No. 452 April Term, 1975 Appeal from the judgments of sentence of March 25, 1975, of the Court of Common Pleas, Criminal Division, of Allegheny County at Nos. CC7406296A, CC7406300A, CC7406302A, CC7406304A and CC7406305A.
H. David Rothman, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Louis R. Paulick, Asst. Dist. Attys., Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
[ 242 Pa. Super. Page 408]
Appellant Gobind P. Bhojwani, a/k/a Gary Freeman, a/k/a "B. Garry," brings this appeal from his conviction, on March 25, 1975, of five separate counts of theft by failure to make required disposition of funds received,*fn1 following a trial held before Judge RIDGE without a jury. Appellant's claim is that the Commonwealth's evidence was not sufficient and that his motion in arrest of judgment therefore should have been granted below.*fn2 We have reviewed the evidence and find it sufficient. We therefore affirm.
The relevant facts are as follows. Defendant-appellant operated a clothing retail business known as the "Hong Kong Tailor Room" located in a motel room in Monroeville at the time of the infractions alleged. His business operation was ostensibly conducted in the following manner. Customers selected merchandise based on samples on hand and left payment with appellant, who was to order the customer's choice of clothing from his Hong Kong partner. The clothing was then to be shipped directly from Hong Kong to the customer. The instant charges resulted after five customers received neither the clothing ordered nor return of their money and no explanation was made for why neither clothing nor refund was received.
[ 242 Pa. Super. Page 409]
The Commonwealth produced the five customers as witnesses, each of whom testified to similar transactions. In each case the witnesses testified that they ordered clothes, paid by checks which were made out to B. Garry, did not receive the clothes within the six to eight week period promised and unsuccessfully attempted to contact appellant after the clothing failed to arrive. Clothing was ordered by the witnesses on February 9, 1974, on December 31, 1973, on February 6, 1974, on December 31, 1973 and on November 30, 1973, respectively. Appellant stipulated that the checks were deposited to his personal account.
Appellant testified that he was educated in India and had worked in Hong Kong from 1968 to 1972 when he came to the United States to sell suits for Freeman, Incorporated. He initially claimed that although checks were deposited in his account, the merchandise was paid for by checks drawn on his bank and forwarded to Hong Kong. He further testified that customers records were kept in Hong Kong and that he had no knowledge of the customer complaints because he had taken a different job as of November, 1973 and had left the business in the care of his brother in January, 1974. At trial, appellant's bank account had a balance of $15.64.
The Commonwealth, through the testimony of a representative of appellant's bank, introduced evidence that, prior to the transactions in question, appellant obtained cashier's checks payable to himself or to his brother in the amount of $4,500 on April 18, 1973, of $1,233 on June 25, 1973, and $4,000 on July 27, 1973 and of $1,600 on July 27, 1973 and that appellant's checking account records did not show that checks were made out to Freeman, Incorporated, appellant's Hong Kong supplier, subsequent to the transactions involved in the charges against him.
At the March 25, 1975 continuation of the trial appellant recanted his earlier ...