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COMMONWEALTH PENNSYLVANIA v. CAROL GWENDOLYN COWARD (04/02/84)

submitted: April 2, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
CAROL GWENDOLYN COWARD, A/K/A CAROL GWENDOLYN GANTZ, APPELLANT



No. 250 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, No. 1194 of 1981.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Edward F. Browne, Jr., Assistant District Attorney, Lancaster for Commonwealth, appellee.

Wieand, Johnson and Lipez, JJ.

Author: Wieand

[ 330 Pa. Super. Page 124]

If a woman is the recipient of a food voucher issued for the sole purpose of enabling her to obtain supplemental foods for her children, does she commit theft by failure to make required disposition when she sells the food voucher to a stranger for cash? We conclude that proof of these facts was sufficient to sustain a conviction and affirm the judgment of sentence.

Carol Gwendolyn Coward, a/k/a Carol Gwendolyn Gantz, was a participant in the federally funded WIC program designed to provide dietary supplements for needy children and pregnant women. The program was funded by the United States Department of Agriculture and administered by the Pennsylvania Department of Health. Ms. Coward applied for benefits in late 1979; in order to qualify, she was required to sign a participation agreement by the terms of which she promised to use coupons issued to her in accordance with the department's rules and regulations. These rules provided, inter alia, that food vouchers could not be sold for cash. Thereafter, Ms. Coward received monthly vouchers, issued by the Department of Health in Lancaster, which listed the foods for which she could negotiate them. At the time of issuance, she was required to affix her signature; when she purchased food, she was required to again endorse the voucher, this time in the

[ 330 Pa. Super. Page 125]

    presence of the merchant. The vouchers were thus negotiated in a manner similar to that in which traveler's checks are negotiated. By surrendering the properly endorsed voucher, the merchant was then able to obtain reimbursement from WIC funds. On May 19, 1981, Ms. Coward sold a voucher, worth thirty dollars, for the sum of twenty dollars. The purchaser was an informant, and the sale was observed by the police. Following jury trial, she was found guilty of theft by failing to make required disposition in violation of 18 Pa.C.S. § 3927. A motion in arrest of judgment was denied, and appellant was directed to pay a fine of $25.00 and make restitution; she was placed on probation for a period of one year.

The provisions of 18 Pa.C.S. § 3927(a) are as follows:

§ 3927. Theft by failure to make required disposition of funds received

(a) Offense defined. -- A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.

This section is based upon section 223.8 of the Model Penal Code and replaces the fraudulent conversion and embezzlement sections of the Penal Code of June 24, 1939, P.L. 872 (repealed and replaced effective June 6, 1973). The Commonwealth, in order to prove a violation of this section, must prove the existence of four elements as follows: (1) obtaining the property of another; (2) subject to an agreement or known legal obligation to make specified payments or other disposition thereof; ...


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