Appeals from the Judgments of Sentence of the Court of Common Pleas, Criminal, County of Franklin, at No. 427 of 1966 dated January 29, 1975 and November 12, 1975. No. 3 March Term 1977 No. 26 March Term, 1976.
Blake E. Martin, Chambersburg, for appellant.
Edwin D. Strite, Jr., Asst. Dist. Atty., Chambersburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 241 Pa. Super. Page 144]
In 1966 appellant, Herman F. Stouffer, was charged with ten counts of uttering forged instruments.*fn1 He was tried by a jury and found guilty on all ten counts. Subsequently on a detainer, appellant was tried in Maryland on related charges, found guilty, sentenced, and served three years at the State Correctional Institution at Baltimore, Maryland. Upon return to Pennsylvania he was sentenced as to the ten counts of uttering forged instruments. Judgment of sentence was appealed to this court and affirmed per curiam with Judges Hoffman, Spaulding and Spaeth dissenting. See Commonwealth v. Stouffer, 225 Pa. Super. 30, 307 A.2d 415 (1973). Appellant then petitioned our Supreme Court for allocatur and was denied. Having exhausted his state remedies appellant sought a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. That court found that appellant's trial had been prejudiced by pretrial publicity and ordered a new trial. After several continuances a trial without jury was held on
[ 241 Pa. Super. Page 145]
June 14, 1974. At that trial the testimony of appellant's first trial was introduced. Appellant did not dispute the facts as set forth at the first trial and sought in the second trial only to introduce a new legal theory. Based on the testimony of the first trial and the testimony offered by appellant at the second trial, the court found appellant guilty of all ten counts of uttering forged instruments. Post-verdict motions were argued and denied, and on January 29, 1975 appellant was sentenced on eight of the ten counts. On November 12, 1975 appellant was sentenced by the trial court on the remaining two counts. Appellant consolidated his appeals from those judgments of sentence.
First to be considered is appellant's contention that the Commonwealth failed to produce sufficient evidence to sustain a verdict of guilty as to the ten counts of uttering forged instruments. In considering this issue the evidence, and all reasonable inferences arising therefrom, must be read in the light most favorable to the Commonwealth. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). With this standard in mind the facts are as follows. During the years 1962 to 1966 appellant was in the home construction business. Due to the nature of this business appellant needed substantial financing. This financing was obtained through the Citizens' National Bank and Trust Company of Waynesboro, Pennsylvania, pursuant to a $430,000 note. The Citizens Bank, not being able to supply this amount of capital alone, secured the participation of Philadelphia National Bank. The first $130,000 of the $430,000 was to be advanced by Citizens Bank and the remaining $300,000 was to be advanced by the Philadelphia National Bank. The banks agreed to advance money to appellant on the basis of notes signed by purchasers of appellant's houses and then endorsed by appellant and his wife. It is these notes which are the basis of the charges against appellant.
[ 241 Pa. Super. Page 146]
Relevant to the instant case are ten such notes on which appeared the forged signatures of various purchasers and purported purchasers of appellant's houses. Appellant acknowledges that the purchasers' signatures on the notes are not genuine but, nevertheless, argues that the Commonwealth failed to prove that he intended to defraud the banks. Appellant bases this argument on his contention that the $430,000 note to Citizens Bank was not secured by the forged notes but was secured instead by other collateral. This argument fails because the fact that the $430,000 note was secured by other collateral does not preclude the bank from also securing the same loan with the notes of appellant's purchasers. When appellant forged the purchasers' signatures, he induced the banks to advance money on the false pretense that the purchasers were obliged to pay the banks according to the notes. Since appellant's entire defense at his second trial rested on the mistaken premise that a loan be secured by only one form of collateral, we find ample evidence to support the finding of appellant's guilt as to the ten counts of uttering forged instruments.
Next, appellant argues that his sentences are illegal because the court ordered him to make restitution. Appellant contends, citing Commonwealth v. Flashburg, 237 Pa. Super. 424, 352 A.2d 185 (1975), that at the time of sentencing the court did not have the power to order restitution.*fn2 Flashburg did hold that between June 6, 1973, the effective ...