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COMMONWEALTH v. DUNN (06/13/68)

decided: June 13, 1968.

COMMONWEALTH
v.
DUNN, APPELLANT



Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery and Court of Quarter Sessions of the Peace of Bucks County, Jan. T., 1965, No. 8, in case of Commonwealth of Pennsylvania v. Joseph V. Cygan et al.

COUNSEL

William J. Moran, III, with him Hillegass & Moran, for appellant.

John J. Collins, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 212 Pa. Super. Page 385]

Jonathan D. Dunn, a practicing attorney in Bucks County since 1957, was convicted by a jury in Bucks County of the crime of fraudulent conversion. His motions in arrest of judgment and for a new trial were refused by the court below and sentence consisting of a fine and probation was imposed. He appeals from that sentence. We affirm.

In this case there is very little dispute over the facts and they may be stated as follows: Appellant and one Joseph V. Cygan were partners in the practice of law in Doylestown, Bucks County. The law firm maintained two checking accounts. One was designated an escrow account and the other an attorneys' account.

[ 212 Pa. Super. Page 386]

On April 29, 1964 Lyman E. Snyder, Jr. and Woodrow E. Snyder gave a power-of-attorney to the appellant and Joseph V. Cygan, authorizing them, inter alia, to collect the proceeds of the condemnation of certain real property of theirs located in Bucks County. On or about April 30th Cygan and the appellant received a check payable to the Snyders in the amount of $3,139.99. This check was endorsed by Cygan and the appellant and deposited on May 1, 1964 by the appellant in the escrow account of the firm in the Doylestown National Bank and Trust Company. On the day that the check was deposited, Cygan and the appellant signed two checks on the escrow account. The first was in the amount of $569.16 which appellant used to purchase two certified checks which he presented to an agent of United States Internal Revenue Service in payment of his own delinquent taxes. The second check was in the amount of $750.00 which the appellant cashed. From the proceeds of that check $500.00 was paid to Cygan, $150.00 was kept by the appellant, and $100.00 was put into the petty cash account of the firm. During the next several days many other checks were drawn on the account by Cygan and the appellant.*fn1 Some were used on behalf of clients of the appellant other than the Snyders and some were used by the appellant for his personal purposes, including several that were cashed by the appellant, one given to his former wife and another paid to his present wife. When the Snyder check was deposited on May 1st there was a balance in the account of $196.27. On May 12, 1964 the balance in the account was $.76. Between May 1st and May 12, 1964 two other deposits totaling $525.00 were made. On April 7, 1964 a statement of the account had been sent to Cygan and the appellant

[ 212 Pa. Super. Page 387]

    showing a balance in the account of $814.11. The appellant was aware of this bank statement. Upon request, a second statement was sent to them by the bank on May 6, 1964. Having received no money from Cygan or the appellant, the Snyders signed a criminal complaint on November 6, 1964.

Fraudulent conversion is defined by section 834 of The Penal Code of June 24, 1939, P. L. 872, 18 P.S. ยง 4834, as follows: "Whoever, having received or having possession, in any capacity or by any means or manner, of any money or property, of any kind whatsoever, of or belonging to any other person, or which any other person is entitled to receive and have, fraudulently withholds, converts, or applies the same, or any part thereof, or the proceeds or any part of the proceeds, derived from the sale or other disposition thereof, to and for his own use and benefit, or to and for the use and benefit of any other person, is guilty of a felony. . . ."

Appellant questions the sufficiency of the evidence to convict him of fraudulent conversion. The test of the sufficiency of the evidence, irrespective of whether it is direct or circumstantial, is whether accepting as true all of the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Whiting, 409 Pa. 492, 187 A.2d 563 (1963). We have no difficulty in finding that the evidence in this case was sufficient. Appellant deposited the Snyders' check in the escrow account, he was aware of the bank statement of April 6th and it is a fair inference that he knew that ...


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