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COMMONWEALTH v. TUMOLO (12/11/72)

decided: December 11, 1972.

COMMONWEALTH, APPELLANT,
v.
TUMOLO



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1971, Nos. 44 to 51 inclusive, in case of Commonwealth of Pennsylvania v. Alfred Tumolo.

COUNSEL

James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Barry H. Denker, and Shuman, Gay, Denker & Land, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Dissenting Opinion by Spaulding, J. Jacobs and Hoffman, JJ., join in this dissenting opinion.

Author: PACKEL

[ 223 Pa. Super. Page 190]

The defendant was indicted in Philadelphia for conspiracy and for faking insurance claims with respect to two alleged automobile accidents, one in Philadelphia and one outside Philadelphia. The court below quashed

[ 223 Pa. Super. Page 191]

    the indictments on the ground that there was no evidence of any overt act that occurred in Philadelphia. The notes of testimony of the preliminary hearing reveal the position of the Commonwealth that the two claimed accidents were part and parcel of a broad scheme by the appellee and others involving overt conduct in Philadelphia and elsewhere.

The Commonwealth showed that the first accident which took place outside Philadelphia on December 16, 1970, purportedly involved the defendant's car and two other cars. Payments for damages to those cars were made on the basis of the defendant's statement that he had been negligent. One of the cars, even though it had been sold as a wreck a year before the accident, was shown to have been the subject of insurance claims for additional accidents on December 8, 1969 in Philadelphia and on March 21, 1970, outside Philadelphia. The other car, titled in the name of a Philadelphian, was the subject of claims paid for in connection with two later accidents, even though in the time involved it had only been driven 53 miles. One of those accidents allegedly occurred in Philadelphia, and the car had in fact been examined for its damage in Philadelphia.

The second accident dealt with in the indictments was reported as having happened on January 25, 1970, in Philadelphia. The defendant represented that he was negligent with respect to a car titled in the name of a Philadelphian. The car was inspected in Philadelphia in conjunction with the insurance claim. This same car, within a one month period, was purportedly involved in other accidents involving Philadelphia residents for which insurance claims were paid.

The Commonwealth also showed that many accident reports involving these cars and others were in different names but were made in the handwriting of two persons. It was also shown that the defendant's employer had been arrested in connection with claims involved in this case.

[ 223 Pa. Super. Page 192]

The law is clear that, absent legislation, the jurisdiction of criminal courts extends only to offenses committed within the county of trial. Commonwealth v. Simeone, 222 Pa. Superior Ct. 376, 294 A.2d 921 (1972). Where a conspiracy is involved, however, it is established that overt acts by any one of the conspirators in a county is enough to give jurisdiction to a criminal court in that county. In Commonwealth v. Thomas, 410 Pa. 160, 164, 189 A.2d 255, 258 (1963), the Court held: "It is well settled that within the Commonwealth '. . . prosecution for criminal conspiracy may be brought in the county where the unlawful combination or confederation was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of that unlawful combination or confederacy': [Citations]." Likewise, as pointed out in Commonwealth v. Prep, 186 Pa. Superior Ct. 442, 451, 142 A.2d 460, 465 (1958), jurisdiction because of overt acts can exist as to substantive crimes wholly or partially committed in the county by any one of the conspirators: "It is a well established theory of the law that, where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies ...


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