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COMMONWEALTH PENNSYLVANIA v. JOHN KIMBLE (01/06/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 6, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN KIMBLE, APPELLANT

No. 879 Philadelphia, 1981, Appeal from the Judgment of Sentence of March 24, 1981 in the Court of Common Pleas of Delaware County, Criminal Division, No. 8222-76

COUNSEL

Robert F. Pappano, Assistant Public Defender, Media, for appellant.

David Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.

Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley, Wieand and Popovich, JJ.

Author: Cercone

[ 323 Pa. Super. Page 502]

This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Delaware County on March 24, 1981 following appellant's conviction in a jury trial of Failure to File Tax Returns and Failure to Remit Tax Monies Collected.*fn1 In pressing the instant appeal, appellant advances several arguments, none of which we perceive as enjoying any merit. Consequently, we affirm the judgment of sentence.

Appellant, in his capacity as President and Treasurer of K.B.D.S. Associates, Inc. (hereafter "KBDS"), a manufacturing concern doing business in Drexel Hill, Delaware County, signed and filed a sales tax license application with the Sales and Use Tax Division of the Pennsylvania Department of Revenue (hereafter "Department of Revenue"). Upon the granting of that application, appellant assumed responsibility for the collection of sales tax on the products manufactured and sold by KBDS, the preparation of tax forms, the filing of tax returns, and the remitting of taxes collected to the Department of Revenue.

Appellant fulfilled his responsibilities to the Commonwealth until spring, 1975. During the "2A" quarter of that year (April and May), he failed to file a return or remit any taxes prior to the filing deadline of June 15. Moreover, appellant did not remit the taxes owed by KBDS for the "2B" quarter of 1975 (June), although he did file a return by the July 31 deadline.

As a result of these omissions, appellant's sales tax license was rescinded on August 31, 1975.*fn2 Although appellant was contacted on numerous occasions by agents of the Department of Revenue, and despite the fact that he received

[ 323 Pa. Super. Page 503]

    three notices of delinquency, the problem was not rectified. On December 21, 1976, a private criminal complaint was filed against appellant by Nathaniel Namerow, an agent of the Department of Revenue. A summons was issued the following day, December 22, 1976.

On January 25, 1977, appellant signed a bail recognizance in response to the complaint and summons, and a preliminary hearing was scheduled for February 1, 1977. That hearing, together with eleven subsequent hearings, was continued in order to allow appellant to obtain counsel and arrange for payment of his tax liabilities. Appellant later executed a promissory note and liquidated a portion of his debt to the Department of Revenue. One check submitted in partial satisfaction of the tax obligation was not honored due to insufficient funds.

Appellant then inquired if the complaint would be withdrawn if he paid the delinquencies, noting that he was experiencing some difficulty in erasing his liabilities since KBDS was failing as a commercial enterprise. The corporation later became involved in Chapter Eleven*fn3 bankruptcy proceedings in federal court. As a consequence, appellant asserted that he was unable to resolve his tax problems with the Commonwealth insofar as federal authorities had advised him that no payment on the Pennsylvania liability could occur until he had been discharged in the federal bankruptcy litigation.

After having been granted numerous continuances of his preliminary hearing, appellant failed to appear at the hearing scheduled for August 17, 1978. The district justice then issued a warrant for appellant's arrest which was executed on October 2, 1978. After the granting of yet another continuance, the preliminary hearing was conducted on January 31, 1979. Appellant was charged by information and arraigned that same day.

Appellant's counsel filed a pre-trial motion which alleged, inter alia, that the charges should be dismissed because

[ 323 Pa. Super. Page 504]

    the information was not signed personally by the District Attorney but was instead stamped with a facsimile of his signature. The motion was denied by the lower court and appellant proceeded to trial on July 23, 1980. The following day, July 24, 1980, appellant was found guilty of Failure to File Tax Returns and Failure to Remit Tax Monies Collected.*fn4

Post-verdict motions in arrest of judgment and for a new trial were filed, briefed, argued and ultimately denied by an order of the lower court dated February 6, 1981. On March 24, 1981, appellant appeared for sentencing and was ordered to pay the costs of his prosecution as well as a fine totaling $1,400, make restitution in the amount of $391.70 for back taxes owed to the Department of Revenue, and serve a term of probation of two years. The instant appeal then followed.

Appellant argues initially that the lower court erred in failing to discharge him at a pre-trial habeas corpus hearing on the basis that the information filed against him by the Commonwealth was affixed solely with a rubber-stamped facsimile signature of the district attorney. Appellant cites our opinion in Commonwealth v. Emanuel, 285 Pa. Superior Ct. 594, 428 A.2d 204 (1981), as support for his contention that Pa.R.Crim.P. 225(b)*fn5 requires that an information bear the handwritten signature of the prosecuting attorney.

We acknowledge that insofar as appellant challenged the validity of the information through a pre-trial motion to dismiss,*fn6 our opinion in Emanuel would seem to require his discharge. Unfortunately for appellant, however, our Supreme Court, in review of our decision in Emanuel, rejected

[ 323 Pa. Super. Page 505]

    in toto our disposition of that case. Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983). Speaking for a majority of the Court, Justice Flaherty quoted from our Opinion in Commonwealth v. Veneri and Thomas requiring handwritten signatures on criminal informations:

The district attorney or his designee is . . . mandated to inquire into and make full examination of all the facts and circumstances connected with each case to determine if the filing of an information is warranted 42 Pa.C.S.A. § 8931(d). Thus the act of approving the information is one fraught with grave consequences not the least of which may be the career, reputation and very freedom of the defendant. It would demean the significance of this fateful document if we were to interpret the words "shall be signed" to permit affixing a rubber stamp facsimile to the information.

Commonwealth v. Veneri and Thomas, quoting 306 Pa. Superior Ct. at 402, 452 A.2d at 787.

However, in reversing our decision in Emanuel, the Court dismissed such an argument, holding that

     contrary to the view of the Superior Court, a handwritten signature does not signify more or less than is signified by a facsimile signature. Manually signed informations may be subscribed without having been read, or they may even be signed in blank. On the other hand, it may be in a particular case that a facsimile signature has been affixed only after a full review by a duly authorized person. There is nothing in the physical appearance of either type of signature which requires the conclusion that a proper review by an authorized person has or has not been made. Thus, a per se rule against facsimile signatures is inadvisable, and in any event, would not address the evil sought to be prevented. (501 Pa. at 587, 462 A.2d at 656).

The Court noted that Pa.R.Crim.P. 225 has as its goal the protection of a citizen from "unjust or unduly oppressive government interference". Id., 501 Pa. at 587, 462 A.2d at 656. This interest is advanced by requiring that

[ 323 Pa. Super. Page 506]

    the government official who authorizes the commencement of a prosecution be identified on the face of the information should the official be later called upon by a court to establish that the information complies with all legal requirements. Thus, once the authorizing official is identified, whether by a manually-subscribed signature of a rubber-stamped facsimile signature, there arises a rebuttable presumption that the information is legally sound. Id.

Appellant does not contend that his prosecution was undertaken in the absence of due deliberation by the prosecuting authorities,*fn7 nor does he argue that his defense at trial was in some way impaired by the fixing of a facsimile signature to the information by the Commonwealth. Given the recent decision rendered by the Supreme Court in Emanuel, we conclude that because the identity of the authorizing official appears on the face of the information, albeit in facsimile form, the requirements of due process and Pa.R.Crim.P. 225(b) have been satisfied. Consequently, we reject appellant's claim to the contrary.

[ 323 Pa. Super. Page 507]

Appellant next maintains that the lower court erred in failing to dismiss the information on the ground that it was filed subsequent to the expiration of the applicable statute of limitations. More specifically, appellant argues that the filing of the complaint on December 21, 1976 was not sufficient to toll the statute of limitations because, insofar as appellant was not charged with a violation of the Crimes Code,*fn8 the statute of limitations could only be tolled by the filing of an information. Appellant argues that since the violations of the Tax Code were committed between May and July 1975, and since the information was not filed until January 31, 1979, the applicable statute of limitations expired prior to the institution of criminal proceedings against him, thus requiring his discharge. We cannot agree.

In Commonwealth v. Bidner, 282 Pa. Superior Ct. 100, 422 A.2d 847 (1980), the Superior Court, speaking through Judge Hester, ruled that "the clear intent of the legislature by virtue of § 107(a),"*fn9 282 Pa. Superior Ct. at 114, 422 A.2d at 854, authorized the application of the Crimes Code statute of limitations, 18 Pa.C.S.A. § 108,*fn10 to an election code violation which was perpetrated after the effective date of the Crimes Code. Id. Similarly, in Commonwealth v. Milano and Terra, 300 Pa. Superior Ct. 251, 446 A.2d 325 (1982), Judge Hoffman, in holding that prosecutions

[ 323 Pa. Super. Page 508]

    for violations of the Controlled Substance, Drug, Device and Cosmetic Act were timely instituted, had occasion to observe that "(t)he Crimes Code was passed in December, 1972 as a comprehensive effort to collate, modernize, and codify the criminal law of the Commonwealth." Id., 300 Pa. Superior Ct. at 256, 446 A.2d at 328. As a result, Judge Hoffman concluded that Section 108 of the Crimes Code must be regarded as constituting all-encompassing statutes of limitations for all crimes and offenses. Thus, in view of our rulings in Bidner and Milano and Terra, the two year statute of limitations afforded by the Crimes Code is that which is properly applied in the instant prosecution for violations of the Tax Code.

Insofar as we have concluded that Section 108 is to be applied in prosecutions commenced both within and without the Crimes Code, we reject appellant's assertion that the date of origin of his prosecution is that upon which the information was filed. As our Opinion in Commonwealth v. Milano and Terra explains, the legislature, in enacting a new statute of limitations applicable to all crimes and offenses, "repudiated the position that a prosecution could only be commenced by filing an indictment or information." Id., 300 Pa. Superior Ct. at 257-258, 446 A.2d at 328. Indeed the very language of 18 Pa.C.S.A. 108(e) (repealed)*fn11 belies appellant's contention that his prosecution was not officially initiated until the filing of the information. Section 108(e) provides that a "prosecution is commenced either when an indictment is found or when a warrant or summons is issued if such warrant or summons is executed without reasonable delay." (Emphasis supplied). In the case at bar, the Tax Code offenses were committed by appellant

[ 323 Pa. Super. Page 509]

    between May and July of 1975. The complaint and summons were issued on December 21, 1976 and December 22, 1976 respectively. Inasmuch as the Commonwealth could have instituted proceedings against appellant as late as May, 1977, under the applicable two year statute of limitations, it is apparent that the Commonwealth commenced appellant's prosecution in timely fashion, and that the court below committed no error in denying appellant's pre-trial motion to dismiss.

Appellant advances the additional argument that the lower court erred in failing to dismiss the information as violative of Pa.R.Crim.P. 225(c) in that it cites appellant for infringement of a statute which, at the time the information was filed, had been repealed. Count One of the information alleged in pertinent part that appellant

Count Two charged in pertinent part that appellant

In the lower left corner of the information, under the caption "Citation-Statute-Section," there were typed the words "Violation of the Sales and Use Tax Failure Etc. to Remit Tax Monies Act of March 6, 1956 P.L. 1228 (72 P.S.Sect. 3403-573)." Appellant contends that insofar as the cited statute (72 P.S. § 3403-573) has been repealed,*fn12

[ 323 Pa. Super. Page 510]

    the information is defective under Pa.R.Crim.P. 225(c) and should have been quashed. We are unable to address the merits of this claim since it is clear that challenges to the legitimacy of an information must be raised in a pre-trial motion to quash the information. Pa.R.Crim.P. 306.*fn13 All grounds for the relief demanded must be set forth in the motion and failure to state a ground results in its waiver. Pa.R.Crim.P. 306(e). See also Commonwealth v. Boerner, 281 Pa. Superior Ct. 505, 422 A.2d 583 (1980); and Commonwealth v. Williams, 252 Pa. Superior Ct. 587, 384 A.2d 935 (1978). In the case at bar, appellant filed a pre-trial motion to dismiss the information on the ground that it did not contain the handwritten signature of the prosecuting official. The motion did not, however, state as an additional reason for dismissal the citation of a repealed statute by the Commonwealth in the information. Because appellant's challenge to the information in the latter regard is untimely, we view it as having been waived.*fn14

Finally, appellant argues that the lower court erred in instructing the jury that a "willful" violation of the tax statute would be a basis for criminal liability and that appellant's good faith in withholding from the Commonwealth

[ 323 Pa. Super. Page 511]

    the tax monies due it was not a defense to the crime charged. At trial, appellant alleged that his failure to remit sales tax monies which he had collected on KBDS' sales was involuntary because the money was in a bank account that had been frozen by the actions of his creditors. On appeal, appellant urges that an act is willful when it is both intentional and voluntary, and that the lower court's instructions to the jury that an act may be willful despite the good faith with which it is performed, is tantamount to creating a strict liability crime.

We agree with the conclusion reached by the lower court that a charge which would direct the jury to acquit appellant, should it conclude that appellant acted in good faith in refusing to remit sales tax monies to the Commonwealth, was not proper in the case at bar since the criminal statute in question, 72 P.S. § 7268, does not provide for such a "good faith" defense. We regard the fact that 72 P.S. § 7269 does provide for a limited good faith defense in a limited civil context, coupled with the fact that the preceding criminal section presently subject to our scrutiny (Section 7268) is totally barren of such ameliorative language, are reflective of a conscious election by our legislature to limit the application of a good faith defense to civil tax litigation. Section 7268 requires that a violation of its provisions be "willful."*fn15 Insofar as the lower court correctly charged the jury concerning the necessity of a willfull failure to remit tax monies as grounds for appellant's

[ 323 Pa. Super. Page 512]

    conviction,*fn16 we reject appellant's contention that the court below usurped the function of the jury by removing from its consideration the possible good faith of appellant as it may have impacted upon the willfullness and voluntariness of appellant's behavior.

Judgment of sentence affirmed.


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