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COMMONWEALTH PENNSYLVANIA v. CORA LEE FLEMISTER (03/23/83)

submitted: March 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CORA LEE FLEMISTER, APPELLANT



No. 41 Harrisburg 1982, APPEAL FROM THE JUDGMENT OF SENTENCE OF DECEMBER 31, 1981 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, CRIMINAL NO. 802 C.D. 1981

COUNSEL

George Shultz, Assistant Public Defender, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Cercone, President Judge, and Cirillo and Hoffman, JJ.

Author: Cirillo

[ 317 Pa. Super. Page 268]

This is an appeal from the judgments of sentence, entered on December 31, 1981, by the Honorable William W. Caldwell of the Court of Common Pleas of Dauphin County.

The appellant, Cora Lee Flemister, was charged with the offenses of welfare fraud*fn1 and theft by deception.*fn2 These charges stemmed from allegations that the appellant, while receiving public assistance, concealed receipt of social security benefits and income earned by her dependent son. As a consequence, the appellant obtained overpayments from the Department of Public Assistance, totaling $18,818.00. A motion to quash the information was filed and subsequently denied. Then, on September 22, 1981, the appellant was found guilty of both charges in a bench trial before Judge Caldwell. Post-trial motions for a new trial and in arrest of judgment were filed and denied. The appellant was later sentenced to a term of imprisonment of not less than 5 months nor more than 12 months for welfare fraud and a concurrent sentence of not less than 5 months nor more than 23 months for theft by deception. She was also ordered to make restitution in the amount of $18,818.00 to the Department of Public Assistance. This appeal followed.

The sole issue presented on appeal is whether the trial court erred in denying the appellant's motion to dismiss the charge of theft by deception.

[ 317 Pa. Super. Page 269]

The crime of theft by deception is defined at 18 Pa.C.S.A. ยง 3922 as follows:

(a) Offense defined. -- A person is guilty of theft if he intentionally obtains or witholds property of another by deception. A person deceives if he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the ...


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