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December 14, 1960


Appeals, Nos. 46 to 51, inclusive, March T., 1960, from judgments of Court of Quarter Sessions of Dauphin County, March T., 1958, Nos. 71 and 79, in case of Commonwealth v. Frank J. Petrosky et al. Judgments affirmed.


James W. Evans, for appellants.

William W. Lipsitt, with him A. C. Scales, and Reynolds and Lipsitt, and Scales and Shaw, for appellant.

Alfred P. Filippone, Deputy Attorney General, with him Mary E. Hoerner, Assistant District Attorney, Martin H. Lock, District Attorney, and Anne X. Alpern, Attorney General, for Commonwealth, appellee.

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

Author: Rhodes

[ 194 Pa. Super. Page 98]


The defendants, Roland J. Sell, Charles E. Fait, and Frank J. Petrosky, were indicted in Dauphin

[ 194 Pa. Super. Page 99]

County for cheating by fraudulent pretenses*fn1 the Commonwealth of Pennsylvania, Department of Highways, of the sum of $4,757.29 in connection with the sale of cinders for use in Westmoreland County, and with conspiracy to defraud.*fn2 The Commonwealth contended that Petrosky obtained this sum of money in payment for 3034.21 tons of cinders which he did not deliver, and that Sell and Fait, who were assistant superintendents in Westmoreland County for the Department of Highways, aided and abetted him. The three defendants were convicted by a jury on both indictments. Each defendant filed a motion in arrest of judgment and for a new trial.

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

From the judgments of sentence, defendants have appealed.

A contract, or purchase order, dated January 17, 1956, was awarded by the Commonwealth to David E. Ankney. The contract called for the delivery by Ankney to the Commonwealth for the Department of Highways of 5,000 tons of cinders at $1.46 per ton and 3,000 tons of cinders at $1.52 per ton, or a total price of $11,869. Ankney never received any request for delivery of cinders under this contract. Approximately one year after the award of the contract, Petrosky approached Ankney and offered to fill the contract and take it over. Ankney agreed to turn the purchase order over to Petrosky, and in return Petrosky agreed

[ 194 Pa. Super. Page 100]

    to pay Ankney $800 from the contract payments. Ankney turned the purchase order over to Petrosky although no formal assignment of the contract was made. Petrosky requested billheads from Ankney because the cinders had to be billed in Ankney's name. Petrosky then filled out the billheads and submitted them. Ankney received a check of the Commonwealth issued by the State Treasurer in the amount of $12,394.58. Ankney cashed the check and drew a check payable to Petrosky in the amount of $11,594.58, which was the balance after $800 was deducted.

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

Jurisdiction and venue were in Dauphin County.*fn3

The crime of cheating by fraudulent pretenses is not completed until property is obtained by the defendant,

[ 194 Pa. Super. Page 101]

    but it is not essential for purposes of jurisdiction that the prosecution be brought only in the county in which the defendant in person actually obtains possession of the object. Jurisdiction has been held to rest where the circumstances show that, for all practical purposes, the object has been placed within the control of the defendant. Com. v. Prep, 186 Pa. Superior Ct. 442, 447, 448, 142 A.2d 460.

Defendants argue that the Court of Quarter Sessions of Dauphin County has no jurisdiction of the crime of cheating by fraudulent pretenses or of the conspiracy indictments because the check of the State Treasurer was made payable to Ankney and mailed to him at Ligonier, Westmoreland County, where it was deposited by Ankney, and a new check written to the order of Petrosky. They further argue that the transaction was not complete until Petrosky received the check from Ankney. For these reasons, defendants seek to distinguish this case from the Prep case.*fn4

We fail to see a substantial distinction on the question of jurisdiction (venue) between the Prep case and the one at bar. We agree with Judge KREIDER of the court below when he said in his opinion: "By persuading Ankney to 'assign' the contract, by the utilization of Ankney's billheads and by making the agreement whereby Ankney would pass on to Petrosky the Commonwealth's remittance, less the sum of $800.00, Petrosky in effect constituted Ankney as his agent in the fraudulent scheme. It is true that in this case the postmaster at Harrisburg upon receipt of the Commonwealth's check addressed to Ankney, became the

[ 194 Pa. Super. Page 102]

    latter's agent. However, because of the prior manipulated agency status that Petrosky had thrust on Ankney, the Harrisburg postmaster in mailing the State Treasurer's check also became the agent of the defendant Petrosky and the co-defendants Sell and Fait. The chain of control was longer and perhaps more devious in the instant case than it was in the Prep case, but when traced from the beginning to the end it discloses an unbroken trail from the Treasury of the Commonwealth to the defendant Petrosky. The crime was complete and the object of the false pretense was 'obtained'*fn5 in Dauphin County when the check of the State Treasurer was placed in the hands of the innocent postmaster at Harrisburg. The accomplishment of this act, together with that of sending to Harrisburg the false material delivery records signed by Sell and Fait, constituted overt acts in Dauphin County by the defendants in furtherance of the conspiracy."

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

In the instant case, Petrosky with the aid of Sell and Fait put in force an agency for the commission

[ 194 Pa. Super. Page 103]

    of the crime, and they, in legal contemplation, accompanied the same to the point where it became effective, that is, in Dauphin County where the check was mailed to the agent Ankney by whom the fruits of the conspiracy were delivered to Petrosky.

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

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

The crime of obtaining any chattel, money, or valuable security by fraudulent pretenses, under section 836 of The Penal Code of June 24, 1939, P.L. 872, as amended, 18 PS § 4836, is completed when there coexist the following elements: (1) A false pretense; (2) an obtaining of property of value thereby; and (3) an intent to cheat and defraud. Com. v. Prep, supra, 186 Pa. Superior Ct. 442, 446, 142 A.2d 460.

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

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

Earl J. Mellman, the expert witness for the Commonwealth, stated that, as a result of his audit, Petrosky, through Ankney, was paid for 3034.21 tons of cinders which were not delivered, resulting in a total overpayment of $4,512.23. The Commonwealth proved that the shortage of this amount of cinders arose out of fraudulent claims covering alleged deliveries of cinders by Petrosky as set forth in two material delivery

[ 194 Pa. Super. Page 104]

    records, Form 2140. The first purports to show that 2923.90 tons of cinders were delivered on December 4, 5, and 6, 1956, at a place known as "Five Points," Salem Township, Westmoreland County, when in fact only 600 tons were delivered, thus creating a shortage of 2323.90 tons, which represented an overcharge of $3,432.56. This material delivery record was signed by defendant Sell, as assistant superintendent, and by Richard V. Brahosky, a caretaker, at the "Five Points" location. The second material delivery record was signed by the defendant Fait, as assistant superintendent, and by Charles E. Weaver, a caretaker, at or near Irwin in Penn Township and North Huntingdon Township. Petrosky submitted a claim for 1274.85 tons of cinders, when in fact the evidence tended to show that only 564.54 tons were actually delivered, thereby creating a shortage of 710.31 tons, resulting in an overpayment of $1,079.67. The overcharges total $4,512.23.*fn6

The evidence indicates that, when Petrosky's truck driver appeared with a load of cinders at the State stockpile, he would hand to the employe receiving the cinders a pad or book containing original white delivery slips and carbon copies designated "Weighmaster's Certificate." These slips were issued by the Salem Supply Company which was owned by Petrosky. The receiver of the cinders would sign and detach the original white delivery slips from the truck driver's pad and deliver them to his superior, known as a "caretaker," who would use them in preparing his material delivery record, Form 2140, and who would in turn deliver them to the assistant superintendent. The assistant superintendent would turn them over to the

[ 194 Pa. Super. Page 105]

    invoice clerk and chief clerk for checking. The duplicate delivery slips would be returned by the truck driver to his employer, Petrosky. Petrosky then billed the ...

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