Commonwealth v. KolovichCommonwealth v. Kolovich
Justin P. Miller, Bellefonte, for appellant.
Christopher R. Torquato, District Attorney, Lewistown, for Commonwealth, appellee.
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.
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
Appellant challenges the trial court‘s denial of his pre-trial motion to dismiss charges based on the mandatory joinder
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
On May 23, 2016, the Commonwealth sought leave to amend the information to add twelve additional counts pursuant to
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
- 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? - 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? - 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?
- 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).
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,
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,
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;
(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.
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 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
(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, 579 Pa. 300, 855 A.2d 834, 839 (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, 621 Pa. 245, 77 A.3d 579, 582 (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
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 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
Notes
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
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, 637 Pa. 100, 146 A.3d 755, 763 (2016). The Pennsylvania Supreme Court applies the “same-elements” test articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Commonwealth v. Yerby, 544 Pa. 578, 679 A.2d 217, 219 (1996). Under the same-elements test, each offense or subsequent prosecution must 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
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, 610 Pa. 552, 22 A.3d 1021, 1027 (2011) (upon dismissal of a pre-trial double jeopardy challenge as frivolous, a defendant is authorized to file a petition for review pursuant to
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
Title
(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.
Our review of a challenge to the constitutionality of a duly enacted statute is plenary. Villani v. Seibert, — Pa. —, 159 A.3d 478 (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. Zauflik v. Pennsbury Sch. Dist., 629 Pa. 1, 104 A.3d 1096, 1103 (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. State Ass‘n of Jury Comm‘rs v. Commonwealth, 621 Pa. 360, 78 A.3d 1020 (2013); Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996).
Appellant contends that
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, 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,
We find first that “intentional” and “knowing” are not the same level of culpability in the criminal context.6 In Common-
wealth v. Hill, 140 A.3d 713, 718 (Pa.Super. 2016) (emphasis added), involving
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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (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
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to 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:
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 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 Comm-
(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.
onwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978), in the context of the propriety of a jury instruction. More recently, in Commonwealth v. Mouzon, 617 Pa. 527, 53 A.3d 738, 743 (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, 126 S.Ct. 2437, 165 L.Ed.2d 299 (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 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, 107 S.Ct. 1098, 94 L.Ed.2d 267 (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, 133 S.Ct. 714, 184 L.Ed.2d 570 (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
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
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 negate any element of the crime. Therefore,
Judgment of sentence affirmed.
(1) A person acts intentionally with respect to a material element of an offense when: