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COMMONWEALTH PENNSYLVANIA v. JEROME VAN NEST (12/11/87)

decided: December 11, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JEROME VAN NEST, APPELLANT



Appeal from the Order of the Superior Court entered January 24, 1986 at No. 607 Harrisburg 1984, affirming the Judgment of Sentence of the Court of Common Pleas of Cumberland County entered October 16, 1984 at 239 Criminal 1983. 354 Pa. Super. 632, 508 A.2d 344 (1986)

COUNSEL

Richard C. Snelbaker, Mechanicsburg, for appellant.

John M. Eakin, Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case. Hutchinson, former J., did not participate in the decision of this case.

Author: Mcdermott

[ 517 Pa. Page 46]

OPINION

Appellant, Jerome Van Nest, was appointed in 1967 to fill a vacancy in the office of tax collector for the Borough of Wormleysburg, and upon successive re-elections served in that capacity until 1982. On May 12, 1983, a jury sitting in the Court of Common Pleas of Cumberland County convicted appellant of eight counts of embezzlement, in violation of Section 39 of the Local Tax Collection Law,*fn1 and one count of theft by failure to make required disposition of funds received, in violation of Section 3927 of the 1972 Crimes Code.*fn2 Post-verdict motions for a new trial and arrest of judgment were filed, and the court granted appellant's motion for a new trial on the embezzlement convictions,*fn3

[ 517 Pa. Page 47]

    but denied the motions as they pertained to the theft conviction. Judgment of sentence was imposed on October 16, 1984, and appellant was sentenced to undergo imprisonment for not less than seven nor more than twenty-three months in Cumberland County prison. Additionally, appellant was required to pay the costs of prosecution. On appeal, the Superior Court affirmed the conviction. 354 Pa. Super. 632, 508 A.2d 344. Subsequently, we granted appellant's petition for allowance of appeal.

In this appeal appellant raises two basic issues.*fn4 The first challenges the sufficiency of the evidence. The second challenges the applicability of a statutory presumption of intent under the facts of this case. We will address the issues seriatim.

Where a defendant challenges his conviction on appeal it is well established that the test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983).

The relevant factual background of the case is as follows.

The appellant was the duly elected tax collector for the Borough of Wormleysburg for over 15 years. While he held the office his wife was in fact the tax collector. His office was charged with collection of taxes for three different entities: the County; the Borough; and the West Shore School District. For tax purposes two separate bank accounts

[ 517 Pa. Page 48]

    were maintained in his name, but clearly distinguished from his own personal funds.

Appellant's wife sent the tax notices to taxpayers, received and recorded the payments, deposited the monies received, and ultimately forwarded the monies to the authorities entitled to them. Appellant worked elsewhere, but when his wife fell ill all the duties he apparently neglected suddenly became his responsibility. Upon entering these duties he became aware of irregularities in the records. He discovered wrong deposits, dilatory record keeping, and borough and county tax receipts used to pay school tax obligations.

Upon making these discoveries, appellant contacted Robert L. Daub, a certified public accountant. Mr. Daub's accounting firm was the borough and school district auditor. Appellant explained the problems he was encountering in attempting to reconcile the tax records kept by his wife. On several different occasions appellant sought advice from Mr. Daub informally in hopes of straightening out the records. Unfortunately, due to appellant's extremely limited familiarity with the records, that was impossible. Following the completion of the school district audit Daub contacted the borough council president concerning these problems. A meeting was called with appellant, as a result of which all the tax records in appellant's possession were removed from his home and placed in borough offices. Mr. Daub immediately commenced an audit of the borough and county records, and based on these results the Commonwealth elected to prosecute.*fn5

The evidence adduced at trial consisted primarily of Mr. Daub's testimony as the Commonwealth's key witness. He explained the results of the audit that ensued following the removal of the tax records from appellant's home. He testified that as of the date the records were ...


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