Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1974, Nos. 0496-0505 and 0514, in case of Commonwealth of Pennsylvania v. Sue B. Crafton.
James H. Joseph, and Joseph & Hershman, for appellant.
Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j.
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This is an appeal from the judgment of sentence of the Court of Common Pleas of Allegheny County, sitting without a jury, which found appellant guilty of theft by
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failure to make required disposition of funds received. See § 3927 of the new Crimes Code (18 Pa.C.S. § 3927). At trial appellant demurred and when the demurrer was overruled, rested her case without offering any evidence.
Appellant, Sue B. Crafton, operated a travel agency in Pittsburgh. Early in 1973, appellant was in contact with Ellen Milne (a co-defendant below, who was acquitted) to organize a trip to Las Vegas. Mrs. Milne would accept reservations and deposits from individuals for the trip. For this she received a small commission. The appellant was to arrange the trip which was to take place October 21 to 25, 1973. Mrs. Milne ultimately secured 252 participants (almost twice the number originally planned). "All but a few" paid and Milne turned approximately $56,000.00 over to appellant.
On her part, appellant, who was a travel retailer and did not package group tours herself, contacted a travel wholesaler, Fun Tyme Groups and Charters of New York, to make the arrangements. Fun Tyme agreed to put together the package at a cost of $50,800.00 and appellant ultimately paid a total deposit of $12,000.00 to Fun Tyme for the trip. Unknown to appellant, Fun Tyme did not make the reservations themselves but contacted another wholesaler, Carefree Travel, who it appears actually did make the arrangements. Appellant was to remit the balance due, some $39,000.00 to Fun Tyme 30 days before departure. Appellant did not do so but wrote that she would settle on October 10th when she returned from another trip. The events from October 10th until the 21st are confused. The notes of testimony indicate that appellant was quite concerned because she never knew the name of the airline that was to fly the group to Las Vegas nor was she able to confirm with the hotel that the group had reservations. It appears that even two days before the trip, appellant was still unaware of this information. A representative of Fun Tyme, one Pat Trozzo, testified that such reservations were made but he was unable to recall the details. Appellant did send Fun
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Tyme a check for $20,000.00 (of the $39,000.00 outstanding) but the check was drawn against insufficient funds. Mr. Trozzo had checked with his bank and knew of the unavailability of funds although the check was not formally dishonored until October 22, 1973. From the 18th to the 20th appellant frantically struggled to raise $24,000.00, the difference between her cash assets of $15,000.00 and her $39,000.00 balance due Fun Tyme. Many calls were made to Fun Tyme about payment, some from appellant's bank. Wire transfers, cash payments to an agent and Western Union telegraph payments were discussed. All attempts to raise the needed money failed and Fun Tyme cancelled the trip at the close of business on October 19th for nonpayment although it appears that the arrangements could still have been revived on Saturday, October 21st, if payment was forthcoming. From the evidence, two things are clear: 1) appellant was short $24,000.00 to pay the wholesaler on the date required although she had received payment in full from the participants. 2) appellant attempted to raise the money to pay Fun Tyme. After the cancellation, appellant circulated the story that the plane had crashed but gradually the truth emerged. One hundred fifty of the participants did receive refunds or were offered alternative trips. However, the ten complaining witnesses received neither and filed charges under ...