dissenting.
I dissent. The majority states that Superior Court’s holding was “clearly correct” (Majority Opinion, p. 3). In elaborating upon its perception of the correctness of that holding, the majority states, “Appellee was convicted on the basis of the fact that he did not deliver cocaine to the informant. Nothing more. There are no additional facts in the record from which the intent to deceive could reasonably be inferred.” (emphasis added), (Majority Opinion, p. 4). The proscription against inferring the intent to deceive merely from a failure to perform a promise is contained in § 3922 of the Crimes Code, Theft by deception, which provides in relevant part:
(a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. 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 *254alone that he did‘ not subsequently perform the promise; (emphasis added).
The majority is incorrect in holding that there are no additional facts in the record from which the intent to deceive can be inferred. The record reveals that members of a state police narcotics squad had employed the informant in this case over a seven-month period for the purpose of making undercover drug purchases. During that time, the informant received $350.00 from two of the narcotics squad members for the purpose of making a purchase of cocaine. The informant met with appellee at a Uniontown bar and transferred the $350.00 to appellee with the understanding that appellee would purchase for the informant one-eighth of an ounce of cocaine. Appellee and the informant left the bar together and drove in the informant’s car to another Uniontown bar where the cocaine was to be obtained. Appellee directed the informant to wait in his car while appellee entered the bar and obtained the cocaine. The informant was under surveillance by the two narcotics squad officers who followed him in an unmarked car from the point at which he was given the $350.00. The informant waited for over an hour before being told by the officers to go into the bar appellee had entered to determine if appellee was still inside. The informant entered the bar and determined that appellee was not there. Appellee neither returned the $350.00 nor delivered the promised cocaine.
Additionally, this saga took place in an illegal context. The transaction here bears no similarity to the situation in Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977), relied upon by Superior Court in reversing the judgment of sentence in this case, and which involved a legal, contractual dispute between two experienced businessmen. Moreover, the language of § 3922(a)(1) which refers to a promise not subsequently performed is language which implies the transfer of property followed by the separate, subsequent performance of that promise. In the instant case, the *255promised performance was an integral part of an ongoing/ continuing transaction.1
Accordingly, I dissent and would reverse the order of Superior Court and reinstate the judgment of sentence.
FLAHERTY and McDERMOTT, JJ., join in this dissenting opinion.. The majority also asserts that the record contains no direct evidence of any kind that appellee promised to deliver drugs to the informant. To the contrary, the record contains such evidence, to wit, the testimony of the informant:
Q. Okay. Where did you give him $350.00?
A. At Petro’s Bar.
Q. Okay. What was your understanding once you left Petro’s Bar?
A. I was — he was suppose (sic) to get me an eighth ounce of cocaine.
(N.T. 6/6/88, p. 45).