Appeal from judgment of sentence of Court of Common Pleas of Butler County, June T., 1968, No. 148, in case of Commonwealth of Pennsylvania v. Charles W. Wright.
George W. Shields, for appellant.
John H. Brydon, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Wright, P. J., would affirm on the opinion of President Judge Kiester. Watkins, J., dissents.
[ 220 Pa. Super. Page 13]
Appellant Charles W. Wright was convicted by a jury on June 20, 1968, of cheating by fraudulent pretenses in violation of the Act of June 24, 1939, P. L. 872, § 836, as amended, 18 P.S. § 4836.*fn1 His motion in arrest of judgment was denied on May 26, 1970, by the Court of Common Pleas of Butler County. This appeal followed.
In October 1967, appellant entered into an oral agreement with the prosecutor, James Irvine, owner of the Irvine Tire Company in Zelienople, Pennsylvania, whereby Irvine would supply automobile tires to appellant for retail sale. Pursuant to that agreement, appellant picked up six truckloads of tires from Irvine valued at approximately $4400. Although appellant was billed on the tenth of each subsequent month, no payments were made. Irvine's efforts to communicate with appellant and to locate him at his Sharpsburg,
[ 220 Pa. Super. Page 14]
Pennsylvania address, were unsuccessful. On March 7, 1968, Irvine filed a criminal complaint alleging that appellant's actions constituted the crime of cheating by fraudulent pretenses. The complaint alleged that appellant had falsely represented himself as the owner of an E. & W. Warehouse Company and falsely represented that this enterprise was located at the Sharpsburg address.
To bring this case within the provisions of the amended Act, three separate elements must be found to coexist: (1) a false representation of an existing fact, (2) obtaining property or something of value thereby and (3) an intent to defraud. Commonwealth v. Conners, 201 Pa. Superior Ct. 500, 193 A.2d 682 (1963); Commonwealth v. Matthews, 196 Pa. Superior Ct. 60, 173 A.2d 772 (1961); Commonwealth v. Doria, 193 Pa. Superior Ct. 206, 163 A.2d 918 (1960). Our question is whether the evidence, viewed in the light most favorable to the Commonwealth was sufficient to establish beyond a reasonable doubt that the appellant made a false representation of an existing fact with the intent to defraud.
Although the evidence as to appellant's business dealings was inconclusive, the following facts were not in dispute: Appellant told Irvine that he was the owner of the E. & W. Warehouse Company, and that the company's business address was 813 Clay Street in Sharpsburg. Irvine mailed all bills and correspondence to that address. There was no indication that these statements were not received by appellant. Despite numerous efforts over a period of five months, Irvine did not succeed in getting any response from appellant, and finally went to Sharpsburg himself to locate appellant and secure payment. A week long search for 813 Clay Street was unsuccessful. Irvine found only a vacant garage at 815 Clay Street which hearsay testimony (admitted
[ 220 Pa. Super. Page 15]
without objection) indicated was at one time a part of ...