Commonwealth v. Walker
| Decision Date | 23 April 1982 |
| Citation | 444 A.2d 1228,298 Pa.Super. 387 |
| Parties | COMMONWEALTH of Pennsylvania v. Clarence WALKER, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Oct. 19, 1981.
Louis S. Criden, Philadelphia, for appellant.
Jane C. Greenspan, Asst. Dist. Atty Philadelphia, for appellee.
Before BECK WATKINS and HOFFMAN, JJ.
Pursuant to 18 Pa.C.S.A. § 903(a) [1] and 18 Pa.C.S.A. § 4701(a)(3) [2] , Appellant was charged with and, in a non-jury trial, convicted of multiple counts of criminal conspiracy and bribery [3] in connection with his former employment with the Sanitation Division of the Philadelphia Department of Streets. Subsequently, Appellant's post-verdict motions were denied, and two concurrent sentences of six to twenty-three months incarceration were imposed for the three counts of conspiracy and for three counts of bribery. Additionally, for the remaining counts of bribery, Appellant received seven years probation which was to run concurrently with the aforementioned sentences of imprisonment and which was conditioned upon restitution and payment of a fine. This is a direct appeal from the judgment of sentence. We affirm.
Before this Court Appellant argues alternatively, (a) that his prosecution was untimely; (b) that he was convicted under an unconstitutional statutory provision, and (c) that the court of common pleas abused its discretion in determining his sentence.
Appellant contends that his prosecution is barred by the time limitation of 18 Pa.C.S.A. § 108(c)(2) which, Appellant maintains, prevents prosecution for a crime more than three years after the crime was committed.
"When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded ...." 1 Pa.C.S.A. § 1921(b); Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). "[T]he language of a statute must be construed according to common and approved usage, and where possible it should be interpreted in a manner so as to give effect to each and every provision of the Act." Commonwealth v. Hill, 481 Pa. 37, 42, 391 A.2d 1303, 1306 n.6 (1978); 1 Pa.C.S.A. § 1903.
Section 108(c)(2) of the Crimes Code states in pertinent part:
(c) If the period [for prosecution] prescribed in subsection (b) [] ... has expired, a prosecution may nevertheless be commenced for:
....
(2) Any offense committed by a public ... employe in ... connection with his ... employment at any time when the defendant is in public ... employment or within two years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.
(Emphasis added.)
Construing identical language found in Section 108(c)(1) [4] of the Crimes Code, a provision parallel to Section 108(c)(2), this Court determined that "under § 108(c)(1), a prosecution may be commenced up to five years from the commission of the crime ...." Commonwealth v. Bidner, 282 Pa.Super.Ct. 100, 114, 422 A.2d 847, 854 (1980) (emphasis added), appeal denied, February 12, 1981; Commonwealth v. Maleno, 267 Pa.Super.Ct. 560, 407 A.2d 51 (1979). Moreover, in a footnote to Commonwealth v. Bestwick, 262 Pa.Super.Ct. 558, 569, 396 A.2d 1311, 1316 n.5 (1978), Judge Price interpreted Section 108(c)(2) as signifying "that the normal two-year statute of limitations [under 18 Pa.C.S. § 108(b) ] may not be extended for more than an additional three years in the case of a public ... employe committing an offense ... in connection with, his office." (Emphasis added.) See also Commonwealth v. Hawkins, --- Pa.Super.Ct. ---, 431 A.2d 1308 (1982).
Adopting Appellant's position would require this Court to construe the statutory phrase "in no case ... extend ... by more than three years" as being synonymous with "in no case ... extend ... to more than three years," contrary to the ordinary usage and meaning of the words. Furthermore, Appellant's interpretation of the statutory language would create a patently absurd result whereby certain offenses listed in Section 108(b) of the Crimes Code could be prosecuted within a period of five years from the date of their commission except where committed by a public officer or employe in which instances the time for prosecution would be restricted to a period within three years from the date of commission of the offenses. Such an interpretation conflicts with the introductory wording of Section 108(c) which states that the exceptions contained in Section 108(c) may be utilized if the usual period for prosecution under Section 108(b), i.e., either five years or two years depending upon the offense, has expired.
Therefore, because Appellant was duly prosecuted for offenses committed within five years of the commencement of the prosecution, Appellant's prosecution comported with the statutory time limitation of Section 108(c)(2) of the Crimes Code.
Next, Appellant asserts that 18 Pa.C.S.A. § 4701(a)(3) is unconstitutionally vague because its prohibition against a public servant's contravention of a "known legal duty" necessitates adherence to an indeterminable behavioral norm.
Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 116, 394 A.2d 932, 937 (1978). Where, however, the language of a statute is so imprecise that it fails to provide adequate notice of which acts it purports to render unlawful, the statute does not satisfy the mandates of due process and is void for vagueness. Commonwealth v. Bunting, 284 Pa.Super.Ct. 444, 426 A.2d 130 (1981); Commonwealth v. Jackson, 281 Pa.Super.Ct. 310, 422 A.2d 184 (1980), appeal denied, March 13, 1981. But "when an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness." Id. at 316, 422 A.2d at 187.
In the present case, over a four-year interval, Appellant, while a municipal employe, repeatedly and clandestinely accepted payments for facilitating the unlawful dumping of chemical wastes in city landfills. Appellant thereby acted in contravention of the requisites of Section 20-604(1) of The Philadelphia Code [5] and Sections 401(a) [6] and 610(1) [7] of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, 35 P.S. § 6018.401(a) and 35 P.S. § 6018.610(1). Since The Philadelphia Code and the Solid Waste Management Act thus provided "meaning referents" [8] by which the behavioral standard of Section 4701(a)(3), i.e., "legal duty," could be ascertained, Section 4701(a)(3) did not impose criminal responsibility where Appellant "could not reasonably understand that his contemplated conduct [was] proscribed." United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963).
Moreover, "the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged." Commonwealth v. Jackson, 281 Pa.Super.Ct. at 315-16, 422 A.2d at 186. Here, Appellant's supervisor testified that he advised Appellant (a) to prevent private dumping at city landfills, (b) to permit only government vehicles to dump at city landfills, and (c) to report any unauthorized dumping at city landfills. Despite these instructions from his supervisor, Appellant, for remuneration, not only allowed successive, unauthorized deposits of chemical company wastes at city landfills but also assisted in concealing the illegal deposits by using a bulldozer to cover the wastes. Appellant further aided the unauthorized dumpings through conspiratorial acts whereby Appellant shared his dishonest profits with other municipal employes to prevent their reporting the illegal dumpings. Thus, Appellant knowingly violated his public duty. See Commonwealth v. Weselyk, 268 Pa.Super.Ct. 569, 408 A.2d 1149 (1979), appeal denied, February 13, 1980, which also concerned Section 4701(a)(3).
Finally, Appellant argues that the court of common pleas abused its discretion by not conforming Appellant's sentence to the sentencing guidelines of 42 Pa.C.S.A. § 9721 (sentencing alternatives) and 42 Pa.C.S.A. § 9722 (probation). Specifically, Appellant argues that he should have received a sentence of probation and not of confinement. [9]
"Imposition of a proper sentence under the Sentencing Code ... is a matter vested in the sound discretion of the trial court, whose determination will not be disturbed on appeal but for a manifest abuse of discretion." Commonwealth v. Landi, 280 Pa.Super.Ct. 134, 138, 421 A.2d 442, 443 (1980); 42 Pa.C.S.A. § 9781. "Generally, the imposition of a sentence ... is left undisturbed on appeal because the trial court is in a better position to weigh the factors involved in this determination...." Commonwealth v. Bromund, 278 Pa.Super.Ct. 189, 201, 420 A.2d 493, 499 (1980).
The judge must ... state on the record the reasons for the sentences imposed .... This statement of reasons must show that ... the judge attached weight to the factors set forth in the statutory guidelines for sentencing, and carefully considered the facts concerning the circumstances of the offense and the character of the defendant.
Commonwealth v. Maxwell, 280 Pa.Super.Ct. 235, 243, 421 A.2d 699, 703 (1980); 42 Pa.C.S.A. § 9721; Commonwealth v. Kraft, --- Pa.Super.Ct. ---, 440 A.2d 627 (1982).
In this case the court of common pleas received a presentence report and heard extensive...
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