No. 2686 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cumberland County, Nos. 941, 942, 943, 944, 945 and 946, 1980.
Robert D. Kodak, Harrisburg, for appellant.
John M. Eakin, District Attorney, Carlisle, for Commonwealth, appellee.
Brosky, Wieand and McEwen, JJ. McEwen, J., files a concurring opinion.
[ 338 Pa. Super. Page 553]
Alfred Peduzzi, III, was tried non-jury and was found guilty of theft by failure to make required disposition of borrowed money. After post-trial motions had been filed and argued, the trial court concluded that the evidence did not support the conviction. Instead of discharging Peduzzi, however, the trial court amended its verdict and found Peduzzi guilty of theft by deception. Peduzzi was subsequently sentenced on this conviction and thereafter appealed. We reverse.
In the first place, the trial court's procedure was defective. Appellant had not been charged with the crime of theft by deception and had not been tried for that offense. Informations filed to Nos. 941 to 946 of 1980 charged that Alfred Peduzzi, III had used funds loaned to him by others for purposes other than the purposes for which the loans had been made, allegedly in violation of 18 Pa.C.S. § 3927. After all the evidence had been received,*fn1 the trial court found Peduzzi guilty in a verdict recorded as follows:
[ 338 Pa. Super. Page 554]
"AND NOW, March 2, 1981, at 4:25 p.m., after hearing and careful consideration of the evidence, the court finds the defendant guilty on each charge in the informations, as presented by the District Attorney. Bail to remain as heretofore set." (Emphasis added.)*fn2
This verdict was unambiguous. Peduzzi had been found guilty of theft by failure to make required disposition of the moneys which he had borrowed. The trial court subsequently concluded that the evidence was insufficient to establish offenses of theft by failure to make required disposition as defined at 18 Pa.C.S. § 3927.*fn3 In view of this determination, Peduzzi should have been discharged. Instead, the court belatedly found him guilty of another offense.
To alter the verdict after trial so as to find appellant guilty of a new and different offense, without any notice or opportunity to be heard, was error. Contrary to the trial
[ 338 Pa. Super. Page 555]
court's belief, 18 Pa.C.S. § 3902 does not sanction such a procedure. See: Commonwealth v. Lewis, 299 Pa. Super. 367, 371, 445 A.2d 798, 800 (1982). Cf. Commonwealth v. Morin, 237 Pa. Super. 533, 542-543, 352 A.2d 189, 194 (1975) (Spaeth, J. concurring), rev'd on other grounds, 477 Pa. 80, 383 A.2d 832 (1978). Section 3902 of the Crimes Code was intended to allow the Commonwealth to introduce evidence at trial of any form of theft regardless of the form of theft charged but subject to the defendant's right to fair notice and an opportunity to defend. Commonwealth v. Lewis, supra; Comment, Theft And Related Offenses In The New Pennsylvania Crimes Code: A New Concept In Property Offenses, 78 Dick.L.R. 44, 48 (1973-1974). See also: Commonwealth v. Adams, 236 Pa. Super. 534, 345 A.2d 192 (1975) (Hoffman, J. concurring). The consolidation contemplated by section 3902 must occur prior to, not after, a verdict has been ...