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COMMONWEALTH PENNSYLVANIA v. FREDERICK C. ERB (04/03/81)

filed: April 3, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
FREDERICK C. ERB, APPELLANT



No. 2629 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division at No. 2845 of 1979.

COUNSEL

Richard A. James, Media, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., files a concurring opinion.

Author: Spaeth

[ 286 Pa. Super. Page 66]

This is an appeal from a judgment of sentence for bigamy.*fn1 The lower court fined appellant $5,000 and placed him on two years probation on condition that he make restitution to the complainant. The issue is the court's authority to require restitution. We hold that the court had such authority but was obliged itself to determine the amount of restitution to be paid and the manner of payment, instead of

[ 286 Pa. Super. Page 67]

    directing the probation department to make a determination. We shall therefore reverse and remand for further proceedings.

On May 16, 1968, appellant, Frederick C. Erb, a sheetmetal worker, married Eloise James Gutridge in Virginia. On June 4, 1977, while still married, he purported to marry Emma Louise Welsh, the complainant in this case, in Brookhaven, Delaware County, Pennsylvania. Sometime in 1979 Ms. Welsh discovered that appellant was already married, and on June 7, 1979, she filed a private criminal complaint charging him with bigamy.

On October 17, 1979, appellant pleaded guilty to this charge. Ms. Welsh testified at the guilty plea proceeding. She said that appellant had told her his work in Naval Intelligence required him to be away from home sometimes; that in January 1979 he told her he was going on "secret duty" and would have to rent a separate apartment, the location of which he could not disclose, for three months; that sometime later he told her was going to be hospitalized at Hahnemann Hospital for a heart ailment, but not to visit him in the hospital; and that when she went to the hospital anyway, she discovered him with his real wife. N.T. at 12. Ms. Welsh also testified about money she had spent to support appellant, presenting a copy of a document (apparently itemizing these expenses)*fn2 to the court:

MRS. ERB [in fact, Ms. Welsh]: . . . . Incidentally, he was out of work quite a bit. Any time it happened to him, I worked and I paid the bills. I had quite a few bills.

MR. BERKOWITZ [Ms. Welsh's attorney]: Tell his Honor about it.

MRS. ERB: The total that benefited him directly was five thousand -- $5,309.

THE COURT: For what type of items?

MRS. ERB: Well, a lot of this was medical bills, plus payments for his cars and clothing. He had no clothing whatsoever. And when he left in January, he asked me to

[ 286 Pa. Super. Page 68]

    give him $1,500 to set up his own apartment and he said he just needed a scant bit of furniture because it wasn't going to be very long, so I gave him a check for $1,500.

THE COURT: Is that all set forth in that document?

MRS. ERB: Yes.

THE COURT: Would you present that to us, please.

N.T. at 13-14.

Appellant's attorney then questioned appellant briefly about his financial contributions to the household:

MR. JAMES [appellant's attorney]: If the Court please, I would just have Mr. Erb indicate that during this period of time, if you would, tell us when you were working and what if anything you did with your paycheck?

MR. ERB: Your Honor, from the pay period of June 4, 1977 until the pay date of January 19, 1979, I gave Emma Louise every one of my paychecks with the exception of one.

MR. JAMES: How much was your weekly bring-home pay?

MR. ERB: This averaged anywhere from $280 to $281 depending on the particular tax deductions of that week.

MR. JAMES: This was done from the time you were married until the time you separated?

MR. ERB: From June 4th of '77 until approximately January 19, 1979.

Now, insofar as clothing, repairs to my clothing, the majority of these were charged to Visa and I made out the monthly checks, from our dual or joint check account.

Now, Eloise -- Emma Louise -- (Laughter) -- handled all the banking. I gave her my paycheck. With every paycheck she made all deposits and I frankly and honestly don't even know what bank it was in or where it is located. I know it is located in the area of Haverford Hospital and she would make these deposits on her way to or from work. I have never been in this bank.

THE COURT: All right. Anything further?

MR. JAMES: Nothing, your Honor.

[ 286 Pa. Super. Page 69]

N.T. at 16-17.

The lower court then stated that it would schedule a sentencing hearing after it had received a report of a pre-sentencing investigation. N.T. at 17.

The sentencing hearing was on November 28, 1979. Appellant's attorney spoke about appellant's background and personal history. He then stated that appellant objected to any order of restitution to Ms. Welsh:

As far as the restitution goes, we feel we have not been supplied with sufficient information to contest this, that all these statements and all the information provided by Mrs. Welsh through her attorney indicate only the expenses that were specified for Mr. Erb himself during the period of time, the period from June 4, 1977 until Mr. Erb left in January of this year. He was fully employed with the Boeing Vertol Company. And even if we take the statements that Mrs. Welsh says that she returned to him approximately $100 per week, which we still contest, it still leaves the sum of approximately $150 per week which was turned over by Mr. Erb to Mrs. Welsh.

N.T. at 9.

The attorney ...


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