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COMMONWEALTH PENNSYLVANIA v. DAVID LEE (09/24/81)

decided: September 24, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID LEE, PETITIONER



No. 319 E.D. Misc. Docket, 1981, (No. 967 October Term, 1979), Petition for Allowance of Appeal from the Superior Court.

COUNSEL

Richard A. Ash, Philadelphia, for petitioner.

Robert B. Lawler, Chief, Appeals Unit, Philadelphia, for respondent.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: Roberts

[ 495 Pa. Page 463]

OPINION OF THE COURT

This matter involves orders of probation imposed on convictions of forgery, 18 Pa.C.S. § 4101(a)(3) (uttering), and theft by receiving stolen property, 18 Pa.C.S. § 3925. At issue is the proper grading of the theft offense, as well as the propriety of the length of the probationary term imposed on the theft offense.

I

On July 8, 1977, a vehicle belonging to Harry Clauss was stolen from Clauss's driveway. Inside the stolen vehicle was a checkbook issued to Clauss by Pennsylvania National Bank. The checkbook contained a number of blank checks. Upon the return of the vehicle, Clauss discovered that his checkbook was missing.

On the same day as the theft, petitioner presented a check to a teller at a branch office of Pennsylvania National. The check, bearing the purported signature of Harry Clauss, was made payable to petitioner in the amount of $89. The teller determined that the purported signature did not correspond with the bank's signature card. After petitioner gave conflicting explanations to the teller and the bank manager, petitioner was arrested by a police officer on the bank's premises.

Petitioner was charged with two counts of forgery and one count of misdemeanor-of-the-second-degree theft by receiving stolen property. The information containing the counts of forgery stated a violation of 18 Pa.C.S. § 4101(a)(2), which proscribes unauthorized writing, as well as 18 Pa.C.S. § 4101(a)(3), which proscribes the utterance of any writing which is known to be forged. The information charging theft listed the property involved as one checkbook and checks, having a value of $89.

[ 495 Pa. Page 464]

At a non-jury trial, the Commonwealth abandoned any effort to establish that petitioner had written on the check which he had attempted to cash. Clauss testified for the Commonwealth that his checkbook had been stolen, that he had not signed the check which petitioner had attempted to cash, and that he had not authorized anyone else to sign the check. Also testifying for the Commonwealth was the bank teller. The teller described petitioner's efforts to cash the check, including his giving of conflicting explanations for his possession of the check. According to the teller, petitioner first claimed that he had performed roofing work for Clauss at Clauss's home, then claimed that he had performed ...


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