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COMMONWEALTH v. ALI (05/27/70)

decided: May 27, 1970.

COMMONWEALTH
v.
ALI, APPELLANT



Appeal from order of Superior Court, No. 48, April T., 1969, affirming judgment of Court of Quarter Sessions of Allegheny County, Dec. T., 1967, No. 272, in case of Commonwealth v. Arab Ali.

COUNSEL

David B. Washington, for appellant.

John Regis McGinley, Jr., Assistant District Attorney, with him Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell did not participate in the decision of this case.

Author: Pomeroy

[ 438 Pa. Page 465]

At a non-jury trial, appellant was convicted of having issued a worthless check in violation of § 854 of The Penal Code of June 24, 1939, P. L. 872, 18 P.S. § 4854. His motions in arrest of judgment and for a new trial were denied and he was sentenced to imprisonment for a term of 60 days to 23 months. On appeal to the Superior Court, his judgment of sentence was affirmed in a per curiam decision to which Judge Spaulding filed a dissenting opinion in which Judge Hoffman joined. 214 Pa. Superior Ct. 512, 257 A.2d 370 (1969). We granted allocatur.

The worthless check upon which the prosecution was based was issued to the Totem Lumber Company in the amount of $349.95. The basic facts surrounding presentation of the check were not disputed. They are that on September 9, 1966, appellant signed a blank check and gave it to his employee, one Garmusa; that Mr. Garmusa took the check to the Totem Lumber Company for the purpose of purchasing supplies for appellant; that at the Lumber Company, the amount of the check was filled in by or at the direction of Garmusa, and accepted by the Lumber Company for materials delivered to Garmusa; and that the materials delivered to Garmusa were itemized on a sales slip, which showed a total cost of $349.95. The check was twice returned by the drawee bank for insufficient funds and was never paid.

Appellant testified that on the preceding day, September 8, he had ordered paint, lumber and nails by telephone from one Nick Grande, an employee of Totem Lumber Company; that Grande told him that the total cost of the materials would be about $80 but that as

[ 438 Pa. Page 466]

Grande could not determine the exact amount, appellant could send a signed, blank check with the man who would pick up the materials, and the check could be completed at the time the materials were called for; and that he had signed a blank check and given it to Garmusa for this purpose. Appellant denied ordering or receiving any materials other than paint, lumber and nails costing about $80. Called by the Commonwealth in rebuttal, Grande denied requesting appellant to send a blank check, and stated that he could not recall whether appellant had personally placed an order over the telephone. Garmusa did not testify.

Upon this evidence, the trial court found that all elements of the crime had been established by the Commonwealth and found appellant guilty. We do not agree.

Under § 854 of The Penal Code the three essential elements of the crime of issuing a worthless check are: (1) making, drawing, uttering or delivering a check; (2) intent to defraud; and (3) knowledge at the time of making the check that the maker or drawer has insufficient funds for the payment thereof in, or credit with, the bank or other entity upon which the check is drawn. Under the second paragraph of § 854, the making, drawing, uttering or delivering of a check, payment of which is refused by the drawee,*fn1 "shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with" the drawee, unless the ...


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