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COMMONWEALTH v. NEFF (03/20/62)

March 20, 1962

COMMONWEALTH
v.
NEFF, APPELLANT.



Appeals, Nos. 233, 234, 235 and 236, March T., 1961, from order of Superior Court, April T., 1961, Nos. 1, 2, 3 and 4, affirming orders of Court of Quarter Sessions of Beaver County, Sept. T., 1959, No. 22, in case of Commonwealth of Pennsylvania v. Samuel G. Neff, Leon Kaleta, James Macry and Robert Yoho. Judgments reversed; reargument refused April 23, 1962.

COUNSEL

John Alan Conte, with him Paul E. Courtney, and Conte & Courtney, for appellants.

Richard P. Steward, District Attorney, with him Joseph S. Walko, First Assistant District Attorney, for Commonwealth, appellee.

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

Author: Jones

[ 407 Pa. Page 4]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

Samuel Neff (Neff), James S. Macry (Macry), Robert Yoho (Yoho), and Leon Kaleta (Kaleta), appellants, were indicted by the grand jury of Beaver County on the charges of extortion and conspiracy to extort. The gravamen of these charges was that all four appellants, by reason of their respective official positions, had extorted money from certain contractors who leased equipment to the Pennsylvania Department of Highways (Highway Department) in Beaver County. All four appellants were convicted on both charges after a trial before Judge MORGAN H. SOHN and a jury in the Court of Quarter Sessions of Beaver County.

After trial, each of the appellants filed motions for an arrest of judgment and a new trial. The court below arrested judgment on the charges of extortion against Neff and Macry, the basis of that ruling being that Neff, chairman of the Democratic party in Beaver County, and Macry, secretary of the same party in that county, were neither public nor quasi-public officers within the meaning and intent of the law relating to the offense of extortion. The validity of that ruling is not before us. The court below did not arrest judgment on the charges of extortion against Yoho and Kaleta, the basis of that ruling being that Yoho, assistant superintendent of the Highway Department, and Kaleta,

[ 407 Pa. Page 5]

    a foreman in the Highway Department, were public or quasi-public officers within the meaning and intent of the law relating to the offense of extortion. On the charges against all four appellants of conspiracy to extort, the motions for arrest of judgment and a new trial were dismissed. Appellants were sentenced on the charges whereof they stood convicted. Appeals were taken to the Superior Court which affirmed the judgments of sentence: 195 Pa. Superior Ct. 420, 171 A.2d 561.*fn1 We granted allocaturs.

The primary issue presented upon these appeals is whether the evidence is sufficient to support the convictions of all four appellants on the charge of conspiracy to extort and to support the convictions of Yoho and Kaleta on the charge of extortion.

In connection with the charge of extortion it must be noted that The Penal Code (Act of June 24, 1939, P.L. 872, 18 PS § 4101 et seq.) does specifically*fn2 designate extortion as an offense: Act of 1939, supra, § 318, 18 PS § 4318. At common law and by this statute extortion "is the unlawful taking by an officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is due": Commonwealth v. Saulsbury, 152 Pa. 554, 559, 25 A. 610; Commonwealth v. Gettis, 166 Pa. Superior Ct. 515, 518, 72 A.2d 619. An "officer", within this common law definition includes a "quasi public officer": Commonwealth v. Saulsbury, supra; Commonwealth v. Gettis, supra; Commonwealth v. Lawton, 170 Pa. Superior Ct. 9; Commonwealth v. Ruff, 92 Pa. Superior Ct. 530. In Commonwealth v. Channing, 55 Pa. Superior Ct. 510, 516,

[ 407 Pa. Page 6]

President Judge RICE defined "color of office": "Amongst the judicially recognized definitions of color of office, applying to the differing states of facts that may arise, are: a pretense of official right to do an act, made by one who has no such right; the use of official authority as a pretext or cover for the commission of some corrupt or vicious act; an act wrongfully done by an officer under the pretended authority of his office: [citing cases]."

In Commonwealth v. Horvath, 187 Pa. Superior Ct. 206, 144 A.2d 489 (1958), it was stated: "The elements of conspiracy to do an unlawful act are a combination of two or more persons, with criminal intent or corrupt motive, to do a criminal or unlawful act, or an act not in itself unlawful, by criminal or unlawful means: Com. v. Gaines, 167 Pa. Superior Ct. 485, 75 A.2d 617. The offense of conspiracy is complete the moment the parties agree to do an unlawful thing: Com. v. Ricci, 177 Pa. Superior Ct. 556, 112 A.2d 656. No explicit, formal agreement need be shown in proving a criminal conspiracy: Com. v. Dunie, 172 Pa. Superior Ct. 444, 94 A.2d 166. The heart of every conspiracy is a common understanding, no matter how it comes into being. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities: Com. v. Strantz, 328 Pa. 33, 195 A. 75. A conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: Com. v. Rosen, 141 Pa. Superior Ct. 272, 14 A.2d 833." "That which gives to the crime of conspiracy its distinctive character is unity of purpose, unity of design, focalization of effort upon a particular project by the

[ 407 Pa. Page 7]

    persons named in the indictment. ... In order that any of the defendants may be convicted of conspiracy, he must be shown to have participated in the alleged general combination or concert with all or some of the other ...


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