Commonwealth v. Bertels

420 A.2d 404

Pa.

1980

Check Treatment

COMMONWEALTH of Pennsylvania, Appellant, v. Norman H. BERTELS, Jr., W. Kirk Hammaker and Donald L. Parker, Appellees.

Supreme Court of Pennsylvania.

Argued May 20, 1980. Decided Sept. 22, 1980.

420 A.2d 404

Accordingly, the order of the post-conviction hearing court is affirmed.²

LARSEN and FLAHERTY, JJ., concurred in the result.

EAGEN, C. J., dissents and would remand for a hearing.

Albert J. Strohecker, III, Sally A. Lied, Asst. Atty. Gen., Harrisburg, for appellant.

Louis Lipschitz, Philadelphia, for appellees.

Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal from a reversal by the Superior Court¹ of judgments of sentence imposed upon appellees, Norman H. Bertels, Jr., W. Kirk Hammaker, and Donald L. Parker, following convictions for embezzlement, fraudulent conversion, falsification of corporate records, and conspiracy.² The convictions arose from complex transactions, involving applications of financial assets, whereby the appellees were found to have defrauded corporations which they controlled. Trial by jury was held in the Franklin County Court of Common Pleas in February, 1969, venue having been changed from Adams County at defendants’ request.

On appeal is the issue of whether Adams County had venue and jurisdiction for trial, since the transactions involved occurred primarily outside that County. After a careful review of the briefs, record, and decisions below, we affirm the determination of the Superior Court that trial jurisdiction was lacking.

Order of the Superior Court affirmed.

ROBERTS, J., joins the majority opinion and filed a concurring opinion.

ROBERTS, Justice, concurring.

I join the opinion of Mr. Justice Flaherty. It should be noted that the transfer of funds from a Pennsylvania parent corporation‘s bank account in Adams County to its subsidiary‘s bank account in Virginia, an outwardly innocent act, has not been shown to be in furtherance of an unlawful agreement.

Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963), cert. denied, (prosecution for criminal conspiracy may be brought either in the county where an unlawful agreement is formed or in the county where an overt act is committed in furtherance of that unlawful agreement). Because the Commonwealth has not met its burden of proving jurisdiction, the Superior Court‘s order reversing judgments of sentence should be affirmed.

Notes

Appellant also argues that he is entitled to a new trial because he was not supplied a list of the Commonwealth‘s witnesses prior to trial. Under the rules of procedure which were controlling at the time of this trial in 1973, Pa.R.Crim.P. 310, there was no right of discovery. ; ; . Thus, this claim is clearly without merit. Act of June 24, 1939, P.L. 872, §§ 828, 834, 846 and 302 respectively; 18 P.S. §§ 4828, 4834, 4846 and 4302 respectively.