Commonwealth v. Tumolo

Opinion by

Packel, J.,

The defendant was indicted in Philadelphia for conspiracy and for faking insurance claims with respect to two alleged automobile accidents, one in Philadelphia and one outside Philadelphia. The court below quashed *191the indictments on the ground that there was no evidence of any overt act that occurred in Philadelphia. The notes of testimony of the preliminary hearing reveal the position of the Commonwealth that the two claimed accidents were part and parcel of a broad scheme by the appellee and others involving overt conduct in Philadelphia and elsewhere.

The Commonwealth showed that the first accident which took place outside Philadelphia on December 16, 1970, purportedly involved the defendant’s car and two other cars. Payments for damages to those cars were made on the basis of the defendant’s statement that he had been negligent. One of the cars, even though it had been sold as a wreck a year before the accident, was shown to have been the subject of insurance claims for additional accidents on December 8, 1969 in Philadelphia and on March 21, 1970, outside Philadelphia. The other car, titled in the name of a Philadelphian, was the subject of claims paid for in connection with two later accidents, even though in the time involved it had only been driven 53 miles. One of those accidents allegedly occurred in Philadelphia, and the car had in fact been examined for its damage in Philadelphia.

The second accident dealt with in the indictments was reported as having happened on January 25, 1970, in Philadelphia. The defendant represented that he was negligent with respect to a car titled in the name of a Philadelphian. The car was inspected in Philadelphia in conjunction with the insurance claim. This same car, within a one month period, was purportedly involved in other accidents involving Philadelphia residents for which insurance claims were paid.

The Commonwealth also showed that many accident reports involving these cars and others were in different names but were made in the handwriting of two persons. It was also shown that the defendant’s employer had been arrested in connection with claims involved in this case.

*192The law is clear that, absent legislation, the jurisdiction of criminal courts extends only to offenses committed within the county of trial. Commonwealth v. Simeone, 222 Pa. Superior Ct. 376, 294 A. 2d 921 (1972). Where a conspiracy is involved, however, it is established that overt acts by any one of the conspirators in a county is enough to give jurisdiction to a criminal court in that county. In Commonwealth v. Thomas, 410 Pa. 160, 164, 189 A. 2d 255, 258 (1963), the Court held: “It is well settled that within the Commonwealth . . prosecution for criminal conspiracy may be brought in the county where the unlawful combination or confederation 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’: [Citations].” Likewise, as pointed out in Commonwealth v. Prep, 186 Pa. Superior Ct. 442, 451, 142 A. 2d 460, 465 (1958), jurisdiction because of overt acts can exist as to substantive crimes wholly or partially committed in the county by any one of the conspirators: “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; consequently, in many circumstances one may become liable to punishment in a particular jurisdiction while his personal presence is elsewhere, and in this way he may even commit an offense against a state or county upon whose soil he has never set his foot.”

The immediate facts relating to the two alleged accidents have rather limited contacts with Philadelphia. Nonetheless, the overall relationships and the testimony presented by the Commonwealth with reference to the many false claims show a clear basis for the Commonwealth’s position as to overt acts occurring in Philadelphia. A conspiracy involving Philadelphian and nonPhiladelphian claimants can be the subject matter of *193indictments in Philadelphia with respect to non-Philadelphian claimants. The instant indictments involve claims presented and promoted by a non-Philadelphian against a non-resident insurer, and payments mailed or possibly delivered outside Philadelphia. Nonetheless, Philadelphia has jurisdiction if these situations are part and parcel of a broad scheme that encompasses Philadelphians and overt conduct in Philadelphia.

Manifestly, the non-residency of the defendant is immaterial. In Commonwealth v. Mezick, 147 Pa. Superior Ct. 410, 413, 24 A. 2d 762, 764 (1942), Keller, P. J., pointed this out in an insurance fraud case, and held that no overt act has to be set forth in the indictment : “The appellant contends that the Court of Quarter Sessions of Susquehanna County had no jurisdiction because there was no proof of any unlawful combination or confederation within that county, all the defendants being residents of Lackawanna County or Luzerne County. But it is well settled that prosecution for criminal conspiracy may be brought in the county where the unlawful combination or confederation 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. ... No overt act need be set forth in the indictment.” Even if there were any uncertainty as to the sufficiency of proof as to jurisdiction, the settled rule is that a court “should not sustain a motion to quash an indictment except in a clear case.” Commonwealth v. O’Brien, 181 Pa. Superior Ct. 382, 397, 124 A. 2d 666, 674 (1956).

The order quashing the indictment is reversed.