Com. v. Brown, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEXIS A. BROWN
Appellant No. 494 EDA 2015
Appeal from the Judgment of Sentence January 16, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004497-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 27, 2016
Appellant, Alexis A. Brown, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas, following his
bench trial convictions for two counts of theft by deception and one count
each of tampering with public records or information, forgery, and false
statements (to obtain food stamps).1 We affirm Appellant’s convictions but
vacate and remand for resentencing.
In its opinion, the trial court fully sets forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate
them. We add only that the court sentenced Appellant on January 16, 2015,
____________________________________________
1
18 Pa.C.S.A. §§ 3922(a)(1); 4911(a)(2); 4101(a)(2); 62 P.S. § 481,
respectively.
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to an aggregate term of six (6) to twenty-three (23) months’ imprisonment,
plus five (5) years’ probation. Appellant timely filed a notice of appeal on
February 17, 2015. On February 20, 2015, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), which Appellant timely filed on March 12, 2015.
Appellant raises the following issues for our review:
DID THE TRIAL COURT ERR IN FINDING THAT THE
EVIDENCE WAS SUFFICIENT TO SHOW AS A MATTER OF
LAW THAT APPELLANT WAS GUILTY OF THEFT BY
DECEPTION IN RELATION TO THE LOST EARNINGS WHEN
THE EVIDENCE PRESENTED BY THE COMMONWEALTH
FAILED TO SHOW BEYOND A REASONABLE DOUBT THAT
APPELLANT MISREPRESENTED HIS EMPLOYMENT STATUS?
DID THE COURT ERR IN FINDING THAT THE EVIDENCE
WAS SUFFICIENT TO SHOW AS A MATTER OF LAW THAT
APPELLANT WAS GUILTY OF THEFT BY DECEPTION IN
RELATION TO THE MEDICAL EXPENSES WHEN ANY
ALLEGED DECEPTION HAD NO BEARING UPON ANY
PAYMENTS MADE BY THE VICTIMS COMPENSATION
ASSISTANCE PROGRAM FOR MEDICAL TREATMENT?
DID THE COURT ERR IN FINDING THAT THE EVIDENCE
WAS SUFFICIENT TO SHOW AS A MATTER OF LAW THAT
APPELLANT WAS GUILTY OF FRAUD OR FALSE
STATEMENTS IN RECEIVING FOOD STAMPS/PUBLIC
ASSISTANCE WHERE THE COURT CONCLUDED THAT THE
ALLEGED EMPLOYMENT WAS DETERMINED TO BE
NONEXISTENT. THIS CREATED CONFLICTING FACT
DETERMINATIONS THAT ARE IRRECONCILABLE[.]
DID THE COURT ERR IN FINDING THAT THE EVIDENCE
WAS SUFFICIENT TO SHOW AS A MATTER OF LAW THAT
APPELLANT WAS GUILTY OF TAMPERING WITH PUBLIC
RECORDS WHERE THE EVIDENCE WAS BASED PURELY
UPON OPINIONS OF LAY WITNESSES THAT THE RECORD
WAS CHANGED?
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DID THE COURT ERR IN FINDING APPELLANT GUILTY OF
BOTH TAMPERING WITH PUBLIC RECORDS AND FORGERY
BECAUSE THE FINDING OF GUILT IN SPECIAL
PROVISIONS PRECLUDE PROSECUTION OF THE
CORRELATING GENERAL PROVISION OF THE PENAL CODE?
DID THE COURT ERR IN GRADING THE CONVICTION FOR
THEFT BY DECEPTION, RELATING TO THE MEDICAL
EXPENSES, AS A THIRD DEGREE FELONY WHEN THE
ALLEGED COST OF SERVICES DID NOT EXCEED $2,000.
DID THE COURT ERR IN GRADING THE FRAUD OR FALSE
STATEMENTS IN RECEIVING FOOD STAMPS/PUBLIC
ASSISTANCE AS A THIRD DEGREE FELONY WHEN THE
ALLEGED VALUE OF THE ASSISTANCE APPELLANT
RECEIVED DID NOT EXCEED $3,000.
(Appellant’s Brief at 6-7).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable William R.
Carpenter, we conclude Appellant’s first, second, third, and fourth issues
merit no relief. The trial court’s opinion comprehensively discusses and
properly disposes of those questions. (See Trial Court Opinion, filed May 8,
2015, at 10-18) (finding: (1) evidence at trial established Appellant lied
about his employment status on Victims Compensation Assistance Program
(“VCAP”) application, where Appellant submitted suspicious paystubs and
suspicious employer verification information; paystubs raised “red flags”
because they did not contain employer identification number, employee
identification number, or Appellant’s social security number; purported letter
from employer and employer verification form also raised red flags, where
employer letter was not on letterhead, signature on employer letter merely
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stated: “Management,” and two phone numbers listed as belonging to
employer were wrong numbers; additionally, paystubs, employer letter, and
employer verification form were submitted from Appellant’s fax machine, not
from purported employer; VCAP claims specialist, VCAP compliance
reviewer, and Special Agent for Attorney General’s Office were unable to
verify existence of Appellant’s purported employer, “Muscle Therapy”;
Appellant listed business address as 1616 Walnut Street, but parties
stipulated no company called Muscle Therapy leased office space in that
building during relevant timeframe; Appellant also submitted different
employer information on VCAP application than he submitted on Philadelphia
Hand Center patient intake form; court concluded Appellant lied about
employment status on VCAP form and submitted fraudulent paperwork to
support his claim for lost wages; Commonwealth produced sufficient
evidence to sustain Appellant’s theft by deception conviction (related to lost
earnings); (2) when Appellant submitted VCAP application, Appellant
acknowledged that consequence of providing fraudulent information on
application would be ineligibility to receive lost wages; additionally, once
applicant commits fraud, he is ineligible to receive any compensation from
VCAP; because Appellant provided fraudulent information to obtain alleged
lost earnings, Appellant was also ineligible to receive compensation for
medical expenses; Commonwealth produced sufficient evidence to sustain
Appellant’s theft by deception conviction (related to medical expenses); (3)
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contrary to Appellant’s assertions, court did not make express determination
that Appellant’s employment was non-existent; rather, court decided
Appellant lied about his employment on VCAP application to overstate his
claim for lost wages; Appellant also failed to disclose to Public Welfare
agency any VCAP payments he received,2 as he was required to do, which
would have adversely affected his eligibility for public assistance and
reduced or eliminated amount of public assistance he received;
Commonwealth produced sufficient evidence to sustain Appellant’s
conviction for false statements (to obtain food stamps);3 (4) Appellant
submitted falsified documents in his VCAP application; specifically, Appellant
presented fraudulent paystubs, fraudulent employer letter, and fraudulent
employer verification form; evidence demonstrated Appellant knowingly
produced false or altered documentation to receive compensation for lost
wages; Commonwealth produced sufficient evidence to sustain Appellant’s
tampering with public records or information conviction). Accordingly, we
affirm on the basis of the trial court’s opinion as to issues one through four.
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2
Appellant also failed to disclose his purported earnings to the Public
Welfare agency.
3
On appeal, Appellant appears to have abandoned his challenge to the
sufficiency of the evidence for his false statements conviction. (See
Appellant’s Brief at 17-18.) Instead, Appellant now challenges only the
grading for the sentence he received for this conviction. We address
Appellant’s grading complaint in the analysis of his seventh issue on appeal.
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In his fifth issue, Appellant invokes the “specific/general” principle of
law that prohibits prosecutions under the general provisions of the penal
code when there are special provisions available. Appellant asserts the
Commonwealth’s prosecution of Appellant for tampering with public records
falls under the specific provisions of the Welfare Code, which prohibited the
Commonwealth from also prosecuting him under the general theft by
deception provisions of the Crimes Code for the same behavior. Appellant
admits that in his Rule 1925(b) statement he challenged the
Commonwealth’s prosecution of him for tampering with public records and
forgery as barred under the “specific/general” principle. Appellant maintains
he meant to challenge the Commonwealth’s prosecution of him for
tampering with public records and theft by deception, as barred by this
principle of law. Appellant concludes his error was inadvertent, and this
Court should remand to provide Appellant and the trial court an opportunity
to address the issue he intended to raise on appeal. We cannot agree.
As a general rule, “to preserve their claims for appellate review,
appellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to [Rule] 1925.
Any issues not raised in a [Rule] 1925(b) statement will be deemed waived.”
Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)
(quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309
(1998)). See also Pa.R.A.P. 302(a) (stating issues not raised in trial court
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are waived and cannot be raised for first time on appeal).
Instantly, Appellant presented his fifth issue on appeal in his Rule
1925(b) statement as follows: “The court erred in finding Appellant guilty of
both Tampering with Public Records and Forgery because the finding of guilt
in special provisions preclude[s] prosecution of the correlating general
provision of the penal code.” (Appellant’s Rule 1925(b) Statement, filed
3/12/15, at 2, ¶e).
In response to Appellant’s Rule 1925(b) statement, the trial court
addressed Appellant’s “specific/general” argument in relation to his
convictions for tampering with public records and forgery. Appellant did not
seek permission to file an amended or supplemental Rule 1925(b) statement
to correct his purported error. See Pa.R.A.P. 1925(b)(2) (stating: “Upon
application of the appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit an amended or
supplemental Statement to be filed. … In extraordinary circumstances, the
judge may allow for the filing of a Statement or amended or supplemental
Statement nunc pro tunc”). Likewise, Appellant did not file a motion in this
Court acknowledging his alleged error and requesting a remand to give the
trial court an opportunity to address Appellant’s “intended” appellate issue.
Instead, Appellant waited until he filed his appellate brief to explain his
error, which denied the trial court a chance to address Appellant’s proposed
issue in a timely manner. Appellant’s failure to preserve his claim before the
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trial court compels waiver of Appellant’s fifth issue on appeal. See Pa.R.A.P.
302(a); Pa.R.A.P. 1925(b)(2); Castillo, supra.
Moreover, our legislature limited the “specific/general” rule with the
enactment of 42 Pa.C.S.A. § 9303, which provides:
§ 9303. Liability for violations of general and
specific criminal statutes
Notwithstanding the provisions of 1 Pa.C.S. § 1933
(relating to particular controls general) or any other
statute to the contrary, where the same conduct of a
defendant violates more than one criminal statute, the
defendant may be prosecuted under all available statutory
criminal provisions without regard to the generality or
specificity of the statutes.
42 Pa.C.S.A. § 9303 (effective February 7, 2003). See also
Commonwealth v. Nypaver, 69 A.3d 708 (Pa.Super. 2013) (explaining
enactment of 42 Pa.C.S.A. § 9303 halted operation of “specific/general” rule
of statutory construction in context of criminal prosecution, and cases which
applied that concept as basis for their holdings are no longer precedential;
rejecting appellant’s argument that Commonwealth could prosecute him only
under specific provision of Unemployment Compensation Law prohibiting
wrongful receipt of unemployment benefits, but not under general theft by
deception provisions of Crimes Code).
Here, Section 9303 was in effect at the time the Commonwealth
initiated prosecution in this matter. Consequently, the Commonwealth was
free to charge Appellant for his criminal conduct under all available statutory
criminal provisions. See 42 Pa.C.S.A. § 9303; Nypaver, supra. Therefore,
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even if Appellant had preserved his fifth issue before the trial court, it would
merit no relief.
For purposes of disposition, we combine Appellant’s sixth and seventh
issues on appeal. Appellant argues his convictions for theft by deception
(related to medical expenses) and false statements were incorrectly graded
as third-degree felonies for sentencing. Appellant asserts the financial loss
associated with these convictions was not enough to support sentences as
third-degree felonies. Rather, Appellant maintains his convictions for theft
by deception (related to medical expenses) and false statements should
have been graded as first-degree misdemeanors for sentencing.
Regarding his false statements conviction, Appellant insists the court
must have incorrectly calculated the amount of his welfare fraud by
considering every month in which Appellant received food stamps, from
August 2011 until June 2013. Instead, Appellant claims the amount he
received relative to his false statements conviction should have been
calculated from the date he first received payment from VCAP and failed to
report it to the Public Welfare agency. Appellant concludes he was
improperly sentenced on his theft by deception (related to medical
expenses) and false statements convictions as third-degree felonies, and this
Court must grant appropriate relief. We agree in part that some relief is
due.
“A claim that the court improperly graded an offense for sentencing
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purposes implicates the legality of a sentence.” Commonwealth v.
Mendozajr, 71 A.3d 1023, 1027 (Pa.Super. 2013) (quoting
Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super. 2008)).
When examining a challenge to the legality of a sentence, our scope and
standard of review is as follows:
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a
challenge to the legality of the sentence. If no statutory
authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal
sentence must be vacated. When the legality of a
sentence is at issue on appeal, our standard of review is de
novo and our scope of review is plenary.
Mendozajr, supra (quoting Commonwealth v. Catt, 994 A.2d 1158, 1160
(Pa.Super. 2010) (en banc)) (internal citations and quotation marks
omitted). See also Commonwealth v. Berry, 877 A.2d 479 (Pa.Super.
2005) (en banc), appeal denied, 591 Pa. 688, 917 A.2d 844 (2007)
(explaining challenges to legality of sentence are non-waiveable, assuming
jurisdiction is proper).4
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4
The trial court interprets Appellant’s claims as challenging the underlying
convictions rather than the legality of the sentences for those convictions.
In Commonwealth v. Spruill, 622 Pa. 299, 80 A.3d 453 (2013), the issue
before the appellate Court was whether the trial court erred by convicting
the appellee of aggravated assault graded as a second-degree felony where
the Commonwealth charged her with aggravated assault as a first-degree
felony. In Commonwealth v. Shamsud-Dim, 995 A.2d 1224 (Pa.Super.
2010), the issue was whether the trial court erred by convicting the
appellant of simple assault as a third-degree misdemeanor where: the
Commonwealth had not charged the appellant with that offense as a third-
(Footnote Continued Next Page)
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The Crimes Code provides the following grading of theft offenses, in
relevant part:
§ 3903. Grading of theft offenses
(a) Felony of the second degree.—Theft
constitutes a felony of the second degree if:
(1) The offense is committed during a manmade
disaster, a natural disaster or a war-caused disaster and
constitutes a violation of section 3921 (relating to theft by
unlawful taking or disposition), 3925 (relating to receiving
stolen property), 3928 (relating to unauthorized use of
automobiles and other vehicles) or 3929 (relating to retail
theft).
(2) The property stolen is a firearm.
(3) In the case of theft by receiving stolen property,
the property received, retained or disposed of is a firearm.
(4) The property stolen is any amount of anhydrous
ammonia.
_______________________
(Footnote Continued)
degree misdemeanor and simple assault as a third-degree misdemeanor was
not a lesser included offense to any of the charges before the trial court. In
each case, the reviewing Courts considered the issues as challenges to the
respective convictions, which required specific and timely objections to avoid
waiver. In both Spruill and Shamsud-Dim, the remedy for each
appellant’s complaint would have been an arrest of judgment for the
challenged conviction.
Here, Appellant claims the sentences on his convictions for false statements
and for theft (medical expenses) were improper because the
Commonwealth’s evidence supported only first-degree misdemeanor
sentences. As well, Appellant does not seek an arrest of judgment for these
convictions. Therefore, Spruill and Shamsud-Dim are inapposite, and the
trial court erred in relying on those cases to define and decide Appellant had
waived his issues.
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(5) The amount involved is $100,000 or more but less
than $500,000.
(a.1) Felony of the third degree.—Except as
provided in subsection (a) or (a.2), theft constitutes a
felony of the third degree if the amount involved exceeds
$2,000, or if the property stolen is an automobile,
airplane, motorcycle, motorboat or other motor-propelled
vehicle, or in the case of theft by receiving stolen property,
if the receiver is in the business of buying or selling stolen
property.
(a.2) Felony of the first degree.—Except as provided
in subsections (a) and (a.1), theft constitutes a felony of
the first degree if:
(1) in the case of theft by receiving stolen property,
the property received, retained or disposed of is a firearm
and the receiver is in the business of buying or selling
stolen property; or
(2) the amount involved is $500,000 or more.
(b) Other grades.—Theft not within subsection (a),
(a.1) or (a.2), constitutes a misdemeanor of the first
degree, except that if the property was not taken from the
person or by threat, or in breach of fiduciary obligation,
and:
(1) the amount involved was $50 or more but less
than $200 the offense constitutes a misdemeanor of the
second degree; or
(2) the amount involved was less than $50 the
offense constitutes a misdemeanor of the third degree.
* * *
18 Pa.C.S.A. § 3903. Additionally, the Public Welfare Code provides the
following grading for a false statements conviction:
§ 481. False statements; investigations; penalty
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(a) Any person who, either prior to, or at the time of,
or subsequent to the application for assistance, by means
of a willfully false statement or misrepresentation, or by
impersonation or by willfully failing to disclose a material
fact regarding eligibility or other fraudulent means,
secures, or attempts to secure, or aids or abets or
attempts to aid or abet any person in securing assistance,
or Federal food stamps, commits a crime which shall be
graded as provided in subsection (b).
(b) Any person violating subsection (a) commits the
grade of crime determined from the following schedule:
Amount of Assistance Degree of Crime
or Food Stamps
$3,000 or more Felony of the third degree
$1,500 to $2,999 Misdemeanor of the first
degree
$1,000 to $1,499 Misdemeanor of the
second degree
$999 and under, or an Misdemeanor of the third
attempt to commit any degree
act prohibited in
subsection (a)
* * *
62 P.S. § 481.
Instantly, the court convicted Appellant of theft by deception (related
to lost earnings, at count one), theft by deception (related to medical
expenses, at count two), tampering with public records or information (count
three), false statements (count four), and forgery (count six). (The
Commonwealth withdrew the charge of identity theft (count five) at trial.)
At sentencing, the following exchange occurred between the court and
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counsel regarding the grading of Appellant’s offenses for sentencing
purposes:
[THE COURT]: All right, we are here for
sentencing.
The [c]ourt has conferred with counsel. Counsel agree the
guidelines are properly calculated. We have theft by
deception, 3 to 14, a felony three, level three offenses;
tampering with public records, felony three, R.S. to 12,
level two; welfare fraud,[5] 3 to 14 in the standard range,
level three, felony three; forgery M-1, R.S. to 9, level
two.[6]
Were there any additions or corrections to the presentence
investigation and report?
[DEFENSE COUNSEL]: No, Your Honor.
[COMMONWEALTH]: The only amendment I would
make is I believe the felony three theft was properly
indicated as a standard range of 3 to 14 months. The
misdemeanor one theft I believe would be R.S. to 9,
and the felony tampering would be R.S. to 12.
[THE COURT]: Very well.
(N.T. Sentencing, 1/16/15, at 3; R.R. at Exhibit E) (emphasis added). The
Commonwealth also offered the following sentencing recommendation:
So the Commonwealth’s recommendation in this matter is
for a standard range sentence, but it is a sentence that will
involve some total confinement in this case.
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5
The court referred to Appellant’s false statements conviction as welfare
fraud.
6
Appellant’s theft and false statements were actually level two offenses of
varying degrees from third-degree felony to first-degree misdemeanor.
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On count one, theft by deception, we’re asking for a
standard range sentence of 9 to 23 months, with
restitution in the amount of $5,390 payable to the
Pennsylvania Commission on Crime and Delinquency
Victims’ Compensation Assistance Program.
On count two, theft by deception, a misdemeanor, we
are asking for 9 to 23 months concurrent with count one,
and $1,462 in restitution payable to the same victim.
On count three, tampering with public records, we are
asking for a sentence of five years’ probation concurrent
with count three but consecutive to counts one and two.
On count four, the false statements charge, five years’
probation concurrent with count three but consecutive to
counts one and two.
And count six, forgery, the same sentence, five years’
probation concurrent with counts three and four,
consecutive to counts one and two, for a total sentence
recommendation of 9 to 23 months, followed by five years’
probation, and total of $6,852 restitution.
(Id. at 16; R.R. at Exhibit E) (emphasis added).
The court sentenced Appellant for the theft by deception conviction
(related to medical expenses) to six (6) to twenty-three (23) months’
imprisonment, plus three (3) years’ probation, with restitution in the amount
of $1,462.00. Given the court’s on-the-record exchange with counsel, the
court was aware the theft offense (related to medical expenses) was a first-
degree misdemeanor. See id. See also 18 Pa.C.S.A. § 3903(b). The
court’s sentence falls within the standard range for a first-degree
misdemeanor theft offense. Additionally, the certified docket entries
expressly state: “Count 2 is amended to (M1) grading at sentencing.” (See
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Docket Entries at 3; R.R. at Exhibit A). Thus, we see no error with respect
to the sentence imposed for Appellant’s theft by deception conviction
(related to medical expenses).
Regarding Appellant’s false statements conviction (count four), the
court imposed a concurrent term of six (6) to twenty-three (23) months’
imprisonment, plus three (3) years’ probation, with this offense also graded
as a third-degree felony. Nevertheless, the parties agree the court should
have graded this offense as a first-degree misdemeanor at sentencing.7
(See Appellant’s Brief at 18; 20; Commonwealth’s Brief at 27.) See also 62
P.S. § 481(b). In its opinion, the court likewise concedes the evidence at
trial showed the false statements/welfare fraud was a first-degree
misdemeanor, i.e., between $1,500.00 and $2,999.00. (See Trial Court
Opinion at 19.) Given the court’s error in waiving the sentencing issue, we
conclude the best resolution of this case is to vacate the judgment of
sentence and remand for resentencing with the proper grading (amend false
statements/welfare fraud to a first-degree misdemeanor for sentencing).
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7
The Commonwealth suggests the court’s grading error is harmless because
the court imposed a standard range sentence within the statutory limits,
even if Appellant’s false statements conviction had been graded properly as
a first-degree misdemeanor. While this statement might seem appealing in
some respects, we cannot ignore other ramifications associated with the
improper grading of the offense for sentencing. See, e.g., 204 Pa.Code §
303.15 (dictating offense gravity score and prior record points associated
with offenses; misdemeanor offenses carry different offense gravity score
and prior record point value than felony offenses). Therefore, we reject the
Commonwealth’s position.
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See generally Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super.
1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding
sentencing error in multi-count case normally requires appellate court to
vacate entire judgment of sentence so trial court can restructure its
sentencing scheme on remand). Accordingly, we affirm Appellant’s
convictions, but we vacate the judgment of sentence in its totality and
remand for resentencing.
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2016
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Circulated 01/06/2016 09:05 AM
IN 1HE COURT OF COMMON PLEAS OF MONTGOMERY COUN1Y
PENNSYLVANIA
CRIMINAL DMSION
COMMONWEALTH OF PENNSYLVANIA CP-46-CR-0004497-2013
v.
ALEXIS BROWN 494 EDA 2015
OPINION
CARPENTER J. MAY 8, 2015
FACTUAL AND PROCEDURAL HISTORY
Appellant, Alexis Brown. appeals from the judgment of sentence
imposed on January 16, 2015, following his conviction at a non-jury trial of two
. counts of theft by deception 1. tampering with public records or information2,
false statements' and forgery'.
On June 30, 2014, this Court presided over a non-jury trial. At trial,
Tracy Clouser, a claims specialist for the Victim's Compensation Assistance
Program, testified. (Trial by Judge 6/30/14 pp. 9 - 10). The Victim's
Compensation Assistance Program ("VCAP") is a program designed to
financially help victims of crime with the financial burden they experience
because of the crime. Id. at 9. The kind of things a victim may be compensated
for may be medical expenses, loss of earnings, funeral expenses or stolen cash
18 Pa.C.S.A. §3922(a)(l);
18 Pa.C.S.A. §491 l(a)(2);
62 Pa.C.S.A. §481 (a);
18 Pa.C.S.A. §410l{a)(2).
claims. Id. at 9 - 10. As a claim specialist, Ms. Clouser is assigned a claim, she
reviews the claim to make sure that all mandatory documents are received and
then process the claim for payment. Id. at 10.
In October of 2012, Ms. Clouser was assigned to review Appellant's
claim. Id. at 11. She reviewed Appellant's claims summary which is a summary
that contains victim information, what was reported, what happened, what the
injuries were. Id. at 13. It also contains the employer at the time of the crime,
date of the crime, when it was reported, what the police department the
incident was reported to and insurance questions. Id. Based upon Appellant's
claim form, Appellant provided as his address, 2437 West Allegheny Street,
Philadelphia, PA 19132 and his phone number as 347-482-9611. Id. at 14.
Appellant also provided bis employer as Muscle Therapy at 1616 Walnut Street,
Philadelphia, PA 19103 and a phone number of 267-253-3956. Id. The date of
the crime was reported as September 5, 2012. Id. at 15.
As part of the process, Ms. Clouser explained that she reviews the
police report which will usually have the injuries listed. She verifies the medical
bills to see if they correlate to the injuries listed by the police department. Id. In
Appellant's case several medical expenses were listed. Id. In a request for lost
earnings, she sends out a verification form to the employer and a request for a
certifying doctor's name and address who can certify that the injuries the
victim suffered from the crime disabled the employee from working. Id.
In this case, Ms. Clouser testified as to the documentation and
verification received from Appellant on October 19, 2012, sent from Appellant's
2
fax. Id. at 16, 17 - 18. Specifically, she received statement from Pennsylvania
Hospital stating that Appellant owed $2,027.00. Id. at 16. Since an itemized bill
was never forwarded no payment was made on that bill. Id. at 17. The next
document that was submitted was a statement from Albert Einstein Medical
Center reflecting that Appellant owed $200.00. Id. at 17. An itemized statement
was not provided and no payment was made on that bill. Id. There were other
medical expenses that included appropriate verification and were in fact paid
out to Appellant. Id. at 30. These include medical bills from Philadelphia Hand
Center. Id. Ms. Clouser did receive an itemized medical bill. Id. at 31.
Next, Appellant provided two paystubs and an employer letter. The
first paystub has a pay date of September 7, 2012. Id. at 19. It showed that
Appellant's gross pay was for $1,295.00 for 37 hours of work. Id. at 19 - 20.
That equals $35.00 an hour. Id. at 20. The second paystub reflects a pay date of
August 24, 2012 and a gross pay of $1400.00 for 40 hours of work. Id. Finally, a
employer letter was submitted. Id. at 22. It read To whom it may concern,
11
Alexis Brown is a valued employee at the Muscle Therapy Company. If you have
any questions or concerns, please don't hesitate to call or fax or any other
required information for employee verification. Management." Id. at 23. It listed
a phone number and a fax number. Id. The letter was not on letterhead and it
was not signed by an individual other than "Management." It provided no
further identifying information. Id.
Ms. Clouser needed additional information from the employer, and
submitted a victim employment questionnaire directly to the employer. Id. at
3
 24 - 25. Ms. Clouser received this form back which reflected that the date of
employment was May 8, 2012, job title was massage therapist, it listed that
Appellant worked an eight hour day and was paid $35 per hour. Id. at 25. The
questionnaire also stated that Appellant had lost time from September 6, 2012,
the date after the crime, through November 14, 2012. Id. The questionnaire was
signed by Daniel Jacob on November 14, 2012. A phone number was provided.
Ms. Clouser tried to verify Appellant's employment information by
first calling the phone number listed on the victim employment questionnaire
form filled out by Daniel Jacobs, 215-460-7591. Id. at 26. Ms. Clouser was
informed that she had a wrong number. Id. at 27. She went back to the original
letter submitted by Appellant with his claim. Id. She was also advised that she
had a wrong number. Id.
At the time of filing his claim, Appellant signed a signature page
acknowledging the consequences for providing inaccurate information and
more specifically, that if he provided fraudulent employment information that
would preclude that his from recovering loss wages. Id. at 27 - 28. In addition,
once fraud is committed, a claimant becomes ineligible for any compensation.
Id. at 29.
At trial, Ms. Clouser testified as to three forms called a review and
determination. See, Exhibit "C-6", "C-7" and "C-8". Exhibit C-6 reflected that the
total amount paid by the Victim's Compensation Assistance Program to
Appellant for loss of earnings was $5,390.00. Id. at 32 - 33. This amount was
4
paid directly to Appellant. Id. at 3 7. Exhibit C-7 reflected that a payment was
made to Philadelphia Hand Center for two visits for a total amount of
$1,248.00. Id. at 35. Finally, C-8 reflected that another payment was made to
Philadelphia Hand Center for $214.50. Id. at 36. These payments were sent
directly to Philadelphia Hand Center. Id. at 37. All checks were cashed. Id. at 38.
Subsequent to these payments, Appellant filed for additional loss
of earnings and medical expenses but they were not paid out because red flags
on Appellant's claims were starting to pop up. Id. at 36 - 37. Appellant's claim
was then sent to a secondary reviewer, who put a halt on Appellant's claim. Id.
at 37.
Next to testify at trial was William Anspach, who works for the
Commonwealth of Pennsylvania in the Victims Compensation Program. Id. at
49. He is a financial recovery specialist and he also serves as a compliance
reviewer for the program. Id. In this capacity he reviews all work done by any of
his peers for compliance assurance. Id. at 49 - 50. In particular, Mr. Anspach
came to review Appellant's claim in January of 2013. Id. at 50. Appellant's claim
came to his attention as a matter of a second review by a second review
request, after monies were already paid out and Appellant was looking to be
paid again on additional expenses submitted by him. Id. at 51, 52. According to
Mr. Anspach there were red flags that drew his attention to Appellant's claim.
Id. at 52. For example, Mr. Anspach testified that the initial employer
verification documentation was not in the standard format that the policies and
procedures of his agency require. Id. at 52. He also noticed that there had been
5
an item that seemed to have been whited out and information written on top of
that as it related to the earning that Appellant earned for the last full pay
period before the date of the crime. Id. at 54 - 5 5. In addition, the paystubs
attached to Appellant's record seemed out of the ordinary. Id. at 55. They did
not seem consistent with what he normally sees, namely there was no company
leger and there was only an employer's name and no federal employer
identification number. Id. at 56. Mr. Anspach tried to locate the employer and
contact number for Muscle Therapy by doing an internet search. Id. at 57, 59.
He did not turn up anything and it seemed to be a suspicious claim. Id. at 59.
After his findings. Mr. Anspach alerted the claims specialist supervisor. Id. at
59 - 60. After that meeting, if the supervisor agreed with Mr. Anspach's
determination the claim would then be forwarded to the legal department for
review. Id. at 60.
The Commonwealth next called Denise White to testify at trial. Ms.
White works in the Attorney General's Office investigating welfare fraud. Id. at
62. Ms. White testified that Appellant received public assistance, namely food
stamps. Id. at 64, 65. Records indicated that food stamps were issued to
Appellant going back August of 2011 at his address at 2437 West Allegheny
Avenue, Philadelphia, PA. Id. at 65, 66. He received $200.00 a month in benefits
from August of 2011 until his file was closed in June of 2013. Id. at 67. In
applying for food stamps, an applicant must report their income since the.
benefit is income based. Id. at 68 - 69. In addition, as part of the application
process, an applicant is informed that if there are any changes during the
6
course of receiving the food stamp benefit that applicant must report that
income change. Id. at 69. None of the records reflect that Appellant ever
reported any income as a massage therapist at any time between August 2011
and June of 2013, whether at Muscle Therapy or at Brown Muscle Therapy. Id.
at 70, 71. In fact, Appellant never reported any income at all. Id. at 70. Ms.
White also told this Court that if Appellant received money from the Victim's
Compensation Assistance Program, he would have been required to report that
as well as it would have to be accounted for in determining benefits. Id. at 71 -
72. Appellant never reported the income he received from the Victim's
Compensation Assistance Program. Id. at 72.
The third witness to testify on behalf of the Commonwealth was
Jennifer Kuruc, director of operations at the Philadelphia Hand Center. Id. at 76
- 77. As part of Ms. Kuruc's responsibilities, she confirmed benefits for patients
of the practice. Id. at 78. Appellants' first appointment with the medical
practice was on September 27, 2012. Id. at 78. Ms. Kuruc identified Exhibit "C-
12" as a portion of Appellant's registration information from the medical
practice's computerized system. Id. at 79. On the registration form Appellant
provided his address as 2437 West Allegheny Avenue, Philadelphia, PA 19132.
Id. at 80. He also indicated that he was self-employed and his company was
Brown's Muscle Therapy. Id. Appellant listed his home address as his business
address, not 1616 Walnut Street. Id. Appellant also listed his cell phone number
as his business phone number. Id. at 81. Although the Victim's Compensation
Assistance Program paid for some of the medical services provided by
7
Philadelphia Hand Center, there remained an outstanding balance of $675.00.
Id. at 85.
Special Agent Daniel Block was the next to testify at the non-jury
trial. Agent Block stated that he worked for the Pennsylvania Office of the
Attorney General and that he has done so since October 1, 2012. Id. at 92.
Agent Block was assigned to Appellant's case after it was referred to him by the
Pennsylvania Office of General Counsel. Id. It was due to suspicions over his
application to the Victim's Compensation Assistance Program that it was
referred to the agent. Id. at 93. Agent Block testified that Appellant had
purported himself to be the victim of an assault which took place on September
5, 2012. Id. at 93. Agent Block had the application with the employer
verification and the pay stubs, et cetera. Id. Agent Block attempted to locate
Appellant's employer as listed on the application. Id. at 93 - 94. First the agent
looked online for any record or reference to the company, which he found
nothing. Id. at 94. Next, Agent Block did a labor industry check of the company
and taxes paid to the state referenced to the company, which he found none. Id.
Then he drove to 1616 Walnut Street in Philadelphia and looked in the
building's directory and found nothing there referencing Muscle Therapy or
Brown's Muscle Therapy. Id.
Agent Block did speak to Appellant and made a consensual
recording the conversation. Id. at 96. At trial, the Commonwealth introduced a
copy of the recording as Exhibit "C-14" and played it in it's entirely. Id. at 99.
8
Agent Block was able to secure an arrest warrant for Appellant. Id.
at 100. He went to the 2437 West Allegheny address to arrest Appellant, and
when the agent got there Appellant attempted to flee outside his bedroom
window. Id. at 101 - 102.
Finally, the Commonwealth and defense counsel stipulated that if
u1 Alex Breitmayer, the leasing agent for 1616 Walnut Street, was called to testify
he would confirm and testify that between April 2012 and January I, 2013,
there were no tenants at his property under the name of Muscle Therapy or
Brown Muscle Therapy. Id. at 109.
The defense presented no witnesses.
At the -conclusion of the trial, this Court found Appellant guilty of
the aforementioned charges. On January 16, 2015, Appellant was sentenced.
ISSUES
I. Whether the evidence was sufficient to support Appellant's conviction of
theft by deception in regard to loss earnings.
II. Whether the evidence was sufficient to support Appellant's conviction of
theft by deception in regard to medical expenses.
III. Whether the evidence was sufficient to support Appellant's conviction of
false statements.
IV. Whether the evidence was sufficient to convict Appellant of tampering
with public records.
V. Whether Appellant's convictions for tampering with public records and
forgery do not violate the "specific/general rule".
VI. Whether Appellant's theft by deception. relating to medical expenses
conviction and his false statements conviction were improperly graded.
9
DISCUSSION
I. The evidence was sufficient to support Appellant's conviction of theft by
deception in regard to loss earnings.
First in Appellant's Concise Statement of Errors Complained of on
Appeal, he contends that the evidence was insufficient to show as a matter of
law that he was guilty of theft by deception in relation to lost earnings, because
the evidence presented by the Commonwealth failed to show beyond a
reasonable doubt that Appellant misrepresented his employment status.
Our Superior Court has set forth the following standard of review
when the sufficiency of the evidence is challenged:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our
judgment for the fact-finder. In addition, we note that
the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence
is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all evidence
actually received must be considered. Finally,the
finder of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is
free to believe all, part or none of the evidence.
Commonwealth v. Nypaver, 69 A.3d 708, 714 - 715 (Pa.Super. 2013) (quoting
10
Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super. 2005)).
Section 3922(a)(l) of the Crimes Code is defined as follows:
§ 3922. Theft by deception
(a) Offense defined.--A person is guilty of theft if he
intentionally obtains or withholds 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
fact alone that he did not subsequently perform the
promise
18 Pa.CS.A. § 3922.
In this case, the evidence at trial established that Appellant lied
about his employment status on his VCAP application, submitting suspicious
paystubs and an employer verification that also seemed suspicious. It was
testified to that the paystubs sent up red flags because there was no employer
ID number, no employee identification number and no social security number.
In addition, the employer letter as well as the employer verification form also
sent up red flags. The employer letter was not on letterhead, it was signed by
"Management" and the two phone numbers listed on the letter as belonging to
the purported employer were wrong numbers. Additionally, it is noteworthy
that the pay stubs, the employer letter and employer verification form came
from Appellant's fax and not from the purported employer. Further, all
attempts to verify the existence of Muscle Therapy could not be verified by Ms.
Clouser, Mr. Anspach or Agent Block despite attempts to call the phone
11
numbers listed on the employer letter and the employer verification form,
going to the listed address for the employer at 1616 Walnut Street, a stipulation
by the leasing agent of 1616 Walnut Street that there was never a company
called Muscle Therapy in that building during the relevant time periods and
internet searches of various kinds by both Mr. Anspach and Agent Block.
U1 Moreover, the employment information he submitted on his VCAP application
was different than the information he submitted on bis Philadelphia Hand
Company patient intake form. Based upon this circumstantial evidence, this
Court as the fact-finder concluded that Appellant lied about his employment
status on the VCAP forms and submitted fraudulent paperwork to support his
claim for lost wages. Therefore, the amount that VCAP paid out to Appellant for
these loss wages of $5,395 was the result of his deceptive conduct and was
properly found guilty.
II. The evidence was sufficient to support Appellant's conviction of theft by
deception in regard to medical expenses.
Next, Appellant asserts that the evidence was insufficient as a
matter of law to find him guilty of theft by deception in relation to medical
expenses because any alleged deception had no bearing upon any payments
made by VCAP for medical expenses.
Here, Appellant was properly convicted of theft by deception as it
relates to the money paid out to Philadelphia Hand Company. At trial Ms.
Clouser testified that at the time Appellant filed his claim with VCAP, he was
required to acknowledge the consequence of providing fraudulent information
12
during the application process (Trial by Judge 6/30/14 27 - 28). Appellant
signed a signature page acknowledging that if fraudulent employer information
was provided, he would not be eligible to receive loss wages. Id. at 28. In
addition, once fraud is committed, Appellant would be ineligible to receive any
compensation. Id. at 29. Because Appellant provided the fraudulent employer
information, he was not eligible to receive the medical expenses paid to
Philadelphia Hand Company. His compensation for medical expenses were a
result of his fraudulent conduct.
III. The evidence was sufficient to support Appellant's conviction of false
statements.
Appellant's third issue on appeal challenges the sufficiency of the
evidence to convict him of false statements in receiving food stamps where this
Court concluded that the alleged employment was determined to be non-
existent. This created conflicting fact determinations that are irreconcilable.
To establish a conviction for false statements, the following must
be proved beyond a reasonable doubt:
§ 481. False statements; investigations; penalty
(a) Any person who, either prior to, or at the time of, or
subsequent to the application for assistance, by means
of a wilfully false statement or misrepresentation, or
by impersonation or by wilfully failing to disclose a
material fact regarding eligibility or other fraudulent
means, secures, or attempts to secure, or aids or abets
or attempts to aid or abet any person in securing
assistance, or Federal food stamps, commits a crime
which shall be graded as provided in subsection (b).
62 P.S. § 481(a).
13
VJ
n
P)
~ In this case, there was no determination that Appellant's
Ql
employment was non-existent as counsel asserts. Rather, it was determined
that Appellant lied in the VCAP application. Whether he did this to either (1)
overstate his employment status in order to receive a larger lost wages
compensation pay out, or (2) he might have been unemployed. Either way, this
Court did not have to make that determination in order to determine that what
Appellant did submit to VCAP in support of his lost wages claim was
fraudulent as detailed in Issue I, set forth above.
Additionally, from Ms. White's testimony, this Court determined
that Appellant failed to disclose the VCAP payments he did receive. Such
disclosure would have been used to determine his eligibility for public
assistance and would have reduced his $200.00 monthly payment. Appellant
failed to disclose this material fact that would have impacted his eligibility in
the program ..
IV. The evidence was sufficient to convict Appellant of tampering with public
records.
Fourth, Appellant asserts that the evidence was insufficient as a
matter of law to convict him tampering with public records because the
evidence was based purely upon opinions of lay witnesses that the record was
changed.
To find a defendant guilty of tampering with public records under
18 Pa.CS.A. 491l(a)(2), the following must be proven:
14
(a) Offense defined.--A person commits an offense if
he: ·
(1) knowingly makes a false entry in, or false alteration
of, any record, document or thing belonging to, or
received or kept by, the government for information or
record, or required by law to be kept by others for
information of the government;
(2) makes, presents or uses any record, document or
thing knowing it to be false, and with intent that it be
taken as a genuine part of information or records
referred to in paragraph (1) of this subsection; or
In this case, Appellant presented falsified documents in his VCAP
application. Appellant presented fraudulent pay stubs, a fraudulent employer
letter and a fraudulent employer verification form as discussed thoroughly in
Issue I set forth earlier in this Opinion. The evidence demonstrated that he
knowingly did so in order to receive compensation for lost wages that he was
not otherwise entitled to.
V. Appellant's convictions for tampering with public records and forgery do
not violate the "specific/general rule".
Fifth, Appellant contends that this Court erred in finding him
guilty of both tampering with public records and forgery because the finding of
guilt in special provisions precludes prosecution of the correlating general
provision of the penal code.
The "specific/general rule" prohibits prosecution under the general
provisions of the penal code when there are applicable special provisions
available. Commonwealth v. Tisdale, 100 A.3d 216, 218 (Pa.Super. 2014). (citing
15
Commonwealth v. Brown, 29 A.2d 793, 796-97 (Pa. 1943)). "This same policy
remains in force nearly sixty years later and continues to prevent the
Commonwealth for pursuing general criminal charges against an individual
whose conduct was intended to be punished by a 'specific penal provision' that
constitutes the exclusive legal authority for prosecution of the acts charged."
Commonwealth v. Leber, 802 A.2d 648, 650 (Pa.Super. 2002).
In this case, the crime of tampering with public records or
information and the crime of forgery are intended to punish different behavior,
and this is not a case where one crime is general and the other one is specific to
which the prohibition the specific/general rule prohibition precludes the
Commonwealth from pursuing both charges!
In this case, Appellant was found guilty of tampering with public
records under 18 Pa.CS.A. §491 l(a)(2) and of forgery under 18 Pa.CS.A.
§4101(a)(2).Both provisions are set forth below.
§ 4911. Tampering with public records or
information
(a) Offense defined.--A person commits an offense if
he:
(1) knowingly makes a false entry in, or false alteration
of, any record, document or thing belonging to, or
received or kept by, the government for information or
record, or required by law to be kept by others for
information of the government;
(2) makes, presents or uses any record, document or
thing knowing it to be false, and with intent that it be
taken as a genuine part of information or records
referred to in paragraph (1) of this subsection; or
16
18 Pa.CS.A. §4911.
§ 4101. Forgery
(a) Offense defined.--A person is guilty of forgery if,
with intent to defraud or injure anyone, or with
knowledge that he is facilitating a fraud or injury to be
perpetrated by anyone, the actor:
(1) alters any writing of another without his authority;
(2) makes, completes, executes, authenticates, issues or
transfers any Wliting so that it purports to be the act
of another who did not authorize that act, or to have
been executed at a time or place or in a numbered
sequence other than was in fact the case, or to be a
copy of an original when no such original existed; or
18 Pa.CS.A.§ 4101.
The plain language of the tampering with public records as defined
by subsection (a)(2) punishes the making, presenting or using a falsified record,
meant to be taken as true; whereas forgery under subsection (a)(2) punishes the
making, completing, executing, authenticating, issuing or transferring a writing
with the intent to defraud or injure anyone. This plain language shows that each
crime is meant to punish distinct behavior. Under tamping with public records
there is no requirement that the criminal behavior was intended to injure
anyone; rather, just the act of knowingly falsifying public records is a crime.
The element of intent to injury is not necessary.
In the alternative, this Court notes that Section 9303, 42 Pa.CS.A.,
allows for, "[n]Notwithstanding the provisions of 1 Pa.CS. § 1933 (relating to
particular controls general) or any other statute to the contrary, where the same
17
conduct of a defendant violates more than one criminal statute, the defendant
may be prosecuted under all available statutory criminal provisions without
regard to the generality or specificity of the statutes." 42 Pa.C.S.A. § 9303; see
also, In re N.W. 6 A.3d 1020, 1026 (Pa.Super. 2010).
VI. Appellant's theft by deception. relating to medical expenses conviction
and his false statements conviction were improperly graded.
In Appellant's sixth and seventh issues on appeal, he asserts that
his conviction for theft by deception, relating to medical expenses was
improperly graded as a third degree felony when the alleged cost of services
did not exceed $2,000.00 and that this Court erred in grading the fraud or false
statements in receiving food stamps/public assistance as a first degree felony
when the alleged value of the assistance did not exceed $3,000.
Although this Court notes that Appellant was not sentenced for his
welfare fraud conviction as a first degree felony, but rather as a felony of the
third degree. See, Sentencing Guidelines Sheet and (Sentencing 1/16/15 pp. 3,
21); grading is admittedly improper on both of these convictions.
In regard to Appellant's theft by deception, relating to medical
expenses conviction, he was found guilty of theft in the amount of $1,462.00.
The theft charge, Count II, was graded as a third degree felony in the bill of
information, despite that the amount of the theft was listed as $1,462.00. In
addition, this theft conviction was graded in the sentencing guidelines sheet as
a third degree felony. Appellant was ultimately sentenced to a term of 6 to 23
months' imprisonment, followed by a three year term of probation. (Sentencing
18
1/16/15 p. 20). This conviction should have been graded as a first degree
misdemeanor. See, 204 Pa. Code §303.15.
In regard to Appellant's conviction for welfare fraud, it was graded
as a third degree felony in Count IV of the bills of information and it was also
set forth as a third degree felony in the sentencing guidelines sheet. There was
Yt no finding as to the dollar amount regarding the fraud. However, the evidence
adduced at trial showed that the amount was not equal to or more than
$3,000.00 so as to make this a third degree felony. Rather the evidence adduced
at trial :•howeJ. the fraud was a first degree misdemeanor, i.e., between
$1,500.00 to $2,999.00.
Our Pennsylvania Supreme Court in Commonwealth v. Spruill, 80
A.3d 453 (Pa. 2013)~ held that an error in grading an offense concerns the
underlying conviction rather than the legality of the sentence, and is therefore
subject to waiver. In our case, the admitted errors in grading go to the
conviction and not to the legality of sentence. Therefore, Appellant should have
objected to this Court's consideration of that offense or to the conviction
immediately following this Court's guilty verdict. Commonwealth v. Shamsud-
Din, 995 A.2d 1224 (holding that an appellant failed to preserve for appellate
review a claim that the trial court erred by convicting her of third-degree
misdemeanor assault where appellant did not timely object to the trial court's
consideration of that offense or to conviction immediately following the court's
guilty verdict.); see also, Commonwealth v. Spruill, 105 A.3d 802 (Pa.Super.,July
28, 2014) (memorandum opinion).
19
CONCLUSION
Based on the forgoing analysis, the judgment of sentence entered
on January 16, 2015, should be affirmed.
BY THE COURT:
WIWAM R. CARPEN J.
COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
3STH JUDICIAL DISTRICT
Copies sent on May 8, 2015
By Interoffice Mail to:
Court Administration
By First Class Mail to:
Michael Doyle, Esquire
20