Commonwealth v. Robichow

487 A.2d 1000, 338 Pa. Super. 348, 1985 Pa. Super. LEXIS 5515

• Court: Supreme Court of Pennsylvania
• Decided: January 25, 1985
• Docket: 2100 Philadelphia 1983
• Status: Published

Opinions

TAMILIA, Judge:

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 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. § 3927.¹ The test of sufficiency of evidence is:

... 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

4. 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 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 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 the defense would be prejudiced by lack of fair notice or by surprise, (emphasis added)

The plain intent of this statute was to consolidate all theft charges into one, and “has as its aim the removal of all artificial distinctions between different forms of theft.” Commonwealth v. Belcher, 233 Pa.Super. 212, 335 A.2d 505 (1975).

In Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980), our Court in passing on distinctions in proof between theft by unlawful taking or disposition, section 3921, and receiving stolen property, section 3925, found that a “thieving state of mind” is the essence of the theft charge, and the purpose of section 3902 is to reduce the opportunity for technical defenses based upon legal distinctions between thefts of various kinds.

This crime of “theft” was intended to embrace the offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. It is intended by this subsection and this article to eliminate the technical distinctions between larceny, fraudulent conversion, etc. The basic philosophy adopted is that if a person takes something which does not belong to him, this constitutes theft. It is contemplated that the indictment will state facts justifying the conclusion that a theft was committed.

Commonwealth v. Shaffer, supra, 279 Pa.Superior Ct. at 24-25, 420 A.2d at 725-26, quoting Toll, Pennsylvania Crimes Code Annotated § 3902 at 420 (1974), reprinting the Comment of the Joint State Government Commission (1967) (emphasis added).

Thus the proof of theft, per se, is sufficient to establish the commission of the crime, whether it was titled theft by deception or theft by failure to make required disposition, the manner of taking simply being the specific details of the theft and not constituting different elements of the crime. Where the legislature intended a distinction, it did so in regard to various crimes which resembled theft but are not to be treated as theft under the Crimes Code, and “therefore, provided separate provisions for each crime on the grading of offenses. See, e.g. § 3928 (unauthorized use of automobiles or other vehicles), § 3929 (retail theft), and § 3930 (theft of trade secrets).” Commonwealth v. Belcher, supra, 335 Pa.Superior Ct. at 217-18, n. 4, 335 A.2d at 507, n. 4. The fact that the two sections under discussion here, section 3922 and section 3927, carry identical penalties pursuant to section 3903, grading of theft offenses, further supports the unitary concept of theft regardless of the specific manner of its commission. In Commonwealth v. Lewis, 299 Pa.Super. 367, 445 A.2d 798 (1982), this Court held that the trial judge was in error in granting a demurrer to the Commonwealth’s evidence when that evidence was sufficient to establish theft by receiving stolen property, even when the crime charged was theft by unlawful taking. In construing section 3902, Judge Wieand in his Opinion stated:

This statute means that a specific charge of theft will permit evidence showing another type of theft; provided only, that the defendant must be given adequate opportunity to respond so that he or she will not be prejudiced or surprised.

(Citations omitted). Id., 299 Pa.Superior Ct. at 371, 445 A.2d at 800. As considered by the standards discussed above, the elements stated in Commonwealth v. Crafton, supra, for section 3927, Theft by failure to make required disposition of funds received: 1.) The obtaining of property of another; 2.) Subject to an agreement of [sic] known legal obligation upon the recipient to make specific payments or other disposition thereof; and 3.) Intentionally dealing with the property obtained as the defendant’s own, established the “thieving state of mind” which is the unitary element of theft derivative of section 3902, the consolidation section of which Commonwealth v. Shafer, supra, speaks. The facts of the theft, whether they make out the particulars of section 3927, Theft by failure to make required disposition of funds received, or section 3922, Theft by deception, are sufficient to establish guilt of theft, if they establish the taking and a “thieving state of mind.” Commonwealth v. Lewis, supra.

Thus we believe the analysis proposed in the dissent is inappropriate in its application to theft charges generally, and in particular, to the instant case.

We conclude that the evidence establishes beyond a reasonable doubt that appellant obtained property of the complainant subject to an agreement to dispose of it in a certain manner which are the two elements challenged by appellant. As appellant does not challenge the findings as to the last two elements of the crime, intentionally dealing with the property obtained as his own and failure to make the required disposition of the property, we accordingly affirm the lower court’s order and the judgment of sentence.

Order affirmed and judgment of sentence affirmed.

JOHNSON, J., files a dissenting opinion.

1 . We note that in its Reply Brief, counsel for defendant responds to the Commonwealth’s exposition concerning interchangeability of enumerated theft charges and the proof thereof, pursuant to 18 Pa.C.S.A. § 3902, Consolidation of Theft Offenses. This issue was not raised in the Petition for Writ of Certiorari and never considered by the lower court. In addition, had the matter properly been raised, 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. Thus, the requirement of notice, with allowance of continuation where necessary provided in section 3902 to prepare for a defense to meet the proof of a different charge, is inapplicable here, and the decision of the lower court that a theft was committed could properly follow on the evidence. See Commonwealth v. Morin, 237 Pa.Super. 533, 352 A.2d 189, 193 n. 5 (1975), rev'd on other grounds, 477 Pa. 80, 383 A.2d 832 (1978).