Appeal from the Judgment of Sentence August 31, 1988 in the Court of Common Pleas of Fayette County Criminal Division, No. 562 of 1987.
Richard E. Bower, Assistant Public Defender, Uniontown, for appellant.
Alphonse P. Lepore, Jr., Assistant District Attorney, Uniontown, for Com., appellee.
Wieand, McEwen and Cercone, JJ. Wieand, J., files a dissenting opinion. McEwen, J., concurs in the result.
[ 385 Pa. Super. Page 394]
This is a direct appeal from a judgment of sentence. On June 7, 1988, appellant, William Lee Graham, was found guilty by jury of theft by deception.*fn1 The lower court subsequently denied appellant's motion for a new trial and/or in arrest of judgment and sentenced him to not less
[ 385 Pa. Super. Page 395]
than one (1) year nor more than two (2) years imprisonment. We reverse.
Appellant contends that the lower court erred in denying his demurrer regarding the crime of theft by deception.*fn2 Specifically, appellant argues that the Commonwealth did not establish the requisite intent for a conviction for theft by deception. We agree.
Reviewing the record, we note that appellant took the stand as a witness following the denial of his motion for demurrer. Recently, in Commonwealth v. Mott, 372 Pa. Super. 133, 539 A.2d 365 (1988), we stated regarding this type of situation:
Moreover, the law is settled in Pennsylvania that since the trial court denied the demurrer and the appellant thereafter presented a defense, his ability to challenge the propriety of the order denying the demurrer is foreclosed. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Olds, 322 Pa. Super. 442, 469 A.2d 1072 (1983). At this point a challenge to the correctness of the trial judge's ruling can only be regarded as a challenge to the sufficiency of the evidence. Commonwealth v. Hammock, 319 Pa. Super. 497, 466 A.2d 653 (1983).
Id. 372 Pa. Super. at 139-40, 539 A.2d at 368 (footnote omitted). See also Commonwealth v. Watson, 355 Pa. Super. 160, 512 A.2d 1261 (1986).
In the case sub judice, appellant's demurrer was denied and his counsel chose to proceed with the presentation of appellant's defense. Thus, appellant can not now challenge the propriety of the lower court's decision to deny his demurrer. We will, however, evaluate the ...