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COMMONWEALTH v. MARINO (06/27/69)

decided: June 27, 1969.

COMMONWEALTH
v.
MARINO, APPELLANT



Appeal from order of Superior Court, Oct. T., 1968, Nos. 230 to 235, inclusive, affirming judgments of Court of Quarter Sessions of Philadelphia County, Feb. T., 1967, Nos. 361, 363, 364, 365, 366 and 368, in case of Commonwealth v. Francis Marino.

COUNSEL

B. Nathaniel Richter, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 435 Pa. Page 246]

Francis Marino, Arthur Ashkenase and Salvatore Rispo, Jr., were found guilty in Philadelphia of the crimes of blackmail and conspiracy following a joint trial before the Honorable Edmund B. Spaeth, Jr., sitting without a jury. Post-trial motions were denied and judgments of sentence were imposed. On appeal, the Superior Court unanimously affirmed the convictions and judgments entered against Ashkenase and Rispo. In the case of Marino, the Superior Court likewise affirmed, but Judge Watkins filed a dissenting opinion in which Judge Hoffman joined. See 213 Pa. Superior Ct. 88, 245 A.2d 868 (1968). Petitions for allowance to appeal from the order of the Superior

[ 435 Pa. Page 247]

Court were filed in this Court on behalf of all of the defendants, but only that of Marino was granted. We concluded to review the Marino conviction because of our concern that the use at trial of certain evidence identifying him as one of those involved in the crimes was violative of due process of law. However, after a careful study of the record and pertinent decisions, we now affirm.

The facts established by the record, as set forth in Judge Montgomery's opinion for the Superior Court, are as follows:

"Between July, 1965 and November, 1966, defendant Ashkenase loaned to Morris B. Singer, who operated a haberdashery store in Bucks County, Pennsylvania, various sums of money totaling $4,150. By November, 1966 Singer had repaid $1,650 leaving a balance of $2,500 plus interest. Nevertheless, in November, 1966 Ashkenase demanded $8,800 claiming that was the amount still owing to him. . . .

"'On Tuesday, November 8, 1966, defendants Ashkenase and Rispo went to Singer's place of business in Fairless Hills, Bucks County, Pennsylvania. Singer testified that he was informed by Rispo that "Ashkenase was paid off," and that he now owed Rispo "and his people the sum of $10,000." Rispo threatened to kill Singer and Singer's wife if the "debt" were not paid immediately.

"'Rispo told Singer to dial a Philadelphia telephone number, saying that "a girl will probably answer 'The Teamsters'" and telling him to "ask for the 'Big Man'". Singer dialed the number but was too frightened to talk, and so gave the telephone to Rispo. After Rispo had said a few words he returned the telephone to Singer. The man from the Teamsters told Singer that Ashkenase had been paid and that Singer had better come up with $10,000.00, and he asked how much money

[ 435 Pa. Page 248]

Singer had on him. After the telephone conversation, Rispo took from Singer $250.00 in cash, a diamond ring, and a watch. He again threatened Singer and told him that they would call him that evening to set up a meeting. When Singer said that he had recently had his telephone number changed, Rispo replied "Don't worry. We know everything. We'll know your number." Before leaving, Rispo again warned Singer: "Don't f -- with us because we're big people and there is nobody bigger than us. You heard about what happened over at 107."

"'That evening the "Big Man" telephoned Singer at his home, informing him that he had better have $4,500.00 by Friday morning. [As will appear, the "Big Man" was defendant Marino.] After this call, Singer went to the Philadelphia District Attorney's Office, where he told Sgt. McLellan the whole story.

"'Nothing happened on Wednesday, November 9. On Thursday, November 10, Singer received another telephone call at his home from the "boss." Detective Kelly and Mrs. Singer were present. Singer repeated the conversation to the detective. Approximately 15 minutes later, Rispo telephoned and again threatened Singer. Finally, about 15 minutes after Rispo's call, the "Big Man" telephoned again. He told Singer that they were going to have a meeting the next morning and that Singer would receive directions by telephone at exactly 8:00 a.m.

"'At 8:00 a.m. on Friday, November 11, Singer was telephoned and was told by the "Big Man" to go to Lerner's Restaurant where, he was ...


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