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COMMONWEALTH PENNSYLVANIA v. JOSEPH F. CAREY (12/18/81)

filed: December 18, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOSEPH F. CAREY, APPELLANT



No. 2617 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Delaware County, Pennsylvania, Criminal Division, per The Honorable Louis A. Bloom at No. 6289B of 1977.

COUNSEL

Robert F. Simone, Philadelphia, for appellant.

Michael Coll, Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Stranahan

[ 293 Pa. Super. Page 364]

Defendant, Joseph Carey, has been convicted of criminal solicitation.*fn1 The evidence offered by the Commonwealth would indicate that the defendant solicited James Parsells, Owen Gallagher and David Eagan to set fire to Ernesto's Little Italian Market in Clifton Heights, Delaware County, Pennsylvania.

During the trial, David Eagan testified that he attended meetings with James Parsells and Joseph Carey at which time the arson of Ernesto's Little Italian Market was discussed and the defendant eventually paid to Eagan, who subsequently split the money with Parsells and Gallagher, the sum of $5,000.00 to commit the arson of the business in Delaware County.

All of the conversations among the defendant, Parsells and Eagan took place in Philadelphia. The first two conversations were at a downtown restaurant and the final conversation at one of the Philadelphia hotels.

As a result of these conversations and the final payment of money to Parsells, Eagan and Gallagher, the three men went to the market in Clifton Heights and entered the premises with a key that had been provided to them for that purpose. The key was provided by defendant giving it to Parsells who, in turn, gave the key to Eagan. The three men took with them a quantity of gasoline, together with various incendiary devices to be used in setting a fire in the building occupied by the business. Among the incendiary devices were timers, the heating elements of toasters, various wiring and other paraphernalia.

[ 293 Pa. Super. Page 365]

While the three men were in the building, people in the vicinity reported the occurrence to the police who arrived at the scene very quickly and observed the three men in the building. The police then advised the three men in the building that the premises were surrounded and that the occupants should give themselves up. Prior to surrendering, Parsells, who was in charge of setting the incendiary devices, triggered one of the devices and an explosion occurred. The three men were taken into custody by the police and subsequently were convicted of the arson.

The occurrence of the arson was October 24, 1976 and on October 13, 1977, defendant was arrested and charged with a multitude of crimes, which included theft by deception, arson, criminal conspiracy, criminal solicitation, criminal attempt to commit arson, incendiary devices and recklessly endangering other persons.

At the time of the preliminary hearing, the magistrate dismissed the charges of theft by deception and arson but bound the defendant over on the other charges.

Defendant was brought to trial and at the time of the trial the court dismissed all the charges against the defendant except criminal solicitation which was submitted to the jury and resulted in a conviction.

The principal witness for the Commonwealth was David Eagan. At the time of his testimony, Eagan was in the Federal Witness Protection Program and was under the protection of the United States Marshall's office.

Prior to the arson, Eagan had been involved in a post office robbery in Atlantic City. As a result of the robbery and as a result of Eagan later being convicted of the arson involved in this case, Eagan agreed to cooperate with federal authorities and testify against Carey in this case. He was a paid witness who was given a monthly stipend by the federal government and was maintained by the government as a protected witness.

Delaware County did not provide any funds but when Eagan was sentenced for arson, he received from Delaware

[ 293 Pa. Super. Page 366]

County a concurrent sentence with the federal sentence for the Atlantic City robbery.

The defendant argues his post trial motion for arrest of judgment by raising a number of issues, none of which have merit.

I. JURISDICTION

The defendant has raised the issue that the case should not have been tried in Delaware County because the solicitation took place in Philadelphia County and, therefore, Delaware County lacked jurisdiction.

We disagree with the defendant's position for a number of reasons. Our analysis of the crime of criminal solicitation indicates that criminal solicitation is an offer to enter into a conspiracy.*fn2 The crime itself is closely related to the crime of conspiracy. When the solicitation is accepted, as it was in this case according to the Commonwealth's testimony, then it becomes a continuing crime and as such, the prosecution may be brought in any county in which the criminal activity for which the solicitation was made took place. It is obvious that the authors of the Crimes Code considered criminal solicitation to be a continuing crime because 902(b)*fn3 provides a method of renunciation of the solicitation and permits a defendant who has solicited another person to commit a crime, to do various things, which in essence, amount to a renunciation. Such being the case, it is obvious that, like the crime of conspiracy, the crime of solicitation once it is consummated and becomes a conspiracy continues until the solicitation is either terminated by a renunciation or by other means, or the act itself is committed.

In section 903(a)(2)*fn4 criminal conspiracy includes an agreement to aid in an attempt or solicitation to commit a

[ 293 Pa. Super. Page 367]

    crime. The two sections are interrelated since the crimes ...


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