*1
Supreme Pennsylvania. Court
Argued March 2, 1980. May Decided *3 Mestel, Vierthaler, Mestel, Butler, John J. J. Sanders Benson, Ohio, Canton, for Cummings appellant. & Hawk, Butler, for Atty., Robert Dist. appellee. F. Asst. ROBERTS, NIX, EAGEN, O’BRIEN, J., Before C. and LARSEN, KAUFFMAN, JJ. FLAHERTY and
OPINION LARSEN, Justice. W. was convicted in the But- Richard Stockard five counts of violat-
ler of Common Pleas of County Court (“Theft of the 1972 failure Crimes Code ing Section received”) and five of funds disposition to make required violating l-^Ol(b)2 Section counts Prac- (“Fraudulent and Prohibited Act Post-verdict motions were Purchases”). tices”—“Sales (one was sentenced to ten terms denied and appellant one for not less than two and count) imprisonment each All of terms were more than five years. half nor years two, which were consecutive. for the first except concurrent the costs of required pay Additionally, appellant restitution to the victims of and to make prosecution -, A.2d Court, 266 Superior Pa.Super. The crimes. and we granted appel- affirmed convictions appellant’s of appeal. lant’s for allowance petition was insufficient first contention is that there his convictions for violating evidence to support 3927(a) provides: of the 1972 Crimes Code. Section or upon agreement, obtains property A who person to make obligation, specified a known subject legal from such property or other whether disposition, payments reserved in from his own be property or its or proceeds amount, if he intentionally is theft equivalent guilty as his own and fails to deals with the obtained property The disposition. foregoing make the required payment it be to iden- may impossible applies notwithstanding *4 the as to the victim at belonging tify particular property to make the required of the actor time of the failure disposition. payment evidence, we of the sufficiency
“To evaluate the most favorable to the light view evidence in the must the winner, as true all the accept as verdict (1973). 1. 18 Pa.C.S.A. 3927 1280, 284, 401, 5, 1972, l-401(b) 70 P.S. §
2. Act of December P.L. No. (1979-80 Supp.). which, if be- upon inferences and all reasonable evidence verdict, its and lieved, have based properly the could jury suffi- and inferences are such evidence determine whether a reasonable doubt. prove guilt beyond in law to cient to upon trier of fact Moreover, pass it of the province is the be the to accorded weight of witnesses and credibility the all, to The fact finder is free believe evidence produced. Tate, v. the evidence.” Commonwealth or none of part (1979). 182, 353, A.2d 180, Pa. standard, this the record establishes
Viewed under 1973, formed a appellant corporation that in or about June Chicken, (here Fried Inc.” Recipe entitled “Erich’s Famous At the time corporation”). inafter referred as “the owned various restaurants. incorporation, appellant already $50,000 Leas Security He also owed to Investor’s personally (ISL). ing November, 1973, sold a appellant and September
Between $24,530 As in to five investors. corporate total of stock was di- making appellant investors were these payments, $20,000 corporation’s a total of funds ISL verting loan. di- personal aforementioned repay in version of funds occurred manner: corporate following 19,1973, a 1) paid Between 6 and three investors September stock; for $12,500 corporation appellant total of to the bank account and on deposited corporate these funds $10,000 24, 1973, corporate paid September appellant ISL; funds to 11, 1973, $7,005to fourth investor
2) paid On October stock; these funds corporation appellant deposited 15, 1973, account and on corporate bank October ISL;3 $5,000 corporate funds to paid 1973, $5,025to 9, paid a fifth investor 3) On November stock; funds in appellant deposited for these corporation 1973, on bank account and November corporate $5,000 corporate funds to ISL. paid $3,000 paid corporation 3. The investor also another fourth stock; corporate depositing than these funds bank rather account, appellant private (non-corporate) deposited said funds in a account. *5 record establishes that after clearly appellant, the Since $24,530 from five investors for use in the obtaining a total $20,000 of purposes, corpo- furtherance of diverted corporate his own there is personal obligations, rate fund to repay violating sufficient evidence to his convictions for support section 3927.4 contention is that there was insuf second violating
ficient evidence to his convictions for Sec support Act. l-401(b) tion l-401(b) provides: in connection with the
It is unlawful for any person, State, offer, sale or in this purchase any security directly indirectly: of a material fact or
(b) To make untrue statement any fact in order to make necessary to omit to state a material made, the statements of the circumstances light made, not misleading. under which are they that when trial, At each of the five investors testified them, to each of stated that appellant sold stock sale of the stock would be used the funds received from the and, to a restau- corporation, specifically, open to expand Etna, The investors testified that rant in Pennsylvania. the investors that he personally did not inform $50,000 to and that a of the funds received portion owed ISL his repay sale of stock would be used corporate from the the stock to Appellant, selling loan from ISL. personal in not them of his intention informing the five investors and sales, proceeds creditor with the from pay personal material which were to state . . . fact[s]” “omit[ted] his statements regarding in order to make “necessary” therefore, there is suffi- misleading”, “not corporation $85,000 corporation owed him at least testified that being equipment he owned but which were used and fixtures that $20,000 by diverting appellant argues corporation; from ISL) (to repay personal obligation corporation he his to ISL was, effect, being repaid by corporation for the “funds” which Obviously, jury corporation. did not believe he earlier loaned the this. violating convictions for Sec- support cient evidence *6 Act. Securities l-401(b) Pennsylvania tion trial court is that third contention Appellant’s William C. witness permitting in erred examiner, Commission McCotter, Pennsylvania a Securities during of fact on the ultimate issue” finding “to make [a] trial, as follows: At McCotter testified testimony. his Now, if in fact there All right. Q. [PROSECUTOR]: owed debt to ISL that was thousand dollar fifty a the victims— would corporation, isHe object. I would have to COUNSEL]: [DEFENSE opinion question. him an ask going overruled. Proceed. THE COURT: You’re in a thousand dollar fifty If fact Q. [PROSECUTOR]: the Fried Chicken Corporation by loan was owed to ISL ask the defend- the investors have to would Corporation, information? ant to disclose this act, duty He have under A. would [McCOTTER]: Act, to disclose— Securities Pennsylvania Your Honor— COUNSEL]: [DEFENSE on, overruling I’m objection You put your THE COURT: it. interpret He is attempting COUNSEL]:
[DEFENSE the rule of the Commonwealth. the law. No, he is That’s interpreting.
THE not COURT: law copy Do have a of that Q. you [PROSECUTOR]: with you? Yes,
A. sir. referring are to? Q. you What sections specific Act, A. 4 of Fraudulent part It’s Securities Practices, 1-401, and Purchases. Prohibited Section Sales with the “It connection any person, is unlawful State, in this offer, security sale or purchase any or device, scheme (a) To indirectly: employ any directly defraud; (b) To make untrue statement any artifice to fact— material him I object would have COUNSEL]: [DEFENSE sections to— reading THE I find it You very helpful. may proceed. COURT: A. or to omit to state a material fact necessary —fact made, make the statements light order to made, under are not mislead- they circumstances which ing.” merit; claim is without witness McCotter ex-
Appellant’s no on the ultimate issues in this case but pressed opinion rather recited the sections of the applicable Act. fourth contention is that the trial court the criminal com erred in motion to dismiss denying violations, with to the plaint respect arguing *7 that the of to the time expired prior statute limitations had of the 3927 violations had prosecution that the Section commenced.5 commencing prosecution
The statute of limitations for of 3927 violations is two 18 years. Section See Pa.C.S.A. of the 1972 108(b)(2)(1973).6 108(f)(1)7 Section Additionally, statute”) provided: Crimes Code of (“Tolling (1) not run: the period during The of limitation does time when the accused is absent from this continuously Commonwealth or has no ascertainable reasonably place within of abode or work this Commonwealth. 18 Pa.C. 108(f) (1973) provided). S.A. (emphasis 6,1977, a was held to pre-trial hearing adjudi- On January (The cate motion to dismiss the sole appellant’s complaint. purpose adjudicate of this was to the statute of hearing issue.) McCotter, limitations At this William hearing, C. Commission examiner and an inves- Pennsylvania Securities appeal 5. not contend in this that the does statute expired prior prosecution limitations had to the time that the l-401(b)] Securities Act violations had com- [Section menced. 27, See, 108(b)(2) repealed 6. Section was effective June 1978. 42 (1979 Pamphlet). Pa.C.S.A. 5552 27, See, 108(f)(1) repealed 7. June was effective (1979 Pamphlet). Pa.C.S.A. 5554 case, conducting “a that after in the instant testified tigator (McCotter) he conclud- appellant, search” thorough very to our no residence office legal ed that “had since 1974.8 Be- in the state Pennsylvania” knowledge ascertainable” longer “reasonably cause no had the (at latest) since residence or office in Pennsylvania 1974, (at was tolled end of the statute of limitations tolling of the statute of latest) at the end of 1974. Since appellant’s less than two after years limitations occurred limitations took the statute of place, Section 3927 violations therefore, court did not err in not the trial violated complaint. to dismiss the motion denying appellant’s last contention is that it would seek the indictment that failing allege erred To 108(f)(1). to toll the of limitations under Section statute v. cites Commonwealth this proposition, appellant support 459, 868, (1977) Bender, 380 A.2d Pa.Super. refused) wherein the Court held (allocatur Superior toll the statute Commonwealth seeks “[w]here the enumerated establishing excep limitations one of tions, it must in the indictment. The allege exception this ‘to defendant that he must purpose apprise rule is against defend itself but also against not crime only ” omitted). prosecution.’ (citations limitation of did allege The fact that the Commonwealth not it to toll the statute of limita indictment that would seek *8 was to consequence prejudice tions is of no because there no did inform of appellant The appellant. Commonwealth when the Common of the statute limitations tolling wealth filed answer to motion to dismiss the appellant’s its six weeks after the Common complaint. Approximately filed to mo appellant’s wealth the aforementioned answer dismiss, tion to fully had an to contest opportunity allegation (that of limita Commonwealth’s statute 6, tions at tolled) January pre-trial hearing had 6, January pre-trial hearing testimony 8. at the was McCotter’s trial, appellant’s by testimony corroborated at trial. At (on 13, previous January 1977) testified that for the “two and half years” (July, January, 1977), 1974 to he was a resident of Ohio. adjudicate appellant’s specifically was scheduled (which defendant, some reasonable as a dismiss). long motion As will trial, is that appraised time before re- limitations, process the due to toll the statute seek are satisfied.9 of notice quirements of sentence affirmed. Judgments in which EAG- FLAHERTY, J., opinion concurring filed a J., EN, joined. C. NIX, JJ., concur in the result.
ROBERTS FLAHERTY, Justice, concurring. one but respect, in all but opinion, join majority
I view, judge the trial In unchanged. my remains the result testimony by sustaining objection was in error in not regarding examiner Commission testimony this Although case. the law this applicable its introduc- inadmissible, permitted which the error clearly affect record, and does not this is harmless tion, according majority. the result reached concurring opinion. EAGEN, J., in this joins C. 413 A.2d JURY OF INVESTIGATING GRAND In re COUNTY. PHILADELPHIA George Appeal FOX. Pennsylvania. Supreme Court April 1980. Argued 6,May Decided 1980. were so “the court’s instructions that trial also contends they effectively deprived him of prejudicial . to . . [him] by jury.” trial right was not raised at This issue to a fair trial therefore, post-verdict *9 is waived. motions and nor in