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COMMONWEALTH v. WHEELER (03/19/63)

March 19, 1963

COMMONWEALTH
v.
WHEELER, APPELLANT.



Appeals, Nos. 10, and 48 to 106, inclusive, April T., 1963, from judgments of Court of Oyer and Terminer of Butler County, Sept. T., 1961, Nos. 106-110 and 116-170, in case of Commonwealth of Pennsylvania v. Mae H. Wheeler. Judgments affirmed.

COUNSEL

A. R. Cingolani, jr., with him A. R. Cingolani, and Cingolani & Cingolani, for appellant.

Frederic G. Antoun, Deputy Attorney General, with him David Stahl, Attorney General, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Rhodes

[ 200 Pa. Super. Page 287]

OPINION BY RHODES, P.J.

These sixty appeals*fn1 are by Mae H. Wheeler from convictions and sentences on indictments for embezzlement and forgery. Defendant was convicted on fifty-five indictments charging embezzlement and five indictments for forgery and uttering and publishing a forged instrument.*fn2

[ 200 Pa. Super. Page 288]

The issues raised by defendant in her motions for a new trial and in arrest of judgment were: (1) whether there was error in refusing defendant's motion for continuance; (2) whether there was error in severing the indictments; (3) whether there was error in refusing to quash the indictments involving embezzlement; (4) whether there was error in refusing to sustain defendant's demurrer to the sufficiency of the evidence; (5) whether the jury verdict was contrary to the evidence; and (6) whether a deputy attorney general had the right to present the indictments to the grand jury and conduct the case at trial. The court below refused defendant's motions for a new trial and in arrest of judgment. The same questions are now presented to this Court on appeal.

The crimes for which defendant was convicted arose while she was the secretary-treasurer and a board member of the Workingmens Building and Loan Association of Butler. In the audit for 1959 a discrepancy of approximately $2,000 was discovered in the installment share account. This was noted on the audit with the request that the discrepancy be accounted for prior to the next audit. During the course of the audit for 1960 the discrepancy rose to approximately $19,000. At this point, in January, 1961, the auditors met with the Board of Directors and suggested that a complete and thorough audit of the installment share account be

[ 200 Pa. Super. Page 289]

    made. The board agreed to a special audit. Because the association was due for a routine examination, the Department of Banking joined with the auditors to conduct the special audit and a routine examination. The association auditors sought and were granted permission to conduct the audit without the presence of defendant who was asked to take a leave of absence. The audit began on February 9, 1961. On March 1, 1961, the District Attorney of Butler County, on information filed by Fred A. Fahrner, an examiner of the Department of Banking, presented before an alderman an information charging defendant with falsification of the records. In April, 1962, the District Attorney of Butler County informed the Attorney General by letter that, because of his personal relationship with the association and defendant, he felt that he could not continue, and asked the Attorney General to enter the case. The Attorney General agreed and assigned Deputy Attorney General Frederic G. Antoun to the case. The audit and examination continued, and on June 6, 1961, one hundred seventeen additional informations charging defendant with a variety of offenses were filed at the same alderman's office. After a lengthy preliminary hearing extending from June 26, 1961, to June 29, 1961, including evening sessions, all of the informations were returned to court. On September 15, 1961, the Butler County Grand Jury returned true bills on one hundred seventeen indictments. The trial was set for September 25, 1961, with Honorable MORGAN H. SOHN of the 36th Judicial District specially presiding.

On the day of trial defendant moved for a continuance. After lengthy argument, both in open court and in chambers, the motion for continuance was refused. The Commonwealth requested a severance of the charges. This request was granted and the trial was directed to start on September 26, 1961, on indictments

[ 200 Pa. Super. Page 290]

Nos. 116 to 170, inclusive, September Term, 1961,*fn3 involving embezzlement, and indictments Nos. 106 to 110, inclusive, September Term, 1961,*fn4 involving forgery. Before a jury was selected, defendant moved to quash all the indictments and challenged the right of Mr. Antoun to have presented the indictments to the grand jury and to his further participation in the case. The motion was overruled. On October 18, 1961, he jury returned verdicts of guilty on all indictments. Motions for new trial and in arrest of judgment were made by defendant and refused.

Motion for Continuance

An application for a continuance is addressed to the sound discretion of the trial judge, and in the absence of an abuse of discretion the action thereon will not be disturbed. Com. v. Meszaros, 194 Pa. Superior Ct. 462, 463, 168 A.2d 781; Com. v. Richardson, 392 Pa. 528, 540, 140 A.2d 828. A careful review of the facts discloses that defendant and her counsel, who represented her from the beginning of the proceedings, had sufficient time to prepare for the trial.

The special audit by the association auditors, joined in by the Department of Banking, began on February 9, 1961. By March 1, 1961, defendant had the first formal notice that she was being charged with a crime when the false entry charge was filed and she posted bail. By June 6, 1961, defendant was formally charged by the filing of the additional one hundred seventeen informations, and she was afforded a preliminary hearing which extended from June 26 to June 29, 1961, including evening sessions.

[ 200 Pa. Super. Page 291]

Over two hundred days elapsed between the day the auditors appeared and began the special audit and the day the motion for continuance was presented. At a conference during the week of September 4, 1961, it was agreed that defendant, her counsel, and her auditors have access to all records of the association. A condition of this agreement, imposed by the association, was that a representative of the Commonwealth be present. In that event defendant was asked to pay daily compensation to such representative. In any event, however, the Commonwealth offered to make its audit findings and surveys available to defendant or permit photostatic copies to be made if defendant paid the cost. During the course of the trial the Commonwealth offered to produce any information requested by defendant.

Between February 9, 1961, when the auditors began working, and February 13, 1961, the date defendant was requested to take a leave of absence, certain vital records disappeared.

We feel that, under the circumstances, defendant and her counsel had adequate opportunity to secure the necessary evidence to prepare her defense. She was thoroughly familiar with the records and was the one person who directed every operation of the association. Because of her knowledge of the working of the association, she knew what records she would need to prepare her case. She made no specific requests for any document. The record indicates that she would have received the full co-operation of the Commonwealth and the auditors. Her case was competently presented to the jury by her capable counsel. The court below did not abuse its discretion in refusing the continuance.

Severance of Indictments

The consolidation or separation of indictments is a matter for the trial judge whose determination will be

[ 200 Pa. Super. Page 292]

    reversed on appeal only for obvious abuse of discretion or prejudice to the defendant. Com. ex rel. Lockhart v. Myers, 193 Pa. Superior Ct. 531, 539, 165 A.2d 400.

Defendant argues that she has a defense to either all or none of the indictments, and that, since these indictments dealt with transactions from January 1, 1960, to February 13, 1961, there was a complete elimination of the opportunity of cross-examination or inquiry into other ...


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