NO. 911 PITTSBURGH, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Washington County, at No. 900 of 1979.
Janette Baisley Worstell, Assistant Public Defender, Washington, for appellant.
Michael S. Oreski, Assistant District Attorney, Washington, for Commonwealth, appellee.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 302 Pa. Super. Page 265]
In a bench trial appellant was found guilty of theft by deception, 18 Pa.C.S.A. § 3922. Post-trial motions, were denied and appellant was sentenced to two years probation. Although subdivided into three headings, only two contentions are advanced:
(1) the verdict was against the weight of the evidence and therefore contrary to law; and
(2) the trial judge erred in not granting a motion for severance.
Due to our resolution of the first issue we need not address the second contention.
The first contention resolves itself into a question of whether there was sufficient evidence to establish that appellant obtained partial payments on a contract by means of a deception (or deceptions) which existed at the time the payments were procured, as distinguished from a subsequent failure on his part to perform the contract he had undertaken.*fn1 See Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Dunmeyer, 5 Pa.D & C 3d 30 (1977).
[ 302 Pa. Super. Page 266]
On May 22, 1979, Mr. and Mrs. Jesse H. Landsperger, described as "an elderly couple" contracted with the appellant, who represented himself as "Bentley Builders". Appellant was to repair a porch for $841; he was paid a "down-payment" of 1/3, or $280.33. Mrs. Landsperger had been referred to appellant by her sister. Twenty days later, on June 11, 1979, the parties made a second contract, superseding the first, calling for the original repairs plus rebuilding a garage for a total cost of $4,965, at which time an additional $1,374 was paid to appellant, representing one-third (1/3) of the total price, after giving allowance for the first payment of $280.33. On June 15, 1979, according to Mrs. Landsperger, before any work had been done, and at appellant's request,*fn2 she paid him an additional $1,655 (a second 1/3 of $4,965). She testified that appellant said he needed money because of personal family problems, and appellant said that if the second $1,655 was then paid, he would build a patio at no additional cost.
Mrs. Landsperger further testified that between June 15, 1979 and June 26, 1979, appellant, using sometimes two men and sometimes four, tore down the old porch and garage and installed a footer (N.T., p. 35). On June 23, 1979, appellant requested and received $800, promising to build a retaining wall (R. 14). On June 29th, he received an additional $200. The payments totaled $4,309, approximately 87% of the contract price. No work was done by appellant after June 27, 1979. The Landspergers made repeated unsuccessful attempts to contact him, and then filed criminal charges in July, 1979, after which appellant made several promises to resume work, but never did. Appellant testified, and the Landspergers agreed, at least in part, ...