Commonwealth v. Bellis

OPINION

ZAPPALA, Justice.

This is a Commonwealth appeal by allowance from the Order of the Superior Court which granted Appellee a new trial due to error committed by the trial judge in instructing the jury as to the circumstances under which Appellee could be found guilty of the common law crimes of misfeasance, malfeasance and nonfeasance while in office.

The facts of this case have been fully set forth in the prior opinions of this Court and the Superior Court, and will be referred to in this Opinion only insofar as they are relevant. Appellee, Isadore Beilis, was tried in the Philadelphia Court of Common Pleas and found guilty by a jury of the common law crimes of misfeasance, malfeasance and nonfeasance while serving in the capacity of a city councilman for the City of Philadelphia. Appellee took an appeal to the Superior Court alleging, inter alia, that his conviction of the common law crimes was precluded by the existence of a specific statutory crime which dealt with the *125conduct for which he was charged, i.e. extortion under former 18 P.S. § 4318, citing as authority former 18 P.S. § 5104 which provided that:

In all cases where a remedy is provided or duty enjoined, or anything directed to be done by the penal divisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect.

The Superior Court agreed with this argument, stating that the mere existence of the statutory offense precluded a conviction of the common law crimes; i.e. even if the statutory offense was also charged and the defendant was acquitted of same, the common law offenses were still precluded. The Commonwealth was granted allowance to appeal to this Court, and we held in Commonwealth v. Bellis, 497 Pa. 323, 440 A.2d 1179 (1981) (Bellis II) that a common law prosecution is not barred simply because the facts would also support conviction of a statutory crime which includes elements not found in the common law offense. Thus, since the statutory crime of extortion contained elements not found in the common law crimes, Appellee could be convicted of either or both crimes. On this basis, we reversed the Superior Court and sent the case back for resolution of the remaining issues raised by Appellee but not dealt with by that court. On remand, the Superior Court, in Commonwealth v. Bellis, 324 Pa.Super. 506, 472 A.2d 194 (1984), dealt with the issue of whether it was error to charge the jury that Appellee could be found guilty of the common law crimes if they found that he had breached the positive statutory duty imposed by Section 10-100 of the Philadelphia Home Rule Charter, 351 Pa.Code § 10.10-100, a duty the breach of which carries a penal sanction under § 10-109 of the Charter. The Superior Court concluded that it was indeed error and granted Appellee a new trial. We affirm.

*126In Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942), we held that the common law offenses of misfeasance, malfeasance and nonfeasance in office occur when there is “either the breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive.” Id., 345 Pa. at 579, 28 A.2d at 794. (Emphasis added) The Superior Court correctly interpreted our holding in Beilis II to say that prosecution for the common law offenses would be allowed where the elements of the offense differed from those of the statutory offense. However, it does not follow that a common law offense can include a statutory offense which provides a separate penalty for its violation as an element where culpability can be based solely on violation of the statutory proscription. From this it follows that it was error for the trial judge to instruct the jury that defendant could be found guilty of the common law offense if it were found that he breached the positive duty set forth in § 10-100 of the Home Rule Charter. As was stated in Peoples, conviction of the common law crime requires proof of either a breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive. Since the statutory duty outlined in the charge provided a penal sanction for its violation, consistent with Beilis II, Appellee could only have been convicted of the common law crimes if the jury were to find that he had performed a discretionary act with an improper or corrupt motive, the second alternative leg of the offense.1 Because the charge to the jury contained the statutory duty defined in § 10-100 of the Home Rule Char*127ter, however, it is unclear whether the jury improperly applied that duty to find Appellee guilty of the common law offenses or whether they found that he had performed a discretionary act with an improper or corrupt motive. “Where the trial court charges both correctly and incorrectly on the same proposition it is impossible to determine which instruction was followed by the jury, there must be a reversal, [sic]” Commonwealth v. Holloway, 212 Pa.Super. 250, 254, 242 A.2d 918, 920 (1968). On this basis we must agree with the Superior Court that the jury charge was error.

Affirmed.

NIX, C.J., did not participate in the consideration or decision of this case. McDERMOTT, j., did not participate in the decision of this case. HUTCHINSON, J., files a dissenting opinion in which FLAHERTY, J., joins.

. So as not to distort the logic of the majority opinion by a misinterpretation of its holding as seemingly set forth in the dissenting opinion of Mr. Justice Hutchinson, it is necessary to note that had there existed and been charged by the trial court another positive statutory duty not providing a separate penalty for its violation, the Commonwealth would not have been precluded from proving nor the trial court from instructing on culpability based upon such a statutory duty.

In no way should our holding be construed to imply that municipal legislation providing penal sanctions may preempt the statutory law of this Commonwealth.