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COMMONWEALTH PENNSYLVANIA v. ROBERT DAVID (06/04/85)

submitted: June 4, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT DAVID, APPELLANT



Appeal from the judgment of sentence of July 23, 1984, in the Court of Common Pleas of Luzerne County, Criminal Division, at No. 1031 of 1982.

COUNSEL

Albert J. Flora, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.

Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Spaeth, President Judge, and Mcewen and Beck, JJ.

Author: Beck

[ 345 Pa. Super. Page 579]

Arguing that the money he withdrew from his brother and mother's bank account was the property solely of his brother and mother, appellant contests in this appeal the sufficiency of the evidence and the propriety of the jury instruction used to convict him of theft of bank property by deception. For the following reasons, we affirm the judgment of sentence.

Appellant was charged with theft by deception, 18 Pa.C.S. ยง 3922, of money belonging to United Penn Bank. At trial, the Commonwealth established that appellant had forged his brother's signature on an account withdrawal slip and had used the forged slip to withdraw $900 from his brother and mother's savings account at United Penn Bank. After the Commonwealth closed its case-in-chief, appellant demurred to the sufficiency of the prosecution's evidence on the ground that the Commonwealth had not proven that the money taken by appellant was the property of the United Penn Bank. Following the trial court's denial of appellant's demurrer, the defense rested. The trial court instructed the jury that the money withdrawn by appellant from his brother and mother's account belonged to United Penn Bank. The jury convicted appellant of taking the bank's property by deception. Appellant's post-verdict motions

[ 345 Pa. Super. Page 580]

    were denied, and appellant was subsequently sentenced to a prison term of eight to twenty-four months and was ordered to pay court costs and make restitution of the $900 within six months after his release from prison. Thereafter, appellant's motion to modify sentence was denied, and appellant timely filed this appeal.

Because appellant did not present a defense after the trial court's adverse ruling on his demurrer, the propriety of the ruling on the demurrer constitutes an issue preserved for appellate review. Commonwealth v. Hammock, 319 Pa. Super. 497, 466 A.2d 653 (1983). A trial court is justified in denying a defendant's demurrer if the Commonwealth has adduced sufficient evidence of each and every element of an offense to support a determination that the defendant is guilty of the offense beyond a reasonable doubt. Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980).

In the present case, appellant was accused of violating Section 3922 of the Crimes Code wherein

[a] person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person ...


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