J-S26009-17

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 twentyseven 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).
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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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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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(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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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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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 “sameelements” 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.”). 
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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 
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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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