Com. v. Horvath

• Decision Date: 11 September 1958
• Citation: 187 Pa.Super. 206,144 A.2d 489
• Parties: COMMONWEALTH of Pennsylvania v. Rudy HORVATH, Appellant.
• Court: Pennsylvania Superior Court

Page 489

144 A.2d 489

187 Pa.Super. 206

COMMONWEALTH of Pennsylvania v. Rudy HORVATH, Appellant.

Superior Court of Pennsylvania.

Sept. 11, 1958.

Application for Allocatur Denied Nov. 26, 1958.

Justin D. Jirolanio, Bethlehem, for appellant.

Andrew L. Herster, Jr., Asst. Dist. Atty., Edward G. Ruyak, Dist. Atty., Easton, for appellee.

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

ERVIN, Judge.

Defendant, Rudy Horvath, has appealed from sentences on two conspiracy indictments, after the dismissal of his motions in arrest of judgment and for a new trial.

The evidence, considered in the light most favorable to the Commonwealth, Com. v. Mitchell, 181 Pa.Super. 225, 227, 124 A.2d 407, may be summarized as follows:

1955 Pontiac Station Wagon

Olive Karabin, girl friend of the defendant, owned a 1955 Pontiac station wagon. In May 1956, while the partnership of Stevens and Hill and still in existence, Harvey Murray became interested in purchasing this station wagon, which had been placed on the used car lot of Stevens and Hill for sale by the defendant with the knowledge and consent of Karabin. Hill and Murray finally agreed upon a purchase price and possession of the automobile was delivered to Murray. Murray made arrangements at the Union Bank and Trust Co. for a loan to finance the purchase. The bank gave three checks to Murray, one to cover insurance, one to General Acceptance Corporation covering the balance still owing on an encumbrance which Murray had on his Ford, which he was trading in, and a third check to cover the purchase of the Pontiac, made payable to S & H Motor Company. The latter check was accompanied by a memorandum of encumbrance which the bank desired noted on the assigned certificate of title. Murray delivered the check payable to S & H Motor Company and also delivered to them a certificate of title for the trade-in Ford, which he had assigned in blank. Hill testified that he sold Murray's 1954 Ford for $1,500 and used this money in the business, as he was instructed to do by the defendant. Hill also admitted receiving the check from the Union Bank and Trust Co. on May 24, 1956, which he cashed. He said that he offered the cash to the defendant, who told him to use it instead to buy out his partner, John Stevens. Petty, the bank officer, testified that around October 17 or 24 he attempted to phone Miss Karabin. Within five minutes defendant telephoned Petty and said he was under the impression that Petty was trying to get in touch with Miss Karabin. Defendant then told Petty, 'Well, you stay the hell away from her. That's my car, and if you have anything to do with it, you see Attorney Rybak.' Hill testified that he formed an actual partnership with the defendant around June 5, 1956. Officer Good testified that on September 4, 1956 he had a conversation with the defendant and that he admitted that he was a silent partner with Hill in the Auto Spot business. On or about October 12, 1956, the Pontiac was taken from Murray by Constable Lipko after Murray had been threatened and coerced by arrest for surety of the peace ¹ allegedly committed against Lipko and defendant, who posed as Lipko's brother. Murray never did get title to the Pontiac station wagon nor did the bank get an encumbrance noted on the title certificate for its loan. Karabin never did assign the title to Murray, presumably because she was never paid for the station wagon, the money having been used for the benefit of Hill and the defendant. Murray lost his Ford which had been traded in on the deal.

1956 Chevrolet

Hill testified that on the day the 1956 Chevrolet was purchased from Town Auto he and the defendant were out looking for a car to buy and as part payment were willing to trade a 1950 Buick which they had at the Auto Spot lot. They looked at the 1956 Chevrolet and the defendant told Hill that maybe Miss Karabin would like to buy it, that if she didn't take the car it could go to the Auto Spot to be sold. The car was immediately taken to the car lot for sale. Hill testified that Miss Karabin told the defendant and him that she didn't like the 1956 Chevrolet. Ronald Hottle testified that he first met defendant at the Auto Spot sales lot on September 1, 1956, advising Horvath that he was interested in the purchase of the 1956 Chevrolet which had been placed on the lot for sale. Defendant said the car was for sale and that he bought it for his girl friend Karabin and that she did not want the car. Horvath told Hill that the should appraise Hottle's 1951 Chevrolet while Horvath took Hottle for a demonstration ride. A few days later Hottle agreed, in the presence of the defendant, to purchase the 1956 Chevrolet for $2,000 cash plus the trade-in value of Hottle's 1951 Chevrolet of $1,295. Horvath fixed the terms of the purchase and gave Hottle the keys to the 1956 Chevrolet and told Hottle that he would receive a new car warranty and a free 1,000-mile check up. Hottle signed the title certificate in blank and gave Hill a $10 deposit in the presence of the defendant. Hill and Hottle went to the First National Bank and Trust Co. of Bethlehem and Hill told the bank officer that the car was free from encumbrances, whereupon the bank gave an $1,800 check to Hottle, who endorsed it to Hill. Officer Good testified that the 1956 Chevrolet had been entitled to Miss Karabin on June 29, 1956 with an encumbrance noted of $2,831.04 in favor of General Acceptance Corporation. When the check for $1,800 was delivered by the bank, Hill said that he would see that the bank received the title to the car. Hill further testified that Hottle's two deposits were used in the business of the Auto Spot and that from the $1,800 received from the bank and Hottle, he paid $1,050 on the 1956 Chevrolet encumbrance, gave defendant $100 and used the balance to clear title on a 1955 Plymouth (another car owned by the partnership but not involved in this transaction). The 1956 Chevrolet was later repossessed from Hottle by General Acceptance Corporation. Hottle never did get title to the 1956 Chevrolet not did the bank get an encumbrance noted on the title certificate for its loan. Karabin never did assign the title to Hottle, presumably because she was never paid for the 1956 Chevrolet, the money having been used for the benefit of Hill and the defendant. Hottle lost his 1951 Chevrolet, which had been traded in on the deal and the $200.00 cash payment.

Both automobiles, the 1955 Pontiac and the 1956 Chevrolet, continued to be owned by Miss Karabin at the time of trial

Hill plead guilty and testified at the trial as a witness for the Commonwealth. The court sustained a demurrer as to Miss Karabin at the conclusion of the Commonwealth's case.

The first contention of the appellant is that the evidence was not sufficient to justify a conviction. The elements of conspiracy to do an unlawful act are a combination of two or more persons, with criminal intent or corrupt motive, to do a criminal or unlawful act, or an act not in itself unlawful, by criminal or unlawful means: Com. v. Gaines, 167 Pa.Super. 485, 75 A.2d 617. The offense of conspiracy is complete the moment the parties agree to do an unlawful thing: Com. v. Ricci, 177 Pa.Super 556, 112 A.2d 656. No explicit, formal agreement need be...