J-S69011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S69011-15


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.


____________________________________________


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.



                                           -5-
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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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J-S69011-15


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,

                                     -8-
J-S69011-15


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

____________________________________________


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.



                                           - 11 -
J-S69011-15


            (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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J-S69011-15


           (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.

____________________________________________


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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J-S69011-15


          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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J-S69011-15


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).
____________________________________________


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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J-S69011-15


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
