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decided: May 18, 1979.


No. 1201 October Term, 1978, No. 1202 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northumberland County, Criminal Division, to No. CR-76-85 Public Assistance Fraud, and No. CR-76-86 Public Assistance Fraud.


A. Stephen Cohen, Sunbury, for appellants.

R. Michael Kaar, Assistant District Attorney, Milton, on brief, for Commonwealth, appellee.

Cercone, Hester and Hoffman, JJ. Hoffman, J., files a dissenting statement.

Author: Hester

[ 266 Pa. Super. Page 241]

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).*fn1 . . . Following denial of post-trial

[ 266 Pa. Super. Page 242]

    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, 484 Pa. 71, 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.

[ 266 Pa. Super. Page 243]

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 ...

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