*1 at bar case in the “The circumstances (p. 218), stated distinc- That is the intent.” a criminal not support do there is much evidence case at bar present In our tion. be inferred. intent may a criminal from which failed has of the record examination A careful prejudicial could construed as be anything disclose defendants. received They the rights against conclude therefore trial we impartial a fair the motions not err in refusing court did the lower for a the motions or in refusing of judgment in arrest trial. new affirmed. sentences
Judgments Appellants. Petrosky et al., Commonwealth v. *4 Before P. J., 1960. June Argued Gun- Rhodes, and Mont- Watkins, ther, Wright, Woodside, Ervin, JJ. gomery, for appellants. W.
James Evans, him A. G. W. with Lipsitt, Scales, William appel- and Scales Shaw, and Lipsitt, Reynolds lant. General, Attorney Deputy P. Filippone,
Alfred District Assistant Attor- E. Hoerner, him Mary X. District Anne Attorney, H. Lock, Martin ney, appel- for Commonwealth, Attorney General, Alpern, lee. 1960: P. December J.,
Opinion Rhodes, E. Pait, Roland J. Charles Sell, defendants, Dauphin indicted in J. Petrosky, Prank
99 pretenses1 County cheating by Com- fraudulent for Highways, Department Pennsylvania, of of monwealth of sale of the sum of connection with $4,757.29 County, con- and with cinders for use in Westmoreland spiracy contended to defraud.2 The Commonwealth payment Petrosky money of obtained this sum which he not deliver, for 3034.21 tons of did cinders superin- and that Sell and who were assistant Fait, County Department for the tendents Westmoreland Highways, de- of aided and abetted him. three by jury a fendants were convicted both indictments. judgment Each motion in defendant filed a arrest of trial. for new questions (1) These motions raised the whether the jurisdiction Dauphin County try these had Court (2) to sus- cases; whether evidence was sufficient (3) alleged tain the due to verdicts; whether, granted. trial new should be errors, trial judgments of have From defendants sentence, appealed. January purchase 17,
A dated contract, order, E. David awarded Commonwealth to 1956, Ankney. delivery by Ank- The contract called for the High- Department ney for the of Commonwealth per ways ton tons of cinders at 5,000 $1.46 price per tons of cinders at or a total 3,000 ton, $1.52 request Ankney never received $11,869. Approximate- this cinders under contract. Petrosky year ly one after the award the contract, approached Ankney offered to fill the contract and agreed purchase Ankney take it over. turn the or- agreed Petrosky, and in return der over 24, 1939, Penal Code of June Section P. h. amended, §4836. as 18 PS 302 of The Penal Section Code of June P. L. amended, §4302. 18 PS payments. Ank- Ankney the contract pay *6 $800 Petrosky al- purchase order over
ney
the
turned
assignment
made.
though
of the contract was
formal
no
Ankney
the
requested
because
Petrosky
billheads
Petrosky
Ankney’s name.
billed in
cinders had
be
Ank-
them.
the
and submitted
filled out
billheads
then
by
the
issued
ney
a
of
Commonwealth
check
received
Ank-
amount of $12,394.58.
in the
the
Treasurer
State
payable to
ney
a check
the check and drew
cashed
which was
the amount of $11,594.58,
in
deducted.
after
balance
$800
charge of a
Fait were each in
Sell and
Defendants
designated
delivered
area. When cinders were
certain
given
employe
stockpile
locality,
a
a state
to a
slips
delivery
sign
or tickets which accom-
would
panied
being
copy
each
one
a truck driver for
load,
the other retained for state rec-
retained
driver,
delivery
accumulated
were used
ords. These
superintendents
for
and assistant
as basis
caretakers
executing
compiling
delivery record
material
2140. Sell and
su-
as Form
as assistant
Fait,
known
signed
together
perintendents,
these
their
with
forms,
respective
them
and forwarded
with
caretakers,
tickets,
Department
High-
supporting
of
Greensburg,
County.
ways
Westmoreland
compared
Greensburg office checked and
these forms
prepared
purchasing order and then
in-
state
as Form
which were sent to Harris-
222,
voices known
payment. Payment
burg
for audit
made
previously indicated. The fraud was discovered and
Dauphin
prosecutions
County.
were instituted in
these
Dauphin County.3
and venue were in
Jurisdiction
cheating by
pretenses
fraudulent
is
crime
property
completed
de-
until
is obtained
jurisdiction
the distinction
between
For a discussion
McGinley
Scott,
Tenue,
v.
Pa.
Defendants jurisdiction has no sions of Dauphin County pretenses fraudulent or of crime cheating by State indictments because the check of the conspiracy mailed made Treasurer was payable Ankney *7 it him at Westmoreland where to Ligonier, County, to new.check written deposited was by Ankney, further the' of They argue the order Petrosky. until received complete transaction was not Petrosky defendants the check from For these Ankney. reasons, from the case.4 Prep to this case seek distinguish the ques- fail a substantial distinction We to see the case and between (venue) Prep of jurisdiction tion of the Judge agree one at bar. We with the Kreider persuad- in his opinion: he said “By below when court the utilization the by to ‘assign’ contract, Ankney ing agreement the making and by billheads Ankney’s of on to the Com- pass Petrosky would Ankney whereby Pe- the sum less $800.00, remittance, monwealth’s as his in .agent Ankney constituted effect in trosky in It is true this case scheme. fraudulent the receipt the Com- upon Harrisburg at the postmaster became the addressed Ankney, cheek monwealth’s Prep payable ease, Prep was made the check In the County. Schuylkill the directly We held him in mailed was Dauphin mailing in upon check completed of the crime act Treasurer, postmaster County and that State agent ing for the accused. as the manipu- prior agent. of the because
latter’s However, Ank- Petrosky agency thrust on had lated status that mailing 'State Harrisburg postmaster ney, agent defend- also check became Treasurer’s The Fait. Sell and the codefendants ant perhaps longer devious more chain of control was Prep but case, than it was in in the instant case beginning discloses it to the end traced from the when Treasury Common- of the an unbroken trail Petrosky. com- crime was to the defendant wealth pretense object plete was 'obtained’5 and the the false Dauphin County Treas- State the check of the when post- placed innocent of the in the hands urer was accomplishment this Harrisburg. master Harrisburg together sending that of act, signed by Fait, material records Sell false Dauphin County the de- constituted overt acts in conspiracy.” in furtherance of the fendants prosecution crimi for a also well settled that It is brought county conspiracy may be in the where nal or confederacy combination or was formed, unlawful any county an overt act was committed where conspirators in furtherance of that unlaw supra, confederacy. Prep, v. ful Com. combination Pa. A. 2d Com. v. 460; Ct. *8 Superior 762. 24 147 Pa. Ct. A. 2d 410; 413, Mezick, (page Supe Prep 451 of Pa. We said in the case 186 2d) page 142 “It a well rior 465 of A. : is estab Ct., puts theory of where one in force lished law that, legal agency an for the commission crime, he, accompanies contemplation, point the same to the . . .” v. effectual; it becomes Com. where See, also, Superior Rogers, 662. 187 Pa. 144 A. Ct. 2d 471, 483, Petrosky instant Sell In aid of case, put agency in force an for the and Fait commission 5 Schmunk, Superior v. 22 Pa. Com. Ct. See 355. legal contemplation, they, accom- of the crime, panied point effective, it the same to the where became Dauphin County the check was where is, agent Ankney by mailed to the whom fruits conspiracy Petrosky. were delivered to objection jurisdiction (venue)
Defendants’ properly dismissed. judgment support in arrest of
In of their motions argue evi- a that the and for the defendants new trial, their conviction dence insufficient to sustain charged. either of the crimes obtaining money, or valu-
The crime of
chattel,
security by
pretenses,
section
under
able
fraudulent
as
Penal
L. 872,
836 of The
Code of June
P.
24, 1939,
completed
co-
there
18 PS
is
when
amended,
§4836,
pretense;
following
(1)
false
exist
elements:
A
(2)
thereby;
obtaining
property
an
of value
(3)
Prep, su-
an intent to cheat and defraud. Com. v.
Superior
pra,
Pa.
The evidence in a favorable viewed most (Com. Mitchell, v. 181 Pa. verdicts Ct. 407) 124 A. 2d is as follows: expert Earl J. witness for the Com Mellman, Pe stated result of his monwealth, that, audit, through paid trosky, Ankney, for 3034.21 tons resulting cinders which were in a total delivered, proved overpayment of The Commonwealth $4,512.23. shortage of amount that the this of cinders arose out alleged covering of fraudulent claims deliveries as set forth in cinders two material de *9 purports livery to show 2140. The first Form records, Decem delivered on that 2923.90 tons cinders were place Points,” as “Five and at a known ber 6,1956, Township, County, fact in Westmoreland Salem when shortage creating only tons thus a were delivered, represented overcharge of of 2323.90 which an tons, signed delivery This material record was $3,432.56. by superintendent, by defendant as assistant Sell, Brahosky, V. the “Five Points” Richard a at caretaker, delivery record was location. The second material superintend signed by the defendant as assistant Fait, a near Weaver, Charles ent, E. caretaker, Township Huntingdon in Penn and North Irwin Town ship. Petrosky submitted a claim for 1274.85 tons when fact the evidence tended to cinders, show only actually thereby 564.54 tons were creat delivered, shortage ing resulting overpay of 710.31 in an tons, overcharges $1,079.67. ment of total $4,512.23.6 Petrosky’s truck The evidence indicates when that, appeared the State driver load of cinders at receiving stockpile, employe he would hand to the pad original containing or book de- cinders a white slips copies designated livery “Weighmas- and carbon slips by the ter’s Certificate.” These were issued Supply Company Petrosky. owned Salem sign The receiver cinders would detach original delivery white from the truck driver’s pad superior, deliver them to his “care- known as a preparing use them who would his taker,” material Form 2140, and who de- record, would in turn superintendent. to the assistant liver them The as- superintendent sistant would turn them to the over $4,757.29 difference between claim in the indictment represented $4,512.23 certain miscellaneous for an items overcharge alleged hauling which were not submitted judge jury for lack of trial sufficient evidence. *10 dupli- checking. clerk The clerk and chief invoice slips by delivery truck the cate be returned would Petrosky. Petrosky employer, then billed to his driver Department Highways he al- of for the cinders the legedly hauled. slips gave original delivery Petrosky
The used including net considerable detailed information weight, weighmaster’s signature, license number and name of truck and the vehicle license driver, orig- The number. Commonwealth established that 298 Greensburg slips delivery inal were removed from the Department Petrosky, Highways by of office explanation Petrosky’s others were substituted. April, was that he a from received call Greensburg advising in the office at woman that him weighmaster’s missing license number slips, that he should have them “re-made.” The slips compiled grocery new were form used type slips grocery prepared by stores. These were Petrosky’s employe, signed by James G. Lattimer, “weighmaster,” although originally him he did not weigh the cinders. No vehicle number, name, driver’s signature appeared slips. receiver on the new Petrosky originals then testified that he returned slips highway and the re-made shed. However, investigating Boy O. officer, testified Wellendorf, Petrosky giving admitted these substituted deliv- slips ery applied” “to Sell and Fait be in their re- spective Department sections Highways.7 of the The originals were never found. testified he duplicate keep delivery did not his receipts. own jury properly could find from the evidence that Petrosky fraudulently original removed the delivery slips and substituted others to conceal fraudulent testimony As Sell and Fait was limited the trial charge judge conspiracy.
claims he made for cinders never delivered. had slips wholly unnecessary “re-made” if in fact the were slips original delivery genuine, white as, weighmaster necessary only it that the write event, office at the his name license number on those Department Highways Greensburg. respect evidence With the Commonwealth’s Fait, prepared the mate- and Fait that he admitted, showed, shortage of 710.81 rial record showed a person receiving signing actually it as the tons, Although any cin- he in fact material. never received *11 absent on December áth and 5th because he was ders high- hunting trip, he took the to the on deer tickets up way Greensburg shed in and made Form 2140 request of had received the his who caretaker, Weaver, he Fait’s absence. Fait testified that the cinders in kept signed, the which he and no record forms job although it not his to check material was the that, slips against delivery have the 2140 he forms, would slips delivery extent.” “to some to check the material that turned He further testified never slips slips delivery over to and that the material him, slips. regular He from Weaver were their he received rarely made that that he out forms; testified usually prepared caretaker. the kept a testified that he Fait’s caretaker, Weaver, between December record of deliveries produced at the trial “little book.” This book was in a license numbers of the trucks mak- the and disclosed delivery, ing in- the number of in some loads, and, truck names of the drivers. This one the stances, expert the Commonwealth’s wit- the records which shortage determine used to ness, Mellman, existed. signing delivery the material record admitted
Sell Brahosky, covering on his deliveries caretaker, on which the Common- 5th, 6th, December 4th, of cinders. shortage showed 2323.90 tons wealth Decem- he was deer on testified that Brahosky hunting delivery 1th he material signed ber that 5th; that record his on upon 1956; return December 6, receipted a laborer named S. Elliott actually Howard slips for the cinders and turned the material delivery Elliott was over them to Sell. who Brahosky gave Five indefinite as number of loads received at recalled Points on the dates he although in question, the Battistella fifty delivered Trucking Company loads.
n Selltestified when he delivery received the that, Form 2110 slips and the form Brahosky, made out. took it to He shed and fully highway had total the clerk on an machine and adding it then returned his Sell Brahosky signature. he check claimed that did not slips against the totals. He stated original white Form carbons of 2110 material delivery record should have been filled out completely initially. However, exhibits indicated the pink com- copy was not and contained no plete entries tonnage. Further, showing date and yellow copy, authorization *12 in were while the number, carbon, operation route, of pounds number number, of cinders allegedly delivered Sell pencil. were not able to explain discrepancies. these
The evidence involved was largely documentary circumstantial. That the evidence was wholly circumstantial is not largely fatal if it that appears the evidence is such as reasonably justi- naturally fies an inference of of the guilt accused and is of such volume and as to overcome quality presumption innocence and satisfy of the jury guilt of the ac- cused a beyond reasonable doubt. The nature of che crime of makes it conspiracy such that it is sus- rarely of other ceptible than proof by circumstantial evi- ±08 is fraud
dence. when conspiracy trial, Therefore, in the intro- there is a wide allowed latitude involved, v. Superior Com. 190 Pa. duction evidence. Evans, 387, 154 A. 2d affirmed 399 Pa. Ct. 179, 201, 57, 202, 407. 160 A. 2d
We are of the that evidence taken as opinion Pe- that the defendants whole shows Sell, Fait, de- parties to a to cheat and were trosky conspiracy their fraud the Commonwealth; they succeeded fruits unlawful and that obtained the plan; abetted of the and Sell and Fait aided and conspiracy, goal. that unlawful him in achieving numerous errors. raised trial Defendants alleged first that a fair trial was allege denied because They not select the they permitted were indictments for defend should call trial. Commonwealth that all concern requested ants fourteen indictments de numerous County Westmoreland and involving ing time. The trial judge fendants be tried same so opinion do would be chaotic de There is no merit confusing jury. more of two or argument. fendants’ consolidation for trial trial is in the discretion indictments v. 190 Pa. court. Com. Ct. Evans, supra, its 2d The court did not abuse 154 A. 57. below request. the defendants’ discretion refusing did not err in his refusal defend- The trial judge jury the effect if the charge ants’ that, point type were grocery found December the date of until after prepared in- pretenses and fraudulent alleged in conspiracy could not find defendants dictments, guilty based request This is on an er- pretense. fraudulent of the Commonwealth case. The conception roneous that false pre- Forms showed Commonwealth *13 Fait December prior 1956. The Sell pared the substituted preparation of the date pre- the issue of fraudulent not determinative on was slips, after either tenses. 'Substitution before tending es- a circumstance was December 21, 1956, charged the fraudulent scheme in the indict- tablish ment. judge supplemental properly trial refused a
point
charge
which,
for
submitted
the defendants
requested
charge
jury
the court to
effect,
respect
alleged
to an
factual matter
which was not
evidence but
the defendants
Common-
desired the
stipulate.
wealth to
Commonwealth refused,
stipulation
agreed up-
being
the matter ended with no
being
point
on.
no
There
evidence to
warrant the
judge
charge
charge,
properly
trial
declined
so
jury.
prospective jurors,
Two
on their voir dire examina-
inadvertently
opinion
stated
had
tion,
formed an
properly
and would convict defendants. Both were
challenged
judge
for cause and
and the trial
dismissed,
jurors
immediately
already
directed the
sworn to dis-
regard
juror
A
remarks.
motion to
is
withdraw
judge,
addressed to
sound discretion of the trial
only
his action
will
be reversed for abuse of dis-
cretion. Com. v. Schumann, 162 Pa.
Ct. 330,
that the Commonwealth’s
nothing else.
cinders,
allowing Ankney
judge
to
err in
trial
did
The
ability
under
concerning
testify
to deliver cinders
his
purchase
considered
to
he
order and as
what
up
entitled
making
The Commonwealth was
his bid.
pur-
Ankney obtained his
in which
manner
show
background
relationship be-
chase order and
Petrosky.
Ankney
indicated,
have
As we
tween
conspiracy
there is
fraud is
in a
involved,
where
trial,
evidence.
in the introduction of
latitude allowed
a wide
Superior
supra,
190 Pa.
Ct. 179,
v.
Com. Evans,
testimony
effect
adverse
This
had no
Defendants erred in sus- objections questions taining the Commonwealth’s the defense cross-examination. each asked In attempted the defense situations, of these exceed scope examination of direct and introduce issues new scope The of defense. and matters cross-examina- largely the sound tion is within discretion of the trial judge. Com. v. Pa. Ct. Cano, proceed- orderly of trial nature A. 2d 358. time. ings of one side at a introduction for the calls requiring judge defense to not err in The trial did Com- conclusion of the until the its evidence withhold case. monwealth’s judge properly mo- refused defendants’
The trial expert testimony the Common- to strike tion concerning the Mellman who testified wealth witness prop- shortage his audit revealed. witness *15 expert. testi- erly He then himself as an established gave concerning he examined, the documents fied opinion shortage of deliveries existed that a cinder his overpayment resulted. as the that an here, Where, original court and available for exami- records are in testify- by witness nation and where the defendants, ing summary for de- to the made therefrom is available it dis- rests within the sound tailed cross-examination, judge admissibility to the the trial of a cretion of as compact summary as a substitute the voluminous original records. Keller v. Pa. Ct. Porta, 140. 94 A. 2d argue judge that trial the in Defendants erred sus- objections by taining the Commonwealth to the cross- investigating of the officer examination as Wellendorf delivery he certain material had shown to whether rec- Raymond A. a whether Davis, ords caretaker, pre- Wellendorf that latter had told he the had not allegedly viously supporting seen six particular 2140 forms. These records were the not by subject the criticism Commonwealth and were No to the issues. claim irrelevant was made that the question ruling false. in forms six was cor- rect. complain alleged also of the
Defendants error of refusing requested judge in their trial the instruction calling party a witness holds that that out witness person by testimony. and is bound a truthful his presented request court. timely not This charge, general instructed the its court, However, the jury the alone can decide facts, testimony weight, of the witnesses, and the value may jury contradictory and that not, whether given part by a or none of the all or evidence believe witness. urge failing error to instruct
Defendants by jury made one statement defendant, presence other is admissible as to the another, charge only conspiracy on defendant on and not pretense. charge trial of fraudulent While general judge specifically not comment in the did requested charge point, was not so this to do rec- defense counsel the conclusion thereof, judge specifically clearly ord that the trial shows jury during conformity instructed the the trial in as stated defense law counsel in motion. his During agreed defense counsel in- trial, this jury sufficiently struction to and that clear, repeated. it need not have been The statements made judge during *16 the trial the course of the trial were repeat adequate, and failure to clear and them in his charge Supe- not error. Com. v. 119 Pa. Berman, rior 181 A. Ct. 244. 315, 330, assigned
The final reason for trial new was that overemphasized charge of court the evidence of the and contentions Commonwealth. There is no charge merit in this. The complete, was full and and presented fairly jury. it the issues to the guilt The sufficient to evidence was establish of beyond defendants a reasonable and a careful doubt, of the record no review discloses reversible error. judgments of sentence are and it affirmed, is appear that defendants ordered in the court below at they may time as there such be they and called, be complied that court committed until have part any had not been thereof which their sentences or super- appeals performed were made a at the time the sedeas. J.:
Dissenting Opinion Gunther, sustaining the opinion majority I dissent from the appeals. My com- judgments view of sentence in these pels reversal. questions appeals
These involve basic two questions disposition raised: control the of all other jurisdiction Quarter (1) Sessions of the of Court appellants Dauphin try County of to indict and pretenses con- cheating by of fraudulent crimes Department High- spiracy of cheat and defraud (2) Pennsylvania, ways of the of Commonwealth sufficiency verdicts evidence to sustain the Appellants charges. con- were on these convicted in- spiring having false submitted two submit of cinders for use in Westmore- voices for 8376.15tons only allegedly de- County 5341.9 tons land when shortage valued at $4,- or a 3034.25 tons livered, 757.29. January awarded a contract was
On Pennsylvania to David E. Ank- Commonwealth points ney delivery in Westmoreland for the to certain per County ton tons of cinders at 5,000 $1.46 price per $11,- for a total tons 3,000 ton, $1.52 any Ankney that he never received 869.00. testified superintendent High- requests from the of the State Department County way for Westmoreland person other for the of cinders under year award- About a after the contract was contract. approached appellant Ankney stated ed, *17 Ankney over. like to fill the order and take it he would purchase agreed order over to and to turn him, agreed pay Ankney sum return, in payments eight the contract hundred dollars from pur- assignment of the no made. There was formal for Petrosky merely cinders order. delivered chase Ankney invoices order to him. The under the awarded prepared Ankney’s and by Petrosky billheads were Department Highway office sent him to the State processed Greensburg, County to be at Westmoreland ultimately main and office forwarded approval payment. Sub- Harrisburg office at for sequently, $12,- check for State Treasurer sent a Ankney Ligonier, Pennsylvania. Ankney at 394.58 gave personal check in cashed check his and, turn, Petrosky in amount of $11,594.58. superin- Appellants, Sell were assistant Fait, Department County tendents in Westmoreland for desig- charge Highways. Each of certain inwas townships authority to but neither of them had nated requested cinders. or order or ordered deliveries of authority Patrick J. This was vested in McShane, superintendent superin- for the area. Each assistant jurisdiction had several caretakers under his tendent had number laborers each caretaker, turn, supervision. working control cin- under his When pile any ato stock ders delivered the locali- employe signed state on hand the time ties,. accompanied delivery tickets truck copy being by the for each one driver retained load, copy being the other rec- driver and retained state ords. delivery field tickets were retained location)
(stock pile usually until a series of deliveries, days, covering had been time several at which made, over tickets were turned to the caretaker in these pile. compiled charge the stock He then on a them called material form No. records. state signed Appellants, Sell these Fait, forms respective caretakers and then them their forwarded *18 together supporting the to the with tickets, 'County, Greensburg, for main office in Westmoreland checking comparison purchase for the order and with accuracy. invoices, for these state From records, prepared that as known form No. and sent 222, were Harrisburg payment. office audit and for Appellants’ Dauphin first contention that Coun- is jurisdiction ty here offenses lacked or venue the over urges charged. the other Commonwealth, hand, disposed effectively been that this contention has ruling Prep, Pa. in under our v. Commonwealth that We held A. 2d 460. there Ct. 442, prosecution cheating by fraudulent for the crime of pretenses brought county be where should in the money completed, is offense that where the is, chattel, security that or We further held valuable is obtained. completed mailed a crime checks such was when Dauphin County by the in State Treasurer agent postmaster acting accused. as for the an posted Dauphin County When checks were Dauphin accused in delivered were, effect, County this reasons of the selection of act, postmaster agent recipient, for the was sufficient as jurisdiction upon Quarter Ses- to confer Court Dauphin County. sions of Prep supra, holding
In of our in the there view case, facts case were no doubt that if the of the instant is ques- sufficiently similar to that identical or case, jurisdiction longer an venue would no be tion of I do not the facts believe, however, issue. applied con- instant case can be to that case. The supplying cinders to for the Commonwealth was tract Ankney, it he who and was furnished made with per- required bond the Commonwealth faithful the State Treasurer dated drew formance; check, payee Ankney February to D. E. mailed 8,1957, Ligonier, Pennsylvania, where it was him re- toit deposited Ankney. for collection and cashed ceived, Dauphin Any completed County, there- transaction completed Ankney defend- fore, who is not a proceedings. evi- ant in these The Commonwealth’s Ankney Feb- dence disclosed dated drew check, ruary payable Petrosky, drawn on Ligonier, Company, National Mellon Bank and Trust *19 Pennsylvania. the In the normal course of events, depositary payable Ankney check made to the cleared check before bank of the Commonwealth he drew his theory, agency payable Petrosky. to made the Under agent postmaster Harrisburg the in Ank- was the for Petrosky. ney that and not for There is no evidence Petrosky any whatever, funds received Commonwealth any from funds received him and were received Ankney Coun- drawn on bank in Westmoreland and County. ty, cashed in Westmoreland alleged urged, It is that because however, postmaster manipulation Petrosky, agency in of the Harrisburg, mailing check, State Treasurer’s agent Petrosky of co-defend became the and the also difficulty argument Fait. this and The with Sell ants, relationship1 any agency is that there is no evidence of Ankney Petrosky nor be inferred can one between contrary, their actions. evidence, assigned performance Ankney shows Petrosky (and alleged indict this is contract agreed ment) Petrosky pay eight hun and that him filling Ankney not order. dollars did dred supervise agree filling take of the order or to steps, directly indirectly, filling-the or either is While it so far as same. the Commonwealth true, responsibility per that the of faithful concerned, was Ankney remained so bond formance far as his Ankney the transaction between concerned, was agency not but that of inde an pendent undertaking. This notwithstanding is so, fact Commonwealth was not notified of assignment. postmaster therefore, in Harrisburg, could have acted as the of a disclosed agent principal but not as an for an agent or agent agents. undisclosed defendants Sell and Fait were Moreover, present not when the agreement concluded Ankney between direct Petrosky; parties either it or and it is ly difficult to understand under indirectly, what an postmaster could have theory acted as for Sell and Fait. agent
The crime of obtaining any
chattel, money,
valu
able
fraudulent
security by
pretenses under
section
The Penal
836 of
Code of
June
P. L.
1939,
24,
872,
18 P.S. section
is
completed
amended,
when,
there coexists the
only when,
(1)
elements:
following
A false pretense;
(2)
value
obtaining
property
an
intent
to cheat
thereby;
(3)
and defraud. Com
monwealth v. Prep, supra; Commonwealth v. Hancock,
177 Pa.
Superior Ct.
A. 2d
407. The
crime
*20
pretense
fraudulent
cheating by
is not
until
complete
is obtained
the
property
by
defendant or defendants.
in
As stated
Commonwealth v.
22 Pa. Su
Schmunk,
Ct.
affirmed
perior
the
Court
by
Supreme
“
1088:
at 207 Pa.
A.
. to
an
obtain
544,
from
other
or
person any chattel, money
security
valuable
to cheat or
intent
defraud
the
person
with
of
any
the
of our
meaning
within
criminal
same,’
statute
the
and refers to
final
in
means
of
step
the succession
the
events
defendant
secures
rights
gets,
obtains
or
money
valuable
chattel,
security,
to
complete
so as
offense,
pur
consummates his
Sup
also
See
Commonwealth v.
119 Pa.
pose.”
Randle,
The crime insofar as conspiracy, In objections. is venue is same open concerned, Commonwealth v. Pa. Ct. Mezick, prose 24 A. said: “But 2d we it is well settled that in the criminal cution for be may brought conspiracy confedera combination or county where unlawful or act tion was in where an overt any county formed, further conspirators was committed in by any confederacy.” ance that unlawful combination or no All had Dauphin contend appellants County al them on this since jurisdiction charge any try West completed was formed and in leged conspiracy act The evidence overt moreland discloses no County. in furtherance of committed Dauphin County that Pe alleged object conspiracy. Admitting invoices false fraudulent allegedly submitted trosky intention alleged County Westmoreland to Harrisburg be and forwarded upon acted they is inten there such for show payment, nothing Dauphin effectuated to him in payment tion was insofar Sell defendants County. Moreover, alleged whatever overt act are Fait are concerned, West or committed to have terminated in performed re While have been they might moreland County. of the subsequent act furtherance sponsible been alleged has conspiracy, nothing objects jurisdiction over Dauphin here to County give shown *21 this offense. Dauphin
I did not conclude, therefore, County over the offenses here jurisdiction charged have should have commenced in prosecutions such County. Westmoreland
119 wheth question involved, turn to the second I now P. L. P.S. of June 585, the Act 15, er under be judgment, of -the motions arrest section 871, ver to sustain of evidence of cause insufficiency in Com As stated granted. have been should dicts, Pa. Ct. v. monwealth McSorley, the duty the court imposes upon the Act A. 2d 570, there whether entire record to determine consider the de to establish the guilt evidence is sufficient evi defendants’ all of the reject We must fendants. ac had a to disbelieve jury right dence which evidence upon all true Gommonwealth’s cept verdicts. based its could have properly jury which deliv- contends Petrosky The Commonwealth have what should tons less than of cinders ered 3034.21 de- that he submitted two material been delivered the same be submitted or caused records livery record The first are disclosed. shortages such were that 2923.90 tons of cinders to show purported Points, 5 and at Five on December 4, delivered fact, Westmoreland County when, Township, Salem a thus creating tons actually delivered, were only record purported tons. second of 2323.90 shortage tons were delivered in Penn that 1274.85 to show tons 564.54 Townships when Huntingdon only North 710.31 shortage creating actually delivered, were at signed Five Points were slips delivery tons. caretaker, Richard Y. Brahosky, J. Sell R. and North Town- Huntingdon at Penn those whereas E. Fait E. Charles and Charles signed by were ships the caretaker. Weaver, that when a truck disclosed driver
The evidence appeared respective defendant a load of he handed to cinders, sites dumping or book pad containing original the load receiver and carbon of the same. copies slips white Salem Company issued by Supply These *22 1-20 representatives by Petrosky. was owned signed the all Commonwealth and retained duplicates
original by were while returned delivery. driver as evidence of three were Commonwealth called witnesses who on the scene were when deliveries the cinders during Brahosky made. Richard V. testified that was he deliveries made December 1956, trip hunting on a and that S. a laborer, Howard Elliot, shipments receipted during days. He those two point got lot stated that at this “we an awful stocking of cinders that time. Whenever we were pile high an extra them, we had there because right up high.” He further stated that stock were this pile approximately 3000 cinders would hold tons of couldn;t engi that he be exact as he an but not was Upon testi neer. his return on December he 6, 1956, he fied that additional were that deliveries made and signed present for these deliveries. He the 2140 was signed that he this form stated would have he did not all shown form in receive if, fact, cinders cinders Howard Elliot that on the form. testified that delivered on December were pe may that loads have been more than 50 received than delivered He that more one trucker riod. testified only one he remember site but the could cinders testified Mrs. Elizabeth Battistella Battistella. was delivery of 600 cinders her showed tons of records that that (cid:127)by 4 and her on December 1956 and trucks by nothing 6th. trucks on delivered her December testimony, with this the Common- In connection attempted prove only 600 of cinders tons wealth trucks actually delivered delivered—that were Trucking Company. However, of Battistella it testimony these witnesses for Commonwealth, more than tons of cinders obvious became one actually Elliot testified than more delivered. period day during trucker cinders delivered the two charge Brahosky he additional testified to 1956. deliveries other truckers on December 6, Department, E. J. auditor for the Justice Mellman, arriving shortage testified that in at the claimed *23 only delivery he records examined Commonwealth, Trucking Company of Battistella other rec- and had no by ords of him. deliveries other to truckers submitted Regarding alleged shortage to of deliveries Huntingdon Townships, Penn and North Charles period during testified that Weaver, caretaker, from December 3 to care- December he was the kept taker at the two stations some that he involved; of the records—but not all—in a little that book; December delivery his records 3rd, showed loads at one 36 loads on but station, December 4th, kept no accurate records of deliveries for the vendor’s (Petrosky’s) trucks but that whatever were were made turned over to the de- that accurate Commonwealth; livery kept by only records were him of the Wareham that on trucks; December Wareham delivered 6th, pile loads other stock De- station and that on cember plus 1956, Wareham trucks delivered 8 loads “whatever the vendor was.” He further testified there were records deliveries other than loads the 74 kept definitely he records on but that such deliveries were turned over and that there could more have been during period. than 74 loads this Weaver testified that he was unable to make out the first material de- livery gave form delivery record, and that he slips piles from the requested stock him to Fait and make out first form. Weaver out Thereafter, made Ms testimony own forms. This also de- disclosed that fendant hunting Fait trip was on a when first these delivery slips deliveries were made and received and upon up his return Fait made the 2140 form from handed to him Weaver. When he signed was satisfied this Weaver, Fait form, he, represented delivered. had been thereon the cinders supposed Fait was of this evidence, in view how, Just signed form 2140 records fraudulent false and to have either this witness not disclosed has been witness. other Commonwealth by Mellman conducted the audit connection with In only the he used he testified that on these deliveries, his contained in Weaver as records furnished actual shortage by the claimed at the to arrive little book did other records he available, If Commonwealth. shortage. arriving alleged these in at the consider upon verdict testimony to sustain relied Ankney. primarily ad- In against came evidence has referred heretofore, been dition what dates produced that six months after show question several 2140 forms in forth in set two *24 payment actually received made and after was months Petrosky employes, Ankney, James by one of asked his change original de- truck drivers’ Lattimer, G. weigh- slips sign by having livery him new forms as changes conceding im- that such were While master.1 suspicious proper circum- done under somewhat slips bearing on no new could have had such stances, pretenses original charge of fraudulent since the Greensburg slips to the office of were submitted Department Highways 1956. on December State charge con- such evidence sustain the Neither could unequivocal testimony spiracy of the Bra- in view they hosky not Weaver that had seen later these up slips delivery that form 2140 was made slips original made these but was from de- from delivery slips required at the time were not to be sub These part required pay Harrisburg as mitted to documents for ment, did and the Commonwealth not nor could have relied payment. slips making such possession forms livery the time. Such in their signed by that time Fait at defendants Sell and were subsequent rewriting of the and not slips. brought out testimony of the Commonwealth, all that when
under disclosed cross-examination, compiled against sub- the invoices forms 2140 were as by Petrosky, 8076.15 mitted deliveries totalled Ankney. There a check issued to tons for which was presented any short no evidence which disclosed except by audi- as testified to deliveries Mellman, upon ex- he stated that based the records who tor, shortage con- amined or was instructed to examine, by was indicated. tended Commonwealth produced testimony here fell Such far short beyond necessary evidence sustain conviction pretense is reasonable doubt. The false or fraudulent predicated allegedly submitted on two false invoices by Ankney no on billheads of but there was produced respect evidence show in what these in voices were fraudulent. It is admitted the Com prepared that neither Sell nor Fait either monwealth presented or invoices. There no evidence, these except suspicion signed that the forms 2140 surmise, Fait Fait or Sell were in fact false or that either false. or Sell knew Such convictions based upon suspicion or surmise cannot stand. Common supra. McSorley, wealth v. may jury intent be
Criminal
inferred
circumstances
facts and
which are of such nature as
*25
prove
guilt beyond
defendants’
a
doubt.
reasonable
v. Kloiber,
Commonwealth
378 Pa.
820;
106 A. 2d
412,
Homeyer,
v.
Commonwealth
373 Pa.
I sustain the objection jurisdiction would Basic the motions in arrest of grant judgment. would cannot be where principles point stretched to a legal con- become desire to meaningless simply to- path I consider the decision as the majority vict. of those we principles misconstruction of law ward considered settled. have
Dissenting Opinion J.: Watkins, in the dissent join but would Judge I Gunther add that the decision ful in this case majority fills the made in prediction opinion my dissenting Com. v. 187 Pa. A. Ct. Rogers, “The 2d 662 on the (1958), majority rely authority Pa. opinion Com. v. Superior Ct. Prep, *26 (1958). unfortu- an I this to be 2d 460 believe A. legislation, represents judicial opinion nate sheer any con- act of I overt do believe .... not However, Prep spiracy by defendant in committed Dauphin appellants in in this case, case or Prep County. to this extension decision certainly in the doctrine that establishes case most instrumentality agency involving the Com- or case an will conspiracy charged, venue where a is monwealth, writer’s.) Dauphin County.” (Emphasis lie beyond majority reasoning its extends Here, Prep Rogers so that the that the locus cases law always no that a court of the crime is in issue and has jurisdiction of the offense unless committed in Supe- county 170 Pa. where Com. v. tried, Tarsnane, longer (1952), no has va- rior 85 A. 2d Ct. 265, lidity. J.: Dissenting Opinion Montgomery, Judge opinion join dissenting in the Gunther I theory agree relied on I not
because can with presumed may agencies tacked majority be justification for transfer- or infinitum as means ad Dauphin County ring Westmore- from these cases to payment, including oc- County, everything, land where Petrosky, or Sell, There is no evidence curred. Dauphin County Postmaster Fait constituted ever Payment agents. Ankney his or their or Dauphin County in Westmore- but made to that Sell there is no evidence land; and, furthermore, anywhere. paid anything ever or Fait were join there the reason that the dissent also for I circumstantial, direct or no evidence, is charged any criminal intent, be or Sell can Fait charged important ingredient against in the crimes an them. ju- of lack of actions because dismiss these
I would Quarter Sessions in the Court risdiction venue Dauphin County. *27 Pennsylvania Bank, National
Western Appellant, Bradish. v.