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COMMONWEALTH v. GALLO (10/09/75)

decided: October 9, 1975.

COMMONWEALTH
v.
GALLO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Crawford County, No. 129 of 1974, in case of Commonwealth of Pennsylvania v. William Gallo.

COUNSEL

B. Albert Bertocchi, for appellant.

Paul D. Shafer, Jr., District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Cercone, J. Hoffman and Spaeth, JJ., join in this dissenting opinion.

Author: Van Der Voort

[ 236 Pa. Super. Page 558]

On July 2, 1974, appellant William Gallo was found guilty in a non-jury trial of theft by deception (18 Pa. C. S. § 3922). On November 21, 1974, appellant was sentenced to pay costs in the amount of $90.56, to pay a fine of $1,000, and to serve a term of 3 to 12 months, sentence suspended on condition of payment of the fine and costs. Appeal was taken to this Court from the judgment of sentence.

The facts of the case are as follows: In July of 1973, appellant appeared in the office of David Leveto, a contractor in the home building business in and around Meadville, Pennsylvania. Appellant represented himself as an "account executive" for National Builders Publications, and proposed an agreement with Mr. Leveto whereby appellant would furnish, within 90 days and at little or no cost to Mr. Leveto, a brochure advertising

[ 236 Pa. Super. Page 559]

Leveto's construction business. Leveto would be required to furnish to appellant the names and addresses of his sub-contractors and suppliers, who would be solicited by appellant to place advertisements in the David Leveto Builders' Brochure. The sub-contractors and suppliers would either pay cash for their ads or give Mr. Leveto a credit memorandum. Upon receipt of credit memorandums, Mr. Leveto would be required to pay appellant a sum of money equal to the amount of the memorandums. The written agreement was signed on July 26, 1973, and appellant was furnished with a list of Leveto's sub-contractors and suppliers. Letters extolling the virtues of Leveto's proposed personalized brochure were sent by appellant on Leveto's stationery to the sub-contractors and suppliers on the list. As a result, appellant collected a total of $1,750 ($815 in the form of direct cash payments by the sub-contractors and suppliers, $935 collected from David Leveto).

By September of 1973, Leveto had heard nothing from appellant and he tried to call him at the telephone number listed on appellant's letterhead. No one answered the phone. As the days went by, Leveto became concerned and wrote three letters to the address given on appellant's letterhead. These letters remained unanswered. Along with the letters Leveto made numerous calls, estimated to be 50 in number, in none of which calls was the telephone answered. Being unable to contact appellant by phone, receiving no answer to his letters and hearing nothing from appellant, Leveto went to his local police department which began an investigation. The investigation disclosed that appellant was not an "account executive", but ran a one-man business. He had no office in Pittsburgh, but used his home in Apollo as his office. His mailing address was a Pittsburgh Post Office Box in the East Liberty area. Armed with all these facts and information, Officer George Kellyman brought criminal charges against appellant. As soon as appellant learned of

[ 236 Pa. Super. Page 560]

    these charges, he sent the advertisements to a printer and forwarded proofs, by mail, to Leveto and to various suppliers; Leveto refused to accept the proofs.

The statutory charge of Theft by Deception is new in Pennsylvania. The Act of Assembly relating to this offense provides as follows:

"§ 3922. Theft by Deception

(a) Offense defined. -- A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the ...


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