboro, a political subdivision in Berks County, Rule 1112(b) required the Berks County District Attorney to bring the present action in the Court of Common Pleas of Berks County. Accordingly, Appellant's jurisdictional claim lacks merit.¹⁰

Appellant next claims that the trial court erred in declining to grant his motion for summary judgment on the ground that the quo warranto action is barred by the doctrine of laches because there was an unreasonable delay in the Commonwealth's filing of the action. The doctrine of laches bars relief when the plaintiff's dereliction indicates a lack of due diligence in failing to institute an action and such failure results in prejudice to another. Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329, 1332 (1977). The party asserting laches as a defense must present evidence demonstrating prejudice from the lapse of time. Commonwealth v. Gilligan, 195 Pa. 504, 46 A. 124 (1900). Such evidence may include establishing that a witness has died or become unavailable, that substantiating records were lost or destroyed, or that the defendant has changed his position in anticipation that the opposing party has waived his claims. Kay v. Kay, 460 Pa. 680, 334 A.2d 585, 587 (1975). Because Appellant fails to present any evidence demonstrating that the alleged delay in instituting the present action caused him prejudice, this issue is without merit.

Finally, we address whether Appellant's convictions for four misdemeanors of the first degree and one misdemeanor of the second degree are "infamous crimes" for purposes of Article II, Section 7 of the Pennsylvania Constitution.¹¹ Appellant argues that because his crimes were not felonies and were not in the nature of crimen falsi, they are not infamous crimes. He argues that the common pleas court improperly focused solely upon the definition of infamous crime as one which rendered a person incapable of serving as a juror and failed to take into account the historical meaning of that term.

In the seminal case of Commonwealth v. Shaver, 3 Watts & Serg. 338 (1842), our Court quoted Webster's Dictionary as defining "infamy" as "that loss of character, or public disgrace which a convict incurs, and by which he is rendered incapable of being a witness or juror." Id. at 342 (emphasis deleted). The Court proceeded, however, to explain in great detail what types of offenses rendered one incompetent to be a witness and were therefore "infamous." We stated:

The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi—such as forgery, subornation of perjury, attaint of false verdict, and other offences of the like description, which involve the charge of falsehood, and affect the public administration of justice.

Id. (emphasis supplied).

Our Court has consistently applied this definition without employing a mechanical rule whereby we deem a crime infamous solely on the grounds that it disqualifies one from serving as a juror.¹² Instead, we have analyzed the facts and circumstances surrounding the crime and determined whether the offense at issue was akin to those set forth in Shaver.

In the case of In re Greenberg, 442 Pa. 411, 280 A.2d 370 (1971), a common pleas court judge was convicted of conspiracy to use the United States mail to perpetrate a fraud to "kite" bank checks.¹³ The issue was whether such conviction constituted an infamous crime as set forth in Article V, Section 18 of the Pennsylvania Constitution, concerning the removal of public officers "on conviction of misbehavior in office or of any infamous crime." In resolving the issue, our Court examined the nature of the crime and concluded that the federal crime of using the mails to defraud fell within the ambit of the above-quoted Shaver classification. The Court did not even mention, let alone rely on whether the fraud conviction rendered the judge incompetent to serve as a juror.

We employed a similar analysis in In re Petition of Hughes, 516 Pa. 90, 532 A.2d 298 (1987). There, a city councilman accepted $10,000 in exchange for promising to vote for a particular hotel project. He was convicted in federal court of conspiracy to obstruct interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a), in connection with the incident. In determining whether such offense constituted an infamous crime pursuant to Article II, Section 7, we again cited with approval the Shaver description of infamous crime.

Our Court then examined the nature and...