Appeal from the Order of the Court of Common Pleas of Butler County, Criminal Division, at CA Nos. 676, 678, 679, 680, 681 of 1976
John Hooper, III, Pittsburgh, for appellant.
David A. Hepting, Assistant District Attorney, Butler, for Com., appellee.
Spaeth, Brosky and Montemuro, JJ. Spaeth, President Judge, files a concurring opinion. Montemuro, J., files a concurring statement.
[ 346 Pa. Super. Page 265]
This appeal is from the dismissal of a Post Conviction Hearing Act (PCHA) petition. Appellant was convicted of theft by failure to make required disposition of funds received and for violating § 1-401(b) of the Pennsylvania Securities Act. Appellant raises all of his issues in terms of the ineffectiveness of prior counsel. Three issues relate to the charge to the jury, three relate to the sentencing, one relates to his reliance upon counsel's advice and one relates to a conflict of interest on the part of an Assistant District Attorney.
Appellant sold stock in a restaurant venture and then used almost all of the proceeds to pay off unrelated personal debts. Following his conviction, a direct appeal was brought and judgment of sentence affirmed by the Supreme
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Court. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980). A PCHA petition was then filed and a hearing held. This appeal is from the dismissal of that petition.
Among appellant's arguments are that the trial court erred in its charge to the jury by not explaining the meaning of the term "material" as used in the Securities Act. This issue was not raised in the PCHA petition in this form and it is possible, therefore, that it is waived for purposes of our appellate review at this time. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1980). A broader, less specific issue was raised in the PCHA petition; and, consequently, may encompass this issue. We need not, however, decide this waiver issue, as appellant is herein being granted a new trial on other grounds.*fn1
Appellant also argues that it was error not to include in the charge to the jury that the interests of the prosecution witnesses may be taken into consideration by the jury in evaluating the credibility of their testimony.*fn2 This was also not in the PCHA petition and is also waived.*fn3
A third issue is similarly waived through its absence in the PCHA petition. Appellant challenges the sentencing as it was allegedly undertaken without the use of a pre-sentence report. Sentencing errors such as the one alleged to have occurred here do not go to the illegality of the sentence
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imposed and can therefore be waived. Commonwealth v. Ellison, 293 Pa. Super. 329, 439 A.2d 136 (1981).
Appellant argues that the trial court erred in not specifying the state of mind necessary to convict under the Securities Act. The PCHA court held that this issue was waived. We find that this issue was, to the contrary, presented in the PCHA petition in a form in which it should have been treated on its merits.
The PCHA court did not explain why it held that this and several other issues were waived. We note that no objections were made to the charge at trial nor did the post-verdict motions raise any charge-related issues. Consequently, on direct appeal this Court declined to address charge-related issues.*fn4 Commonwealth v. Stockard, Superior Court Memorandum Opinion, No. 689 Pittsburgh, 1977, filed 3/16/79. This would normally constitute a waiver of all charge-related issues. However, in his PCHA petition appellant did plead the extraordinary circumstance of ineffective assistance of counsel. Moreover, his pleading of that ineffectiveness was faultless. He argued that appellate counsel was ineffective in not raising the ineffectiveness of trial counsel in not raising this issue. See Commonwealth v. Brown, 313 Pa. Super. 256 at 259, 459 A.2d 837 at 839 (1983) (Concurring Opinion by Brosky, J.). This issue was, therefore, properly before the PCHA court and is properly before us.*fn5
It remains for us to determine whether or not appellate counsel was ineffective in not raising the ineffectiveness of trial counsel in not objecting to the absence of a charge regarding the willful violation of the Securities statute.
The crime for which appellant was convicted reads:
Sales and purchases It is unlawful for any person, in connection with the offer, sale or purchase of any security
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in this State, directly or indirectly: . . . (b) . . . to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading . . .*fn6
As appellee notes, this statute does not include any mention of willful behavior. However, the section of the Securities Act which provides for criminal penalties does.
Any person who wilfully violates any material provision of this act, except section 407(a) for any rule under this act, or any order of which he has notice, or who violates section 407(a) knowing that the statement made was false or misleading in any material respect, may be fined not more than five thousand dollars ($5,000) or imprisoned not more than five years, or both.
The mental state of willfulness is statutorily defined.
Requirement of willfulness satisfied by acting knowingly. -- A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.
"Knowingly" is in turn defined.
(2) A person acts knowingly with respect to a material element ...