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COMMONWEALTH PENNSYLVANIA v. NORMAN H. BERTELS (09/22/80)

SUPREME COURT OF PENNSYLVANIA


decided: September 22, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
NORMAN H. BERTELS, JR., W. KIRK HAMMAKER AND DONALD L. PARKER, APPELLEES

No. 10 MAY TERM, 1979, Appeal from the Opinion and Judgment of the Superior Court of Pennsylvania dated November 30, 1978.

COUNSEL

Albert J. Strohecker, III, Sally A. Lied, Asst. Atty. Gen., Harrisburg, for appellant.

Louis Lipschitz, Philadelphia, for appellees.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., joins the majority opinion and filed a concurring opinion.

Author: Flaherty

[ 491 Pa. Page 188]

OPINION OF THE COURT

This is an appeal from a reversal by the Superior Court*fn1 of judgments of sentence imposed upon appellees, Norman H. Bertels, Jr., W. Kirk Hammaker, and Donald L. Parker, following convictions for embezzlement, fraudulent conversion, falsification of corporate records, and conspiracy.*fn2 The convictions arose from complex transactions, involving applications of financial assets, whereby the appellees were found to have defrauded corporations which they controlled. Trial by jury was held in the Franklin County Court of Common Pleas in February, 1969, venue having been changed from Adams County at defendants' request.

On appeal is the issue of whether Adams County had venue and jurisdiction for trial, since the transactions involved occurred primarily outside that County. After a careful review of the briefs, record, and decisions below, we

[ 491 Pa. Page 189]

    affirm the determination of the Superior Court that trial jurisdiction was lacking.

Order of the Superior Court affirmed.

ROBERTS, Justice, concurring.

I join the opinion of Mr. Justice Flaherty. It should be noted that the transfer of funds from a Pennsylvania parent corporation's bank account in Adams County to its subsidiary's bank account in Virginia, an outwardly innocent act, has not been shown to be in furtherance of an unlawful agreement. Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255, cert. denied, 375 U.S. 856, 84 S.Ct. 118, 11 L.Ed.2d 83 (1963) (prosecution for criminal conspiracy may be brought either in the county where an unlawful agreement is formed or in the county where an overt act is committed in furtherance of that unlawful agreement). Because the Commonwealth has not met its burden of proving jurisdiction, the Superior Court's order reversing judgments of sentence should be affirmed.


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