Commonwealth v. Schomaker

HOFFMAN, Judge:

These are cross appeals from an order granting a new trial on a charge of theft by deception. 1 In its appeal, the Commonwealth contends the jury was properly instructed and therefore seeks reinstatement of the jury’s verdict. Defendant seeks arrest of judgment in his appeal, or alternatively, to uphold the order granting a new trial. Because we agree with defendant that a fatal variance existed between the indictment and the jury instructions, we affirm the order granting a new trial.

The evidence indicated that defendant (an attorney), one of his clients (Todd), and a bail…