Com. v. Conti

• Decision Date: 22 September 1975
• Citation: 236 Pa.Super. 488,345 A.2d 238
• Parties: COMMONWEALTH of Pennsylvania v. John J. CONTI, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 238

345 A.2d 238

236 Pa.Super. 488

COMMONWEALTH of Pennsylvania v. John J. CONTI, Jr., Appellant.

Superior Court of Pennsylvania.

Sept. 22, 1975.

Donald H. Lipson, Allentown, for appellant.

George J. Joseph, Dist. Atty., James Knoll Gardner, Asst. Dist. Atty., Allentown, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

Appellant, John J. Conti, Jr., was tried before a judge sitting without a jury on November 23, 1971, and was found guilty of issuing a worthless check. Post-trial motions in arrest of judgment and for a new trial were denied on November 30, 1973, and sentence was imposed. On this appeal two issues are presented: whether the evidence was sufficient to support appellant's conviction, and if it was, whether the lower court erred in denying appellant's motion for mistrial when a witness for the Commonwealth stated that appellant had pleaded guilty at a preliminary hearing, and his later motion, when that same witness stated that appellant had made an offer to settle the case.

I

Two employees of a lumber supply company, Jean Moyer and Wendel Lehman, testified for the Commonwealth. Lehman's testimony was that in February, 1970, appellant met with him to discuss the purchase of a supply of lumber, and that he told appellant he would sell him no lumber until he had received payment for past purchases and until he had a check to cover the price of any new order. Apparently appellant agreed to this arrangement because Lehman went on to testify that when he questioned appellant about the check for the new order, appellant responded, 'If this check isn't any good, you can hang me.' Moyer's testimony was as follows: On February 19 or 20, 1970, appellant called the lumber yard and asked the price of his new order. She said it was $1,934.49. On February 20 appellant came to the lumber yard, gave her a check for that amount, and then gave her directions for delivering the lumber. At that time, she noted that the date on the check was February 20, 1970. She did not remember the exact day the lumber was delivered, but she felt certain it was after February 20 since she had had orders not to deliver any lumber to appellant until she received a check. On March 5, 1970, she deposited the check, but the bank rejected it because there were insufficient funds. She re-deposited the check, but it was again returned. Both Lehman and Moyer repeatedly denied that appellant had ever told them to hold the check.

Appellant testified on his own behalf, to the following effect. He explained that prior to February 4, 1970, he met with Lehman and an associate of Lehman's to discuss the purchase of enough lumber to build a house. Appellant agreed he was told he could not buy and more lumber unless he satisfied his debt for past purchases and unless he issued a check for the price of the new order. According to appellant, however, it was agreed that the lumber company would deliver the lumber and hold the check until the house reached a certain stage of completion, when funds due appellant would be released; it this arrangement proved satisfactory, it was to be repeated for the next house. On February 4, 1970, appellant went to the lumber yard and delivered a $200 check for past purchases and one for $1,934.49 for the new order. A few days later the lumber was delivered. On February 20, 1970, he called the lumber company and said to cash the first check, but in regard to the second, he said, 'Hold the second check, because if you deposit it now, there's not sufficient money, and that you could hang me with it.' The spokesman for the lumber yard said he would hold the check. Appellant explained that he never authorized the company to cash the check because there were never sufficient funds in the bank to cover it.

In determining the sufficiency of this evidence, we must regard it in the light most favorable to the Commonwealth, giving the Commonwealth the benefit of all reasonable inferences arising from it. Commonwealth v. Herman, 227 Pa.Super. 326, 323 A.2d 228 (1974); Commonwealth v. Minor, 227 Pa.Super. 343, 322 A.2d 717 (1974). So regarded, the evidence is sufficient to support appellant's conviction.

Section 854 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4854, provides in pertinent part:

Whoever, with intent to defraud, makes, draws, utters or delivers any check . . . upon any bank . . . knowing, at (that) time . . . that the maker or drawer has not sufficient funds in, or credit with, such bank . . . for the payment of such check, although no express representation is made in reference thereto . . . is guilty of a misdemeanor . . ..

Accordingly, in order to convict an individual of issuing a worthless check, the Commonwealth must prove that he (1) made, drew, uttered, or delivered a check, (2) with knowledge that there were insufficient funds, and (3) with intent to defraud. Commonwealth v. Ali, 438 Pa. 463, 265 A.2d 796 (1970); Commonwealth v. Bushkoff, 177 Pa.Super. 231, 110 A.2d 834 (1955). In addition, the cases have required the Commonwealth to prove that at the time the check was issued, something of value passed from the payee to the drawer or maker. See, e.g., Commonwealth v. Bonetti, 211 Pa.Super. 161, 235 A.2d 447 (1967).

It is appellant's contention that since he post-dated the check and told the lumber yard to hold the check because of insufficient funds, he lacked the requisite intent to defraud. In Commonwealth v. Massaro, 97 Pa.Super. 149, 151--52 (1929), this court stated:

By the terms of the act intent to defraud at the time of making or delivering the check is an essential element of the crime. This was a post-dated check. As such it differed from an ordinary check in that it carried on its face implied notice that there was no money presently on deposit available to meet it, with the implied assurance that there would be such funds on the day it became due. At most it amounted to a promise that on the day it became due the drawer would have in the bank a sufficient deposit to meet it . . .. When such a check is given in such circumstances the transaction contains none of the elements of intent to defraud . . .. The judgment is reversed . . ..

In Commonwealth v. Kelinson, 199 Pa.Super. 135, 184 A.2d 374 (1962), we affirmed the Massaro rule:

There must . . . (be) a false representation . . . a false representation of a present existing fact. A post-dated check is not a present promise; is not a false representation of a present existing fact that there are funds on deposit to pay the check. A post-dated check declares boldly on its face that it is nothing more than a promise to pay in the future on or after the date appearing on the face of the instrument.

The Commonwealth has failed to establish by the evidence, as a matter of law, the offenses for which (the) defendant stands convicted.

Id. at 143, 184 A.2d at 378.

Therefore, in the present case, if the trial judge had believed appellant's testimony, he would have had to find him not guilty, for the post-dating and the hold order would have precluded a finding of intent to defraud. It is, however, the duty of the trier of fact to determine the credibility of the witnesses. Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734 (1968), Cert. denied, 393 U.S. 1102, 89 S.Ct. 901, 21 L.Ed.2d 794 (1969). Here the trial judge obviously did not believe appellant's testimony. We must therefore look to the other evidence to see if a conviction was warranted.

According to Moyer, appellant made a check and delivered it to the lumber yard on February 20, 1970, the day it was dated, in order to obtain some lumber; and according to Lehman, when questioned about the check, appellant said, 'If this check isn't any good, you can hang me.' By his own testimony, appellant knew there were insufficient funds in the bank on February 20. Thus, it is clear that by selectively accepting testimony, the trial judge could find that appellant made and delivered a check, knowing there were insufficient funds, with intent to defraud the lumber yard by obtaining lumber without giving the required consideration. Further, when appellant delivered the check he received a promise that the lumber would be delivered to him. He therefore received something of value. See In re Ratony's Estate, 443 Pa. 454, 277 A.2d 791 (1971); Commonwealth v. Banonis, 30 Sch. 1 (1931); Uniform Commercial Code, Act of April 6, 1953, P.L. 3, § 1--201, 12A P.S. § 1--201(44)(d), eff. July 1, 1954, reenacted October 2, 1959, P.L. 1023, § 1, eff. January 1, 1960, amended August 24, 1963, P.L. 1213, § 1. Thus, the evidence was sufficient to support appellant's conviction.

II

On direct examination, the prosecutor directed Lehman's attention to the time of appellant's preliminary hearing. Defense counsel objected immediately. After argument, however, the trial judge allowed the prosecutor to continue his questioning, and he proceeded as follows:

District Attorney: I think you testified that you had a conversation with Mr. Conti (appellant) on the day that a hearing was held in Justice of the Peace Snyder's office, is that correct?

Lehman: Yes. Due to the fact . . ..

District Attorney: Now wait a minute. Excuse me a minute. Now, when was that conversation with Mr. Conti, before, during, or after the hearing?

Lehman: It was during the hearing and I'll tell you afterwards. During the hearing he pleaded guilty.

Defense Counsel: Your Honor, I object. I ask for a mistrial.

The Court: Sustained.

Defense Counsel: I ask for a mistrial, and I ask that the case be assigned to another judge.

The Court: The motion is refused.

Defense Counsel: The testimony, though, is stricken from the record do I understand.

The Court: It may be.

Defense Counsel: And my other requests are denied?

The Court: Yes.

In White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1...