Opinion
No. 420 C.D. 2011
01-05-2012
Commonwealth of Pennsylvania v. Eric Gaer, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Eric Gaer appeals from a summary criminal conviction Order following a non-jury trial in the Cambria County Court of Common Pleas (trial court). Gaer was convicted of one count of Willfully Failing or Refusing to Make Any Such Contribution or Other Payment Required under Section 802(a)(2) of the Unemployment Compensation Law (Law). On appeal, Gaer challenges the guilty verdict handed down by the trial court, arguing that the evidence presented does not prove beyond a reasonable doubt that Gaer acted willfully.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937), as amended, 43 P.S. § 872(a)(2).
Gaer was charged in October 2009 after Call Center HR, Inc. (Call Center) failed to make unemployment compensation (UC) tax payments beginning in the third quarter of 2008. "The Commonwealth alleged that Gaer was an officer of Call Center, specifically the CEO, knew of the obligation to make the payments, knew the payments were not made and failed to correct this deficiency." (Trial Ct. 1925(a) Op. at 4.) Gaer was originally convicted of one count of Failing or Refusing to Make Any Such Contribution or Other Payment Required by the Magisterial District Court, in which he did not appear but was represented by counsel. Upon appeal to the trial court, Gaer, although represented by counsel, was tried in absentia in a de novo proceeding on December 20, 2010. The Commonwealth of Pennsylvania (Commonwealth) called one witness, Richard Stancombe, an unemployment compensation tax office manager with the Department of Labor and Industry (Department).
Following the non-jury trial, both Gaer and the Commonwealth submitted briefs addressing the legal questions in the case. On January 21, 2011, the trial court found Gaer guilty of one count of Failing or Refusing to Make Any Such Contribution or Other Payment Required. Gaer was sentenced to pay a fine of $100, make restitution in the amount of $319,729.46 to the Pennsylvania Unemployment Compensation Fund, Office of Unemployment Compensation Tax Services, and pay the costs of prosecution. Upon receiving Gaer's Notice of Appeal on February 23, 2011, the trial court, on March 1, 2011, ordered Gaer to file a Concise Statement of Errors Complained of on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Gaer raised two issues: (1) the evidence at trial was legally insufficient to support a finding of guilty, and (2) the facts presented at trial did not support a finding of guilty beyond a reasonable doubt as to willful misconduct on Gaer's part. Pursuant to Rule 1925(a), the trial court filed an opinion with this Court in support of its Order. The trial court considered the elements required to prove Gaer was individually guilty of the charge at issue, outlined the evidence presented, and determined that the Commonwealth had met its burden and proved the three elements beyond a reasonable doubt. In order to prove that Gaer was guilty of the summary offense of Failing or Refusing to Make Any Such Contribution or Other Payment Required, the Commonwealth needed to establish that: (1) Gaer was an officer or agent of Call Center; (2) he was aware that he or Call Center was required to pay UC taxes; and (3) he willfully failed or refused to make such payments. Kipps v. Commonwealth, 586 A.2d 1003, 1006-07 (Pa. Cmwlth. 1991); 43 P.S. § 872(a)(2). The trial court held that Gaer was an officer of Call Center, that he was aware that he or Call Center was required to pay UC taxes, and that he willfully failed to do so. Gaer maintains that the Commonwealth has proved none of these three elements. Gaer argues before this Court that the facts do not support a finding that he was the CEO of Call Center, that he acted willfully beyond a reasonable doubt, and that there is no "actual proof" he received notice of Call Center's tax delinquency. Therefore, Gaer argues, the Commonwealth cannot prove beyond a reasonable doubt that Gaer acted willfully.
The pertinent provision of Section 802 provides:
(a) Any employer (whether or not liable for the payment of contributions under this act) or any officer or agent of such employer or any other person who does any of the following commits a summary offense and shall, upon conviction, be sentenced to pay a fine of not less than one hundred dollars nor more than fifteen hundred dollars or to imprisonment for not longer than thirty days, or both:
43 P.S. § 872(a)(2).. . .
(2) wi[l]lfully fails or refuses to make any ksuch contribution or other payment required hereunder
When reviewing a trial court's determination on appeal from a summary conviction, our Court's review is limited to determining whether the trial court made an error of law or whether the findings of the trial court are not supported by substantial evidence. Commonwealth v. Smyers, 885 A.2d 107, 110 (Pa. Cmwlth. 2005). Based on the evidence and all reasonable inferences drawn therefrom in favor of the prevailing party below, this Court must determine whether the fact finder could have found each element of the offense had been proven beyond a reasonable doubt. Id. As an appellate Court, we must defer to the trial court's credibility determinations. Big Bass Lake Community Association v. Warren, 23 A.3d 619, 625 (Pa. Cmwlth. 2011). We are not permitted to reweigh the evidence or substitute our judgment for that of the fact finder and, "when there is support in the record for the verdict," the court will not disturb the verdict. Commonwealth v. Bachert, 499 Pa. 398, 406, 453 A.2d 931, 935 (1982). "The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt." Commonwealth v. Koch, ___ A.3d ___ 2011 WL 4336634 *2 (Pa. Super. 2011). Under the "mailbox rule," there is a rebuttable presumption that a properly addressed letter mailed ordinarily will promptly reach its destination. Weston v. Zoning Hearing Board of Bethlehem Township, 994 A.2d 1185, 1191 n.9 (Pa. Cmwlth. 2010). However, the "mailbox rule" normally only applies in a civil context, relevant in the criminal context in only the most extreme of circumstances. Commonwealth v. Salter, 858 A.2d 610, 617 (Pa. Super. 2004). Reliance on the "mailbox rule" to establish an element of a criminal offense violates due process and cannot be countenanced. Id. at 612.
We must determine, then, whether the evidence presented supports the trial court's determination that the Commonwealth met its burden in proving each of the three elements of the charge against Gaer. We first consider whether the evidence supports the trial court's finding that Gaer was an officer or agent of Call Center. Under Chapter 11 of the Business Corporation Law of 1988, "officer" is defined as follows: "If a corporation is in the hands of a custodian, receiver, trustee or like official, the term includes that official or any person appointed by that official to act as an officer for any purpose under this subpart." 15 Pa. C.S. § 1103. Black's Law Dictionary offers a more useful characterization, defining "officer" in the corporate context as "a person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a CEO, president, secretary, or treasurer." Black's Law Dictionary 1193 (9th ed. 2009). CEO, or chief executive officer, is subsequently defined as "[a] corporation's highest-ranking administrator, who manages the firm day by day and reports to the board of directors." Black's Law Dictionary 270 (9th ed. 2009). As proof of Gaer's status as an officer, the Commonwealth presented Call Center's PA-100 Enterprise Registration Form (PA-100) at trial. Call Center's PA-100 identifies Gaer as the CEO of Call Center and indicates, by way of a check box, that he is an "officer." (Commonwealth's Ex. 1 at 3; R.R. at 31a.) Mr. Stancombe testified that the Department routinely confirms the information employers provide on the PA-100 by way of a phone call, he further testified that such a call was made to Call Center, and the information on Call Center's PA-100 was verified as correct. (Trial Tr. at 13-15, 17; R.R. 16a-18a, 20a.) Mr. Stancombe also testified that the Department created a confirmation of the information verified by the phone call, which the Commonwealth presented at trial. (Trial Tr. at 17; R.R. at 20a.) While the confirmation does not indicate that Gaer's status as CEO was explicitly verified, it does indicate that the existence of the business was verified and does not indicate that any of the information on Call Center's PA-100 was not verified. (Commonwealth Ex. 9; R.R. 56a.) Therefore, it can be reasonably inferred that Gaer's status as the CEO of Call Center was verified and the Department had no questions regarding the veracity of the information provided on the PA-100.
Under the Pennsylvania Code, all employers operating within Pennsylvania must register with the Commonwealth for tax purposes by submitting a PA-100 within ten days of paying a non-resident or resident employee for the first time. 61 Pa. Code § 113.3b.
While Commonwealth Exhibit 9 was not technically admitted into evidence, it has been included in the certified record, and was relied upon by the trial court in its 1925(a) opinion. Further, there have been no objections to its inclusion in the record. Commonwealth Exhibit 9 simply reflects the testimony of Mr. Stancombe, which the trial court viewed as credible.
The dissent asserts that this evidence is not competent to support Gaer's conviction because it is hearsay. Commonwealth v. Gaer, 420 C.D. 2011, slip op. at 2 (Pa. Cmwlth., filed January 5, 2012) (Friedman, J, dissenting). However, although Gaer's attorney initially objected to certain of these items as hearsay, (Hr'g Tr. at 5, 14, R.R. at 8a, 17a), the Commonwealth explained that these items and this information were obtained during its regularly conducted business activities, and Gaer subsequently did not object to the admission of this evidence, (Hr'g Tr. at 16, R.R. at 19a). In addition, Gaer makes no argument before this Court that this evidence is hearsay. Thus, (1) Gaer waived his objection to that evidence by failing to object to its admission and by not arguing this issue on appeal; and (2) these items and this information would fall under the records of regularly conducted activity exception to the hearsay rule, see Pa. R.E. 803(6).
Gaer argues that, because he did not fill out or sign the PA-100 or personally take the confirmation phone call from the Department, there is no proof that he is an officer of Call Center. As the trial court has pointed out, this argument fails for want of logical plausibility. The trial court questioned why Gaer was listed as the CEO and marked as an officer if he was not an officer of Call Center, and found that:
Robert Dietrich, the chief financial officer of Call Center, completed and signed the PA-100 and confirmed the information when the Department called. Mr. Dietrich was charged with and convicted of the same violation of the Law as Gaer.
The sole possible explanation in the alternative advanced by Gaer is that Dietrich had planned, well in advance of the default, that Call Center would at some point stop making the required [UC] payments and that by listing Gaer as CEO the result would be that Gaer was charged with the failure to make those payments. Such a convoluted explanation of why Gaer's name appears as CEO simply defies logic and fails to explain why, if Dietrich had such a scheme in mind, that he listed himself as CFO and thus exposed himself to the same criminal liability.(Trial Ct. 1925(a) Op. at 5.) We hold that the evidence presented at trial and relied upon by the trial court as the fact finder is sufficient to allow a reasonable mind to conclude, beyond a reasonable doubt, that Gaer was an officer of Call Center.
The second element that the Commonwealth was required to prove was that Gaer knew that he or Call Center was required to pay UC taxes. The trial court found that, based on several notices mailed to Gaer from the Department and the "mailbox rule," Gaer was aware of his obligation to pay UC taxes. (Trial Ct. 1925(a) Op. at 6.) The trial court determined the evidence showed that the Department sent Gaer two certified letters, which were returned as unclaimed, and three letters by first class mail, that were not returned, explaining the need for Call Center to pay its UC taxes. (Trial Ct. 1925(a) Op. at 5-6.) Mr. Stancombe's testimony supported this finding, as he indicated that the Department had sent several notices to both Call Center's business address and Gaer's home address. (Trial Tr. at 9-12; R.R. at 12a-15a.) Applying the "mailbox rule" as it understood it, the trial court determined that the presumption created by the rule was sufficient to establish that Gaer knew he or Call Center was required to pay UC taxes. (Trial Ct. 1925(a) Op. at 6.)
The Department obtained Gaer's home address by entering Gaer's Social Security number into a Lexis Nexis database search. While the PA-100 required a home address to be listed for all officers, Mr. Dietrich supplied Call Center's business address in California as the home address for both Gaer and himself.
Under the "mailbox rule," evidence that demonstrates a letter has been mailed properly will allow a fact finder to determine that the letter was received by the addressee. In re Rural Route Neighbors, 960 A.2d 856 (Pa. Cmwlth. 2008). As the trial court noted, the presumption raised by the "mailbox rule" is not overcome by testimony that the letter was never received. Murphy v. Murphy, 988 A.2d 703, 709 (Pa. Super. 2010). However, the trial court failed to consider the Superior Court's analysis of the appropriate application of the "mailbox rule" in the criminal context. In general, presumptions are mandatory, which means the burden would be on the defendant, Gaer in this case, to rebut the presumption. Salter, 858 A.2d at 615-16. Only if Gaer satisfied this burden would the "ultimate burden of persuasion return to the prosecution." Id. at 616. This is impermissible. "Placing the burden of production on the defendant under the threat of such a sanction would run afoul of the presumption of innocence, as well as the defendant's privilege to decline to testify." Id. Accordingly, the "mailbox rule" does not apply to the first class letters the Department claims to have sent to Gaer and the trial court erred in its application of the mailbox rule as a matter of law.
That does not mean, however, that Gaer did not have sufficient notice of his or Call Center's obligation to pay UC taxes. There is evidence in the record that indicates exactly the opposite. According to the PA-100, Call Center began operating in Pennsylvania on February 1, 2008. (Commonwealth Ex. 1; R.R. at 29a.) Call Center immediately began to owe UC taxes, owing an aggregate of $32,758.49 for the first quarter of 2008 alone. (Commonwealth Ex. 3; R.R. at 43a.) Of this amount owed, Call Center paid $9,476.24. (Commonwealth Ex. 3; R.R. at 43a.) Call Center also paid $523.75 in UC taxes in the second quarter of 2008 and $4,815.13 in the third quarter of 2008 before it stopped making any further payments. (Commonwealth Ex. 3; R.R. at 43a.) While Call Center did not make sufficient payments to meet its liability, these payments demonstrate an understanding and acknowledgment that Call Center was required to pay UC taxes. Based on Call Center's previous, though incomplete, attempts at paying its UC taxes, it can be reasonably inferred that Gaer, as the CEO of Call Center and the highest-ranking administrator who manages the firm's day-to-day operations, had notice that he or Call Center was required to pay UC taxes.
Further, since the passage of the Social Security Act of 1935, which provides federal support to all states that implement UC programs, 42 U.S.C. § 502(a), each of the fifty states as well as the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have implemented some form of a UC program. To fund these programs, each state requires that employers pay unemployment compensation taxes. See Contacts for State UI Tax Information and Assistance, U.S. DEPARTMENT OF LABOR, http://www.ows.doleta.gov/unemploy/agencies.asp (last visited November 18, 2011).
The record also indicates that the Department sent Gaer three letters by first class mail to Gaer's home address. (Commonwealth Ex. 4; R.R. 44a-48a.) The first of these three letters informed Gaer that "[y]our delinquent account with the Bureau of Employer Tax Operations has been referred to [Mr. Stancombe's] attention for legal action to effect full collection." (Commonwealth Ex. 4; R.R. 44a.) Gaer was informed in the first letter that he was to appear at the Office of Unemployment Compensation Tax Services, Field Accounting Service, in Johnstown on August 4, 2009, and that he should be prepared to pay the unpaid taxes in excess of $245,000. (Commonwealth Ex. 4; R.R. 44a.) The first letter also informed Gaer that this meeting was an opportunity to arrange a settlement in order to avoid further costs and the issuance of a criminal complaint. (Commonwealth Ex. 4; R.R. 44a.) The second letter, dated September 3, 2009, confirmed that Gaer did not appear at the Department's office in Johnstown on August 4, 2009, and that the Department was going to pursue criminal prosecution. (Commonwealth Ex. 4; R.R. 45a.) The third letter, dated September 16, 2009, was identical in substance to the second letter. (Commonwealth Ex. 4; R.R. 47a.)
Two of these three letters were sent both by certified and first class mail. The first class letters were not returned to the Department. (Trial Tr. 11-12; R.R. 14a-15a.)
Following his summary conviction at the Magisterial District Court, Gaer filed an Appeal From Summary Conviction with the trial court. On this form, which Gaer signed on a line marked "Defendant" and had notarized in San Diego County, California, Gaer indicated that his home address was the same address used by the Department to send Gaer notice of the delinquency. (Appeal From Summary Conviction, Date Received August 11, 2010.) If Gaer had not known of the delinquency or the pending criminal charges against him because of the delinquency, he would have had no reason to retain an attorney to represent him in this matter. In fact, he retained two attorneys. Such a confluence of circumstances, separate and apart from any application of the "mailbox rule," leads to the reasonable inference that Gaer knew of the delinquency.
While we find that there is sufficient circumstantial evidence to affirm the trial court's determination that Gaer was aware the he or Call Center was required to pay UC taxes, the Department may want to reconsider the manner in which it issues its notices of delinquency, especially to out-of-state parties, in order to ensure there is direct evidence of receipt.
The dissent interprets this part of our analysis as saying that, because Gaer hired an attorney, it proves beyond a reasonable doubt that he was aware of Call Center's failure to pay the required UC taxes. Gaer, slip op. at 3 (dissent). However, what we intended by this statement was that this was simply one more piece of the circumstantial evidence against Gaer that could be considered in conjunction with the other evidence.
Gaer was initially represented in this matter by Robert A. Graci of Eckert Seamans Cherin & Mellott, LLC, who withdrew his representation in March 2010. (Original Papers Received from Lower Court at *12, Filed For Record August 17, 2010.) Gaer then hired Joseph A. Curcillo III of Beinhaur & Curcillo in May 2010. (Original Papers Received from Lower Court at *11, Filed For Record August 17, 2010.)
"This Court may affirm on other grounds where grounds for affirmance exist." Bonifate v. Ringgold School District, 961 A.2d 246, 253 n. 2 (Pa. Cmwlth. 2008).
The final element the Commonwealth was required to prove was that Gaer willfully failed or refused to pay Call Center's UC taxes. Properly noting that this element turns on the definition of "willful," the trial court determined that "[t]he failure to satisfy the deficiency [in payment] is circumstantial evidence that Gaer failed to meet his obligation to pay the [UC taxes]." (Trial Ct. 1925(a) Op. at 7.) Despite Gaer's arguments that a "willful" act means an act done with a bad purpose, this Court has already determined the meaning of willful in this context. In Kipps we explained that "willful," as used in Section 802(a)(2) of the Law, requires "the Commonwealth [] to prove beyond a reasonable doubt only that [Gaer] was aware that he was required to pay UC taxes and nonetheless failed to do so." Kipps, 586 A.2d at 1006-07 (emphasis added). As explained, Call Center had made some initial efforts to pay its UC taxes, indicating that Gaer, as CEO, knew that Call Center was obligated to pay UC taxes. (Commonwealth Ex. 3; R.R. at 43a.) Mr. Stancombe's testimony supports the finding that Call Center had paid at least some of its UC taxes through the third quarter of 2008. (Trial Tr. at 8-9; R.R. at 11a-12a.) Mr. Stancombe further testified that, despite Call Center's early efforts to pay its UC taxes, it still had an outstanding balance of more than $245,000 as of August 4, 2009. (Trial Tr. at 15-16; R.R. at 18a-19a.) The Commonwealth also introduced into evidence Call Center's account balance as of the end of the second quarter of 2009, which indicated Call Center owed $271,068.30 in back taxes and $48,661.16 in interest for a total of $319,729.46. (Commonwealth Ex. 6; R.R. at 51a.) This balance was unpaid as of the date of the trial. (Trial Tr. 15-16; R.R. at 18a-19a.) As the trial court noted, Gaer's failure to pay this balance represents circumstantial proof that, despite as CEO being aware that he was required to pay UC taxes, he nevertheless failed to do so. Once again, the circumstantial evidence presented and relied upon by the trial court demonstrates, beyond a reasonable doubt, that Gaer failed to pay Call Center's UC taxes as required by the Law.
Gaer attempts to draw a parallel between his situation and the facts before the Superior Court in Commonwealth v. Sacco, 531 A.2d 1 (Pa. Super. 1987), arguing that "'pre-accusation compliance' with the tax laws render[s] conduct non-criminal as a matter of law." (Gaer's Br. at 14.) In Sacco, a restaurant owner was convicted of seven counts of failing to file sales tax returns and to remit sales taxes. Sacco, 531 A.2d at 1. Because the restaurant owner filed her returns and paid her taxes prior to the filing of criminal charges, the Superior Court held that the restaurant owner had not violated the statute. Id. There was no question that the restaurant owner had paid her taxes late, but she paid them nearly two years before criminal charges were brought and "Appellant's conduct, tardiness, does not fall within the conduct proscribed by the legislature." Id. at 2. Gaer, meanwhile, has at no point since Call Center began operations fully complied with the provisions of the Law requiring payment. At no point before the criminal complaint was filed in this case did Gaer square Call Center's debt with the Department. By the end of the second quarter of 2009, Call Center owed more than $270,000 in delinquent taxes alone and, by the time Mr. Stancombe filed the criminal charge on October 1, 2009, Call Center had not paid its balance. That is not tardiness; that is failure to pay. Even when Call Center was making some effort to pay its UC taxes, it paid far less than the required amount owed under the Law. So, while it is true that "pre-accusation compliance" with a tax law removes criminal liability, there is nothing in the record to indicate that Gaer complied with the tax provisions of the Law before Mr. Stancombe filed the criminal complaint.
Based on the foregoing, we find there is sufficient evidence to prove, beyond a reasonable doubt, that Gaer was an officer of Call Center, he knew that he or Call Center was required to pay UC taxes, and that he willfully failed to make such payments. Accordingly, we affirm the Order of the trial court and uphold Gaer's summary conviction and sentence.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 5, 2012, the Order of the Cambria County Court of Common Pleas in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. The majority holds that the Commonwealth of Pennsylvania (Commonwealth) proved beyond a reasonable doubt that: (1) Eric Gaer was an officer of Call Center HR, Inc. (Call Center); (2) Gaer was aware that Call Center was required to pay unemployment compensation (UC) taxes pursuant to section 802(a)(2) of the Unemployment Compensation Law (Law); and (3) Gaer willfully failed to pay the UC taxes owed by Call Center. I cannot agree that the Commonwealth proved these elements of the crime beyond a reasonable doubt.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §872(a)(2). Section 802(a)(2) of the Law establishes criminal penalties for an officer of an employer who "willfully fails or refuses to make any such contribution or other payment required hereunder."
With respect to the first element, the only evidence in the record showing that Gaer is an officer of Call Center is a PA-100 Enterprise Registration Form (PA-100), completed by Robert Dietrich, the Chief Financial Officer (CFO). The Commonwealth's sole witness, Richard Stancombe, a UC tax office manager, testified that: (1) someone, not Stancombe, at the Department of Labor and Industry (Department) phoned Call Center and spoke with Dietrich, who verified the information on the PA-100; and (2) someone, not Stancombe, created a confirmation sheet, but the sheet does not show that Dietrich verified that Gaer is an officer of Call Center.
First, the PA-100 is hearsay, an out-of-court statement by Dietrich offered to prove the truth of a matter asserted therein, i.e., that Gaer is an officer of Call Center. Second, Stancombe's testimony about the phone call by another person to verify the information on the PA-100 is double hearsay, i.e., an out-of-court statement by the other person, relating Dietrich's out-of-court statements. Third, the confirmation sheet is not evidence that Gaer is an officer of Call Center because it contains no verification of that. Hearsay is not admissible as evidence and is presumed to be unreliable. Pa. R.E. 802; Commonwealth v. Chamberlain, 557 Pa. 34, 39, 731 A.2d 593, 595 (1999). Thus, hearsay alone is not proof beyond a reasonable doubt that Gaer is an officer of Call Center.
The majority states that the PA-100 is not hearsay because the Department obtained the form during its regularly conducted business activities. (Majority Op. at 6 n.5, citing Pa. R.E. 803(6).) However, the hearsay exception relied upon by the majority is for records of regularly conducted activity made by a business. Assuming arguendo that the Department is a "business," the PA-100 was not made by the Department. The confirmation sheet was made by the Department, but, as indicated, it does not show that Gaer was an officer of Call Center.
The majority also asserts Gaer waived any hearsay issue. However, Gaer argues in his brief that there is not sufficient evidence in the record to support a finding that he was the CEO with power to act on behalf of the corporation. (Gaer's Brief at 10.) Gaer points out that the only evidence is the PA-100; thus, Gaer certainly challenges the sufficiency of the PA-100, and, because I conclude that the PA-100 is hearsay, I agree with Gaer.
With respect to the second element, the evidence that Gaer was aware of Call Center's obligation to pay UC taxes includes notices sent to Gaer by certified mail and by first class mail. However, no one claimed the certified mail, and, as the majority indicates, the "mailbox rule" presumption that first class mail was received does not apply in the criminal context. (Majority Op. at 8.) Thus, the notices are no proof at all that Gaer had the necessary awareness.
The majority states that the "Appeal From Summary Conviction" form filed with the trial court "[f]ollowing [Gaer's] summary conviction" establishes that the notices were sent to Gaer's correct home address. (Majority Op. at 10.) Even so, as indicated, there is no presumption in this case that the notices were received. Moreover, the "Appeal From Summary Conviction" form was not presented by the Commonwealth to meet its burden of proof. In fact, the form did not even exist prior to Gaer's summary conviction. Thus, certainly, we cannot consider it in determining whether the Commonwealth met its burden.
The majority then states that the fact that Gaer hired an attorney to defend him is proof beyond a reasonable doubt that Gaer knew about the Call Center's failure to pay required taxes. (Majority Op. at 10-11.) However, Gaer's hiring of an attorney proves only that Gaer was denying his awareness of Call Center's tax obligation and that he was requiring the Commonwealth to prove otherwise beyond a reasonable doubt. In fact, it is absurd to say that, because a defendant hired an attorney, the defendant was admitting to any element of the crime.
The majority insists that the fact Gaer hired an attorney is "one more piece of the circumstantial evidence against Gaer that could be considered in conjunction with the other evidence." (Majority Op. at 11 n.11.) However, the question is whether Gaer knew about his tax obligation before criminal charges were filed against him. The fact that Gaer hired an attorney after delinquency charges were made does not establish that Gaer was aware of Call Center's tax obligation when Call Center failed to pay it. --------
Finally, the majority states that, because Call Center previously paid the UC taxes, Gaer must have been aware of Call Center's tax obligation because he was the CEO of Call Center. First, the Commonwealth failed to prove beyond a reasonable doubt that Gaer was an officer of Call Center; thus, the majority's reasoning is flawed. Second, there is no evidence that Gaer made the tax payments, and it is not reasonable to infer that Gaer made the payments when Call Center had a CFO to handle financial matters. Third, there is no evidence that the CFO discussed, or would have any reason to discuss, the tax payments with Gaer. Thus, unlike the majority, I cannot conclude that the Commonwealth proved beyond a reasonable doubt that Gaer was aware of the UC tax obligations of Call Center.
With respect to the third element, the majority properly states that, to establish willfulness, the Commonwealth had to prove that Gaer was aware of the tax obligation and failed to pay it. (Majority Op. at 11.) Because the Commonwealth failed to prove beyond a reasonable doubt that Gaer was aware of the tax obligation, the Commonwealth also failed to prove that Gaer willfully failed to pay the tax.
Accordingly, I would reverse.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge