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filed: January 25, 1985.


2100 PHILADELPHIA 1983, Appeal from the Order of July 7, 1983 in the Court of Common Pleas of Philadelphia County Criminal Division No. 78-07-1082; 82-915735.


Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Tamilia, Johnson and Hester, JJ. Johnson, J., files a dissenting opinion. Spaeth, Judge (concurring).

Author: Tamilia

[ 338 Pa. Super. Page 350]

This appeal arises from the denial of appellant's petition for a writ of certiorari by the Court of Common Pleas of Philadelphia County. Appellant was charged by Municipal Court No. 78-07-1082, with theft by failure to make required

[ 338 Pa. Super. Page 351]

    disposition of funds received, 18 Pa.C.S.A. § 3927. Appellant was convicted in a non-jury trial of violating section 3927 and sentenced to make restitution of $75 to the complainant, to pay $10 to the Victims' Compensation Fund, to pay $10 pursuant to the Domestic Abuse Act, and to pay costs of prosecution. Appellant filed a petition for writ of certiorari to the lower court alleging that the evidence was insufficient to support his conviction. The lower court denied the petition and appellant brought this appeal. We affirm.

The relevant facts are these:

On December 7, 1977, appellant contracted with the complainant, Rachel Word, to perform certain repairs to her home. A written agreement that had been prepared by appellant was admitted into evidence at trial. Among other things, appellant was to replace the door of complainant's home and fix her leaky roof. The contract price for the job was $135. Ms. Word gave appellant $75 at the time of contracting, and he refused to sign a receipt for the $75 advance payment made to him by complainant. Appellant neither performed any of the agreed upon work nor returned the $75 advanced payment to Ms. Word. Ms. Word neither saw nor heard from appellant after contracting with him. At trial, testimony was given by Ms. Word. Appellant proffered no testimony.

The single issue for our determination is whether there was sufficient evidence to convict appellant of the crime of theft by failure to make the required disposition of funds received. 18 Pa.C.S.A. § 3927.*fn1 The test of sufficiency of evidence is:

[ 338 Pa. Super. Page 352]

. . . 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 doubt . . .

Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); Commonwealth v. Henry, 323 Pa. Super. 260, 470 A.2d 581 (1983).

Applying this test, we conclude, as did the court below, that all elements of the crime were proved beyond a reasonable doubt.

Section 3927 of the Crimes Code reads as follows:

§ 3927. Theft by failure to make required disposition of funds received.

(a) Offense defined. -- A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition.

This Court reviewed this section in Commonwealth v. Crafton, 240 Pa. Super. 12, 367 A.2d 1092 (1976); allocatur denied, where we outlined the four elements necessary to complete the crime. They are:

1. The obtaining of property of another;

2. Subject to an agreement of [sic] known legal obligation upon the recipient to make specified payments or other disposition thereof;

3. Intentional dealing with the property obtained as the defendant's own; and

[ 338 Pa. Super. Page 3534]

. Failure of the defendant to make the required disposition of the property.

Id., 240 Pa. Superior Ct. at 16, 367 A.2d at 1094-95. See also, Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). Herein, appellant challenges the sufficiency of the evidence regarding only the first two elements.

Thus, we must determine if the evidence establishes beyond a reasonable doubt that appellant obtained property of another subject to an agreement or known legal obligation to make specified payments or other disposition. See Commonwealth v. Crafton, supra; 18 Pa.C.S.A. § 3927.

The evidence establishes that from the inception of the subject contract, appellant intended not to perform as contractually obligated. At the time of contracting, appellant refused to give complainant a receipt for the money advanced. Subsequently, he neither performed the work promised nor contacted the complainant to explain his failure to do the work. Because the evidence clearly establishes that the advance money was fraudulently obtained at the inception of contracting, title did not pass to appellant, and appellant's possession of the money was ". . . property of another . . . ." Accordingly, appellant's reliance on Commonwealth v. Austin, 258 Pa. Super. 461, 393 A.2d 36 (1978), is misconceived. In Austin, we held that a defendant did not fraudulently take the money of another since he performed on the construction contract for almost two months after receipt of the money, and it was only after economic problems, that defendant ceased to work. Compare Commonwealth v. Bhojwani, 242 Pa. Super. 406, 364 A.2d 335 (1976) (evidence produced led to conclusion that from the inception of the contract, defendant never intended to place the order for the clothes of his customers).

The dissent perceives no distinction between Austin and the present case, but we believe the distinction detailed above is an obvious one. If we were to adopt the dissent's view, we would give a blanket immunity to the scam operators who sweep through neighborhoods, giving glib promises and authentic looking agreements, taking whatever

[ 338 Pa. Super. Page 354]

    money they can obtain, particularly from trusting and dependent elderly people, then never to be seen again. It is the intent that controls and not the superficial appearance of legality upon which the dissent relies. The larcenous intent can be inferred from all of the circumstances, and we are unable to say that the trial court abused its discretion in finding its existence here.

We also find that appellant obtained the property of another "upon agreement . . . to make specific payment or other disposition . . . ." 18 Pa.C.S.A. § 3927. Appellant had a clear legal duty to make disposition of the funds in a certain manner, namely, by procuring necessary materials to begin his repairs. See generally, Commonwealth v. Shapiro, 275 Pa. Super. 28, 418 A.2d 594 (1980). The evidence, viewed in the light most favorable to the Commonwealth, establishes that pursuant to the party's contract, money was advanced at least in part, so that appellant would purchase necessary construction materials. As complainant testified at trial: ". . . [appellant] was supposed to do some work for me and one thing he was to put [sic] up a door and there was a leak on my roof, he was supposed to do that . . . [for] $135." (N.T. p. 4) Possessed with fraudulent intent at the time of obtaining the advance money, appellant never used the money to fulfill his contractual obligations. Compare Commonwealth v. Austin, supra.

The dissent disagrees with the majority's footnote 1 that "we perceive no difference in the proof required for theft by deception, section 3922, and the charge found here, theft by failure to make required disposition, section 3927." In his dissenting opinion, Judge Johnson would distinguish between the proof of the elements of the two offenses and find that since the manner of committing the crimes is different, the elements of the crimes are different. This is precisely what section 3902 of the Crimes Code was drafted to eliminate. It provides as follows:

§ 3902 Consolidation of theft offenses.

Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported

[ 338 Pa. Super. Page 355]

    by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of ...

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