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COMMONWEALTH v. ROGERS ET AL. (09/16/58)

THE SUPERIOR COURT OF PENNSYLVANIA


September 16, 1958

COMMONWEALTH
v.
ROGERS ET AL., APPELLANTS.

Appeals, Nos. 6 to 12, inclusive, March T., 1959, from judgments of Court of Quarter Sessions of Dauphin County, Jan. T., 1957, No. 217, in case of Commonwealth of Pennsylvania v. Donald Burkert et al. Judgments affirmed.

COUNSEL

David S. Kohn, with him Warren G. Morgan, for appellant.

Frank McGuigan, for appellant.

Eugene Nogi, with him Russell J. O'Malley, Bernard Rothman, and Nogi, O'Malley & Harris, and Handler & Rosenberg, for appellant.

Huette F. Dowling, District Attorney, with him Charles J. Ware and Alfred P. Filippone, Special Assistant Attorneys General, and Thomas D. McBride, Attorney General, for Commonwealth, appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Rhodes

[ 187 Pa. Super. Page 473]

OPINION BY RHODES, P.J.

Thirteen defendants*fn1 were indicted in the Court of Quarter Sessions of Dauphin County for conspiracy to cheat and defraud the Pennsylvania Turnpike Commission, an instrumentality of the Commonwealth of Pennsylvania. Prior to trial four of the defendants*fn2

[ 187 Pa. Super. Page 474]

    entered pleas of guilty; another defendant*fn3 was seriously ill and could not appear, and his case was continued. The remaining eight defendants*fn4 pleaded not guilty, and were convicted after trial before a jury. Each filed motions in arrest of judgment and for a new trial which were overruled by the court below, and sentence was imposed. Subsequently one of the defendants, Walter G. Ketas (also known as Walter J. Ketas) withdrew his motions and presented himself for sentence. Seven defendants have appealed to this Court.

Each appellant has questioned the jurisdiction of the Court of Quarter Sessions of Dauphin County to try the offense charged in the indictment. Two of the appellants, Donald Burkert and Evan Moses, also contend that the evidence was insufficient to sustain their convictions. No other question has been raised on appeal.

On February 28, 1955, the Pennsylvania Turnpike Commission entered into a contract with Manu-Mine Research and Development Company relating to certain phases of the construction of the Northeastern Extension of the Pennsylvania Turnpike. Subsequently, on August 10, 1955, the commission, at Harrisburg, entered into a contract with Joseph Rogers and Amos Rogers, trading as Rogers Construction Company, for the slushing of mine areas on the turnpike in the vicinity of Scranton, Lackawanna County. Another contract, dated August 29, 1955, executed at Harrisburg, provided for the slushing of mine areas by the Rogers Construction Company along the line of the Northeastern

[ 187 Pa. Super. Page 475]

Extension also in the vicinity of Scranton. Under these two contracts Rogers Construction Company was to furnish an estimated 716,742 tons of silt and 563,130 tons of sand at $1.71 and $1.81 per ton, respectively. These materials were obtained from nearby sources and hauled in trucks by the Rogers Construction Company to boreholes drilled by Manu-Mine. At the boreholes the truck loads of silt and sand were slushed through a pipe and used to fill the mined-out areas under the proposed turnpike extension. The work was to be performed under the supervision of Manu-Mine Research and Development Company. Manu-Mine maintained inspectors who checked the material at the loading points and at the boreholes where the material was deposited. Weight or delivery slips were issued by Manu-Mine inspectors at the loading point in the form of an original and four copies. Of the five slips one copy was retained by the Manu-Mine inspector at the delivery point, one copy was remitted to the office of Manu-Mine at Moosic, one copy was retained at the loading point; Rogers Construction Company received two copies, one of which was sent to Harrisburg.

George Oswald, one of the thirteen defendants originally indicted, was superintendent of Rogers Construction Company; he entered a plea of guilty before trial and testified for the Commonwealth. His testimony clearly established the formation and the existence of the conspiracy. This witness said that from the Lackawanna River to Taylor the mined-out areas were numerous and the holes bored accommodated substantial fill, but that beyond Main Street in the Borough of Taylor the holes drilled by Manu-Mine took much less material than had been estimated. He also testified that in October, 1955, Walter G. Ketas, general manager of Rogers Construction Company, in the

[ 187 Pa. Super. Page 476]

    presence of Joseph Rogers, requested him (Oswald) to attempt an arrangement with the Manu-Mine inspectors so as to secure delivery slips for material not actually furnished. Oswald testified: "So, one day I was called up to the office, and Mr. Ketas said, 'George, your tonnage is slipping. What is the matter down there?' I said, 'Well, we just can't get the estimated quantities down the holes. The holes aren't taking it. They are not open on the bottom. All we can get in is what is filling up the hole.' He said, 'Can't you do anything down there with those inspectors?'"

Accordingly, Oswald contacted the inspectors of Manu-Mine and ascertained that they would furnish extra slips in return for payment of $50 a week to each. Oswald named the Manu-Mine employes who were paid by him as Fronduti, Williams, Chiazza, Hines, Munley, Jones, Lipferg, and Moses. Fronduti, Munley, and Williams testified for the Commonwealth. Chiazza, Havard, Hines, and Lipferg testified before the investigating grand jury. Their testimony was read into evidence against them, and limited by the trial judge to each of them alone.

Havard was employed by the Rogers Construction Company and performed the same service at night as Oswald did in the daytime. They collected the spurious slips from the inspectors at the loading point and delivered them to the inspectors at the delivery point. Apparently the truck drivers did not receive copies of such slips. Burkert was superintendent of the slushing operation for Manu-Mine.

Oswald stated that, from November 1, 1955, to February, 1956, when the work was suspended, he received the money in the form of $50 bills from Joseph Rogers and Ketas, and paid the inspectors on Friday night or Saturday morning. In the beginning truck

[ 187 Pa. Super. Page 477]

    loads of material that could not be used to fill the mine areas were dumped at convenient places, while false slips were issued for trucks which were not in service. Later those involved developed a plan known as "Ring-Around-the-Rosey," whereby the truck drivers hauled the same load back and forth, and false slips were signed by the inspectors falsely representing that the material had been deposited at the boreholes. Credit was given for each such trip, and the undelivered load was repeatedly charged to the Turnpike Commission. Originally the inspectors furnished about ninety bogus slips every twenty-four hours, at an average of fifteen tons per load. Later as high as one hundred fifty fraudulent claims were furnished by the inspectors in a twenty-four hour period. Oswald further stated that 60 per cent of the materials charged to the Turnpike Commission was never delivered.

Rogers Construction Company prepared a monthly estimate for partial payment under their contracts with the Turnpike Commission. These estimates were based on copies of delivery slips received by Rogers Construction Company. The periodic estimate was then turned over to the Turnpike Commission at its field office in Dupont, Luzerne County, and was there subjected to a preliminary check by the district construction engineer of the Turnpike Commission on the basis of copies of the delivery slips sent to the Dupont field office of the Turnpike Commission. No final approval was made at the field or district office, and no bills were paid therefrom. But after approval by the district engineer, the periodic estimate was dispatched by automobile to the commission at its main office in Harrisburg. Following re-check by the engineers at Harrisburg, the periodic estimates or bills of Rogers Construction Company were processed by the officers of the Turnpike Commission. Checks in

[ 187 Pa. Super. Page 478]

    payment were drawn on the Fidelity-Philadelphia Trust Company of Philadelphia and mailed to Rogers Construction Company at Scranton. The latter received and cashed two checks under their contracts, one dated December 14, 1955, in the amount of $86,023.41, and the second dated January 9, 1956, in the amount of $160,603.51. A third check in the amount of $237,862.88, dated February 6, 1956, issued and signed by officers of the Turnpike Commission, was canceled prior to receipt by Rogers Construction Company.

In the court below and on this appeal, appellants Burkert and Moses have questioned the sufficiency of the evidence to establish their guilt. Both were employes of Manu-Mine. Burkert, an employe since July 18, 1955, was in charge of the slushing operation. Moses was supervisor of inspectors under Burkert. Burkert, sixty-five years of age, was experienced as a mining engineer. He had not been financially successful and needed work in July, 1957, when he was hired by Manu-Mine. According to his testimony he was then receiving unemployment benefits of $30 per week. Representing Manu-Mine he laid out the boreholes for Manu-Mine on the job of the Rogers Construction Company; he was in complete charge of the operation for Manu-Mine, including the inspectors, some of whom were hired by him. His obvious interest in Rogers Construction Company was inconsistent with his duty to Manu-Mine under its contract with the Pennsylvania Turnpike Commission. Fronduti, an inspector, testified: "Mr. Burkert told me that Rogers Brothers was having a hard time, and he asked me if I would lean over backwards for them." On one occasion Burkert also directed Fronduti to release six trucks which were carrying, according to Fronduti, inferior or unacceptable material. Fronduti did not stop any trucks thereafter.

[ 187 Pa. Super. Page 479]

Burkert was on the job almost daily and he was in close association with Rogers and Ketas who instigated the conspiracy to defraud. It is apparent that Rogers had to have Burkert's direct or indirect cooperation to carry on the fraudulent scheme. The inspectors and the two supervisors were each paid $50 a week to operate the plan, while Burkert at the height of the fraud received a gift costing $1,035, all coming from Rogers. This gift of an organ to Burkert was given by Rogers Construction Company in December, 1955, allegedly in appreciation of a labor-saving device for unloading silt.

In view of the failure of the boreholes to take the estimated tonnage, Rogers sought credit for increased tonnage by false delivery slips. After the inauguration of this system, the tonnage charged to the Turnpike Commission increased greatly. A record was kept of the tonnage or production at a portable trailer office where Burkert spent considerable time. There was also a record of every borehole laid out by Burkert. He as superintendent of the entire project for Manu-Mine had the records available showing the suddenly increased tonnage. Moreover, their promiscuous depositing of silt "on rock banks and every place else" must have been visible to everyone who looked; Burkert admitted knowing of some dumping of material in a colliery yard for which he said credit was not allowed.

The trial judge, Honorable HOMER L. KREIDER, in overruling the motions of defendants in arrest of judgment and for a new trial, has said as to Burkert's conviction:

"If anything were lacking to establish that Burkert, Rogers, Ketas and others were acting in concert with a unity of purpose, that question is set at rest by their subsequent attempt to conceal the gift of the organ.

[ 187 Pa. Super. Page 480]

This conduct, in our opinion, established by clear and convincing evidence that the defendants Burkert, Rogers, Ketas and others were connected with and actively involved in the conspiracy charged in the indictment. Burkert testified that on or about February 20, [1956] Mr. Landsidle, Vice President of Manu-Mine, Mr. Sharpensberger, General Manager and his immediate superior, Harry Luke, Project Engineer, sent for him to come to the Manu-Mine trailer office after the work on the job had been stopped on February 13, 1956; that Landsidle told him he had learned there was an investigation being made of the Rogers job and said to him: 'Where there is smoke there is possibly fire. Do you know of any of our inspectors who might be dishonest? ...' Burkert replied that 'a man in my position would have every reason to be suspicious of anybody, ... I have cleared the inspectors and if anything might be looked upon with suspicion by other people, it might be the gift of a Hammond Electric Chord Organ to me at Christmas time,' ... and then Burkert told him the story of that gift. Burkert also said that he had permission from his superiors Harry Luke and Joseph Speicher, to accept the gift before it was received. ... (Luke and Speicher were not called to testify.)

"Burkert further testified ... that 'Landsidle said to me "There is a police investigation going on here. What may happen, nobody knows. But, it could break in the newspaper headlines blaring the name of Manu-Mine and down in the corner a little bit of an insignificant note recording the gift of an organ to you. Can you pay for that organ?" I said, yes, I can pay for that organ.' Burkert stated that he was satisfied to pay for it and that 'it didn't hurt' ... to do so because he had $3548.86 in his checking account in bank. ... Burkert then wrote his check payable to the Rogers

[ 187 Pa. Super. Page 481]

Construction Co. for $1035 and at first dated it January 16, 1954 or more than two years prior to the actual date it was written. Burkert said when this mistake was called to his attention, he changed the date to the year 1956 but then discovered that he had made a second mistake in dating it 'January 16th' instead of February 20, 1956, but that when he discovered this mistake it was agreed by Landsidle, Rogers, Ketas and himself that the incorrect date, January 16, 1956, should remain on the check as written, that Landsidle insisted Burkert obtain a receipt from the Rogers Construction Co. and that when Rogers gave his receipt to Burkert for $1035 ... he likewise made a mistake and when it was called to his attention it was agreed that the mistake Rogers made should not be corrected to the true date. ...

"Under all the evidence we believe the conviction of Burkert was fully justified." See Com. v. Nasuti, 385 Pa. 436, 445, 123 A.2d 435.

As to Moses, we think the circumstances are sufficient also to warrant conviction. He accepted the same payment of $50 a week given to the inspectors of whom he was the immediate supervisor. Three payments were made to him by Oswald. Although Oswald testified that Moses did not know why he was given these weekly payments from Rogers Construction Company through Oswald, this is a mere conclusion and cannot override that which is obvious from the circumstances. He was paid with regularity the same as the inspectors and the same as Jones, the other supervisor. The method of payment to others was likewise devious. Moreover, Moses had direct supervision of filling the boreholes which Burkert had laid out to be drilled, and he was at the bins to see that the pattern laid out by Burkert was carried out. The unexplained acceptance of the payments from the Rogers Construction

[ 187 Pa. Super. Page 482]

Company through Oswald places Moses in the same category as the inspectors who received such payments. As a supervisor of Manu-Mine inspectors he was in the center of the slushing operations. He had direct supervision of the inspectors at the silt bank, but he was usually at the bins and the boreholes. The fraudulent scheme could not have operated successfully without his tacit acquiescence at least. He must have seen or must have been aware of the dumping of silt by the truck drivers at various convenient sites instead of at the boreholes.

That Burkert and Moses may not have been named or involved initially in the conspiracy is of no moment. A conspiracy formed by certain persons may be considered adopted by others who come into the transaction at a later stage of the performance. Com. v. Donnelly, 40 Pa. Superior Ct. 116, 126; Com. v. Rothensies, 64 Pa. Superior Ct. 395, 406; Com. v. Anderson, 64 Pa. Superior Ct. 427, 429. While it requires more than mere passive cognizance of a crime on the part of a defendant to sustain a charge of conspiracy to commit it, nevertheless, if a conspiracy has been entered into by other parties without defendant's knowledge or participation and he becomes a party to it while it still has life, he may be convicted. Com. v. Wasson, 42 Pa. Superior Ct. 38, 51.

The other contention which had been presented by all the appellants relates to the jurisdiction of the Court of Quarter Sessions of Dauphin County to try these cases. It is argued that there was no overt act in furtherance of the conspiracy committed in Dauphin County. They contend that the conspiracy was formed in Lackawanna County and that the overt acts took place either in Lackawanna County or Luzerne County. Notwithstanding that the conspiracy may have been formed in Lackawanna County, that the

[ 187 Pa. Super. Page 483]

    fraudulent slips were issued in that county, and that the false periodic estimates were presented to the field office of the Turnpike Commission in Dupont, Luzerne County, and then delivered to the main office of the commission in Harrisburg, it was at the main office of the commission at Harrisburg that action was intended to be taken upon the fraudulent claims and checks thereupon to be issued to Rogers Construction Company.

It is 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. Mezick, 147 Pa. Superior Ct. 410, 413, 24 A.2d 762. The question of jurisdiction as raised in the present appeals is controlled by Com. v. Prep, 186 Pa. Superior Ct. 442, 142 A.2d 460, involving the same jurisdictional issue in connection with the charge of conspiracy. As we there said (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; ..." The delivery of the false invoices by courier from the field office in Luzerne County to the main office of the commission in Harrisburg was no different than where a defendant personally carried the fraudulent documents to Harrisburg or sent them by agent or in the regular course of the mail. The fact that the false invoices were preliminarily checked in the field office does not negative the occurrence of the overt act in Dauphin County. The fraudulent weight or delivery slips and the false periodic estimates were made in furtherance of the conspiracy in

[ 187 Pa. Super. Page 484]

Lackawanna County or Luzerne County. But such estimates for partial payment were made for the ultimate purpose of securing the final approval and payment of the false invoices by the commission at Harrisburg. It was only at that place that final approval could be given and the checks prepared and issued. Consequently, it was in Dauphin County that the fraudulent scheme was consummated when the Turnpike Commission received the false slips and invoices and acted upon them. See State v. Pollard, 215 La. 655, 41 So.2d 465, 468.

GUNTHER, J., dissents.

Disposition

The judgments of sentence are affirmed as to Joseph Rogers, Robert Havard, Roger A. Hines, Francis Chiazza, William Lipferg, Evans Moses, and Donald Burkert, 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 their sentences or any part thereof which had not been performed at the time the appeals were made a supersedeas.

ING OPINION BY WATKINS, J.:

I would sustain the objections of the appellants to the jurisdiction of Dauphin County to try the offense charged in the indictment.


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