Commonwealth v. McSorley

150 A.2d 570, 189 Pa. Super. 223, 1959 Pa. Super. LEXIS 399

• Court: Superior Court of Pennsylvania
• Decided: April 16, 1959
• Docket: Appeal, 51
• Status: Published

Opinions

Opinion by

Gunther, J.,

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.

Prom 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 appeal-able.

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. Section 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 findei, 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, 372 Pa. 223, 93 A. 2d 455 (1953).

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 et al., 345 Pa. 576, 28 A. 2d 792; McNair’s Petition, 324 Pa. 48, 187 A. 498; Commonwealth v. Hubbs (No. 2), 137 Pa. Superior Ct. 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 et al., 116 Pa. Superior Ct. 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 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. section 652(d). 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 á 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. Dal'to, a turnpike employe, assigned to Evans as a clmuffeur for a period of 8 months at a cost, to the Commission of approximately $2800 paid, by-it: to Daltoin 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 act² 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. The evidence did not disclose that the defendant had any knowledge that Dalto was to be granted vacation leave for January 9, 1956, or that the leave slip was to be dated back. None of these circumstances nor the inferences therefrom, either singly or collectively, show any corrupt motive.

What was the motive of the defendant in supplying Evans with a chauffeur at Turnpike expense? The Commonwealth would certainly admit that he did not do so to acquire any present or future personal financial gain. There is no evidence from which it could be concluded that the motive was political gain or reward for the defendant or his political party or political friends. (Evans was a Republican and McSorley, a Democrat). There is no evidence that McSorley and Evans were relatives or friends. (They did not know each other until McSorley Avas appointed to the Commission). There is no evidence from which it could be inferred that McSorley or any person or organization with which he was associated, ever received or hoped to receive any personal favor or thing of value from Evans or from any person or persons he might influence.

McSorley testified that when he became Chairman of the Commission, which Avas during a hundred million dollar construction program with which Evans was familiar, he Avas anxious to have Evans available for advice and suggestions, thus utilizing his long experience as a member and Chairman of the Commission, and that after discussing this Avith Evans, he gave him a chauffeur paid by the Commission so that he might be driven to Harrisburg and be willing to give information to the new chairman. The expenditure of $2800 of the Commission’s money to secure advice on a hundred million dollar project from one Avith experience noAvhere else available, negatives a finding of criminal intent or corrupt motive.³ There was evidence by the Commonwealth’s witnesses that Evans came to the Commission offices after the chauffeur was assigned to him, and that he did consult with Mc-Sorley.

But McSorley’s explanation of his motive could have been rejected by the jury, and therefore, we cannot use it to determine the defendant’s motive. If there would appear in the evidence anything from which the jury could find that the defendant’s motive was corrupt, we would be required to sustain the conviction. The evidence which could sustain this conviction might indicate a benefit or gain to the defendant, his political party, his relative, his friends, or the hope thereof, but there is absolutely nothing in the evidence upon which the jury could infer any such benefit or gain. Furthermore, the defendant had two distinct presumptions in his favor which had to be overcome by positive evidence. The first of these was the presumption of innocence. The presumption of innocence is a conclusion drawn by the law in favor of the accused and when he is brought to trial, he must be acquitted unless proved to be guilty beyond a reasonable doubt. This presumption does not shift and remains with the accused during the entire trial.

The second presumption, involving public officers, has been firmly established in our law. In Matson v. Margiotti, 371 Pa. 188, 88 A. 2d 892, the Supreme Court, said that “an official act of a public official is presumed to have been performed in accordance with the law and in good faith and with the proper motive, i.e., for the purpose of promoting the public good and protecting the public interest.” In Hill v. Alexander et al., 338 Pa. 26, 32, 11 A. 2d 884, the Court laid down the following general principle: “. . . honesty of purpose and good faith in the performance of acts in their official capacity will be assumed by the courts on the part of persons holding responsible public positions, until the contrary clearly appears . . .” In Barnes et al. v. Scranton Poor District, 105 Pa. Superior Ct. 149, 160 A. 241, we said: “The presumption is that the acts of executive officers are done for public good. When their actions are challenged, the burden of showing to the contrary rests on those asserting it, and it is a heavy burden . . .” This presumption shifts if, and only if, the Commonwealth proves both elements of the crime here involved. The presumptions here involved, strongly imbedded in our law, cannot be overcome by vague references to inferences to be drawn from circumstances proved. The former is positive and the latter is negative in the sense that one must supply that which is found to be lacking.

In passing on the inferences relied on by the Commonwealth, we must point out that the inferences drawn by it could be equally drawn in favor of the defendant. In Commonwealth v. New, 354 Pa. 188, 221, 47 A. 2d 450, the following pointed observation was made by the Supreme Court: “When two equally rear, sonable and mutually ■ inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty. When a party on whom rests the. burden-of proof-in either a criminal or a. civil case, offers evidence consistent-with two opposing propositions, he proves neither.”-

The case relied upon by the Commonwealth is not applicable here to show a corrupt motive. The case of Commonwealth v. Brownmiller, 141 Pa. Superior Ct. 107, 14 A. 2d 907, is clearly distinguishable. In that case, the Secretary of Highways employed over 9,000 employes in Luzerne County before an election, a great majority of whom did no highway work, did not report for duty but worked in a political campaign. The motive shown there was to win an election through the padding of the payroll. The testimony revealed that Brownmiller approved a plan continuing the work in that county and signed a letter authorizing the transfer of funds to the maintenance account of Luzerne County, and that until November 7, 1938, the day before the election, the number of men had increased to more than 18,000 when 368 men normally could have manned the 734 miles of State highway.

There is nothing in the Commonwealth’s case here to show that the defendant was dishonest. There was no testimony to indicate that he, his relatives, his friends, his political party, or any organization or association in which he may have been interested, were the recipient of any type of remuneration, reward or favor in return for assigning Dalto to Evans. No attempt was made to explain, as proof of a corrupt motive, why such action was taken by the defendant or to show that the Commission received no benefit from such an arrangement. While Dalto testified that during the period here involved he did no work for the Commission, if in fact Evans performed services for the Commission, the fact that Dalto drove for Mr. Evans would prove just the contrary. The testimony of a Commonwealth witness disclosed that during the first two months after Evans left the Commission, both Evans and Dalto were in Harrisburg every week for a day or so and were seen in the office of the Commis* sion. Under these circumstances, it is difficult to understand why the Commonwealth failed to produce evidence, if it had any, to show that the Commission in fact received no benefit from the arrangement involved and to show a corrupt motive on the part of the defendant.

We are of the opinion that there is no evidence from which the jury could have inferred a corrupt motive on the part of the defendant.

The judgment of the court below is reversed and the defendant is discharged.

1 This act is poorly drafted. It contains a duplication of the word “may”. It refers to a motion on the grounds “that the evidence was insufficient to sustain the charge,” and refers to the action of the court on that motion by stating, when it “shall decide that there is not sufficient evidence to sustain the conviction,” it shall discharge the defendant. It was poor draftmanship to change the language from “evidence was insufficient” to “there is not sufficient evidence” and from “sustain the charge” when referring to the motion, to “sustain the conviction” when referring to the action of the court on the motion. The proper word to use was neither “charge” nor “conviction” but “verdict.” The expressions “face of the record” and “entire record” in the act use the word “record” in two different meanings.

The Attorney General’s message to the Governor recommending his signing this into law pointed out the errors in language, foresaw the confusion exemplified by this case, and concluded as follows: “While these words may cause confusion, we are, nevertheless, of the opinion that the bill is an improvement in criminal procedure, will expedite the work of the court, and result in fairer treatment of a defendant.”

2 Commonwealth v. Kloiber, 378 Pa. 412, 106 A. 2d 820; Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743.

3 Between the time McSorley made the arrangement with Evan and the time of the trial in this case, Evans was charged and found guilty of criminal acts connected with the Turnpike. This undoubtedly had its effect upon the jury in this case, but there is no reason to believe that McSorley had any reason to questhm the knowledge, experience, ability and integrity of Evans at the time he succeeded him as chairman.