No. 23 Harrisburg, 1981, Appeal from the Judgment of Sentence from the Court of Common Pleas, Criminal, Dauphin County, No. 938, 938(a) C.D. 1980.
Arthur K. Dils, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Cavanaugh, Beck and Montemuro, JJ.
[ 311 Pa. Super. Page 197]
This is an appeal from a judgment of Sentence entered by the Honorable William W. Lipsitt, Judge, Court of Common Pleas, Dauphin County.
The appellant, Lydia E. Soltis, was tried before a jury and convicted of theft by deception*fn1 and violation of the Commonwealth's
[ 311 Pa. Super. Page 198]
Public Assistance laws.*fn2 For the first offense, she was sentenced to a term of imprisonment of one (1) to twelve (12) months and to pay a fine of $100. For the second offense she was sentenced to a term of imprisonment of five (5) to twelve (12) months, consecutively, to pay a fine of $100 dollars and to make restitution in the amount of $6,851.00 to the Commonwealth, Department of Public Assistance.*fn3
Pursuant to Section 481(a) of the Public Welfare Code,*fn4 the Commonwealth charged the appellant with securing Public Assistance funds by means of misrepresentation of her income from 1975 to 1979. The evidence produced by the Commonwealth shows that from 1970 to 1979, the appellant, a recipient of Public Assistance, was also receiving $55.00 per month for each of two children from a private trust fund. She allegedly did not report this to the Department of Public Assistance. The Commonwealth presented five of the appellant's caseworkers who produced records indicating that the appellant was not receiving income from any source other than Public Assistance. The records also reflected no change in her income status from 1970 to 1979. The information contained in these records was the result of routine and periodic personal contacts with the appellant during which questions were asked the appellant by the case workers. Any information obtained at these "redetermination" interviews was logged in the records. The witnesses also testified that had the income from the trust fund been disclosed at these interviews, it would have been indicated in the records and the appellant's Public Assistance funds would have been adjusted accordingly. The appellant maintains that she informed the first three caseworkers who worked on her case of the existence of the trust fund and that such money was being held for
[ 311 Pa. Super. Page 199]
her children's educations. However, she admits that from 1975 to 1979 she was using the money from the fund to repay a $15,000.00 mortgage that was obtained to pay accruing debts and taxes.
On appeal it is argued that the crime of theft by deception merges with the violation of Section 481(a) of the Public Welfare Code and therefore it was improper for the Commonwealth to try, convict and sentence the appellant for both crimes. Appellant also argues that the evidence produced by ...