Com. v. Carey

Decision Date18 December 1981
Citation293 Pa.Super. 359,439 A.2d 151
PartiesCOMMONWEALTH of Pennsylvania, v. Joseph F. CAREY, Appellant.
CourtPennsylvania Superior Court

Robert F. Simone, Philadelphia, for appellant.

Michael Coll, Asst. Dist. Atty., Media, for Commonwealth, appellee.



Defendant, Joseph Carey, has been convicted of criminal solicitation. 1 The evidence offered by the Commonwealth would indicate that the defendant solicited James Parsells, Owen Gallagher and David Eagan to set fire to Ernesto's Little Italian Market in Clifton Heights, Delaware County, Pennsylvania.

During the trial, David Eagan testified that he attended meetings with James Parsells and Joseph Carey at which time the arson of Ernesto's Little Italian Market was discussed and the defendant eventually paid to Eagan, who subsequently split the money with Parsells and Gallagher, the sum of $5,000.00 to commit the arson of the business in Delaware County.

All of the conversations among the defendant, Parsells and Eagan took place in Philadelphia. The first two conversations were at a downtown restaurant and the final conversation at one of the Philadelphia hotels.

As a result of these conversations and the final payment of money to Parsells, Eagan and Gallagher, the three men went to the market in Clifton Heights and entered the premises with a key that had been provided to them for that purpose. The key was provided by defendant giving it to Parsells who, in turn, gave the key to Eagan. The three men took with them a quantity of gasoline, together with various incendiary devices to be used in setting a fire in the building occupied by the business. Among the incendiary devices were timers, the heating elements of toasters, various wiring and other paraphernalia.

While the three men were in the building, people in the vicinity reported the occurrence to the police who arrived at the scene very quickly and observed the three men in the building. The police then advised the three men in the building that the premises were surrounded and that the occupants should give themselves up. Prior to surrendering, Parsells, who was in charge of setting the incendiary devices, triggered one of the devices and an explosion occurred. The three men were taken into custody by the police and subsequently were convicted of the arson.

The occurrence of the arson was October 24, 1976 and on October 13, 1977, defendant was arrested and charged with a multitude of crimes, which included theft by deception, arson, criminal conspiracy, criminal solicitation, criminal attempt to commit arson, incendiary devices and recklessly endangering other persons.

At the time of the preliminary hearing, the magistrate dismissed the charges of theft by deception and arson but bound the defendant over on the other charges.

Defendant was brought to trial and at the time of the trial the court dismissed all the charges against the defendant except criminal solicitation which was submitted to the jury and resulted in a conviction.

The principal witness for the Commonwealth was David Eagan. At the time of his testimony, Eagan was in the Federal Witness Protection Program and was under the protection of the United States Marshall's office.

Prior to the arson, Eagan had been involved in a post office robbery in Atlantic City. As a result of the robbery and as a result of Eagan later being convicted of the arson involved in this case, Eagan agreed to cooperate with federal authorities and testify against Carey in this case. He was a paid witness who was given a monthly stipend by the federal government and was maintained by the government as a protected witness.

Delaware County did not provide any funds but when Eagan was sentenced for arson, he received from Delaware County a concurrent sentence with the federal sentence for the Atlantic City robbery.

The defendant argues his post trial motion for arrest of judgment by raising a number of issues, none of which have merit.


The defendant has raised the issue that the case should not have been tried in Delaware County because the solicitation took place in Philadelphia County and, therefore, Delaware County lacked jurisdiction.

We disagree with the defendant's position for a number of reasons. Our analysis of the crime of criminal solicitation indicates that criminal solicitation is an offer to enter into a conspiracy. 2 The crime itself is closely related to the crime of conspiracy. When the solicitation is accepted, as it was in this case according to the Commonwealth's testimony, then it becomes a continuing crime and as such, the prosecution may be brought in any county in which the criminal activity for which the solicitation was made took place. It is obvious that the authors of the Crimes Code considered criminal solicitation to be a continuing crime because 902(b) 3 provides a method of renunciation of the solicitation and permits a defendant who has solicited another person to commit a crime, to do various things, which in essence, amount to a renunciation. Such being the case, it is obvious that, like the crime of conspiracy, the crime of solicitation once it is consummated and becomes a conspiracy continues until the solicitation is either terminated by a renunciation or by other means, or the act itself is committed.

In section 903(a)(2) 4 criminal conspiracy includes an agreement to aid in an attempt or solicitation to commit a crime. The two sections are interrelated since the crimes are similar in nature.

In Commonwealth v. Rogers, 187 Pa.Super. 471, 144 A.2d 662 (1958) at page 483, 144 A.2d 662, the court states: "It is a well established theory of 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...." It's logical that even though the original solicitation may have taken place in Philadelphia County, the ultimate act was to be performed in Delaware County and that county should have jurisdiction to try the defendant. It also follows as a matter of simple logic that where the defendant is charged with a substantial number of crimes, all of which would be triable in Delaware County, that this offense of solicitation, which is a part of the overall criminal plan, should also be tried in Delaware County. Otherwise, it would involve a second trial and would merely prolong the outcome of the charges against the defendant. Trying the defendant in Delaware County in no way prejudiced his case.

From all this, we conclude that the Court of Common Pleas of Delaware County had jurisdiction or venue to try this case and there was no requirement for this case to be severed from the other cases and tried separately.


The defendant further argues that there is insufficient evidence to sustain the conviction of criminal solicitation. This argument has no merit since a review of the testimony of David Eagan indicates that his testimony alone is sufficient to support the verdict in this case.

Next, the defendant raises issues in his post trial motion for a new trial.


The defendant contends that improper and prejudicial evidence admitted by the Court entitles him to a new trial.

During the course of the testimony by the witness Eagan, he indicated that Parsells told him the defendant had stated to him that he, the defendant, had a few "torch jobs" for Parsells to perform. Included in the jobs was the matter that led to the trial of this case. This testimony was prejudicial to the defendant in that it indicated other criminal activity in which the defendant was engaged. However, the record indicates that counsel, for the defendant, after this testimony had been offered, stated to the court: "I move for a mistrial or this witness to be admonished for the third time. He has been in court enough times to know what he is supposed to say." In response to that, the court admonished the witness advising him to confine himself to the issue in this case. With that, the case continued. When the attorney for the defendant requests the court to either declare a mistrial or admonish the witness and the court admonishes the witness, we fail to believe that defense counsel can now complain that the court did not comply with his request.

A second incident occurred, again during the testimony of Eagan, to the effect that Eagan in cooperation with federal authorities, tried to set up the defendant by making telephone calls to him in May 1977 which was prior to the defendant's arrest. These calls indicated to the defendant that Eagan believed Parcells was going to make a statement to Delaware County authorities and that Al and Cliff Williams were going to testify before the Grand Jury in New Jersey. The entire line of testimony was not clearly developed on the record and it is difficult for this court to understand what the purpose of the inquiry was. However, the court ultimately sustained defendant's objection and ordered the jury to disregard the line of questioning. The questioning did not indicate any admission by the defendant that he was involved in the arson or its solicitation so we do not believe the defendant was prejudiced to the extent that a new trial should be granted.

The fact the testimony showed that Al and Cliff Williams, two convicted criminals, were friends of the defendant might be considered inflammatory and prejudicial were it not for the fact that the defendant by his cross-examination of Eagan endeavored to show that the defendant Carey was a part of a fund raising scheme to help raise money for Al and Cliff Williams in order to relieve their financial problems. This testimony indicated the relationship between the defendant and Al and Cliff Williams.


The defendant also contends that during the...

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    • December 30, 1994 one who "knowingly and voluntarily cooperates with or aids another in the commission of a crime." Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1968). To be an ac......
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