Com. v. Luther

• Decision Date: 18 May 1979
• Citation: 403 A.2d 1329,266 Pa.Super. 240
• Parties: COMMONWEALTH of Pennsylvania v. Bill T. LUTHER and Sylvia C. Luther, Consolidated Appeals, Appellants.
• Court: Pennsylvania Superior Court

Page 1329

403 A.2d 1329

266 Pa.Super. 240

COMMONWEALTH of Pennsylvania v. Bill T. LUTHER and Sylvia C. Luther, Consolidated Appeals, Appellants.

Superior Court of Pennsylvania.

Argued Dec. 6, 1978.

Decided May 18, 1979.

A. Stephen Cohen, Sunbury, for appellants.

R. Michael Kaar, Asst. Dist. Atty., Milton, on brief, for Commonwealth, appellee.

Before CERCONE, HESTER and HOFFMAN, JJ.

HESTER, Judge:

Appellants Bill T. Luther and his wife Sylvia were convicted by a jury of violating Section 481(a) of the Public Welfare Code, Act of June 13, 1967, P.L. 31, No. 21, Act 4, § 481, 62 P.S. § 481(a). ¹. Following denial of post-trial motions, both appellants were placed on one year probation and ordered to make restitution to the Commonwealth in the amount of $1,143.00. These consolidated appeals followed. We affirm the judgments of sentence.

Appellants first contend that the evidence was insufficient to sustain the verdicts of guilty. In evaluating the sufficiency of the evidence, the test is whether viewing the entire record in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Smith, --- Pa. ---, 398 A.2d 948 (1979); Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). Moreover, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part, or none of the evidence. Smith, supra; Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978). So viewed, the instant record reveals the following:

On August 6, 1974, the Luthers walked into the Shamokin office of the Department of Welfare, Northumberland County, Board of Assistance, seeking a determination of their eligibility for public assistance. There, they were interviewed by Gordon Phillips, an Income Maintenance worker whose task it was to conduct the initial interview and determine eligibility. Finding that the Luthers had no income, Phillips granted their application. He then advised the Luthers of their "responsibility to report to our office any circumstances such as income, change of address, or someone leaving home, to report to our office that is their obligation and let us know . . . especially income." N.T. 23. In addition, Mr. Luther was instructed to register with the State Employment Bureau.

The case was then assigned within the Department's Shamokin office to a "continued worker", one Judith Zabawsky, whose job it was to keep abreast of the file as an active case. From September, 1974 to mid-January, 1975, Mrs. Zabawsky was visited "four or five times" by Mr. Luther because of his apparent reluctance to comply with departmental directives that he re-register with the employment bureau. During these visits, Mr. Luther at no time advised Mrs. Zabawsky that he or his wife was employed. Also during this time period, the Luthers were receiving their bi-weekly welfare checks, payable to Mr. Luther's order, each in the amount of $127.00.

On September 25, 1974, appellant Sylvia Luther began working in Sunbury for Attorney Stephen Cohen as his secretary. During her lunch breaks, she often ate at a restaurant frequented by several Welfare Department employees, who observed her coming and going from Attorney Cohen's offices. Near the end of January, 1975, one of these employees asked Mr. Luther if his wife was working for Mr. Cohen, to which Mr. Luther replied, "Yes, she was." N.T. 36. When apprised of this conversation, Mrs. Zabawsky immediately phoned Mrs. Luther at her job, whereupon Mrs. Luther admitted being in Mr. Cohen's employ for "a couple of months", but assumed the Department knew about it since she had been seen frequently in the restaurant. Mrs. Zabawsky's efforts to gain more specific information as to the amount of Mrs. Luther's earnings, so that an overpayment may be calculated, were unsuccessful, and the assistance checks were terminated the first week of February, 1975. Overpayment of $1,143.00 was premised on a series of nine checks, issued and cashed during the period of Mrs. Luther's employment. These funds were not returned to the Department.

The gravamen of appellant's contention is that the Commonwealth failed to establish the Luthers criminal intent to provide "wilfully false statement(s) of misrepresentation . . . or other fraudulent means". Section 481(a). We are of the opinion, however, there was a wealth of evidence on the intent issue upon which the jury could properly structure its guilty verdicts. From the initial interview with Gordon Phillips, appellants were fully and repeatedly advised of their affirmative obligation to report any change in their income to the department. Neither appellant had any question or exhibited any misunderstanding as to the nature and scope of these responsibilities. N.T. 24. During the "four or five" personal encounters between Mr. Luther and Mrs. Zabawsky in the latter part of 1974, Mr. Luther was "always" advised that "it is his responsibility to report any and all changes after Mr. Phillips explained the income, address, someone moving in, someone moving out . . . " N.T. 43, 44. On the back of each of the nine checks at issue, just above Bill Luther's signature, ² the following printed matter appears:

By endorsing this check I certify that I have notified my County Board of Assistance of all changes in the facts as stated in my application for assistance and that neither I nor any member of my family has any earnings from employment or other resources which would affect the eligibility of myself or my family which I have not reported to said Board. I know that I can be penalized by fine or imprisonment, or both, for any false statement. Commonwealth's Exhibit No. 2.

Testimony offered by the defense further buttresses the jury's verdicts. In February, 1974, Mr. Luther had applied for and received public assistance for a short time. When he obtained employment he called the department "the first day I 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 in August that same year, and yet he failed to report his wife's income. The jury could further conclude the Luthers knew precisely how and where to report any extra income. Both appellants admitted that they were in fact advised by Department employees of their reporting responsibilities and were well aware that a change in employment status could effect their eligibility. N.T. 86, 89, 93. They testified to a letter they sent to the Northumberland County Board of Assistance in early October, 1975, advising the Department of Mrs. Luther's new job. Defendant's Exhibit No. 1. Department employees denied any such notice was ever received from the Luthers. The jury was free to accept the Commonwealth's version of facts suggesting appellants did not inform the Department of the change in their employment status. Hinchcliffe, supra.

Appellants argue that the Shamokin Welfare Office did not set forth for appellants a specific "plan for reporting" to the office a change in income status. Various administrative guidelines are cited in appellants' brief which require the Welfare worker to enter a "plan for reporting" in the case record. Pa.Code, Title 55, § 255.81(5) (Apr. 78). From this record, it appears this issue and these regulations were not argued to the court at any time during the proceedings below. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Further, this contention was not included in post-trial motion, which were of the "boiler-plate" variety. Commonwealth v. Austin, --- Pa. ---, 398 A.2d 941 (1979); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Quite apart from the waiver issue, however, appellants' averments are wide of the mark for the issue before the jury was not whether the Department had complied with alleged procedural guidelines, but rather whether the Luthers were aware of their responsibilities and wilfully failed to report their change in circumstances. Taking into account appellants' admitted awareness of reporting requirements, repeated admonitions from Department employees to give notice of changed circumstances, the check endorsements, appellants' familiarity with the location and personnel of their County Board of Assistance, as well as the Luthers' previous experience with Department regulations, there was a wealth of evidence from which the jury could find the Luthers knew how, when, and where to supply the Welfare Office with required information. We will not upset that finding. ³

Appellants finally contend that the trial judge should have recused himself. Commonwealth v. Parrish, 250 Pa.Super. 176, 378 A.2d 884 (1977). This issue was not raised in post-trial motions and is therefor waived. Austin, supra; Blair, supra.

Judgments of sentence affirmed.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge, dissenting:

I dissent.

Appellants contend that there was insufficient evidence of criminal intent to sustain guilty verdicts on charges of welfare fraud. I agree and, accordingly, would vacate the judgments of sentence.

Criminal complaints charging appellant with violating § 481(a) of the Public Welfare Code ¹ were filed on January 21, 1976. On September 20, 1976, after a consolidated trial, a jury found them guilty of the charges. On March 6, 1978, after denying post-verdict motions, the lower court suspended sentence, placed each appellant on one year probation, and ordered each to pay $1143.00 as restitution within 10 months. This appeal followed.

Regarded in the light most favorable to the Commonwealth, the evidence presented at appellant's jury trial may be...