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COMMONWEALTH PENNSYLVANIA v. JERRY ROSENZWEIG (03/19/87)

decided: March 19, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JERRY ROSENZWEIG, APPELLEE



Appeal from the Order of Superior Court dated February 21, 1985, at No. 1253, Philadelphia, 1983, Affirming the Order of the Court of Common pleas of Philadelphia County, Trial Division, Criminal Section, dated April 9, 1983, at Nos. 3001 to 3050 November Term, 1982 (Formerly MC 8208-3929).

COUNSEL

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, John Donnelley, Philadelphia, for appellant.

Daniel M. Preminger, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Zappala, J., file dissenting opinions.

Author: Papadakos

[ 514 Pa. Page 114]

Opinion OF THE COURT

Appellee, Jerry Rosenzweig, was arrested and charged with one count of theft by unlawful taking (18 P.S. § 3921), one count of theft by failure to make required disposition of funds (18 P.S. § 3927), and forty-eight counts of forgery (18 P.S. § 4101). After being held over for court following a preliminary hearing, Appellee filed a Motion to Quash Return of the Municipal Court transcript. After argument, the Court of Common Pleas of Philadelphia County (Kiester, J., specially presiding) ordered Appellee discharged for lack of a prima facie case. The order was temporarily vacated, but then reinstated. Superior Court (Montemuro, Beck and Watkins, JJ.) affirmed in a Memorandum Opinion, 341 Pa. Super. 619, 491 A.2d 921.

At the preliminary hearing, the Commonwealth presented evidence to show*fn1 that Appellee, a pharmacy clerk for Esquire Drug Stores (Esquire), had, in Esquire's name and without the knowledge or authority of Esquire, entered into contracts with General Mills and Eastern Coupon Clearing House permitting Esquire to mail in manufacturers' coupons for reimbursement. Appellee then allegedly obtained coupons from a source other than Esquire and mailed most of the coupons to General Mills and Eastern Coupon Clearing

[ 514 Pa. Page 115]

House, again in Esquire's name. When General Mills or Eastern Coupon Clearing House mailed reimbursement checks to Esquire, Appellee allegedly intercepted the checks, endorsed Esquire's name on the back of the checks, endorsed his own name on the back of the checks, and then deposited the checks in his own personal account. Forty-eight such checks, in the total amount of $4,663.20, were allegedly intercepted and deposited.*fn2 The evidence reveals that no cash was found missing from Esquire Drugs (the store manager testified that the cash register balanced on each shift). It is unclear whether coupons submitted by Esquire's customers to Esquire were ever taken from Esquire by Appellee or by anyone else. All of the informations lodged against Appellee relating to forgery listed Esquire Drugs as the "person prejudiced." Likewise, the informations dealing with the theft charges specified Esquire Drugs as the owner of the property (checks) stolen. None of the informations was ever amended.

Superior Court thought that the discharge here, in the form of a grant of a motion to quash, could be reversed only when an abuse of discretion had occurred. Superior Court found that no abuse of discretion by the trial court had occurred in the instant case, reasoning that the Commonwealth, in the informations, failed to allege facts from which the trial court could have found a prima facie case of theft or forgery. Throughout the trial court proceedings, the Commonwealth framed the alleged crimes as being theft of property belonging to Esquire, and forgery which prejudiced the rights of Esquire Drugs. Superior Court believed that the trial court was correct in rejecting the Commonwealth's contention that Esquire had any rights which could be prejudiced or property which could be taken in this case. While it is clear that the prejudice to a victim's rights need not be pecuniary or proprietary in nature, Superior Court reasoned that there still must be some "right" which is being prejudiced. Superior Court did not

[ 514 Pa. Page 116]

    believe that the instant facts establish such a "right," or at least that the facts were so clear and compelling as to warrant a finding of abuse of discretion on the part of the trial court.

As to the theft charges, Superior Court likewise did not believe that the trial court abused its discretion when it found that Esquire had no ownership rights in the checks, i.e., that Esquire suffered no loss of property and was thereby not a "victim" of any theft.

We granted allocatur herein because we were concerned about the severe prejudice resulting against the Commonwealth in this matter, and because we were also concerned about the resort to technical distinctions reminiscent of the common law writ system in interpreting provisions of the Crimes Code dealing with theft and forgery.

For the reasons set forth below, we reverse.

Section 3921 of the Pennsylvania Crimes Code (18 P.S. § 3921) provides, in pertinent part:

§ 3921. Theft by unlawful taking or disposition.

(a) Movable property. -- A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof . . . .

If the facts alleged in the instant case are proven, Appellee, by depositing checks made payable to Esquire in his own account, clearly "exercise[d] unlawful control over movable property of ...


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