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COMMONWEALTH PENNSYLVANIA v. GORDON SCHREIBER MILLER (04/03/92)

filed: April 3, 1992.

COMMONWEALTH OF PENNSYLVANIA
v.
GORDON SCHREIBER MILLER, APPELLANT



Appeal from the Judgment of Sentence, June 13, 1990, in the Court of Common Pleas of Dauphin County, Criminal, No. 1197 C.D. 1989

COUNSEL

Shawn A. Bozarth, Harrisburg, for appellant.

Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for the Com., appellee.

Wieand, Montemuro and Kelly, JJ.

Author: Kelly

[ 414 Pa. Super. Page 58]

In this opinion we are called upon to determine, inter alia, whether appellant, Gordon Miller, was properly charged and convicted of false swearing, 18 Pa.C.S.A. § 4903, when a more specific charge was available under the Liquor Code, 47 Pa.S. § 4-403(b). We conclude that appellant was improperly convicted of false swearing and vacate the conviction as to that charge. In all other respects, appellant's judgment of sentence is affirmed.

The relevant facts and procedural history are as follows. Appellant entered into a written agreement to purchase Lombardo's Restaurant from the corporate entity Bob Freedman's Inc. Under the terms of the agreement, appellant was to make monthly payments of $1,000 to the shareholders and indemnify them for up to $20,000 in tax payments. Appellant was also required to renegotiate the restaurant's lease, carry all necessary insurance and comply with all relevant governmental rules and regulations. At the time of the purchase agreement, Bob Freedman's Inc. had filed for Chapter 11 bankruptcy under the Bankruptcy Code.

Subsequent to the agreement being signed, appellant met with a representative for the Attorney General's office to discuss payment of sales tax which the corporation owed and with the landlord to reaffirm and amend the restaurant's lease. He also applied for a Sunday liquor license, indicating on the application that $2,000 in sales tax had been paid when, in fact, it had not.

Appellant was thereafter tried and convicted of willful failure to file sales tax returns,*fn1 willful failure to file employer withholding tax returns,*fn2 willful failure to account for and pay over withheld income taxes,*fn3 and false swearing.*fn4 Post-verdict motions were filed and denied, and appellant

[ 414 Pa. Super. Page 59]

    was sentenced to an aggregate prison term of eleven and one-half to twenty-three months imprisonment, and ordered to pay restitution of $66,540.00. This timely appeal followed.

Appellant raises the following issues for our consideration:

A. IS ONE WITH ONLY LIMITED INVOLVEMENT WITH A BUSINESS NOT PRIMARILY RESPONSIBLE FOR ...


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