Commonwealth v. Moran, Aplt

[J-99-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 39 MAP 2011
:
Appellee : Appeal from the order of Superior Court
: dated 08-16-2010 at No. 2281 EDA 2008,
: reconsideration denied 10-13-2010,
v. : affirming the judgment of sentence of
: Delaware County Court of Common Pleas,
: Criminal Division, dated 3-17-2008 at No.
FRED CHARLES MORAN, : CP-23-CR-0004579-2007
:
Appellant : ARGUED: May 9, 2012
: SUBMITTED: December 17, 2013
OPINION
MR. JUSTICE EAKIN DECIDED: November 20, 2014
This appeal by Fred Charles Moran challenges the sufficiency of the evidence in
support of his conviction for bribery in official and political matters, 18 Pa.C.S. § 4701. It
also raises the question of whether this is a strict liability crime, and if not, requires us to
determine the appropriate mens rea for such offense. We hold § 4701 is not a strict
liability crime; the mens rea for this offense is the Crimes Code’s “default” culpability
provision, id., § 302(c). As such, there was sufficient evidence to support appellant’s
conviction. We further hold that while the trial court erred in its instructions to the jury
regarding intent, such error was harmless here. Accordingly, we affirm.
In 2003, appellant was an elected member of the Board of Commissioners of
Haverford Township, Delaware County. The board decided to sell a 209-acre parcel of
land on which the former Haverford State Mental Hospital was located. Appellant and
Commissioner George Twardy comprised the “liaison committee” authorized to negotiate
with potential buyers on behalf of the township. The firm of Goldenberg-Pohlig (GP)
entered a preliminary sales agreement with the board, pursuant to which GP would pay
$30.65 million for 61 acres of the parcel, on which it would develop residential properties
and build six ball fields; GP paid a refundable $5 million deposit to the township.
In 2004, appellant and Twardy were removed from the liaison committee. One of
their replacements, Commissioner Andrew Lewis, believed the agreement with GP was
unworkable; he learned GP intended to develop an additional 15 acres beyond what it
paid for, and the ball fields could not be constructed due to steep topography. The board
formally rescinded the prior preliminary sales agreement and authorized the continuation
of negotiations with GP.
In November, 2005, the parties reached a new agreement; GP would pay $17
million for 38 acres, on which it would develop “age-restricted” condominiums and
carriage houses, along with single-family homes. The parties subsequently verbally
altered its terms, such that GP would donate an additional $500,000 to the township for
construction of a nature center or walking trails on the parcel; in exchange, the
condominiums and carriage houses were more loosely designated as “age-targeted” and
GP was no longer obligated to construct single-family homes. The board formally
approved these new terms and authorized preparation of a written final sales agreement.
On December 19, 2005, the board held a special public meeting to address a
looming revenue shortfall for the upcoming year. During the meeting, as Lewis recalled
in his trial testimony, appellant proposed accelerating the collection of real estate taxes as
a way to raise revenue; particularly, he suggested having GP pre-pay $500,000 of the
2006 realty taxes on the 38-acre parcel. See N.T. Trial, 11/19/07, at 104. When
another commissioner asked appellant why GP would consider pre-paying these taxes,
appellant responded, “[W]ell, maybe they want to accelerate this process, get it moving.”
[J-99-2013] - 2
Id. Appellant expressed displeasure with the prospect of budget cuts and stated the
township “should have income coming in from [the parcel].” Id. Lewis suggested he
and appellant call a representative of GP so appellant could present his proposal. Id.
The next day, Lewis and appellant had a phone conversation with Michael Lawry,
a principal with GP. Lewis informed Lawry the board was addressing a budgetary
shortfall and told him appellant had a proposal. Appellant then said to Lawry, “[C]all it
extortion, call it what you will. We need $500,000, and we’ll accelerate the zoning.
We’ll get you the zoning approvals you need and accelerate the process.” Id., at 112.
Lewis recalled Lawry asked whether the $500,000 was included in the $17.5 million, and
appellant indicated it would be added to the purchase price. See N.T. Trial, 11/20/07, at
93. Lawry responded he was not in a position to answer but would discuss the matter
with others at GP and get back in touch with appellant and Lewis. A few minutes later,
Lewis called Lawry back and told him, “I want no part of that conversation. Haverford
Township is not in the business of selling zoning.” N.T. Trial, 11/19/07, at 113. Lewis
testified he called appellant the next day and essentially told him the same thing. Id.
No one from GP took any formal action in response to appellant’s offer, and the
parcel’s sale price remained unchanged. The parties did not finalize a contract of sale
until April, 2007, which the board formally approved in May, 2007.
In April, 2007, appellant was charged with three counts of bribery, one for each of
the three subsections of 18 Pa.C.S. § 4701, which provides:
(a) Offenses defined.--A person is guilty of bribery, a felony of the third
degree, if he offers, confers or agrees to confer upon another, or solicits,
accepts or agrees to accept from another:
(1) any pecuniary benefit as consideration for the decision,
opinion, recommendation, vote or other exercise of discretion
as a public servant, party official or voter by the recipient;
[J-99-2013] - 3
(2) any benefit as consideration for the decision, vote,
recommendation or other exercise of official discretion by the
recipient in a judicial, administrative or legislative proceeding;
or
(3) any benefit as consideration for a violation of a known
legal duty as public servant or party official.
Id., § 4701(a).
At trial, appellant requested the trial court instruct the jury it could convict him only
upon proof of the mens rea prescribed in 18 Pa.C.S. § 302(c), which provides general
culpability requirements apply when a criminal statute does not include an explicit mens
rea.1 The trial court denied appellant’s request, concluding in light of the language of §
4701 and the compelling evidence of appellant’s intent, an instruction regarding § 302(c)
was unnecessary. Over appellant’s objection, the trial court gave a jury charge on
bribery that tracked the language of § 4701(a) and was substantially similar to
Pennsylvania Suggested Standard Jury Instruction 15.4701B.2 During deliberation, the
1 Specifically, § 302(c) provides: “When the culpability sufficient to establish a material
element of an offense is not prescribed by law, such element is established if a person
acts intentionally, knowingly or recklessly with respect thereto.” Id. (emphasis added).
2 The trial court charged the jury:
Ladies and gentlemen, you’ve been told here, and told again, that the
Defendant, Fred Moran, has been charged with Bribery. In order to find
him guilty of this offense[,] you must find the elements have been proven
beyond a reasonable doubt. First, that the Defendant solicited from
Michael Lawry the sum of $500,000 as additional payment for the purchase
of township real estate, and also that the money was solicited as
consideration for the decision, opinion or recommendation, vote or exercise
of discretion in land or zoning approvals of the Defendant as a public
servant. That [sic] is a Haverford Township commissioner. Or, also, the
Defendant solicit[ed] from Michael Lawry the sum of $500,000 as additional
payment for the purchase of township real estate, and also that the money
was solicited as consideration for the decision, vote, recommendation,
exercise of official discretion in land development and/or zoning approvals
(continuedK)
[J-99-2013] - 4
jury twice requested the trial court repeat the definition of bribery; the trial court reread its
initial charge both times, and appellant objected each time. The jury convicted appellant
of all three counts of bribery, and he was sentenced to an aggregate term of six months
probation and a $10,000 fine.
Following the denial of his post-sentence motions, appellant appealed to the
Superior Court, arguing the evidence was insufficient to establish he acted with the intent
to gain an unlawful benefit because he would not have received any direct or personal
benefit from the $500,000 he solicited from GP and Lawry. Appellant further claimed the
trial court abused its discretion in denying his requested jury charge regarding culpability
as defined in § 302(c).
(Kcontinued)
of the Defendant, the administration [sic] or a legislative proceeding. Or
also the Defendant solicited from Michael Lawry the sum of $500,000 as
additional payment for the purchase of real estate, and that the money was
solicited as consideration for a violation by the Defendant of the known legal
duty as a public servant. Specifically, a Haverford Township
commissioner. Under Pennsylvania law, a Haverford Township
commissioner has a duty to faithfully discharge the duties of this office, and
to refrain from receiving, directly or indirectly, any money or other value [sic]
thing in the performance or nonperformance of any act or duty. The term
benefits means a gain, or advantage or anything regarded by the Defendant
as gain or advantage. The benefit did [not] have to be a direct benefit to
the Defendant. The term benefit includes a benefit to any other person,
political party or entity in whose welfare the Defendant was interested. The
term public servant includes any Haverford Township commissioner.
Public proceedings and votes on resolutions and ordinances concerning
land development and zoning are conducted by the Haverford Township
Board of Commissioners, and are there for [sic] administrative and
legislative proceedings. If[,] after considering all of the evidence[,] you are
satisfied that the elements of Bribery have been proven beyond a
reasonable doubt, then you should find the Defendant guilty of Bribery.
Otherwise, you must find the Defendant not guilty of this charge.
N.T. Trial, 11/20/07, at 236-39.
[J-99-2013] - 5
The Superior Court rejected appellant’s sufficiency claim and found no abuse of
discretion in the trial court’s refusal to instruct the jury in conformity with § 302(c).
Commonwealth v. Moran, 5 A.3d 273, 275 (Pa. Super. 2010). In rejecting appellant’s
sufficiency claim, the court first noted while § 4701(a)(1) premises a conviction on receipt
of “pecuniary benefit,” 18 Pa.C.S. § 4701(a)(1), the definition offers no discussion of the
extent to which a bribe must benefit a defendant directly,3 and “subsections (a)(2) and
(a)(3) require only a ‘benefit,’ which need not be pecuniary[.]” Moran, at 279. Because
the definition of “benefit” encompasses indirect gain,4 it was irrelevant that appellant
would receive no personal enrichment from the transaction he proposed; the court found
no ambiguity in § 4701 regarding the prohibited conduct or the recipient of the benefit:
Plainly put, no person in public service may solicit a benefit as a quid pro
quo for his exercise of the official discretion he holds. Although that
prohibition extends, as [appellant] concedes, to those who would enrich
themselves, it extends no less to those who, under color of government
authority, extract a benefit payable to others.
Moran, at 280 (internal citations omitted). Accordingly, the court concluded appellant’s
attempt to secure half a million dollars to enrich the township in exchange for his exercise
of official discretion in expediting the zoning approval for GP fell within the ambit of
conduct proscribed by § 4701. Id., at 280-81.
Turning to the issue of culpability, the court noted the level of intent was arguably
implicit in the statute; the use of the phrase “solicits, accepts or agrees to accept,” which
are inherently volitional terms, indicated culpability “depends upon evidence of a
3 18 Pa.C.S. § 4501 defines “pecuniary benefit” as: “Benefit in the form of money,
property, commercial interests or anything else the primary significance of which is
economic gain.” Id.
4 18 Pa.C.S. § 4501 defines “benefit” as: “Gain or advantage, or anything regarded by the
beneficiary as gain or advantage, including benefit to any other person or entity in whose
welfare he is interested K.” Id. (emphasis added).
[J-99-2013] - 6
conscious mind, actively engaged in retaining the prohibited benefit.” Id., at 281. The
court acknowledged, however, it previously held the bribery statute does not specify the
required level of culpability, and therefore, § 302(c)’s general culpability standard was the
applicable mens rea for § 4701. Id., at 281-82 (quoting Commonwealth v. Parmar, 672
A.2d 314, 318 (Pa. Super. 1996)). 5 Thus, the court applied § 302(c)’s measure of
culpability, as adopted in Parmar, and concluded the “circumstances coupled with
[appellant]’s own blunt and forceful language ma[d]e his intent abundantly clear” and the
evidence was sufficient to sustain his conviction. Moran, at 282.
Based on the language appellant used in the conversation and the circumstances
surrounding it, the court further concluded the trial court’s refusal to instruct the jury
regarding the applicability of § 302(c)’s culpability provision was harmless error. Id., at
283 (citation omitted). While noting under Parmar, “courts are well-advised to instruct
the jury in accordance with [§ 302(c)] in prosecutions for bribery[,]” the court held § 4701’s
language suggested a conviction must be based on evidence of consciously engaging in
retaining the prohibited benefit; therefore, “[a] level of intent so implied in the substantive
elements of [§] 4701, which exceeds the threshold enunciated by [§] 302, obviously
satisfies [§] 302.” Id. Because appellant’s conduct was “flagrantly intentional,” the court
concluded the absence of an instruction on § 302 did not affect the verdict; the trial court’s
repeated instructions on the elements of the crime, using both § 4701 (defining bribery)
and § 4501 (defining benefit), were ample to guide the jury’s deliberation. Id.
Therefore, any error in refusing to charge the jury specifically on § 302(c)’s mens rea was
5 On appeal to this Court, the Superior Court’s decision was affirmed by an evenly
divided Court. Commonwealth v. Parmar, 710 A.2d 1083 (Pa. 1998). The Superior
Court did not reference or discuss this Court’s Parmar decision.
[J-99-2013] - 7
harmless, and appellant was not entitled to a new trial. Id. (citation omitted).
Accordingly, the court affirmed the judgment of sentence.
Judge Kelly dissented from the conclusion that refusal to instruct on § 302(c)’s
mens rea was harmless error. Relying on Commonwealth v. Woosnam, 819 A.2d 1198,
1206-07 (Pa. Super. 2003) (holding failure to instruct jury on 18 Pa.C.S. § 302(b)(4)’s
mens rea requirement of negligence, as applicable to 75 Pa.C.S. § 3742, was reversible
error warranting new trial), the dissent noted the jury twice asked the trial court to repeat
the definition of bribery and appellant’s counsel argued the jury may have been confused
by the lack of a culpability requirement in the bribery instruction given. Moran, at 284
(Kelly, J., dissenting). Thus, the dissent could not conclude beyond a reasonable doubt
that the trial court’s refusal to instruct the jury regarding § 302(c)’s culpability requirement
did not contribute to the verdict; Judge Kelly would have remanded for a new trial. Id.
(citation omitted).
We granted allocatur to address the following issues raised by appellant:
(1) Did the trial judge abuse his discretion in refusing to grant [appellant]’s
request that the jury be instructed that [appellant] cannot be convicted of
bribery unless the Commonwealth proves that [appellant] acted with
criminal intent? Could such an error be harmless in a case where the sole
issue was whether [appellant] acted with criminal intent?
(2) Was the evidence sufficient to prove beyond a reasonable doubt that
[appellant] was guilty of bribery under 18 Pa.C.S. § 4701 in the respect that
there was inadequate proof that [appellant] acted with criminal intent?
Commonwealth v. Moran, 17 A.3d 918 (Pa. 2011) (per curiam).
I. SUFFICIENCY OF EVIDENCE
We will first address the sufficiency of the evidence with respect to the requisite
intent under 18 Pa.C.S. § 4701. Appellant argues the evidence was insufficient because
although he “unwisely spoke of expediting the zoning process,” he did not do so with a
[J-99-2013] - 8
corrupt intent or the desire to gain an unlawful benefit. Appellant’s Brief, at 8. Appellant
avers he engaged in no criminal solicitation since he was merely attempting to persuade
GP to raise the purchase price it would pay for the parcel, and he neither requested nor
received any personal pecuniary benefit from GP. Appellant discounts the trial court’s
finding he would have received a benefit in the form of an enhanced political advantage in
the eyes of township voters, reasoning such “voter reaction analysis” is purely speculative
and could, in fact, trample on his constitutional rights to free speech and political
association. Id., at 10-11.
Appellant posits the Superior Court’s decision will create tremendous uncertainty
among governmental officials, as well as entities and individuals with legitimate business
interests before governmental bodies, since it allows any discretionary act by officials in
exchange for action by an entity or individual, such as having a land developer install a
park or improvements in exchange for the municipality’s waiver of an ordinance, to result
in a criminal prosecution for bribery. Appellant asks this Court, as a matter of policy, to
rule a public official should not be prosecuted for bribery simply because he used his
public position to enhance the amount of money received by the political entity that
elected him. Appellant contends the legislature did not enact § 4701 to punish
aggressive politicians but, rather, to protect the public from elected officials seeking to
achieve pecuniary or personal gain for themselves or their political allies.
The Commonwealth responds that, under the plain meaning of § 4701’s language
and § 4501’s definition of benefit, a person who offers to exercise official discretion in
exchange for a benefit need not receive the benefit personally to be guilty; in this view, a
person may be convicted as long as he is interested in promoting the welfare of a
beneficiary on whose behalf he is soliciting the benefit. The Commonwealth contends
the evidence proved appellant specifically linked the township’s expeditious zoning
[J-99-2013] - 9
approval to the payment of extra monies by GP; the township, an entity in which appellant
was interested as a politically elected official, a public servant, and a taxpayer, would
receive an extra $500,000 if appellant’s solicitation was successful. The Commonwealth
echoes the trial court’s position that appellant would also receive a personal benefit in the
form of esteem in the eyes of the community and fellow board members, as well as the
enhancement of future political aspirations. The Commonwealth claims these personal
rewards comport with § 4501’s definition of benefit, which includes “‘anything regarded by
the beneficiary as gain or advantage.’” Commonwealth’s Brief, at 25 (emphasis omitted)
(quoting 18 Pa.C.S. § 4501).
The Commonwealth additionally maintains appellant’s position would create an
affirmative “public servant” defense to the crime of bribery, exempting public officials if the
value they want in return for their action benefits a political entity or the public. The
Commonwealth argues such a defense would contravene the purpose of the statute,
which it perceives as the prohibition of “‘selling political endorsement or special
influence.’” Id., at 27 (emphasis omitted) (quoting 18 Pa.C.S. § 4701 cmt.). The
Commonwealth finds support for this assertion from the comment to § 240.1 of the Model
Penal Code (MPC), upon which § 4701 was based,6 which provides, “[P]ayments in
order K to respond to extortionate threats by public officials are within the prohibition [of
the bribery statute.]” MPC § 240.1 cmt. The Commonwealth views the exception
appellant proposes as harmful to the public welfare since it creates the likelihood that
favorable governmental action could be lawfully conditioned on the payment of money
into the public treasury; this would present significant constitutional concerns, offending
6 See 18 Pa.C.S. § 4701 cmt. (specifying that statute was derived from MPC § 240.1).
Model Penal Code § 240.1 differs only in that its subsection 2 does not cover legislative
proceedings, as does § 4701(a)(2), and the placement of the word “recipient” is different
in its subsection 1 than in § 4701(a)(1).
[J-99-2013] - 10
principles of equality, impartiality, and integrity, which have been the traditional hallmark
of governmental decision making.
Finally, the Commonwealth rejects the notion that appellant should be excused
simply because he subjectively believed he was acting only to promote the township’s
best interests. The Commonwealth contends such subjective belief is irrelevant under §
4701 since the statute does not require proof appellant acted with a corrupt purpose;
rather, in the Commonwealth’s assessment, all it must demonstrate is “the defendant’s
intentional, knowing, reckless, or negligent conduct ‘with respect to each material
element of the offense.’” Commonwealth’s Brief, at 31-32 (quoting 18 Pa.C.S.
§ 302(a)).7
In his reply brief, appellant disputes the Commonwealth’s assertion that a
conviction for bribery is proper where the benefits sought are for the public and not an
individual. Appellant notes the legislature exempted from § 4501’s definition of benefit
“‘advantages [sic] promised generally to a group or class of voters as a consequence of
public measures which a candidate engages to support or oppose.’” Appellant’s Reply
Brief, at 10 (quoting 18 Pa.C.S. § 4501). Appellant suggests “balancing of the
Township’s budget and the ability to avoid the need for a tax increase certainly fits within
this category.” Id. Appellant further contends the Commonwealth’s construction of
benefit disregards the principle that penal statutes are to be strictly construed. Appellant
points out municipal officials are duty bound “to govern in a manner that maximizes the
interests, safety and welfare of the public[,]” id., at 11 (citing 53 P.S. § 65607); thus,
appellant reasons, every discretionary action an elected official takes in furtherance of
7 Although in this portion of its brief, the Commonwealth seemingly endorses the
Superior Court’s view, expressed in Parmar, that § 4701 incorporates the default
culpability requirement of § 302(c), this position is at odds with its argument, infra, which
rejects the incorporation of § 302(c)’s default culpability requirements into § 4701.
[J-99-2013] - 11
this duty may be viewed as enhancing political capital under the Commonwealth’s view,
constituting conferral of a benefit, and hence criminal liability for the offense of bribery.8
Appellant’s sufficiency challenge is comprised of two basic claims: (1) he lacked
the criminal intent required by § 4701 to be convicted of bribery since he did not act with
corrupt motive in seeking to obtain extra money for the township in the sale of the parcel;
and (2) the $500,000 increase in the purchase price did not constitute a benefit within the
meaning of § 4501, since it would not have been received by him personally, but would
instead have gone to the township.
Disposition of appellant’s claims requires us to interpret §§ 4501 and 4701 to
determine whether corrupt motive and personal benefit are required to sustain a bribery
8 The Pennsylvania Intergovernmental Risk Management Association and the
Pennsylvania State Association of Boroughs (amici) have filed an amicus brief on behalf
of appellant, challenging the Superior Court’s statement that “‘no person in public service
may solicit a benefit as a quid pro quo for his exercise of the official discretion he holds.’”
Amicus Brief, at 13 (quoting Moran, at 280). Amici contend this is an overly broad
interpretation of § 4701, and echo appellant’s claim this violates the principle of strict
construction of criminal statutes. Amici further contend that, if the Superior Court’s
decision is left to stand, it “would improperly criminalize legitimate negotiation,
deliberation and decision-making by local governmental officials.” Id. They argue the
term “interested” as used in § 4501’s definition of benefit — “any other person or entity in
whose welfare [the beneficiary] is interested” — should be construed to mean a benefit
provided to third parties or businesses in which a public official or a member of the
official’s family has an interest. They contend this interpretation is consonant with the
definition of “conflict of interest” contained in the State Ethics Act, see 65 Pa.C.S. § 1102,
which amici aver should be read in para materia with the bribery statute.
Amici also discuss general due process principles, noting a criminal statute that is
not sufficiently definite in its terms and does not give persons of ordinary intelligence fair
warning may be void for vagueness; amici seemingly suggest the Superior Court’s
interpretation of the bribery statute may implicate these concerns. Appellant alludes to
this concern as well. See Appellant’s Reply Brief, at 13. However, since appellant
failed to raise any constitutional challenge to § 4701 below, we will not address such
constitutional questions. See Pa.R.A.P. 302(a) (issues not raised in lower court are
waived and cannot be raised for first time on appeal).
[J-99-2013] - 12
conviction under § 4701. “Because statutory interpretation is a question of law, our
standard of review is de novo, and our scope of review is plenary. In matters of statutory
interpretation, the General Assembly’s intent is paramount.” Commonwealth v. Hacker,
15 A.3d 333, 335 (Pa. 2011) (internal citation and quotation marks omitted) (citing 1
Pa.C.S. § 1921(a)). Generally, such “intent is best expressed through the plain
language of the statute.” Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (citations
and internal quotation marks omitted). Thus, “[w]hen the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing
its spirit.” 1 Pa.C.S. § 1921(b). “Every statute shall be construed, if possible, to give
effect to all its provisions.” Id., § 1921(a). In construing or applying a statute’s
language, we may consult official comments that were published or generally available to
the legislature prior to the statute’s enactment, to the extent such comments are
consistent with the statute’s text. See id., § 1939. Finally, as §§ 4501 and 4701 are
penal statutes, they are to be strictly construed, id., § 1928(b)(1), with any ambiguity
being interpreted in favor of appellant, see Commonwealth v. Clegg, 27 A.3d 1266, 1269
(Pa. 2011) (citation omitted). However, we are not required to give the words of penal
statutes their narrowest possible meaning or to disregard their common, approved usage;
penal statutes are to be read in accordance with the “fair import” of their terms. Hart, at
908 (citations omitted).
Turning to appellant’s claim that the Commonwealth was required to prove he
acted with a corrupt motive, we find no such requirement in § 4701’s language. As
previously noted, see n.6, supra, § 4701 almost entirely mirrors MPC § 240.1; thus, we
consider the official comments to § 240.1, which had existed for nearly a decade at the
time the legislature drafted § 4701. See 1 Pa.C.S. § 1939.
[J-99-2013] - 13
The early version of § 240.1 originally defined bribery as the purposeful attempt to
“influence corruptly” a public official. MPC § 208.10(1)(a) (Tentative Draft No. 8 1958).
However, the comments to the final version of § 240.1 indicate the term “corruptly” was
not included in the final version because the drafters believed this would obscure the
section’s scope of coverage — for example, by incorrectly suggesting one who justifies
his conduct by claiming he only sought to counter opposing offers or to influence an
official into making the right decision would not be guilty of bribery. See MPC § 240.1
cmt. at 196 (Proposed Official Draft 1962). Thus, because our General Assembly chose
to adopt the MPC’s formulation of bribery, which specifically deleted the limiting term
“corruptly,” we may presume the legislature endorsed the MPC’s dispensation with the
requirement of corrupt motive as an element of bribery. Since the legislature has chosen
not to include such requirement, we will not rewrite § 4701 to supply it. See
Commonwealth v. Mazzetti, 44 A.3d 58, 67 (Pa. 2012) (“This Court may not supply
omissions in a statute, especially where it appears that the matter may have been
intentionally omitted.” (citation and internal quotation marks omitted)). Accordingly, we
reject appellant’s contention that his bribery conviction cannot be sustained because he
lacked a corrupt motive.9
Regarding appellant’s contention that he did not solicit a pecuniary or other benefit
within the meaning of § 4501 because the money he solicited was to be paid to the
township, not to him personally, the lower courts recognized § 4501 defines “benefit”
9 Appellant’s argument that he lacked corrupt motive loses much of its force when one
considers his comment during the conversation — “[C]all it extortion, call it what you will.”
N.T. Trial, 11/19/07, at 112. A public official’s offer to trade special treatment for money
may be considered inherently corrupt, and appellant’s words bespeak clear awareness of
the extortionate nature of his solicitation. These words also evoke the unspoken other
side of the coin — the undeniable implication that if the party solicited does not pay, there
will be no zoning approval, much less an accelerated process.
[J-99-2013] - 14
broadly, so as to include situations where a public servant solicits money, gain, or
advantage for “any other person or entity in whose welfare he is interested[.]” 18 Pa.C.S.
§ 4501 (emphasis added). The definition covering solicitation on behalf of a third party,
such as a family member or spouse, is obviously included in the ambit of the statute.10 In
such situations, the public servant is still deemed the beneficiary, even though the benefit
is received by a third party.
Here, the question is whether the township is an “entity in whose welfare
[appellant] is interested[.]” 18 Pa.C.S. § 4501. Appellant’s argument that his motive
was solely to benefit the township clearly shows a considered interest, but neither § 4501
nor any other portion of the Crimes Code explicitly defines “entity,” “interested,” or
“welfare.” The parties advance conflicting yet viable interpretations of § 4701 as applied
here, such that a latent ambiguity exists, requiring us to resort to principles of statutory
construction for its resolution. See Commonwealth v. McCoy, 962 A.2d 1160, 1167 (Pa.
2009) (principles of construction are implicated where neither party’s argument regarding
interpretation of phrase in statute is so weak or implausible that statute can be called
unambiguous). To ascertain the legislature’s intent, we may consider: the occasion and
necessity for the statute; the mischief it remedies; the object to be attained; the former
law, including other statutes regarding the same or similar subjects; and the
consequences of a particular interpretation. 1 Pa.C.S. § 1921(c)(1), (3)-(6).
In examining § 4701’s background, we find its official comment to be of particular
significance. The comment establishes the General Assembly deliberately expanded
10 See, e.g., MPC § 240.1 revised cmt. at 24, 26 (1980) (explaining “benefit” is defined
comprehensively in order to “reach every kind of offer to influence official or political
action by extraneous incentives [such as] an offer to admit the child of a judge to a
particular school, college, or private club in exchange for favorable action on a case[,]”
and further explaining an offer of money to a wife or relative of a public official is punished
“on the same terms as K an offer directly to that official”).
[J-99-2013] - 15
the scope of the definition of benefit beyond conduct proscribed by § 4701’s predecessor
statute, 18 Pa.C.S. § 4303 (repealed),11 to include “every possible type of offer made or
designed to influence official action.” 18 Pa.C.S. § 4701 cmt. The comment further
emphasizes “this section is intended to prohibit selling political endorsement or special
influence.” Id.
There could be no clearer indication of legislative intent: the conduct § 4701 was
intended to address is the exchange of privileged treatment in any governmental process
for something of value. To ensure equality and impartiality in the legislative, judicial, and
administrative processes, public servants are prohibited from exercising their influence
more favorably for any person or entity willing to pay something of value, regardless of
whether that value inures to the benefit of the public servant or the entity served. The
statute’s aim is to prevent the purchase of special influence and to ensure public servants
retain the integrity in dealing that their position of public trust requires. Thus, payment to
a governmental entity — such as the township — in exchange for the promise of special
treatment — such as expediting the zoning process — by public servants who are officers
or employees of that same body falls within § 4701’s purview.12
We emphasize our holding applies only to situations where a public servant seeks
or receives a benefit on behalf of a governmental entity from a third party in exchange for
11The former bribery statute prohibited the payment, delivery, or alienation of any
“money, goods or other thing” to a class of enumerated government officials: “any
member of the General Assembly, or any officer or employe of this Commonwealth, or of
any political subdivision thereof, or any judge, juror, justice, referee or arbitrator[.]” Id.
12 We reject amici’s contention that the description of “benefit” found in the State Ethics
Act’s definition of “conflict of interest” is controlling. See 65 Pa.C.S. § 1102. The Ethics
Act imposes a civil, not criminal, penalty and, unlike § 4701, specifically limits the type of
benefit prohibited (pecuniary) and the category of recipient (the official, his immediate
family, or a business to which he or an immediate family member belongs).
[J-99-2013] - 16
the promise to exercise special influence in the governmental process. We do not read §
4701 as applying to situations where public servants seek benefits for the governmental
entity through the regular conduct of governmental affairs. It only becomes criminal
where there is some offer of special treatment in exchange for something of value given to
the official or the government entity he represents. From the standpoint of the public,
and in particular the party solicited, it is patently improper for an official to condition
successful or expedited completion of a legitimate process on payment of extra money —
that extortionate process is what the bribery statute manifestly addresses. The public
should not have the decisions of its officials affected by an applicant’s acceptance or
refusal of extra demands appended to the requirements of the lawful process. Neither
should an applicant face the dilemma of paying to obtain expeditious approval, or not
paying and facing continued uncertainty, non-expeditious treatment, and the potential
enmity of the soliciting township officials. While perhaps the product of factors not
relevant here, we are compelled to note GP chose not to pay, and finalization of the
November, 2005 agreement’s terms was not had for 18 months more.
Public servants may negotiate for a higher sales price for an asset owned by the
governmental entity, or negotiate restrictions or conditions on the use of public property
being sold. They may seek, during the ordinary course of the zoning process, to reserve
or acquire property for uses they deem beneficial to the public they represent. Section
4701 does not hamper such negotiating abilities; to the extent the Superior Court’s
decision may be read as such, as suggested by appellant and amici, we disavow it.
What public servants may not do is condition a “decision, opinion, recommendation, vote
or other exercise of discretion” upon a solicitation for benefits beyond those inherent in
the underlying transaction. Negotiating a higher price before agreeing to sell is one thing
— linking a higher price to expeditious approval of zoning matters is quite another.
[J-99-2013] - 17
Zoning approval may be a condition of sale, but it cannot be disregarded by the seller in
return for money or other benefit.
Applying these concepts to the instant matter, we conclude it was reasonable for
the jury to find appellant’s conduct in soliciting the extra $500,000 from GP was not
merely a continuation of the negotiation process or a savvy attempt to drive a hard
bargain. Rather, this was a specific promise of preferential treatment to GP in the zoning
process, in exchange for half a million dollars in excess of the purchase price. Clearly,
the jury was warranted in finding this was an offer to sell a specific zoning process and
outcome in exchange for a payment of money to the governmental body,13 and it was
within the type of conduct § 4701 was intended to prohibit. Perhaps Commissioner
Lewis put it best: a township cannot be in the business of selling zoning.
II. TRIAL COURT’S REFUSAL TO CHARGE JURY ON CRIMINAL INTENT
A. Applicability of 18 Pa.C.S. § 302(c)’s default culpability provision to
offense of bribery in official and political matters
We turn to appellant’s claim the trial court should have charged the jury that 18
Pa.C.S. § 302(c)’s default culpability requirements apply to § 4701. Appellant, relying on
the Superior Court’s decision in Parmar, argues § 4701 is not a strict liability statute and,
therefore, § 302(c) applies. He further contends the failure to instruct the jury in this
regard gave the jury the false impression that § 4701 is a strict liability offense and this
was not harmless error because his state of mind during his phone conversation with
Lawry was a critical issue.
13 Section 4701(b) provides, “It is no defense to prosecution under this section that a
person whom the actor sought to influence was not qualified to act in the desired way
whether because he had not yet assumed office, had left office, or lacked jurisdiction, or
for any other reason.” 18 Pa.C.S. § 4701(b). Thus, it is not an affirmative defense that
the defendant lacked actual power to carry out the promised action.
[J-99-2013] - 18
The Commonwealth argues § 4701 does not include a culpable state of mind as an
essential element of the offense, contending this signals the legislature’s intent to
abandon the traditional mens rea requirement. The Commonwealth points to the official
explanatory note to § 240.1 of the MPC, on which § 4701 is based, which specifies it
“abandons the usual focus upon ‘corrupt’ agreements or a ‘corrupt’ intent[.]”
Commonwealth’s Brief, at 16 (emphasis omitted) (quoting MPC § 240.1 explanatory note
(2001)). The Commonwealth also notes the Pennsylvania Suggested Standard Jury
Instructions do not include a specific statement regarding criminal intent as an element of
§ 4701. See Pa. SSJI (Crim) 15.4701A, 15.4701B. The Commonwealth further notes
only a plurality in Parmar agreed § 302(c)’s default culpability provisions apply to § 4701,
and thus, appellant’s reliance on that decision is misplaced. In the alternative, the
Commonwealth contends any error in the omission of an instruction on intent was
harmless because it did not alter the outcome of the trial; the record, including appellant’s
own characterization that his actions might comprise extortion, contains irresistible
evidence appellant’s statements to Lawry were undertaken with the specific purpose of
extracting additional money in exchange for preferential treatment in the zoning process,
i.e., with criminal intent.
To determine the propriety of the trial court’s jury instruction, we must address the
threshold issue of whether a mens rea is required by § 4701, and if so, which level. This
is a question of law; thus, our standard of review is de novo and scope of review is
plenary. Commonwealth v. Roebuck, 32 A.3d 613, 615 (Pa. 2011) (citation omitted).
We note absolute liability criminal offenses are “generally disfavored,” and, absent indicia
of legislative intent to dispense with a mens rea, a statute will not be held to impose strict
liability. See Commonwealth v. Mayfield, 832 A.2d 418, 426-27 (Pa. 2003) (citations
omitted). Although the imposition of strict liability is generally disfavored, this Court has
[J-99-2013] - 19
recognized the legislature may create statutory offenses dispensing with a mens rea in
fields that are essentially non-criminal in order “to utilize the machinery of criminal
administration as an enforcing arm for social regulations of a purely civil nature, with the
punishment totally unrelated to questions of moral wrongdoing or guilt.” Commonwealth
v. Koczwara, 155 A.2d 825, 827-28 (Pa. 1959). The penalty for such offenses
concerning the public welfare is generally relatively light. Id., at 827.
Although § 4701 does not contain an express culpability requirement, this does not
mean the legislature intended to dispense with the element of criminal intent. See
Commonwealth v. Gallagher, 924 A.2d 636, 638-39 (Pa. 2007) (mere absence of express
mens rea requirement in statutory crime is not indicative of legislative intent to impose
strict liability (citations omitted)). Rather, “there is a long-standing tradition, which is
reflected in the plain language of [§] 302, that criminal liability is not to be imposed absent
some level of culpability.” Id., at 639. Additionally, § 4701 is not a regulatory measure
aimed at safeguarding the public welfare and health, nor is its penalty light, as is often the
case with strict liability offenses; rather, it is a third degree felony punishable by up to
three years imprisonment. Accordingly, we conclude § 4701 is not a strict liability
offense; it requires proof of a mens rea.
Regarding the level of mens rea required to sustain a conviction under § 4701, we
have repeatedly held § 302 provides the default level of culpability where a criminal
statute does not include an express mens rea. See, e.g., id. (holding where offense of
luring child into motor vehicle does not express any mens rea requirement with regard to
victim’s age, § 302(c) prescribes default culpability requirement); Commonwealth v.
Ludwig, 874 A.2d 623, 630 (Pa. 2005) (observing generally where criminal statute does
not expressly provide mens rea, General Assembly has provided default culpability
provision in § 302(c), which determines appropriate element of culpability); Mayfield, at
[J-99-2013] - 20
427 (holding where relevant Crimes Code provision omits mens rea, § 302(c) supplies
culpability). The comment to § 302 also supports this conclusion, providing:
The purpose of this section is to clearly define the various mental states
upon which criminal liability is to be based. Under existing law the words
“wilfully” or “maliciously” are used in many cases. However, these words
have no settled meaning. In some instances there is no expressed
requirement concerning the existence of mens rea. These defects in
existing law are remedied by this section which sets forth and defines the
culpability requirements and eliminates the obscurity of the terms “malice”
and “wilful.”
18 Pa.C.S. § 302 cmt. (emphasis added) (internal citations omitted).14
Thus, § 302 applies when a criminal statute does not express a specific mens rea.
Section 4701 contains no language regarding mental state, and it is precisely this
“defect[] in existing law” that § 302(c) was intended to remedy, see 18 Pa.C.S. § 302 cmt.
We do not believe it was the legislature’s intent that mental state be intuited from the
language of the statute; absent summary offenses or absolute liability crimes, if there is
no express wording indicative of a discrete mental state, § 302(c) applies. Accordingly,
as § 4701 includes no express culpability requirement, the Commonwealth must prove
beyond a reasonable doubt that the public official was at least reckless in engaging in the
conduct proscribed by the statute.15
14 Furthermore, the explanatory note to § 2.02(3) of the MPC, on which § 302(c) is based,
see id. (“This section is derived from Section 2.02 of the Model Penal Code.”), provides
when the General Assembly intends intent, knowledge, or recklessness to suffice for the
establishment of culpability for a particular offense, “the draftsmen need make no
provision for culpability; it will be supplied by this subsection.” MPC § 2.02 explanatory
note (2001). Accordingly, the legislature’s refraining from providing an express
culpability requirement in § 4701 indicates its intent that § 302(c)’s default mens rea
apply.
15 It is true that only a plurality of this Court in Parmar concluded § 302(c) provides the
mens rea for § 4701. Three Justices would have affirmed the Superior Court (Justice
Newman, then-Chief Justice Flaherty, and then-Justice Castille). The three Justices in
(continuedK)
[J-99-2013] - 21
Because § 4701 is not a strict liability offense and requires intentional conduct,
appellant was entitled to have the jury instructed regarding the applicable mens rea for
the offense, which is provided by § 302(c). Therefore, the trial court erred in refusing to
include such along with its instruction regarding § 4701’s elements. See Commonwealth
v. Mason, 378 A.2d 807, 808 (Pa. 1977) (holding refusal to instruct jury concerning
element of intent necessary to convict defendant of voluntary manslaughter was error).
B. Harmless error
Having determined the trial court erred in its refusal to instruct the jury regarding
the applicable mens rea, we must address whether such error was harmless. See
Commonwealth v. Bullock, 913 A.2d 207, 217 (Pa. 2006). “[U]nder the harmless error
doctrine, the judgment of sentence will be affirmed in spite of the error only where the
reviewing court concludes beyond a reasonable doubt that the error did not contribute to
the verdict.” Id., at 218 (citation omitted).
Here, the trial court’s jury charge tracked the language of § 4701(a) and the
Pennsylvania Suggested Standard Jury Instructions. The jury was apprised that, in
order to convict appellant, it had to find he solicited money as consideration for his
proposed action as a public official. That is, the jury was instructed that a conviction
required it to find he acted with the conscious objective of securing an additional payment
(Kcontinued)
support of reversal (Justices Zappala, Cappy, and Nigro) expressed no opinion regarding
the applicability of § 302(c), as the main question in Parmar was whether the
Commonwealth could prosecute a public official under § 4701, a general statute, instead
of under the specific provisions of the State Adverse Interest Act and State Ethics Act.
Therefore, while Parmar is not controlling, it is instructive. As this Court was evenly
divided in Parmar, the Superior Court’s decision was affirmed, holding § 302(c) supplied
the culpability level for § 4701; therefore, at the time of appellant’s trial, § 302(c) was the
applicable mens rea, and the jury should have been so instructed.
[J-99-2013] - 22
from GP to the township in exchange for his exercise of official discretion in favor of GP.
Such an instruction encompasses the definition of “intentional” within § 302; a fortiori, it
encompasses knowing or reckless conduct. See 18 Pa.C.S. § 302(e). Indeed, there
was no argument here that the call and its content were other than intentional, as
described herein. It is only appellant’s lack of a deliberately corrupt motivation that was
at issue, and as noted above, motivation is not an element of the crime. If the solicitation
was less than intentional or knowingly made, this might have been error, but the
solicitation itself simply cannot be described as unintentional or unknowing.
Thus, the jury was advised appellant had to have acted intentionally to be
convicted. Although the jury twice asked for the trial court to repeat its instruction, the
reasons therefore are but speculation. There was nothing in the instructions given that
could have led the jury to convict appellant of bribery on the basis of strict liability; all of
the scenarios described as sufficient by the trial court required appellant to have acted
with conscious objective toward each element of the statute, which elements we reiterate
do not include a personal motive. See n.2, supra. Therefore, under these
circumstances where the jury was not given the misimpression that § 4701 is a strict
liability offense, and was made aware it had to find appellant acted intentionally in order to
be guilty, we cannot find the trial court’s refusal to instruct the jury regarding § 302(c)
contributed to the verdict.
Order affirmed; jurisdiction relinquished.
Mr. Chief Justice Castille and Mr. Justice Stevens join the opinion.
Madame Justice Todd files a concurring opinion.
Mr. Justice Baer files a concurring and dissenting opinion, the dissenting portion of
which is joined by Mr. Justice Saylor.
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