No. 2503 October Term, 1979, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. 78-09-1910/1913.
Gaele Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Robert E. Gabriel, Philadelphia, submitted a brief on behalf of appellee.
Price, Watkins and Montgomery, JJ.
[ 302 Pa. Super. Page 468]
The Commonwealth has appealed from the order of an en banc panel of the Court of Common Pleas of Philadelphia County granting appellee, Christina Lobel, a new trial based upon a claim of ineffectiveness of counsel. Following a non-jury trial, appellee was convicted of two counts of theft by deception*fn1 and two counts of criminal conspiracy*fn2 for her participation in a charitable fraud scheme with her co-defendant, Peter Candelori.
During the first phase of their joint trial, the Commonwealth established that Candelori and Lobel were the principal actors in a fraudulent fund raising scheme.
Peter Candelori, as a "Bishop" of the Holy Orthodox Christian Church, controlled a guild of street solicitors
[ 302 Pa. Super. Page 469]
known as the Salvation Mission Army Workers (R. 145a, 148a, 149a). When working directly for Mr. Candelori, the "volunteers" -- who were frequently handicapped (see R. 54a) -- were provided by Candelori with "identification certificates" and were permitted to retain 60% of their collections (R. 59a-60a; 73a-74a). The remaining funds which were collected were turned over to Candelori. However, the "church" for which the workers were ostensibly collecting (R. 58a), conducted no charitable activities; its various addresses included private homes, an answering service and a torn-down building (R. 175a, 172a-175a, 152a-154a).
The collection methods used by, and arrangements with, those volunteers who worked with defendant Lobel were somewhat different. These, also frequently handicapped, "volunteers" were taken by her to shopping centers where they collected money using cans labelled "Salvation Mission Workers" and "help the handicapped" (R. 54a, 66a, 110a, 113a, 219a). The solicitors were instructed by Lobel to say, if asked, that they were working for the Salvation Army (R. 67a, 114a, 219a), and were provided with certificates establishing that they were collecting for the Salvation Mission Army Workers, a tax-exempt organization (which it was not) (R. 103a-104a, 139a, 220a-222a). Half of the proceeds were kept by the volunteers; defendant [Lobel] retained the other half, but paid $3.00 per can per day to Candelori (R. 66a-67a, 71a-72a, 223a). Defendant herself also "collected" and stated, on occasion, when doing so, that she was collecting for the Salvation Army (R. 134a, 212a-215a).
Brief for Appellant at 5-6.
Following the introduction of this testimony, the assistant district attorney advised the trial judge that the remaining evidence related only to Candelori. Appellee's attorney thus asked the court to excuse him and his client from that portion of the trial. The request was granted and the Commonwealth proceeded with its case against Candelori ...