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COMMONWEALTH v. DORIA (09/16/60)

September 16, 1960

COMMONWEALTH
v.
DORIA, APPELLANT.



Appeals, Nos. 198 and 199, Oct. T., 1960, from judgment of Court of Quarter Sessions of Philadelphia County, Feb. T., 1959, Nos. 786 and 787, in case of Commonwealth of Pennsylvania v. Anthony Doria. Judgment affirmed.

COUNSEL

Sara Duffy, for appellant. Domenick Vitullo, Assistant District Attorney, with him Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Watkins

[ 193 Pa. Super. Page 208]

OPINION BY WATKINS, J.

Anthony N. Doria was tried in the Court of Quarter Sessions of Philadelphia County before Judge CHUDOFF, sitting without a jury, on charges of false pretense and fraudulent conversion. He was convicted on both counts. The court below refused the defendant's motions for arrest of judgment and for a new trial. He was sentenced on the false pretense charge to pay a fine of $150 and costs but on failure to make the required payment on or before August 6, 1960, to undergo imprisonment in the Philadelphia County prison for a term of not less than two months nor more than twenty-three months. A similar sentence was imposed for fraudulent conversion. His appeal to this Court followed.

He contends first, the judgment should be arrested and he should be discharged as the evidence was insufficient to sustain the convictions; and second, that trial errors entitled him to a new trial.

In considering the motion in arrest of judgment, the court must ignore the evidence of the defendant and his witnesses which the judge, sitting as a jury, had the privilege of rejecting and must accept as correct all the evidence which supports the verdict and must draw from the evidence such reasonable inferences as will support the verdict. Com. v. Wright, 383 Pa. 532, 119 A.2d 492 (1956); Com. v. Ornato, 191 Pa. Superior Ct. 581, 159 A.2d 223 (1960).

Doria was convicted of violation of Section 836, the Act of June 24, 1939, P.L. 872, as amended, 18 PS ยง 4836, which provides as follows: "Whoever, by any false pretense, obtains the signature of any person to

[ 193 Pa. Super. Page 209]

    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 interested in any person, by false pretense, knowingly and with intent to defraud, procures, obtains, or aids, assists, or abets in obtaining from any other person, 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, ..."

To bring any case within the provisions of the above section there must be found to co-exist three separate elements: A false pretense, as a false assertion of existing fact; (2) obtaining property or something of value thereby; (3) an intent to defraud. Com. v. Hancock, 177 Pa. Superior Ct. 585, 112 A.2d 407 (1955).

There was evidence to support a finding that Doria was guilty of cheating by false pretense. Doria on August 3, 1958, went to Mr. Yassky's place of business and represented to him that he had purchased a property for One Hundred Ten Thousand ($110,000) Dollars and had resold it for One Hundred Twenty-five Thousand ($125,000) Dollars. However, Doria did not specify any particular property because, as stated to Mr. Yassky, he wanted it to be kept a secret until it was closed. However, Mr. Doria stated that in order to complete the purchase of the property he was short Five Thousand ($5,000) Dollars and in turn offered Mr. Yassky a partnership in the venture should he supply the funds. ...


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