Commonwealth v. Fritz

470 A.2d 1364, 323 Pa. Super. 488, 1983 Pa. Super. LEXIS 4585
CourtSuperior Court of Pennsylvania
DecidedDecember 30, 1983
DocketNos. 1824 and 1837
StatusPublished
Cited by11 cases

This text of 470 A.2d 1364 (Commonwealth v. Fritz) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Fritz, 470 A.2d 1364, 323 Pa. Super. 488, 1983 Pa. Super. LEXIS 4585 (Pa. Ct. App. 1983).

Opinion

JOHNSON, Judge:

This case began when Greyhound Bus Lines, Inc., Trans-Bridge Lines, Inc., Tri City Coaches, Boro Bus Company, and Bieber Tourways initiated criminal charges against appellants, Charles Fritz and Nevin Helfrich, for “Theft by failure to make the required disposition of funds received,” 18 Pa.C.S.A. § 3927.1 Appellants were tried before a jury and convicted. In this consolidated appeal from that judg[492]*492ment of sentence, they contend that there was insufficient evidence of two elements of the offense. We disagree and affirm.

The test we apply to decide the sufficiency questions in this case is whether, accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the jury could have reasonably found that the disputed elements of the offense charged were supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982).

Our examination of the trial record in the light most favorable to the Commonwealth reveals the following facts. Appellants were partners in the operation of the Allentown Bus Terminal. They entered into separate agreements with the complaining bus companies, whereby they were authorized as agents of these companies to sell their bus tickets. Each of the agreements obligated appellants to remit the proceeds of ticket sales to the complaining bus companies, after deducting the appropriate amount of their commission.2

In the month of January, 1979, appellants collected $14,-001.60 in receipts from the sale of tickets for the complaining bus companies. They also owed an unspecified amount of arrears from December of 1978. In accordance with appellants’ business practice, the ticket receipts collected in January of 1979 were deposited in the bank account of the partnership, from which appellants would pay the expenses of the bus terminal and remit monies to all the bus companies for whom they were agents. Appellants made remittances to the complaining bus companies in the aggregate amount of $16,591.59. Because appellants were in arrears [493]*493from December, the complaining bus companies applied the payments made in January to the December arrears, eliminating them entirely.

After payments in full were made to two bus companies, not involved in this case, the complaining bus companies demanded payment in full of the monies owed them. When appellants were not able to comply, they withdrew their tickets from the terminal, forcing appellants to close down. Representatives of the bus companies and appellants had a meeting wherein appellants were given twenty days to make full payment of the remainder of the monies owed. Appellants were unable to do so. Whereupon, the bus companies pursued the criminal action that is the subject of this appeal.

Section 3927 of the Crimes Code is comprised of the following four elements:

“1. The obtaining of property of another;
2. Subject to an agreement of known legal obligation upon the recipient to make specified payments or other disposition thereof;
3. Intentional dealing with the property obtained as the defendant’s own; and
4. Failure to make the required disposition of the property.”

Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094-95 (1976). The section was derived from the Model Penal Code. It was designed to require the actor to meet the obligations under which he undertook to collect the monies or property of another. Where the actor has received funds subject to an obligation to make required payments, Section 3927 “lessens the duties of an agent by permitting him to commingle funds, if he chooses, without penalty.” Commonwealth v. Crafton, supra, 240 Pa.Superior Ct. at 18, 367 A.2d at 1095-96. The crucial time under this section is “(a)t the time of failure of the actor to make the required payment or disposition.” Id. It is only at the [494]*494moment when the required payments are not made that criminal liability attaches. Id.

In this appeal, appellants challenge the sufficiency of the evidence as to the third or fourth elements listed above, apparently conceding that the evidence sufficiently proved the other two elements. The elements, in dispute in this case, require proof that it was appellants’ “conscious object” to violate the agency agreements and deal with the proceeds of the ticket sales as their own and fail to make the required payments of those proceeds to the various bus companies. Commonwealth v. Austin, 258 Pa.Super. 461, 470, 393 A.2d 36, 40 (1978).

Both appellants argue that the evidence as to whether they dealt with the proceeds of the ticket receipts as their own was insufficient. At trial both appellants indicated that it was the practice of their partnership to commingle the proceeds of ticket sales into the operating account of their terminal. The commingled funds were available to pay the expenses of the terminal and pay the bus companies. The evidence also indicates that appellants paid their January expenses from this account as well as made substantial remittances to seven bus companies. We view this evidence as sufficient proof that appellants dealt with the proceeds as their own.

The import of the phrase “deals with property as his own” in Section 3927 is that a conversion must occur. Model Penal Code § 223.8, comment c (Official Draft 1962). Section 3927 is not phrased to require proof that a defendant actually used the property of another 'as his own. The word deals is used in a manner synonymous with the word treat. While proof of actual misuse of the ticket receipts, may be preferable, it is not mandatory under the Crimes Code. In commingling the ticket proceeds in their operating account, appellants made them available for use in paying the expenses of their partnership. In doing so, appellants treated the proceeds as their own monies. We regard the commingling of the ticket proceeds by appellants to be an exercise of dominion over, and control of, the [495]*495proceeds that is inconsistent with ownership interests of the bus companies. While the evidence of commingling in this case is sufficient itself as proof that appellants dealt with the ticket proceeds as their own, there is additional evidence which obviates the need for such a holding.

In addition to showing that appellants commingled the ticket proceeds in their operating account, the record establishes that appellants used the commingled funds in their operating account to pay their operating expenses and to pay the five complaining bus companies and two others not involved in this case. A reasonable inference may be drawn from these circumstances that the ticket proceeds were used to pay appellants’ operating expenses and to pay bus companies other than the company to whom the proceeds rightly should have been remitted.

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Bluebook (online)
470 A.2d 1364, 323 Pa. Super. 488, 1983 Pa. Super. LEXIS 4585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fritz-pasuperct-1983.