No. 634 October Term, 1978, Appeal from Judgment of Sentence imposed of the Court of Common Pleas, Delaware County, entered December 7, 1977, at No. 7525 A to D - Criminal Action. December Term, 1976
Abraham A. Hobson, III, King of Prussia, for appellant.
D. Michael Emuryan, Assistant District Attorney, Media, with him Richard R. Galli, Assistant United States Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
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Presently before the court is the appeal of Joseph P. Mascaro, Jr. (Mascaro) from the judgment of sentence entered December 7, 1977.
The facts may briefly be summarized as follows: On December 13, 1976, appellant was charged in a state criminal complaint with (a) five counts (diverse dates) of theft by deception, 18 Pa.C.S.A. § 3922; (b) five counts (diverse dates) of deceptive business practices, 18 Pa.C.S.A. § 4107; (c) one count of unsworn falsification to authorities, 18 Pa.C.S.A. § 4904; and (d) one count of criminal conspiracy, 18 Pa.C.S.A. § 903, respectively.
Thereafter, on February 11, 1977, appellant was indicted by a federal grand jury and charged with four counts of
[ 260 Pa. Super. Page 422]
mail fraud (18 U.S.C. § 1341) and four counts of false statements (18 U.S.C. § 1001).
Both the state and the federal indictments arose "from a common and continuing scheme" wherein the County of Delaware overpaid a corporation (J. P. Mascaro & Sons, Inc.), which was substantially controlled by appellant, the approximate sum of $170,000.00 pursuant to a service contract between said corporation and the County of Delaware, whereby said corporation was to haul residue from Delaware County to a landfill located in New Jersey.
Prior to having been brought to trial on the state charges in Delaware County, appellant entered a plea of guilty in Federal Court on March 14, 1977 to two violations in each of 18 U.S.C. § 1341 and 18 U.S.C. § 1001. Appellant's guilty pleas were accepted and sentencing was set for April 15, 1977.
On March 22, 1977, appellant filed in the state court, a petition to dismiss the state charges alleging "a double jeopardy" defense.
In April, 1977, appellant was sentenced in federal court to pay a fine of $4,500.00 and to probation for five years on the condition that he personally guarantee the corporate restitution ordered to Delaware County of the overpayments received. Thereafter, the federal government moved that the third and fourth counts of the mail fraud and false statements indictments be dismissed.
On May 20, 1977 (obviously subsequent to the federal sentencing), the Delaware County Court entered an order in response to appellant's March 22, 1977 petition to dismiss, wherein the court dismissed count I only of the criminal complaint charging appellant with deceptive business practices (Information No. 7525B of 1976). All other state charges, including counts 2, 3, 4 and 5 under the Deceptive Business Practice Indictment, were found by the lower court to be not barred from prosecution in the state court.
On May 31, 1977, Commonwealth vs. Joseph P. Mascaro, Jr. was called for non-jury trial, at which time the Commonwealth
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and appellant entered into a written stipulation to all material facts. On June 3, 1977, the lower court entered an order ...