Appeals from judgment of Court of Quarter Sessions of Philadelphia County, March T., 1965, Nos. 135, 136, and 137, in case of Commonwealth of Pennsylvania v. Carmen Bonetti et ux.
Edward B. Bergman, with him Solo, Abrams, Bergman, Trommer & Padova, for appellant.
James D. Crawford, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 211 Pa. Super. Page 162]
Appellant Carmen Bonetti was convicted in a non-jury trial presided over by Hon. Thomas M. Reed, Judge, of violating Section 854 of The Penal Code of June 24, 1939, P. L. 872, 18 P.S. § 4854, making it a misdemeanor to make, draw, utter, or deliver worthless checks and drafts. His motions in arrest of judgment, or in the alternative a new trial, having been denied and judgment of sentence imposed, this appeal followed.
The evidence showed that on June 12, 1964 Richard E. Weisz, an operator and owner of a check cashing agency in the City of Philadelphia, cashed three checks on which the appellant was payee and endorser and paid him the full amounts thereof less a one per cent cashing charge. These checks were those of the Troon
[ 211 Pa. Super. Page 163]
Corporation which is owned by appellant, signed in its behalf by DeMaris Bonetti,*fn1 wife of appellant, and drawn on the Audubon National Bank of Audubon, New Jersey. After the prompt deposit of the checks by Mr. Weisz in his bank they were returned to him by the Audubon bank for the reason that there were insufficient funds of the Troon Corporation on deposit in that institution with which to pay the checks. Thereafter Mr. Weisz communicated with the appellant and was instructed by him to redeposit the checks "that they would be all right". They were redeposited and again returned "Insufficient Funds". Thereafter, failing to reach appellant by phone, he was instructed by DeMaris Bonetti to redeposit them again. This was done but the checks were again returned with the bank's notation, "Account Closed". Thereafter notice by registered mail was given to appellant of the fact that the checks had been dishonored. Payment of the amount due has never been made to the holder by appellant or his corporation.
Two issues are raised in this appeal. The first concerns the sufficiency of the evidence to prove there were not sufficient funds in the bank and the second relates to the sufficiency of the evidence to prove that the appellant had an intent to defraud. Appellant contends that the statutory notice and presumption arising therefrom provided for in Section 854, supra, does not apply to an endorser, but only to the maker of the check;*fn2 and that in the absence of testimony from the
[ 211 Pa. Super. Page 164]
bank as to its records, any notation on the check of insufficient funds on deposit or account closed, is hearsay.
Three elements must be proved to constitute this crime. There must be a false pretense, as a false assertion of an existing fact. This, of course, relates to the fact that there is sufficient funds on deposit to pay the checks drawn on them. Second, there must be the obtaining of property or something of value thereby; and lastly, there must be an ...