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COMMONWEALTH PENNSYLVANIA v. NICHOLAS KATSAFANAS (08/05/83)

filed: August 5, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
NICHOLAS KATSAFANAS, A/K/A NICK PERRY. COMMONWEALTH OF PENNSYLVANIA V. EDWARD PLEVEL



NO. 103 HARRISBURG, 1982, NO. 111 HARRISBURG, 1982, Appeal from the Judgment of Sentence of March 9, 1982, In the Court of Common Pleas of Dauphin County, Criminal Division at Nos. 96 (A), (B), (C), 97, (A), (B), (C), (D), 1981 and 2043 C.D. 1980, 100, (A), (B), C.D. 1981

COUNSEL

Thomas A. Livingston, Pittsburgh, for Katsafanas, appellant (at No. 103).

Thomas R. Ceraso, Greensburg, for Plevel, appellant (at No. 111).

James J. West, Assistant District Attorney, Harrisburg, and Henry G. Barr, Deputy District Attorney, for Commonwealth, appellee.

Cavanaugh, Beck and Montemuro, JJ.

Author: Beck

[ 318 Pa. Super. Page 149]

Appellants Nicholas Katsafanas, a/k/a Nick Perry, and Edward Plevel, convicted of conspiracy,*fn1 theft by deception,*fn2 criminal mischief,*fn3 rigging a publicly exhibited contest,*fn4 and perjury*fn5 in connection with the Pennsylvania State Lottery fraud of 1980 bring this appeal from the denial of their post-trial motions for a new trial and in arrest of judgment. They raise ten issues in this appeal, of which the first poses a question of first impression: in what county or counties is it proper to try offenses in which a computer was essential to the furtherance of the criminal acts? Perry and Plevel claim that they were erroneously brought to trial in Dauphin County (the locus of the computer) because none of the manipulation of the lottery equipment used to select the winning numbers took place in Dauphin County.

Perry and Plevel's scheme to enrich themselves by the means of the computer-run state lottery was this: They first decided that the winning number combination (always one with three numerals) for the draw of April 24, 1980 would consist of only the numerals four (4) and six (6). There are eight possible three digit number combinations using only 4 or 6. The conspirators or their agents purchased lottery tickets for all the possible number combinations from retail ticket vendors at various locations. The rigging, or "fix", took place in the studio of WTAE in

[ 318 Pa. Super. Page 150]

Pittsburgh, Allegheny County, by means of placing counterfeit balls in the machines used in the drawing. When the winning number combination, 666, was drawn, Plevel telephoned Michael Keyser, an administrative officer in the Lottery Bureau in Harrisburg, Dauphin County. Keyser programmed 666 into the computer, and the conspirators or their agents subsequently cashed in their winning tickets.

This appeal, challenging the venue of a trial for crimes which made use of a computer-based operation, requires an examination of ancient rules of law in light of today's technology. The common law adopted a territorial theory as the basis of jurisdiction over crimes. Jurisdiction is concerned with the authority or power of a court to entertain a case. A state has the power to make certain conduct criminal if that conduct, or its results, occurs within the state's territorial limits. The rules of venue determine the place of trial within a jurisdiction. Issues relating to venue address the criteria for holding a trial in a particular court among several which may be jurisdictionally correct. The law relating to venue limits the general territorial rule by the concept that each crime has its own situs or locus which determines the correct place within the jurisdiction for the trial to take place.*fn6

Two provisions of the United States Constitution govern the place of criminal trial. Article III section 2 requires that trials shall be held in the state where the crimes were committed, and the Sixth Amendment guarantees the accused "a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed."

The Pennsylvania Constitution, Article 1, section 9 provides:

Right of accused in criminal prosecutions

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the

[ 318 Pa. Super. Page 151]

    nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.

This section of the Constitution of the Commonwealth, like the Sixth Amendment, relates to vicinage rater than venue; i.e. it guarantees the right to be tried by jurors summoned from the county where the crime occurred. The historical importance of venue (the place of the trial) and vicinage (the geographic origin of the jurors) is traced to the original function of the medieval juries, both the grand jury of presentment and the trial, or petit jury.*fn7 Medieval jurors' primary responsibility was to provide information about the accused and the crime based on their own knowledge. They served the function which is today served by witnesses. It was therefore important that jurors be local, so that the facts of the case would be ascertainable by the court. Even after the role of the jury changed from its early purpose to its modern one, listening to evidence presented and reaching a conclusion based on that evidence, the local quality of criminal justice remained important as an element in assuring a fair trial.

Prior to the American Revolution, the colonists cherished the principles of venue and vicinage to guard against transportation of criminal defendants out of the area to England or to some distant place for trial. Provisions guaranteeing local trials eventually became part of the constitutional provisions of the various states.

While these older concerns are no longer in issue, we still recognize the importance of venue in criminal procedure.

[ 318 Pa. Super. Page 152]

The Third Circuit has recently reaffirmed its importance in United States v. Passodelis, 615 F.2d 975 (1980), which recognizes the public policy fostered by the rules of venue designed to protect the accused from being forced to stand trial far from home or far from the place where the crime was committed. Venue guarantees also safeguard criminal defendants from unfairness resulting from "forum shopping" by government prosecutors.

We turn now to the charges brought against Perry and Plevel, arising from transactions using computer terminals in various locations, resulting in criminal activity in several counties. When, as in the instant case, a presentment is returned by a multicounty investigating grand jury, the pertinent statutory authority is 42 Pa.C.S. ยง 4551(c)(d):

(c) Prosecution by Attorney General. -- Whenever multicounty investigating grand jury returns a presentment against any person the Attorney General or his designee shall, with respect to the alleged criminal activities, be authorized to prosecute the person on behalf of the Commonwealth by instituting criminal proceedings in the county of appropriate venue. The Attorney General or his designee shall take the oath of office required by law to be taken of district attorneys, and shall be clothed with all the powers and subject to all the liabilities imposed upon district attorneys by law.

(d) Venue. -- In any case where a multicounty investigating grand jury returns a presentment the supervising judge shall select the county for conducting the trial from among those counties having jurisdiction. (Emphasis added).

Perry and Plevel argue that the supervising judge's authority to select the county for trial in 4551(d) is limited to the counties of appropriate venue (c), and that Dauphin County is inappropriate because neither the crimes charged nor any of their essential acts were committed there. They claim that any connection between the crimes and Dauphin County was merely "incidental." We believe the connection between the criminal enterprise and Dauphin County was

[ 318 Pa. Super. Page 153]

    more than "incidental," and we agree with trial court which found appellant's argument without merit.

We reject Perry and Plevel's position that the Commonwealth has failed to establish that any act that was a basis of the crimes charged took place in Dauphin County. Appellants are in error in maintaining that the sole connection with Dauphin County was a telephone call to Michael Keyser, pertinent to the conspiracy charge. Keyser was the "Daily Numbers Officer" in the Lottery Bureau, who was in charge of the administrative functions of the lottery. He monitored the drawing from headquarters in Harrisburg, maintaining direct contact with stations broadcasting the drawing by means of a conference telephone call (R. 259).

At trial, the operation of the computer-based lottery was explained by Donald Frank, director for administration of the Bureau of State Lotteries. He described the operation of the "Daily Numbers Game." Essentially, an on-line system connected the approximately 1400 ticket vending terminals to a central computer located in Harrisburg. When a wager was placed, all the wagering information was punched into one of the retail vending terminals located throughout the Commonwealth. The dollar amount of the bet, the number being bet, and the drawing date were punched into a terminal. An electronic message was transmitted to Harrisburg where the information was processed and stored. A return message was transmitted to the retail terminal which caused the terminal printer to issue a lottery ticket. The computer assigned each transaction an individual and unique control number, carried by no other ticket. The Harrisburg computer also recorded the exact time that each transaction occurred. After a studio draw, the winning number was telephoned to ...


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