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EDWIN A. PEEPLES v. COMMONWEALTH PENNSYLVANIA (09/25/86)

decided: September 25, 1986.

EDWIN A. PEEPLES, III, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County, in case of Commonwealth of Pennsylvania v. Edwin A. Peeples, III, No. 190 M 1984.

COUNSEL

Edwin A. Peeples, III, appellant, for himself.

Charlotte M. Rodriguez, for appellee.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 101 Pa. Commw. Page 24]

This is an appeal by Edwin A. Peeples, III (Peeples) from an order of the Court of Common Pleas of Chester County denying Peeples' motion in arrest of judgment and hence upholding its prior conviction of Peeples for failing to file a final earned income tax return pursuant to a local ordinance*fn1 enacted under Section 2 of The

[ 101 Pa. Commw. Page 25]

Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6902 (Tax Act).

A criminal complaint was lodged against Peeples on February 1, 1984 alleging that he had failed to file his 1982 earned income tax return "as required under Act 511 of the Pennsylvania Legislature, entitled, 'The Local Tax Enabling Act', (Act of December 31, 1965, P.L. 1257), as amended." The complaint did not specifically refer to the local ordinance. Peeples objected to the complaint as not giving him notice of any violation of the local ordinance. The trial court, pursuant to Pennsylvania Rule of Criminal Procedure 70, (now designated Pennsylvania Rule of Criminal Procedure 90) permitted an amendment which we hold, contrary to Peeples' assertion, does not constitute an abuse of discretion inasmuch as it was clear from the complaint that the failure to file a local tax return was the charge.

Pursuant to Section 13 of the Tax Act, 53 P.S. § 6913, conviction for failure to file subjects the individual to a fine of up to $500.00 plus costs and, in default of payment, to imprisonment for a period not exceeding thirty days. The district justice found Peeples guilty of the offense and fined him $500.00. Peeples appealed to the common pleas court and filed a motion for a jury trial, which was denied. At a July 31, 1984 hearing the Commonwealth in support of its burden offered into evidence

[ 101 Pa. Commw. Page 26]

    the local ordinances establishing the one percent tax and the local ordinances appointing Berkheimer Associates as its tax collector. It also submitted into evidence a copy of the final income tax return form and general instructions mailed to Peeples and a copy of the "return of delinquent tax" form mailed to Peeples. It was stipulated that Peeples received these two forms, although they are missing from the original record certified to this Court. In addition, the Commonwealth at a September 24, 1984 hearing in court presented the testimony of Barbara Ann Miller, office manager of the Pottstown office of Berkheimer Associates, who testified that Peeples had not filed a final earned income tax return for 1982.

Another hearing was held on October 10, 1984 during which, inter alia, Peeples, in a colloquy with the court, indicated that he wished to testify. Also during this colloquy Peeples was advised that if he did in fact testify he would be subject to cross-examination. N.T. 8-10. Peeples then took the stand and stated that he was confused about whether he had to pay the tax. Specifically, he testified that the law requires every resident to file a tax return "who received or anticipates that he will receive taxable earned income in the form of earnings or net profits during the calendar year." N.T. 12. He further explained, "[h]aving, as far as I can see, received no earned no [sic] income or expecting to receive no earned income, I don't see how that -- this would raise some questions to doubt as to whether I was required to file." Immediately after this statement the following colloquy occurred:

THE COURT: Do you work?

THE WITNESS: No. This doesn't say to work.

THE COURT: Do you work?

THE WITNESS: Do I work?

[ 101 Pa. Commw. Page 27]

THE COURT: Did you work? Did you work?

THE WITNESS: That has not been proven.

THE COURT: I ask you did your [sic] work in 1982?

THE WITNESS: Since I am under a criminal investigation, I sustain [sic] ...


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