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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 ...

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