Commonwealth v. PETROSKY

166 A.2d 682, 194 Pa. Super. 94, 1960 Pa. Super. LEXIS 549
CourtSuperior Court of Pennsylvania
DecidedDecember 14, 1960
DocketAppeals, 46 to 51
StatusPublished
Cited by18 cases

This text of 166 A.2d 682 (Commonwealth v. PETROSKY) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. PETROSKY, 166 A.2d 682, 194 Pa. Super. 94, 1960 Pa. Super. LEXIS 549 (Pa. Ct. App. 1960).

Opinions

Opinion by

Rhodes, P. J.,

The defendants, Roland J. Sell, Charles E. Pait, and Prank J. Petrosky, were indicted in Dauphin [99]*99County for cheating by fraudulent pretenses1 the Commonwealth of Pennsylvania, Department of Highways, of the sum of $4,757.29 in connection with the sale of cinders for use in Westmoreland County, and with conspiracy to defraud.2 The Commonwealth contended that Petrosky obtained this sum of money in payment for 3034.21 tons of cinders which he did not deliver, and that Sell and Fait, who were assistant superintendents in Westmoreland County for the Department of Highways, aided and abetted him. The three defendants were convicted by a jury on both indictments. Each defendant filed a motion in arrest of judgment and for a new trial.

These motions raised the questions (1) whether the Dauphin County Court had jurisdiction to try these cases; (2) whether the evidence was sufficient to sustain the verdicts; and (3) whether, due to alleged trial errors, a new trial should be granted.

From the judgments of sentence, defendants have appealed.

A contract, or purchase order, dated January 17, 1956, was awarded by the Commonwealth to David E. Ankney. The contract called for the delivery by Ankney to the Commonwealth for the Department of Highways of 5,000 tons of cinders at $1.46 per ton and 3,000 tons of cinders at $1.52 per ton, or a total price of $11,869. Ankney never received any request for delivery of cinders under this contract. Approximately one year after the award of the contract, Petrosky approached Ankney and offered to fill the contract and take it over. Ankney agreed to turn the purchase order over to Petrosky, and in return Petrosky agreed [100]*100to pay Ankney $800 from the contract payments. Ankney turned the purchase order over to Petrosky although no formal assignment of the contract was made. Petrosky requested billheads from Ankney because the cinders had to be billed in Ankney’s name. Petrosky then filled out the billheads and submitted them. Ankney received a check of the Commonwealth issued by the State Treasurer in the amount of $12,394.58. Ankney cashed the check and drew a check payable to Petrosky in the amount of $11,594.58, which was the balance after $800 was deducted.

Defendants Sell and Fait were each in charge of a certain designated area. When cinders were delivered to a stockpile in a given locality, a state employe would sign the delivery slips or tickets which accompanied a truck driver for each load, one copy being retained by the driver, the other retained for state records. These accumulated delivery slips were used by caretakers and assistant superintendents as a basis for compiling and executing a material delivery record known as Form 2140. Sell and Fait, as assistant superintendents, signed these forms, together with their respective caretakers, and forwarded them with the supporting delivery tickets, to the Department of Highways at Greensburg, Westmoreland County. The Greensburg office checked and compared these forms with the purchasing order and then prepared state invoices known as Form 222, which were sent to Harrisburg for audit and payment. Payment was made as previously indicated. The fraud was discovered and these prosecutions were instituted in Dauphin County.

Jurisdiction and venue were in Dauphin County.3

The crime of cheating by fraudulent pretenses is not completed until property is obtained by the de[101]*101fendant, but it is not essential for purposes of jurisdiction that the prosecution be brought only in the county in which the defendant in person actually obtains possession of the object. Jurisdiction has been held to rest where the circumstances show that, for all practical purposes, the object has been placed within the control of the defendant. Com. v. Prep, 186 Pa. Superior Ct. 442, 447, 448, 142 A. 2d 460.

Defendants argue that the Court of Quarter Sessions of Dauphin County has no jurisdiction of the crime of cheating by fraudulent pretenses or of the conspiracy indictments because the check of the State Treasurer was made payable to Ankney and mailed to him at Ligonier, Westmoreland County, where it was deposited by Ankney, and a new.check written to the order of Petrosky. They further argue that the' transaction was not complete until Petrosky received the check from Ankney. For these reasons, defendants seek to distinguish this case from the Prep case.4

We fail to see a substantial distinction on the question of jurisdiction (venue) between the Prep case and the one at bar. We agree with Judge Kreider of the court below when he said in his opinion: “By persuading Ankney to ‘assign’ the contract, by the utilization of Ankney’s billheads and by making the agreement whereby Ankney would pass on to Petrosky the Commonwealth’s remittance, less the sum of $800.00, Petrosky in effect constituted Ankney as his .agent in the fraudulent scheme. It is true that in this case the postmaster at Harrisburg upon receipt of the Commonwealth’s cheek addressed to Ankney, became the [102]*102latter’s agent. However, because of the prior manipulated agency status that Petrosky had thrust on Ankney, the Harrisburg postmaster in mailing the 'State Treasurer’s check also became the agent of the defendant Petrosky and the codefendants Sell and Fait. The chain of control was longer and perhaps more devious in the instant case than it was in the Prep case, but when traced from the beginning to the end it discloses an unbroken trail from the Treasury of the Commonwealth to the defendant Petrosky. The crime was complete and the object of the false pretense was 'obtained’5 in Dauphin County when the check of the State Treasurer was placed in the hands of the innocent postmaster at Harrisburg. The accomplishment of this act, together with that of sending to Harrisburg the false material delivery records signed by Sell and Fait, constituted overt acts in Dauphin County by the defendants in furtherance of the conspiracy.”

It is also well settled that prosecution for a criminal conspiracy may be brought in the county where the unlawful combination or confederacy was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of that unlawful combination or confederacy. Com. v. Prep, supra, 186 Pa. Superior Ct. 442, 450, 142 A. 2d 460; Com. v. Mezick, 147 Pa. Superior Ct. 410; 413, 24 A. 2d 762. We said in the Prep case (page 451 of 186 Pa. Superior Ct., page 465 of 142 A. 2d) : “It is a well established theory of the law that, where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual; . . .” See, also, Com. v. Rogers, 187 Pa. Superior Ct. 471, 483, 144 A. 2d 662.

In the instant case, Petrosky with the aid of Sell and Fait put in force an agency for the commission [103]*103of the crime, and they, in legal contemplation, accompanied the same to the point where it became effective, that is, in Dauphin County where the check was mailed to the agent Ankney by whom the fruits of the conspiracy were delivered to Petrosky.

Defendants’ objection to jurisdiction (venue) were properly dismissed.

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Commonwealth v. PETROSKY
166 A.2d 682 (Superior Court of Pennsylvania, 1960)

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Bluebook (online)
166 A.2d 682, 194 Pa. Super. 94, 1960 Pa. Super. LEXIS 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-petrosky-pasuperct-1960.