Commonwealth v. PETROSKY

Opinion by

Rhodes, P. J.,

The defendants, Roland J. Sell, Charles E. Pait, and Prank J. Petrosky, were indicted in Dauphin *99County for cheating by fraudulent pretenses1 the Commonwealth of Pennsylvania, Department of Highways, of the sum of $4,757.29 in connection with the sale of cinders for use in Westmoreland County, and with conspiracy to defraud.2 The Commonwealth contended that Petrosky obtained this sum of money in payment for 3034.21 tons of cinders which he did not deliver, and that Sell and Fait, who were assistant superintendents in Westmoreland County for the Department of Highways, aided and abetted him. The three defendants were convicted by a jury on both indictments. Each defendant filed a motion in arrest of judgment and for a new trial.

These motions raised the questions (1) whether the Dauphin County Court had jurisdiction to try these cases; (2) whether the evidence was sufficient to sustain the verdicts; and (3) whether, due to alleged trial errors, a new trial should be granted.

From the judgments of sentence, defendants have appealed.

A contract, or purchase order, dated January 17, 1956, was awarded by the Commonwealth to David E. Ankney. The contract called for the delivery by Ankney to the Commonwealth for the Department of Highways of 5,000 tons of cinders at $1.46 per ton and 3,000 tons of cinders at $1.52 per ton, or a total price of $11,869. Ankney never received any request for delivery of cinders under this contract. Approximately one year after the award of the contract, Petrosky approached Ankney and offered to fill the contract and take it over. Ankney agreed to turn the purchase order over to Petrosky, and in return Petrosky agreed *100to pay Ankney $800 from the contract payments. Ankney turned the purchase order over to Petrosky although no formal assignment of the contract was made. Petrosky requested billheads from Ankney because the cinders had to be billed in Ankney’s name. Petrosky then filled out the billheads and submitted them. Ankney received a check of the Commonwealth issued by the State Treasurer in the amount of $12,394.58. Ankney cashed the check and drew a check payable to Petrosky in the amount of $11,594.58, which was the balance after $800 was deducted.

Defendants Sell and Fait were each in charge of a certain designated area. When cinders were delivered to a stockpile in a given locality, a state employe would sign the delivery slips or tickets which accompanied a truck driver for each load, one copy being retained by the driver, the other retained for state records. These accumulated delivery slips were used by caretakers and assistant superintendents as a basis for compiling and executing a material delivery record known as Form 2140. Sell and Fait, as assistant superintendents, signed these forms, together with their respective caretakers, and forwarded them with the supporting delivery tickets, to the Department of Highways at Greensburg, Westmoreland County. The Greensburg office checked and compared these forms with the purchasing order and then prepared state invoices known as Form 222, which were sent to Harrisburg for audit and payment. Payment was made as previously indicated. The fraud was discovered and these prosecutions were instituted in Dauphin County.

Jurisdiction and venue were in Dauphin County.3

The crime of cheating by fraudulent pretenses is not completed until property is obtained by the de*101fendant, but it is not essential for purposes of jurisdiction that the prosecution be brought only in the county in which the defendant in person actually obtains possession of the object. Jurisdiction has been held to rest where the circumstances show that, for all practical purposes, the object has been placed within the control of the defendant. Com. v. Prep, 186 Pa. Superior Ct. 442, 447, 448, 142 A. 2d 460.

Defendants argue that the Court of Quarter Sessions of Dauphin County has no jurisdiction of the crime of cheating by fraudulent pretenses or of the conspiracy indictments because the check of the State Treasurer was made payable to Ankney and mailed to him at Ligonier, Westmoreland County, where it was deposited by Ankney, and a new.check written to the order of Petrosky. They further argue that the' transaction was not complete until Petrosky received the check from Ankney. For these reasons, defendants seek to distinguish this case from the Prep case.4

We fail to see a substantial distinction on the question of jurisdiction (venue) between the Prep case and the one at bar. We agree with Judge Kreider of the court below when he said in his opinion: “By persuading Ankney to ‘assign’ the contract, by the utilization of Ankney’s billheads and by making the agreement whereby Ankney would pass on to Petrosky the Commonwealth’s remittance, less the sum of $800.00, Petrosky in effect constituted Ankney as his .agent in the fraudulent scheme. It is true that in this case the postmaster at Harrisburg upon receipt of the Commonwealth’s cheek addressed to Ankney, became the *102latter’s agent. However, because of the prior manipulated agency status that Petrosky had thrust on Ankney, the Harrisburg postmaster in mailing the 'State Treasurer’s check also became the agent of the defendant Petrosky and the codefendants Sell and Fait. The chain of control was longer and perhaps more devious in the instant case than it was in the Prep case, but when traced from the beginning to the end it discloses an unbroken trail from the Treasury of the Commonwealth to the defendant Petrosky. The crime was complete and the object of the false pretense was 'obtained’5 in Dauphin County when the check of the State Treasurer was placed in the hands of the innocent postmaster at Harrisburg. The accomplishment of this act, together with that of sending to Harrisburg the false material delivery records signed by Sell and Fait, constituted overt acts in Dauphin County by the defendants in furtherance of the conspiracy.”

It is also well settled that prosecution for a criminal conspiracy may be brought in the county where the unlawful combination or confederacy was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of that unlawful combination or confederacy. Com. v. Prep, supra, 186 Pa. Superior Ct. 442, 450, 142 A. 2d 460; Com. v. Mezick, 147 Pa. Superior Ct. 410; 413, 24 A. 2d 762. We said in the Prep case (page 451 of 186 Pa. Superior Ct., page 465 of 142 A. 2d) : “It is a well established theory of the law that, where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual; . . .” See, also, Com. v. Rogers, 187 Pa. Superior Ct. 471, 483, 144 A. 2d 662.

In the instant case, Petrosky with the aid of Sell and Fait put in force an agency for the commission *103of the crime, and they, in legal contemplation, accompanied the same to the point where it became effective, that is, in Dauphin County where the check was mailed to the agent Ankney by whom the fruits of the conspiracy were delivered to Petrosky.

Defendants’ objection to jurisdiction (venue) were properly dismissed.

In support of their motions in arrest of judgment and for a new trial, the defendants argue that the evidence was insufficient to sustain their conviction of either of the crimes charged.

The crime of obtaining any chattel, money, or valuable security by fraudulent pretenses, under section 836 of The Penal Code of June 24, 1939, P. L. 872, as amended, 18 PS §4836, is completed when there coexist the following elements: (1) A false pretense;

(2) an obtaining of property of value thereby; and

(3) an intent to cheat and defraud. Com. v. Prep, supra, 186 Pa. Superior Ct. 442, 446, 142 A. 2d 460.

The elements of the crime of conspiracy are (1) a combination of two or more persons, (2) with criminal intent or corrupt motive, (3) to do a criminal or unlawful act or an act not in itself unlawful by criminal or unlawful means. Com. v. Kirk, 141 Pa. Superior Ct. 123, 137, 14 A. 2d 914.

The evidence viewed in a light most favorable to the verdicts (Com. v. Mitchell, 181 Pa. Superior Ct. 225, 227, 124 A. 2d 407) is as follows:

Earl J. Mellman, the expert witness for the Commonwealth, stated that, as a result of his audit, Petrosky, through Ankney, was paid for 3034.21 tons of cinders which were not delivered, resulting in a total overpayment of $4,512.23. The Commonwealth proved that the shortage of this amount of cinders arose out of fraudulent claims covering alleged deliveries of cinders by Petrosky as set forth in two material de*104livery records, Form 2140. The first purports to show that 2923.90 tons of cinders were delivered on December 4, 5, and 6,1956, at a place known as “Five Points,” Salem Township, Westmoreland County, when in fact only 600 tons were delivered, thus creating a shortage of 2323.90 tons, which represented an overcharge of $3,432.56. This material delivery record was signed by defendant Sell, as assistant superintendent, and by Richard V. Brahosky, a caretaker, at the “Five Points” location. The second material delivery record was signed by the defendant Fait, as assistant superintendent, and by Charles E. Weaver, a caretaker, at or near Irwin in Penn Township and North Huntingdon Township. Petrosky submitted a claim for 1274.85 tons of cinders, when in fact the evidence tended to show that only 564.54 tons were actually delivered, thereby creating a shortage of 710.31 tons, resulting in an overpayment of $1,079.67. The overcharges total $4,512.23.6

The evidence indicates that, when Petrosky’s truck driver appeared with a load of cinders at the State stockpile, he would hand to the employe receiving the cinders a pad or book containing original white delivery slips and carbon copies designated “Weighmaster’s Certificate.” These slips were issued by the Salem Supply Company which was owned by Petrosky. The receiver of the cinders would sign and detach the original white delivery slips from the truck driver’s pad and deliver them to his superior, known as a “caretaker,” who would use them in preparing his material delivery record, Form 2140, and who would in turn deliver them to the assistant superintendent. The assistant superintendent would turn them over to the *105invoice clerk and chief clerk for checking. The duplicate delivery slips would be returned by the truck driver to his employer, Petrosky. Petrosky then billed the Department of Highways for the cinders he allegedly hauled.

The original delivery slips used by Petrosky gave considerable detailed information including the net weight, weighmaster’s license number and signature, the name of the truck driver, and the vehicle license number. The Commonwealth established that 298 original delivery slips were removed from the Greensburg office of the Department of Highways by Petrosky, and others were substituted. Petrosky’s explanation was that in April, 1957, he received a call from a woman in the office at Greensburg advising him that the weighmaster’s license number was missing from the slips, and that he should have them “re-made.” The new slips were compiled on a form used by grocery stores. These grocery type slips were prepared by James G. Lattimer, Petrosky’s employe, and signed by him as “weighmaster,” although he did not originally weigh the cinders. No vehicle number, driver’s name, or signature of any receiver appeared on the new slips. Petrosky then testified that he returned the originals and the re-made slips to the highway shed. However, the investigating officer, Boy O. Wellendorf, testified that Petrosky admitted giving these substituted delivery slips to Sell and Fait “to be applied” in their respective sections of the Department of Highways.7 The originals were never found. Petrosky testified that he did not keep his own duplicate delivery receipts.

The jury could properly find from the evidence that Petrosky fraudulently removed the original delivery slips and substituted others to conceal fraudulent *106claims he had made for cinders never delivered. The “re-made” slips were wholly unnecessary if in fact the original white delivery slips were genuine, as, in that event, it was only necessary that the weighmaster write his name and license number on those slips at the office of the Department of Highways at Greensburg.

With respect to Fait, the Commonwealth’s evidence showed, and Fait admitted, that he prepared the material delivery record which showed a shortage of 710.81 tons, signing it as the person actually receiving the material. Although he never in fact received any cinders on December áth and 5th because he was absent on a deer hunting trip, he took the tickets to the highway shed in Greensburg and made up Form 2140 at the request of his caretaker, Weaver, who had received the cinders in Fait’s absence. Fait testified that he kept no record of the 2140 forms which he signed, and that, although it was not his job to check the material delivery slips as against the 2140 forms, he would have to check the material delivery slips “to some extent.” He further testified that Petrosky never turned any material delivery slips over to him, and that the slips he received from Weaver were their regular slips. He testified that he rarely made out 2140 forms; that they were usually prepared by the caretaker.

Fait’s caretaker, Weaver, testified that he kept a record of deliveries between December 3 and 7, 1956, in a “little book.” This book was produced at the trial and disclosed the license numbers of the trucks making delivery, the number of loads, and, in some instances, the names of the truck drivers. This was one of the records which the Commonwealth’s expert witness, Mellman, used to determine the shortage which existed.

Sell admitted signing the material delivery record with his caretaker, Brahosky, covering deliveries on December 4th, 5th, and 6th, on which the Common*107wealth showed a shortage of 2323.90 tons of cinders. Brahosky testified that he was deer hunting on December 1th and 5th; that he signed the material delivery record upon his return on December 6, 1956; and that a laborer named Howard S. Elliott actually receipted for the cinders and turned the material delivery slips over to Brahosky who gave them to Sell. Elliott was indefinite as to the number of loads received at Five Points on the dates in question, although he recalled that the Battistella Trucking Company delivered fifty loads.

■Sell testified that, when he received the delivery slips and Form 2110 from Brahosky, the form was not fully made out. He took it to the highway shed and had the clerk total the slips on an adding machine and then returned it to Brahosky for his signature. Sell claimed that he did not check the delivery slips against the totals. He stated that the white original and the carbons of Form 2110 material delivery record should have been completely filled out initially. However, the exhibits indicated that the pink copy was not complete and contained no tonnage. Further, the entries on the yellow copy, showing the date and authorization number, were in carbon, while the route, operation number, and the number of pounds of cinders allegedly delivered were in pencil. Sell was not able to explain these discrepancies.

The evidence involved was largely documentary and circumstantial. That the evidence was wholly or largely circumstantial is not fatal if it appears that the evidence is such as reasonably and naturally justifies an inference of guilt of the accused and is of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the guilt of the accused beyond a reasonable doubt. The nature of che crime of conspiracy makes it such that it is rarely susceptible of other proof than by circumstantial evi*108dence. Therefore, in a conspiracy trial, when fraud is involved, there is a wide latitude allowed in the introduction of evidence. Com. v. Evans, 190 Pa. Superior Ct. 179, 201, 202, 154 A. 2d 57, affirmed 399 Pa. 387, 160 A. 2d 407.

We are of the opinion that the evidence taken as a whole shows that the defendants Sell, Fait, and Petrosky were parties to a conspiracy to cheat and defraud the Commonwealth; that they succeeded in their unlawful plan; and that Petrosky obtained the fruits of the conspiracy, and Sell and Fait aided and abetted him in achieving that unlawful goal.

Defendants raised numerous alleged trial errors. They allege first that a fair trial was denied because they were not permitted to select the indictments which the Commonwealth should call for trial. The defendants requested that all fourteen indictments concerning Westmoreland County and involving numerous defendants be tried at the same time. The trial judge was of the opinion that to do so would be chaotic and confusing to the jury. There is no merit to the defendants’ argument. The consolidation of two or more indictments for trial is in the discretion of the trial court. Com. v. Evans, supra, 190 Pa. Superior Ct. 179, 230, 154 A. 2d 57. The court below did not abuse its discretion by refusing the defendants’ request.

The trial judge did not err in his refusal of defendants’ point for charge to the effect that, if the jury found that the 298 grocery type delivery slips were not prepared until after December 21, 1956, the date of the conspiracy and fraudulent pretenses alleged in the indictments, they could not find defendants guilty of fraudulent pretense. This request is based on an erroneous conception of the Commonwealth case. The Commonwealth showed that false Forms 2140 were prepared by Sell and Fait prior to December 21, 1956. The date of the preparation of the substituted delivery slips *109was not determinative on the issue of fraudulent pretenses. 'Substitution of the slips, either before or after December 21, 1956, was a circumstance tending to establish the fraudulent scheme charged in the indictment.

The trial judge properly refused a supplemental point for charge submitted by the defendants which, in effect, requested the court to charge the jury with respect to an alleged factual matter which was not in evidence but which the defendants desired the Commonwealth to stipulate. The Commonwealth refused, and the matter ended with no stipulation being agreed upon. There being no evidence to warrant the point for charge, the trial judge properly declined to so charge the jury.

Two prospective jurors, on their voir dire examination, inadvertently stated they had formed an opinion and would convict defendants. Both were properly challenged for cause and dismissed, and the trial judge immediately directed the jurors already sworn to disregard the remarks. A motion to withdraw a juror is addressed to the sound discretion of the trial judge, and his action will only be reversed for abuse of discretion. Com. v. Schumann, 162 Pa. Superior Ct. 330, 333, 57 A. 2d 425. There was no error in the refusal of the trial judge to withdraw a juror on this ground.

Defendants argue that the trial judge erred in allowing to be introduced in evidence the “bid proposal” attached to the purchase order, the contract awarded in the first instance to Ankney. This bid proposal was an integral part of the purchase order, and an offer of proof to establish its relevancy was not required. Moreover, the fact that the bid proposal as well as the purchase order called for deliveries in Ligonier Township, while the evidence showed deliveries to Salem Township and North Huntingdon Township, is of no consequence because the court had instructed the jury *110that the Commonwealth’s theory was a non-delivery of cinders, and nothing else.

The trial judge did not err in allowing Ankney to testify concerning his ability to deliver cinders under the purchase order and as to what he considered in making up his bid. The Commonwealth was entitled to show the manner in which Ankney obtained his purchase order and the background of the relationship between Ankney and Petrosky. As we have indicated, in a conspiracy trial, where fraud is involved, there is a wide latitude allowed in the introduction of evidence. Com. v. Evans, supra, 190 Pa. Superior Ct. 179, 202, 154 A. 2d 57. This testimony had no adverse effect on either Sell or Fait because, at its introduction, the trial judge told the jury that neither Sell nor Fait had anything to do with the actual ordering of cinders.

Nor did the trial judge err in admitting into evidence the 298 substituted grocery type material delivery slips. Although they were not the original delivery slips they were clearly admissible. The witness Lattimer stated that these substitute slips could have been prepared by him as early as December, 1956. The jury would thus have been justified in finding that they were an integral part of the false pretenses, since they predated the invoice and payment by the Commonwealth. The exhibits in question were also admissible in that they tended to show an effort on the part of Petrosky to conceal, by destruction, the original delivery slips.

Defendants argue that the trial judge erred in sustaining the Commonwealth’s objections to questions asked by the defense on cross-examination. In each of these situations, the defense attempted to exceed the scope of direct examination and introduce new issues and matters of defense. The scope of cross-examination is largely within the sound discretion of the trial judge. Com. v. Cano, 182 Pa. Superior Ct. 524, 549, *111128 A. 2d 358. The orderly nature of trial proceedings calls for the introduction of one side at a time. The trial judge did not err in requiring the defense to withhold its evidence until the conclusion of the Commonwealth’s case.

The trial judge properly refused defendants’ motion to strike the expert testimony of the Commonwealth witness Mellman who testified concerning the shortage which his audit revealed. The witness properly established himself as an expert. He then testified concerning the documents he examined, and gave his opinion that a shortage of cinder deliveries existed and that an overpayment resulted. Where, as here, the original records are in court and available for examination by defendants, and where the witness testifying to the summary made therefrom is available for detailed cross-examination, it rests within the sound discretion of the trial judge as to the admissibility of a compact summary as a substitute for the voluminous original records. Keller v. Porta, 172 Pa. Superior Ct. 651, 657, 94 A. 2d 140.

Defendants argue that the trial judge erred in sustaining objections by the Commonwealth to the cross-examination of the investigating officer Wellendorf as to whether he had shown certain material delivery records to Raymond A. Davis, a caretaker, and whether the latter had told Wellendorf that he had not previously seen delivery slips allegedly supporting six 2140 forms. These particular records were not the subject of criticism by the Commonwealth and were irrelevant to the issues. No claim was made that the six forms in question were false. The ruling was correct.

Defendants also complain of the alleged error of the trial judge in refusing their requested instruction that a party calling a witness holds that witness out as a truthful person and is bound by his testimony. *112This request was not timely presented to the court. However, the court, in its general charge, instructed the jury that they alone can decide the facts, the weight, and the value of the testimony of the witnesses, whether contradictory or not, and that the jury may believe all or part or none of the evidence given by a witness.

Defendants urge error in failing to instruct the jury that a statement made by one defendant, not in the presence of another, is admissible as to the other defendant only on the charge of conspiracy and not on the charge of fraudulent pretense. While the trial judge did not comment specifically in the general charge on this point, and was not requested to do so by defense counsel at the conclusion thereof, the record shows that the trial judge specifically and clearly instructed the jury during the trial in conformity with the law as stated by defense counsel in his motion. During the trial, defense counsel agreed that this instruction to the jury was sufficiently clear, and that it need not have been repeated. The statements made by the trial judge during the course of the trial were clear and adequate, and failure to repeat them in his charge was not error. Com. v. Berman, 119 Pa. Superior Ct. 315, 330, 181 A. 244.

The final reason assigned for a new trial was that the charge of the court overemphasized the evidence and contentions of the Commonwealth. There is no merit in this. The charge was full and complete, and it fairly presented the issues to the jury.

The evidence was sufficient to establish the guilt of defendants beyond a reasonable doubt, and a careful review of the record discloses no reversible error.

The judgments of sentence are affirmed, and it is ordered that defendants appear in the court below at such time as they may there be called, and that they be by that court committed until they have complied with *113their sentences or any part thereof which had not been performed at the time the appeals were made a supersedeas.

Section 836 of The Penal Code of June 24, 1939, P. h. 872, as amended, 18 PS §4836.

Section 302 of The Penal Code of June 24, 1939, P. L. 872, as amended, 18 PS §4302.

For a discussion of the distinction between jurisdiction and Tenue, see McGinley v. Scott, 401 Pa. 310, 164 A. 2d 424.

In the Prep ease, the check was made payable to Prep and was mailed directly to him in Schuylkill County. We held that the crime was completed upon the mailing of the check in Dauphin County by the State Treasurer, and that the postmaster was acting as the agent for the accused.

See Com. v. Schmunk, 22 Pa. Superior Ct. 348, 355.

The difference between the $4,757.29 claim in the indictment and the $4,512.23 represented certain miscellaneous items for an alleged overcharge in hauling which were not submitted to the jury by the trial judge for lack of sufficient evidence.

As to Sell and Fait the testimony was limited by the trial judge to the charge of conspiracy.