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COMMONWEALTH PENNSYLVANIA v. ROBERT H. BOMERSBACH (11/03/78)

decided: November 3, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT H. BOMERSBACH, APPELLANT, AND EDWARD B. SASSAMAN



No. 192 March Term, 1977, Appeal from Sentence of the Court of Common Pleas, Criminal Division of Mifflin County, Pennsylvania, dated August 3, 1976 at No. 67 of 1974.

COUNSEL

John B. Schaner, Public Defender, Lewistown, for appellant.

Steven M. Steingard, Assistant Attorney General, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 260 Pa. Super. Page 30]

This appeal comes to us from a jury verdict in Mifflin County which found appellant Robert Bomersbach guilty of six different counts in violation of the Pennsylvania Securities Act.*fn1 Appellant's post-trial motions were denied. We affirm the decision of the lower court.

The events that led to the conviction occurred between June 1, 1972 and October 31, 1972. During this time, appellant conducted meetings with potential investors concerning two corporations that were to be formed. Appellant portrayed himself as the organizer of the corporations and that he held a securities license and would clear the security sales through the Pennsylvania Securities Commission. Fourteen such investors testified of their investments to these two fictitious corporations, and how they were informed that their money would be placed in an escrow account. In fact, appellant was not licensed with the state; the investment money was not placed in an escrow account but was transferred to appellant's wholly-owned corporation. None of the investors' monies was returned nor were the corporations formed.

Appellant was convicted of selling the securities of the alleged corporations without being registered as a dealer in violation of Section 3(a) of the Act, 70 P.S. § 33(a) of the Act, issuing a prospectus which was not filed with the Pa. Securities Commission in violation of § 13(a) of the Act, 70 P.S. § 43(a); failing to file a notice of intention to sell securities in violation of § 13(c) of the Act, 70 P.S. § 43(c); and committing fraud in connection with the sale of securities in violation of Section 22 of the Act, 70 P.S. § 52. He was sentenced to imprisonment for a period not less than 15 months nor more than 11 years, to pay fines of $3000, one-half the costs of prosecution, and to pay restitution.

On appeal, appellant raises three issues: first, whether he was a "dealer" within the meaning of the Pennsylvania

[ 260 Pa. Super. Page 31]

Securities Act § 2(f);*fn2 second, whether there was sufficient evidence to convict appellant of fraud under § 2(i) of the Act; and three, whether the lower court properly imposed consecutive and separate sentences for the counts upon which appellant was convicted.

I.

All counts of the indictment under which appellant was convicted allege him to have been a dealer under the ...


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