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COMMONWEALTH PENNSYLVANIA v. VICTOR M. SNYDER (05/04/84)

submitted: May 4, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
VICTOR M. SNYDER, STEVEN CLAMPERS, MICHAEL MARINO, VIC SNYDER, INC.



No. 01557 Philadelphia 1983, No. 01563 Philadelphia 1983, No. 01564 Philadelphia 1983, No. 01565 Philadelphia 1983, APPEAL FROM THE ORDERS MAY 19, 1983 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CRIMINAL NOS. 680, 677, 678, and 681 OF 1983

COUNSEL

Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellant.

Joseph M. Fioravanti, Media, for Snyder, etc., appellees.

Frank J. Marcone, Media, for Clampers, appellee.

Cirillo, Del Sole and Popovich, JJ.

Author: Per Curiam

[ 335 Pa. Super. Page 22]

A grand jury investigation into the business practices of the plumbing concern Vic Snyder, Incorporated, led to the filing of criminal charges against the corporation and several of its employees. The defendants were charged with theft by deception, deceptive business practices, and conspiracy.

After preliminary hearings, appellee Vic Snyder, Inc. was held for trial on four counts of each offense under the corporate liability provisions of the Crimes Code, 18 Pa.C.S. § 307(a); appellee Vic Snyder, owner and president of the corporation, was held on two counts of each offense; appellee Michael Marino on one count of each; and appellee Steven Clampers one count of each.

Appellees petitioned for writs of habeas corpus in the Court of Common Pleas of Delaware County. After reviewing the preliminary hearing records, the court granted the requested relief as to all counts against the corporation, Snyder, and Marino, and as to the conspiracy count against Clampers. The Commonwealth appeals the grants of habeas corpus relief, having admitted it would have no additional evidence to present against the defendants were rehearings to be granted.

[ 335 Pa. Super. Page 23]

The question for determination by this Court, following a review of the record from the court below, is to determine whether the evidence received at the preliminary hearing presented sufficient probable cause to believe that the appellees committed the offenses for which they are charged. The quantity and quality of evidence presented there "should be such that if presented at trial in court, and accepted as true, the judge wold be warranted in allowing the case to go to the jury." Commonwealth ex rel. Scolio v. Hess, 149 Pa. Super. 371, 27 A.2d 705 (1942). The Commonwealth's burden at a preliminary hearing is to establish at least prima facie that a crime has been committed and that the accused is the one who committed it. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). This means that at a preliminary hearing, the Commonwealth must show the presence of every element necessary to constitute each offense charged and the defendant's complicity in each offense. Proof beyond a reasonable doubt is not required, nor is the criterion to show that proof beyond a reasonable doubt is possible if the matter is returned for trial. However, proof, which would justify a trial judge submitting the case to the jury at the trial of the case, is required. Inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, Commonwealth v. Rodgers, 235 Pa. Super. 106, 340 A.2d 550 (1975), and the evidence must be read in the light most favorable to the Commonwealth's case. Commonwealth v. Zeringo, 214 Pa. Super. 300, 257 A.2d 692 (1969). Prosecutorial suspicion and conjecture are not evidence and are unacceptable as evidence.

Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the appellees are charged, then a

[ 335 Pa. Super. Page 24]

    prima facie case was made out as to such offense or offenses. If the facts do not fit the statutory definitions of the offenses charged against the appellees, then the appellees are entitled to be discharged.

Commonwealth v. Lynch, 270 Pa. Super. 554, 581-82, 411 A.2d 1224, 1238-39 (1979), modified in Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983). Accord, Commonwealth v. Gray, 322 Pa. Super. 37, 469 A.2d 169 (1983); Commonwealth v. Rick, 244 Pa. Super. 33, 366 A.2d 302 (1976). See also Commonwealth v. Davis, 308 Pa. Super. 204, 454 A.2d 92 (1982) (allocatur refused, Feb. 28, 1983).

We turn to an examination of the evidence in this case, which revolves around four separate business transactions between Vic Snyder, Inc. and members of the general public.

I. Randolph Transaction

In December of 1979, Alphonso Randolph of Parkside, Pa. called Vic Snyder, Inc. to repair a leak in his ceiling. The corporation dispatched salesman Alfred Rossino to the Randolph home. Although Rossino had no plumbing expertise, he represented himself to Randolph as a "master plumber," and told Randolph that, among other things, his "curb trap" needed to be replaced. Randolph entered into a contract under which the work would be done for $1850, to be paid in installments.

The next day, John Sciblo, a subcontractor, and several other workmen began work on the Randolph job. When Sciblo exposed the old curb trap he could see water flowing through it, which indicated that it was functioning properly. He telephoned Vic Snyder, Inc., and informed them that the curb trap was working, but was told by an unidentified person to replace the curb trap anyway.

That evening Rossino returned to have Mr. Randolph complete bank forms in connection with the financing arrangement. Randolph stated that he was dissatisfied because there was still a leak in his ceiling and the price was too high. Randolph indicated that he might not sign the

[ 335 Pa. Super. Page 25]

    financing papers. Rossino then told Randolph that the work was not completed and asked what Randolph thought would be a fair price. Randolph responded with the figure of $1000. Rossino, after a telephone call to his "boss," redrafted the contract with a renegotiated price of $1200. The following day workmen from Vic Snyder, Inc. returned to the site and finally remedied the leak.

Subsequently, Detective William Hannum spoke with Rossino about the Randolph job. Rossino recalled the job as the one where he had sold a curb trap the customer didn't need. Rossino also told Hannum that he had picked the contract price "out of the air."

Based on this evidence, the district judge bound the corporate defendant and Vic Snyder individually over for trial. Rossino also was held for trial, but was later discharged based on the running of the statute of limitations. He is not a party to this appeal.

The Commonwealth's theory of the case is that Rossino's actions violated sections 3922 and 4107 of the Crimes Code, relating to theft by deception and deceptive business practices; that Vic Snyder can be held as an accomplice and conspirator to Rossino's actions; and that the corporation can be held vicariously liable for the actions of Snyder as a high managerial agent of the corporation. See 18 Pa.C.S. § 307(a)(3), (f).

We will accept for the moment that the Commonwealth proved that Rossino, fobbing himself off as a "master plumber," intentionally deceived Randolph into buying an unneeded curb trap and memorialized the sale in a false or misleading written contract, and that this conduct constituted theft by deception and deceptive business practices under the Crimes Code. The Commonwealth's case against Snyder and the corporation, however, necessarily depends upon proof that Snyder was an accomplice or a conspirator to the actions of Rossino alleged to be illegal.

The Crimes Code defines an accomplice as follows:

[ 335 Pa. Super. Page 26]

A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission ...


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