Angelo Procopio, Pittsburgh, for appellant.
Douglas Ferguson, Dist. Atty., Donald E. Lewis, Robert S. Bailey, Asst. Dist. Attys., Meadville, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Appellant, William Gallo, was convicted of theft by deception at a non-jury trial on July 2, 1974. Post-verdict
motions were denied and appellant was fined $1,000 and sentenced to make restitution of $1,750. A sentence of imprisonment of three-to-twelve months was also imposed but was to be suspended upon payment of the fine and the amount due in restitution. An appeal was filed in the Superior Court, which affirmed the judgment of sentence on October 9, 1975, with Judges Cercone, Hoffman and Spaeth dissenting. Commonwealth v. Gallo, 236 Pa. Super. 557, 345 A.2d 747 (1975). A petition for allowance of appeal was filed and was granted by this court on June 18, 1976.
The facts are as follows. Appellant is the sole owner of National Business Publications. In July of 1973, appellant contacted David Leveto, a home building contractor in 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 ninety days and at little or no cost to Mr. Leveto, a brochure advertising Leveto's home construction business. Leveto would be required to furnish appellant with the names and addresses of his subcontractors and suppliers, who would place advertisements in the brochure, the theory being that the subcontractors and suppliers would benefit by the promotion of Mr. Leveto's business. The subcontractors and suppliers would either pay cash for their ads or give Mr. Leveto a credit memorandum. Upon receipt of credit memoranda, Mr. Leveto would be required to pay appellant a sum of money equal to the amount of the memoranda. A contract was executed on July 26, 1973, and letters extolling the virtues of such a brochure were sent by appellant on Leveto's stationery to all of the subcontractors and suppliers from a list furnished by Leveto. As a result, appellant collected $1,750.
By September, 1973, according to Leveto's testimony, he had heard nothing from appellant so he tried to call him approximately fifty times at the telephone number
listed on appellant's letterhead, but no one answered the telephone. He also wrote three letters to the address given on appellant's letterhead, but they went unanswered. Leveto then went to his local police department, which began an investigation, disclosing that appellant was not "an account executive," but rather ran a one-man business, using his home in Apollo as his office. Criminal charges were brought against appellant, after which he sent the advertisements to the printer and forwarded proofs by mail to Leveto and to the various suppliers. Leveto, however, refused to accept the proofs.
Appellant's sole contention is that the evidence was insufficient to sustain the conviction for theft by deception. Section ...