Commonwealth v. BruceCommonwealth v. Bruce
- Reporters:
- , ,
- Before:
- Popovich
This is аn appeal from the judgment of sentence entered in the Court of Common Pleas of Crawford County, following appellant’s conviction on one count of theft by deceptiоn.1 Appellant was sentenced to a term of imprisonment of thirty (30) months to sixty (60) months and ordered to make restitution in the amount of $47,340. The sole issue raised on appeal is whether the evidence was sufficient to sustain the verdict. Having reviewed the record, we conclude that the evidence was not sufficient to prove beyond a reasonable doubt that apрellant committed the offense of theft by deception. Accordingly, we reverse and discharge appellant.
“The test of the sufficiency of the evidence in a criminal cаse is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidеnce to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495-96, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 553-57, 488 A.2d 29, 31-32 (1985).
Applying the aforementioned standard, we glean from the rеcord the following facts: Appellant, David Bruce, a resident of Huntsville, Tennessee, worked as a broker/wholesaler of lumber, operating under the name D & R Lumber. Appellant would find and purchase lumber
In general, appellant and Ongley agreed that appellant would pick up a load of lumber from Ongley and delivеr it to the buyer. Appellant would charge the buyer for the lumber based on market prices plus a delivery fee. After appellant was paid by the buyer, he would pay Ongley. Appellant would receive a five percent wholesale discount from Ongley for each load of lumber he brokered and a seven percent discount for each load he actually paid for within ten days of his receipt of the load.
On June 27,1988, appellant took possession of three loads of lumber from Ongley with an approximate total value of $10,242. Shortly thereafter, appellant paid Ongley $6,785, the value of two of the loads. From July 22, 1988 through August 10, 1988, Ongley provided appellant with five more loads of lumber with an approximate total value of $19,981. Appellant then requested additional lumber. However, Ongley would not provide appellant with any more lumber until he paid for the outstanding six shipments. Appellant then proposed an agreement whereby he would give Ongley his interest in a sawmill in exchange for three additional loads of cherry lumber valued at $21,490 and credit against his outstanding balance. At the time of this exchаnge, Ongley valued the sawmill at $50,000. On August 28, 1988, Ongley provided appellant with another load of lumber valued at $5,230. Therefore, by September 1, 1988, appellant and Ongley were essentially even in their businеss dealings.
After the sawmill exchange, Ongley testified that he would no longer provide appellant with lumber without
After the last lumber shipment on October 10, 1988, Ongley would not provide appellant with any more lumber. Ongley and appellant began to negotiate how to satisfy аppellant’s debt. Appellant’s debt to Ongley was reduced by a payment of $6,973.68. Also, appellant gave Ongley a sawmill “edger” worth $3,500, and appellant permitted Ongley to sell the lumber owned by appellant which had been stored at Ongley’s lumber yard. The final outstanding indebtedness was found by the court to be $47,340. Ongley testified that he spoke to appellant almost daily conсerning payment. Eventually, appellant and Ongley employed attorneys in an attempt to resolve the matter. It appears negotiations continued up until the time when Ongley filed а private criminal complaint against appellant on June 28, 1989.2
Throughout the duration of their business relationship, appellant repeatedly told Ongley that he had not yet been paid for the lumber by the buyers, but as soon as he was paid he would pay Ongley. However, testimony revealed that appellant received timely payment from his various buyers, and, yet, aрpellant did not make timely payments to Ongley. In fact, approximately 90% of Ongley’s lumber was shipped to Korn Industries who always paid appellant for the lumber within several days of its reсeipt.
At trial, the Commonwеalth argued that appellant was guilty of theft by deception because he deceived Ongley into delivering lumber to him by giving him a worthless check and promising to pay for lumber in a timely mannеr which appellant never intended to do. The Commonwealth also noted that appellant often promised to pay Ongley more money than appellant actually rеceived for the lumber.
The crime of theft by deception is defined as follows: (a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by decеption. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from аcquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
(b) Exception. — The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.
Upon review, we find that the evidence was insufficient to sustain his conviction. A thorough review of appellant’s and Ongley’s entirе business relationship reveals that appellant did pay Ongley for all of the wood he received prior to September 6, 1988, and appellant paid for some of the loads supplied after that date. The record also reveals that the parties entered into extensive negotiations to settle the balance due on the lumber shipments deliverеd after September 6, 1988, and only after the negotiations failed to bear fruit did Ongley file a private criminal complaint. At no time during their relationship did appellant conceal his whеreabouts or true identity from Ongley.
The record amply demonstrates that appellant is not an adept businessman and did lie to Ongley about his receipt of payments from Korn Industries. However, there is no evidence that, at the time of the transaction, appellant did not intend to pay for the lumber. To paraphrase the comment of the Honorable Judge Dоnald Wieand in a similar situation, if appellant was a liar, it does not necessarily follow that he was also a thief. Peduzzi, 338 Pa.Superior Ct. at 558, 488 A.2d at 33. Clearly, this case represents nothing more than a failed business relationship and is properly the subject of a civil suit, not criminal action. Accordingly, we reverse appellant’s conviction for theft by deception.
Judgment of sentence is reversed, and appellant is discharged.
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