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COMMONWEALTH PENNSYLVANIA v. CHARLES W. OHLE (09/25/81)

filed: September 25, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES W. OHLE, APPELLANT (TWO CASES). COMMONWEALTH OF PENNSYLVANIA V. RONALD J. JACKSON, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Dauphin County, Criminal Division, at No. 1179 Criminal Division, 1975. Appeal from the Judgment of Sentence of the Court of Common Pleas, Dauphin County, Criminal Division, at Nos. 1171, 1173, 1174 Criminal Division, 1975. Appeal from the Order of Court of the Court of Common Pleas, Criminal Division, Dauphin County, at Nos. 1171 and 1173 Criminal Division 1975.

COUNSEL

Smith B. Gephart, Harrisburg, for appellants.

Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ.

Author: Cercone

[ 291 Pa. Super. Page 113]

Appellants Ohle and Jackson were charged with theft by failure to make required disposition of funds received,*fn1 bribery in official and political matters,*fn2 and conspiracy to commit bribery.*fn3 In June of 1977 Ohle and Jackson were tried jointly on the theft charges. The Commonwealth won convictions on those charges against both men. Each was subsequently sentenced to the payment of a fine of $1,000 plus the costs of his prosecution, restitution to the Commonwealth of $304,500.00, and to a term of imprisonment of from three to five years. Ohle has appealed the judgment of sentence against him at No. 106 March Term, 1978. Jackson has appealed the judgment of sentence against him at No. 103 March Term, 1978.

On the conspiracy and bribery charges a joint trial was begun November 15, 1977. Jackson became ill during this trial, was ruled unable to continue, and a mistrial motion was granted in his favor. As to Ohle, however, the trial continued. He was convicted on both the conspiracy and the bribery counts. For the conspiracy conviction the court sentenced Ohle to payment of a fine and a term of imprisonment

[ 291 Pa. Super. Page 114]

    of from one to two years, to run concurrently with the prison sentence imposed in the theft case. On the bribery conviction the court imposed on Ohle a sentence of six to twelve months imprisonment, which was also to run concurrently with the other prison sentences imposed for the theft and conspiracy convictions, and it also imposed a fine of $500. He has appealed from the convictions on the conspiracy and bribery charges.

Because these three appeals, two by Ohle and one by Jackson, are based generally on the same facts, they were consolidated for purposes of briefing and argument. For convenience sake, we have set out the facts in a single narrative. However, we discuss the legal issues presented separately.

I.

Appellants Ohle and Jackson were insurance brokers with both the firms of Charles W. Ohle, Inc. and O. & R. Excess, Inc., which were brokerages licensed to do business in New York. Charles W. Ohle, Inc., was licensed to do business in Pennsylvania as well. Prior to June 30, 1972 Anthony J. Trucco, then Director of the Commonwealth's Bureau of Insurance and acting pursuant to a plan developed by Frank C. Hilton, then the Commonwealth's Secretary of Property and Supplies, arranged for the renegotiation of the insurance policy covering the Commonwealth's 26,000 automobile fleet. The policy was renegotiated because Trucco and Hilton saw in it a likely opportunity to provide them with an illegal source of revenue through the appointment of a broker who would provide them with a kickback from part of the broker's commission. In February of 1973 Trucco met appellants and discussed the kickback scheme. He told them that the appointment could only be made by Hilton but that he would recommend them to Hilton. He did not reveal Hilton's connection with the scheme. Appellants agreed to the kickback scheme as outlined to them by Trucco. Later that month Hilton appointed appellants' firm, Charles W. Ohle, Inc., broker of record on the renegotiated automobile insurance policy.

[ 291 Pa. Super. Page 115]

The first premium payment in question was delivered to an agent of appellants' in Harrisburg on July 25, 1974 and transported to New York. It was in the form of a check in the sum of $500,000 and made payable to Charles W. Ohle, Inc. and Market Facilities, Inc. (Market Facilities, Inc. was an affiliate of the insurance company which actually carried the policy.) An officer of the insurance company purportedly gave appellant Ohle authority to endorse the Commonwealth's premium checks for Market Facilities. This first check of $500,000 was endorsed by Ohle pursuant to this purported authority, and by his firm, and deposited in a firm account. A second check in the amount of $300,000 was delivered to an agent of appellants in Harrisburg and transported to New York on August 5, 1974. It too was endorsed by Ohle pursuant to the same authority, and by his firm, and deposited in a firm account. Rather than turning the premiums less broker's commission immediately over to the insurance company the $800,000 was used by appellants as collateral on a short term loan from a Florida bank. For unexplained reasons appellants defaulted on the Florida loan and the bank seized the collateral. The $800,000 never reached the insurance company's coffers and it eventually cancelled Pennsylvania's automobile fleet insurance policy.

Shortly after the cancellation of the insurance policy an article appeared in a Harrisburg newspaper concerning a claim by one Mr. Devine, a former employee of Ohle, that he had knowledge of a bribery scheme between Ohle and Jackson on one side and Hilton and Trucco on the other. On the same day, an FBI agent visited the offices of the Commonwealth's Department of Justice and notified state authorities of the federal investigation. Acting upon this information, Edward Golla, Chief Investigator for the Pennsylvania Department of Justice began an investigation. Soon Golla had in his possession statements by Noel Bernard, an employee of the insurance company, pertaining to the theft, bribery and conspiracy charges, as well as statements by other Commonwealth employees concerning appellants' participation in the scheme. Subsequently, appellants were

[ 291 Pa. Super. Page 116]

    granted use immunity pursuant to the federal statutes by the U.S. District Court for the Middle District of Pennsylvania. See 18 U.S.C. § 6002. The Commonwealth's investigation continued; investigators received statements by Trucco which further implicated appellants in the bribery and conspiracy scheme. The appellants thereupon entered into a plea bargain with the district attorney of Dauphin County. On the basis of the plea bargain appellants waived their extradition and were arraigned on the charges brought against them. Appellants later gave statements to the district attorney and in federal court at the trial of Frank C. Hilton, former Secretary of the Department of Property and Supplies. Subsequent thereto the grand jury of Dauphin County approved Bills of Indictment against them. Thereafter the district attorney notified appellants of his decision to withdraw the plea bargain and to prosecute them fully. Appellants made divers and diverse pre-trial motions, among which was a motion to quash the indictments because they were allegedly based on information gained as part of the withdrawn plea bargain. The court held that the evidence presented to the grand jury had been independently gathered and therefore refused to quash the indictments. Trials on the various charges were held in June and October of 1977, which resulted in the convictions of appellants as above set out. These appeals followed.

II.

Appellants have assigned numerous errors. Because of the disposition we make today of these cases, we need not consider all the questions raised.*fn4

[ 291 Pa. Super. Page 117]

A.

We address first the question of whether the court erred in refusing to quash the indictments. Appellants both contend that the indictments on all the counts should have been quashed because they contain substantive defects.*fn5 They argue that they were improperly indicted under the Crimes Code and that they should have been indicted under the Penal Code. They argue further that the indictments were in violation of Section 2 of the Act of December 6, 1972, P.L. 1482, No. 334, and that because violation of the Act of 1972 constitutes a substantive defect the indictments ought to have been quashed. Section 1 of the Act of December 6, 1972 amended Title 18 of the Pennsylvania Consolidated Statutes creating the Crimes Code of Pennsylvania. Section 2 of the Act is a savings clause which ensured the vitality of the Penal Code, and required prosecution under its provision of any crimes the elements of which arose before the Act's effective date. Section 2 of the Act reads:

Title 18 of the Consolidated Pennsylvania Statutes (relating to crimes and offenses), as added by this act, does not apply to offenses committed prior to the effective date of this act and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose, as if this act were not in force. For the purposes of this section, an offense was committed prior to

[ 291 Pa. Super. Page 118]

    the effective date of this act if any of the elements of the offense occurred prior thereto.

Act of Dec. 6, 1972, P.L. 1482, No. 334, § 2. Appellants contend that elements of the crimes of theft, bribery and conspiracy, of which they have been variously convicted, arose prior to the June 6, 1973 effective date of the Crimes Code. We begin by considering the indictments against Ohle on the bribery and conspiracy charges of which he was ultimately convicted,*fn6 and then we shall consider the indictments against both Ohle and Jackson on the charges of theft by failure to make required disposition of funds received.

1.

Ohle contends that it was error to have refused to quash the indictments against him alleging violations of Crimes Code Sections 4701 (bribery) and 903 (conspiracy). His argument is based on the contention that elements of the alleged crimes arose prior to the effective date of the Crimes Code, and consequently that the indictments against him were faulty for their failure to allege violations under the Penal Code of 1968 rather than under the dictates of the Crimes Code of 1972. We agree and accordingly vacate the judgment of sentence relating to charges of bribery and conspiracy, reverse the conviction and quash the indictment against him.

Pennsylvania Crimes Code Section 4701 reads:

BRIBERY IN OFFICIAL AND POLITICAL MATTERS

(a) Offenses defined. -- A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, ...


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