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decided: March 20, 1969.


Appeal from judgment of sentence of Criminal Court of Fayette County, No. 474 of 1966, in case of Commonwealth of Pennsylvania v. Etta Fullwood.


Paul A. Simmons, with him Tempest & Simmons, for appellant.

Joseph E. Kovach, District Attorney, with him A. J. Kuzdenyi, First Assistant District Attorney, for Commonwealth, appellee, submitted a brief.

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

Author: Spaulding

[ 214 Pa. Super. Page 137]

On March 22, 1967, appellant Etta Fullwood was convicted by a jury on indictments charging embezzlement by a public officer*fn1 and fraudulent conversion of property.*fn2 This is an appeal from the dismissal of appellant's motions in arrest of judgment and for a new trial.

Appellant's convictions result from a shortage in the accounts of the Treasurer's Office of Fayette County in the amount of approximately $67,000. Appellant, employed in the Treasurer's Office, was directly in control of the Municipal Tax Fund bank account. This account consisted of delinquent school and municipal taxes collected by the Fayette County Tax Claim Bureau. On each business day, an employe of the Tax Claim Bureau delivered the receipts for the prior day to the Treasurer's Office. Appellant received these funds and distributed the portion of the funds due Fayette County to another employe of the Treasurer's Office. The balance of the money received from the Tax Claim Bureau, consisting only of money to be deposited in the Municipal Tax Fund account, was retained in the custody of appellant. It was her duty to prepare daily deposit slips of the funds to be deposited. Beginning about the middle of August 1966, she was required personally to deposit the funds in the bank. The shortage resulted from the failure to deposit 21 days' receipts in the Municipal Tax Fund bank account between June 6, 1966 and September 30, 1966.

Of the 21 missing deposits, 7 were withheld from funds delivered to the appellant during June, July and August 1966. The Commonwealth's evidence showed that during this period the appellant had the exclusive

[ 214 Pa. Super. Page 138]

    responsibility of preparing the funds for deposit. Although appellant did not, at this time, personally deliver the funds to the bank for deposit, the employe who made the deposits testified that on every occasion when he had been given funds by the appellant the deposits were made and the deposit slips returned to the appellant. This testimony, if believed, was sufficient to establish that the missing deposits were withheld by the appellant. In support of this conclusion, the Commonwealth also showed that during this period daily receipts were retained in the custody of appellant on four occasions covering periods up to 2 months before being deposited. In each instance, the deposit slip presented to the bank and the carbon copy of the slip which was kept in the office by appellant showed alterations in the date and the amount deposited. Moreover, in each instance the carbon slip prepared and retained by appellant was altered in a manner inconsistent with the alterations on the original deposit slip and did not correctly reflect the actual date of deposit.

The remaining 14 daily receipts were funds received by the Treasurer's Office in September 1966. These funds were not deposited in the bank account during September and as a result the Municipal Tax Fund account was overdrawn. Appellant was directed by the County Treasurer to bring her deposits up to date and on October 1, a Saturday, she came to the office for this purpose. On Monday, October 3, appellant left the office with these funds to deposit them in the bank. It is her claim that immediately after she left the courthouse where she worked she was accosted by a male assailant who stole the money she was carrying. The Commonwealth discredited this version of the events by showing the unlikelihood of a robbery when there was no established time or manner

[ 214 Pa. Super. Page 139]

    for making bank deposits, that the supposed robber allegedly was lying in wait for appellant while wearing a woman's stocking over his face in plain view during the noon lunch hour, and that immediately after the alleged robbery appellant walked past a uniformed deputy sheriff known to her, without reporting the robbery. If appellant's version of the "robbery" is not ...

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