Appeal from the Order of the Court of Common Pleas of Butler County in the case of Commonwealth ex rel. Southwest Butler County School District v. Clarke Smith, No. C.A. No. 1 of 1979, Book 68, Page 196.
Mark A. Criss, with him D. G. Linn, II, Linn, Atwell and Associates, for appellant.
Darla J. Hancher, for appellee.
Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. dissents.
[ 56 Pa. Commw. Page 321]
Clarke Smith (Appellant) his filed this appeal from the order of the Court of Common Pleas of Butler
[ 56 Pa. Commw. Page 322]
County imposing sentence of fine and imprisonment for failure to pay taxes pursuant to an ordinance promulgated by the Southwest Butler County School District (District).
The District filed a private criminal complaint against the Appellant alleging failure to file a return and non-payment of taxes*fn1 for the years 1974 through 1977. Appellant was found guilty by the district justice and was ordered to pay the back taxes claimed by the District and costs.
The Appellant filed an Appeal from Summary Criminal Conviction to the Court of Common Pleas and a de novo hearing was held. Appellant was again found guilty. His judgment of sentence includes a thirty day imprisonment for each year in which the taxes were not paid. He appealed from that judgment to the Superior Court of Pennsylvania and that appeal was certified to this Court.
The Appellant contends that he is not liable for the taxes claimed by the District because he is not a resident of the District. Appellant sought to show that he is, in fact, a resident of Lakewood, Ohio.
The Appellant raises the following issues for our review: 1) whether Appellant was forced to testify in derogation of his Fifth Amendment privilege against self-incrimination; 2) whether the lower court improperly excluded evidence of discriminatory enforcement of the taxing ordinance; 3) whether the lower court erred in failing to transfer this case to the civil docket; 4) whether the lower court erred in finding that the District had met its burden of proof; 5) whether the sentence imposed by the lower court is defective.
[ 56 Pa. Commw. Page 323]
Appellant contends that he was compelled to testify despite his assertion of the Fifth Amendment privilege against self-incrimination under the Constitution of the Unites States. In the instant case, Appellant was called to testify "as of cross-examination." Appellant's counsel objected. The complete colloquy between counsel and the trial judge was as follows:
MISS WELDON: Clarke Smith. I would like to have Mr. Clarke Smith as for cross-examination.
MR. FLACH: Your Honor, it is our understanding this is a ...