No. 707 October Term, 1979, No. 1065 October Term, 1979, Appeals from the Order and Judgment of Sentence of the Court of Common Pleas of Lackawanna County, Criminal Action Nos. 136 & 13 of 1978.
Robert J. Farrell, Assistant District Attorney, Archbald, for Commonwealth, appellant (at No. 707) and for appellee (at No. 1065).
Russell O'Malley, Scranton, for appellant (at No. 1065) and for appellee (at No. 707).
Spaeth, Cavanaugh and O'Kicki,*fn* JJ.
[ 288 Pa. Super. Page 243]
This case arises on two appeals, which have been consolidated. On January 30, 1978, Patrick Nappi was indicted for theft by deception*fn1 (two counts) and theft by failure to make required disposition of funds*fn2 (one count); the complaining witness was Charles Rader. On January 31, 1978, Nappi was indicted for theft by deception (two counts); the complaining witness was Alexandria Dembinski. The indictments were consolidated for trial, and on June 7, 1978, a jury returned a verdict of guilty on all counts. Post-trial motions were filed. On the Rader counts the lower court denied the motions and imposed sentence. On the Dembinski counts the lower court granted motion in arrest of judgment. In appeal No. 1065 the defendant appeals from the sentence imposed on the Rader counts. In Appeal No. 707 the Commonwealth appeals from the order arresting judgment on the Dembinski counts. In both appeals the only issue is whether the evidence was sufficient to sustain the jury's verdict. We have concluded that it was. Accordingly, in Appeal No. 1065 we shall affirm the sentence, and in Appeal No. 707 we shall reverse and remand with instructions to reinstate the jury's verdict and impose sentence.
[ 288 Pa. Super. Page 244]
In judging sufficiency, we view the evidence, and all inferences arising from it, in the light most favorable to the verdict winner. Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Posavek, 265 Pa. Super. 532, 420 A.3d 532 (1980). So viewed, the evidence was as follows.
The defendant operated a sole proprietorship, known as American Laminating. He placed an advertisement for the sale of the business in a local newspaper. In response to this advertisement, Charles Rader met with the defendant in June or July 1976. Mr. Rader told the defendant that he was interested in investment, rather than purchase, and the defendant showed him the business. At a further meeting, on October 13, the following terms were discussed: Rader was to become a 50% stockholder in the business in return for an investment of $20,000; the defendant was to receive a salary of $300 per week in addition to automobile expenses; and Mr. Rader was to receive $100 per week.
In response to Mr. Rader's request for a financial statement of the business, the defendant gave him a statement, which showed assets of $127,437 and a debt of $20,650.00. This statement was not, however, prepared by the certified public accountant whose name appeared at the top of the statement, but was typed at the defendant's direction by his secretary. Furthermore, the statement was inaccurate, with inflated figures for the value of the business's assets.
On October 22 Mr. Rader made a first payment of $5,000 to the defendant. Both he and the defendant signed a written agreement incorporating the terms concerning the $20,000 investment and the 50% stock ownership. Inclusion of the salary terms was postponed pending a consultation with the defendant's attorney. Both agreed ...