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filed: February 8, 1980.


No. 594 October Term, 1977


Daniel-Paul Alva, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files an opinion in support of affirmance in which Hester and Van der Voort, JJ., join. Cercone, President Judge, files an opinion in support of reversal in which Hoffman and Spaeth, JJ., join. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 275 Pa. Super. Page 30]

The six judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

PRICE, Judge, in Support of Affirmance:

Following a non-jury trial, appellant was convicted of twenty-two counts of theft by deception,*fn1 and twenty-two counts of theft by failure to make required disposition of funds received.*fn2 Post-trial motions were denied and appellant

[ 275 Pa. Super. Page 31]

    was sentenced. On appeal, appellant questions the sufficiency of the Commonwealth's evidence on all counts and contends that there was a material variance between the informations in this case and the Commonwealth's proof. For the reasons set forth herein, we would affirm.

The facts pertaining to this case are as follows. For approximately four years prior to trial, appellant was the owner and operator of Shapiro Monuments, located on Castor Avenue in Philadelphia. Appellant testified that he lost money each year and was on numerous occasions forced to borrow funds from several banks and family members to continue the business. At the time of trial, appellant's private residence was being sold at a sheriff's sale and his Cadillac automobile had already been repossessed. The Commonwealth introduced the testimony of sixteen witnesses as to their patterns of dealing with appellant, and there was a stipulation entered that an additional seven witnesses would testify similarly. Each witness had made an oral contract with appellant for a stone, inscription or plaque; all due for delivery in or after August, 1975. None of the complainants, however, received the property for which he contracted, nor was the advanced money, usually a downpayment but in one case payment in full, ever returned. Various witnesses made efforts in mid to late August and thereafter, to contact appellant by telephone or in person, at his store but appellant's store was unattended.

Appellant testified that another firm, Christianson and Sons, did all of the carving, lettering, and setting of stones. Appellant testified that prior to August 1975, he had defaulted on none of the contracts, but that to complete orders placed in May, June, July and August, he had to depend on new business in September and months thereafter. In August, Mr. Christianson demanded payment of the debt that appellant owed. When appellant was unable to satisfy the debt, an employee of the Christianson firm came to appellant's place of business, and removed all of the sample stones, appellant's desk and records. These acts, according to appellant, put him out of business. Although appellant testified that he contacted his attorney, Ronald Shear, regarding

[ 275 Pa. Super. Page 32]

Christianson's action, and also that he asked counsel to correspond*fn3 with appellant's clients whose contracts were not fulfilled, explaining that appellant intended to reimburse deposits, counsel took no action.

Appellant testified that he had no intention of defrauding anyone, but entered into the contracts with every intention of fulfilling them. Although most of the funds were deposited in his business account, appellant testified that some checks were cashed immediately to meet expenses.

In evaluating the sufficiency of the evidence, we must determine:

"whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all the elements of the crime have been established beyond a reasonable ...

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