Commonwealth v. D'Angelo

MONTEMURO, Judge:

This appeal comes before an en banc court on the Commonwealth’s petition for reargument following our reversal of appellant’s bench conviction on two counts of violating 18 Pa.C.S.A. § 4701, Bribery in official and political matters. The sentence imposed was two years non-reporting probation and a $5,000 fine. We reverse.

The convictions stem from appellant’s acceptance, on two separate occasions, of cash handed to him by an undercover police officer investigating allegations of corruption in the Philadelphia Bureau of Licenses and Inspections. Appellant, the supervisor of district one, covering much of downtown Philadelphia, was approached by Detective Edward Dooley posing as a financial consultant for a group of investors interested in center city property, who “needed the cooperation of L. & I.” (N.T. 7/14/87 at 22) Appellant had been named by another district supervisor as the person who “knew it all in Center City.” (N.T. 7-14-87 at 20). All of Officer Dooley’s contacts with appellant, whether in person or over the telephone, were electronically recorded.

The principal issue presented is whether the evidence is sufficient to support appellant’s conviction.¹

The statute under which appellant was prosecuted, 18 Pa.C.S.A. § 4701 reads as follows:

§ 4701. Bribery in official and political matters (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;

(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.

Before surveying the circumstances surrounding each of the incidents charged in this case, we reiterate the time-honored standard against which challenges to sufficiency of the evidence must be measured:

The test of the sufficiency of the evidence in a criminal conviction is whether, accepting as true all the evidence and all the reasonable inferences therefrom, upon which if believed the [factfinder] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.

Commonwealth v. Thomas, 465 Pa. 442, 445, 350 A.2d 847, 848 (1976).

The evidence offered by the Commonwealth at trial consisted mainly of the testimony of Officer Dooley, as the tapes were not utilized by the prosecution.² The officer’s version of the most critical portions of the exchange differ significantly from the transcripts, and are informed by his assumptions as to the meaning of appellant’s words rather than by any empirical knowledge of wrongdoing. The contact in L & I who had originally referred Officer Dooley to appellant had himself accepted money during the course of the investigation. On the basis of his previous experience, therefore, Officer Dooley acted upon the tip in anticipation that the objective of the operation, that is, discovery of corruption was in fact fulfilled at that point.

Our review of the record in this case included the testimonial as well as transcribed versions of appellant’s exchanges with the undercover officer. Upon comparing Officer Dooley’s evidence at trial with the documents recording the exact words of the parties, we became convinced that his testimony is grounded so firmly in preconceptions as to render meaningless his pronouncements of what transpired at his meetings with appellant.³ Despite the fact that all reasonable inferences must inure to the verdict winner, Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983), evidence, either circumstantial or direct, must be offered to support them.⁴ We cannot say unequivocally that such evidence exists here. In Derr, our supreme court found that although the appellant had arranged with an undercover police officer to procure hashish, had received money therefor, and had delivered as promised, there was no proof of appellant’s agreement with a third party to support a conviction for conspiracy. We find the analogue with the instant case instructive.

The first charged offense occurred at the conclusion of a lunch in a French restaurant chosen by the detective.⁵ After discussion of the detective’s “needs as a business consultant” (N.T. 7/14/87 at 21), and of his “clients’” intention to invest substantial sums of money in the Philadelphia real estate market, appellant was reported to have responded, “anything I can do for you, you know, I’ll do anything I can.” (N.T. 7/14/87 at 22) Appellant was also reported to have offered the services of his inspectors to examine proposed investment sites, but without knowing why, in order to provide the speculators group with information on the condition of the buildings for investment purposes. As the discussion concluded, Detective Dooley handed appellant his business card and three one hundred dollar bills.

On a later occasion, after appellant had accompanied the detective on an hour and a half tour of properties he felt to be suitable for development, Dooley fanned out a group of twenty and fifty dollar bills and presented them to appellant, who selected a fifty and exited the vehicle.

During the course of the relationship between appellant and the supposed investment consultant, appellant offered advice and information on a number of topics, such as the availability of certain properties, and the best way of handling certain situations which had arisen, e.g., a problem with some plumbing installation which was not done according to the Municipal Code, and for which a violation had been issued by L & I. However, as appellant’s supervisor testified, the information supplied was readily available to members of the public. The tactical advice, given in response to Detective Dooley’s attempts at subornation, were consistently exhortations to do things according to established protocol. Again using the plumbing violation as an example, the detective was told not to himself interfere or to employ any third person, but to hire a registered plumber to handle the problem. He was also told at various times to work with a good zoning lawyer, to acquire all permits before spending even $.25 on a project, to approach the Redevelopment Authority with prospective plans, and in all respects to follow the rules. There was never an offer by appellant to perform any non-legitimate service, and no request from the detective meant to elicit such a response was successful.

This court in Commonwealth v. Clarke, 311 Pa.Super. 446, 449, 457 A.2d 970, 972 (1983), held that:

Under the Crimes Code section proscribing bribery in official and political matter, once the offer to confer the proscribed benefit, or once an agreement is made, the crime is complete.

The statement of the Clarke court that only the benefit need be conferred for the crime to be complete, is slightly misleading, and depends for its validity upon context as an examination of the caselaw makes clear. In Clarke itself, both the benefit and the desired (official) act were clear to all participants: appellants, tavern owners, wished the cooperation of a police officer in circumventing the Pennsylvania Liquor Code. In Commonwealth v. Ohle, 291 Pa.Super. 110, 435 A.2d 592 (1981), also, an agreement had been reached. Specifically, the parties had determined that appellants would receive kickbacks on government automobile insurance contracts from the Director of the Pennsylvania Bureau of Insurance. In Commonwealth v. Weselyk, 268 Pa.Super. 569, 408 A.2d 1149 (1979) appellants, Commonwealth revenue officials, offered to split sales taxes due on the informant’s airplane. In each of the instances cited the terms under which the parties were operating had been made clear from the outset. Although appellant in the instant case received money, there is no mutual understanding evident. Neither a true offer, nor any agreement is discernable. See also, Commonwealth v. Peetros, 517 Pa. 260, 535 A.2d 1026 (1987); Commonwealth v. Clapps, 355 Pa.Super. 80, 512 A.2d 1219 (1986), aff'd 520 Pa. 305, 554 A.2d 10 (1989).

The question, therefore, is whether appellant’s acceptance of the money, in conjunction with his expression of cooperation, transforms his general promise into a discrete agreement to “violate a known legal duty” ⁶ which falls within the ambit of the statute.

Appellant’s offer of help is viewed as unequivocal evidence of his willingness to perform illegal act or acts, and in fact forms the major underpinning of the charge. However, it is to be noted that nowhere does there appear discussion of payment, or indeed of any quid pro quo. Just prior to the hand-over, appellant described what he felt to be his duty under the circumstances as he saw them—he owed his cooperation to any legitimate person willing to spend such significant sums in the city as he understood was the investors’ intention. It was only after that the money changed hands, and there is no indication that appellant was aware it was coming.

Further, what appellant meant by his cooperation becomes clear in his responses to Officer Dooley’s suggestions of improper activity, e.g., removal of a violation. At no time did appellant react to these overtures with anything other than directives that Officer Dooley should follow the rules. No understanding of what service appellant was to perform is ever made clear, there was admittedly no direct request for anything illegal, and the information which passed from appellant to the investor were matters of public knowledge. Therefore, while we find appellant’s acceptance of the money to have been unwise, indeed, highly inappropriate, there is nothing in the record which supports interpreting his acceptance as a bribe under the Act; the statutory requirement that there be some exchange involved is totally lacking. The existing caselaw offers an interesting counterpoint.

In arguing that the requirements of § 4701 have been met, the Commonwealth emphasizes that appellant agreed to assist the erstwhile investor in locating properties, and in “smoothing” over any problems which might arise with L & I. However, as the record reveals, nothing illicit was done in regard to either of these promises, which, from their equivocal nature may never have been intended to be improper. We have only Officer Dooley’s interpretation of the words, an interpretation which is not necessarily supported by a recitation of the words themselves as they appear in transcription, and which is actually belied by appellant’s actions. While the Commonwealth states that any expectation of intelligible agreement between the parties is unreasonable, since the language of illegal compact must necessarily be guarded, the cases cited above demonstrate that lucidity is in fact commonplace. The Commonwealth’s further insistence that the terms of the contract exist and are clear, i.e., fee for service, throws us back upon the parties’ own words which fail to compel an interpretation of intended illegality. We are therefore back where we began, with appellant’s wholly inappropriate, although not illegal acceptance of cash. This alone is not sufficient to activate the statute, or to prove his guilt beyond a reasonable doubt.

The equivocal nature of the understanding between the parties is demonstrated again by the officer’s testimony regarding appellant’s alleged offer to provide the investors with the results of “courtesy inspections” of prospective investment sites. These reports would be prepared by appellant’s subordinates without knowledge of their purpose. The transcript of this conversation does not clearly indicate that such an arrangement was contemplated by appellant. Instead, the officer provides his interpretation of the conversation filtered though the preconception that appellant was ready and willing to act in violation of his legal duty. The record fails to support his premise.

The Commonwealth would prefer that we examine this case only from the perspective of Officer Dooley, and that we ignore whatever does not comport with his view. However, as the standard for assessing the sufficiency of the evidence indicates, we are obligated to accept as true all of the evidence upon which the factfinder could have based its verdict, not merely that portion of the evidence proffered by the prosecution. Moreover, we need only consider the reasonable inferences to be drawn from all of the evidence, not those which proceed from the interest of a witness in the outcome. We are led by the conflicts between' the testimonial and the transcribed versions of events to conclude that there is reasonable doubt as to whether the requirements of the statute are met.

The second charge grew out of appellant’s offer to provide the officer with a guided tour of investment possibilities.⁷ Appellant’s supervisor testified with regard to this incident that nothing appellant told the detective was other than public information, and that nothing prohibited such a tour except the press of work and a one hour lunch policy.

In fact, appellant’s behavior tracks a Model Penal Code Comment appearing in S. Toll, Pennsylvania Crimes Code Annotated (1974) at 526.

Section ... [4701] follows prevailing law in proscribing bribery in decision-making ... this makes it clear that the bribery section does not apply to: (a) situations where the law contemplates payment of fees for services rendered by a public servant; or (b) tips or other compensation for services rendered by a public servant consistently with his duties. We recognize that the practice of tipping or paying minor officials for services which it is their duty to perform gratis is an evil against which administrative and legislative action is appropriate. However, the practice is widespread and even open in some quarters, indicating that community standards of behavior in this area have not yet crystallized sufficiently to warrant the application of penal sanction in most cases. Accordingly, the primary means of social control should be by enforcement of discipline within the civil service, and by special legislation carrying minor penalties, outside the Penal Code.

In accord with this comment, we conclude that appellant’s receipt of money in return for his investment “advice” and distribution of public information is simply insufficient to constitute a violation of § 4701.⁸

Therefore, lacking evidence either of overt action, or an agreement to take such action, we find no proven violation.

Judgment of sentence vacated.

JOHNSON, J., dissents in which ROWLEY, WIEAND and BECK, JJ., join.

1 . In view of our resolution of this question, we need not address the remaining issues presented in this appeal.

2 . Transcriptions of the taped conversations were offered into evidence by the defense.

3 . The dissent argues that the Commonwealth forbore to introduce the tapes or transcriptions of appellant’s conversations with Officer Dooley because they were inconclusive. Our review of the transcribed material convinces us, however, that the only way the Commonwealth’s burden could be sustained is by use of glosses on the actual conversations rather than the words themselves. Rather than inconclusive, the conversations were in fact adverse. The dissent itself notes that we must examine all the evidence of record. We are particularly compelled to do so where the conviction is based not on solid evidence, but upon a witness’ conjecture and speculation as to someone else’s motives.

4 . The trial court’s Opinion offers us no guidance, as it merely recites the issues raised, and concludes without analysis that none contain substantive legal merit.

5 . Appellant had originally suggested the Mall Tavern, described as a neighborhood bar, as a meeting place. However, because the Tavern is frequented by police officers, Officer Dooley arranged an alternative rendezvous.

6 . During trial, the Commonwealth submitted into evidence the Philadelphia Code § 20-604(1), which reads as follows:

No member of Council or other City officer or employee, shall solicit, accept or receive any gift, loan, gratuity, favor or service of substantial economic value that might reasonably be expected to influence one in his position in the discharge of his official duties, from any person, firm, corporation or other business or professional organization.

The Commonwealth also provided the trial court with Section 10-105 of the Philadelphia Home Rule Charter.

No officer or employee of the City and no officer or employee whose salary or other compensation is paid out of the City Treasury shall solicit or accept any compensation or gratuity in the form of money or otherwise for an act or omission in the course of his public work.

These provisions are alluded to the Commonwealth’s brief; however, its argument, presented at trial, is not before us. That argument posits as the legal duty violated by appellant’s acceptance of the money from Officer Dooley the policy embodied in the Code and Charter sections. Since the policy is to disallow acts such as appellant’s, the argument becomes circular: he violated his legal duty not to accept money by doing so. This has no appreciable effect on the determination of whether a violation of 18 Pa.C.S.A. § 4701 has occurred.

7 . It is worthy of note that none of the properties on the tour, which took place in an area known as Northern Liberties, were in appellant’s administrative district.

8 . The text of the remarks quoted above provides a gloss on the actual Comment to § 4701, which reads as follows:

This section extends bribery to cover all public employees. Under this section the crime is limited to bribery in connection with decision-making; consequently, it does not apply to situations where the law contemplates payment of fees to the public servant for his services or to tips given to a public servant. While the practice of tipping is not condoned, it is recognized that such practice is widespread.