568 A.2d 968 | Pa. Super. Ct. | 1990
This is an appeal from the judgments of sentence at nos. 413-S-1984 and 125-S-1986 imposed April 25, 1989 following denial of appellant’s post-trial motions on March 8,1989. Appellant was convicted of violating the earned income tax ordinance of Lower Macungie Township
Appellant’s post-trial motions challenge the convictions alleging the prosecution failed to prove its case, the trial court lacked jurisdiction over appellant and the tax ordinance is unconstitutional. The trial court denied the motions, and appellant, pro se, brings this appeal.
Additionally, appellant contends the Local Tax Enabling Act violates his right against self-incrimination under the fifth and fourteenth amendments to the United States Constitution and article 1, § 9 of the Commonwealth of
Appellant further argues the trial court had no jurisdiction over this case because the case is really a civil proceeding and not a criminal case. Appellant incorrectly relies on the now overturned decision in York v. Baynes, 188 Pa.Super. 581, 149 A.2d 681 (1959), for the proposition an action brought against a defendant for violation of a municipal ordinance is actually a suit for the recovery of a penalty due the municipality and is not a summary criminal proceeding but is a civil proceeding. Because the Local Tax Enabling Act and the Township’s Earned Income Tax Ordinance provide for a hearing before a magistrate and for imprisonment upon conviction, we find the instant case is a criminal case pursuant to the Pennsylvania Rules of Criminal Procedure.
To the extent we can determine from appellant’s unclear and unconventional brief, his final argument for reversal is that the Commonwealth failed to prove its case. Appellant claims the prosecutor did not prove all the elements of the offense. The township’s ordinance, enacted under the Local Tax Enabling Act, states, inter alia:
Any person who fails, neglects or refuses to make any declaration or return required by this Ordinance; ... any person who refuses to permit the Income Tax officer, or any agent properly designated by him, to examine his books, records and papers; and any person who makes any incomplete, false or fraudulent return to avoid the payment of the whole or any part of the tax imposed by this Ordinance, upon conviction thereof before a Justice of the Peace within Lower Macungie Township [sic], shall be sentenced to pay a fine of not more than Five Hundred ($500.00) Dollars and not less than One Hundred ($100.00) Dollars plus costs for each offense, and in default of payment of said fine and costs, shall be imprisoned in the Lehigh County jail for a period not exceeding thirty (30) days.
Lower Macungie Township Earned Income Tax Ordinance, § 11.01.
From the ordinance itself, we find the necessary elements for conviction to be satisfied when any person fails, neglects or refuses to make a declaration or return, refuses to allow the Income Tax officer to examine his books, records and papers or files a false or fraudulent return. A review of the record suggests ample evidence, presented by the prosecution, to support appellant’s conviction. The township’s tax collector testified he sent several letters to appellant notifying him of the need to file a return, and there
Judgments of sentence affirmed.
. Lower Macungie Township Ordinance §§ 3:00 Declaration and Payment of Tax and 3:02 Salaries, Wages, Commissions and Other Compensation.
. Appellant attempts to add another similar conviction to this appeal, namely docket no. 426-S-1983, which appellant incorrectly identified
. We also note appellant has not asserted this privilege against self-incrimination in the proceedings. To properly assert the privilege, appellant must raise it on a document-by-document basis, and he must demonstrate all the elements of the privilege are present. See, U.S. v. First State Bank, 691 F.2d 332 (7th Cir.1982). Having failed to timely assert the privilege, appellant cannot now invoke it to absolve him of liability.
. See Pa.R.Crim.P. 3 and 67(f).