(concurring):
I agree with the majority that the judgment of sentence in this case should be affirmed. I do not agree, however, with the majority’s dicta in footnote three. Section 3902 of the Crimes Code, 19 Pa.C.S. § 3902, does not mean that on appeal an appellate court can substitute a different theft offense for the one the defendant was convicted of in the court below. It merely permits the trial court to consolidate theft offenses where the evidence differs from the indictment or complaint and where the defend*362ant has had adequate notice and preparation time to ensure a fair trial on the consolidated offenses.
Commonwealth v. Morin, 237 Pa.Super. at 542-3, 352 A.2d at 194. (emphasis in original).
In Commonwealth v. Adams, supra, also relied upon by the Lewis panel as to the first ground for reversal, the conviction of theft by unlawful taking or disposition was affirmed per curiam without a majority opinion being filed. In a published concurring opinion, (in which Judge Spaeth joined), Judge HOFFMAN found that the evidence was ample to sustain a conviction on receiving stolen property on Judge Hoffman’s rationale that the defendant had “retained movable property of another knowing that it had been stolen.” That rationale has only been accepted by the author, thereof, in another concurring opinion to Commonwealth v. Farmer, 244 Pa.Super. 334, 368 A.2d 748, 753 (1976), and in the citation by Judge Wieand in Lewis.
Turning to the second alternative ground for the holding in Lewis, our court cites to Commonwealth v. Stevens, supra, for the proposition that an indictment charging robbery will support evidence of theft committed in any manner specified in Chapter 39 of the Crimes Code. Our court did hold in Stevens that a conviction for theft would be sustained where the indictment had been for robbery, on the basis that one must be “in the course of committing a theft” in order to commit a robbery, see 18 Pa.C.S. § 3701, and that the evidence was sufficient to prove theft by unlawful taking under Section 3921(a).
As to the precedential value of Commonwealth v. Lewis, it is worthy of note that the decision resulted in the case being returned to the juvenile court for further proceedings, following the reversal of the order sustaining the demurrer. Lewis did not involve an appeal from judgment of sentence, as in the present case, where the issue is whether a conviction may stand without proof of all the elements of the only crime charged.
In summary, I dissent from the majority’s conclusion that the dicta appearing in Belcher, Shaffer, and Lewis provide *363any support for the very novel proposition advanced in the opinion of the majority here: “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’ ”. Majority Opinion at 1005.
The record is quite clear that until this case came to this court on review, there was never a suggestion that appellant had committed any crime except theft by failure to make required disposition of funds received, found in Section 3927. Although the majority notes that the appellant proferred no testimony, I should think that no person is required to respond to charges that have not been advanced!
It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
I believe that the discussion of the “plain intent” of Section 3902 of the Crimes Code, in which our court has engaged in the past, is both misleading and mistaken, and fraught with potential constitutional problems. Section 3902 provides:
§ 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 *364would be prejudiced by lack of fair notice or by surprise. (emphasis supplied.)
The emphasis of the majority, and the prior statements of our court, have been on the constitution of theft as a “single offense” and the “consolidation” of all theft charges into one, whatever that means. Insufficient respect has been paid to the necessity that the trial court “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.” Without the latter, the former poses severe constitutional problems. At the very least, the entire section must be read to mean that a defendant be given ample notice, at trial and as part of the Commonwealth’s case, of all of the elements of a crime upon which the state seeks conviction.
Neither the Commonwealth in its brief nor the majority in its opinion suggests that appellant was afforded any notice that his conviction would depend upon a finding that he had violated Section 3922, theft by deception, rather than Section 3927 upon which he was, in fact, charged and convicted. It is both unnecessary and inappropriate, therefore, to dwell on whether the evidence was sufficient to prove theft by deception.
Returning then to the primary issue on this appeal, were the facts at trial sufficient to prove that appellant had obtained the property of another subject to an agreement to make specified payments or other disposition thereof? I conclude that they were not, and that the conviction should be reversed.
Our supreme court, citing to Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094-96 (1976), has set forth the four elements necessary to complete the crime:
As defined by Section 3927 of our Crimes Code, theft by failure to make required disposition of funds received has four elements:
1. The obtaining of property of another;
*3652. Subject to an agreement or 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.
Commonwealth v. Ohle, 503 Pa. 566, 581, 470 A.2d 61, 69 (1983) (footnote setting forth Section 3927 in its entirety omitted).
Appellant’s contention that the Commonwealth failed to prove either of the first two elements of the crime is well taken. One does not obtain “the property of another” by accepting an advance payment on a service contract which does not require a specific disposition of the funds, since title and possession of the funds passes to the recipient. In Commonwealth v. Bartello, 225 Pa.Super. 277, 301 A.2d 885 (1973), we reversed a conviction for fraudulent conversion under the old Section 4834 of the Penal Code of 1939 which the present Section 3927 has replaced. The defendant in Bartello, like the appellant in the case now before us, had entered into a construction contract, received an advance payment under the contract, and failed to either finish the job or return the money. There, we said:
While the appellant was undoubtedly guilty of breach of contract and perhaps even of fraud, he was not guilty of the crime of fraudulent conversion ...
The complainant must have title in the property at the time the conversion accrues to sustain a finding of fraudulent conversion. Commonwealth v. Yocum, [211 Pa.Super. 17, 234 A.2d 43 (1967) ]. Here clearly title passed to the appellant as the payments were within the contract price ... and render the appellant liable to perform the services under the contract ...
It seems apparent that in a simple contract providing for certain services at certain prices that where there is a transfer of money, within the contract price, even in *366advance of a due date, that title as well as possession passes and only a contractual obligation remains.
Id., 225 Pa.Superior Ct. at 279, 280, 301 A.2d at 886, 887.
I am unable to discern how the Commonwealth has established the first element set forth in Ohle, supra, “the obtaining of property of another,” since both title and possession of the $75 would have passed to appellant. The majority would hold, without citation to any authority to support it, that 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.’ ” The factual basis for this conclusion appears to be that appellant refused to give complainant a receipt for the money advanced, did not perform the work, and did not contact complainant to explain his failure to do the work.
The difficulty I have with this analysis is that deceit is not one of the elements involved under Section 3927, which is before us, but rather an element under Section 3922, theft by deception, which is not before us. Even if this court were permitted to make an analysis of deception on appeal, which the trial court did not do, I could not agree with the majority that the evidence “clearly establishes” fraudulent intent. This is so because our legislature has properly mandated that 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. 18 Pa.C.S. § 3922(a)(1).
Both the trial court and the majority attempt to distinguish Commonwealth v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978), a plurality decision of this court construing Section 3927, and relying on Bartello. In Austin, the contractor had agreed to do home improvement work under a written agreement. A portion of the contract price was paid to the defendant in advance, as per the terms of the agreement. At the homeowner’s request, a receipt was given for the advance to permit the homeowners to satisfy a bank which was to finance the project. After the work had *367progressed for two months, the defendant stopped work, resulting in a charge of theft by unauthorized disposition of the advance money paid on the contract. In reversing the conviction under Section 3927, Judge CERCONE stated:
with respect to the first element, “the obtaining of property of another,” we do not feel the acceptance of advance money on a construction contract is the property of another.
Id., 258 Pa.Superior Ct. at 466, 393 A.2d at 38 (emphasis in original).
In deciding Austin, Judge Cercone had occasion to consider and distinguish two other cases already construing Section 3927. He found, as I find, that both Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976) and Commonwealth v. Bhojwani, 242 Pa.Super. 406, 364 A.2d 335 (1976) involved cases where the conviction had been upheld on a clear showing that the property obtained and held by the defendant involved an agreement where the defendant served as an intermediary. See Commonwealth v. Crafton, supra, (travel agent); Commonwealth v. Bhojwani, supra, (monies received to purchase clothing from Hong Kong tailor); cf. Commonwealth v. Shapiro, 275 Pa.Super. 28, 418 A.2d 594 (1980).
Since I conclude that appellant had not “obtained the property of another,” it is unnecessary to determine whether the $75 paid to appellant was subject to an agreement or known legal obligation upon the appellant to make specified disposition thereof. Even if one were to assume that the money remained the property of the homeowner, the facts here involved fall far short of establishing either an agreement or known legal obligation as to how this particular down payment was to be spent or used by appellant. As in Austin, the agreement is silent on the subject of specific dispositional requirements. While it is certain that appellant was obligated to ultimately purchase the materials necessary to install the door and repair the leak in the roof, it is equally clear that there is absolutely no testimony or other evidence that appellant was either expected or re*368quired to use the advance payment solely for the purchase of construction materials. Nor do I understand the Commonwealth to argue otherwise.
Since the Commonwealth has not established either of the first two elements necessary for a conviction under Section 3927, I would reverse and discharge appellant.