Petition for Writ of Certiorari — Lutsko v. Pennsylvania

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SUPREME COURT. i. & ~ a D

| 2 | MAY 9° 1969

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~ JOHN F. DAVIS, CLERK

IN THE ,

Supreme Court of the United States :

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No. 1378. i

October Term, 1968 sal x

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COMMONWEALTH OF PENNSYLVANIA, ;

‘ V.

WILLIAM H. LUTSKO and

HAROLD S. LUTSKO,

Pétitioners.

_ PETITION FOR WRIT OF CERTIORARI TO THE 4

SUPREME COURT OF PENNSYLVANIA 7

| |

H. DAVID ROTHMAN, |

Attorney for Petitioners.

1914 Frick Building,

Pittsburgh, Pa. 10219.

BATAVIA TIMES, APPELLATE COURT PRINTERS, : pe

EDWARD W. SHANNON, REPRESENTATIVE,

5C22 CARLYN DRIVE, PITTSBURGH, PA., 15236, o |

412-881-7463. .

Te Fe

INDEX.

| ee PAGE

Opinions of the Courts Below ................. 1

Grounds Upon i¢gh the Jurisdiction of this

‘Honorable Court is¥invoked .................. 2

- Questions Presented for Review dutch eisbaee shes oe og

Constitutional Provisions and Statutes Involved.. 4

Statement ofthe Cases .............0.. Seer S 6

ie ee I fn oe cid t ew Ra kA CRS ROKR Ho 6

SO hind k ens deekoe vedo debe Gey

Testimony of Robert Westman ....... pees 8

ie ee IE Ula sass bea ntes Ovede ehaace 9

S. “Tee BOrOrey FOO CORO oo sks sige ve sccnvess 10

5. The Miva Byerly Case ......3........6..... > a

6. The Closing Argument of the Assistant Dis- .

fe PET eee TTT Sere or ete 11

The Stage of the Proceedings and the Manner in

Which the Constitutional Issues Were Raised in

Che COUren OF FORMEVIVORIE ooo oo. 5 ce ds cccense 11

Reasons in Support of Allowance of Writ of Cer-

GEE, bon Wace Kuwkier ee aee be cesterhkea sexes 13

I. A State Court conviction for the crime of

attempted false pretenses is constitutionally

_ void where the only ‘‘overt act’’ is a false

. « _ statement not relied upon and resulting in -

no economic detriment. Such a conviction

violates the decisions of this Court ......... ge

II. The evidence of conspiracy to®heat and de-

fraud supported no more than suspicion of

an unlawful agreement and was not incon-

sistent with innocence. Therefore, there was

no evidence upon -which to sustain these con-

victions, and to permit them to stand would

violate due process of law and the decisions

SE See OAS axecee nee eas 16

ati

AE a Wie Sahin in 2 ne WD oO bine

IL.

III. To. permit petitioner Harold Lutsko’s con-

viction for false pretenses to stand would

violate due process of law and the decisions

of this Court ‘because there is no evidence

establishing the falsity of his a

CoNSTITUTION OF THE UnitTep States.

PAGE

tions (aN MCEE SF EER SEER OSEASEAN ERODE ELEN SS 18

IV.- The prejudicial conclusions of a prosecution

witness, the inflammatory closing argument

of the Assistant District Attorney coupled

with the erroneous evidence of Robert West-

man’s plea of guilty (to which no exception

was taken) created a prejudicial. atmosphere

which denied petitioners due process of law,

e particularly when so many cases were tried

ING ok sepa elvan caane ets oes 18

Appendix:

so caawen ecisccieerreuee eae koha Cereals 20’

NE ak van Vo olukes ee PSR EAT enya DueRekee coches 26

Tanta oF Casg |

Cini ealth V. Ellis, 349 Pa. 2, 404: 37,A. 2d 505

S| ere err es Ser ener ie ery 15

Commonwealth v. Johnson, 312 Pa. 140 (1933) : eeeory: Fg

Commonwealth v. Petrillo, 338 Pa. 65 Ye 17, i8

~ Commonwealth v. Willard, 179 Pa. Super. 3€8, 372;

Fe & ei errr ere ee ee 14

Sam Thompson v. City of Louisville, 362 U. S. 199; 80

S. Ct. 624: (1960) 2... cece e ee enews eden. 2. ..15, 18

i. STaTuTEs. |

18 Purdon’s Pennsylvania Statutes: ,

oe lt GN 8 ee eee re rer reer 4

ce RS eee eee peer 5 ad

a sh re it aa emecwee oe

ao U. B. ©. A: $1068 (8) .... 52s we LACE REMCakaN eee 2

Fourteenth Amendment ................eseeeeeeees 4,12

- IN THE

~ Supreme Court of the United States

COMMONWEALTH OF PENNSYLVANIA, .

Vs.

WILLIAM H. LUTSKO and

HAROLD 8. LUTSKO,

Petitioners.

oh % :

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSXLVANIA

To THE HONORABLE, THE CHIEF JUSTICE AND ASSOCIATE JUS-

TICES OF THE Supremes Court or THE UNITED STATEs:

Wim H. Lutsxo and Haron §. Lori, by their at-

torney, H. Davin Roruman, Esquire, a member of the Bar

of this Honorable Court, respectfully represent as follows:

‘A. Opinions of the Courts Below

Petitioners were tried and convicted before the Crimi- °

nal Court of Allegheny County, Pennsylvania, and a jury,

upon eight indictments (all tried together) charging the

crimes of false pretense, attempted false pretense and con-

spiracy to cheat and defraud. The opinion of the trial

judge and the order of November 29, 1967, denying defend-

ants’ motions for a new trial and for arrest of judgment are

appended to this petition. ’

On February 1,:1968, Harold Lutsko was sentenced to _

imprisonment for not less than nine months nor more than

four years; William Lutsko was sentenced. to imprisonment

ee

for not less than five months nor more than thirty-five and

one half months. From these judgments of sentence, pe-

titioners appealed, to the Superior Court of Pennsylvania

at No. 155 April Term, 1968. Their convictions were af-

firmed, ‘without opinion, by the Memorandum Report. of

that Court at 213 Pa. Super. 780 (1968). :

‘A Petition for Allowance of Appeal was filed in the Su-

, preme Court of Pennsylvania at No. 3074A Miscellaneous

- .Docket. .That petition was dismissed without opinion on |

* February 17, 1969. Petitioners continue to be admitted to

bail.

.The opinion of .the trial court, appended herein, is the

only opinion in this case, and it has not been published:

B. Grounds Upon Which the Jurisdiction of this

ie By Honorable Court is Invoked

The jurisdiction of the Court: is invoked to review the

judgment of the Supreme Court of Pennsylvania entered

February 17, 1969, wherein the petition for allowance of

appeal from the Superior Court was refused.

The statutory provisions upon which jurisdiction is con-

ferred is as follows: Supreme Court Jurisdiction, 28 US.

C. A. § 1257 (3)—State Courts; Appeal ; Certiorari

C. Questions Presented for Review

I. Where petitioners were engaged in the business of

selling furnaces to residential consumers, and where al-

, leged false representations were made relative to the con- |

_dition of the consumers’ old furnaces, are petitioners’ con-

' vietions for the crimes of attempted false pretense violative

_ of due process of law in that they are not supported by any

evidence at all because the potential consumers did not re-

3 %

\

~

ly upon the representations and suffered no economic detri-

ment?

II. Where petitioners were engaged in the business of

selling furnaces to residential consumers and gained entry

to private homes by promoting, in the first instances, a ser=

vice to clean furnaces, and where alleged false representa~

tions were subsequently made relative to the consumers’

old furnaces, are petitioners’ convictions for the crimes of

| conspiracy to cheat and defraud violative of due process of

law as not being supported by any evidence at all where

the record establishes mere suspicion of an unlawful agree-

ment and commercial practices equally consistent with in-

nocence? feet eat |

III. Where petitioner, Harold Lutsko, was engaged in

the sale of. furnaces, is his conviction for false pretenses.

violative of due process of law as‘ not being supported by

any evidence at.all where he represented a particular fur-

nace to be ltaking carbon monoxide and proof of the falsity -

of the statement rested upon an examination of the fur-

nace under changed conditions so that there i is no evidence

that the statement was false when made?’

IV. Where a prosecuting witness improperly referred

to a furnace contract as ‘‘crooked’’, and where the As-

sistant District Attorney in his closing argument appealed

to the passions of the jury in urging them to convict to de- .

ter others from crime, and where a co-defendant was er-.

roneously permitted to testify .as to his plea of guilty

(without objection), were petitioners denied due process

of law, particularly where several indictments were tried

to the same jury?

eee ee

4

D. Constitutional Provisions and Statutes Involved

FOURTEENTH AMENDMENT TO THE CONSTITU-

TION OF THE UNITED STATES:

AMENDMENT XIV.—Crrizensuip; Priviteces anp Im-

MUNITIES; DuE Process; Equant Protection; ApporTIoN-

MENT OF REPRESENTATION ; Digvatasioaryy OF OFFICERS;

Pusuic Dsst; ENFORCEMENT

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty or property, without due process of law; nor- deny

to any person within its jurisdiction the equal protection

of the laws. . )

18 Purdon’s Pennsylvania Statutes Section 4836, Page 471

—CHEATING BY FRAUDULENT PRETENSES:

Whoever, by any false pretense, obtains the signature of

any person to any-written instrument, or obtains from any

other person any chattel, money, or valuable security, with

intent to cheat and defraud any person of the same, or being

an officer, manager, agent, employe of or in any way inter-

ested in any person, by false pretense, knowingly and with

‘intent to defraud, procures, obtains, or aids, assists, or

abets in obtaining from any other persons, any chattels,

moneys, or valuable securities for such person of which he

is an officer, manager, agent, employe or in which he is in

any way interested, is guilty of a felony, and on conviction,

‘shalt be sentenced to pay’a fine not exceeding five thousand

dollars ($5,000), or undergo imprisonment not exceeding

five (5) years, or both.

4)

If, upon the trial of any person indicted for such a felony,

it shall be proved that he obtained the property in, question

in such manner as to amount in law to larceny, he shall not,

by reason thereof, be entitled to be acquitted of such felony.

No person tried for such felony shall be liable to be after-

wards prosecuted for larceny upon the same facts. 1939,

June 24, P. L. 872,:§ 836; 1943, May 21, P. L. 306, $1.

18 Purdon’s Pennsylvania Statutes Section 4302, Rage 149

—CoNSPIRACY TO DO AN UNLAWFUL AcT:

Any two or more persons who falsely and maliciously

conspire and agree to cheat and defraud any person of his

moneys, goods, chattels, or other property, or do any other

dishonest, malicious, or unlawful act to the prejudice of

another, are guilty of conspiracy, a misdemeanor, and on

conviction, shall be sentenced to pay a fine not exceeding

five hundred dollars ($500), or to undergo imprisonment,

by separate or solitary confinement at labor or by simple

imprisonment, not exceeding two (2) years, or both. 1939,

June 24, P. L. 872, § 302.

18 Purdon’s Pennsylvania Statutes -Section 5107, Page 715

—ATTEMPTsS TO CoMMIT CRIME:

_ If, on the trial of any person charged with felony or mis-

demeanor, it shall appear to the jury upon the evidence,

that the defendant did not complete the offense charged,

but was guilty only of an attempt to commit the crime, he

shall not by reason thereof be entitled to be acquitted, but

the jury may return, as their verdict, that the defendant is

- not guilty of the felony or misdemeanor charged, but Is

guilty of an attempt to commit the same.

Thereupon such person shall be liable to be punished in

the same manner as if he had been convicted upon an indiet-

FP TP ISLE OY

Sfp tenance yen tenn Faces arrose

6

ment for attempting to commit the particular felony or

misdemeanor charged in the'indictment.

No person so convicted shall be liable to be thereafter

prosecuted of an attempt to commit the felony or misde-

meanor for which he was so convicted. 1939, June.24, P. L.-

872, § 1107.

(This Statute is not strictly involved in the instant prose-

cutions ;'they are based, more appropriately, upon a com-

. mon law attempt to commit a statutory offense.)

E. Statement of the Cases

1. Tur Trunzo Case—Attempted False Pretense at No. 535

January Term, 1966 Conspiracy to Cheat and Defraud °*

at No. 536 January Term, 1966

- Francis J. Trunzo received a post card from the Cavalier

Heating Company and contacted that establishment to take

advantage of an offer to clean or tune up his gas furnace .

(T. 10-12).* In response to that inquiry, Felton Hughes, a

co-defendant, but not a party to these proceedings, visited

the Trunzo home on October 22, 1965, examined the furnace

with a light, indicated that there was something wrong with

the furnace and called his supervisor (T. 12-13). Defend-

ant William Lutsko came to the home, looked at the furnace

®.nd represented that the ductwork was illegal and defective

and that a red tag (warning tag) would have to be affixed

to the furnace. Me added that Trunzo’s neighbors would

have to be apprised of this condition (T. 15). He repre-

sented that there was a crack in the furnace, that the defec-

_tive part could be replaced for $550.00, but recommended a

new furnace at $1300 (T. 16-17). He added that carbon

. monoxide was probably leaking into the house from the

* Page references are to pages in original trial transcript.

7

erack in the furnace (T; 18) and that the gas was probably

doing harm and would continve to do harm to the unborn

child of the Trunzos, for Mrs. Trunzo was pregnant at the

time (T. 19). Defendants left the .Trunzo home without:

selling any furnace parts or a new furnace (T. 20).

Trunzo called the gas company who sent an inspector to ©

_the home the following day, October 23, 1965 (T. 21). He

spent an hour and a half fo two hours inspecting the fur-

nace, whereas the defendants did not spend more than five ©

minutes, aceording to the evidence, presented by the Com-

monwealth (T. 22). Trunzo called the District Attorney’s

office and wrote a letter to the District Attorney (T. 24).

As of the date-of trial, June 20, 1967, the Trunzos had the

same furnace in.their home and no changes or repairs had

ever been made (T. 24).

The furnace inspector sent by the ‘gas company, For-

nicoia, found nothing wrong with the heat exchanger of the .

Trunzo furnace and did not find any leak (T. 83). He found

no-crack in the combustion chamber; in his opinion, there

‘was nothing wrong with the furnace. J ames Petrucci, also

from the gas company, went to the Trunzo home in Febru-

ary, 1966, found no cracks or imperfections and no trace of

escaping carbon’monoxide (T. 93-95), but conceded on some >

- oceasions people can smell escaping gas and on other occa-

sions no odor can be detected (T: 99).

2. Tur Exuison Case—Attempted False Pretense at No.

572 January Sessions 1966 Conspiracy to Cheat and

Defraud at No. 573.January Sessions 1966

Mrs. Mary Ann Ellison lived in her home for five years

before receiving a card in July, 1965, from Cavalier Heat-

ing Company, relative to an offer to clean her furnace (R.

40-42). Robert Westman, a co-defertdant, but not involved

eM AS ISEY OCT LOFT ORLA IP LTO

‘ .

vaher.

MMB mses NCR Ae Home ee

8

in these proceedings, came to the house (R. 44). Mr. Elli-

son testified a man identifying himself as being from Cava-

her Heating Company-came to the house in October, 1965,

removed a panel from the furnace, looked info the furnace

with a flashlight and then made a.telephone call (R. 52-54).

Petitioner, Harold Lutsko, then came to the house, looked

in the furnace for abowt a minute and stated there was a

high pressure leak and there appeared to have been an

explosion in the chamber, that the condition was dangerous

and should:be repaired (R. 55-56). He added he knew who

had made the furnace and doubted that it could be re-

paired; Mr. Ellison requested estimate of the cost to re-

place or repair (R. 57). Petitioner Lutsko mentioned a —

contract; Ellison wanted to see an estimate, but none was

ever given (R. 69). He said Lutsko had a book of con-

tracts, that a price was given, but none was ever stated for |

the record (R. 69-70). + | ot

Harry Sellers, a customer service representative from a

gas company, accompanied by Mr. Fay and Detective John -

Clarkin went to the Ellison home on October 29, 1965 (R.

104-105). No water leakage or evidence of prior leakage

was discovered ; nothing wrong was detected (R. 106-107).

Sellers indicated honest differences of opinion exist as to

the condition of equipment (R. 112).. William Drummond, |

a plumbing and heating contractor visited the Ellison home

in October, and discovered no signs of a leak, past or pres-

ent (R. 113-115).

TESTIMONY OF ROBERT WESTMAN .

Without objection from defense counsel, Robert West-

man testified for the Commonwealth that he pleaded guilty

to attempted false pretenses and conspiracy to cheat and

defraud the Ellisons (R. 124). He indicated he was in-

9

structed to check "furnaces and if he found nothing wrong,

he was to leave the premises (R. 125). He said he per-

sonally did not see the alleged high pressure leak (R. 126),

but he added that he did believe there was something wrong

with the Ellison boiler or burners because of rust which

had accumulated (R. 145). Westman added, as a general

proposition, that enfployees were instructed to find some-

thing wrong with furnaces of prospective customers, and

then call superiors (R. 128). They were to get a salesman

into the house to sell a furnace; they were instructed to see

if they could find something wrong (R. 129).

. 3. Tue RicueL.-Case—False Pretense at No. 496 June

Sessions 1966

Mrs. Agnes Richel testified that after a man came to her

house to clean her furnace and said something was wrong

with it, petitioner Harold Lutsko came to her home and

said the furnace was leaking carbon. monoxide (R. 157- :

158). She signed a contract for the purchase.of a new fur-

nace for $1500.00 (R. 158). Her furnace had not been ser-

viced in 19 years (R. 162).

Domenick Volpe went to the Richel home on March 30,

1966, repaired a small leak in the pilot tube of the furnace,

but said there was no carbon monoxide (R. 174-176). When

Volpe saw the furnace, it had been cleaned, and he said it

eould have been in worse condition before the cleaning,

which was when petitioner examined it (183). The court’

refused a motion to strike Volpe’s testifnony becausé there

was no evidence that the furnace was in the same condition

when the two different examinations were made—that of

Volpe and that of petitioner (R. 184-185). Louis C. Boron,

a gas company representative, went to the Richel: home

after Volpe, but on the same day oi 187) ; he. said there

errnttehd dug. mbieak eee

P

10.

°

was no gas leak and no carbon monoxide, but he could offer

- no statement as to the condition of the furnace when ex-

amined by petitioner (R. 188).

During the course of Mrs. Richel’s testimony, she indi-

cated that her husband had not signed the contract because -

it was ‘‘crooked.’’ Defense counsel moved for withdrawal

of a juror, but the motion was refused (R.159). She made

a second reference to a crooked contract (R. 164) and the a

jury was instructed to disregard the remark.

4. THe Dorocny Hines Case—Attempted False Pretense

at No. 547 January Term, 1966 William Lutsko only

Mrs. Dorothy Hines indicated that after a man came to

look at her furnace, Petitioner William Lutsko came there,

indicated gas was leaking, there were carbon monoxide —

fumes and that the furnace was not adequate for her house.

He said repairs were not in order and the price of .a new

furnace would be over $1,000.00 (R. 201). She was fright-

ened for the safety of her children and called the -gas com- : |

pany (R. 202). Edward J. Walsh, gas company represen- -

tative went to her home, found no cracks or leaks. in the

furnace (R. 219), and conceded that the odor of gas could

be present one day and not the next (R. 223).

5. Tur Eva BYERLY CasE—Attempted False Pretense and

Conspiracy to Cheat and Defraud at No. 495 —_

‘Term, 1966 .

Eva Byerly testified that a man from Cavalier Hvating

came to her home, looked at her furnace and made a tele-

phone call (R. 22). William Lutsko came, examined the

-. furnace for thirty minutes, and told her she needed a new

one, that hers was dangerous and leaking earbon monoxide

.(R. 230). Prices’ were mentioned, but she never signed a

a.

contract (R. 232). She did not believe she needed a new

furnace (R. 239). Subsequent inspection by a gas company

representative on March 31, 1966, revealed no gas leak,”

safety pilot was in good operation, there were no cracks

and that the furnace was in excellent condition and in good

operating condition (R. 254-257). j

6. THE CLosinc ARGUMENT OF THE ASSISTANT District

. ATTORNEY |

Trial counsel -for said akc utenti to the —

argument made by the Assistant District Attorney, which

exception was overruled by the trial court. The material

portions of the record (R. 382-383) are as follows:

‘‘Mr. Teitelbaum: The Prosecutor in his closing r

arguments to the Jury said on numerous occasions and

emphasizes that the guilty verdict should be brought

back because it would deter crime by some other person. 3

In fact he said this would put an end to some kind

of illegal racket that is costing all kinds of money to

all kinds of people. |

Mr. O’Hanesian: I stipulate to that. I said that.

Mr. Teitelbaum: I think it is an appeal to passion

and highly improper argument. The question is wheth-

er these people are guilty or not guilty, and not whether

or not that is going to deter some other person from

committing some other kind of offense. I respectfully .

move for the withdrawal of a Juror. I don’t think we .

-ean get a fair ruling from the Jury —_ that argu-

’ ae :

F. The Stage of the Proceedings and the Manner in Which

the Constitutional Issues Were Raised in the Courts

of Pennsylvania -

The thrust of petitioners’ position is that there is no

evidence upon which these convictions can stand. The first

test of the issue in the Pennsylvania Courts came at the

aha D a MTE aS et a

LNs AAA ha isi tee iN

“492

conclusion of the case submitted by the Commonwealth

_ when defense counsel orally demurred to the evidence (R.

261-262). At the conclusion of the trial judge’s charge to.

the jury, defense counsel took exception to his failure to

instruct that the jury must find reliance on the alleged false

=" pretenses to support a conviction for the crimes of at-

tempted false pretense (R. 412).

In addition to a motion for a new trial, petitioners filed

a motion in arrest of judgment in the trial court following °

the jury’s verdict of guilty. These motions were the basis

of the opinion of the trial court appended to this petition.

By their brief in the Raserior Court of Pennsylvania,

petitioners submitted the following statement of questions

involved :

1.: Should not those acts which comprise mere prepara-

tion for the contemplated crime be distinguished from those

acts which constitute the actual perpetration thereof?

. 2. May there be a conviction for the crime of attempting ;

to cheat by fraudulent pretenses where the alleged victim

is aware ‘that the pretenses are false?

- 3. Did the Commonwealth offer sufficient ade at trial

to sustain the convictions for conspiracy to cheat and de-

- fraud?

4. Have the ‘niiate in deprived of their constitu-

tional right of Due Process of-Law under the Fourteenth

Amendment to the United States Constitution as a result

of the lack of a proper standard of guilt?

5. Were the remarks of the Assistant District Attorney

and the prosecuting witnesses sufficiently prejudicial to the

rights of appellants as to deprive them of. Due Process ¢ of .

. Law and to require a new trial? .

wr

A ay node sata alana

13

The -brief in the Superi¥r Court: of Pennsylvania was

incorporated in: the Petition for Allowance of — —— to

the Supreme Court of Pennsylvania.

G. Reasons in: Support of Allowance of Writ of Certiorari '

I. A State Court conviction for the crime of attempted false

pretenses is constitutionally void where the only “overt act”

is a false statement not relied upon and resulting in no eco-

- nomic detriment. Such a conviction violates the decisions of

this Court.

The decision of the trial judge in thase canes rests upon

Commonwealth v. Johnson, 312 Pa. 140 (1933) to support

the proposition that false statements, without more, con-

stitute overt acts justifying conviction of the crime of

attempted false pretenses, assuming of course, a fraudu-.

lent intent and a failure to achieve the desired result.

_ Petitioners respectfully urge that.review of that position

is warranted because to permit that decision to stand is

to allow imprisonment for conduct which falls constitu-

tionally short of a criminal offense. ; |

The dissenting opinion of Justice Maxey in Johnson,

supra, comports with the many decisions of this Court as to |

what constitutes fundamental fairness and: due process of

law. J ustice Maxey observed at 312 ‘Pa. 151:

‘*A mere unsworn to, unbelievéd, and therefore harm-

less lie does not reach the importance of an ‘overt-act’

and should not be accepted as the basis of a criminal

prosecution. ”’

Justice Maxey urged further, at page 154, that mere words °

must result in acts so that’a false statement, before it can

ise to the dignity of an attempt, requires a responsiveness

to and reliance upon the words resulting in some act where-

in the intended victim begins to part with something of

14

value, but is prevented from doing so due to some inter-

vention.

Put another way, the mere words of petitioners, without

more, constituted but preparatory conduct, and not acts in

the perpetration of the offense. This principle has been.

accepted by the Pennsylvania courts, but not applied to.the

‘facts of these cases. The Superior Court of Pennsylvania,

~ in Commonwealth v. Willard, 179 Pa. Super. 368, 372; 116

A. 2d 751 (1955) recognized that acts confitted. to prepara-

tion only and which could be abandoned before any trans-

gression of the law or of the rights of others lie only within

the sphere of criminal intent and do not amount to attempts.

Close serutiny of the facts in Willard points up the con-

-elusion that the Courts of Pennsylvania not only erred in

the instant cases, but did not give these cases the same

consideration which the Pennsylvania Courts have taken

time to give to.similar cases. In Willard the charge was

attempted abortion. The evidence showed that defendant

had instructed the intended victim to remove her clothing,

which she did not do; the room was equipped to commit

the offense; defendant entered the room with several in-

-struments suited only for the performance of.an abortion.

‘When defendant approached the bed in the room, the

intended victim then called in a detective from an outer

room who identified himself and removed the instruments

‘and took from defendant marked money which’ had been

given to*him. In reversing defendant’s conviction in

Willard, the Superior Court emphasized that the acts of

defendant had not reached the point where the crime would

have been.conimitted. unless prevented by some outside

interference. aor

It is respectfully submitted that the words of petitioners®

in the instant cases withstand the same test, but Willard’s ~

. % > P

15

convictién was reversed and petitioners’ convictions were

not. In a real sense, petitioners have not only been denied

due process of law, they have been denied. equal protection

of the law by the Courts of Pennsylvania i in not applying

previous decisions to the facts of the instant cases. The

trial judge, and the appellate Courts of Pennsylvania have

simply glossed over any genuine analysis of petitioners’

words and have assumed them to constitute overt acts with-

in the definition of attempts to commit a crime, Common-

wealth v. Ellis, 349 Pa. 402, 404 ; 37 A. 2d 505 (1944).

It is true that one ‘element of the crime of attempted |

false. pretenses is a false statement, which the jury. deter-

mined*ty have been made in each of the cases herein. “Con-

stitutionally, more must be required of words before they

can be the basis of criminal prosecution, and it is inthis ~

significant area that Justice Maxey’s admonitions in John-

son take on meaning. For while false words are an element

of the offense, they are equally consistent. with only an.

intent, and absent reliance and some detriment upon the

part of the victim before completion of the offense, then no

crime has been made out.

‘ Accordingly, petitioners’ words, without more, were not

criminal attempts, and this record presents no ‘eVidence

whatever to support the convictions. Under these circum-

stances, the convictions are'a denial-of due process of law,

Sam Thompson v. City of Louisville, 362 U. S. 199; 80S. Ct.

624 (1960). It is submitted that the facts of the instant

cases warrant review by this Honorable Court.

This Honorable Oourt has not previously passed upon

the issue of what is required to sustain a state conviction

for the crime of attempted false pretenses. This is a signifi- -

cant offense which could be the basis of much abuse. - Guide-

lines from this Honorable Court are in order.

16

Il. The evidence of conspiracy to cheat and defraud sup-

ported no more than suspicion of an unlawful agreement and

was not inconsistent with innocence. Therefore, there was no

evidence upon which to sustain these convictions, and to per-

mit them to stand would violate due process of law and the

decisions of this Court. .

In each of the cases where conspiracy is charged (Trunzo,

Ellison, Byerly) separate and distinct proof was offered.

There was no general conspiracy charge involving all the

victims in a single indictment. Except in so, far as the

- same jury heard ail cases, the evidence in one case was not

‘incorporated as evidence of guilt in another. What might

have been considered by the jury as a scheme or plan to

' defraud: because of the same pattern of commercial opera-

tion, was in fact three distinct cases which had to sustain

themselves. In each of the three cases, the conspiracy had

to rise or fall upon proof of an unlawful agreement between

the initial contact man and the salesman who eventually

made the alleged false representations. It is respectfully

submitted that the cases were devoid of such proof.

Considering the Ellison case first, the testimony of Rob-

ert Westman is important. He testified specifically about

that case and made a brief general comment which obvious-

ly was interpreted as applying to all of the cases. As to

the subject case about which he was called to testify, he

clearly indicated ‘he believed something was wrong with

the boiler or burners because of rust which had acecumu-

lated (R. 145), as a résult of which he: called petitioner,

Harold Lutsko. How then can the conspiracy conviction

in the Ellison case .be permitted to stand where the Com-

monwealth’s own witness negated the existence’ of any

agreement between Westman and petitioner. to fabricate

a defect? eae ‘

“Westman *s more general statements not only conflicted

with one another, they did not amount to anything more

17

than a statement that when employees discovered a defect

they were to call their superiors. More important, West-

man’s general statements. were not evidence in the other

two conspiracy cases absent evidence that the initial con-

tact men in those cases understood that they were supposed

to fabricate defects-in order to get, salesmen into the homes

of prospective purchasers.

In the Trunzo case, the Commonwealth’s evidence is that —

the contact man, Felton Hughes, a co- defendant, simply

indicated that there was something wrong with the furnace,

and that petitioner William Lutsko then came to the home

.In question in response to a call from Hughes. Accepting

the jury’s finding that Lutsko’s subsequent representations

were false, what evidence is there that Lutsko and Hughes

agreed to defraud or attempt to defraud the Trunzos?

Even if the contact man knew there was nothing wrong

with the furnace, his call to Lutsko to get him into the home

to make a sale is not adequate evidence upon which to infer

an agreement to defraud.

/ Finally, in the Byerly case, there is no evidence that the

contact man said anything at all; he simply looked at the’

furnace and called petitioner who then made the represen-

tations which formed the basis of the substantive offense

of an attempt. What evidence is there from which a jury

could reasonably infer that the unidentified contact man and

petitioner agreed to cheat and defraud the prospective

customer ?

. Again, the Pennsylvania Courts have elected not to follow

their own previous rulings which provide adequate stand-

ards upon which to determine the existence of conspiracies.

Evidence of relationship or mere suspicion cannot support a

conviction for conspiracy, Commonwealth v. Petrillo, 338

~ oi aaibrail

«

“94

18

Pa. 65 (1940). Proof of acts which are consistent with’

innocence cannot ‘support a verdict of guilty. ©

There is a tendency in the State Courts to give a loose

interpretation to the law of conspiracy; the instant cases

are a prime example of how mere association has been

allowed to form the basis for the offense. This is the

equivalent of no evidence at all, and violates the pronounce-

ment of this Court in Thompson v. City of Louisville, supra.

The issues here presented are substantial and require re-

view by this Court. ue

Il. To permit petitioner Harold Lutsko’s conviction for

false pretenses to stand would violate due process of law and

the decisions of Court because there is no evidence estab-

lishing the falsity of his representations.

In the Richel case, the Commonwealth’s evidence clearly

revealed that between the time petitioner Harold Lutsko

represented the furnace was leaking carbon monoxide and

the time it was inspected, it had been cleaned and serviced

and was not in the same condition: There had, in fact,

been a leak in the pilot tubing of the furnace. An essential

element of the Commonwealth’s evidence was not sup-

plied—proof that the representation was false when it was

made. It must follow that the conviction cannot stand

absent any evidence. to support it. Such a conviction is

a denial of due process. :

IV. The prejudicial conclusions of a prosecution witness,

the inflammatory closing argument of the Assistant District

Attorney coupled with the erroneous evidence of Robert West-

man’s plea of guilty (to which no exception was taken ) created

a prejudicial atmosphere which denied petitioners due process

of law, particularly when so many cases were tried together.

~ An abundance of caution should have been exercised by

the trial judge when it was clear that a number of cases

19

were being tried together. The conclusions of Mrs. Richel

that the contract was ‘‘crooked’’, without more, called for

a mistrial. Add to that the inflammatory closing of the .

Assistant District Attorney and it is difficult to see how

‘petitioners could have expected the jury to ‘deliberate in an

impartial atmosphere.

Robert Westman should not have been permitted to tes-

tify as to his pleading guilty; this simply enabled the

_ Commonwealth to prove its case by permitting the jury

to infer that if Westman was guilty, the rest had to be.

This issue was not raised before, but is relevant to a con:

sideration of the entire issue of a prejudicial atmosphere,

particularly when what has been said above was raised i in.

the Pennsylvania Courts in an ‘effort to obtain a new trial.

This trial assumed circus-like proportions when one con-

siders the-cumulative effect of these remarks and circum-

stances. At the very least, this Court should review this

aspect of these cases to determine whether petitioners could

have received a fair trial.

* :

Respectfully submitted,

. _ HH. DAVID ROTHMAN,

Attorney for Petitioners,

1914 Frick Building, |

Pittsburgh, Pennsylvania 15219.

PPR ES:

.

SOT TEE NA IONS

20

APPENDIX -

IN THE

CRIMINAL COURTS OF ALLEGHENY COUNTY, ©

: PENNSYLVANIA

COMMONWEALTH OF ea

PENNSYLVANIA,

vs.

FELTON HUGHES, No. 535 January Term, 1966

WILLIAM H. LUTSKO, . Attempted False Pretense

FELTON HUGHES, No. 536 January Term, 1966

WILLIAM H. LUTSKO peop to Cheat-and Defraud

> . No. 54 r rm, 1

HAROLD S, LUTSKO, pra ce yp iy se ig

WILLIAM H. LUTSKO, ; No. 546 January Term, 1966

WILLIAM H. LUTSKO, _ Attempted False Pretense

ROBERT WESTMAN, No. 572 January Term, 1966

ROBERT WESTMAN, Attempted False Pretense”

HAROLD S. LUTSKO, : No. 573 January Term, 1966

ROBERT WESTM AN, Conspiracy to Cheat and Defraud

HAROLD I sUTSKO, No. 495 June Term, 1966 ;

WILLIAM HARRY LUTSKO,| A"@hepracy 2d Detrand

HAROLD STEVEN LUTSKOJ x. 496 june Term, 1966 |

Attempted False Pretense

Appearance:

David O’Hanesian, Esq., Assistant District Attorney,

Hubert I. Teitelbaum, Esq., for Defendants. °

Argued before Judges, Toothman, McCormick, and Mc-

Williams, en bane.

Opinion

The defendants were tried in June of 1967 in the Crim-

‘ inal Courts of Allegheny County, upon the respective

charges as set forth above, and found guilty by the jury on

all counts. Aside from the administrative complexity of

the counts and charges being correctly identified with re-.

21

spect to each of the defendants, there is also a certain

legal complexity involved in these cases which is raised for

; the court’s attention by the motions in arrest of Judgment

and for a new trial, filed on behalf of the defendants. Both

counsel in this case, the Assistant district attorney for the

Commonwealth, and the attorney for the defendants have,

we wish to note, rendered conspicugusly commendable

service throughout the trial and in the ‘argument of this

unusually difficult case. :

Since the maif effort of the defendants’ motions is di-

rected toward the motion in arrest of Judgment, we shall

first review the reasons submitted for this motion which

have been articulately pn eee assigned. Defend-

ants contend that there is*insufficient evidence to sustain

the chargé.of attempted false pretense which is the charge

common to ae indictments. ‘The facts produced at

the trial by the mmonwealth show quite clearly the

-eorruption to which. modern sales tactits can lead, if per-

mitted to go unchecked by the restraint of the law. The ©

defendants, William and Harold Lutsko, brothers, were

owners and managers of a business known as Cavalier

Heating Company, which, by similarity of telephone number -

and address, had an alias known as Clean Air, Ine. The

company’s modendus operandi was to mail ecards to occu-

pants of homes in the Pittsburgh area, advising them ‘that

because of an unused portion of a prior furnace cleaning

contract, the present home owner could apply for, and re-

ceive; a free furnace cleaning job. -The homeowners, in each

of the cases involved, showing that some degree of gullibili-

ty is a necessary springboard for such an operation, called

in to obtain the service. Immediately the company, a family

owned concern, dispatched a contact man, ‘who in these

cases was most frequently one Felton Hughes. After

some preliminary efforts involving the appearances of

‘

RE leans BRI Ws Hi a ED ARB ei NA AK ata ORI PLASM

22

cleaning the furnace, there would inevitably and routinely

be the necessity to call the main office for some more ex- ~~

pert assistance concerning a concealed furnace defect,

which, if not remedied immediately, would lead to catastro-

phic results, such as explosion, exposure of the family to

fatal fumes, or gas leaks seeping throughout the house.

The next link would regularly be the dispatch of the

intermediate furnace authority, usually Harold Lutsko, or

the ultimate furnace authority, William H, Lutsko, the

other defendants, who would make a cursory check and who

usually reached the same conclusion as the advance agent,

and, this always against a background of dire emergency

hovering about thé family heating plant, who would con-

veniently suggest that the most advantageous settlement

- of the homeowner’s plight would be the installation of a_

new furnace. Kach case of attempted fraudulent pretense

reaches this stage, and only one of them resulted in the

consumation of the deal by a signed agreement, which is

the one case Ee: fraudulent pretense itself.

_ The Act defining ‘the crime reads as follows:

‘“Whoever by any false pretense, obtains the signa-

ture of any person to any written instrument, or ob-

tains from any other person any chattel, money or

valuahle security, with intent to cheat and defraud

any person of the same . . . is guilty of a ated o

. Act of June 24, 1939, P. L: 8728836 as amended.

No quarrel can be raised that the elements which — ie

present for the completed crime to exist are:'(1) the false

representation of an- existing fact, (2) made with the in-

tent to defraud (3) calculated to deceive the confiding and

unwary, (4) which does in fact deceive, and (5) the obtain-

ing of property from another on the faith of the represen-

tation. We can-find no reason based upon anything other

23

than the first three elements of the crime actually present.

It is at the point. of the fourth and fifth elements that. there

_legimately arises a question of both fact and law. In the

ease of 496 June 1966, involving the furnace of John E.

and Agnes Richel, where they were actually deceived into

signing an installment purchase contract, we believe the last

two elements do exist in full legal and factual measure.

They ‘had to believe the representations, which were proven

false, or they wouldn’t have bought a new furnace, and the

signing of.an installment agreement of the type -here

- involved had, by the Pennsylvania courts, been construed

as “‘something of value’’ for certainly a very stringent

obligation is created upon the buyers, and the fact that the

seller, when confronted with a renunciation, so agreeably

consented to orally, does not alter the legal import that

the contract can still be reduced to a J —. lien upon

their property.

This then leaves as the remaining question to be answer-

_ed, whether an attempted false pretense conviction can

stand, if the parties were not in fact deceived, and did not

give anything of value in reliance upon the false represen-

tations. In the case of Commonwealth v. Eagan, 190 Pa.

- 10, p. 21, the Supreme Court held that an attempt, in

general, is an overt act done in pursuance of an intent to

do a specific thing, tending to the end, but falling short

of the complete ssctiecaihdldin of it. In law, the defini-

tion must have this further qualification, that the overt

act must be sufficiently proximate to the intended crime, to

form one. of the natural series of acts which the intent re-

quires for its full execution. It is not difficult to apply

this definition of attempt to most crimes, such as rape,

arson, burglary, robbery, ete., but what constitutes the

difficulty in its application in the case at bar is the fact

24

that the very nature of the crime of fraudulent pretense

makes it so. In effect there must be a deceiver and a per-

son deceived to his detriment. But can there be an at-

tempt to deceive if no one is actually deceived is s the Jegal

‘question involved.

Our Supreme Court has gone into this question very

carefully in the case of Commonwealth v. Johnson, 312 Pd

140, and quoting from that opinion at page 143, we see

evidence of the depth of the Court’s consideration of the

subject as follows:

‘Textbook authorities are apparently in unison on

the proposition that the completed crime of false pre-

tense is not established unless it appears that the

person alleged to have been defrauded believed the

* false representations to be true. Thus in Wharton’s

Criminal law, vol.. 2, 11th ed., Section 1447, p. 1629,

it is said: Tt i is an essential ingredient of the offense

that the party alleged. to have heen defrauded should

- have believed the false representations to be true, for

if he knew them to be false, he eannot claim that le

was .influenced by them.’ In Clarks Handbook of}

Criminal Law, page 368, it is stated: ‘Not only must

there be a false pretense made but the prosecutor

must part with the property relying on the pretense.

If, therefore, he knows that the pretense is false when

he parts with, the property, the offense is not commit-

Or eae,

But the Court further analyzed the law of attempted

false prétense in the Johnson Case, supra, the fact of which

disclose that a licensed practicing physician was: charged

with the attempt to obtain money by false pretense. A

County Detective of Allegheny County had paid a visit to

the doctor Who, with another person, told the doctor they

had a‘ sister in failing health (which was not the fact).

The doctor told the detective to write her name on a piece

of paper, which he did, and after the doctor had placed it

50 Oe eile strat eter at See Heute 4 Rieke Ue ails dl .

25

under an electrical instrument, advised the detective that

he found his sister suffering from sarcoma and other ills.

The detective later returned, paid the doctor $25.00 in

marked bills for the treatment, and shortly after leaving

‘the office, two other detectives entered and arrested the

defendant doctor. The Court held that it was sufficient to

sustain the charge, and at p. 144 stated:

‘‘The law on the subject, with authorities to sustain

the text is thus summed up in 25 C..J., p. 614, section

46: ‘An attempt to commit the crime \of obtaining -:

money by false pretenses or the like is an indictable

offense. Such an attempt consists in: (1) An intent to

obtain by the false pretense, or the dike: (2) the doing

of some act toward obtaining the property by means of

the false pretense or the like (3) the failure to obtain

the wcoulety. It is not necessary that the prosecutor

should have relied on the false pretenses and parted

with his property. But on the contrary, if property is

actually obtained in conseqifence of the prosecutor’s .--

reliance upon the false preterses, the offense is com-

plete and an indictment will not lie. . . Ifthe accused

With the requisite intent has* done some act toward

obtaining the property, it is none the less an attempt —

hecause for some reason unknown to him he éould have

completed, the crime, or because the falsity of his

representations is discovered before he has an pppor-

tunity to proceed further in his endeavor to obtain the

property.’ ”’ :

We hold that the attempt to deceive, being legally pos-

sible, with or withaut the intended victims’ knowledge of + ;

.the deceit, was factually proven in this case, and the jury’s-

verdict, therefore, rests upon a solid’ foundation. A thor-

ough and careful review of the case, and a study of defend-

ants’ counsel’s brief on the subject as to what we should ;

_now determine the law to be, is an analysis with which we

cannot agree. We cannot say that all that was involved . am

here was a clever and ingenious application of the time i

2 ee Lae eee Pe

26

honored doctrine of caveat emptor, under the gentle pro-

tective roof of laissez faire where, neither the police nor

criminal-courts can tread. We believe, on the contrary,

that to support and maintain both acknowledged principles

of a free economic system we mist draw the line against

permitting these deceitful schemes to be perpetrated upon

the consuming public. We understand the public’s gullibil-

ity at times for there is some in each of us, but we cannot

~ let it be so carefully and deceitfully exploited.

i . ORDER

. And now this 29th day of November, 1967, the motions

for a new trial and in arrest of Judgment are dismissed,

and a time is directed to be set for sentencing.

By tHe Court:

RICHARD E. McCORMICK,

H. CLIFTON McWILLIAMS, JR.,

' GLENN TOOTHMAN,

13th Jud. Dis.

ATTEST:

one. OS 8'O 9864.88 OS O S.D

Clerk of Courts.

And now exceptions granted to the defendants.

eG@e see CeCe tO8 8686808 O86 E68 Oe S 6”