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COMMONWEALTH PENNSYLVANIA v. RICHARD M. DAUBNER (02/13/81)

filed: February 13, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD M. DAUBNER, APPELLANT



No. 445 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Butler County, Criminal Division, at C.A. No. 515 of 1978, Book 68, Page 82.

COUNSEL

J. Patrick Walsh, Butler, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, submitted a brief on behalf of Commonwealth, appellee.

Price, Brosky and Montgomery, JJ. Price, J., dissents.

Author: Brosky

[ 288 Pa. Super. Page 48]

Appellant contends that the evidence is insufficient to sustain conviction for theft by deception. We agree with appellant. The decision of the lower court is reversed.

[ 288 Pa. Super. Page 49]

The offense of theft by deception is defined in 18 Pa.C.S.A. ยง 3922:

(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 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 subsequently perform the promise;

(2) prevents another from acquiring information which would affect his judgment of a transaction; or

(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the the deceived knows to be influencing another to whom he stands in fiduciary or confidential relationship.

(b) Exception. -- The term "deceive" does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to ...


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