Com. v. Neff

• Decision Date: 20 March 1962
• Citation: 179 A.2d 630,407 Pa. 1
• Parties: COMMONWEALTH of Pennsylvania v. Samuel G. NEFF, Leon Kaleta, James Macry and Robert Yoho. Appeal of Leon KALETA. Appeal of Robert YOHO. Appeal of James MACRY.
• Court: Pennsylvania Supreme Court

Page 630

179 A.2d 630

407 Pa. 1

COMMONWEALTH of Pennsylvania v. Samuel G. NEFF, Leon Kaleta, James Macry and Robert Yoho Appeal of Leon KALETA Appeal of Robert YOHO Appeal of James MACRY.

Supreme Court of Pennsylvania.

March 20, 1962.

Rehearing Denied April 23, 1962.

Paul E. Courtney, Conte & Courtney, John Alan Conte, Baden, for appellants.

Joseph S. Walko, First Asst. Dist. Atty., Richard P. Steward, Dist. Atty., Beaver, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, and EAGEN, JJ.

JONES, Justice.

Samuel Neff [Neff], James S. Macry [Macry], Robert Yoho [Yoho], and Leon Kaleta [Kaleta], appellants, were indicted by the grand jury of Beaver County on the charges of extortion and conspiracy to extort. The gravamen of these charges was that all four appellants, by reason of their respective official positions, had extorted money from certain contractors who leased equipment to the Pennsylvania Department of Highways [Highway Department] in Beaver County. All four appellants were convicted on both charges after a trial before Judge Morgan H. Sohn and a jury in the Court of Quarter Sessions of Beaver County.

After trial, each of the appellants filed motions for an arrest of judgment and a new trial. The court below arrested judgment on the charges of extortion against Neff and Macry, the basis of that ruling being that Neff, chairman of the Democratic party in Beaver County, and Macry, secretary of the same party in that county, were neither public nor quasi-public officers within the meaning and intent of the law relating to the offense of extortion. The validity of that ruling is not before us. The court below did not arrest judgment on the charges of extortion against Yoho and Kaleta, the basis of that ruling being that Yoho, assistant superintendent of the Highway Department, and Kaleta, a foreman in the Highway Department, were public or quasi-public officers within the meaning and intent of the law relating to the offense of extortion. On the charges against all four appellants of conspiracy to extort, the motions for arrest of judgment and a new trial were dismissed. Appellants were sentenced on the charges whereof they stood convicted. Appeals were taken to the Superior Court which affirmed the judgments of sentence. 195 Pa.Super. 420, 171 A.2d 561. ¹ We granted allocaturs.

The primary issue presented upon these appeals is whether the evidence is sufficient to support the convictions of all four appellants on the charge of conspiracy to extort and to support the convictions of Yoho and Kaleta on the charge of extortion.

In connection with the charge of extortion it must be noted that the Penal Code (Act of June 24, 1939, P.L. 872, 18 P.S. § 4101 et seq.) does specifically ² designate extortion as an offense. Act of 1939, supra, 18 P.S. § 4318. At common law and by this statute extortion 'is the unlawful taking by an officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is due'. Commonwealth v. Saulsbury, 152 Pa. 554, 559, 25 A. 610; Commonwealth v. Gettis, 166 Pa.Super. 515, 518, 72 A.2d 619, 620. An 'officer', within this common law definition includes a 'quasi public officer'. Commonwealth v. Saulsbury, supra; Commonwealth v. Gettis, supra; Commonwealth v. Lawton, 170 Pa.Super. 499; Commonwealth v. Ruff, 92 Pa.Super. 530. In Commonwealth v. Channing, 55 Pa.Super. 510, 516, President Judge Rice defined 'color of office': 'Amongst the judicially recognized definitions of color of office, applying to the differing states of facts that may arise, are: a pretense of official right to do an act, made by one who has no such right; the use of official authority as a pretext or cover for the commission of some corrupt or vicious act; an act wrongfully done by an officer under the pretended authority of his office: [citing cases].'

In Commonwealth v. Horvath, 187 Pa.Super. 206, 144 A.2d 489 (1958), it was stated: '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 shown in proving a criminal conspiracy: Com. v. Dunie, 172 Pa.Super. 444, 94 A.2d 166. The heart of every conspiracy is a common understanding, no matter how it comes into being. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities: Com. v. Strantz, 328 Pa. 33, 195 A. 75. A conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: Com. v. Rosen, 141 Pa.Super. 272, 14 A.2d 833.' 'That which gives to the crime of conspiracy its distinctive character is unity of purpose, unity of design, focalization of effort upon a particular project by the persons named in the indictment. * * * In order that any of the defendants may be convicted of conspiracy, he must be shown to have participated in the alleged general combination or concert with all or some of the other defendants'. Commonwealth v. Zuern, 16 Pa.Super. 588, 600.

In proving a conspiracy, direct and positive testimony of the corrupt agreement is not necessary; in fact, '[t]he nature of the crime attempted usually makes it susceptible of no other proof than by circumstantial evidence * * *.' Commonwealth v. Musser, 394 Pa. 205, 206, 211, 146 A.2d 714, 717; Commonwealth v. Evans, 190 Pa.Super. 179, 202, 154 A.2d 57. In Commonwealth v. Hall, 173 Pa.Super. 285, 287, 98 A.2d 386, 387, it was said: 'A confederation and agreement to effect an unlawful object[ion] seldom can be established by direct testimony as to its precise terms. The agreement nevertheless may be inferred from the acts of the parties, under the circumstances. Commonwealth v. Mittleman [et al.], 154 Pa.Super. 572, 580, 36 A.2d 860. 'It has been consistently and repeatedly held that the acts of the parties may show that there was a concerted action pursuant to a common design to accomplish a common purpose'. Commonwealth v. Weiner & Zvon, 148 Pa.Super. 577, 581, 25 A.2d 844, 847. 'Where the acts of the parties indicate that they were acting in concert to a common end, the jury properly may be permitted to infer that the concerted action was the result of an unlawful agreement'. Commonwealth v. Rosen et al., 141 Pa.Super. 272, 14 A.2d 833.'

In the instant, as in all, criminal prosecutions, the Commonwealth had the burden of proving appellants' guilt beyond a reasonable doubt, and, to sustain these convictions, the record must contain evidentiary proof of such quality and quantity as meets this burden. In determining whether the Commonwealth has met its burden we must give to the Commonwealth the benefit of all the favorable testimony and all reasonable inferences arising therefrom (Commonwealth v. Moore, 398 Pa. 198, 202, 157 A.2d 65; Commonwealth v. Wright, 383 Pa. 532, 536, 119 A.2d 492).

In the light of these principles we view the instant record. The principal Commonwealth witness was one of the alleged co-conspirators, Edward Nitsche, ³ who admitted that his purpose in testifying was to 'get even' with Neff. Nitsche, a construction foreman employed by the Highway Department, testified that in the winter of 1955-1956, at the instance of and accompanied by Yoho, he attended a meeting in Neff's home at which meeting were present Neff, Yoho, Nitsche and Macry. Nitsche testified that the purpose of the meeting was 'about raising funds for the campaign'. In reply to what plans were discussed at that meeting Nitsche testified: 'Q. Mr. Nitsche, you were telling us now about the plans to raise money for the campaign. What plans were discussed there? A. Well, there was plans for a club, and I don't know whether it was supposed--each man that worked for the Highway Department was supposed to give $5 a month dues--each employee. Q. Tell us what you heard said about a club and who said it? A. I think Mr. Macry said about the club, that he was supposed to have tickets printed, but I didn't see the tickets at that time, but I know they was printed afterwards. Q. Was there any discussion there about whether or not the club was a good idea? A. Well, there wasn't much discussion there; but when we went back from Neff's home, I was talking to Mr. Corcoran about it, and he said he didn't agree with anything like that. Q. What else took place at Mr. Neff's home? A. Well, the question come up about contractors[407 Pa. 9] --about rented equipment owners. Q. The question came up. about contractors? A. Yes, the rented equipment contractors that rented equipment to the Highway Department. Q. What was said about that? A. Well, I couldn't say who brought it up about they should donate; I know it was--I was appointed to go out and hit the contractors for donation. Q. Who appointed you? A. Well, Mr. Neff. Q. What was said about that? A. Well, I just asked him, 'How much do you think the fellows ought to pay?' and he said, 'At least five per cent.' Q. Was there any other discussion about that plan? A. No, just that I was nominated to do the job, that was all. Q. How is it you got the honor of picking up that money? A. Well, the only way I could state that is when the Democrat Party took over in 1955 and I sold a lot of banquet tickets for that Party, and that is the only way I could see about that. Q. Your job since 1941, you said, had been construction foreman? A. That's right. Q. As construction...