Commonwealth v. Kolovich

J-S26009-17
2017 Pa. Super. 274
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT ANTHONY KOLOVICH
Appellant No. 1505 MDA 2016
Appeal from the Judgment of Sentence August 19, 2016
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000401-2014
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.
OPINION BY BOWES, J.: FILED AUGUST 23, 2017
Robert Kolovich appeals from his judgment of sentence of twenty-
seven to seventy-two months imprisonment, which was imposed following
his conviction of six counts of theft by deception, and twelve counts of
deceptive business practices pursuant to 18 Pa.C.S. § 4107.1 We affirm.
Appellant challenges the trial court’s denial of his pre-trial motion to
dismiss charges based on the mandatory joinder rule and double jeopardy.
He also maintains that it was error to deny his motion to quash the
Commonwealth’s petition to amend the information to add twelve counts of
____________________________________________
1
Appellant was convicted of six counts of “selling, offering or exposing for
sale, or delivery of less than the represented quantity of any commodity or
service” in violation of § 4107(a)(2), and six counts of “making or inducing
others to rely on a false or misleading written statement for the purpose of
obtaining property or credit” in violation of § 4107(a)(6).
* Former Justice specially assigned to the Superior Court.
J-S26009-17
deceptive or fraudulent business practices as he contends the statute, 18
Pa.C.S. §§ 4107(a)(2) and (6), is unconstitutional.
The facts relevant to the issues before us are as follows. Appellant ran
a business, Lifetime Choice Windows, in Selinsgrove, Snyder County,
Pennsylvania. Prior to and during 2013, he met with homeowners in their
homes in numerous counties across the Commonwealth and contracted to
sell and install decking, windows, and doors. The charges in this case arose
from contracts between Appellant and six Mifflin County residents during the
summer of 2013. The homeowners paid Appellant down payments for
decking materials and construction services, but the date of performance
passed without delivery of any product or service outlined in the contracts.
Appellant did not return any portion of the down payments.
Appellant initially was charged with six counts of theft by deception.
He sought several continuances over an eighteen-month period because he
confronted similar charges in other counties. He was convicted in Snyder
and Bradford counties on multiple theft counts, and acquitted on similar
charges in Union County.
On April 28, 2016, Appellant filed a motion to dismiss pursuant to 18
Pa.C.S. § 110, the compulsory joinder provision, and the double jeopardy
clauses of both the state and federal constitutions, alleging that the six theft
charges herein were part of the same series of occurrences culminating in
the charges in the other counties. According to Appellant, all of the offenses
-2-
J-S26009-17
constituted one criminal episode that should have been prosecuted in Snyder
County. N.T., 5/10/16, at 5-6. Appellant asked the trial court to
dismiss/quash the Mifflin County criminal information and direct that the
charges be joined and tried in Union County.2 In the alternative, Appellant
alleged that prior dismissals in Sullivan and Luzerne Counties resulted from
the same criminal episode, and thus, the current prosecution was barred
under double jeopardy. The trial court disagreed and denied the motion,
reasoning that the prior charges in different counties were not part of the
same criminal conduct or episode. Trial Court Opinion, 5/12/16, at 1.
Further, the court declared Appellant’s double jeopardy motion to be
frivolous, thus precluding Appellant from pursuing an interlocutory appeal.
Id. at 2.
On May 23, 2016, the Commonwealth sought leave to amend the
information to add twelve additional counts pursuant to 18 Pa.C.S. §
4107(a)(2) and (a)(6), governing “deceptive or fraudulent business
practices.” Appellant moved to quash, arguing that § 4107(b) impermissibly
shifted the burden of proof to the defendant to negate the intent to deceive
____________________________________________
2
Snyder and Union Counties constitute one judicial district as they share
one court of common pleas.
-3-
J-S26009-17
element of the crime, and was unconstitutional.3 After a hearing, the court
granted the Commonwealth leave to amend, and denied Appellant’s motion
to quash.
On July 11, 2016, a jury convicted Appellant of all counts. Appellant
timely filed the within appeal and complied with the trial court’s order to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
The trial court authored its Rule 1925(a) opinion and the matter is ripe for
our review. Appellant raises the following contentions:
1. Whether the trial court erred in denying [Appellant]’s motion
to dismiss pursuant to 18 Pa.C.S. § 110 and the double
jeopardy clauses of the United States and Pennsylvania
Constitutions?
2. Whether the trial court erred in determining [Appellant]’s
motion to dismiss pursuant to 18 Pa.C.S. § 110 and the
double jeopardy clauses of the United States and
Pennsylvania Constitutions was a frivolous pleading?
3. Whether the trial court erred in overruling [Appellant]’s
objection to the Commonwealth’s motion to amend
information and [Appellant]’s motion to quash amendment of
information?
4. Whether the trial court erred in finding 18 Pa.C.S. § 4107(a)
and § 4107(b) are not violative of the United States and
Pennsylvania Constitutions?
Appellant’s brief at 9 (unnecessary capitalization omitted).
____________________________________________
3
Title 18 Pa.C.S. § 4107(b) provides that, “It is a defense to prosecution
under this section if the defendant proves by a preponderance of the
evidence that his conduct was not knowingly or recklessly deceptive.”
-4-
J-S26009-17
Appellant’s first issue is a challenge to the trial court’s denial of his
motion to dismiss for an alleged violation of the compulsory joinder rule, 18
Pa.C.S. § 110, and the double jeopardy clauses of the United States and
Pennsylvania Constitutions. Since the issue presents a question of law, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Fithian, 961 A.2d 66 (Pa. 2008).
Appellant claims that the offenses herein occurred, at least in part, in
Snyder County, where his business was located. He contends that the trial
court should have dismissed the instant prosecution due to the
Commonwealth’s failure to consolidate it with the prior prosecution of the
charges in the judicial district encompassing Snyder and Union counties.
The compulsory joinder rule, 18 Pa.C.S. § 110, is entitled, “When
prosecution barred by former prosecution for different offense,” and provides
in pertinent part:
Although a prosecution is for a violation of a different provision
of the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in
a conviction as defined in section 109 of this title
(relating to when prosecution barred by former
prosecution for the same offense) and the
subsequent prosecution is for:
(i) any offense of which the defendant could
have been convicted on the first
prosecution;
-5-
J-S26009-17
(ii) any offense based on the same conduct or
arising from the same criminal episode, if
such offense was known to the appropriate
prosecuting officer at the time of the
commencement of the first trial and
occurred within the same judicial district as
the former prosecution unless the court
ordered a separate trial of the charge of
such offense; or
(iii) the same conduct, unless:
(A) the offense of which the
defendant was formerly convicted
or acquitted and the offense for
which he is subsequently
prosecuted each requires proof of a
fact not required by the other and
the law defining each of such
offenses is intended to prevent a
substantially different harm or evil;
or
(B) the second offense was not
consummated when the former
trial began.
18 Pa.C.S. § 110.
The rule “is a legislative mandate that a subsequent prosecution for a
violation of a provision of a statute that is different from a former
prosecution, or is based on different facts, will be barred in certain
circumstances.” Fithian, supra at 71. It was designed “(1) to protect a
defendant from the governmental harassment of being subjected to
successive trials for offenses stemming from the same criminal episode;
and (2) to ensure finality without unduly burdening the judicial process by
-6-
J-S26009-17
repetitious litigation.” Id. at 75-76 (internal quotations omitted). To that
end, our High Court held that the legislature intended that the compulsory
joinder statute be limited to mandating joinder only of those offenses
occurring in a single judicial district, even when offenses were part of the
same criminal episode. Id. at 68.
Appellant contends that compulsory joinder was warranted on the
facts herein. He argues that: all of the cases were filed within thirteen
months and involved the same or similar offenses; the charges arose from
his business’s retention of monies despite the failure to perform construction
agreements; and the business was located in the 17th judicial district
comprised of Snyder and Union Counties. He was previously convicted in
Snyder and Bradford counties and acquitted in Union and Centre Counties on
similar charges. Appellant’s brief at 19. He alleges that the offenses herein
occurred at least in part in Snyder County, the county where his business
was based. Where, as here, the offenses occurred in more than one judicial
district, and the former prosecution was brought in one of those judicial
districts, Appellant maintains the subsequent prosecution in Mifflin County
should have been consolidated. The consequence of the failure to
consolidate is that the prosecution herein was barred.
The Commonwealth points out that § 110 has been construed as
barring subsequent prosecution only if all of the following four prongs are
satisfied:
-7-
J-S26009-17
(1) the former prosecution resulted in an acquittal or conviction;
(2) the current prosecution was based on the same criminal
conduct or arose from the same criminal episode;
(3) the prosecutor in the subsequent trial was aware of the
charges before the first trial; and
(4) all charges [are] within the same judicial district as the former
prosecution.
Fithian, supra at 72 (quoting Commonwealth v. Nolan, 855 A.2d 834,
839 (Pa. 2004)).
The Commonwealth concedes the satisfaction of the first and third
prongs, i.e., that there was a former prosecution that resulted in an acquittal
or conviction, and that the prosecutor herein was aware of the instant
charges prior to the first trial. However, the Commonwealth contends that
the facts herein do not meet the second prong of the test as the instant
prosecution did not involve the same criminal conduct or arise from the
same criminal episode as the prior charges. Commonwealth’s brief at 5. We
agree for the reasons that follow.
At issue herein, and in Commonwealth v. Reid, 77 A.3d 579, 582
(Pa. 2013), was whether a defendant’s criminal actions were based on the
same criminal conduct or arose from the same criminal episode for purposes
of § 110’s second prong. The Reid Court focused on “the temporal and
logical relationship between the charges” in determining whether they
constituted the same criminal episode. Id. at 582 (internal quotations
omitted). The Court noted that, in general, contemporaneously filed charges
-8-
J-S26009-17
against a defendant “are clearly related in time.” Id. A logical relationship
involves a “substantial duplication of factual, and/or legal issues” raised by
the charges. Id. However, it does not require a double jeopardy-like “same
elements” analysis. Id. Instead,
in determining if the ‘logical relationship’ prong of the test has
been met, we must . . . be aware that a mere de minimis
duplication of factual and legal issues is insufficient to establish a
logical relationship between offenses. Rather what is required is
a substantial duplication of issues of law and fact.
Id. Hence, the Reid Court clarified that simply committing the same crime
multiple times within a short interval is not enough to constitute a criminal
episode. See Commonwealth v. Anthony, 717 A.2d 1015, 1019 (Pa.
1998) (“[a] logical relationship is not conditioned upon the duplication of
identical criminal acts”); see also Commonwealth v. Bracalielly, 658
A.2d 755, 761 (Pa. 1995) (“de minimis duplication of factual and legal issues
is insufficient to establish a logical relationship between offenses”).
The trial court found there was no substantial duplication of fact or law
between this prosecution and the prior prosecutions, and, therefore, no
logical relationship between the two sets of charges. The testimony in the
instant case was elicited from each of the victims, who were not involved in
or related to the other cases, and the documentation resulted from separate
-9-
J-S26009-17
contracts.4 Thus, the trial court found that the facts did not satisfy the
second prong of the test.
We agree. Herein, the only logical connection between the prior
prosecutions and the instant charges was the nature of the offenses. There
was little duplication of the evidence. The facts in this case differ sharply
from those in Anthony, supra, where mandatory joinder was held
applicable. The two trials therein required a majority of the same witnesses
and testimony that demonstrated a substantial duplication of law or fact.
The same type of evidentiary overlap does not exist in the instant case. The
Commonwealth summarizes the distinction:
[Appellant] advertised separately in every county in which he did
business, conducted in-home sales calls in each of those
counties, entered into a contract with different victims in each
county, gave differing excuses for lack of performance in each of
those counties, and was investigated separately by different
police forces in each county.
Commonwealth’s brief at 6. Thus, the second prong of the test requiring
both a logical and temporal relationship was not met, and joinder was not
mandated under §110.5
____________________________________________
4
Pursuant to Pa.R.E. 404(b)(2), the Commonwealth was permitted to
introduce the conviction orders and testimony from several victims in other
cases to prove Appellant’s fraudulent intent to deceive. N.T. Motion in
Limine Hearing, 7/7/16, at 12.
5
We concur with the trial court that the contracts and the associated
criminal conduct occurred entirely within Mifflin County, which was not the
(Footnote Continued Next Page)
- 10 -
J-S26009-17
Appellant also alleges that dismissal was warranted on double
jeopardy grounds. However, Appellant did not articulate or develop any
argument in support of a constitutional violation. Thus, we find the issue
waived. See Pa.R.A.P. 2119(a) (requiring argument in brief to contain
“discussion and citation of authorities as are deemed pertinent”); see also
Commonwealth v. McNear, 852 A.2d 401, 408 (Pa.Super 2004) (failure to
comply with Rule 2119(a)’s requirement of discussion and citation to
relevant authorities constitutes waiver).
Even if the issue was not waived, it lacks merit. Both the federal and
state double jeopardy clauses are intended to protect defendants from
subsequent prosecutions for the same act. The Pennsylvania Constitution’s
double jeopardy clause has been interpreted as “coextensive” with the
federal Constitution’s Fifth Amendment. Commonwealth v. Ball, 146 A.3d
755, 763 (Pa. 2016). The Pennsylvania Supreme Court applies the “same-
elements” test articulated in Blockburger v. United States, 284 U.S. 299
(1932); Commonwealth v. Yerby, 679 A.2d 217, 219 (Pa. 1996). Under
the same-elements test, each offense or subsequent prosecution must
_______________________
(Footnote Continued)
situs of the prior prosecutions. Thus, Appellant could not meet the fourth
prong of the test. See Commonwealth v. Fithian, 961 A.2d 66, 77 (Pa.
2008) (“The General Assembly intended to preclude from the reach of the
compulsory joinder statute those current offenses that occurred wholly
outside of the geographic boundaries of the judicial district in which the
former prosecution was brought, even though part of a single criminal
episode.”).
- 11 -
J-S26009-17
require proof of at least one fact that the other offense or prosecution did
not. Blockburger, supra at 304. Thus, the double jeopardy clause
protects defendants from subsequent prosecutions for the same act.
Different acts supported this prosecution. Furthermore, having
concluded that Appellant could not meet the less stringent § 110 test, it
logically follows that the subsequent prosecution in Mifflin County was not
violative of the stricter double jeopardy standards. Hence, we find that
Appellant’s prosecution herein was not precluded under either § 110 or the
double jeopardy clauses of either the state or federal constitutions, and we
affirm the trial court’s order denying Appellant’s motion to dismiss.
Appellant’s challenge to the trial court’s order finding his motion to
dismiss based on double jeopardy to be frivolous is moot because his double
jeopardy claim was indeed frivolous. Nor do we agree with Appellant that
this is an issue that evades review. See Commonwealth v. Orie, 22 A.3d
1021, 1027 (Pa. 2011) (upon dismissal of a pre-trial double jeopardy
challenge as frivolous, a defendant is authorized to file a petition for review
pursuant to Pa.R.A.P. 1511, and seek a stay under Pa.R.A.P. 1781).
Appellant’s third issue is a challenge to the trial court’s denial of his
motion to quash the Commonwealth’s petition seeking leave to amend the
information to add new charges under 18 Pa.C.S. § 4107, a statute which he
maintained was constitutionally infirm. His fourth issue is a constitutional
- 12 -
J-S26009-17
challenge to that statute. Appellant’s brief at 24. Since the issues overlap,
we will address and dispose of them together.
Title 18 Pa.C.S. § 4107 provides, in relevant part:
(a) Offense defined. — A person commits an offense if, in the
course of business, the person:
...
(2) sells, offers or exposes for sale, or delivers less than
the represented quantity of any commodity or service;
...
(6) makes or induces others to rely on a false or
misleading written statement for the purpose of obtaining
property or credit;
...
(b) Defenses. — It is a defense to prosecution under this
section if the defendant proves by a preponderance of the
evidence that his conduct was not knowingly or recklessly
deceptive.
18 Pa.C.S. § 4107.
Our review of a challenge to the constitutionality of a duly enacted
statute is plenary. Villani v. Seibert, 159 A.3d 478 (Pa. 2017). The
following principles inform our review.
Preliminarily, we recognize that acts passed by the General
Assembly are strongly presumed to be constitutional and that we
will not declare a statute unconstitutional unless it clearly,
palpably, and plainly violates the Constitution. If there is any
doubt that a challenger has failed to reach this high burden, then
that doubt must be resolved in favor of finding the statute
constitutional.
- 13 -
J-S26009-17
Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096, 1103 (Pa. 2014) (internal
citations and quotations omitted). Thus, one challenging the
constitutionality of a statute bears a heavy burden of persuasion, and any
doubt is to be resolved in favor of a finding of constitutionality. Pa. State
Ass'n of Jury Comm'rs v. Commonwealth, 78 A.3d 1020 (Pa. 2013);
Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996).
Appellant contends that §4107 violates the due process clauses of the
Pennsylvania and United States Constitutions because subsection (b)
impermissibly shifts the burden of proof to the defendant to negate the
mens rea element of the crime. Appellant’s brief at 27. Specifically,
Appellant points out that it requires the defendant to prove “by a
preponderance of the evidence that his conduct was not knowingly or
recklessly deceptive.” Id. He claims that affirmative defenses are
unconstitutional if they negate any of the elements of the crime as defined.
Appellant posits that the statute has thus far escaped constitutional
challenge because it does not expressly state the mens rea required,
although he acknowledges that this Court held in Commonwealth v. Eline,
940 A.2d 421, 433 (Pa.Super. 2007), that “fraud, which includes a wrongful
intent to deceive, is an element of the crime of deceptive business
practices.”
Appellant’s argument in this regard is convoluted. He contends that,
since “scienter” is often used to connote the mens rea of common law fraud,
- 14 -
J-S26009-17
and scienter means “knowingly,” or “a degree of knowledge that makes a
person legally responsible for the consequences of his or her act or
omission,” according to Black’s Law Dictionary, § (b)’s “knowingly” language
overlaps with the scienter element of § (a). He makes the latter leap by
bootstrapping the reasoning of the court of common pleas’ non-binding
decision in the civil case of Glessner v. Twigg, 22 Pa. D. & C. 3d 727, 732
(Somerset Co., 1982), in which the court found that “a wrongful intent to
deceive” is synonymous with “knowingly” or “recklessly” in the civil context.
He concludes that the affirmative defense requiring him to prove “his
conduct was not knowingly or recklessly deceptive” negates the element of
“knowingly” misrepresenting an existing fact and is unconstitutional under
Mullaney v. Wilbur, 421 U.S. 684 (1975), and Patterson v. New York,
432 U.S. 197 (1977).
We find first that “intentional” and “knowing” are not the same level of
culpability in the criminal context.6 In Commonwealth v. Hill, 140 A.3d
____________________________________________
6
18 P.S. § 302, General requirements of culpability, defines the
difference between acting intentionally and knowingly:
(1) A person acts intentionally with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct
or a result thereof, it is his conscious object to
(Footnote Continued Next Page)
- 15 -
J-S26009-17
713, 718 (Pa.Super. 2016) (emphasis added), involving 18 Pa.C.S. §
4107(a)(2), this Court held that “[p]roof of deceptive or fraudulent business
practices requires that a defendant (1) with a wrongful intent to
deceive;” (2) "in the course of business;" (3) "sells, offers or exposes for
sale, or delivers less than the represented quantity of any commodity or
service." We noted that an intentional misrepresentation connotes a higher
degree of culpability than “knowingly” and the culpability of an intentional
act subsumes the culpability of a knowing act, and concluded that knowledge
_______________________
(Footnote Continued)
engage in conduct of that nature or to cause such a
result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they
exist.
(2) A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct
or the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
(ii) if the element involves a result of his conduct,
he is aware that it is practically certain that his
conduct will cause such a result.
18 Pa.C.S. § 302.
- 16 -
J-S26009-17
was a lesser-included mens rea of intent. See Commonwealth v. Nero, 53
A.3d 802, 809 (Pa.Super. 2012).
Furthermore, Appellant’s affirmative defense due process analysis does
not withstand scrutiny. Jurisprudence in this area arose largely in the
context of homicide prosecutions. The United States Supreme Court
reaffirmed in Mullaney, supra, that, in order to pass muster under the Due
Process Clause, the state must prove every fact necessary to constitute the
crime charged beyond a reasonable doubt. See In re Winship, 397 U.S.
358, 364 (1970). Under the Maine statutory scheme at issue in Mullaney, a
defendant charged with murder was required to prove that he acted in the
heat of passion in response to sudden provocation to reduce the homicide to
manslaughter. The jury was further instructed, however, that if the
prosecution established that the homicide was both intentional and unlawful,
malice aforethought was to be conclusively presumed unless the defendant
proved by a fair preponderance of the evidence that he acted in the heat of
passion on sudden provocation. The defendant argued that the statute
impermissibly placed the burden on the defendant to negate that
presumption of malice with proof of sudden provocation or heat of passion.
Id. at 688-89. The Court of Appeals agreed with the defendant, and the
Supreme Court affirmed. The High Court held that the Due Process Clause
required the prosecution to prove beyond a reasonable doubt that the
- 17 -
J-S26009-17
defendant did not act in the heat of passion on sudden provocation when the
issue was properly presented in a homicide case.
The Supreme Court subsequently narrowed this holding in Patterson,
supra, emphasizing that the New York statute examined therein, unlike the
Maine statute in Mullaney, did not presume an element of the crime, and,
therefore, did not shift the burden of proving an element to the defendant
and thus did not violate the federal constitution. Id. at 206. Hence, a
burden of proof for an affirmative defense can be placed on a defendant
without running afoul of the due process clause, provided the statute does
not create a presumption of guilt as to one of the elements of the underlying
crime.
The Pennsylvania Supreme Court adopted the Patterson reasoning in
Commonwealth v. Hilbert, 382 A.2d 724 (Pa. 1978), in the context of the
propriety of a jury instruction. More recently, in Commonwealth v.
Mouzon, 53 A.3d 738, 743 (Pa. 2012), our Supreme Court articulated the
current state of the law. Cognizant of the United States Supreme Court’s
then-recent decision in Dixon v. United States, 548 U.S. 1 (2006), which
involved a duress defense, the Court stated that “the overall principle that
emerges from the High Court's decisional law is that federal due process
permits States to place a burden on the defendant to prove an affirmative
defense by a preponderance of the evidence, so long as the defendant is not
thereby required to negate an element of the offense.” Mouzon, supra at
- 18 -
J-S26009-17
743 (emphasis added). The Mouzon Court clarified that overlap between an
element of the crime and the affirmative defense is permissible “in the sense
that evidence to prove the latter will tend to negate the former.” Martin v.
Ohio, 480 U.S. 228 (1987). It concluded that the test is not a mechanical
one that inquires whether the affirmative defense and element are related,
but a functional test that ensures the defendant is not burdened with
disproving an element of the crime. See also Mullaney, supra at 699
(noting that the due process analysis of affirmative defenses is “concerned
with substance rather than . . . formalism”).
Thus, only an affirmative defense that shifts the burden of proof to the
defendant and requires the defendant to negate an element of the
underlying offense violates federal due process rights. Mouzon, supra at
743; see also Smith v. United States, 568 U.S. 106 (2013) (summarizing
the due process rules concerning affirmative defenses). Such is not the case
herein. Pennsylvania case law has supplied the culpability element for
deceptive business practices: “fraud, which includes a wrongful intent to
deceive, is an element of the crime.” Hill, supra at 717 (quoting Eline,
supra at 433). The Commonwealth has the never-shifting burden during
trial to prove beyond a reasonable doubt that a defendant possessed the
wrongful intent to deceive as to each charge under 18 Pa.C.S. § 4107(a), a
burden the prosecution acknowledged herein. See N.T. Motion in Limine
Hearing, 7/7/16, at 5-6. Nevertheless, Appellant had the right, but was not
- 19 -
J-S26009-17
required, to offer evidence tending to show that he merely engaged in the
deceptive conduct knowingly or recklessly, rather than intentionally.
The Commonwealth never suggested during trial or closing arguments
that Appellant had any burden to prove that he lacked the intent to defraud.7
Nor was the Commonwealth under any obligation to disprove every fact that
could lead to Appellant’s exoneration or address every potential justification
Appellant may have raised. Reilly, supra at 510. “Proof of facts which
exonerate the accused from his guilt remains solely the province of the
criminal defendant.” Id. Under § 4107(a) and (b), as interpreted by this
Court in Eline, the burden remains upon the prosecution to prove
Appellant’s intent to deceive beyond a reasonable doubt or the accused
would be acquitted. Eline, supra at 433.
Thus, we conclude Appellant has not met the heavy burden required to
overcome the presumptive constitutionality of an act of the General
Assembly. Zauflik, supra at 1103. Section 4107 of Title 18, as interpreted
by this Court, i) requires the prosecution to prove fraud beyond a reasonable
doubt, which includes an intent to deceive, as an element of the crime; (ii)
does not create a presumption of guilt as to any element of the crime; and
(iii) does not require the defendant to assert an affirmative defense or
____________________________________________
7
In any case, Appellant does not challenge the sufficiency of the evidence or
the prosecution’s conduct, but instead limits his attack to the facial validity
of § 4107.
- 20 -
J-S26009-17
negate any element of the crime. Therefore, 18 Pa.C.S. § 4107(b) is not
violative of the due process clauses of either the Pennsylvania or the United
States Constitutions.8
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2017
____________________________________________
8
As judicially construed and applied, the statute at issue passes
constitutional muster. However, if the Legislature were to amend the
statute to expressly provide that specific intent to deceive is an element of
the offense, similar constitutional challenges likely could be averted.
- 21 -