Commonwealth v. Stone
| Decision Date | 15 January 1975 |
| Docket Number | 1273 of 1974 |
| Citation | 70 Pa. D. & C.2d 395 |
| Parties | Commonwealth v. Stone |
| Court | Pennsylvania Commonwealth Court |
Thomas R. Hecker, for Commonwealth.
Richard S. Wasserbly, for defendant.
Motions in arrest of judgment and for new trial.
The primary question before us in the instant matter is whether section 3922 of the Pennsylvania Crimes Code of December 6, 1972, P.L. 1068 (No. 334), effective June 6, 1973, 18 Pa. S. § 3922, setting forth the crime of theft by deception, is an enlargement of the crime of cheating by fraudulent pretenses as spelled out in The Penal Code of June 24, 1939, P.L. 872, sec. 836, as amended, 18 PS § 4836.
Defendant, David Stone, was charged by Mrs. Harold R. Cody, Jr., in a private criminal complaint with theft by deception. Defendant proceeded to trial without benefit of jury before the undersigned. At the conclusion of the Commonwealth's case, defendant's motion for a demurrer was overruled. The defense then rested without offering evidence and thereafter a verdict of guilty was rendered.
The Commonwealth called but one witness, namely Mrs. Cody, and her testimony stands unrebutted concerning the facts of defendant's involvement with her and her husband. Her testimony, as here pertinent, is as follows:
On April 17, 1974, defendant appeared at her home and told her that the Dice Real Estate Company had sent him to inquire as to whether she would like to have her house painted. At Mrs. Cody's request, after looking around the premises, defendant gave her an estimate that he would paint the house for a cost of $ 500. She told him she would have to discuss his offer with her husband before she could give him a reply. Mrs. Cody gave defendant her telephone number and invited him to call that same evening, but she did not hear from him until the next morning, when he again visited her home, at which time she told him that her husband intended to do the (painting) work himself.
Over one week later, Mrs. Cody called the telephone number which defendant had provided her (whether she spoke with defendant himself is not clear), and said that she and her husband had decided to have defendant paint their home. Instead of contacting her by telephone, defendant again appeared at the Cody home on the morning of Saturday, April 28. He then told her that he would require a deposit from the Codys in the sum of $ 250., so that he could purchase materials. A check in that amount was handed to him and he said that he would return at 8:30 the following morning to commence work.
Defendant did not appear for work on Monday. On Monday afternoon he called to tell Mrs. Cody that he could not begin work that day. She told him they no longer wanted him to do the painting for them. Either during the course of that conversation or a later one the same Monday, defendant informed Mrs. Cody that he had " purchased some materials and paint and primer to do the work on her house and that he had spent $ 70. over what we had given him (Notes of Testimony, 13)." She told him that if he would give them the materials that he had bought, along with the receipt evidencing his purchase, the Codys would reimburse him for the excess of his expenditures over the moneys they had already paid him. Defendant never delivered the material to their home nor performed any work on their home.
The check previously referred to was subsequently cancelled by the Codys' bank and returned to them as of course with their bank statement. On the reverse side of the check appears a signature " David Stone." Over defendant's objection, the cancelled check was admitted into evidence as Commonwealth exhibit " C-1."
Defense counsel contends that the only theory on which the guilty verdict could rest is that defendant obtained property of Mrs. Cody by intentionally creating a false impression as to his intention to perform the work, that is, that defendant, although stating that he was going to perform the work, did not intend to do so. The defense, therefore, asserts that since there was no false representation of an existing fact by defendant, the crime of theft by deception has not been established, or in the alternative that if the present Crimes Code does cover a false representation of an intention to perform a promise that there was nothing shown in the evidence in this case to support a factual conclusion that defendant did not intend to perform the promised painting. With each of these propositions we disagree for the following reasons:
There seems to be no doubt, and the Commonwealth so concedes, that if this factual situation had been presented under The Penal Code of 1939, a demurrer should have been sustained. Numerous cases can be found standing for the proposition that the crime of cheating by fraudulent pretenses must have as a necessary element the false representation of an existing fact: Commonwealth v. Wright, 220 Pa.Super 12 (1971); Commonwealth v. Silia, 194 Pa.Super 291 (1960), cert. den. 368 U.S. 969, 82 S.Ct. 443, 7 L.Ed.2d 397 (1962).
There can also be no doubt that in the minds and words of those writers who have discussed this area of our Crimes Code that the framers thereof attempted to widen the concept of the crime of cheating by fraudulent pretenses. See Jarvis, Penna. Crimes Code and Criminal Law, § 3922 -- discussion -- page 6. Toll, Penna. Crimes Code Annotated, page 429, whereat it is stated: ; Goldblatt and Belsky, Analysis and Commentary to the Penna. Crimes Code, page 94.
The degree to which the old law of cheating by fraudulent pretenses was broadened by the new Crimes Code is, however somewhat difficult to articulate. It appears to the undersigned that the framers of this section had to and did proceed most cautiously in attempting to achieve the desired result. That result, as I view it, is not to have a breach of contract situation (which is clearly civil in nature) now designated as a crime, but to get within the grasp of the criminal law the confidence men...
To continue reading
Request your trial