dissenting:
I conclude that the evidence was totally lacking to justify a rational trier of the facts to find guilt beyond a reasonable doubt on the only charge upon which appellant was tried. Appellant contends that the Commonwealth failed to adequately prove the first two elements of the crime of theft by failure to make required disposition of funds received. I agree and would therefore reverse the judgment of sentence and discharge appellant. Hence this dissent.
The only evidence presented by the Commonwealth was the testimony of the alleged victim, Rachel Word, and the written agreement upon which the charge was based. The *358agreement was not transmitted with the record to this court. Word testified that appellant agreed to do some work on her home for the agreed price of $135. Part of that work involved installing a door and repairing a leak in the roof. Word gave appellant $75 at the time the agreement was made. She testified that appellant did not want to acknowledge in writing his receipt of that money. None of the agreed work was ever done. Appellant did not return any of the initial $75 payment.
On these facts, the Municipal Court of Philadelphia found appellant guilty of violating 18 Pa.C.S. § 3927 for failing to make required disposition of funds received. Certiorari was denied by the Court of Common Pleas, prompting this appeal.
Section 3927(a) sets forth:
§ 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. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.
Preliminarily, I note my strong dissent to the majority’s assertion in footnote 1 that it “perceive[s] no difference in the proof required for theft by deception, [18 Pa.C.S.] section 3922, and the charge found here, theft by failure to make required disposition, section 3927.” Majority opinion, at 1002. The Commonwealth virtually concedes that the conviction cannot stand under Section 3927 when it seeks to argue in its brief to this court: “II. DEFENDANT’S CONVICTION SHOULD BE AFFIRMED UNDER 18 PA. C.S.A. § 3902, CONSOLIDATION OF THEFT OF*359FENSES.” Brief for Commonwealth at 7-10. The thrust of the Commonwealth’s argument appears to be that since “[t]he record plainly shows that defendant could alternatively have been convicted of Theft by Deception,” appellant’s “ ‘thieving state of mind,’ evidence by his refusal to sign a receipt, provide any materials, do an iota of work, return any of the money, or even face his victim, is ample grounds upon which to affirm his conviction.” Id. at 9-10.
The majority directly adopts this argument of the Commonwealth, acknowledging its acceptance of the argument’s validity both in its footnote 1 and in the last third of its opinion. In my view, none of the cases relied upon by the majority justify such a stance.
Admittedly, our court in Commonwealth v. Belcher, 233 Pa.Super. 212, 335 A.2d 505 (1975) engaged in dicta to the effect that:
It would be illogical to construe the new Crimes Code, which has as its aim the removal of all artificial distinctions between different forms of theft (including receiving stolen property), as introducing a distinction in grade of offense between receivers and other thieves which did not even exist under the old statutes.
Id., 233 Pa.Superior Ct. at 217, 335 A.2d at 507. However, the only issue before the Belcher court was whether 18 Pa.C.S. § 3903(a), involving grading of theft offenses, should be construed so as to require that a defendant charged with receiving stolen property could only be found guilty of a third degree felony where it is proven that he is in the business of buying or selling stolen property.
Unlike the appeal now before us, Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980), involved an appeal from a conviction on one count of receiving stolen property (18 Pa.C.S. § 3925) where the defendant had been acquitted of another count of theft by unlawful taking or disposition (18 Pa.C.S. § 3921). The defendant argued on appeal that since he had been acquitted of theft by unlawful taking or disposition, the jury must have believed that the goods which he had sold — and which supported his *360conviction on receiving stolen property — could not have been stolen. In a panel opinion, our court held that consistency in a jury’s verdict is unnecessary, provided there is sufficient evidence to support the convictions the jury has returned, and that inconsistency in verdicts affords an accused no cause for relief, even though it may be difficult to reconcile the verdicts. Id., 279 Pa.Superior Ct. at 22, 420 A.2d at 724. I am unable to read the rather extended dicta following the holding in Shaffer as finding that Section 3902 of the Crimes Code can be interpreted as removing the distinction between the proof required for theft by deception in Section 3922 and the proof required for theft by failure to make required disposition, in Section 3927.
Nor do I find Commonwealth v. Lewis, 299 Pa.Super. 367, 445 A.2d 798 (1982) conclusive as to the majority’s position. In that case, two juveniles were arrested and charged with homicide, robbery, aggravated assault, theft by unlawful taking and conspiracy. At the conclusion of the Commonwealth’s case in the adjudication phase of the delinquency proceeding, the hearing court sustained demurrers to all charges, holding that the evidence was sufficient to show only theft by receiving stolen property. In reversing, a panel of our court agreed with the hearing court that the evidence was sufficient to prove theft by receiving stolen property. We reversed on two distinct and alternative grounds. Speaking for the three-judge panel, Judge WIEAND stated:
The statute [18 Pa.C.S. § 3902] 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. See Commonwealth v. Morin, 237 Pa.Superior Ct. 533, 541-2 n. 3, 352 A.2d 189, 193 n. 3 (1975), rev’d on other grounds, 477 Pa. 80, 383 A.2d 832 (1978). See also Commonwealth v. Adams, 236 Pa.Superior Ct. 534, 345 A.2d 192 (1975) (Concurring Opinion by Hoffman, J.), aff'd, 479 Pa. 508, 388 A.2d 1046 (1978). It has also been held that because theft is a *361lesser included offense of robbery, an indictment charging robbery will support evidence of theft committed in any manner specified in the chapter of the Crimes Code which defines the several offenses of theft.2 See Commonwealth v. Stevens, 237 Pa.Superior Ct. 457, 465-66, 352 A.2d 509, 512-14 (1975).
We conclude, therefore, that the court below erred when, despite prima facie evidence of theft by receiving stolen property, it sustained appellees’ demurrers to charges of delinquency.
Id., 299 Pa.Superior Ct. at 371-72, 445 A.2d at 800.
My research does not disclose that Commonwealth v. Lewis has been cited for any purpose since its publication. With respect to the first ground advanced as supporting reversal, I find that neither of the cases relied upon to support the court’s interpretation of Section 3902 involved facts which afford a reasoned foundation for the Lewis pronouncement. In Commonwealth v. Morin, supra, the defendant was tried and convicted on a charge of theft by deception and our court found the evidence sufficient to warrant conviction on that very charge. In a footnote, the opinion writer opined that if the evidence had been insufficient, the defendant could have been found guilty of theft by unlawful taking or disposition. The concurring opinion of Judge [now President Judge] SPAETH in Morin, in my view, provides a correct and complete answer to the footnote: