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COMMONWEALTH v. FRANCIS (06/12/63)

June 12, 1963

COMMONWEALTH
v.
FRANCIS, APPELLANT.



Appeal, No. 26, Oct. T., 1963, from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, July T., 1961, Nos. 1477, 1478, 1479, 1483, 1484, 1485, 1487, 1488, 1489, 1573, 1574, and 1575, in case of Commonwealth of Pennsylvania v. John E. Francis. Appeal sustained as to certain charges, dismissed as to others.

COUNSEL

Domenick Vitullo, with him A. Charles Peruto, for appellant.

F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, with him John F. Hassett and Arlen Specter, Assistant District Attorneys, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Montgomery

[ 201 Pa. Super. Page 316]

OPINION BY MONTGOMERY, J.

These appeals by John E. Francis, defendant, are from a judgment of sentence on one indictment charging "false pretenses" (1483) and the suspension of sentence on eleven others, viz.: 1477, 1478, 1479, charging bribery; 1484, 1485, charging false pretenses; 1487, 1488, 1489, charging extortion; and 1573, 1574, 1575, charging conspiracy; following his convictions thereof

[ 201 Pa. Super. Page 317]

    by a jury and the dismissal of his motions for a new trial and in the arrest of the judgments. He had been tried on twenty-six indictments consolidated for trial purposes, but was successful in obtaining a demurrer to one, not guilty verdicts on four, and the arrest of judgment on nine others. All of the indictments were based on appellant's activities in connection with contracts which the City of Philadelphia had with Hughes Steel Erection Company and A. Belanger and Sons, Inc., for rehabilitation work*fn1 on the Frankford Elevated Railway in that city. During such activities appellant held the position of Deputy Commissioner in the Department of Public Property of that city and had the responsibility of overseeing the work being done under the contracts. Eli G. Travis, hereinafter mentioned, was Vice President of the Hughes Steel Erection Company and the owner of twenty per cent of its stock. John Hughes owned another twenty per cent and the Belanger brothers, who also owned A. Belanger and Sons, Inc., owned the remaining sixty per cent.

Appellant's present general contentions are, (1) that the evidence produced by the Commonwealth (appellant offered no evidence) was insufficient to sustain the convictions; and (2) that he was denied a fair trial for various reasons.

The cases now under consideration may be grouped as follows:

1477 - Bribery and 1489 Extortion, resulting from a gift of clothing (value $305) from Travis to Francis.

1478 - Bribery and 1488 Extortion, resulting from gift of television set (value $533.99) from Travis to Francis.

[ 201 Pa. Super. Page 3181479]

- Bribery and 1487 Extortion, resulting from the gift of an installment payment by Travis on a debt owed by Francis (amount $132).

1575 - Conspiracy and 1485 False Pretenses, resulting from a $32,475 payment by Philadelphia City to Hughes Steel Erection Company on December 31, 1959, for work not performed.

1574 - Conspiracy and 1484 False Pretenses, a similar payment of $18,635 made December 16, 1960, for work not performed.

1573 - Conspiracy and 1483 False Pretenses, a similar payment of $33,440.90 made March 9, 1960, for work not performed.

Sufficiency of Evidence

Giving the Commonwealth the benefit of all the favorable testimony and all reasonable inferences arising therefrom, the relevant facts may be stated as follows: The City of Philadelphia and the Philadelphia Transit Company, having agreed to repair the Frank-ford Elevated section of the transit system, advertised for bids, and as a result thereof entered into four contracts (Nos. 725, 726, 727, and 728) with the low bidder, A. Belanger and Sons, Inc. During the progress of the work under these contracts, Travis, the representative of the contractor, established friendly relations with Benjamin Barone, secretary to William T. Gennetti, the Commissioner of the Philadelphia Department of Public Property, and with Harold Varani, the acting Chief Engineer of the City of Philadelphia, who was also attached to the Department of Public Property. In return for their good will and help in performing the contracts, Travis gave and promised to give them valuable emoluments; however, since appellant was their superior, it was suggested by them that Travis meet appellant. This was accomplished and appellant shared the hospitality afforded by Travis. When

[ 201 Pa. Super. Page 319]

    the bids were opened for the fifth contract (No. 729), neither company represented by Travis was the low bidder and the possibility of re-advertising for new bids instead of awarding the contract to the low bidder was discussed by Travis with Barone and Varani, and later with appellant. This was subsequently accomplished, with the cooperation of appellant, by changing the requirements of the specifications of the contract so as to eliminate the cement work and substitute other work relating to the repair of expansion joints. With confidential information as to the estimate made by the City Engineer on the probable cost of the work covered by the revised specifications for contract 729, supplied by Barone, Varani, and at least with the knowledge and acquiescence of appellant, Hughes Steel Erection Company submitted the lowest bid and was awarded the contract. However, after performing part of the contract, Travis informed Barone, Varani and appellant that he was going to lose money and could not perform the work of "jacking the bents" (as required in the contract) for the cleaning and otherwise repairing of the expansion joints of the trackage. Item 47 of the contract covered 52 joints at $500 per joint or a total cost of $26,000 and item 48 covered 50 at $500 each or a total of $25,000. The Hughes Company did jack a few of the bents in cleaning the joints but failed to jack the others. This constituted inferior work with less effective results; nevertheless, the Hughes Company claimed and was paid the full amount of the contract price with extras totaling $44,440.*fn2 With full knowledge that the work had not been done in accordance with the contract appellant permitted vouchers for the payments to be prepared by and cleared through

[ 201 Pa. Super. Page 320]

    his office on the certificate of his construction engineer and of Varani, then his Director of Architecture and Engineering. Appellant not only enjoyed the hospitality of Travis but received from him the items of value previously mentioned.

False Pretenses

In connection with these charges appellant argues that (1) his signature on the three vouchers on which the payments relating to items 47 and 48 of the contract were made has not been sufficiently proved; (2) the particular omissions in performance of the work have not been identified with the separate vouchers; and (3) there is no evidence that payment was made on the strength of the vouchers.

Appellant's signature does not appear on vouchers 8, 9, and 10, although he did sign the earlier vouchers 1, 2, 3, and 4 on contract 729. However, his certification is not the determining factor. Under the Act of June 24, 1939, P.L. 872, ยง 836, as amended, 18 P.S. 4836, one who aids, assists or abets another in defrauding is guilty of the crime. Appellant, with knowledge that the contractor was not performing his contract but was nevertheless certifying that it had fully and properly performed it in order to secure full payment, was rendering aid and assistance to the defrauder ...


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