Com. v. Marino

• Decision Date: 13 September 1968
• Citation: 245 A.2d 868,213 Pa.Super. 88
• Parties: COMMONWEALTH of Pennsylvania v. Francis MARINO, Arthur Ashkenase and Salvatore Rispo, Jr.
• Court: Pennsylvania Superior Court

Page 868

245 A.2d 868

213 Pa.Super. 88

COMMONWEALTH of Pennsylvania v. Francis MARINO, Arthur Ashkenase and Salvatore Rispo, Jr.

Superior Court of Pennsylvania.

Sept. 13, 1968.

Application for Allocatur Granted in Part Nov. 15, 1968.

John H. Lewis, Jr., B. Nathaniel Richter, Philadelphia, for appellants

Alan J. Davis, Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and HANNUM, JJ.

MONTGOMERY, Judge.

These several appeals are from judgments of sentence following the convictions The facts on which the convictions were based follow. Between July, 1965 and November, 1966, defendant Ashkenase loaned to Morris B. Singer, who operated a haberdashery store in Bucks County, Pennsylvania, various sums of money totaling $4,150. By November 1966 Singer had repaid $1,650 leaving a balance of $2,500 plus interest. Nevertheless, in November, 1966 Ashkenase demanded $8,800 claiming that was the amount still owing to him.

of the appellants, Francis Marino, Salvatore Rispo, Jr., and Arthur Ashkenase, on charges of blackmail, extortion and conspiracy, in a trial before Honorable Edmund B. Spaeth, Jr., Judge, sitting without a jury.

What transpired thereafter is stated in the opinion of the lower court, i.e.:

'On Tuesday, November 8, 1966, defendants Ashkenase and Rispo went to Singer's place of business in Fairless Hills, Bucks County, Pennsylvania. Singer testified that he was informed by Rispo that 'Ashkenase was paid off', and that he now owed Rispo 'and his people the sum of $10,000.' Rispo threatened to kill Singer and Singer's wife if the 'debt' were not paid immediately.

'Rispo told Singer to dial a Philadelphia telephone number, saying that 'a girl will probably answer 'The Teamsters", and telling him to 'ask for the 'Big Man". Singer dialed the number but was too frightened to talk, and so gave the telephone to Rispo. After Rispo had said a few words he returned the telephone to Singer. The man from the Teamsters told Singer that Ashkenase had been paid and that Singer had better come up with $10,000.00, and he asked how much money Singer had on him. After the telephone conversation, Rispo took from Singer $250.00 in cash, a diamond ring, and a watch. He again threatened Singer and told him that they would call him that evening to set up a meeting. When Singer said that he had recently had his telephone number changed, Rispo replied 'Don't worry. We know everything. We'll know your number.' Before leaving, Rispo again warned Singer: 'Don't f_ _ with us because we're big people and there is nobody bigger than us. You heard about what happened over at 107.'

'That evening the 'Big Man' telephoned Singer at his home, informing him that he had better have $4,500.00 by Friday morning. (As will appear, the 'Big Man' was defendant Marino.) After this call, Singer went to the Philadelphia District Attorney's Office, where he told Sgt. McLellan the whole story.

'Nothing happened on Wednesday, November 9. On Thursday, November 10, Singer received another telephone call at his home from the 'boss'. Detective Kelly and Mrs. Singer were present. Singer repeated the conversation to the detective. Approximately 15 minutes later, Rispo telephoned and again threatened Singer. Finally, about 15 minutes after Rispo's call, the 'Big Man' telephoned again. He told Singer that they were going to have a meeting the next morning and that Singer would receive directions by telephone at exactly 8:00 A.M.

'At 8:00 A.M. on Friday, November 11, Singer was telephoned and was told by the 'Big Man' to go to Lerner's Restaurant where, he was told, he would see someone he knew.

'Sgt. McLellan and three detectives were present in Singer's apartment when this call was received, and they accompanied Singer to the restaurant. They instructed Singer to signal them by pulling his handkerchief from his pocket if at any time he felt that he was in danger.

'Detective McLaughlin and Detective Lynch entered the restaurant before Singer. Detective Lynch saw defendant Rispo seated alone in the rear of the room. Moments later he saw defendant Marino go over to Rispo's table, engage in a few words of conversation, and then go to the counter and order breakfast. Detective Lynch knew Marino was from Teamsters Local 107 'Sgt. McLellan placed Rispo under arrest. At this time Detective Lynch informed Sgt. McLellan that Bobby Marino from the Teamsters was with Rispo. Sgt. McLellan testified that he had noticed Marino because of his size--a 'great big man'--and that it was common knowledge in the Police Department Labor Union and Labor Squad that Marino was known as 'Big Bobby'.

'When Singer arrived at the restaurant, he proceeded to the table where Rispo ('the man he would know') was and sat down across from him. At approximately the same moment, Marino walked to within three feet of Rispo's table, as if to join them, but stopped, turned quickly, and sat down at the adjacent table, directly next to Singer. The officers observed Rispo motion to Singer, and heard him tell Singer to 'move the f_ _ over here (next to Rispo) or I'll * * *' Sweating profusely, Singer pulled his handkerchief from his pocket and the officers moved in.

'Aware of the foregoing facts, and '* * * knowing that there had been more than one man involved in this thing', Sgt. McLellan placed Marino under arrest.

'Marino was taken to Room 708A in City Hall, where preliminary arrest reports were made out. Detective Lynch warned Marino of his right to remain silent and asked him no questions beyond those necessary to make out the routine arrest reports. No attempt was made to interrogate him.

'Within Room 708A, a partition about five feet high separates Sgt. McLellan's office from a conference room. Singer was in the office with Sgt. McLellan. On the other side of the partition, Marino and Rispo and Detective Lynch And other police officers were engaged in general conversation about policement working extra hours, truckers' strikes, etc. (No reference was made to the complaint in this case.) They spoke thus for approximately 15 to 20 minutes. Singer did not know who was on the other side of the partition in Room 708A. Upon hearing the general conversation on the other side, Singer jumped up excitedly and informed Sgt. McLellan 'That's the voice on the phone. Whoever is over there is the voice on the phone.' Sgt. McLellan asked Marino to come out and talk again and Singer made a positive identification.'

JURISDICTION

All appellants question the jurisdiction of the Quarter Sessions Court of Philadelphia County to render judgment on the indictments charging blackmail and extortion based on the threat to Singer by telephone received by him in Bucks County. Jurisdiction is not questioned by any of the appellants on the conspiracy charges.

The record is sufficient to sustain the finding of the lower court that the speaker who made the threats by telephone was at a telephone in Philadelphia. Cited in support of appellants' argument that the Courts of Bucks County had exclusive jurisdiction are the cases of Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966), and Commonwealth v. Taub, 187 Pa.Super. 440, 144 A.2d 628 (1958). Appellants mistakenly interpret these decisions as holding that venue is Exclusively established in the county where the victim of a threat by telephone hears the threat and is put in fear, whereas the correct holding in such cases is that the crime of bribery is not complete until the victim hears the threat, although it had been initiated elsewhere, and for that reason prosecution for the crime may be conducted where the threat is received. However, these cases do not hold that prosecution for the crime may not also be conducted where the threat was made. See Commonwealth v. Keenan, 199 Pa.Super. 1, 184 A.2d 793 (1962), wherein this Court recognized that jurisdiction to try persons charged with the crime of blackmail lies in either the county where the blackmail threat is initiated or received, which case refers to Commonwealth ex rel. Sickler v. Yaukey, 11 Pa.Dist. & Co.R.2d 11 (1956). The insidious act for which the law provides punishment is the threat which in the present case was made in Philadelphia; and although it did not become a completed crime until it was heard by the victim, there is more reason to give jurisdiction to the courts of the county where it was initiated and where the one who makes the threat may be more readily apprehended. In such cases it appears to be generally held that the victim's presence in one county when threats to kill are made on the telephone do not conflict with the accused's presence in another county where the venue of the prosecution is laid. 22 C.J.S. Criminal Law § 185(13), Extortion and Threats.

MULTIPLE CONSPIRACY INDICTMENTS

Appellants also jointly charge duplicity in the indictments charging them with conspiracy. We agree there is but one conspiracy, that of Ashkenase, Marino and Rispo, to extort money from Singer in an amount in excess of what he legally owed to Ashkenase on the loans aforementioned.

The three indictments (Nos. 361, 363, 364) charging conspiracy entered into by the three appellants in Philadelphia County to levy blackmail and extort money from one Morris Singer are identical except in the particular of date. One alleges they conspired on November 8, 1966, the second on November 9, 1966 and the third on November 11, 1966. Two of these dates correspond with the dates of the overt acts of the conspirators as previously described. November 9, 1966 is the exception as nothing occurred on that day. This record clearly indicates but one conspiracy. Therefore, there is duplicity in the indictments charging separate offenses on the several dates aforementioned. However, duplicity, if not objected to in a timely and proper manner, is cured by verdict but permits but one judgment of sentence. 18...