No. 2360 October Term 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Phila. County at Nos. 2616-2617, 2619-2620, January Session, 1977.
John A. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Lipez, JJ.
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This is an appeal from judgments of sentence entered on convictions of two counts of forgery, The Crimes Code, Act of Dec. 6, 1972, P.L. 1484, No. 334, § 1, 18 Pa.C.S.A. § 4101, two counts of unlawful use of credit cards, The Crimes Code, supra, 18 Pa.C.S.A. § 4106 (Supp. 1978-79), and one count of theft of property lost, mislaid, or delivered by mistake, The Crimes Code, supra, 18 Pa.C.S.A. § 3924.
At trial appellant stipulated to the facts, as follows. On January 25, 1977, he entered a maternity shop and purchased a dress, using a BankAmericard credit card in the name of Marvin Shaw. He signed a credit card sales receipt for the price of $31.98, using the name Marvin Shaw, and left the store with the dress. At a nearby store on the same day he attempted to purchase goods worth $22.64, again signing the receipt as Marvin Shaw, but was arrested before he left the store. Shaw had been notified that his credit card had been mailed to him, but he never received it, and so had never signed it; he did not give anyone permission to use it.
Appellant argues that he should not have been prosecuted for forgery because the offense of unlawful use of credit cards is a more specific version of forgery.
In Commonwealth v. Buzak, 197 Pa. Super. 514, 517, 179 A.2d 248, 250 (1962), we held:
It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are special penal provisions available: Commonwealth v. Brown, 346 Pa. 192, 199, 29 A.2d 793, 796-797; Commonwealth v. Litman, 187 Pa. Super. 537, 543, 144 A.2d 592, 595 (1958).
Thus, in Commonwealth v. Brown, supra, the Court held that the offense of making a false statement on a nomination paper under the Election Code was a more specific version of the general offense of perjury, so that the defendant could not be prosecuted for perjury. The Court approved a test that when
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the same facts which would constitute an offense under one act also constituted an offense under the second act and [ ] the first act being specific and the second act general, the first ...