Com. v. Hoffman
| Decision Date | 19 March 1979 |
| Citation | 263 Pa.Super. 442,398 A.2d 658 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Arol E. HOFFMAN, Appellant. |
| Court | Pennsylvania Superior Court |
Taylor P. Andrews, Public Defender, Carlisle, submitted a brief for appellant.
Edgar B. Bayley, Dist. Atty., Camp Hill, for Com., appellee.
Before PRICE, HESTER and HOFFMAN, JJ.
Following a three-day trial by jury, appellant was found guilty of two counts of theft by failure to make the required disposition of funds received. 18 Pa.C.S. § 3927 and four counts of the sale of unregistered securities, 70 P.S. § 1-201. Post-verdict motions were filed and denied and appellant was sentenced to a term of 11/2 to 4 years in prison.
The facts underlying appellant's conviction are as follows:
Appellant organized a corporation in the early 1970's named "Browse-a-While Gift Shoppes, Inc." This enterprise had a unique feature. Instead of procuring capital through the sale of shares in the corporation, appellant devised a plan called an "Inventory Participation Plan" (IPP) whereby funds invested in the corporation would be used to directly purchase inventory. The investors instead of being shareholders and having some control in the operation of the corporation, would be considered only general creditors of the corporation. The registered prospectus (written by appellant) used to entice investors, promised that monies procured through IPP would be used to purchase only inventory and that the inventory on hand would always be equal in value to the total investment in IPP. The IPP guaranteed a minimum fixed return of 6% On the investment.
From 1972 to 1975, more than 100 investors bought shares in IPP and the total dollar amount invested exceeded $500,000.00. However, it seems that the company's losses kept pace with the investments; progressing from $7,000 in 1972 to $250,000 in 1975. Inevitably, bankruptcy resulted. The Receiver found that appellant kept no ledgers or books but instead used his checks to keep track of where the money was going. The Receiver also found evidence to indicate that large sums of invested money were directed to appellant's own use and, when things started going bad, appellant started to solicit additional funds by issuing promissory notes through the corporation. These notes, however, were never registered.
With the discovery of these seemingly improper actions, the receiver instituted criminal charges in late 1976 with the eventual aforementioned result. This appeal followed.
Appellant first asserts that it was error for the court to refuse to allow certain voir dire questions to prospective jurors.
The court refused to permit the following questions to be asked:
4. Has anybody ever served on a jury panel before and how many times for criminal cases in the past two years?
5A. Does anybody have preconceived ideas about bankruptcy?
6. Would anybody have trouble understanding evidence of co-mingling corporate and personal funds?
7. Would anybody feel so much sympathy for the Commonwealth's witnesses, who lost huge amounts of money, that they would be unable to listen to the evidence objectively?
8. Do you realize that Mr. Hoffman (appellant) is presumed innocent until proven guilty?
9. Do you realize that Mr. Hoffman has no duty to come forward with the evidence to show his innocence?
10. Has anybody been an investor in intra-state offerings of corporations and lost money from their investments?
16. If you were in favor of a not-guilty verdict, would you change your mind because a majority of the jurors thought him guilty? (T. 6-12)
The purpose of examining jurors under voir dire is to secure a competent, fair, impartial and unprejudiced jury. Commonwealth v. Perea,252 Pa.Super. 272, 381 A.2d 494 (1977). The scope of voir dire should be strictly confined to determining whether jurors are qualified and whether a juror has formed a fixed opinion or may be otherwise subject to disqualification for cause. Commonwealth v. McGrew, 375 Pa. 518, 100 A.2d 467 (1953). We must also bear in mind the well-settled principal that the scope of a voir dire examination rests in the sound discretion of the trial judge and his decisions should not be reversed except in a case of palpable error. Commonwealth v. McGrew, supra; Commonwealth v. Bibalo, 375 Pa. 257, 100 A.2d 45 (1953).
It was clearly proper for the court to deny questions 6, 7, 8, 9 and 16. These questions covered subject matter which the court would deal with in its charge to the jury. Commonwealth v. Perea, Supra.
Question 4 was properly refused on the authority of Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973) where the court held "There is no reasonable correlation between a juror's prior jury service and his ability to render a fair and just verdict in the instant case."
Question 5 was denied because the court thought it nebulous and collateral to the allowed focus of the inquiry. We agree especially where the court permitted counsel to ask whether any member of the jury had lost money because of a debt or bankruptcy.
We think question 10 was also properly refused; the subject matter was sufficiently covered in the part of question 5 which the court permitted to be asked.
Thus we conclude that the first contention is without merit.
Appellant next contends that since the informations charge that the theft offenses were committed before May of 1974, the court erred when it allowed testimony to come in relating to missing sales receipts from September to December, 1975. That, appellant continues, was not only irrelevant but also tended to show criminal activity on his part for which he was not charged.
Appellant relies on the proposition that evidence of criminal activity unconnected with that for which an accused stands charged may not be introduced to demonstrate a predisposition toward criminal conduct. See Commonwealth v. Terrell, 234 Pa.Super. 325, 339 A.2d 112 (1975).
We believe, however, that the above principal has no application to this case.
The crime charged (theft by failure to make required disposition of funds received) required proof of not only the dates when the money was invested, but also proof of appellant's intentional misuse of the funds received. The dates charged in the information were the dates the money was received by appellant from the investors. These dates were the only dates which could be fixed with particularity. The misuse of those funds occurred over a period of time. We believe, therefore, that the evidence elicited about the missing sales receipts in 1975 was relevant and proper proof in this case. Terrell, supra, involved proof as to Other crimes. Here, proof was directed toward elements of the Same crime. We conclude that appellant's argument is without merit.
Appellant next asserts that the court erred in failing to submit the issue of the Statute of Limitations to the jury.
The Commonwealth had the burden to prove that the Discovery of the alleged offenses took place after December 27, 1975 .
However, after a review of the testimony, we agree with the action of the lower court. The court refused to submit this issue to the jury since the Commonwealth's evidence, that the discovery of the crime came in January of 1976, was unrebutted. Thus, there was nothing for the jury to decide. Appellant does not contend in his brief that he produced any such evidence. Therefore we reject his contention.
Appellant next argues that the court erred when it instructed the jury that the Promissory Notes issued to investors, by appellant, were subject to registration under the Pennsylvania Securities Act (70 P.S. § 1-201 et seq.).
The jury had to decide whether appellant had knowledge of this requirement. The court as a matter of law, instructed the jury that the notes issued had to be registered. Appellant argues that the court should have elaborated on the number of exemptions contained in the Act to help the jury intelligently decide whether appellant Knew of the requirement (the apparent reasoning being that since there are so many complex exceptions to registration, the inclusion of the exemption would make it more difficult for the jury to infer knowledge of the requirement to register).
We believe, however, that the question as to whether the notes issued by the appellant were exempt from registration under the Act was a matter to be decided by the court. It was up to the appellant to introduce evidence to rebut the Commonwealth's evidence as to appellant's knowledge of the Act's registration requirement. It is obvious that appellant was attempting to remedy his failure to introduce such...
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