*1
restrictions upon probation violation
which are
hearings
more
than those
stringent
required by the due
clause
process
of the United
Constitution.
States
See:
v.
Moody Daggett,
204,
The circumstances in the instant case lead me to conclude that the the final delay holding probation violation hear- Therefore, ing was not unreasonable. I would affirm the action of trial court. Pennsylvania
COMMONWEALTH of v. Sylvia Luther,
Bill T. LUTHER and C. Consolidated Appeals, Appellants. Superior Pennsylvania. Court of
Argued Dec. 1978. May Decided 1979. Appeal Petition for Allowance of Sept. Denied *2 Cohen, for Sunbury, appellants. A. Stephen Milton, on Kaar, R. Assistant District Attorney, Michael brief, Commonwealth, appellee. HOFFMAN, JJ. CERCONE, HESTER and
Before HESTER, Judge: were con- Sylvia his wife Bill T. Luther and
Appellants 481(a) of the Public violating victed a Section jury by 1967, 31, 21, 4, 13, No. Act Code, P.L. Welfare Act June post-trial denial of 481(a).1. Following 62 P.S. § statute, commonly proscribing known “Welfare This what Fraud”, provides: to, of, (a) who, Any person prior or subse- at the time either or assistance, wilfully by quent application false means of a to the impersonation misrepresentation, or or other statement secure, secures, means, attempts or or aids abets fraudulent guilty any person securing shall be in under this article assistance thereof, misdemeanor, and, upon shall be sentenced of a conviction ($1,000), exceeding or to pay dollars a fine not one thousand both, exceeding year, undergo imprisonment and also not one any moneys he has shall be sentenced to make restitution statement, misrepresentation, im- such received reason of personation, or fraudulent means. motions, both were appellants placed year probation on one and ordered to make to the restitution Commonwealth the $1,143.00. amount of These consolidated followed. appeals We affirm the judgments sentence.
Appellants first contend that the evidence was insuf ficient to sustain the verdicts of the guilty. evaluating evidence, the the whether sufficiency viewing test is entire most to the light record favorable Common wealth and drawing all reasonable inferences favorable to Commonwealth, there is sufficient evidence to enable the trier of fact to find element of the crime every beyond Smith, reasonable doubt. Commonwealth v. 484 Pa. (1979); A.2d 948 v. Santiago, Commonwealth Pa. Kichline, (1978); Commonwealth v. 468 Pa. Moreover, fact, A.2d 282 the trier of while *3 of passing upon credibility weight witnesses and the to all, be afforded the evidence is free to believe produced, Smith, or none of the evidence. part, supra; Common Hinchcliffe, wealth v. 479 Pa. So viewed, the instant record reveals the following: 6, 1974,
On the Luthers walked into the August Shamokin Welfare, office Northumberland Department Coun- Assistance, ty, Board a determination of their seeking There, eligibility assistance. were inter- public they worker, viewed Gordon an Income Maintenance by Phillips, whose task it the initial was to conduct interview and determine the Luthers eligibility. Finding had no income, their He then Phillips granted application. advised the Luthers of their to to our “responsibility report office income, address, circumstances such as change home, report someone to to our office that is their leaving and let us know . . . income.” obligation especially addition, N.T. 23. In Mr. Luther was instructed to register with the State Bureau. Employment 9, 1976, July
Minor amendments were added in Act of P.L. statute, amended, appears No. as at 62 P.S. and the now 481(a). Sha- Department’s was within the assigned The case then worker”, Zabawsky, to one Judith mokin office a “continued of the file as an active case. it abreast job keep whose was 1975, Mrs. mid-January, Zabawsky 1974to September, From of his Mr. Luther because times” was visited “four five departmental directives with comply reluctance to apparent bureau. During re-register employment that he with the time advised Mrs. visits, Zabawsky Mr. Luther at no these this time during Also employed. that he or his wife was their welfare bi-weekly receiving the Luthers were period, order, each in the amount of checks, Luther’s to Mr. payable $127.00. began Luther appellant Sylvia September
On his as Stephen Cohen working Sunbury Attorney breaks, at a she often ate her lunch secretary. During em- several Welfare Department restaurant frequented coming going Attorney who observed her ployees, 1975,one of offices. Near the end of these January, Cohen’s working wife was for Mr. Mr. if his asked Luther employees “Yes, N.T. Cohen, Mr. Luther she was.” replied, to which conversation, Mrs. Zabawsky this 36. When apprised her Mrs. job, whereupon Mrs. Luther at phoned immediately couple for “a employ admitted Mr. Cohen’s being Luther knew it months”, about Department but assumed the in the restaurant. Mrs. she had seen frequently since been information gain specific efforts to more Zabawsky’s an earnings, overpay- the amount of Mrs. Luther’s so unsuccessful, assist- calculated, and the ment be were may *4 first week of the February, ance were terminated checks $1,143.00 premised was on series of of Overpayment Mrs. checks, during the of period nine issued and cashed funds were not returned to These employment. Luther’s Department. the Com- The contention gravamen appellant’s criminal intent to Luthers monwealth failed establish misrepresentation false provide “wilfully statements] We 481(a). . or other means”. Section fraudulent was of evidence however, there a wealth opinion, are of the on the intent issue upon which the could jury properly structure its verdicts. From guilty the initial interview with Gordon Phillips, appellants were fully and repeatedly ad- vised of their affirmative obligation report any change in their income to the department. Neither appellant had any question or exhibited any misunderstanding as to the nature scope these responsibilities. N.T. 24. During the “four or five” personal encounters between Mr. Luther and Mrs. the latter Zabawsky part Mr. Luther was “always” advised that “it is his responsibility to report any and all after changes Mr. Phillips explained income, ” address, in, someone moving someone out moving . . . N.T. 44. On the back of each of the issue, nine checks at just above Bill Luther’s signature,2 the following printed matter appears:
By this endorsing check I certify that I have notified my County Board Assistance of all in the changes facts as stated in my application for assistance and that neither I nor member of any my has family any earnings or other employment resources which would affect the eligibility myself or my which I family have not report- ed to said I Board. know I can be penalized fine or imprisonment, or both, for any false statement. Com- monwealth’s Exhibit No. 2.
Testimony offered the defense further buttresses the jury’s verdicts. Mr. Luther February, had applied for and received assistance public for a short time. When he obtained he employment called the department “the first I day went to work and told them that I was working”.
N.T. 73. His assistance was thereafter discontinued. The jury could thus infer Mr. Luther was well aware of his reporting obligations when he applied again August that same year, and he yet failed to report his wife’s income. The jury could further conclude the Luthers knew precisely how and where to report extra income. Both appellants admitted that were in they fact advised by Department dispute 2. There was no that Mr. Luther did indeed endorse each of these checks. N.T. 84.
245 were and well reporting responsibilities their employees effect status could their change employment that a aware letter they testified to a They N.T. eligibility. Board of Assistance in County to the Northumberland sent Mrs. the Lu- October, Department advising early No. 1. Department Exhibit new Defendant’s job. ther’s ever notice was received any denied such employees the Common- accept The was free to Luthers. jury the in- did not appellants of facts suggesting wealth’s version in their change employment form the Department Hinchcliffe, supra. status. that the Welfare Shamokin Office
Appellants argue report for “plan set for a appellants specific not forth did a in income status. Various change to the office ing” brief which appellants’ cited in are guidelines administrative “plan reporting” the worker to enter a Welfare require 78). Pa.Code, 55, 255.81(5)(Apr. case Title in the record. record, regulations it this issue and these this appears From the during pro court at time were not the argued Clair, Pa. v. 458 326 below. Commonwealth ceedings not Further, 272 this contention was included (1974). A.2d motion, varie “boiler-plate” which were of the in post-trial A.2d Austin, Pa. 941 v. Commonwealth ty. Blair, Pa. v. (1979); Commonwealth issue, however, Quite appel the waiver apart from issue before are wide of the mark the lants’ averments Department complied the had with was not whether jury the Lu guidelines, but rather whether procedural alleged failed responsibilities wilfully were of their and thers aware Taking in circumstances. into change their report require of reporting admitted awareness appellants’ account employees to ments, Department admonitions from repeated circumstances, the check endorse changed notice of give person location and ments, with the appellants’ familiarity Assistance, as well County nel of their Board experience Department regulations, with previous Luthers’ jury which the could was wealth of evidence from there how, when, supply knew where to find the Luthers *6 Welfare Office with required information. We will not upset finding.3
Appellants finally contend that the judge trial should Parrish, himself. Commonwealth v. have recused 250 Pa.Su 176, 378 per. (1977). A.2d 884 This issue was not raised in Austin, post-trial motions and is therefor waived. supra; Blair, supra.
Judgments of sentence affirmed.
HOFFMAN, J., files a dissenting statement.
HOFFMAN, Judge, dissenting: I dissent. contend that
Appellants
there was insufficient evidence of
criminal
intent
to sustain
verdicts on
guilty
charges of
and,
welfare fraud.
I agree
would vacate the
accordingly,
judgments of sentence.
Criminal complaints
charging appellant with violating
1
481(a) of the Public Welfare Code
were filed on January
Appellants
argue
sustaining
also
that the lower court erred in not
Since,
their demurrer at the close of the Commonwealth’s case.
however, appellants
following
ruling,
did not rest
the adverse
N.T.
70-1,
defense,
put
but
ruling
elected to
in a
the correctness of the
on
longer
the demurrer is no
an available issue. Commonwealth v.
Moore,
198,
(1959).
398 Pa.
question
1. Public Welfare Act of June P.L. No. art. 481; 481(a). P.S. § trial, 1976, 20, after a consolidated September 1976. On On March charges. guilty found them jury motions, suspend lower court denying post-verdict after probation, on one sentence, year appellant each ed placed as restitution within each to pay $1143.00 and ordered followed. appeal months. This Common- most favorable in the light
Regarded trial appellant’s jury may at wealth, evidence presented as follows: be summarized assistance.2 appellants applied early August biweekly to receive assistance they began
Soon thereafter admitted appellants in the Both checks amount $127. change report any an they obligation knew had they *7 However, the Com- Department.3 in income to the Welfare specific reporting of any monwealth no evidence presented The to comply. which the Luthers had with procedures witness, in- Zabawsky, Judith an principal Commonwealth’s worker, was no defi- admitted that there come maintenance when, how, recipients or whom nite format either describing their Ms. Zabawski concerning employment.4 should inform her letter or a testified that often informed recipients telephone call. work an 25, 1974, began Mrs. Luther to for
On September was The office located attorney’s his attorney secretary. lunchtime several Wel- near restaurant at frequented a ob- employees regularly fare The Department employees. office; Mrs. entering leaving served Mrs. Luther and them as recognized employees Luther saw them and January Towards end Department. Welfare was his wife employees Mr. Luther told those same Code, supra; for 402 the definition of § 2. See Public Welfare P.S. “assistance.” Code, 432.2(d). supra; P.S. The Common- 3. See Public Welfare application for does not claim that the Luthers’ assistance wealth contained misstatements. frequent every eligibility not less than 4. Redetermination of “shall be Code, 432.2(c). supra; P.S. The six months.” Public Welfare concerning frequency presented no Commonwealth evidence eligibility was reviewed. with which the Luthers’ working for the That same tele- attorney. Zabawsky day Mrs. Luther at work and asked her whether she was phoned Mrs. that she was em- Zabawsky Luther told employed. ployed reported she had not her to employment because she had assumed that the Welfare Zabawsky De- knew from its own that she was work- partment employees or, Mrs. Luther’s if ing.5 Zabawsky requested pay stubs she stubs, had no statement from her wage employer in order her and to verify employment compute any adjustments in the assistance grant. testified that the Zabawsky Luthers at no time denied that Mrs. Luther was employed. She further that if testified Mrs. Luther “would have sent . stubs, in her pay she would still have been eligible financial assistance at a reduced rate. not al- [She was] lowed to discontinue without verification anyone of some sort.” sent several Zabawsky requests to Mrs. Luther’s information, employer wage but he did not respond. then sent a Zabawsky notice to the Luthers that their assistance would be discontinued in 15 days due to overpay- ment; estimated the Zabawsky amount of overpayment from October using information Mrs. Luther given had her. The Luthers received assistance up February 1975, at which assistance was point discontinued.
On September Mrs. Luther’s informed employer the Bureau of Claims Settlement of the Welfare Depart- ment that he had Mrs. Luther employed since September *8 1974 at week. From per September 1974to $100 Febru- 26, 1975, ary the date assistance was discontinued, Mr. Luther received and endorsed6 nine financial assistance fact, Zabawsky 5. testified that at least since mid-December 1974 “suspicion” the Welfare Office had had a that Mrs. Luther was working, upon Department employees. based the observations of the Department approach The Welfare did not the Luthers about this January until 1975. following: 6. On the back of each check was the “By check, endorsing certify my County this I that I have notified changes my Board of Assistance of all in the facts as stated in Assistance, application any my for and that neither I nor member of family any earnings employments has or other resources which eligibility myself my family would affect the of or I which have not
249 $1143.00, overpay- which is the amount totalling checks Department. by claimed the Welfare ment Public Welfare Code 481(a) provides: Section of, to, or at the time who, prior either or person “Any assistance, means a by for to the subsequent application imper- or misrepresentation, statement of false wilfully means, secures, attempts or to fraudulent sonation or other assistance, or in secure, person securing or abets any or aids of a shall be guilty under this article stamps, Federal food thereof, shall be sen- misdemeanor, and, conviction upon one thousand dollars exceeding a fine not to pay tenced exceeding year, one undergo or not ($1,000), imprisonment restitution of both, sentenced to make and also shall be false such any he has received reason any moneys statement, or fraudulent impersonation, misrepresentation, means.” terms, we must statutory definition
In the absence of common and approved them to their according construe mind, however, in that because the provision usage, keeping nature, Statutory we construe it penal strictly. must No. Act Act of Nov. Construction 290, 3; 1903(a)and 6, 1972,No. 1 Pa.C.S.A. added Dec. § §§ not acci- “done 1928(b)(1). deliberately: “Willful” means INTENTIONAL”, and “fraud” dental or without purpose: concealment, or misrepresentation, means “an intentional another in reliance inducing for purpose nondisclosure to him. thing valuable belonging it to with some upon part Dictionary, International .” Webster’s Third 255.3(b).7 Code Compare (1967). Pennsylvania See 302(b)(1) and Pa.C.S.A. § penalized by fine
reported know I be to said Board. I can both, imprisonment, or false statement.” 255.3(b) Pennsylvania provides as follows: Code distinguishing suspected “(b) and non- fraud Criteria between distinguishing determining and between fraud fraud. The factor overpayments] respect be the intent of nonfraud will [with perti- by examining evaluating will client. Intent be established facts, following: objective including the nent *9 case, the instant I do not believe the Commonwealth’s evidence supports finding that the Luthers secured assist- “(1) Actions and attitudes of the client. The answers to the following questions employed determining will be in the actions and attitudes of the client: “(i) “(ii) deny Did the overpayment? client the fact that caused the provide Did misleading the client information that was incorrect? “(iii) any Were concealing of the actions of the client directed to example, information? For did he deface or alter documents or arrange appointments with the caseworker so as to conceal other activities? “(iv) overpay- What was the reaction of the client to the fact of the ment? What did he see as the cause? “(2) overpayment. Nature following of the The answers to the questions employed determining will be overpay- in the nature of the ment: “(i) overpayment Was the in such an amount that the client could payment not have failed to realize that his assistance was incorrect? “(ii) period overpayment period Did the extend over such a repeated opportunities report? time that the client had “(iii) previous overpayments Were there for related reasons? “(3) ability comprehend requirements. The of the client to The following questions employed answers to determining will be in ability comprehend requirements: of the client to “(i) disabilities, any physical Are there age, such as advanced vision, hearing ability defective or illness which affect the of the requirements responsibilities client to understand the and his connection with them? “(ii) limitations, any Are there psychi- mental such as emotional or disturbances, atric or mental retardation which affect the client’s understanding expected what of him? “(iii) handicaps, Does the client illiteracy, have social such as barriers, language or lack comprehen- of education which affect his requirements? sion of “(iv) Were there overpayment social factors at the time of the death, accident, illness, desertion, such as serious and the like that so comprehension importance involved the meeting client that reporting requirements was affected? “(4) Quality job of worker’s with the client. The answers to the following questions employed determining quality will be job the worker’s with the client: “(i) Does pertinent regulations the case record indicate that the explained capacity were in terms suited to the of the client? “(ii) appropriate reporting plans Were worked out with the client? “(iii) eligibility Were frequently redeterminations of made as appropriate to the situation? “(iv) working Has the method of with the client been such as to importance demonstrate reporting changes to him the in his capacity carrying responsi- circumstances? Has the of the client for bility realistically?” been evaluated *10 misrepre- false statement willfully of a anee means “by means.” P.S. other fraudulent ... sentation of the case adduced and circumstances The facts 481(a). § had express- the Luthers January trial show that at accurately and fully Department informed the Welfare ly fact, the Wel- employment. of Mrs. Luther’s the terms of the amount estimate original its based Department fare Mrs. Luther which the information upon of overpayment delay September the Luther’s Concerning gave. employ- Mrs. Luther’s 1975 in reporting 1974 to January existed no ment, (1) specific procedures I would note that indicated (2) testimony all the reporting employment to denied, attempted misstated the Luthers never exhibited or otherwise Luther’s employment, conceal Mrs. willful intent from which a or evasive behavior secretive From the moment Welfare be inferred. may deceive 1975, the Lu- in January first contacted them Department circumstances, there- these Under cooperated fully. thers evidence was insufficient fore, I that the would conclude 481(a).8 under convictions support appellants’ Code, provides supra specifically Public Welfare I note overpay- recoupment procedures for and civil both administrative Code, supra; 62 P.S. 432.16. ments. Public Welfare