No. 127 March Term, 1979, Appeal from the Orders entered in this matter on March 16, 1979, in the Superior Court of Pennsylvania, No. 689 April Term, 1977, affirming the verdicts of the Court of Common Pleas, Criminal Division of Butler County, Pennsylvania, on January 14, 1977, in C.A. Nos. 676, 678, 679, 680, 681 of 1976 and Judgment of Sentence of March 28, 1977.
John J. Vierthaler, Butler, Sanders J. Mestel, Mestel, Cummings & Benson, Canton, Ohio, for appellant.
Robert F. Hawk, Asst. Dist. Atty., Butler, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty, J., filed a concurring opinion in which Eagen, C. J., joined. Roberts and Nix, JJ., concur in the result.
Appellant Richard W. Stockard was convicted in the Butler County Court of Common Pleas of five counts of violating Section 3927*fn1 of the 1972 Crimes Code ("Theft by failure to make required disposition of funds received") and five counts of violating Section 1-401(b)*fn2 of the Pennsylvania Securities Act of 1972. ("Fraudulent and Prohibited Practices" -- "Sales and Purchases"). Post-verdict motions were denied and appellant was sentenced to ten terms (one for each count) of imprisonment for not less than two and one half years nor more than five years. All of the terms were concurrent except for the first two, which were consecutive. Additionally, appellant was required to pay the costs of prosecution and to make restitution to the victims of his crimes. The Superior Court, 266 Pa. Super. , 405 A.2d 574, affirmed appellant's convictions and we granted appellant's petition for allowance of appeal.
Appellant's first contention is that there was insufficient evidence to support his convictions for violating Section 3927 of the 1972 Crimes Code. Section 3927(a) provides:
A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.
"To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the
evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).
Viewed under this standard, the record establishes that in or about June 1973, appellant formed a corporation entitled "Erich's Famous Recipe Fried Chicken, Inc." (hereinafter referred to as "the corporation"). At the time of the incorporation, appellant already owned various restaurants. He also personally owed $50,000 to Investor's Security Leasing (ISL).
Between September and November, 1973, appellant sold a total of $24,530 in corporate stock to five investors. As the investors were making these payments, appellant was diverting a total of $20,000 of the corporation's funds to ISL to repay his aforementioned personal loan. Appellant's diversion of corporate funds occurred in the following manner:
1) Between September 6 and 19, 1973, three investors paid a total of $12,500 to the corporation for stock; appellant deposited these funds in the corporate bank account and on September 24, 1973, appellant paid $10,000 of corporate funds to ISL;
2) On October 11, 1973, a fourth investor paid $7,005 to the corporation stock; appellant deposited these funds in the corporate bank account and on October 15, 1973, appellant ...