Commonwealth v. Evans

• Decision Date: 10 August 1959
• Parties: COMMONWEALTH of Pennsylvania v. Thomas J. EVANS, James F. Torrance, Charles W. Stickler, Clayton A. Landsidle, Paul J. McNeill, Appellants.
• Court: Pennsylvania Superior Court

154 A.2d 57

190 Pa.Super. 179

COMMONWEALTH of Pennsylvania v. Thomas J. EVANS, James F. Torrance, Charles W. Stickler, Clayton A. Landsidle, Paul J. McNeill, Appellants.

Superior Court of Pennsylvania.

August 10, 1959.

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Frederick G. McGavin, Reading, Earl V. Compton, Harrisburg, for appellant, Charles W. Stickler.

Ernest S. Burch, James H. Stewart, Jr., Nauman, Smith, Shissler & Hall, Harrisburg, for appellant, James A. Torrance.

Carl B. Shelley, Shelley, Reynolds & Lipsitt, Harrisburg, for appellant, Paul J. McNeill.

H. G. Stutzman, Stutzman, Lewis & Sidoriak, Pottsville, David S. Kohn, Kohn, Adler & Schatt, Harrisburg, for appellant, Thomas J. Evans.

David J. Conroy, Scranton, for appellant, Clayton A. Landsidle.

Huette F. Dowling, Dist. Atty., Mary E. Hoerner, Asst. Dist. Atty., Harrisburg, Alfred P. Filippone, Isaiah W. Crippins, Deputies Atty. Gen., Vincent G. Panati, Spec. Asst. Atty. Gen., Thomas D. McBride, Atty. Gen., for appellee.

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

RHODES, President Judge.

These appeals are by five defendants, Thomas J. Evans, James F. Torrance Charles W. Stickler, Clayton A. Landsidle, and Paul J. McNeill from judgments of sentence of the Court of Quarter Sessions of Dauphin County. Defendants were convicted of conspiracy to cheat and defraud the Pennsylvania Turnpike Commission in connection with certain transactions involving the Manu-Mine Research and Development Company during construction of the Northeastern Extension of the Pennsylvania Turnpike. ^[1] In addition, Thomas J. Evans, the former chairman of the commission, and James F. Torrance, a former member and secretary-treasurer of the commission, were convicted on separate indictments charging misbehavior in office. Charles W. Stickler, president of Manu-Mine and a principal stockholder, and Clayton A. Landsidle, general manager of Manu-Mine, were also convicted on an indictment charging the crime of cheating by fraudulent pretense, the Pennsylvania Turnpike Commission having been allegedly cheated and defrauded. Paul J. McNeill, former finance director of the commission, was named only in the conspiracy indictment. ^[2]

The issues presented on these appeals involve the refusal of defendants' motions to quash the indictments, the refusal of defendants' motions in arrest of judgment, and the refusal of defendants' motions for a new trial.

The crimes for which these defendants were convicted arose principally out of a contract dated February 28, 1955, between the commission and Manu-Mine. The ostensible purpose of the contract was to provide surface support for the right of way of the Northeastern Extension across the anthracite coal measures by means of a program of slushing material into mine voids underlying the roadway area. Under the contract, Manu-Mine was engaged (1) to plan and design the slushing operation, for which it was to be paid a maximum of $9,600; (2) to supervise and inspect the slushing work, for which it was to be paid either $138 or 207 per eight-hour shift, depending upon underground conditions; and (3) to drill and case holes through which the material was to be slushed underground, for which it was to be paid $12.50 per foot of hole drilled. Manu-Mine performed work under the contract until it was suspended in February 27, 1956, prior to full completion. No voucher for the $9,600 for design work was submitted during the active performance of the contract. But for work up to December 31, 1955, payments had been made to Manu-Mine totaling $6,846,441.64, of which $6,724,718.74 was for drilling, and $121,722.90 was for inspection and supervision. Periodical estimates for additional work to February 29, 1956, were submitted in the amount of approximately $833,000, but they were not paid. Of the total amount of $7,679,441.64 'earned' by Manu- Mine under the contract, the profit, after all expenses, amounted to approximately $4,000,000, or more than 100 per cent of the cost. Manu-Mine was owned by defendant Stickler, Stickler's wife, and the late Richard Evans. Stickler was a nephew of the wife of defendant Evans, and Richard Evans was his son.

In brief, it was the theory of the Commonwealth that the defendants had conspired to defraud the commission by obtaining this contract and payments thereunder for Manu-Mine; that the drilling and slushing program, inaugurated at the request and on the recommendation of Manu-Mine, was in fact 95 per cent unnecessary; and that the price for drilling was unconscionably excessive and fraudulent, especially since Manu-Mine had represented that the contract cost per foot of drilling had been computed on the basis of the cost plus only 10 per cent profit.

I. The Validity of the Indictments.

On October 22, 1956, upon the petition of the Attorney General of the Commonwealth, dated September 1, 1956, in which the District Attorney of Dauphin County had joined, a special investigating grand jury was convened. The matters disclosed by the presentment of the investigating grand jury formed the basis for the bills of indictment submitted, at the direction of the court, to the regular grand jury for the January Sessions of 1957. On January 23, 1957, the regular grand jury returned indictments against the nine defendants, five of whom have appealed after conviction, and four of whom were acquitted. Defendants moved to quash the indictments, alleging that on the evening that the investigating grand jury convened and on the following evening the Governor of the Commonwealth, in broadcasts over two Harrisburg television stations, made an inflammatory speech and remarks, and that the district attorney and the special deputy attorney general had intruded upon the deliberations of the investigating grand jury, which was prejudicial to defendants. The motions to quash were denied in an opinion by Judge Neely; we believe this was proper.

It is significant that the motions to quash, with the exception of that filed by defendant Torrance, do not question the form or sufficiency of the indictments, and that the matters alleged as prejudicial are extraneous to the indictments and relate principally to the investigation grand jury and not to the indicting grand jury. Ordinarily, alleged defects or irregularities in the proceedings preliminary or antecedent to the indictment may not be considered on a motion to quash. Com. v. Gross, 172 Pa.Super. 85, 92, 92 A.2d 251. A motion to quash which is based upon the allegation of extraneous factors should not be sustained unless it clearly appears that the defendant has been harmed by some improper conduct that interfered with his substantial rights. The court below concluded that the remarks of the Governor at the time the investigating grand jury convened were not such as to harm the defendants in the subsequent return of the indictments. In this respect the court considered not only the allegations of defendants, but also the fact that the investigating grand jury was specifically admonished in the charge of the court to divorce its deliberations from any political turmoil, public clamor, or publicity, and to reach its conclusions on the basis of the evidence presented 'uninfluenced by any partisanship or political considerations whatsoever.' There is nothing to indicate that the investigating grand jury did not properly follow this instruction. Com. v. Brownmiller, 141 Pa.Super. 107, 113, 14 A.2d 907. Nor is there any indication that the grand jurors heard such irrelevant remarks. If they had it would not necessarily invalidate the subsequent indictments based upon other and proper evidence. Com. v. Gross, supra, 172 Pa.Super. 85, 92, 92 A.2d 251.

The allegation of intrusion by the district attorney and the special deputy attorney general is likewise extraneous to the indictments and is without merit.

'It is the duty of the district attorney * * * the attend upon a grand jury, lay before them all matters upon which they are to pass, aid them in the examination of witnesses and give general instructions as may be required. It is highly improper, however, for the district attorney * * * to take part in the deliberations of a grand jury, as it is their duty to consider alone the evidence and apply it to the case.' Com. v. Brownmiller, supra, 141 Pa.Super. 107, 113, 14 A.2d 907, 910. The record shows that the district attorney and the deputy attorney general properly attended upon the investigating grand jury giving only general advice. There was no improper conduct or intrusion upon its deliberations.

A further consideration is that the investigating grand jury and the indicting grand jury are separate legal bodies. Although both may have considered the same alleged crimes involving the same individuals, their proceedings, deliberations, and presentments are distinct. Extraneous matters affecting one may not influence the other, and irregularities before one are not always present in the other; the two bodies are unrelated in this respect. Consequently, an indictment by a regular grand jury is not necessarily tainted by some irregularity or improper influence alleged to have affected the investigating grand jury. Com. v. Gross, supra, 172 Pa.Super. 85, 90, 91, 92 A.2d 251. At least, the irregularity or improper influence must be shown to have also affected the indicting grand jury. Nothing of this nature appears in this case. 'No matter how irregular the investigatory proceedings before the grand jury may have been, the presentment at least...