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decided: November 22, 1976.



William J. LeWinter, 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. Van der Voort, J., files a concurring and dissenting opinion. Price, J., dissents.

Author: Jacobs

[ 243 Pa. Super. Page 411]

Appellant Simon Feldman was convicted on February 14, 1974 of cheating by false pretenses*fn1 and of fraudulent

[ 243 Pa. Super. Page 412]

    conversion of property*fn2 following a jury trial. This appeal was brought after denial of appellant's motions for a new trial and in arrest of judgment and subsequent to imposition of concurrent sentences of two and one-half to five years imprisonment on the above charges.

Appellant's principal claim is that the evidence presented was not sufficient to establish commission of the crimes of which he was convicted. We agree that the evidence was not sufficient to convict on the above charges and we therefore reverse.

Beginning in December of 1970 appellant was the authorized salvor for the city of Pittsburgh. At the time of his appointment there were approximately 7,000 abandoned vehicles on Pittsburgh streets. As city salvor appellant had the duty of towing to the city auto pound those vehicles which were found on the city streets and designated as abandoned by the Pittsburgh police. Appellant was also responsible for the proper disposition of those vehicles after their arrival at the pound. During the initial period of appellant's tenure as salvor his employees towed as many as 40 to 50 such vehicles each day. The charges against appellant arose out of his disposition of one of those vehicles, a 1968 Volkswagen which was towed to the auto pound on or about March 26, 1971.

The record discloses that in June of 1971 appellant purported to sell the 1968, blue, two-door Volkswagen in question to complainant Robert Kwalwasser. The vehicle was then delivered to a repair facility specified by Kwalwasser for body work, which was completed in July, 1971. The vehicle was subsequently returned to appellant's place of business for transmission repairs and was later stolen therefrom and damaged. Appellant agreed to repair the transmission and the damage which resulted when the auto was stolen. However, appellant never

[ 243 Pa. Super. Page 413]

    completed the promised repairs and a reconstructed title was not obtained as had been promised.*fn3 In September of 1971, Kwalwasser demanded return of his money. Having received neither the vehicle in a repaired condition nor return of his money, in October of 1971 he charged appellant with the crimes of which appellant was convicted.*fn4

The Commonwealth's trial theory on the false pretenses count was that appellant misrepresented to Kwalwasser that he was then able, or that he had a right to sell the car to Kwalwasser when, in fact, he did not have such a right and knew he did not. The Commonwealth also sought to show that appellant obtained $900.00 from Kwalwasser by virtue of that misrepresentation with intent to defraud when the June, 1971 "sale" took place.

The fraudulent conversion charge was based on the alleged facts that, after the car was returned for repairs in July of 1971, appellant fraudulently failed to return it to Kwalwasser.

On appeal to this Court appellant advances various claims of error which, as is recognized by the Commonwealth in its brief, consist of two basic arguments. First, appellant contends that the evidence presented at trial was insufficient to sustain appellant's conviction on charges of false pretenses and fraudulent conversion.

[ 243 Pa. Super. Page 414]

Second, appellant claims that the lower court's charge was erroneous in various particulars. In view of our disposition of the first of these claims we need not consider the second argument.

We will first consider the fraudulent conversion conviction in light of appellant's claim that the Commonwealth's evidence did not show commission of that crime. The Act of June 24, 1939, P.L. 872, § 834, 18 P.S. § 4834 (1963) (repealed 1972), which controls this case, provided, inter alia, that: "[w]hoever, having received or having possession, . . . by any means or manner, of any . . . property, . . . of or belonging to any other person, or which any other person is entitled to receive and have, fraudulently withholds, converts, or applies the same, or any part thereof, or the proceeds or any part of the proceeds, derived from the sale or other disposition thereof, to and for his own use and benefit, or to and for the use and benefit of any other person, is guilty of a felony . . ." In order to sustain a conviction under this statute evidence of the owner's demand for and defendant's refusal to redeliver property or of actual misapplication of the property is generally required. Commonwealth v. Spiegel, 169 Pa. Super. 252, 82 A.2d 692 (1951). Accord, Commonwealth v. Stone, 187 Pa. Super. 225, 144 A.2d 614, aff'd, 395 Pa. 584, 150 A.2d 871 (1958). See Commonwealth v. Schad, 218 Pa. Super. 359, 280 A.2d 655 (1971); Commonwealth v. Dunn, 212 Pa. Super. 384, 243 A.2d 476, allocatur refused, 212 Pa. Super. xxxvi (1968); Commonwealth v. Maust, 205 Pa. Super. 281, 208 A.2d 906, allocatur refused, 205 Pa. Super. xxxvii (1965); Commonwealth v. Schuster, 158 Pa. Super. 164, 44 A.2d 303 (1945). The gist of the offense is not the mere retention of another's property but rather the withholding of another's property with intent to defraud and deprive. Commonwealth v. Schad, supra, 218 Pa. Super. at 362, 280 A.2d at 657.

[ 243 Pa. Super. Page 415]

We initially note that we must regard the evidence in the light most favorable to the Commonwealth, giving it the benefit of all reasonable inferences, in deciding whether the Commonwealth showed a fraudulent conversion. See Commonwealth v. Mitchell, 234 Pa. Super. 21, 335 A.2d 521 (1975); Commonwealth v. Minor, 227 Pa. Super. 343, 322 A.2d 717, allocatur refused, 227 Pa. Super. xxv (1974). We have reviewed the evidence in that light and we conclude that it was not sufficient.

The record is devoid of evidence that appellant converted the vehicle in question to his own use or otherwise disposed of it. To the contrary, the evidence presented showed that the vehicle remained at appellant's garage awaiting repairs.*fn5 Since there was no evidence that appellant converted the auto to his own or another's use, it was incumbent upon the Commonwealth to show that he fraudulently withheld it. This could have been established by showing that Kwalwasser demanded return of the vehicle and that his demand was refused. Commonwealth v. Spiegel, supra. The evidence presented, however, did not establish the existence of a demand for ...

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