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COMMONWEALTH PENNSYLVANIA v. ALBERT FRANK (12/16/83)

filed: December 16, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT FRANK, APPELLANT



No. 1943 Philadelphia 1981, Appeal from the Judgment of Sentence of July 2, 1981, Court of Common Pleas, Montgomery County, Criminal No. 3274-80.

COUNSEL

Kingsley A. Jarvis, Norristown, for appellant.

Joseph Hylan, Assistant District Attorney, Norristown, for Com., appellee.

Johnson, Watkins and Lipez, JJ.

Author: Johnson

[ 322 Pa. Super. Page 8]

Appellant Albert Frank was convicted in a non-jury trial of knowingly issuing a bad check in violation of 18 Pa.C.S.A. ยง 4105. That section provides:

(a) Offenses defined. -- A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.

(b) Presumption. -- For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a post-dated check or order) would not be paid, if:

(1) the issuer had no account with the drawee at the time the check or order was issued; or

(2) payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal.

(c) Grading. -- An offense under this section is a misdemeanor of the second degree if the amount of the check or order exceeds $200; otherwise it is a summary offense.

Post-trial motions were dismissed and appellant was sentenced to two years probation. He here appeals from the judgment of sentence. We reverse.

On June 3, 1980, Perma Metals provided appellant's business, Afco Steel Company, with a shipment of steel. On July 11, 1980 appellant issued a check in the amount of $5,185.44 to Perma Metals for the June 3rd shipment. Perma Metals deposited the check and it was returned marked "Insufficient Funds." Perma Metals notified appellant who advised it to redeposit the check. ...


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