J-S26009-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.

MEMORANDUM BY BOWES, J.:                               FILED JULY 26, 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

____________________________________________


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



Commonwealth’s petition to amend the information to add twelve counts of

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

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the charges in the other counties. According to Appellant, all of the offenses

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.




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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.”



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        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;



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                    (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



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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:

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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

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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




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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)


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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




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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, 2017 Pa.LEXIS 939 (Pa. April 26,

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.




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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 Commmonwealth 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,

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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)


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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.




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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




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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.     Nonetheless, Appellant had the right under §

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4107(b), but was not required, to offer evidence tending to show that he did

not knowingly or that he recklessly engaged in the allegedly deceptive

conduct as a defense.

       The Commonwealth never suggested during trial or closing arguments

that Appellant had any burden to prove that he had no 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.

       As this Court held in Commonwealth v. Collins, 810 A.2d 698, 699

(Pa.Super. 2002), “when a defense is asserted that relates to the

defendant’s mental state or information that is peculiarly within the

defendant’s own knowledge and control, the general rule is that the

defendant has the burden of proving the defense by a preponderance of the

evidence.” However, this option does not negate the prosecution’s burden of

proof, and hence, poses no constitutional problem.          Under § 4107(a) and

(b), as interpreted by this Court in Eline, the burden remains upon the


____________________________________________


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.



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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

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.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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