Commonwealth v. James

392 A.2d 732, 258 Pa. Super. 157, 1978 Pa. Super. LEXIS 3817

• Court: Superior Court of Pennsylvania
• Decided: October 20, 1978
• Docket: 1193
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant contends that the Commonwealth failed to produce sufficient evidence to sustain his conviction for obtaining a motor vehicle by fraud.¹ Because we agree, we reverse the judgment of sentence and order appellant discharged.²

On December 11, 1974, Bill Fry Ford, Inc., a Montoursville, Lycoming County automobile dealer, filed a private criminal complaint in which it accused appellant of fraudulently obtaining possession of a rental vehicle by agreeing to pay the rental charges when appellant, in fact, did not intend to pay such charges. On December 31, 1974, the Lycoming County District Attorney approved this charge.³ On August 11, 1975, appellant’s jury trial in the Lycoming County Court of Common Pleas commenced, and the Commonwealth adduced the following testimony.

Max Hyde, an employee of Bill Fry Ford, Inc., testified that on September 18, 1974, appellant and the complainant executed an automobile lease agreement which set forth the terms and conditions for a three day rental of a 1974 Ford Maverick. On the rental agreement, appellant gave his name, address, telephone number, driver’s license number, and the name, address, and telephone number of his employer. After completing the necessary forms, appellant received possession of the rented car. On September 20, 1974, the day before the expiration of the three day rental period, appellant’s wife telephoned Hyde and requested a two week extension. Hyde responded that he would agree to the extension provided that either appellant or his wife immediately produced additional money as a deposit; neither appellant nor his wife did so. Furthermore, appellant did not return the rented car on September 21,1974, the final day of the rental period. Hyde had no further oral or written communication with either appellant or his wife until October 10, 1974, when Hyde repossessed the rented car. He found the car parked in a driveway adjacent to appellant’s house. Only appellant’s wife was present.

Claire Kaufman, the complainant’s rental manager, testified that after the expiration of the rental term, he tried unsuccessfully to contact appellant by telephone “several times.” Following the October 10, 1974 repossession, he mailed appellant a bill for $339.05, the rental charges which had accrued between September 18, 1974, and October 10, 1974. From October to December, 1974, Kaufman did not hear from appellant, and two more attempts to contact appellant by telephone failed. Finally, on December 11, 1974, he filed the instant private criminal complaint on behalf of his employer.

Following the overruling of his demurrer, appellant presented the following testimony. When he rented the 1974 Ford Maverick, appellant planned to use this automobile on a business trip. However, he changed his mind, took the family car on the trip, and left the rented vehicle with his wife. The business trip, originally scheduled to last only “a couple of days” extended into early December, 1974. Appellant had no contact with his wife until Thanksgiving when they spoke over the telephone; his wife did not relay an information to appellant concerning the rented automobile bill. Indeed, appellant assumed that his wife had returned the car to the rental agency upon the expiration of the lease. Moreover, appellant never received any correspondence from Bill Fry Ford, Inc., pertaining to the car rental bill. Appellant first learned of the continuing car rental problem when a constable personally served him with an arrest warrant on February 11, 1975.

On cross-examination, appellant admitted that he signed the rental agreement with full knowledge that the lease term would expire on September 21, 1974. However, he reiterated that he never considered contacting Bill Fry Ford, Inc. while he was on the business trip because he assumed that his wife had returned the car.

At the conclusion of trial, the jury returned a verdict of guilty. The lower court denied appellant’s written post-verdict motions and, on February 9, 1976, sentenced appellant to a one year term of probation conditioned upon compliance with various terms, including restitution of the amount of money owed the complainant. This appeal followed.

Appellant contends that the Commonwealth did not produce sufficient evidence to sustain his conviction for obtaining a motor vehicle by fraud. In Commonwealth v. Holquin, 254 Pa.Super. 295, 385 A.2d 1346, 1350 (1978), our Court recently reiterated the accepted standards for assessing a contention of insufficient evidence. “ ‘[T]he test of sufficiency of evidence is whether accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.’ Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974). See also Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972). Furthermore, as verdict winner, the Commonwealth is entitied to have the evidence viewed in a light most favorable to it. Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865, 866 (1975); Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406 (1973); Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971). Finally, guilt must be proved and not conjectured. The reasonable inference, of guilt must be based on facts and conditions proved, not solely on suspicion or surmise. Commonwealth v. Bausewine, 354 Pa. 35, 41, 46 A.2d 491, 493 (1946); Commonwealth v. Navarro, 251 Pa.Super. 125, 380 A.2d 409 (1977).” Using these standards, we must now determine whether the Commonwealth has proved beyond a reasonable doubt all elements of the crime of obtaining a motor vehicle by fraud.

The statute under which appellant was convicted provides:

“Any person who shall, with intent to defraud the owner of any motor vehicle or any person in lawful possession thereof, obtain possession of such motor vehicle by agreeing to pay a rental for the use thereof, based in whole or in part upon the distance such motor vehicle shall travel, shall, upon conviction thereof, be deemed guilty of a misdemeanor, and punished by imprisonment in the county jail for not less than thirty (30) days nor more than one (1) year, or by a fine of not less than twenty-five dollars ($25.00), nor more than two hundred dollars ($200.00), or both, in the discretion of the court. The refusal to pay the rental for such motor vehicle, or absconding without paying or offering to pay such rental, shall be prima facie evidence of the intent to defraud.”

Under this statute, the Commonwealth bears the burden of proving beyond a reasonable doubt that at the time the lessee received possession of the rental vehicle, he intended to defraud the lessor by using the car without paying the accrued rental charges based, in part, on the car’s mileage. Appellant specifically contends that the Commonwealth failed to meet its burden of proof on this element of the offense.

In the instant case, the Commonwealth has shown no direct evidence of appellant’s alleged fraudulent intent at the time of the rental transaction. Instead, the Commonwealth relies upon the standardized inference contained in the last sentence of the statute to furnish circumstantial evidence of appellant’s fraudulent intent beyond a reasonable doubt. For this inference to be operative, one of two conditions must be met: the accused must have either (1) refused to pay the accrued rental charges or (2) absconded without paying or offering to pay these charges. We must evaluate whether the Commonwealth has satisfied the demands of either section sufficiently to obtain the benefit of a permissible standardized inference.⁴

The first condition requires the Commonwealth to show that appellant refused to pay the accrued rental charges. In order to demonstrate a refusal to pay for a rental vehicle, the Commonwealth must show more than a mere failure to pay; a refusal embodies both a communicated request and an actual negative response. In the case at bar, there is no evidence that the lessor notified appellant about the accrued rental charges or that appellant refused to pay in the face of a request to remit the charges due on the rented car. To the contrary, the record demonstrates that appellant did not receive any notification of the accrued rental charges until after the initiation of criminal proceedings.

Alternatively, the second condition requires the Commonwealth to demonstrate that appellant absconded without paying or offering to pay for the rental vehicle. Under this condition, mere failure to pay or offer to pay suffices to permit the invocation of the standardized inference if and only if the lessee absconded. We believe that the legislature intended the act of absconding to entail implicitly fleeing with the rented car. The purpose of the statute in question is “. . . to define, and provide punishment for, a species of fraud — the renting of an automobile upon a mileage basis when the renter had, in fact, no intention of paying for its use.” Metzger v. Hertz Drivurself Stations, 112 Pa.Super. 365, 371, 171 A. 118, 121 (1934).⁵ To find a prima facie violation of the statute when a lessee “absconds” without the rental car does not serve this legislative purpose; the lessee has left the car behind and has not gained the benefit of its use. Moreover, the strength of the probative link between “absconding” without the rental car and an alleged intent to defraud using the car without paying for it is tenuous at best. We do not believe that the legislature meant to convert this dubious link into prima facie evidence of a statutory violation.⁶ In the case at bar, the Commonwealth has produced no evidence that appellant absconded with the rental car. Therefore, the Commonwealth has failed to satisfy the second condition allowing reliance upon the permissible statutory inference.

Because the Commonwealth’s attempt to prove appellant’s intent to defraud depends upon the applicability of the inference created by the last sentence of the statute in question and because we have concluded that the statutory inference is inoperative under the circumstances of this case, we hold that the Commonwealth did not produce sufficient evidence to sustain appellant’s conviction. See also Commonwealth v. Horton, 465 Pa. 213, 348 A.2d 728 (1975). We reverse the judgment of sentence and order appellant discharged.

Judgment of sentence vacated and appellant discharged.

JACOBS, President Judge, concurs in result. SPAETH, J., files a concurring opinion, in which CER-CONE, J., joins. PRICE, J., dissents. WATKINS, former President Judge, did not participate in the consideration or decision of this case. The decision in this case was made prior to the retirement of HOFFMAN, J.

1 . The Vehicle Code, Act of April 29, 1959, P.L. 58, § 1220; 75 P.S. § 1220. After the date of the events giving rise to the instant criminal charges, the legislature redrafted the Vehicle Code. See The Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, § 1 et seq., eff. July 1, 1977; 75 Pa.C.S. § 101 et seq. The legislature did not include a section comparable to 75 P.S. § 1220 in the new Vehicle Code.

2 . Appellant also contends that (1) the Commonwealth violated Pa.R. Crim.P. 1100; 19 P.S. Appendix, (2) the lower court’s charge that failure to make rental payments constituted a prima facie violation of the statute contravened the due process clauses of the United States and Pennsylvania constitutions, and (3) the lower court erred in refusing to charge the jury that criminal courts should not be used as bill collection agencies and in refusing to allow a defense witness to explain the availability of alternative civil remedies. Because of our disposition of the instant case, we need not consider these contentions.

3 . The Commonwealth and appellant disagree as to the significance of the date of the District Attorney’s approval for purposes of Rule 1100. We intimate no opinion on this issue. See footnote 1, supra.

4 . For a discussion of the operative effect of a permissible standardized inference, see Commonwealth v. DiFrancesco, 458 Pa. 188, 193-94 n. 3, 329 A.2d 204, 207 (1974); Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974).

5 . Although decided in 1934, Metzger interpreted a statutory provision identical to that encoded in the 1959 Vehicle Code. See The Act of April 7, 1927, P.L. 131; 75 P.S. § 1252.

6 . If we reached the opposite conclusion and found the inference to be applicable in the case at bar, we would be obliged to consider appellant’s contention that grounding a conviction upon this inference alone would violate due process under both the federal and state constitutions. See, e. g., Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Commonwealth v. DiFrancesco, supra; Commonwealth v. Turner, supra.