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COMMONWEALTH v. EVANS ET AL. (08/10/59)

August 10, 1959

COMMONWEALTH
v.
EVANS ET AL., APPELLANTS.



Appeals, Nos. 29 to 37, inclusive, March T., 1959, from judgments of Court of Quarter Sessions of Dauphin County, Jan. T., 1957, Nos. 216, 218, 220, and 221, in case of Commonwealth v. Thomas J. Evans et al. Conviction of James F. Torrance on count 3 of indictment charging him with misbehavior in office reversed; judgment of sentence as to Paul J. McNeill on indictment charging conspiracy reversed and defendant discharged; judgments of sentence otherwise as to defendant appellants affirmed.

COUNSEL

H. G. Stutzman, with him David S. Kohn, Stutzman, Lewis and Sidoriak, and Kohn, Adler and Schatt, for appellant.

James H. Stewart, Jr., with him Ernest S. Burch, and Nauman, Smith, Shissler & Hall, for appellant.

David J. Conroy, for appellant.

Earl V. Compton, with him Frederick G. McGavin, for appellant.

Carl B. Shelley, with him Shelley, Reynolds and Lipsitt, for appellant.

Huette F. Dowling, District Attorney, and Thomas D. McBride, Attorney General, with them Mary E. Hoerner, Assistant District Attorney, Alfred P. Filippone and Isaiah W. Crippins, Deputy Attorneys General, and Vincent G. Panati, Speical Assistant Attorney General, for Commonwealth, appellee.

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

Author: Rhodes

[ 190 Pa. Super. Page 193]

OPINION BY RHODES, P.J.

These appeals are by five defendants, Thomas J. Evans, James F. Torrance, Charles W. Stickler, Clayton A. Landsidle, and Paul J. McNeill from judgments of sentence of the Court of Quarter Sessions of Dauphin County. Defendants were convicted of conspiracy to cheat and defraud the Pennsylvania Turnpike Commission in connection with certain transactions involving the Manu-Mine Research and Development Company during construction of the Northeastern Extension of the Pennsylvania Turnpike.*fn1 In addition, Thomas J. Evans, the former chairman of the commission, and James F. Torrance, a former member and secretary-treasurer of the commission, were convicted on separate indictments charging misbehavior in office. Charles W. Stickler, president of Manu-Mine and a principal stockholder, and Clayton A. Landsidle, general manager of Manu-Mine, were also convicted on an indictment charging the crime of cheating by fraudulent pretense, the Pennsylvania Turnpike Commission having been allegedly cheated and defrauded. Paul J. McNeill, former finance director of the commission, was named only in the conspiracy indictment.*fn2

[ 190 Pa. Super. Page 194]

The issues presented on these appeals involve the refusal of defendants' motions to quash the indictments,

[ 190 Pa. Super. Page 195]

    the refusal of defendants' motions in arrest of judgment, and the refusal of defendants' motions for a new trial.

The crimes for which these defendants were convicted arose principally out of a contract dated February 28, 1955, between the commission and Manu-Mine. The ostensible purpose of the contract was to provide surface support for the right of way of the Northeastern Extension across the anthracite coal measures by means of a program of slushing material into mine voids underlying the road way area. Under the contract, Manu-Mine was engaged (1) to plan and design the slushing operation, for which it was to be paid a maximum of $9,600; (2) to supervise and inspect the slushing work, for which it was to be paid either $138 or $207 per eight-hour shift, depending upon underground conditions; and (3) to drill and case holes through which the material was to be slushed underground, for which it was to be paid $12.50 per foot of hole drilled.Manu-Mine performed work under the contract until it was suspended on February 27, 1956, prior to full completion. No voucher for the $9,600 for design work was submitted during the active performance of the contract. But for work up to December 31, 1955, payments had been made to Manu-Mine totaling $6,846,441.64, of which $6,724,718.74 was for drilling, and $121,722.90 was for inspection and supervision. Periodical estimates for additional work to February 29, 1956, were submitted in the amount of approximately $833,000, but they were not paid. Of the total amount of $7,679,441.64 "earned" by Manu-Mine

[ 190 Pa. Super. Page 196]

    under the contract, the profit, after all expenses, amounted to approximately $4,000,000, or more than 100 per cent of the cost. Manu-Mine was owned by defendant Stickler, Stickler's wife, and the late Richard Evans. Stickler was a nephew of the wife of defendant Evans, and Richard Evans was his son.

In brief, it was the theory of the Commonwealth that the defendants had conspired to defraud the commission by obtaining this contract and payments thereunder for Manu-Mine; that the drilling and slushing program, inaugurated at the request and on the recommendation of Manu-Mine, was in fact 95 per cent unnecessary; and that the price for drilling was unconscionably excessive and fraudulent, especially since Manu-Mine had represented that the contract cost per foot of drilling had been computed on the basis of the cost plus only 10 per cent profit.

I. The Validity of the Indictments

On October 22, 1956, upon the petition of the Attorney General of the Commonwealth, dated September 1, 1956, in which the District Attorney of Dauphin County had joined, a special investigating grand jury was convened. The matters disclosed by the presentment of the investigating grand jury formed the basis for the bills of indictment submitted, at the direction of the court, to the regular grand jury for the January Sessions of 1957. On January 23, 1957, the regular grand jury returned indictments against the nine defendants, five of whom have appealed after conviction, and four of whom were acquitted. Defendants moved to quash the indictments, alleging that on the evening that the investigating grand jury convened and on the following evening the Governor of the Commonwealth, in broadcasts over two Harrisburg television stations, made an inflammatory speech and remarks, and that the district attorney and the special deputy attorney

[ 190 Pa. Super. Page 197]

    general had intruded upon the deliberations of the investigating grand jury, which was prejudicial to defendants. The motions to quash were denied in an opinion by Judge NEELY; we believe this was proper.

It is significant that the motions to quash, with the exception of that filed by defendant Torrance, do not question the form or sufficiency of the indictments, and that the matters alleged as prejudicial are extraneous to the indictments and relate principally to the investigating grand jury and not to the indicting grand jury. Ordinarily, alleged defects or irregularities in the proceedings preliminary or antecedent to the indictment may not be considered on a motion to quash. Com. v. Gross, 172 Pa. Superior Ct. 85, 92, 92 A.2d 251. A motion to quash which is based upon the allegation of extraneous factors should not be sustained unless it clearly appears that the defendant has been harmed by some improper conduct that interfered with his substantial rights. The court below concluded that the remarks of the Governor at the time the investigating grand jury convened were not such as to harm the defendants in the subsequent return of the indictments. In this respect the court considered not only the allegations of defendants, but also the fact that the investigating grand jury was specifically admonished in the charge of the court to divorce its deliberations from any political turmoil, public clamor, or publicity, and to reach its conclusions on the basis of the evidence presented "uninfluenced by any partisanship or political considerations whatsoever." There is nothing to indicate that the investigating grand jury did not properly follow this instruction. Com v. Brownmiller, 141 Pa. Superior Ct. 107, 113, 14 A.2d 907.Nor is there any indication that the grand jurors heard such irrelevant remarks. If they had it would not necessarily invalidate the subsequent indictments based upon

[ 190 Pa. Super. Page 198]

    other and proper evidence. Com. v. Gross, supra, 172 Pa. Superior Ct. 85, 92, 92 A.2d 251.

The allegation of intrusion by the district attorney and the special deputy attorney general is likewise extraneous to the indictments and is without merit.

"It is the duty of the district attorney ... to attend upon a grand jury, lay before them all matters upon which they are to pass, aid them in the examination of witnesses and give general instructions as may be required. It is highly improper, however, for the district attorney ... to take part in the deliberations of a grand jury, as it is their duty to consider alone the evidence and apply it to the case." Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 113, 14 A.2d 907, 910. The record shows that the district attorney and the deputy attorney general properly attended upon the investigating grand jury giving only general advice. There was no improper conduct or intrusion upon its deliberations.

A further consideration is that the investigating grand jury and the indicting grand jury are separate legal bodies. Although both may have considered the same alleged crimes involving the same individuals, their proceedings, deliberations, and presentments are distinct. Extraneous matters affecting one may not influence the other, and irregularities before one are not always present in the other; the two bodies are unrelated in this respect. Consequently, an indictment by a regular grand jury is not necessarily tainted by some irregularity or improper influence alleged to have affected the investigating grand jury. Com. v. Gross, supra, 172 Pa. Superior Ct. 85, 90, 91, 92 A.2d 251. At least, the irregularity or improper influence must be shown to have also affected the indicting grand jury. Nothing of this nature appears in this case. "No matter how irregular the investigatory proceedings before

[ 190 Pa. Super. Page 199]

    the grand jury may have been, the presentment at least furnished the district attorney with information sufficient to justify his application for leave to present a district attorney's bill." Com. v. Brownmiller, 137 Pa. Superior Ct. 261, 267, 9 A.2d 155, 158.

In his appeal Torrance raises two additional matters with respect to the indictments, one possibly affecting their form and the other attacking their sufficiency. It is argued that the court failed to approve the indictments presented to the regular grand jury. On January 21, 1957, the court entered an order that the district attorney "prepare and submit to the regular January, 1957, Grand Jury now in sessions, bills of indictment covering all the matters contained in the Presentment of the Special Grand Jury of Investigation made to the Court on Friday, January 18, 1957." Apparently no subsequent order formally approving the indictments drawn pursuant to this order was entered.

Generally, an indictment may come before a grand jury only if it is founded upon the transcript of a magistrate or an order of court evidencing leave to present it. Com. v. Wilson, 134 Pa. Superior Ct. 222, 227, 4 A.2d 324; Com. v. Russo, 177 Pa. Superior Ct. 470, 477, 111 A.2d 359. A district attorney's bill would appear to be a substitute for the preliminary proceedings normally held in criminal matters. As such it should be subject to the general rule previously stated that alleged defects or irregularities in the proceedings preliminary or antecedent to indictment may not be examined on a motion to quash. Com. v. Gross, supra, 172 Pa. Superior Ct. 85, 92, 92 A.2d 251. Nevertheless, we are of the opinion that the order of January 21, 1957, was sufficient leave of court for submission of the indictments. The order directed not only the preparation of indictments covering the matters presented by the investigating grand jury, but the submission

[ 190 Pa. Super. Page 200]

    of those indictments to the regular grand jury as well. In both respects the district attorney acted in conformity with the court's order.

It has also been argued before us on behalf of Torrance that the indictments are insufficient as a matter of law. At No. 216, January Sessions, 1957, Torrance and the other defendants were indicted for conspiracy to defraud and to do other unlawful acts to the prejudice of the commission in connection with the Manu-Mine contract of February 28, 1955. At No. 220, January Sessions, 1957, Torrance was indicted on three counts - the first charging misbehavior in office by corruptly participating in the negotiation and obtaining of the Manu-Mine contract; the second charging misbehavior in office by willfully and corruptly permitting the Manu-Mine contract to become effective thereafter and by permitting payment of vast sums of money to Manu-Mine pursuant to said contract; and the third charging that he, being a turnpike commissioner, hampered, obstructed, and corruptly interfered with the proper investigation of the Manu-Mine contract. Torrance claims that the conspiracy indictment and counts 1 and 2 of the misbehavior indictment contain erroneous statements of the law relative to contracts entered into by the commission in that the practice of competitive bidding, the requirement of performance bonds, and similar contractual provisions are referred to as "legal" requirements which were not complied with in the negotiation and execution of the Manu-Mine contract. We have examined the indictments thoroughly and conclude that, even assuming that the practice of competitive bidding and the inclusion of the customary provisions of a construction contract are not legal requirements, the indictments are nevertheless sufficient. The statements in the indictments to the effect that these requirements are "legal" requirements, if erroneous, would be surplusage; the

[ 190 Pa. Super. Page 201]

    validity of the indictments is not affected by the elimination of the words "legal" or "legally." Com. v. Bristow, 185 Pa. Superior Ct. 448, 459, 138 A.2d 156; Com. v. Harvilla, 38 Pa. Superior Ct. 292, 297. Eliminating the words "legal" or "legally," the indictments still charge that, in negotiating and obtaining the Manu-Mine contract, the defendants did not comply with the usual practice of the commission regarding competitive bidding or include other contractual provisions normal to construction contracts, and that the failure to follow these normal procedures was one of the methods by which the fraud was perpetrated, the contract obtained, and the moneys paid, to the prejudice of the commission. Whether or not these procedures are legal requirements, and the significance of the failure of defendants to comply therewith will be the subject of further discussion in this opinion.

The motions to quash the indictments were properly denied.

II. The Sufficiency of the Evidence

Probably the most important issue before us is the sufficiency of the evidence to support the jury's verdicts that the defendants were guilty of the crimes charged in the indictments.

We turn to a consideration of the motions in arrest of judgment and the sufficiency of the evidence to sustain the convictions. The evidence was largely circumstantial especially as it related to the conspiracy. The burden was upon the Commonwealth to overcome the presumption of innocence and to establish beyond a reasonable doubt the crimes charged. 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 accused's guilt beyond a reasonable doubt. Com.

[ 190 Pa. Super. Page 202]

With these principles in mind we shall consider the evidence. The Manu-Mine Research and Development Company was incorporated in March, 1951. The incorporators included Stickler, Richard Evans, and several other individuals. In its first year of business Manu-Mine sold paint and preservatives and suffered a loss in all its operations of approximately $300. During this year it had received nominal orders for paints or sealing compounds from the commission. From this time on Manu-Mine experienced progressively greater financial success almost exclusively as a result of business with the commission.*fn3 By October 31, 1953, Manu-Mine had a total gross business since its inception of $460,000 of which $426,000 was received from the commission. By this date only Stickler and Richard Evans of the original incorporators remained. The favorable relationship between Manu-Mine and the commission became evident about this time. Jerome LaManna who was the accountant for Manu-Mine inquired of Stickler how Manu-Mine obtained work from the commission without bids, and Stickler informed him that the business was not contract work but a purchase order. It is noted in this regard that Richard Evans, vice president and stockholder of Manu-Mine, had no desk at its office and apparently participated in the running of the business only to the extent of attending board meetings and advising Stickler on insurance matters.

[ 190 Pa. Super. Page 204]

Nevertheless, he received a salary and bonus commensurate with full time executive employment.

In the year 1954 total sales of Manu-Mine were $815,000 of which $757,000 or 90 per cent was received from the Turnpike Commission.The stockholders at this time, and thereafter, were Stickler, who owned over 50 per cent, Mrs. Stickler, and Richard Evans. For the year 1955 the total amount of business transacted by Manu-Mine was $5,200,000 of which $4,800,000 or 90 per cent was received from the commission. By October 31, 1955, the stock of Manu-Mine, which had a value of $100 in 1951, had a value of $42,600 per share. For the year 1956, the year in which Manu-Mine was suspended from the February 28th contract Manu-Mine did a total business of $4,500,000 of which $2,800,000 or 63 per cent came from the commission.

In October, 1953, the commission gave a contract to Manu-Mine to study the mining conditions underlying each of four proposed alternate right of way lines for construction of the Northeastern Extension as it crossed the anthracite coal measures and to make recommendations as to the best line to follow. In February, 1954, the commission employed Manu-Mine to furnish an estimate of the value of coal under the proposed route of the Northeastern Extension. On July 7, 1954, the commission entered into a contract with Manu-Mine to patrol the line of the proposed turnpike in the anthracite area and to obtain and furnish aerial photographs of the right of way. On the same date the commission engaged Manu-Mine to do exploratory drilling, research, and engineering work in the anthracite area for the purpose of ascertaining the underground conditions and recommending corrective action.*fn4

[ 190 Pa. Super. Page 205]

While the engineering services and work under the contract of July 7, 1954, were being performed by Manu-Mine, the contract which formed the essential basis for these indictments came into being. On February 28, 1955, a contract was given to Manu-Mine without competitive bidding to lay out and design a slushing program to provide surface support for the turnpike as it crossed the anthracite measures, to drill holes into the underground voids at a price of $12.50 per foot through which material was to be slushed underground, and to supervise the operations of the contractors who were engaged by the commission to supply the material and slush it into the underground voids through the holes drilled by Manu-Mine. The negotiation of this contract had its inception at the instance of Manu-Mine. It appears that in December, 1954, Stickler, Landsidle, and Harry Luke, project engineer of Manu-Mine, gave consideration to proposing to the commission that Manu-Mine do the drilling for the slushing program. Stickler and Landsidle decided they could do the drilling work, and they prepared a draft of the contract to submit to the commission. Landsidle and Luke met with John D. Paul, assistant chief engineer of the commission, on December 30, 1954, at which time they discussed the proposed contract and Paul requested that estimates of the cost of the work be furnished. Early in January, 1955, a meeting was held at the Hotel Sterling, in Wilkes-Barre, attended by Evans, Torrance, Stickler, John D. Paul,

[ 190 Pa. Super. Page 206]

    and others for the purpose of examining the right of way line of the turnpike and to make some determination with respect to crossing the coal measures. Arthur B. Cleaves, a geologist who was at that time employed by the commission on a part time basis and also by Manu-Mine, testified that at this meeting Evans berated him because a local newspaper had carried a story to the effect that Manu-Mine was going to receive a contract from the commission in connection with the slushing program. The commission, and in particular Evans, was upset by the premature publicity; Evans told Cleaves, "What is the matter with you? I thought you were supposed to see that Manu-Mine didn't get into any problems like this." This unwanted publicity resulted when Luke told a newspaper reporter about January 4, 1955, that Manu-Mine would receive a contract from the commission for this slushing program. Luke furnished the newspaper with certain details of the transaction, such as the fact that the work had to be completed by 1956.

On January 6, 1955, Landsidle submitted to the commission a draft of the contract for services and work in the slushing program, a cost analysis of the various items under the contract, including the $12.50 per foot drilling price, and estimates of the cost of drilling and slushing across the anthracite measures. On January 13, 1955, Landsidle and Luke met with John D. Paul and discussed the time necessary to complete the slushing program. Paul informed them that their proposed drilling program would take two years and that this was unsatisfactory since construction had to be completed by February, 1956. Landsidle knew then that the proposed drilling program was inadequate.

Thereafter, on February 14, 1955, Manu-Mine submitted supplements to the initial draft of the contract.

[ 190 Pa. Super. Page 207]

The preliminary copy of the contract submitted by Manu-Mine was drafted into final form at the commission, with certain minor changes and the supplements, and was approved by the commission at its meeting on February 28, 1955. After its approval the contract was executed by Evans, Torrance, Theodore S. Paul, the commission counsel, Stickler and Landsidle.

The circumstances of the adoption of the Manu-Mine contract at the February 28, 1955, meeting of the Turnpike Commission were testified to by Joseph J. Lawler, the then recently appointed Secretary of Highways and ex officio member of the commission. This was apparently the second meeting of the commission that Lawler attended. Prior to the meeting on February 28th, Lawler had not heard od Manu-Mine, did not have knowledge of the work to be performed under this contract, and did not know who the officials of Manu-Mine were or their relationship with Evans. The general provisions of the contract, which was designated as a contract for engineering services, were outlined at the meeting by John D. Paul. In the course of the discussion it was stressed to Lawler that it was important that the contract be approved expeditiously to meet the completion of construction of the Northeastern Extension because of the interest payments to be made on the bonds which had been sold for its construction. Evans and Torrance indicated that it was in the best interest of the commission that the contract be approved and pointed out to Lawler that Manu-Mine had an international reputation, that it was an outstanding firm, and that it was the only firm in existence that was qualified to do that type of work. Lawler stated that he did not question the contract because he respected the other members of the commission since they had experience at the commission and had previously done business with Manu-Mine. The contract was approved by the vote of all of the commissioners,

[ 190 Pa. Super. Page 208]

    that is, Evans, Torrance, McSorley, Watson, and Lawler.

Subsequently, Manu-Mine began work under the contract, and in May, 1955, submitted its first periodical estimate for payment. It continued to perform work until its suspension, after an investigation, on February 27, 1956. For the work performed Manu-Mine submitted periodical estimates for payment in the total amount of $7,679,441.64, of which $6,846,441.64 was paid. Of the amount paid $6,724,718.74 was for drilling at $12.50 per foot.

Under the Act of 1937 which created the Pennsylvania Turnpike Commission and made it an instrumentality of the Commonwealth, and the Act of 1951 which authorized the Northeastern Extension to the Pennsylvania Turnpike, the commission is given the power to contract, provided, however, that contracts relating to construction are required to be approved by the Department of Highways and such construction must be performed under the supervision of that department.*fn5 For the purpose of scrutinizing construction contracts which required approval of the Department of Highways and for the giving of such approval the Department of Highways maintained at the commission a liaison officer. The department kept a file in its own office of commission contracts which it approved. Before giving his approval, the Department of Highways' liaison officer would check the contracts, the quantities, unit prices and similar matters. If the contracts were found to be satisfactory it was his practice as a rule to approve for the Department of Highways the construction contracts entered into by the commission. The liaison officer, Henry Kloss, a registered professional engineer, in March or April,

[ 190 Pa. Super. Page 2091955]

, inspected the drilling being done by Manu-Mine on the Northeastern Extension. When he learned that the drilling was not exploratory drilling, that is test drilling, but was drilling for purposes of slushing or flushing, he questioned John D. Paul, the commission engineer, concerning the contract under which the drilling was done. He was informed by Paul that the contract was not necessarily construction but that it was part of an engineering proposition. The Manu-Mine contract was never submitted to Kloss for approval; it was not approved by the Department of Highways and was not on file at the department.

The commission as a general rule uses a standard form of construction contract. The Manu-Mine contract, however, was in the special form of engineering contracts. Engineering contracts as distinguished from construction contracts are not required by law to have the approval of the Department of Highways.

The use of an engineering form for this contract is significant in other respects. It was the general procedure at the commission, notwithstanding the fact that there is no such legal requirement in the statute, that contracts for construction, as distinguished from engineering contracts, be let after bids are obtained. The general practice was that specifications would first be drawn up and advertisements for bids be placed. The contract was then awarded to the properly qualified low bidder. This practice was varied in some instances in that some construction contracts as well as engineering and other contracts were negotiated. It is significant that the Manu-Mine contract negotiations were instituted by Manu-Mine without prior specifications having been prepared by the commission.

It was also the practice at the commission that the contractor be required to provide a performance bond

[ 190 Pa. Super. Page 210]

    and a labor and materialmen's bond, and that the contract contain a provision for the retention of 10 per cent of the periodical payments made during the course of the performance of the contract in order to assure the commission that the work would ultimately be performed and the materials supplied. None of these requirements or provisions were contained in the Manu-Mine contract. Of the forty-one roadway and tunnel construction contracts let on the Northeastern Extension, exclusive of the Manu-Mine contract, all but one were competitively bid, were drawn to the standard form of construction contracts used at the commission, and had the usual protective provisions. Contracts for the construction of the interchange buildings, for some of the bridges, for roadway lighting, and for maintenance buildings were submitted for bids. Contracts for the supplying of materials were generally not bid because they did not relate to roadway construction as such. And many of the contracts relating to the supplying of equipment and materials that were not competitively bid nevertheless contained the protective requirements of a performance bond, a labor and materialmen's bond, and a retention clause. It is clear beyond reasonable doubt that the Manu-Mine contract was disguised as an engineering contract to avoid competitive bidding and the scrutiny of the Department of Highways which would have been required in the normal course of events had it been designated and treated as the construction contract that it was. That it was in reality a construction contract except for some minor detail is clear from the evidence. The Commonwealth called a number of expert witnesses of considerable experience in mining and construction engineering in general who testified that the drilling of holes for slushing, constituting the major portion of this contract and for which all but a small amount of the funds paid to Manu-Mine was attributable, was

[ 190 Pa. Super. Page 211]

    construction work.*fn6 The subsequent handling of the Manu-Mine contract by defendants and the commission corroborated the Commonwealth witnesses. Although the contract had been treated as one relating to engineering services in the negotiations and at its adoption by the commission, it was considered construction in its performance and in the payments made to Manu-Mine for the work done thereunder. The amounts paid to Manu-Mine were drawn from the construction fund, not from the engineering fund. The periodical estimates for payment submitted by Manu-Mine were submitted on the regular contract form of the commission for construction work and Manu-Mine was referred to therein as the "contractor." The certificate on each of the periodical estimates signed by Landsidle as general manager of Manu-Mine states that the work has been performed in accordance with the "terms and conditions of the corresponding construction contract documents." The contract later received a number in the sequence of construction contracts, and the standard construction performance bond and a labor and materialmen's bond were requested and related back to the time of the contract.

This initial disguise was employed to perpetrate and conceal the fraud of obvious magnitude. When the Northeastern Extension to the Pennsylvania Turnpike

[ 190 Pa. Super. Page 212]

    was authorized by the Legislature it became necessary that an engineering report be prepared with estimates of the probable cost of construction in order that bonds could be sold to raise funds for construction. The J. E. Greiner Company, the consulting engineer to the commission, prepared a report which it submitted to the commission with a covering letter of March 22, 1954. The total initial construction cost of the Northeastern Extension estimated in the budget was $149,000,000, to which was added a contingency fund in the amount of $19,000,000.The preliminary budget for construction of the Northeastern Extension had nothing by way of allocation of funds for drilling and slushing work. The Greiner report stated only that the anthracite measures required some special consideration since the sub-surface conditions were indeterminate and there remained a propensity for future subsidence. The covering letter, however, stated that the problems that might be encountered in the anthracite measures would require some special investigation and study but that they were not expected to exceed those comparable in character and magnitude heretofore successfully solved on existing portions of the turnpike. The cost of slushing mined areas was recognized only to the extent that it was a possible contingency, but there was no estimate of that cost provided. It also appears that in addition to the $19,000,000 contingency fund there was, by October, 1954, an indicated surplus in construction costs of $13,000,000 due to the fact that certain types of excavation contracts were actually bid at a lower figure than was originally estimated.

The estimate of the total cost of the drilling and slushing submitted by Manu-Mine with its January 6, 1955, letter indicated a total cost of the program of approximately $4,120,000 of which approximately $3,380,000 was for drilling at the rate of $12.50 per foot. When Manu-Mine submitted its first periodical estimate

[ 190 Pa. Super. Page 213]

    for payment the cost of drilling on two sections was estimated at $2,500,000. Thereafter the total cost of drilling appearing on the periodical estimates increased first to $6,600,000 and then by December, 1955, to $8,600,000. The total cost of drilling and slushing would have been over $13,500,000.

The cost per mile proposed and charged by Manu-Mine for support of the turnpike in this area was $3,000,000 as compared to a cost per mile of approximately $1,000,000 for the actual roadway.

The fraud perpetrated by this slushing program was twofold. The slushing program was unnecessary to the extent of about 95 per cent and the price charged by Manu-Mine for drilling was grossly exorbitant. The expert witnesses called by the Commonwealth, who had considerable experience in mining and engineering in the anthracite area, testified that slushing is necessary to render surface support in a first mined area, that is, where pillars of coal are left by the mining operation. But in robbed out areas, that is, where the pillars are removed, the roof of the mine and the surface above it collapses, subsides, and reaches an equilibrium in approximately seven years when the ground comes to rest. The experts stated that the drilling of boreholes and slushing of silt into such areas would not give any additional support to the surface. They testified that the program of Manu-Mine calling for slushing and drilling of boreholes in those areas which had been subjected to second mining, which involved most of the anthracite measures included in the Manu-Mine program, was unnecessary.*fn7 Manu-Mine used a

[ 190 Pa. Super. Page 214]

    system of controlled slushing in places where the underground voids were accessible, but the largest amount of drilling was done in areas which were not accessible; in such areas generally Manu-Mine drilled holes on a geometric pattern of five holes abreast every fifty feet along the turnpike right of way.*fn8 The drilling of holes in a geometric pattern resulted in most of the holes being driven into pillars of coal or otherwise not reaching voids. George D. Oswald, who was employed by the Sullivan Trail Coal Company and Rogers Construction Company in performing the actual slushing into the voids, testified that the holes drilled by Manu-Mine were collapsed or filled with dirt and rock and unable to take more than a token amount of slushing material. He estimated that approximately 60 per cent of the holes would not take the material or more than a negligible amount while the remaining 40 per cent took considerably less than the estimated amount because the holes were collapsed or blocked. Although the purported purpose of the contract was to drill holes into the voids which were to be filled with silt and thus prevent subsidence, the majority of the holes were useless,

[ 190 Pa. Super. Page 215]

    except to form the basis for the periodical estimates submitted by Manu-Mine. Even the witness Cleaves, who was called by defendants, testified that the drilling of holes for blind flushing in a geometric pattern on 50-foot centers was absurd. That the drilling and slushing program was unnecessary to the extent that it was performed by Manu-Mine, or even a substantial portion thereof, was clearly demonstrated beyond reasonable doubt.

It thus appears that the drilling and slushing program was unnecessary to the extent of about 95 per cent of that performed by Manu-Mine, while the price charged for drilling was grossly exorbitant.

The draft of the contract sent by Manu-Mine to the commission proposed a price per foot of drilling of $12.50. In justification thereof Manu-Mine submitted a cost analysis showing that at a rate of drilling of 28 feet per day the price represented the cost for each foot drilled plus a profit of 10 per cent. The price charged was directly related to the number of feet that could be drilled in each shift by the drill, which was then designated as a Joy No. 32 air blast drill. Actually, in the major performance of this contract, Manu-Mine used a much heavier drill, a B 58 drill, which was common to the anthracite area, and which experienced a production rate averaging 179 feet per shift. Some apparently went as high as 448 feet per shift. Since the price had been fixed on the basis of 28 feet per shift per drill, the effect of increasing the production to an average of 179 feet per shift was to tremendously increase the income without a proportionate increase in expenses, leaving a profit far in excess of the 10 per cent submitted in the cost analysis. Under the cost analysis the profit per shift would have been about $32, whereas under the actual performance the profit reached $1,400. The Commonwealth's expert witnesses testified that the cost per foot of drilling should have

[ 190 Pa. Super. Page 216]

    been between $4.50 per foot and $5.95 per foot.*fn9 The Commonwealth's witnesses were corroborated by the fact that on March 21, 1955, less than a month after the contract with the commission, Manu-Mine bid $3.19 per foot on a drilling job in Carbondale for holes identical in size, to similar depths through the same type earth strata, through the same type of broken ground, and through multiple seams of coal. Manu-Mine lost the job because its bid was too high. The exorbitance of the price paid to Manu-Mine by the commission is clear beyond question. When the cost analysis was submitted, Stickler and Landsidle did not intend to use the Joy No. 32 drill, upon which they based the cost analysis, in the performance of this contract.*fn10 Landsidle testified that the entire drilling arrangement using the heavier B 58 drills was planned and known to Manu-Mine before the signing of the February 28, 1955, contract. Still the $12.50 price based on the false cost analysis was incorporated into the final contract and was the price paid for the drilling billed.

We are of the opinion that the evidence clearly and beyond a reasonable doubt demonstrates the conspiracy to defraud. The lack of direct evidence of any conspiratorial

[ 190 Pa. Super. Page 217]

    meeting and agreement between the defendants to perpetrate this fraud has been more than adequately replaced by the wealth of circumstantial evidence which is of such volume and quality as to reasonably and naturally justify the inference of their guilt and to overcome the presumption of innocence. Except in two instances the evidence establishes their guilt on all charges.

While there is no direct evidence of an explicit or formal agreement to commit the fraud, such evidence is not essential, for proof of this criminal partnership is the obvious conclusion arising from the circumstances attending the activities of the defendants. Com. v. Musser Forests, Inc., supra, 394 Pa. 205, 146 A.2d 714. Viewed in its entirety the record demonstrates the subtle but effective manner in which Manu-Mine came to profit to such an extent by its favorable position with the commission. From its humble beginnings Manu-Mine rose with meteoric speed to a position of great financial success almost exclusively through the co-operative attitude of the commission.

In the initial stages of planning for the construction of the Northeastern Extension the problem of subsidence was not expected to be one of significant magnitude. But when Manu-Mine had entered the scene and began its initial exploratory work the problem of subsidence and what to do about it began to become a major problem. Without prior specifications drawn by the commission or its staff, Manu-Mine proposed the program which ultimately worked to its great profit. Its proposal and the contract it obtained as a result thereof were cleverly disguised as a rather innocuous appearing engineering contract, when in reality the essence of the contract was construction work. So certain was the fact that Manu-Mine would obtain this contract that it indulged itself an anticipatory

[ 190 Pa. Super. Page 218]

    announcement in the newspaper article released prematurely by Luke, which so dismayed Evans. The contract was then expeditiously run through the formality of the February 28, 1955, meeting with the aid of Evans and Torrance accompanied by their assurances that the work was necessary and that Manu-Mine was the only firm to do it. Manu-Mine then began work under the contract. It used equipment which had a drilling rate far in excess of the 28 feet per day upon which its drilling price of $12.50 per foot was based. Even the Joy No. 32 drill mentioned in the cost analysis produced an average of 51 feet and a maximum of 78 feet per shift. Manu-Mine drilled holes which served no useful purpose other than to form the basis for periodical estimates for payment. The vast majority of the holes drilled were unnecessary, would not take material, and were of no benefit in the slushing program. For these as well as the few holes that had usefulness it charged the exorbitant price which had fraudulently been obtained and justified by the false cost analysis.

Evans, who had been a commissioner since May 17, 1939, is inextricably a principal in the conspiracy. The substantial success of Manu-Mine, which was owned largely by his son and the nephew of his wife, resulted solely from business given to it by the commission without competitive bidding. His introduction of the commission geologist Cleaves to Stickler, his permitting Cleaves to be employed by both the commission and Manu-Mine, his berating of Cleaves, and his evident disturbance because of the premature publicity given the Manu-Mine contract, his conduct at the February 28, 1955, meeting where together with Torrance he impressed upon Lawler the urgency of letting this contract to Manu-Mine (the company of reputed international fame), all taken together with the circumstances of the disguise of this contract, the actual futility

[ 190 Pa. Super. Page 219]

    of the program, and the exorbitant price charged, more than adequately establish his guilt.

Torrance, who had been a commissioner since September 2, 1943, is likewise shown to have been one of the participants in the conspiracy. Torrance attended the January, 1955, meeting at the Hotel Sterling in Wilkes-Barre. Torrance together with Evans urged at the February 28th meeting the adoption of the Manu-Mine contract and recommended the Manu-Mine company as one of international repute. Torrance accepted a gift certificate from Manu-Mine at Christmas, 1954, and earlier had permitted Manu-Mine to improve a trench silo on his farm without cost to him. Torrance admitted that he knew that Stickler was the nephew of the wife of Evans, but denied knowing that Richard Evans was connected with Manu-Mine.*fn11 Considering the many years of experience that Torrance had at the commission and his knowledge of its practice to have construction contracts competitively bid, considering the fact that Torrance knew of the relationship

[ 190 Pa. Super. Page 220]

    between Evans and Stickler, considering his friendly relationship with Stickler by reason of the work performed on Torrance's farm and the gift certificate, considering Torrance's joining with Evans in impressing Lawler with the urgency of the work and the purported good reputation of Manu-Mine in this field, together with the circumstances of the disguise of this contract, and the actual futility of the program, the guilt of Torrance is clearly established. He participated not only passively in his failure to question the contract or insist upon the customary procedures and protective provisions but he actively participated in its adoption.

By May 25, 1955, when Manu-Mine submitted its second periodical estimate for payment showing a total drilling to that time of over 21,992 feet, it was obvious that the rate of drilling had substantially increased, that this was a construction job, and that the total cost of the drilling program was becoming excessive. The magnitude of this enterprise was evident then and should have provoked inquiry on the part of Evans and Torrance.*fn12 Their making payments thereon and thereafter is an added circumstance demonstrative of their guilt in the conspiracy.

The defendant Paul J. McNeill was the finance director of the commission during the period of negotiating, obtaining, and performing the Manu-Mine contract. The evidence, however, fails to show that McNeill participated in any way in the negotiation and the obtaining of the Manu-Mine contract which is one of the essential fraudulent acts charged in the indictment. While it is true that a person who is not initially involved in the conspiracy may join that conspiracy

[ 190 Pa. Super. Page 221]

    in some later stage of its performance (Com. v. Rogers, 187 Pa. Superior Ct. 471, 482, 1444 A.2d 662), the evidence does not establish anything on the part of McNeill which aided in perpetrating the fraud or its concealment. On the contrary the evidence shows that McNeill recognized the contract as one for construction, set it up in the budget as being paid out of the construction fund and at his instance required Manu-Mine to furnish a performance bond and a labor and materialmen's bond for the protection of the commission. That he approved the payments to be made without the usual 10 per cent retention and on the basis of the billed footage may be explained as to him by the fact that he did not participate in the initial conspiracy to obtain the contract and was apparently applying the contract literally according to its provisions. In fact, a Commonwealth witness, Franklin V. Summers, assistant director of finance under MNeill, testified that he approached McNeill when he noticed that C. J. Guldin, district construction engineer, was deducting a 10 per cent retention, and that he, Summers, stated to McNeill that according to the way he read the contract the retention was not called for; McNeill simply confirmed his interpretation of the contract in this respect. The actions of McNeill were not entirely consistent with his guilt, but in some respects may have indicated an attempt to protect the interest of the commission. If McNeill were acting in furtherance of the conspiracy and for its concealment, he probably would not have given the contract the attributes of a construction contract or have belatedly required the protective bonds at a cost of $30,000 to Manu-Mine. Although we recognize that McNeill's acts and conduct displayed questionable judgment and created a suspicion as to his intentions and his connection with Manu-Mine, we cannot say that they established his guilt as charged in the indictment beyond

[ 190 Pa. Super. Page 222]

    a reasonable doubt. The judgment of sentence as to McNeill on the indictment charging conspiracy will be reversed and defendant will be discharged.

Stickler and Landsidle are so obviously implicated as to require little comment. Stickler built his company and his own personal profit almost at the sole expense of the commission. Stickler was quick to recognize the profitable possibilities available at the commission. The series of contracts let to Manu-Mine in connection with the selection of the route across the anthracite coal measures, the patrolling thereof, the preparation of data and the making of exploratory survey all evidence the favoritism utilized by Stickler. Landsidle, although he had no ownership interest in Manu-Mine, was its general manager and actively participated in the project resulting in the defrauding of the commission. Stickler and Landsidle discussed the drilling work and decided that they would propose to the commission that they be given the contract; they negotiated with the commission and when they were questioned about the price proposed for drilling they submitted a cost analysis that was fictitious and based upon a drill which they did not at that time intend to use in the performance of the work. They performed a grossly excessive amount of drilling which was useless to the extent of as much as 95 per cent and for this they charged the commission the exorbitant price obtained by their fraudulent cost analysis. They claimed to have been performing engineering work, still when they realized the very substantial increase in the drilling rate and the sharp rise in profit therefrom they as engineers did not attempt to inform the commission of this development.

Both Stickler and Landsidle profited to a large extent from their fraud. As we have previously indicated Manu-Mine had a profit after all expenses amounting to approximately $4,000,000 under this contract,

[ 190 Pa. Super. Page 223]

    or more than 100 per cent over cost. If overhead expenses, which included substantial bonuses to employes, advertising costs, and other such expenses, are excluded, the operating profit was over $5,000,000. Included in some of the overhead expenses was furniture in the amount of $10,000 purchased by Stickler for his home; gifts to Torrance and John D. Paul; a portion of the cost of two fur coats for the wife of Stickler; and a trip by Stickler and his family to Honolulu. For the year 1955 Stickler received a salary of $32,300 plus a bonus of $35,000; Richard Evans received a salary of $10,500 and a bonus of $20,000; and Landsidle received a salary of $13,496 and a bonus of $26,700. As we have said, the stock owned by Stickler, his wife, and Richard Evans increased from $100 per share to over $42,000 per share. That Landsidle was not an owner of Manu-Mine is unimportant. He actively participated with Stickler in the negotiation of this contract; he signed and submitted the fraudulent cost analysis; he signed and submitted the periodical estimates for payment; and he personally profited from the fraud through his substantial salary and bonus.

The evidence is sufficient to convict Stickler and Landsidle of conspiracy; it sustains as well their convictions of the crime of fraudulent pretense in obtaining the contract and in obtaining or attempting to obtain payments thereunder.The crime of fraudulent pretense is completed when there co-exists a false pretense, an obtaining of property of value thereby, and an intent to cheat and defraud. Com. v. Hancock, 177 Pa. Superior Ct. 585, 592, 112 A.2d 407. In the course of negotiating for this contract Stickler and Landsidle submitted at the request of John D. Paul, the commission engineer, a cost analysis to substantiate their price of $12.50 per foot of drilling. It is unnecessary to detail the matters outlined in that analysis except

[ 190 Pa. Super. Page 224]

    to state that it purported to justify the $12.50 per foot cost of drilling on the basis of the actual cost to perform the work with a Joy No. 32 drill at a rate of 28 feet per drill per shift plus a profit of 10 pe cent. The cost analysis was false. Stickler and Landsidle submitted the analysis at a time when they knew they were not going to use the drill; they knew prior to the adoption of the contract that they were going to use a heavier drill and in fact had planned for its operation. They knew that the work could not be accomplished by the drill that they proposed although it was submitted none the less in justification of the price. "A criminal false pretense has been said to be 'the false representation of an existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does, in fact, deceive, and by means of which one person obtains value from another without compensation.'" Com. v. Gross, 161 Pa. Superior Ct. 613, 618, 56 A.2d 303, 306. The submission of a cost analysis in justification of a price about to be inserted in a contract is a representation of an existing fact; it is a representation of the facts and circumstances of the operation upon which the price is based. Cf. Com. v. Hancock, supra, 177 Pa. Superior Ct. 585, 593, 112 A.2d 407. Both Stickler and Landsidle prepared and were familiar with the cost analysis which was signed by Landsidle. It was admitted that they intended the commission to rely upon the analysis. An additional consideration is the fact that in August, 1956, after Manu-Mine had been suspended from the work, Stickler, Landsidle, and Luke prepared another cost analysis in justification of the $12.50 price. That Stickler and Landsidle intended to deceive and that they did deceive are clear beyond question; the $12.50 price which they had "justified" was incorporated into the agreement. Stickler and Landsidle obviously obtained

[ 190 Pa. Super. Page 225]

    something of value; they obtained initially the contract and thereafter, because of their initial fraud, continued to obtain payments under the periodic estimates. As to those estimates which were not paid, they were guilty of an attempt to commit the crime of fraudulent pretense.

The guilt of Evans and Torrance on counts 1 and 2 of the misbehavior in office indictments is substantiated by the evidence. Both Evans and Torrance were charged with misbehavior for corruptly participating in the negotiation and obtaining of the Manu-Mine contract, for willfully and corruptly permitting the Manu-Mine contract to become effective thereafter, and for permitting payment of vast sums of money pursuant thereto. Misbehavior in office is a common law offense. Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 120, 14 A.2d 907. The offense occurs when there is a breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive. Com. v. Peoples, 345 Pa. 576, 579, 28 A.2d 792; McNair's Petition, 324 Pa. 48, 55, 187 A. 498. Evans and Torrance here were charged with the performance of a discretionary act with an improper or corrupt motive. A discretionary duty must be exercised with reason as opposed to caprice or arbitrary action; the term discretion "'imports the exercise of judgment, wisdom, and skill, as contradistinguished from unthinking folly, heady violence, and rash injustice.'" Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 120, 14 A.2d 907, 913. In its penal sense misbehavior in office does not encompass mere errors in judgment or departures from sound discretion, but an official must perform those official duties which require the exercise of a sound discretion to the interest of the Commonwealth and not capriciously, arbitrarily, and with a willful and corrupt design. Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 120, 121,

[ 190 Pa. Super. Page 22614]

A.2d 907. The willful and corrupt motive need not arise from personal benefit. See Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 121, 122, 14 A.2d 907. In this instance Evans and Torrance, both of whom had many years of experience at the commission, permitted the blatant disguise of this contract, ignored their normal protective procedures, and in fact actively participated in inducing Lawler to go along with the contract by stressing its urgency and the qualifications of Manu-Mine to do the work. This they did for the benefit of Evans' relatives, arbitrarily casting aside what should have been a proper concern for the interests of the commission. There is no reasonable conclusion other than that they favored Manu-Mine in this contract, as they had with other contracts in the past, without regard to their official obligation to the commission. This was willful and corrupt.

It is also clear that the conspiracy charge and the charges of misbehavior in office were separate and distinct and did not merge or require an election on the part of the Commonwealth. The charges and proofs of misdemeanor in office were broader than the statutory offense of conspiracy. See Com. v. Falls and Sykes, 107 Pa. Superior Ct. 129, 134, 162 A. 482; Com. v. Kline, 107 Pa. Superior Ct. 594, 604-607, 164 A. 124; Com. v. Ackerman, 176 Pa. Superior Ct. 80, 83, 106 A.2d 886. The fact that both offenses related to and grew out of one transaction is not controlling; the test is whether the proof of each charge requires an additional fact which the other does not. Com. v. Falls and Sykes, supra, 107 Pa. Superior Ct. 129, 133, 162 A. 482.*fn13

[ 190 Pa. Super. Page 227]

Torrance was also charged, in the third count of the indictment charging misbehavior in office, with hampering, obstructing, and corruptly interfering with the proper and legitimate investigation of the contractual activities of Manu-Mine with the commission. Torrance argues that there is no such crime either common law or statutory. In the alternative it is argued that if there is such a crime the evidence does not sustain his conviction thereof. The Commonwealth contends that the indictment charges a common law crime under the doctrine of Com. v. McHale, 97 Pa. 397, 408. The doctrine of the McHale case is based upon the authority of Blackstone and propounds a comprehensive classification of conduct which may amount to common law offenses. According to this doctrine conduct which especially affects the Commonwealth, which is against the public peace, morals, or economy, or the due regulation and domestic order of the state, is considered a common law offense. It is stated that "'... the individuals of the state like members of a well-governed family, are bound to conform their general behavior to the rules of properiety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. This head of offenses must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended

[ 190 Pa. Super. Page 228]

    under any of the four preceding series [of common law offenses].'" Com. v. McHale, supra, 97 Pa. 397, 408. Conduct is indictable as a common law offense under this doctrine even in the absence of specific common law precedent or statutory declaration. See Com. v. Cano, 182 Pa. Superior Ct. 524, 532, 533, 128 A.2d 358. The McHale doctrine is applicable to such conduct which is inherently offensive to the public peace, morals, and economy. Com. v. Cano, supra, 182 Pa. Superior Ct. 524, 535, 128 A.2d 358. We think that the willful and corrupt hampering, obstructing, and interfering with a proper and legitimate investigation to the scandal, dishonor, and prostitution of public justice amount to a common law offense within the doctrine of the McHale case.

However, we are of the opinion that the evidence does not sustain the charge against Torrance in this instance. It appears that on February 27, 1956, the commission met with the Governor of the Commonwealth in connection with the investigation of the slushing program. At this meeting the Attorney General expressed the desire to coordinate the investigations of the contracts for drilling, casing and slushing which were being conducted (1) by the State police, (2) under orders of the Attorney General, and (3) by the Secretary of Mines and Mineral Industries. Commissioners McSorley and Lawler were in general agreement with the plan but Torrance took exception to this method of procedure, and stated that the investigation should be made by the commission itself in as much as the building of the turnpike system was a responsibility of the commission. At the time of this meeting the Department of Mines had already begun its investigation. Thereafter, on March 5, 1956, McSorley took virtually the same position in a letter written to the Attorney General.There is no indication that Torrance did not otherwise co-operate in the investigations

[ 190 Pa. Super. Page 229]

    that were being conducted or that the investigations were hampered, obstructed, or subjected to interference. The Commonwealth also relies on the fact that Torrance sent copies of the reports of the investigations by the Department of Mines and the State police to Manu-Mine. This was done, however, with the knowledge and approval of the commission counsel or the Commission Chairman McSorley, and was made known at the commission meetings. The evidence does not establish the offense charged; the conviction on count 3 of the indictment charging Torrance with misbehavior in office will be reversed.

III. Alleged Trial Errors

Numerous matters raised on these appeals relate to alleged trial errors and are set forth in support of defendants' motions for new trial. Included in this phase of the case are errors alleged to have occurred in the refusal of bills of particulars, in the consolidation of indictments for trial, in refusing defendants' requests for offers of proof, in the admission of evidence, in the refusal of defendants' points for charge, and in the charge of the court.

In reviewing the alleged errors it is well to recognize that "Mere error in the abstract is not sufficient to warrant a retrial, and where the conclusion is inescapable that the error did not influence the jury against the accused, or deprive him of his legal right to a fair trial, a new trial will not be granted." Com. v. Linkowski, 363 Pa. 420, 424, 70 A.2d 278, 280. The errors must be found to have been prejudicial.

Defendants assert that it was prejudicial to refuse their motions for bills of particulars. Where an indictment is sufficient as a matter of law but does not furnish sufficient information to enable the defendant to prepare his defense, the court may order a bill of particulars to be filed. Com. v. New Bethlehem Borough,

[ 190 Pa. Super. Page 23015]

Pa. Superior Ct. 158, 164; Com. v. Hershman, 171 Pa. Superior Ct. 134, 139, 90 A.2d 314. The indictments in the instant case are sufficient in law and set forth specifically the offenses charged. A reading of the indictments demonstrates that the crimes are clearly defined, and that the details thereof are set forth with reasonable particularity. A bill of particulars, even when required, is not meant to be a specification of every item of evidence to be adduced by the Commonwealth. Com. v. Buccieri, 153 Pa. 535, 547, 26 A. 228.*fn14

Upon motion of the district attorney, to which the defendants objected, the court permitted the consolidation of the indictments for trial.The general rule is that the court in its discretion may consolidate two or more indictments for trial where the offenses charged are similar, related, or connected unless substantial prejudice will result to the accused. Com. v. Krzesniak, 180 Pa. Superior Ct. 560, 567, 119 A.2d 617. The consolidation of a conspiracy indictment with other related charges will normally not be disturbed where it appears the evidence that was admissible on the crimes charged in the other indictments tended to support the conspiracy charge. Com. v. Dixon, 179 Pa. Superior Ct. 1, 5, 115 A.2d 811. The consolidation for trial of indictments charging conspiracy and misdemeanor in office has been recognized. Com. v. Ackerman, supra, 176 Pa. Superior Ct. 80, 85, 106 A.2d

[ 190 Pa. Super. Page 231886]

. And, in general, defendants charged with conspiracy should be tried together. Com. v. Antico, 146 Pa. ...


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