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COMMONWEALTH v. EVANS (04/21/60)

April 21, 1960

COMMONWEALTH
v.
EVANS, APPELLANT.



Appeals, Nos. 35, 36, 37, 38, 39, 40, 41 and 42, May T., 1960, from order of Superior Court, March T., 1959, Nos. 29 to 34, inclusive, 36 and 37, affirming judgments of Court of Quarter Sessions of Dauphin County, in case of Commonwealth v. Thomas J. Evans et al., Same v. Charles W. Stickler et al., Same v. James F. Torrance, and Same v. Thomas J. Evans. Order and judgments affirmed.

COUNSEL

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

David J. Conroy, for Clayton A. Landsidle, appellant.

Earl V. Compton and Frederick G. McGavin, for Charles W. Stickler, appellant.

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

Huette F. Dowling, Special Deputy Attorney General, with him Mary E. Hoerner, Assistant District Attorney, Vincent G. Panati, Assistant Attorney General, Alfred P. Filippone, Deputy Attorney General, Martin H. Lock, District Attorney, and Anne X. Alpern, Attorney General, for Commonwealth, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Bok and Eagen, JJ.

[ 399 Pa. Page 388]

OPINION PER CURIAM.

The order and judgments of the Superior Court are affirmed on the opinion of President Judge RHODES, reported at 190 Pa. Superior Ct. 179.

Mr. Justice COHEN took no part in the consideration or decision of this case.

CONCURRING AND DISSENTING OPINION BY MR. JUSTICE BELL:

[ 399 Pa. Page 389]

A gigantic fraud was perpetrated on the Commonwealth of Pennsylvania in connection with the construction of a part of the Northeastern Extension of the Pennsylvania Turnpike, for which a number of people have been convicted and duly sentenced. Evans, a former Chairman of the Commission, and Torrance, a former member and former Secretary-Treasurer of the Commission, were convicted on separate indictments of misbehavior in office and of conspiracy with others to cheat and defraud the Pennsylvania Turnpike Commission. The Superior Court unanimously reversed the conviction of Torrance on the charge of misbehavior in office, reversed the judgment of sentence of one Paul J. McNeill on the indictment charging conspiracy, and by a vote of four to three sustained a conviction of Evans, Torrance and two others on the conspiracy charge.

The crime of conspiracy for which these defendants were convicted "arose principally out of a contract dated February 28, 1955, between the commission and Manu-Mine." Commonwealth v. Evans et al., 190 Pa. Superior Ct. 179, 195. The purpose of the contract was to provide surface support for the right-of-way of the Northeastern Extension of the Turnpike across the anthracite coal regions by the use of slushing material into mine voids underlying the roadway area, which land had been appropriated by the Commission for part of the Northeast Highway.

The basic questions involved in these appeals are two-fold: (1) Was the Commonwealth's evidence legally sufficient to prove beyond a reasonable doubt that each of these particular defendants was guilty of criminal conspiracy to perpetrate this fraud; and (2) Did the admission of Paul's testimony constitute reversible error?

The contract of February 28, 1955, made by the Commission and Manu-Mine Company was first negotiated and approved by the Turnpike Commission's

[ 399 Pa. Page 390]

    engineers. The contract was then approved by the Commission's consulting engineers, then by counsel for the Commission, and finally by 14 other people representing the Commonwealth. All of these men, at least at first blush, appear to be as innocent or guilty as Torrance.

It was the theory of the Commonwealth that the defendants had conspired to defraud the Commission by obtaining this contract, and that the drilling and slushing program recommended by Manu-Mine was in fact 95% 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.

The Pennsylvania Turnpike Commission was composed on February 28, 1955 of Evans, Chairman, Torrance, McSorley (succeeding Chairman) and Lawler (who shortly thereafter became Acting Chairman), and Watson. Manu-Mine Company or its officers and stockholders made a profit from this contract with the Commission variously estimated at from 4 to 10 million dollars. Evans' term expired June 30, 1955. All of the Commissioners (except Watson who was dead) denied that they had committed any fraud, denied any conspiracy or knowledge thereof, and denied any and all wrong-doing. Of the five Commissioners only Evans and Torrance were accused, or arrested, or indicted for conspiracy and fraud.

Torrance's Appeal

Lawler testified in behalf of the Commonwealth: "Q. Do you mean to tell us that you voted for and did vote for the awarding of the contract and the doing of the work without knowing what was involved? [Lawler had actually visited the scene of the work, and the

[ 399 Pa. Page 391]

Secretary of Highways had had a representative of his department assigned to the work, and 14 different people had approved each payment received by Manu-Mine.] A. I depended upon the legal counsel, I depended upon our engineering staff, I depended upon our consulting engineers. That is why the Turnpike has retained these people to advise and instruct us Commissioners." This, as Torrance testified, is exactly the explanation of and the reason why he voted for the contract, as did Lawler, McSorley and Watson. Evans and McSorley were successful business men; the other members of the Commission were ...


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