Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 137, in case of Commonwealth of Pennsylvania v. Jerry Gold.
Leon W. Silverman, for appellant.
Deborah E. Glass, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Wright, P. J., would affirm the order below.
[ 220 Pa. Super. Page 182]
On July 7, 1970, defendant Gold, who operated a used car agency, was tried on a charge of cheating by false pretenses. The trial judge, sitting without a jury, found appellant guilty as charged and sentenced the defendant to three years probation plus payment of $1,000 to the use of the county plus costs. Subsequently, this appeal was filed.
The charge of cheating by false pretenses brought against defendant arose from his sale of a used automobile to the complainant, Mr. Eugene Woturski. Defendant testified that he was both an employee (salesman) and half-owner of this used car business. Complainant's testimony was that he had seen the automobile in question advertised in a newspaper as having 27,000 miles on it and that when defendant showed him the car, it actually had more than 33,000 miles on it. Complainant testified that after having purchased the car, he started having difficulty with it, whereupon he "took it home and looked it all over some more". As a result he noticed on the door of the automobile an "Atlantic" oil change sticker which indicated that in
[ 220 Pa. Super. Page 183]
fact the car had more than 70,000 miles on it. Although he, along with a friend, inspected this car at the time of original purchase, he did not at that time locate this sticker. At the time of trial, the Commonwealth conceded that the sticker was extremely difficult to read, it being described by the Assistant District Attorney as "totally useless" and "virtually blank."
The defendant purchased this automobile through the services of a man whose activity could be described as a free lance or independent purchasing agent, who in that capacity served other used car businesses as well. Through this agent, the defendant purchased the automobile in question from a Willis Volkswagen Company, in New Jersey. Willis Company had in turn acquired the automobile from its former owner, Mr. Arthur Lansing. Mr. Lansing testified that the car had between 70,000-75,000 miles on the odometer when he had traded it in to Willis Volkswagen Company. However, the Commonwealth introduced no testimony from Willis Company regarding the odometer reading at the time it sold the car to defendant's purchasing agent. Furthermore, there was no testimony that defendant turned back the odometer or that he knew that the odometer was set back.
To sustain the conviction of cheating by false pretenses, three elements must be present: (1) a false assertion of a fact; (2) obtaining something of value thereby; and (3) an intent to defraud : Commonwealth v. Matthews, 196 Pa. Superior Ct. 60, at page 64 (1961). In general, this crime contemplates an oral or written misrepresentation or other conduct, which is calculated and intended to deceive, which does actually deceive, and which is the means by which the perpetrator obtains the object of value from the other party. Commonwealth v. Prep, 186 Pa. Superior Ct. 442, 142 A.2d 460 (1958).
[ 220 Pa. Super. Page 184]
The evidence offered was insufficient to justify the findings and conclusions made in this case in regard to several important aspects. Much emphasis was placed on the oil change sticker which at best was very hard to decipher as evidenced by the fact that the complainant himself indicated by his testimony that he had to use a magnifying glass in order to read it. There was some testimony that the sticker was supposed to indicate that the car had more than 70,000 miles on it; however, the trial judge merely indicated that "there are some figures at the top that indicate more than 30,000 miles." This type of evidence would be of very little probative value from which to conclude that defendant had either knowledge of the excessive mileage or in any way had been involved in turning the odometer back to a lower figure. A used car purchaser, either private or commercial, should not be held to such a severe burden or duty of examination ...