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December 29, 1981


No. 256 March Term, 1979, Appeal from Judgment of Sentence dated November 15, 1979, Court of Common Pleas, Criminal Division, Dauphin County at No. 1037 of 1975.

Before Price, Johnson and Shertz, JJ. Price, J. did not participate in the consideration or disposition of this case.

Per Curiam:

The Judgment of Sentence dated November 15, 1979 is affirmed on the comprehensive opinion of Judge Lipsitt.

PRICE, J. did not participate in the consideration or disposition of this case.

Before the Court is a motion for a new trial and/or in arrest of judgment following a conviction on an offense prohibited by the Crimes Code of this Commonwealth.

The defendant, Eugene E. Zeek, had been indicted by a federal grand jury in 1975 and charged with a fraudulent scheme to obtain money by false pretenses. The charges specified in the indictment focus on a scheme whereby the defendant cashed twenty-six worthless checks at the Liberty Bell Race Track in Philadelphia. The checks which according to the indictment were cashed between December 10, 1973 and December 28, 1973 were written by the defendant on his account at the Bank of West Jersey, Riverside, New Jersey and totaled approximately $616,200. Federal jurisdiction was based on the defendant's use of interstate telephone calls to effectuate his scheme, a violation of 18 U.S.C.A. § 1343.

In 1975, the defendant was indicted by a Dauphin County grand jury for similar conduct which occurred at the Penn National Race Track in Dauphin County. The county indictment enumerated twenty-nine worthless checks totaling some $400,000, which were cashed by the defendant between December 14, 1973 and December 30, 1973 at the Penn National Race Course. Although the Bank of West Jersey was the drawee for all twenty-nine of these checks as it was for the twenty-six bad checks cashed at the Liberty Bell Race Track, the sequence of transactions at Penn National was not specifically mentioned in the federal indictment.

On September 19, 1979, the defendant pleaded guilty as a result of a plea bargain to the charges set forth in the federal indictment and was accordingly sentenced to undergo imprisonment for a period of four years. The maximum penalty authorized by law for the offense charged was a fine of $1,000 or imprisonment for five years or both, 18 U.S.C.A. § 1343.

The defendant's motion to quash the Dauphin County indictment was denied, and the defendant was tried before this Court, after having waived his right to a jury trial. He was adjudged guilty and was sentenced on November 15, 1979. The defendant has now filed a motion for a new trial and/or in arrest of judgment. There is no merit to the request for a new trial as the defendant readily acknowledged his complicity in the criminal act. The motion to quash and the motion in arrest of judgment posed the same issue, defendant claims he is, in effect, being punished in state court for substantially the same offense for which he was previously punished in federal Court. This, he argues, is in contravention of statutory and decisional law. The motion to quash was argued before the Court at length and as noted was denied. A repetition of the identical argument on the post trial motion was not deemed necessary. The contentions advanced by the defendant are set forth fully in the following discussion.

The Crimes Code provides:

"When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:

(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is based on the same conduct unless:

(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil...." 18 C.P.S.A. § 111

The leading case interpreting the "interest analysis" suggested by this Section of the Code is Commonwealth v. Grazier, 481 Pa. 622 (1978). Although the Court in Grazier did not address itself to the statutory language since the crime there at issue was committed prior to the effective date of the Crimes Code, it did interpret the Code's precursor regarding this point, the case of Commonwealth v. Mills, 447 Pa. 163 (1971).

In Mills, the Court had stated:

"The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial. The judiciary views these rules as expressions of self-evident moral precepts: It is wrong to retry a man for a crime of which he previously has been found innocent, wrong to harass him with vexatious prosecution, and wrong to punish him twice for the same offense...." 447 Pa. at 169.

In Grazier, the Court interpreted the Mills analysis to bar successive trials for different offenses "if the interests of the Commonwealth are sufficiently protected at the federal trial," 481 Pa. at 631. More recently, in the case of Commonwealth v. Mascaro, Pa. Super., 394 A.2d 998 (1978), the Superior Court, in applying Mills, Section 111 of the Crimes Code and Grazier held that state prosecution was barred when that prosecution arose out of a "common and continuing scheme" already dealt with in federal court, 394 A.2d 1001. The Court in Mascaro required a showing both that the state interests were not adequately protected by the federal prosecution and that the evidence upon which the federal conviction was based was substantially different than that which would have been required to convict in state court, Id. at 1002.

In the instant case, it is clear there is neither the sort of mutuality of federal and state interest nor the kind of factual overlap such as would bar prosecution in state court. It is true both the federal and state prosecutions concerned the fradulent passing of worthless checks by the defendant. The factual circumstances of the two incidents are, however, distinct, and for this reason it is unlike the cases cited above. In Grazier, for example, the defendants were involved in a scheme to set fire to a hotel and then fradulently to collect the insurance proceeds payable because of the fire. The defendants were indicted in federal court on charges of mail fraud and in state court on charges of arson. The two charges clearly arose out of the same incident and were based on the same facts. Similarly, in Mascaro, the defendant was indicted in both state and federal court on charges arising out of the same transaction. The scheme involved the overpaying to a corporation controlled by the defendant by the County of Delaware pursuant to a service contract. The contract and the fraud revolving around it were common to both indictments.

Thus, in Grazier and Mascaro, the federal and state indictments, though conceived with somewhat different charges, were based on the same fact situation. In the case at bar, it would be easy to confuse factual similarity with factual identity, but such confusion would lead to an erroneous result. The defendant, Eugene E. Zeek, here committed two unique distinguishable fradulent transactions. The federal indictment was not broad enough to encompass all of the defendant's illegal activity. That indictment charges him only with fraudulent transactions conducted at the Liberty Bell Race Track in Philadelphia. To these charges the defendant pleaded guilty and for these offenses he was punished. He cannot now, however, avoid punishment for a wholly separate, although similar, offense by claiming the federal judgment and sentence dispose of matters not contemplated by the federal indictment.

Accordingly, we enter the following


AND NOW, December 3, 1979, the defendant's motion for a new trial and/or in arrest of judgment is denied.

William W. Lipsitt, Judge


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