Commonwealth v. Binns

54 Pa. D. & C.2d 106, 1972 Pa. Dist. & Cnty. Dec. LEXIS 558
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJanuary 13, 1972
Docketnos. 1808 to 2047, 1728 to 1807, and 1718 to 1727
StatusPublished

This text of 54 Pa. D. & C.2d 106 (Commonwealth v. Binns) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Binns, 54 Pa. D. & C.2d 106, 1972 Pa. Dist. & Cnty. Dec. LEXIS 558 (Pa. Super. Ct. 1972).

Opinion

SMITH, J.,

Each of these defendants stands accused of a number of instances of wrongdoing, allegedly committed in the course of performance of his duties while employed as a clerk by the Prothonotary of Philadelphia County. The Commonwealth asserts that each, while charged with the duty of receiving and officially stamping papers being filed for institution of legal actions, accepted sums of money from the persons filing them in return for predating them to dates earlier than those of actual filing, and then secreted, destroyed, altered or [108]*108otherwise falsified records of the office to conceal the irregularity. Defendant Binns is charged with having done this on 24 occasions, Gargiulo eight times, Brennan once.

The Commonwealth charges that each such instance of alleged misconduct constitutes 10 different violations of law, i.e. embezzlement by tax collector (18 PS §4823); false entries, destroying and abstracting public records (18 PS §4323); bribery of servants and employes (18 PS §4667); embezzlement by public officers (18 PS §4822); destroying or mutilating books of a corporation (18 PS §4846); bribery of governmental officers and employes (18 PS §4303); forgery and defacing records (18 PS §5020); larceny by employe (18 PS §4815); malfeasance, misfeasance, nonfeasance and misbehavior and misconduct in office (a common law offense); and conspiracy (18 PS §4302).

Each violation so charged has been made the subject of a separate single-count indictment, with the result that Binns is made defendant in 240 indictments, Gargiulo in 80, Brennan in 10. All 330 are presently before the court on applications by all three defendants for various forms of pretrial relief.

I. APPLICATIONS TO QUASH FOR PRETRIAL PUBLICITY

In support of this motion, defendants urge that news media publicity given these charges at the time defendants were discharged and arrested was so widespread and so violently prejudicial as to make their receiving a fair trial an absolute impossibility not merely in Philadelphia County but anywhere in the Commonwealth. On the considerations urged at oral argument of this motion and careful evaluation of the exhibits attached to defendants’ applications, [109]*109the hearing judge is unable to so conclude. The normal safeguard against widespread prejudice engendered by pretrial publicity and public excitement is a motion for change of venue. Such motion may always be made if actual examination of successive panels of veniremen, before trial, indeed shows it would be difficult to the point of real impossibility to select an unprejudiced jury. Also, the information developed through that process of jury selection is likely to be much more trustworthy and direct than a judgment attempted at this juncture as to how widespread and damaging was the effect of the news media publications to which reference is made. It is begging the question to argue unprejudiced jurors cannot be found in Philadelphia, because anyone who declares himself unaffected by the publicity is either lying, doltish, a pauper or a recluse; this assumes the publication has totally infected the mental climate of the community, the very fact at issue. Neither is the court persuaded, should grounds for change of venue prove to develop, that the communities of very many counties of the Commonwealth have so much as heard of these cases, let alone predetermined them adversely to defendants. The applications to quash on this ground are denied.

II. APPLICATIONS FOR CONTINUANCE

For the same reasons, defendants’ motions to have trials of the cases postponed indefinitely until the assertedly adverse effects of pretrial publicity have been dissipated, are denied. The hearing judge does not, on the present showing, deem the public notice given the matter so damaging as to require such a postponement, even were trial being held soon after the date of the news publications. The 10 months already elapsed since the time of the publications [110]*110or other statements from public officials to which defendants object is, in the court’s opinion, a sufficient interval to dissipate such prejudice, if any, as those utterances may have engendered. Nor is there any present occasion, in the court’s judgment, for issue of an order restraining further statements, by either news or official sources, concerning these cases. Public interest in the matter, on present evidences, is at nowhere near such high pitch as to require such a safeguard.

III. APPLICATIONS FOR SEVERANCE

The hearing judge is persuaded that the trial of each defendant should be severed from that of the others. The wholly disproportionate number of occasions of wrongdoing of which any one defendant is accused, in comparison with another, presents the grave risk that a single jury would confuse the issues of guilt or innocence of the individual defendants, and be inflamed by sheer weight of numbers of proofs into verdicts of guilty of all defendants, or acquittal of those accused of fewer occasions of wrongdoing. The applications for severance are granted.

IV. APPLICATIONS FOR SEVERANCE OF CHARGES

The applications for separate trial of each offense, or of each group of offenses charged as arising out of the same occasion of alleged wrongdoing, are denied. After careful consideration, the hearing judge concludes that the several instances of wrongdoing charged, though of different date, have far more elements in common than diverse. Difference in defense arising from such factual diversity of one occasion from another does not appear unduly burdensome, while, on the other hand, the Commonwealth has [111]*111some claim to be spared repeated production of the same witnesses, and to have its jury and judicial man-hours conserved.

V. APPLICATIONS FOR COPIES OF STATEMENTS AND DISCOVERY

These applications are moot, and are considered by the hearing judge to be withdrawn, in view of the agreement of prosecution and defense counsel announced to the court that the public records of each suit supposedly the occasion of each defendant’s wrongdoing, would be made accessible to defense counsel for study, and copying desired by him. It is the hearing judge’s view, however, that defense counsel should be at liberty to examine not only the parts of the record of each case to which the public normally is entitled to have access, i.e. the docket and the case jacket and file, but any of the internal administrative records of the prothonotary’s office relating to the cases concerned, or covering the dates involved, not normally available to the public, as daily records of filing charges paid, sequential records of file numbers or court terms assigned to suits newly instituted, etc., and any other internal administrative record existing in the office relating, whether by reference or omission, to the 33 suits allegedly backdated. To the extent defense counsel may deem it necessary, he or they should be entitled to a disclosure of and an opportunity for an examination of all such records in the presence of a designate of the prothonotary, and defense counsel may apply to this court for such an order, if necessary.

VI. APPLICATIONS TO SUPPRESS STATEMENTS

These applications are denied. The warnings of constitutional privilege against selfincrimination mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.

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Bluebook (online)
54 Pa. D. & C.2d 106, 1972 Pa. Dist. & Cnty. Dec. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-binns-pactcomplphilad-1972.