No. 1600 April Term, 1978, No. 1595 April Term, 1978, Appeals from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 7704348A.
H. David Rothman, Pittsburgh, for appellant in No. 1595 and for appellee in No. 1600.
F. Peter Dixon, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant in No. 1600 and appellee in No. 1595.
Price, Cavanaugh and Hoffman, JJ. Price, J., did not participate in the consideration or decision of this case.
[ 293 Pa. Super. Page 81]
These are cross appeals from an order granting a new trial on a charge of theft by deception.*fn1 In its appeal, the Commonwealth contends the jury was properly instructed and therefore seeks reinstatement of the jury's verdict. Defendant seeks arrest of judgment in his appeal, or alternatively, to uphold the order granting a new trial. Because we agree with defendant that a fatal variance existed between the indictment and the jury instructions, we affirm the order granting a new trial.
The evidence indicated that defendant (an attorney), one of his clients (Todd), and a bail bondsman (Leavitt) formed a coal brokerage business, American International Company, which contracted to supply a local utility with low-sulfur coal. If the average sulfur content for any month's shipment exceeded the specified level, the utility could cancel the remainder of the contract and pay only half the approximately $120,000-per-month contract price for the non-conforming shipment. To measure sulfur content, the utility would accumulate samples of pulverized coal for each 10-day period, store them in a shed, and subsequently test them before making payment. American International's first twenty days of shipment drastically exceeded the specified sulfur level. The defendant met several times with Todd and Leavitt to discuss the problem. One night soon thereafter
[ 293 Pa. Super. Page 82]
Todd and Leavitt went to the utility's shed and replaced the last 10-day sample from their company with a similar quantity of extra-low-sulfur metalurgical grade coal. Although Todd told defendant about the sample switch the following day, defendant did not notify the utility. As a result of the switch, the month's sulfur content was within specified levels, and a few weeks later defendant accepted the utility's full payment of $120,000 on behalf of American International.
At the close of testimony, the lower court instructed the jury on the elements of theft by deception and accomplice liability. Additionally, it instructed the jury, over defendant's objection, that, even if it could not find defendant had acted intentionally, it could convict him of theft by deception if it found he had recklessly omitted to perform a duty imposed by law upon the brokerage business for which he was the primary responsible agent. The jury convicted defendant. Upon defendant's post-trial motions the lower court en banc deemed the additional instructions concerning reckless omission to be error and granted a new trial. These appeals followed.
Appellant contends that the instruction concerning reckless omission of a corporate duty was at such a variance from the indictment as to be fatal to the verdict. We agree. The indictment charged defendant as follows:
On or about May 13, 1975, said actor did personally or through an accomplice intentionally obtain $61,542.49, being the property of West Penn Power Company, by deception; to wit said actor did create and reinforce a false impression as to the quality and value of coal delivered to the Armstrong Power Station at Reesdale during April, 1975, said deliveries being made pursuant to a contract between West Penn Power Company and American International Company.
(Emphasis added.) The Commonwealth's indictment thus alleged that defendant, personally or through an accomplice, intentionally obtained ...