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decided: October 20, 1978.


No. 1193 October Term, 1976, Appeal from judgment of sentence of the Court of Common Pleas of Lycoming County, Criminal Division, at No. 75-10,363.


Kenneth D. Brown, Assistant Public Defender, Williamsport, for appellant.

Allen E. Ertel, District Attorney, Williamsport, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in result. Spaeth, J., files a concurring opinion, in which Cercone, J., joins. Price, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case. The decision in this case was made prior to the retirement of Hoffman, J.

Author: Hoffman

[ 258 Pa. Super. Page 159]

Appellant contends that the Commonwealth failed to produce sufficient evidence to sustain his conviction for obtaining a motor vehicle by fraud.*fn1 Because we agree, we reverse the judgment of sentence and order appellant discharged.*fn2

On December 11, 1974, Bill Fry Ford, Inc., a Montoursville, Lycoming County automobile dealer, filed a private criminal complaint in which it accused appellant of fraudulently obtaining possession of a rental vehicle by agreeing to pay the rental charges when appellant, in fact, did not intend to pay such charges. On December 31, 1974, the Lycoming County District Attorney approved this charge.*fn3 On August 11, 1975, appellant's jury trial in the Lycoming County Court of Common Pleas commenced, and the Commonwealth adduced the following testimony.

[ 258 Pa. Super. Page 160]

Max Hyde, an employee of Bill Fry Ford, Inc., testified that on September 18, 1974, appellant and the complainant executed an automobile lease agreement which set forth the terms and conditions for a three day rental of a 1974 Ford Maverick. On the rental agreement, appellant gave his name, address, telephone number, driver's license number, and the name, address, and telephone number of his employer. After completing the necessary forms, appellant received possession of the rented car. On September 20, 1974, the day before the expiration of the three day rental period, appellant's wife telephoned Hyde and requested a two week extension. Hyde responded that he would agree to the extension provided that either appellant or his wife immediately produced additional money as a deposit; neither appellant nor his wife did so. Furthermore, appellant did not return the rented car on September 21, 1974, the final day of the rental period. Hyde had no further oral or written communication with either appellant or his wife until October 10, 1974, when Hyde repossessed the rented car. He found the car parked in a driveway adjacent to appellant's house. Only appellant's wife was present.

Claire Kaufman, the complainant's rental manager, testified that after the expiration of the rental term, he tried unsuccessfully to contact appellant by telephone "several times." Following the October 10, 1974 repossession, he mailed appellant a bill for $339.05, the rental charges which had accrued between September 18, 1974, and October 10, 1974. From October to December, 1974, Kaufman did not hear from appellant, and two more attempts to contact appellant by telephone failed. Finally, on December 11, 1974, he filed the instant private criminal complaint on behalf of his employer.

Following the overruling of his demurrer, appellant presented the following testimony. When he rented the 1974 Ford Maverick, appellant planned to use this automobile on a business trip. However, he changed his mind, took the family car on the trip, and left the rented vehicle with his wife. The business trip, originally scheduled to last only

[ 258 Pa. Super. Page 161]

"a couple of days" extended into early December, 1974. Appellant had no contact with his wife until Thanksgiving when they spoke over the telephone; his wife did not relay an information to appellant concerning the rented automobile bill. Indeed, appellant assumed that his wife had returned the car to the rental agency upon the expiration of the lease. Moreover, appellant never received any correspondence from Bill Fry Ford, Inc., pertaining to the car rental bill. Appellant first learned of the continuing car rental problem when a constable personally served him with an arrest warrant on February 11, 1975.

On cross-examination, appellant admitted that he signed the rental agreement with full knowledge that the lease term would expire on September 21, 1974. However, he reiterated that he never considered contacting Bill Fry Ford, Inc. while he was on the business trip because he assumed that his wife had returned the car.

At the conclusion of trial, the jury returned a verdict of guilty. The lower court denied appellant's written post-verdict motions and, on February 9, 1976, sentenced appellant to a one year term of probation conditioned upon compliance with various terms, including restitution of the amount of money owed the complainant. This appeal followed.

Appellant contends that the Commonwealth did not produce sufficient evidence to sustain his conviction for obtaining a motor vehicle by fraud. In Commonwealth v. Holquin, 254 Pa. Super. 295, 385 A.2d 1346, 1350 (1978), our Court recently reiterated the accepted standards for assessing a contention of insufficient evidence. "'[T]he test of sufficiency of evidence is whether accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.' Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974). See also Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972). Furthermore, as verdict winner, the Commonwealth is entitled

[ 258 Pa. Super. Page 162]

    to have the evidence viewed in a light most favorable to it. Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865, 866 (1975); Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406 (1973); Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971). Finally, guilt must be proved and not conjectured. The reasonable inference of guilt must be based on facts and conditions proved, not solely on suspicion or surmise. Commonwealth v. Bausewine, 354 Pa. 35, 41, 46 A.2d 491, 493 (1946); Commonwealth v. Navarro, 251 Pa. Super. 125, 380 A.2d 409 (1977)." Using these ...

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