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COMMONWEALTH v. COHEN ET AL. (03/19/64)

March 19, 1964

COMMONWEALTH
v.
COHEN ET AL., APPELLANTS.



Appeals, Nos. 273 to 278, inclusive, Oct. T., 1963, from judgments of Court of Quarter Sessions of Philadelphia County, Sept. T., 1959, No. 520, in case of Commonwealth v. Raymond Cohen et al. Judgments of sentence affirmed; reargument refused April 13, 1964.

COUNSEL

Abraham J. Brem Levy, for appellant.

John Rogers Carroll, with him John Patrick Walsh, for appellant.

Jay D. Barsky, for appellant.

Ray e. Machen, with him Bernard L. Lemisch, for appellant.

Morton Witkin, with him Witkin & Egan, for appellant.

Arlen Specter, Assistant District Attorney, with him Gordon Gelfond and Louis F. McCabe, 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: Ervin

[ 203 Pa. Super. Page 39]

OPINION BY ERVIN, J.

The six defendants, Raymond Cohen, John Joseph Elco, Joseph E. Hartsough, Edward F. Walker, Abraham D. Berman and Ben Lapensohn, have appealed from the judgment and sentence of the court below following a joint trial on a single bill of indictment charging them with conspiracy to cheat and defraud a union of its money, goods and property.

The district attorney, with allowance of the court below, presented a bill to the grand jury which, on September 18, 1959, was returned as a true bill. On September 25, 1961 the defendants filed a motion to quash the indictment on the ground that they had not been afforded a preliminary hearing before the presentation of the bill to the grand jury. The motion was denied by Judges SLOANE, GLEESON and MCCLANAGHAN. After a trial which lasted ten weeks and one day, the jury returned verdicts of guilty as to all defendants on June 3, 1963. A review of the record will reveal that the Commonwealth produced 98 witnesses and introduced 1116 exhibits. None of the defendants testified. No evidence was introduced on behalf of any of the defendants. After the dismissal of motions for new trial and in arrest of judgment and the imposition of sentences, these appeals were taken.

Several of the appellants argued that the court below erred in not quashing the indictment because of the absence of a preliminary hearing. It should be pointed out that this question was not presented or argued in the post-trial motions filed in the court below. We will, however, consider this argument on the merits.

Upon review of an order to quash an indictment based on a special bill submitted under the supervision of the court, we will not set aside the action of the court below except for an abuse of discretion both manifest and flagrant, and in a clear case where we

[ 203 Pa. Super. Page 40]

    are convinced that harm has been done to the defendant by improper conduct that interfered with his substantial rights: Com. v. Carey, 201 Pa. Superior Ct. 292, 296, 191 A.2d 730; Rowand v. Com., 82 Pa. 405, 408; Com. v. Ramsey, 42 Pa. Superior Ct. 25, 32.

In Com. v. Cody, 192 Pa. Superior Ct. 354, 358, 156 A.2d 620, we said: "Adherence to this practice [obtaining prior leave of court for a district attorney's bill of indictment] will obviate attacks on indictments returned without a preliminary hearing and previous binding over."

The evidence at the hearing on appellants' petition for a writ of habeas corpus*fn1 in the court of common pleas, established that the district attorney was confronted with an emergency which required utilizing the district attorney's bill of indictment. The district attorney's office had received certain leads from the United States Senate Committee investigating Local 107 in 1958 but Local 107 instituted an action in the United Satates District Court for the District of Columbia to prevent the Senate from turning over the original Local 107 records to the Philadelphia district attorney's office. Appeals were taken to the Court of Appeals for the District of Columbia and then a petition for a writ of certiorari was filed with the United States Supreme Court.It was not until January of 1959 that the original records were turned over to the district attorney. William V. Suckle, the assistant district attorney then in charge of the case, organized the evidence and prepared a report, which was a time

[ 203 Pa. Super. Page 41]

    consuming procedure because of the obvious complexity of the case involving a review of 15,000 checks and much legal research. The report was delayed for a short period of time due to Mr. Suckle's illness. On July 24, 1959 the report, consisting of more than 200 pages, was turned over to the district attorney, who studied it in the time available while he was performing his numerous other duties. After an initial staff meeting on August 20, 1959, a subsequent staff meeting was held on August 25, 1959, at which time the district attorney decided that the evidence was sufficient to proceed with the prosecution of the defendants. The district attorney decided to petition to have a special grand jury to convene in order to seek additional evidence which might extend the statute of limitations or, failing that, to have the special grand jury make an interim presentment to the regular grand jury. After the Court of Quarter Sessions granted the petition for a special grand jury, a petition was filed on behalf of the defendants to secure a writ of prohibition, which was ultimately successful when the Supreme Court of Pennsylvania prohibited further action by the special grand jury: Special Grand Jury Case, 397 Pa. 254 (1959), 154 A.2d 592.

When the petition for a writ of prohibition threatened to obstruct the proceedings of the special grand jury, the district attorney was faced with the necessity of an alternative procedure with time rapidly running out. Concerned that a preliminary hearing would take at least ten days, the district attorney ordered the preparation of a petition for a district attorney's bill of indictment on September 10, 1959, which petition was completed on September 15, 1959. On September 16, 1959 the petition was presented to Judge CARROLL, who approved it, and on September 17 and 18 evidence was heard by the grand jury with the bill of indictment being returned on September 18, 1959.

[ 203 Pa. Super. Page 42]

Among the findings of fact in the opinion of Judge GOLD when this question was considered, are: "Despite the protestations of relators to the contrary, we find on evidence of undue delay or negligence on the part of the District Attorney covering the period ending July 24, 1959. ... first, we perceive no evidence pointing resolutely to the conclusion that relators were deliberately or purposefully deprived of their right to a preliminary hearing; second, a genuine emergency existed which called for the special remedy of a district attorney's bill; and third, the public good and interest made such a step justifiable. ... no harm has been done to the relators by the District Attorney's alleged improper conduct." The court below, in its opinion, further stated: "Local 107 is a gigantic union with more than 12,000 members situate in the greater Philadelphia area. Its immense economic influence in the transportation and allied industries is well known. We have been and are now of the belief that Local 107 is a strong, powerful, self-disciplined and militant labor organization, which, concentrated in the field of transportation, is affected with a public interest no less than the utilities, railroads and trucking industry which it serves." The court below noted that the principal reason for a preliminary hearing was to prevent a defendant from being detained for a crime he never committed. See the exhaustive opinion of Judge WOODSIDE for this Court in Com. v. O'Brien, 181 Pa. Superior Ct. 382, 387, 124 A.2d 666. The court below also pointed out that the defendants were not deprived of their liberty since bail was posted an hour or so after they surrendered themselves. It also stated: "There is not a word in their [defendants'] voluminous briefs citing any harm, prejudice, or any adverse strategic position caused to them by the failure of the District Attorney to grant them a preliminary hearing. Nor was there any testimony or evidence to this effect."

[ 203 Pa. Super. Page 43]

The value of a preliminary hearing in acquainting a defendant with the nature of the charge and the evidence to be presented against him is uniquely absent in this case because the great bulk of the evidence, checks and vouchers, was prepared and controlled by the defendants themselves. The district attorney was confronted with an emergency. The statute of limitations was about to expire. A matter of great public importance was involved. While the crime of conspiracy is only a misdemeanor when it is applied to a situation such as was presented in this case, it is affected with a great public interest. To prevent the treasury of an important union, with its 12,000 members, from being looted was a matter of great public interest. Unions today have assumed a very important position in the economic life of our country. Millions of working people are directly affected by the conduct of such unions. It is just as important to see that the affairs of a union are conducted in an honest manner as it is to see that the affairs of a municipality are so conducted. This case, in our opinion, falls within one or more of the well recognized exceptions set forth by Judge CLARK in a charge to a grand jury in 1845, which has frequently been referred to by the courts. The exceptions are as follows: "The first of these is, 'where criminal courts, of their own motion, call the attention of grand juries to, and direct the investigation of, matters of general public import, which, from their nature and operation in the entire community, justify such intervention.' This power of the court, it is said, will only be thus exercised, however, in the investigation of general and public evils, such as great riots, general public nuisances, and flagrant vices; it will not be applied in cases of ordinary crime.

"The second exception is, 'where the attorney-general, ex officio, prefers an indictment before a grand jury, without a previous binding over or commitment

[ 203 Pa. Super. Page 44]

    of the accused.' This power is properly exercised where there is occasion for great haste in applying the machinery of the law, or where the exigencies of the case and the public interests may reasonably require such action to be taken. The procedure in such cases, however, is under the supervision of the court, and if the process and power is misapplied the court will vindicate itself in restraining its exercise." Com. v. Green, 126 Pa. 531, 537, 17 A. 878.

The appellants argue that the delay was caused by the district attorney's own inactivity. We do not believe that the record substantiates this argument. Even if we did agree, we are convinced that the district attorney acted in good faith with no resultant harm to the appellants and that his action was in the public interest. The record reveals that the appellants also were responsible for much of the delay which prevented the institution of these criminal proceedings. While the facts show that the district attorney acted properly in this case, if it were otherwise certainly the rights of the people should not be deemed waived for his dereliction by having these important convictions invalidated on such a technicality.

The Acquisition of Control of the Union

No brief was filed on behalf of appellant, John J. Elco. The other five appellants argued that the evidence was not sufficient to sustain a conviction. In this connection we review the evidence and inferences reasonably deducible therefrom in the light most favorable to the Commonwealth: Com. v. Burns, 409 Pa. 619, 187 A.2d 552. It is our duty to accept as true all of the Commonwealth's evidence upon which, if believed, the jury could have properly based its verdict: Com. v. Gooslin, 410 Pa. 285, 287, 189 A.2d 157. So considered, the evidence establishes that the defendants

[ 203 Pa. Super. Page 45]

    entered into a continuing conspiracy to cheat and defraud Local 107; that in the execution of their scheme they planned to and did gain control of the union and its treasury; that they extended their domination by replacing key officials and then proceeded to loot the union treasury by various devices.

The rules for evaluating the evidence in a conspiracy trial are well set forth by President Judge RHODES in the case of Com v. Evans, 190 Pa. Superior Ct. 179, 202, 154 A.2d 57, as follows: "In a conspiracy trial, where fraud is involved, there is a wide latitude allowed in the introduction of evidence. Consideration should be given to the background of the arrangements made by defendants and their methods of association; where a criminal scheme has numerous actors and shifting scenes of action the conspiracy is often made out by the association of detached facts and by the reasonable inferences deducible therefrom. Evidence of the acts and circumstances in fulfillment of the object of the conspiracy is relevant."

In the case of Com. v. Burdell, 380 Pa. 43, 49, 110 A.2d 193, Chief Justice HORACE STERN said: "It is hornbook law that a conspirator is criminally responsible for the acts of his coconspirators which are committed in furtherance of the common design even though he was not present when the acts were committed: ...."

Chief Justice GIBSON, is Rogers v. Hall, 4 Watts 359, 361, stated: "Now the least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all. ..."

With these principles in mind, let us now consider the evidence. It shows that in November 1953 a general election was held by the union with Joseph Grace, president, presiding. He refused to recognize any nominations other than that of Cohen. The November election was set aside by the International Brotherhood

[ 203 Pa. Super. Page 46]

    of Teamsters but in a subsequent election held in May 1954, Cohen was elected secretary-treasurer and assumed office on June 4, 1954. Shortly after Cohen was elected to office, Joseph Hartsough was employed as a bookkeeper and Ben Laspensohn was hired to do assorted jobs in late June or early July of 1954. The other defendants, Walker, Berman and Elco, also supported Cohen and were recipients of union moneys which were used to pay off Cohen's election supporters. On June 10, 1954, Cohen and Grace signed a check for $15,000.00 payable to the order of "Cash," which was endorsed by Hartsough. Five days later a second check in the amount of $10,000.00, also payable to the order of "Cash" and endorsed by Hartsough, was used, together with the first check, to pay off "Cohen's election supporters. These funds were distributed by Cohen, Berman and Walker. The defendants Berman, Walker and Elco each received part of the $25,000.00. Walker got $180.00; Elco received $225.00 and Berman was paid $600.00.

The funds of the union were also used to pay $8,500.00 to one Samuel Kirsch as a repayment of election expenses. Samuel Kirsch was an employe of a closely held corporation which Lapensohn controlled.

A check of the union in the amount of $4,573.43 was used to repay Local 169 of the Teamsters Union for advances and election expenses paid by Local 169 for Cohen. Local 169 advanced Cohen $3,000.00, consisting of a check for $2,000.00 and two checks for $500.00 each. Cohen arranged for these loans with the president of Local 169, who was Edward Hartsough, brother of the defendant, Joseph E. Hartsough. In addition, Local 169 paid to Majestic Press and Keystone Printing Company the sum of $1,573.43 for Cohen's campaign literature. After Cohen gained control of the union's treasury, the above mentioned check

[ 203 Pa. Super. Page 47]

    of $4,573.43 was used by Local 107 to repay Local 169. The check of Local 107 for $4,573.43 covered the advance to Cohen in the amount of $3,000.00 and the amount paid to the printing company for the campaign literature of $1,573.43. The use of the union's money to pay for Cohen's election expenses was illegal. The officers of a union occupy a fiduciary relationship and may not use union moneys for their own private purposes. Union moneys may only be used for legitimate expenses of the union.

After Cohen became secretary-treasurer of the union, he and the other defendants proceeded to centralize their control by violence and the threat of violence and the use of the union's money to pay off and oust all opponents. Business agent Kelleher resigned in order to "get rid of the harassment that my wife and family was going through." Business agent John Fisher's resignation was accomplished by paying him $5,000.00 out of the union treasury, which, after deductions, led Cohen and Grace to write him a check for $4,112.50. Both violence and union money were used to persuade business agent and corresponding secretary Raymond Kelly to be dismissed. Kelly testified that he "didn't want any physical violence to happen to" him.

Figures were altered on many of the checks. Harry Graff received $100.00 but the second figure was altered by an additional loop to $180.00. Patrick Flanagan received $100.00 and by the insertion of a proper mark the $100.00 was changed to $400.00. Sam Doman, Sr. was supposed to have received $225.00 but he received at most $175.00. Frank Charlton and Thomas Charlton each signed his name on the voucher with no sum of money written in. They received $100.00 each but $150.00 was written beside their names on the voucher.

[ 203 Pa. Super. Page 48]

The Horn & Hardart Organizational Operation

Local 107 attempted to unionize Horn & Hardart and approximately 60 checks amounting to $92,385.10 were written on the union treasury. Each check was purportedly supported by a voucher explaining the expenditures. Twelve witnesses testified that they received substantially less than the amounts specified on the vouchers. All of these checks were made payable to "Cash," signed by Cohen and Grace and endorsed by Joseph Hartsough. A bank officer testified that it was their custom to require the person receiving the cash on a check drawn to the order of "Cash," to endorse the check. Elco was in charge of this operation. He rented the office headquarters, ordered the telephone service in his name and signed vouchers for a number of men and on a number of occasions the recipient did not get as much money as he had signed for.

The Gallagher Strike

In January and February of 1957 the union struck E.A. Gallagher Company. Eight checks totaling $41,710.00 were written to the order of "Cash," signed by Cohen and Grace and all but one were endorsed by Hartsough. Some 13 witnesses testified that they received less money than was stated on the vouchers signed by them in blank.

Missing and Unexplained Checks to Ben Lapensohn

In addition to Lapensohn's regular pay checks, a series of 13 checks were written to his order without any voucher in the union records to explain their issuance. Stubs contained the notations, "Services Rendered,"

[ 203 Pa. Super. Page 49]

"Personal Services," "Returned Expenses" and "Extra Expenses." These checks were all for sums in excess of $800.00. Ten of these checks were missing. An examination of the union check book showed that the cancelled checks had been scotch taped in and then ripped out of the check books.

Clothing Purchases

Checks were written on the union bank account covering various clothing purchases at Diamond & Company for Cohen and Walker. A series of purchases for Cohen totaled $1,333.99, ranging from suits in the amount of $135.00 to ties up to $10.00. Union checks for a total of $1,200.00 were issued in payment checks for a total of $1,200.00 were issued in payment of Cohen's personal bills of $1,196.00. Among the items of clothing billed to Cohen's account and paid for by a union check, were a suit and topcoat for Walker totaling $220.00.

In addition, a Local 107 check for $500.00 was issued to pay for clothing purchased at Diamond & Company by Walker, including an overcoat, suits, topcoat, two pairs of shoes, ties, shirts and a collar pin.

Trailer Drops

In December 1954 Food Fair was permitted to use trailer drops, which gave them a competitive advantage over Acme and A & P and other chain stores. A trailer drop means that the trailer has been detached from the truck and left at a store. The trailer can then be unloaded at the convenience of the store personnel. It also affords additional storage space for the store. In 1954 Cohen announced that Local 107 would not permit trailer drops. A deal was ...


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