Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellant, Nos. 363 and 364, March Term, 1977.
Harold N. Fitzkee, Jr., York, for Bollinger and Schlosser.
Donald L. Reihart, District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files a dissenting opinion in which Van der Voort, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision in this case.
[ 274 Pa. Super. Page 115]
We are concerned with four separate appeals -- one by one co-defendant, one by the other co-defendant, and two by the Commonwealth. Each of the co-defendants alleges that he should be discharged on the ground that the evidence was insufficient to sustain his convictions, and, in the alternative, that he is entitled to a new trial. The appeals filed by the Commonwealth challenge the refusal of the lower court to order the co-defendants to make restitution, or to tax the costs of prosecution to the co-defendants. The appeals were consolidated, and this opinion disposes of all four appeals.
The facts are set forth in Judge PRICE's dissenting opinion. For the reasons stated in Judge PRICE's opinion and footnote 1 of this opinion, a majority of the court
[ 274 Pa. Super. Page 116]
believes that all of Donald Schlosser's convictions must be vacated for want of sufficient evidence, and that for the same reasons all of Clair Bollinger's convictions, except his conviction of forgery, must also be vacated.*fn1 In Part I of
[ 274 Pa. Super. Page 117]
this opinion, the majority of this court sets forth its reasons for sustaining Bollinger's conviction of forgery. Part II of this opinion addresses the issues raised in the Commonwealth's appeals.
The Commonwealth indicted Bollinger in a single bill for four separate forgeries. The jury found him guilty on all charges of forgery, and the lower court sentenced him to three years probation (to run consecutively to Bollinger's sentence for misbehavior in office) and fined him $3000. While we have some doubts concerning the sufficiency of the evidence concerning one of the forgeries,*fn2 we are satisfied
[ 274 Pa. Super. Page 118]
that the evidence was sufficient to prove that Bollinger committed the other three forgeries charged. Furthermore, we find no merit in any of Bollinger's arguments for a new trial.
Reviewing the evidence at trial in the light most favorable to the Commonwealth, the following facts were established. In May or June 1972 Bollinger, who was the Superintendent of Memorial Stadium, handed a bill to Schlosser's secretary that stated:
Sir: To install and complete fence around Memorial Two Diamond 1700' of 60" fence and 600' of 42" fence. $458.00. Thank you, Fred Fuller, 160 Hamilton Avenue, York, Pennsylvania.
Since the bill carried the written O.K. of Schlosser, the secretary prepared a purchase order for it and took the purchase order to the City Treasurer's Office. The Treasurer's Office then issued a check payable to Fred Fuller in the amount of $458. Instead of forwarding the check to Fuller, however, the secretary held it for Bollinger on Bollinger's and Schlosser's instructions. The check, which was introduced as an exhibit, indicated that it had been endorsed by Fuller and Bollinger, as Fuller's agent. However, Fuller testified that he never submitted the above bill to anyone, never received the check or money for the check, never signed the check, and never gave Bollinger permission to sign checks for him. A stipulation was agreed to by counsel that Bollinger endorsed both his and Fuller's names on the check and that it had been deposited in Bollinger's personal checking account.
To convict Bollinger of forgery, the Commonwealth was required to prove 1) the false making of some instrument in writing that was apparently capable of affecting a fraud and working an injury to another; and 2) a fraudulent
[ 274 Pa. Super. Page 119]
intent. Commonwealth v. DiPiero, 205 Pa. Super. 312, 208 A.2d 912, allocatur refused 205 Pa. Superior Ct. xxxvii (1965), cert. denied 382 U.S. 992, 86 S.Ct. 574, 15 L.Ed.2d 479 (1966). No question exists that Bollinger processed a false bill, and that the bill was capable of effecting a fraud on the City. The only issue is whether Bollinger intended to defraud the City in preparing the bill and depositing the City's check in his personal checking account. The dissent maintains that this intent was not proved because
the testimony of [the witnesses] supported Bollinger's claim that they were paid for additional work for which Bollinger was not reimbursed by the city, and that he paid for part of the materials used in maintaining the stadium complex. Thus, while an immediate 'profit' appears to have been made . . . we [do not] feel that prejudice on the part of the city could be established absent testimony regarding the bottom line of Bollinger's activities. No evidence was presented to support a finding that he obtained an ultimate profit nor that the operation was conducted with an intent to defraud . . . the city . . . .
We disagree both with the dissent's factual statement that the testimony supports Bollinger's claim that he did not profit by depositing Fuller's check into his personal bank account and with the dissent's legal conclusion that in order to establish Bollinger's fraudulent intent the Commonwealth had to establish "the bottom line of Bollinger's activities."
First, Fuller's testimony did not support Bollinger's claim that he paid for part of the materials used in improving the stadium complex. The only testimony given by Fuller on this score was that he did not supply the fence he installed at Memorial Two Stadium but that Bollinger did. N.T. at 244. The natural inference from this statement is not that Bollinger paid for the fence, a fact concerning which Fuller had no apparent knowledge, but that as Supervisor of Memorial
[ 274 Pa. Super. Page 120]
Stadium, Bollinger had the fence delivered to the installation site for Fuller to install.*fn3
Second, Fuller's testimony does not establish that Bollinger paid $458 out of his own pocket for work done by Fuller for the City. The record shows that Fuller may have done work for the City at other times and other parts of the Memorial Stadium Complex for which Bollinger paid him from his personal funds. For example, in August and September of 1971, or approximately nine months before the date of Bollinger's fictitious bill, Fuller installed fence around another ball diamond for which Bollinger paid him by personal checks. However, only two or three checks were involved, the largest one being in the amount of $28.05. N.T. at 249, 255. Furthermore, although Fuller also stated that he sometimes received cash payments from Bollinger, he did not say when these payments were received or what they were for. Since Fuller testified that he and his wife rendered Bollinger numerous personal services at Bollinger's house and elsewhere, see, e. g., N.T. at 251, 257, the jury could have concluded that at least some of these payments were for services that did not benefit the City. Moreover, Fuller stated that he was paid by the City for installing the fence listed in Bollinger's bill, N.T. at 256, and that all the fence he put up was on City time, except for 75 feet, N.T. at 257.*fn4
[ 274 Pa. Super. Page 121]
Third, the law has never required proof that the accused has obtained "an ultimate profit" in order to establish the fraudulent intent necessary for a forgery conviction. Intent to injure or defraud may be inferred from the doing of wrongful, fraudulent, or illegal acts which in their necessary results naturally produce loss or injury. Commonwealth Page 121} v. Wheeler, 200 Pa. Super. 284, 189 A.2d 291 (1963); Commonwealth v. Grant, 121 Pa. Super. 399, 183 A. 663 (1936); Commonwealth v. Huster, 118 Pa. Super. 24, 178 A. 535 (1935); Commonwealth v. Brown, 96 Pa. Super. 13 (1929). In cases analogous to the present one we have looked to the totality of the defendant's conduct to infer fraudulent motive. See Commonwealth v. Bhojwani, 242 Pa. Super. 406, 364 A.2d 335 (1976); see also Commonwealth v. Francis, 201 Pa. Super. 313, 191 A.2d 884 (1963), cert. denied, 375 U.S. 985, 84 S.Ct. 517, 11 L.Ed.2d 472 (1964). Here the Commonwealth proved that Bollinger prepared a fictitious bill for work that the City had already paid Fuller for doing. It further proved that Bollinger obtained the check issued by the City to Fuller on the basis of this bill, signed Fuller's name on the check, and then had the check deposited in his personal checking account. Bollinger's deception of the City underlies this entire episode, and this deception, establishes Bollinger's fraudulent intent. Otherwise, if Bollinger sought only reimbursement for City expenses he personally incurred, why did he not simply submit a bill to the City in his own name for those expenses?
The dissent faults the Commonwealth for failing to prove that Bollinger did not return in some manner the $458 he obtained from the City through deceit. In other words, the dissent requires the Commonwealth to trace Bollinger's entire income and expenditures during the years he was Supervisor of Memorial Stadium and prove that the expenses he incurred on the City's behalf were less that the $458 he took from the City. In other situations, we have noted the difficulty in tracing specific monies through a commercial checking account. See Commonwealth v. Crafton, 240 Pa. Super. 12, 367 A.2d 1092 (1976). Here, Bollinger supervised substantial improvements to the City's Memorial Stadium Complex, involving a great many transactions with suppliers, contractors, and laborers. ...