Commonwealth v. Arent

38 Pa. D. & C.3d 264, 1985 Pa. Dist. & Cnty. Dec. LEXIS 201
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedNovember 14, 1985
Docketnos. 613—627 of 1984
StatusPublished

This text of 38 Pa. D. & C.3d 264 (Commonwealth v. Arent) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Arent, 38 Pa. D. & C.3d 264, 1985 Pa. Dist. & Cnty. Dec. LEXIS 201 (Pa. Super. Ct. 1985).

Opinion

CAIAZZA, J.,

Defendant has filed motions in arrest of judgment and for new trial following a jury verdict of guilty on all of the above-numbered charges.

Summarily, the case involves a series of commercial transactions between defendant, acting as the owner and general manager of Verterano Beer Distributing, and Jack Robert Kopen, who at all material times was the president of Kopen Beverage Company [hereinafter Kopen]. The transactions at issue here purportedly occurred in the latter three months of 1983. Specifically, it is the Commonwealth’s position that defendant passed 15 checks to Kopen while defendant knew they would not be honored by the drawee; defendant’s actions, if proven, would constitute a violation of the bad checks section of the Crimes Code.1

Defendant first challenges the sufficiency of the evidence: In this regard it is well settled that the court must consider the evidence in the fight most [265]*265favorable to the Commonwealth, and must afford the Commonwealth all reasonable inferences arising from the evidence. Commonwealth v. Griffith, 242 Pa. Super. 484, 486, 364 A.2d 374, 375 (1976); Commonwealth v. Conti, 236 Pa. Super. 488, 492, 345 A.2d 238, 240 (1975). Following this standard, the court finds that the evidence in this case is sufficient to sustain the verdict. Furthermore, the court holds that the verdict was not against the weight of the evidence, nor was it contrary to the evidence.

Defendant argues in support of his motion that a casual observation of the signature discloses that there are at least two different signators. Defendant bolsters this assertion by noting that the Commonwealth offered little evidence in regard to the allegation that defendant was the drawer of the checks. The evidence indicates that Kopen and defendant had engaged in business dealings for approximately three to four years prior to October of 1983, and that these dealings occurred almost every business day. Jack Kopen testified that his business received checks printed in the name of Verterano Distributing which were purportedly signed by defendant. Mr. Kopen further testified that he was familiar with the signature of defendant and that every check received from Verterano Distributing was signed in defendant’s hand. Oscar Kopen, the chairman of the board of Kopen and Jack Kopen’s father, also testified that he observed defendant’s signature numerous times and stated that it was either neatly written or scribbled. Jack Kopen also testified that he had been present.when defendant signed checks at defendant’s place of business approximately three to five times over the three-year course of dealing. Further evidence revealed that Jack Kopen and defendant had a conversation wherein defendant indicated that the checks at issue would be hon[266]*266ored in some manner. The jury also physically had the checks for their review during the course of their deliberations. Defendant offered no evidence on his own behalf.

A consideration of the evidence reviewed in this opinion cogently convinces the court that the Commonwealth has met'its burden. Also, while the signatures appearing on all the checks were not identical, the sufficiency and the weight of the evidence is not reduced to a point meriting court intervention. It is solely a matter reserved for argument and jury interpretation.

Next, based upon a question asked- by the jury, defendant opines that the court should infer that the Commonwealth did not sufficiently prove its case. The jury asked whether defendant was the only person authorized to sign the checks for defendant’s company. The query itself does not necessarily mean that the jury harbored reasonable doubt; most likely it was asked for purposes of clarification. The court responded by again instructing the jury that it should consider the evidence presented during the course of the trial and that it should then make its own determination. Defendant’s attempt to have the jury instructed again on the Commonwealth’s burden of proof is unavailing.

The bulk of defendant’s argument must still be considered. On demurrer, defendant argued a unique notice of dishonor theory which was rejected by this court. The gist of the argument concerns the inapplicability to this case of the presumption section in the bad-check statute. The relevant sections are as follows:

“(a) Offense 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.

[267]*267“(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 . . . would not be paid, if:

“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 10 days after receiving notice of that refusal.” 18 Pa.C.S. §4105.

Jack Kopen testified that after he was notified that the 15 checks were dishonored, he in turn notified defendant of the dishonor, and was told by defendant that the checks would be honored. Jack Kopen could not identify the exact date of the conversation. Both Jack and Oscar Kopen also testified to an in-person conversation with defendant in December, following the dishonor of the checks, in which defendant said he would “take care of everything.” Conceding that the exact date of the conversations was never determined, it is also a matter of record that defendant has not honored the checks. Since the payment has not been made the jury could have plausibly determined that notice had been given and that 10 days had elapsed from the time of that notice.2

The court is cognizant of the fact that the terms of a penal statute are to be strictly construed. Commonwealth v. Griffith, supra, at 488, 364 A.2d at 376 (1976). In Griffith, the only evidence of notice in regard to the alleged bad check in issue, was a [268]*268telephone conversation with defendant’s wife. Id. at 487, 364 A.2d at 376. The statute requires that notice be given to the issuer; hence, there was insufficient evidence presented as to that check. Id. at 487-88, 364 A.2d at 376. The instant case is clearly distinguishable; here, the Commonwealth has adduced proof of personal notice to defendant.

The sparse case law that exists on the issue refutes defendant’s position. In Commonwealth v. Martin, 74 Montg. Co. L.R. 156, 159 (1957), the court concluded that the requisite notice was given; however, assuming that actual notice was not technically made, the evidence of defendant’s promises to pay was sufficient to constitute notice. Id. In Commonwealth v. Rosenweig, 93 Montg. Co. L.R. 98, 100-01 (1969), the court notes, in a similar fashion as argued by defendant here, that the criminal law in the Commonwealth does not define notice. The court referred to the Uniform Commercial Code (UCC), 12 A.P.S. 3-508, presently codified at 13 Pa.C.S. §3508, which is again relied upon by defendant in the case sub judice. However, the Rosenweig court referred to the definitional section of section 3508 for guidance; defendant limits his discussion to the time requirement of section 3508. The UCC construes “Manner of giving notice” as “Notice may be given in any reasonable manner.

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Related

Commonwealth v. Ali
265 A.2d 796 (Supreme Court of Pennsylvania, 1970)
Commonwealth v. Conti
345 A.2d 238 (Superior Court of Pennsylvania, 1975)
Commonwealth v. Griffith
364 A.2d 374 (Superior Court of Pennsylvania, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
38 Pa. D. & C.3d 264, 1985 Pa. Dist. & Cnty. Dec. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-arent-pactcompllawren-1985.