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decided: November 26, 1975.



Defender Assn. of Philadelphia, Benjamin Lerner, Defender, Leonard N. Sosnov, Asst. Defender, John W. Packel, Chief, Appeals Div., Philadelphia for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah Glass, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, O'Brien and Roberts, JJ., concur in the result. Pomeroy, J., dissents.

Author: Nix

[ 465 Pa. Page 216]


Appellant, Betty Horton, a mother*fn1 and welfare recipient, was convicted in the Municipal Court of Philadelphia of passing a worthless check under the Act of June 24, 1939, P.L. 872, § 854, as amended, 1971, December 1, P.L. 587, No. 154, § 1, 18 P.S. 4854 (Supp.1972-73).*fn2 After the imposition of a sentence of one year probation*fn3 the cause was appealed to the Court of Common Pleas of Philadelphia by means of a writ of certiorari*fn4 resulting in an affirmance of the Municipal Court ruling. The Superior Court affirmed without opinion and we granted allocatur. We now reverse the judgment and discharge the appellant.

On April 7, 1972, Mrs. Horton entered a check cashing agency owned by Mr. Joseph Gross and presented for payment a check in the amount of $265.00. The instrument was a printed check of the Farragut Hall Corporation, signed by one "Q. V. Clark", drawn on the First National Bank of Philadelphia and made payable to the appellant. When Mr. Gross presented the check for payment to his bank it was dishonored. It was determined that the First National Bank had been defunct for fifteen years and that the Farragut Hall Corporation was non-existent. Mrs. Horton had previously registered with the check cashing agency and they were in possession of her address and telephone number. Mr. Gross, after unsuccessfully attempting to contact appellant, sent a registered letter demanding payment. A return receipt

[ 465 Pa. Page 217]

    was received but payment was not made. After a demurrer to the Commonwealth's evidence was denied the defense rested and the verdict of guilt entered.

The issue raised is the sufficiency of the evidence to sustain the verdict of guilt. Section 854*fn5 defining the instant offense requires three elements to be established. There must be (1) a making, drawing or delivering of a check with, (2) intent to defraud, (3) knowing at the time that the maker or drawer has not sufficient funds in, or credit with the depository for the payment of such a check. Commonwealth v. Ali, 438 Pa. 463, 265 A.2d 796 (1970). The appellant concedes that the record fully supports a finding that the Commonwealth established the first element but asserts that there is no basis for concluding that the second and third elements have been proven. In response, the Commonwealth argues that the second and third elements were established by proof that appellant failed to make good on the obligation, that she refused to respond to Mr. Gross' attempts to communicate with her and that the defense failed to supply any explanation why Mrs. Horton should have been obtaining payment on a $265.00 check from a non-existent corporation. However, the record also establishes that the check appeared to be regular on its face, that Mrs. Horton was known to the manager of the check cashing agency to whom she tendered the check for payment, that she was aware that the agency was in possession of her home address and phone number and that there was no attempt on Mrs. Horton's

[ 465 Pa. Page 218]

    part to conceal her true identity when she offered the instrument for payment.

First, we reject the Commonwealth's suggestion that an inference of guilt can be drawn from Mrs. Horton's failure to explain her possession of this check. To rule otherwise would permit the prosecution to be relieved of its obligation to prove its case, unaided by the defendant. Compare, Commonwealth v. Owens, 441 Pa. 318, 325-326, 271 A.2d 230, 233-234 (1970).*fn6 Further, we also find unacceptable the Commonwealth's intimation that the possession by a person in appellant's circumstances of a check purportedly issued by a defunct corporation supports the requisite guilty knowledge. Experience teaches that all too frequently it is the poorer and less trained citizen within our society who is victimized by bogus schemes in which non-existent or defunct corporations are used as ploys. Nor can we agree that an inference of guilt is justified because of appellant's reluctance to respond to Mr. Gross' attempts to communicate with her or her failure to satisfy the obligation. After learning of the dishonor, Mrs. Horton's actions

[ 465 Pa. Page 219]

    might well have been occasioned by her inability to repay the money due. Absent evidence to establish the ability to meet the obligation an inference of guilt is totally unwarranted.*fn7 Thus, after assessing all of the evidence, it is apparent that the Commonwealth was unable to present sufficient direct evidence either of appellant's intent to defraud or knowledge of the insufficient funds to overcome the presumption of innocence.

The Court of Common Pleas, although implicitly acknowledging the insufficiency of the direct evidence to establish the second and third elements of the offense, relied upon the statutory inference to sustain the action of the Municipal Court.*fn8 The second paragraph of Section 854 provides in pertinent part:

"In any prosecution under this section, the making, drawing, uttering or delivering of a check, . . ., payment of which is refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank . . . unless such maker or drawer shall have paid the drawee thereof the amount due thereon . . ., within ten (10) days after receiving notice." (Emphasis added).

Appellant argues first that under the language of the section, the statutory inference has no applicability where the prosecution is being brought against a negotiator of an instrument who was not a maker or a drawer. Thus it is urged that this statutory scheme of proof

[ 465 Pa. Page 220]

    was not properly available to the prosecution in the instant cause where appellant was alleged to have been the payee.*fn9

While we do not accept appellant's view that the language of the provision is free from all ambiguity*fn10 we do conclude after resorting to the rules of statutory construction that the legislature did in fact intend to limit the inference to a maker or drawer of an instrument.*fn11

[ 465 Pa. Page 221]

First, the rule requiring strict construction of penal provisions*fn12 would argue against the broad interpretation urged by the Commonwealth. Secondly, the Commonwealth's interpretation would fail to give any significance to the ten day exception clause which refers specifically, only to a maker or a drawer.*fn13 Accepting the Commonwealth's interpretation and observing the rule of construction that exceptions shall be construed to exclude all others*fn14 would lead to the absurd result*fn15 that the inference would not apply to a drawer or maker who paid within ten days but would continue to apply to a payee negotiator in spite of repayment within the same period. There is no rational basis which would support such a distinction in treatment between a maker or drawer and a payee. To the contrary, it is quite understandable why the legislature would have intended to exclude a payee negotiator from the purview of this paragraph of the section.*fn16

Where a standardized inference is to be employed, the inference to be drawn may not be tenuously connected to the facts that must be proven. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380

[ 465 Pa. Page 222]

(1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

"The value of such a standardized inference is that it permits the fact-finder to rely upon precedent to find the relationship between the proved facts and the fact to be inferred rather than to rely solely on their collective experience. In evaluating the need for and propriety of a standardized inference we should weigh two distinct factors: (1) whether, in light of present day experience, the proven facts bear sufficient relationship to the fact to be inferred; and (2) whether the rational connection inherent in the inference is of such a nature that standardization is desirable." Commonwealth v. Turner, 456 Pa. 116, 120-121, 317 A.2d 298, 300 (1974). (Footnote omitted).

Without considering whether either or both of these inferences could pass constitutional muster,*fn17 it is obvious

[ 465 Pa. Page 223]

    that in the instance of a drawer or maker, the nexus to the inference to be inferred is infinitely stronger than when it is applied to a payee negotiator. While it may be valid to assume that a maker of a check would be aware of the status of his account at the time of the check's issuance, it is more difficult to find a basis for contending that a payee would necessarily possess this knowledge either at the time of the receipt of the instrument or at the time that it is tendered for payment.

The lower court attempted to justify the application of the inference to a payee because of the assumed difficulty in proving the intent of the payee negotiator. See also Commonwealth v. McBray, 86 Montg.Co.L.R. 238.*fn18 The difficulty pinpointed in this argument is the very reason that a legislature would in fact distinguish between the maker or drawer and the payee. The legitimacy of the presumption is not to be determined by the difficulty in proof but rather by the rational connection between the proven facts and those facts sought to be inferred. If the problem is as difficult as suggested by the court below, it would then be the responsibility of the legislature to promulgate new legislation.

However, since the legislature has expressly required knowledge and a state of mind, a conviction cannot be

[ 465 Pa. Page 224]

    had unless these elements have been established beyond a reasonable doubt. Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). It is obviously specious to argue as the learned court below suggested, that an essential element or elements may be ignored by the use of a procedural device.

We therefore find that it was the intention of the legislature to restrict the statutory scheme of proof to prosecutions of drawers or makers where there is an obvious reason to conclude that they possessed the requisite knowledge and intent. Since we have determined that the direct evidence was insufficient to prove two of the three elements of the crime and further, that the prosecution could not properly rely upon the statutory inference to withstand the demurrer, the judgment of sentence must be reversed and the appellant discharged.

It is so ordered.

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