No. 1463 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, to No. 1686 of 1975. Criminal.
Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.
Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ.
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Appellant was tried by a judge sitting without a jury and was convicted of theft by deception. Post-verdict motions were denied and appellant was sentenced to two years probation and ordered to pay restitution and costs. The issue on this appeal is whether evidence was sufficient to sustain the conviction.
Viewed in the light most favorable to the Commonwealth as the verdict winner, see Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973), the evidence was as follows: On May 5, 1975, Dorothy and Leo Wincek entered into a written contract with appellant, trading as Overbrook Construction Co., under which appellant agreed for the sum of $3322 to build an addition to the rear of the Wincek residence. An initial payment of $1,017 was made to appellant. He purchased some materials and had his workers dig and put in a footer and put up a floor on stilts. No foundation was laid, and after the floor was put up, appellant did not return to
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complete the work. The expenses he incurred for the work that he did complete amounted to $337. The Winceks repeatedly called appellant to ask him to complete the work, but he never returned their calls. The Winceks finally hired another contractor who completed the work at an additional cost.
In deciding a sufficiency of evidence claim we view the evidence and all the reasonable inferences arising from it in the light most favorable to the Commonwealth and then ask whether it was sufficient to prove beyond a reasonable doubt that the defendant is guilty of the crimes of which he has been convicted. See Commonwealth v. Steward, 263 Pa. Super. 191, 198-200, 397 A.2d 812, 815-16 (1979). Even when viewed in accordance with this principle, it is clear that the evidence in this case was not sufficient to sustain the conviction.
Theft by deception is defined in pertinent part as follows:
(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 fact alone that he did not ...