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COMMONWEALTH PENNSYLVANIA v. JANICE VISCONTO (01/06/82)

submitted: January 6, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JANICE VISCONTO, APPELLANT



No. 856 Philadelphia, 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF MARCH 12, 1981 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, CRIMINAL SECTION, No. C.P. 638 March Term, 1980

COUNSEL

Sandra Swenson, Philadelphia, for appellant.

Melvin R. Shuster, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Cirillo and Popovich, JJ. Wieand, J., concurs in the result. Popovich, J., files a concurring and dissenting opinion.

Author: Cirillo

[ 301 Pa. Super. Page 546]

Appellant, Janice Visconto, was found guilty of making false statements in order to obtain public assistance*fn1 in the Municipal Court of Philadelphia County on February 20, 1980. Appellant was sentenced to one year probation and ordered to pay restitution. Appellant then appealed to the Court of Common Pleas of Philadelphia County*fn2 and was convicted by a jury on October 20, 1980. Post-verdict motions were denied. Appellant was sentenced to three to twelve months imprisonment and ordered to pay restitution in the amount of $3,770.00. This appeal followed.

From June 1975 to August 1977, appellant received public assistance under the name Janice Visconto through the Elmwood district office of the Philadelphia County Board of Assistance. From August 1976 to January 1977, under the name Janice D'Amico, appellant received public assistance through the Snyder district office of the Philadelphia County Board of Assistance. Appellant also received continuous unemployment compensation under the name Janice D'Amico from July 1976 to January 1977.*fn3

Appellant raises three issues on appeal: 1) that she was denied the right to a trial de novo in the Court of Common Pleas because the trial judge at sentencing had possession of the record of the Municipal Court proceedings, the trial court imposed a harsher sentence upon her than that imposed in the Municipal Court, and the trial judge, at sentencing, made mention of the length of the Common Pleas trial; 2) that the trial court erred in admitting Commonwealth Exhibits 9, 17 and 18 into evidence over appellant's objections; and 3) that the trial court erred in denying appellant's

[ 301 Pa. Super. Page 547]

    motion for a mistrial which was based on remarks made by the prosecutor in closing argument to the jury.

We find no merit in appellant's first contention. There is no evidence in the record that the trial judge had possession of the record of the Municipal Court proceedings at trial or at sentencing.

Appellant then argues that she is entitled to another sentencing hearing because she received a harsher sentence in the Court of Common Pleas than that imposed in the Municipal Court. In Commonwealth v. Possinger, 264 Pa. Super. 332, 344-45, 399 A.2d 1077, 1083 (1979) the Court held that:

We conclude that the increase in appellant's sentence was proper.

Appellant argues that it was error for the trial judge to mention, at sentencing, the length of her Common Pleas trial.*fn4 After sentence was imposed, defense counsel argued, on the record, that the increase in sentence was not proper and that certain Pennsylvania cases did not justify an increase in sentence. The sentencing judge stated that it had been a very long trial and he would review the record in light of the cases cited, and, if a lesser sentence was warranted, he would contact both parties. After reviewing the record, we find that this isolated comment by the trial judge, after sentence was imposed, did not prejudice appellant.

[ 301 Pa. Super. Page 548]

Appellant's second contention is that the trial court erred in admitting, over appellant's objections, Commonwealth Exhibits 9, 17, and 18.

Exhibit 9 is an overpayment referral sheet which lists the dates of the overpayment of public assistance checks to the appellant.

The Uniform Business Records Evidence Act provides:

(b) . . . A record of an act, condition or event shall insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition, or event, and if, in the opinion of the tribunal, the sources of information, method, and time of preparation were such as to justify its admission.

(c) . . . As used in this section "business" includes every kind of business, profession, occupation, calling, or operation of institutions whether carried on for profit or not.

Act of 1976, July 9, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 6108. At trial, the Commonwealth presented two witnesses, Marilyn Read, supervisor of records at the Elmwood district office, and Philip Friedrich, applications supervisor at the Snyder district office, to identify Exhibit 9 and to provide information as to the circumstances surrounding its preparation. Ms. Read first met Janice Visconto in 1974 when she applied for public assistance. At trial, Ms. Read identified appellant as Janice Visconto. Mr. Friedrich also identified appellant at trial, and he testified that when appellant applied for public assistance at the Snyder district office, he knew her as Janice D'Amico. ...


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