Com. v. DiEmidio

• Decision Date: 15 June 1962
• Citation: 182 A.2d 537,198 Pa.Super. 571
• Parties: COMMONWEALTH of Pennsylvania v. Andrew A. DiEMIDIO and Joseph E. Yobbagy. Appeal of Joseph E. YOBBAGY. Appeal of Andrew A. DiEMIDIO.
• Court: Pennsylvania Superior Court

Page 537

182 A.2d 537

198 Pa.Super. 571

COMMONWEALTH of Pennsylvania v. Andrew A. DiEMIDIO and Joseph E. Yobbagy Appeal of Joseph E. YOBBAGY Appeal of Andrew A. DiEMIDIO.

Superior Court of Pennsylvania.

June 15, 1962.

Rehearing Denied July 14, 1962.

Application for Allocatur Denied in No. 141 Aug. 6 and

Granted Sept. 24, 1962.

Application for Allocatur Denied in No. 143 Aug. 16 and

Sept. 24, 1962.

Margiotti & Casey, Vincent M. Casey, Pittsburgh, Richard S. Graff, Kittanning, Arnold M. Smorto, Smorto & Creany, Ebensburg, for appellant at No. 141.

Gleason & Krumenacker, Andrew J. Gleason, Johnstown, Richard S. Graff, Kittanning, for appellant at No. 143.

Harry A. Heilman, Jr., Dist. Atty., Kittanning, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

WOODSIDE, Judge.

This is an appeal from the judgments of sentence imposed upon two defendants after motions for arrest of judgments were refused by the court below.

Andrew A. DiEmidio and Joseph E. Yobbagy were each indicted for statutory extortion, common law extortion and conspiracy. A jury found DiEmidio guilty of common law extortion and conspiracy and he was sentenced to a fine and five months in jail. It found Yobbagy guilty of conspiracy only, and he was sentenced to a fine and three months in jail. Both defendants contend that they should be discharged because of an omission in the indictments and, in addition, Yobbagy contends that there was insufficient evidence to sustain his conviction.

Both defendants were employes of the Department of Health of the Commonwealth of Pennsylvania, and were assigned to the Mine Drainage Unit of the Sanitary Water Board. DiEmidio, who was a Mine Drainage Engineer I, had been with the department 12 years, and Yobbagy, who was a Water Pollution Investigator, had been with the department since 1958. One of the duties of the defendants was to investigate and examine strip mining operations to determine whether they were being conducted according to law.

On March 15, 1960, the defendants inspected the strip mining operation of the P. & L. Coal Company, a partnership of Peary Farester and Lucille E. Farester, his wife. It appeared to DiEmidio that the Faresters were stripping beyond the area for which they had secured a permit from the Sanitary Water Board. After DiEmidio and Yobbagy discussed the possible violation with Peary Farester at the scene of the mining operation, they went to the company's office to examine the permit and the blueprints and maps of the area. Because it was late in the afternoon when they arrived at the office, they agreed to meet there the following morning to discuss the matter further.

The next morning the defendants and the Faresters met at breakfast and then went to the company's office. Mr. Farester walked up the steps to the office with DiEmidio, and Mrs. Farester annd Yobbagy followed them. Mrs. Farester said to Yobbagy that she was worried because they would lose everything if they were forced to close their operation for two or three months. Yobbagy said he did not think she needed to worry, and then suggested that she walk down the hall with him.

Mrs. Farester testified as follows as to what then happened: 'The best of my recollection was that this thing could be taken care of. And at first, I had a hard time getting it through my head exactly what he meant, and finally I said to him, 'Do you mean that this would be a payoff.' And I don't recall his exact words, but * * * As near as I can recall, he said, yes, that Mr. DiEmidio could be talked to, that he was the eyes and the ears of the Sanitary Water Board, and only what he saw was reported to the Ebensburg office.' Mrs. Farester then called her husband aside and told him of this conversation.

The four of them, along with a stenographer and the company's manager, went into the company's office. For a time they examined the permit, a map and other documents together. Then Mr. Farester, the company's business manager, and DiEmidio went into a private office. There DiEmidio told Farester that if he made this 'pay-off' they would see to it that he was not bothered,--that they would take care of it, and the Faresters could hurry up and strip that coal out and back-fill and everything would be all right. Farester said that the company was not able to stand too much but maybe he could scrape up a couple hundred dollars a piece. A check was then made out for $400 and taken to the bank and cashed by a stenographer who gave the cash to DiEmidio. He put it into his pocket, joined Yobbagy in the other room and the two of them left the company's office together.

The Faresters continued to operate without interference, but several weeks later DiEmidio returned alone and collected another $300. DiEmidio subsequently signed a confession admitting the collection of $700. There is no evidence that Yobbagy received any of the money. ¹

A common law conspiracy is an agreement between two or more persons to do an unlawful act or a lawful act by the use of unlawful means. 7 P.L.E. Conspiracy § 21; Commonwealth v. Benz, 318 Pa. 465, 466, 467, 178 A. 390 (1935); Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489 (1958). Was there sufficient evidence presented to the jury in this case from which it could infer that there was an agreement between the defendants to commit an unlawful act?

Where the acts of the parties indicate that they were acting in concert to a common end, the jury may infer that the concerted action was the result of an unlawful agreement. Commonwealth v. Rosen, 141 Pa.Super. 272, 276, 14 A.2d 833, 835 (1940). 'An explicit or formal agreement to commit crime can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from circumstance that attend its activities'. Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75 (1937). The agreement need not be formal by express words, but may be inferred from concerted action. Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489 (1958).

There was ample evidence to support the jury's finding that there was an agreement between the defendants to do an unlawful act. Although they had been working together for only a week prior to the inspection of the P. & L. Coal Company's mining operation, they were together when they discovered what was believed to be a violation. It was Yobbagy who first approached one of the partners and suggested that a 'pay-off' to his fellow employe would prevent information concerning the possible violation from reaching higher authorities. Complying with his suggestion, one of the partners offered 'a couple hundred...