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decided: September 22, 1975.


Appeal from judgment of sentence of Court of Common Pleas of Lehigh County, No. 1136 of 1971, in case of Commonwealth of Pennsylvania v. John J. Conti, Jr.


Donald H. Lipson, for appellant.

James Knoll Gardner, Assistant District Attorney, and George J. Joseph, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Jacobs and Price, JJ., dissent.

Author: Spaeth

[ 236 Pa. Super. Page 490]

Appellant, John J. Conti, Jr., was tried before a judge sitting without a jury on November 23, 1971, and was found guilty of issuing a worthless check. Post-trial motions in arrest of judgment and for a new trial were denied on November 30, 1973, and sentence was imposed. On this appeal two issues are presented: whether the evidence was sufficient to support appellant's conviction, and if it was, whether the lower court erred in denying appellant's motion for mistrial when a witness for the Commonwealth stated that appellant had pleaded guilty at a preliminary hearing, and his later motion, when that same witness stated that appellant had made an offer to settle the case.


Two employees of a lumber supply company, Jean Moyer and Wendel Lehman, testified for the Commonwealth. Lehman's testimony was that in February, 1970, appellant met with him to discuss the purchase of a supply of lumber, and that he told appellant he would sell him no lumber until he had received payment for past purchases and until he had a check to cover the price of any new order. Apparently appellant agreed to this arrangement because Lehman went on to testify that when he questioned appellant about the check for the new order, appellant responded, "If this check isn't any good, you can hang me." Moyer's testimony was as follows: On February 19 or 20, 1970, appellant called the lumber yard and asked the price of his new order. She said it was $1,934.49. On February 20 appellant came

[ 236 Pa. Super. Page 491]

    to the lumber yard, gave her a check for that amount, and then gave her directions for delivering the lumber. At that time, she noted that the date on the check was February 20, 1970. She did not remember the exact day the lumber was delivered, but she felt certain it was after February 20 since she had had orders not to deliver any lumber to appellant until she received a check. On March 5, 1970, she deposited the check, but the bank rejected it because there were insufficient funds. She re-deposited the check, but it was again returned. Both Lehman and Moyer repeatedly denied that appellant had ever told them to hold the check.

Appellant testified on his own behalf, to the following effect. He explained that prior to February 4, 1970, he met with Lehman and an associate of Lehman's to discuss the purchase of enough lumber to build a house. Appellant agreed he was told he could not buy any more lumber unless he satisfied his debt for past purchases and unless he issued a check for the price of the new order. According to appellant, however, it was agreed that the lumber company would deliver the lumber and hold the check until the house reached a certain stage of completion, when funds due appellant would be released; if this arrangement proved satisfactory, it was to be repeated for the next house. On February 4, 1970, appellant went to the lumber yard and delivered a $200 check for past purchases and one for $1,934.49 for the new order. A few days later the lumber was delivered. On February 20, 1970, he called the lumber company and said to cash the first check, but in regard to the second, he said, "Hold the second check, because if you deposit it now, there's not sufficient money, and that you could hang me with it." The spokesman for the lumber yard said he would hold the check. Appellant explained that he never authorized the company to cash the check because there were never sufficient funds in the bank to cover it.

[ 236 Pa. Super. Page 492]

In determining the sufficiency of this evidence, we must regard it in the light most favorable to the Commonwealth, giving the Commonwealth the benefit of all reasonable inferences arising from it. Commonwealth v. Herman, 227 Pa. Superior Ct. 326, 323 A.2d 228 (1974); Commonwealth v. Minor, 227 Pa. Superior Ct. 343, 322 A.2d 717 (1974). So regarded, the evidence is sufficient to support appellant's conviction.

Section 854 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4854, provides in pertinent part: "Whoever, with intent to defraud, makes, draws, utters or delivers any check . . . upon any bank, . . . knowing, at [that] time . . . that the maker or drawer has not sufficient funds in, or credit with, such bank, . . . for the payment of such check, although no express representation is made in reference thereto, . . . is guilty of a misdemeanor, . . . ." Accordingly, in order to convict an individual of issuing a worthless check, the Commonwealth must prove that he (1) made, drew, uttered, or delivered a check, (2) with knowledge that there were insufficient funds, and (3) with intent to defraud. Commonwealth v. Ali, 438 Pa. 463, 265 A.2d 796 (1970); Commonwealth v. Bushkoff, 177 Pa. Superior Ct. 231, 110 A.2d 834 (1955). In addition, the cases have required the Commonwealth to prove that at the time the check was issued, something of value passed from the payee to the drawer or maker. See, e.g., Commonwealth v. Bonetti, 211 Pa. Superior Ct. 161, 235 A.2d 447 (1967).

It is appellant's contention that since he post-dated the check and told the lumber yard to hold the check because of insufficient funds, he lacked the requisite intent to defraud. In Commonwealth v. Massaro, 97 Pa. Superior Ct. 149, 151-52 (1929), this court stated: "By the terms of the act intent to defraud at the time of making or delivering the check is an essential element of the crime. This was a post-dated check. As such it differed from an ordinary check in that it carried on its

[ 236 Pa. Super. Page 493]

    face implied notice that there was no money presently on deposit available to meet it, with the implied assurance that there would be such funds on the day it became due. At most it amounted to a promise that on the day it became due the drawer would have in the bank a sufficient deposit to meet it. . . . When such a check is given in such circumstances the transaction contains none of the elements of intent to defraud. . . . The judgment is reversed. . . ." In Commonwealth v. Kelinson, 199 Pa. Superior Ct. 135, 184 A.2d 374 (1962), we affirmed the Massaro rule: "There must . . . [be] a false representation . . . a false representation of a present existing fact. A post-dated check is not a present promise; is not a false representation of a present existing fact that there are ...

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