Appeal from judgment of sentence of Court of Common Pleas of Northampton County, Jan. T., 1973, No. 281, in case of Commonwealth of Pennsylvania v. William Harvey Mitchell.
Margaret H. Poswistilo, Assistant Public Defender, for appellant.
Salvador J. Salazar, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Cercone, J., concurs in the result.
[ 234 Pa. Super. Page 24]
On June 26, 1973, appellant was convicted by a jury of cheating by false pretenses in violation of the Act of June 24, 1939, P.L. 872, § 836, as amended, 18 P.S. § 4836. On this appeal he contends that the evidence was insufficient, that the charge to the jury was unfair, and that there was a fatal variance between the allegations of the indictment and the proof.
On October 31, 1972, Pennsylvania State Trooper James J. Margle was on duty as an undercover narcotics agent in Easton. He was a passenger in an automobile when he observed appellant and motioned to him. When appellant approached the automobile the driver asked him, "Are you holding?" It was testified that "holding" meant, "Do you have any drugs?" Appellant motioned to the driver to drive to the other side of the traffic circle. There the trooper asked appellant, "Do you have any skag?" It was testified that "skag" meant "heroin." Appellant pointed to an alleyway and said, "Park there." The driver complied, and in a few minutes appellant arrived and asked, "How many do you want to do?" It was testified that this meant, "How many bags of heroin do you want to buy?" The trooper testified that he answered, "I said I wanted to do two from him, two bags of heroin." Appellant did not reply but took out of his pocket and handed the trooper two small tin foil packets, for which the trooper gave appellant twenty dollars. When subsequent analysis revealed that the packets contained quinine, appellant was prosecuted for cheating by false pretenses.
Appellant's first contention is that the evidence was insufficient.
[ 234 Pa. Super. Page 25]
The Act of June 24, 1939, supra, 18 P.S. § 4836, provides that: "Whoever, by any false pretense . . . obtains from any other person any . . . money . . . with intent to cheat and defraud any person of the same . . . is guilty of a felony . . .*fn1" In Commonwealth v. Bomersbach, 224 Pa. Superior Ct. 40, 42, 302 A.2d 472, 473 (1973), citing Commonwealth v. Silia, 194 Pa. Superior Ct. 291, 166 A.2d 73 (1960), it is stated:
"In order to sustain a verdict on an indictment charging false pretenses, the Commonwealth must show: (1) a misrepresentation of an existing fact;
(2) reliance by the victim on the false ...