Commonwealth v. Visconto

448 A.2d 41, 301 Pa. Super. 543, 1982 Pa. Super. LEXIS 4603
CourtSupreme Court of Pennsylvania
DecidedJuly 9, 1982
Docket638
StatusPublished
Cited by10 cases

This text of 448 A.2d 41 (Commonwealth v. Visconto) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Visconto, 448 A.2d 41, 301 Pa. Super. 543, 1982 Pa. Super. LEXIS 4603 (Pa. 1982).

Opinions

[546]*546CIRILLO, Judge:

Appellant, Janice Visconto, was found guilty of making false statements in order to obtain public assistance1 in the Municipal Court of Philadelphia County on February 20, 1980. Appellant was sentenced to one year probation and ordered to pay restitution. Appellant then appealed to the Court of Common Pleas of Philadelphia County2 and was convicted by a jury on October 20, 1980. Post-verdict motions were denied. Appellant was sentenced to three to twelve months imprisonment and ordered to pay restitution in the amount of $3,770.00. This appeal followed.

From June 1975 to August 1977, appellant received public assistance under the name Janice Visconto through the Elmwood district office of the Philadelphia County Board of Assistance. From August 1976 to January 1977, under the name Janice D’Amico, appellant received public assistance through the Snyder district office of the Philadelphia County Board of Assistance. Appellant also received continuous unemployment compensation under the name Janice D’Amico from July 1976 to January 1977.3

Appellant raises three issues on appeal: 1) that, she was denied the right to a trial de novo in the Court of Common Pleas because the trial judge at sentencing had possession of the record of the Municipal Court proceedings, the trial court imposed a harsher sentence upon her than that imposed in the Municipal Court, and the trial judge, at sentencing, made mention of the length of the Common Pleas trial; 2) that the trial court erred in admitting Commonwealth Exhibits 9, 17 and 18 into evidence over appellant’s objections; and 3) that the trial court erred in denying appellant’s [547]*547motion for a mistrial which was based on remarks made by the prosecutor in closing argument to the jury.

We find no merit in appellant’s first contention. There is no evidence in the record that the trial judge had possession of the record of the Municipal Court proceedings at trial or at sentencing.

Appellant then argues that she is entitled to another sentencing hearing because she received a harsher sentence in the Court of Common Pleas than that imposed in the Municipal Court. In Commonwealth v. Possinger, 264 Pa. Super. 332, 344-45, 399 A.2d 1077, 1083 (1979) the Court held that:

... a defendant’s constitutional rights were not violated when a Common Pleas court following a trial de novo imposed a sentence greater than the one originally imposed by Municipal Court. This was true even though the Common Pleas Court did not place upon the record facts justifying such an increase in sentence, (citations omitted)

We conclude that the increase in appellant’s sentence was proper.

Appellant argues that it was error for the trial judge to mention, at sentencing, the length of her Common Pleas trial.4 After sentence was imposed, defense counsel argued, on the record, that the increase in sentence was not proper and that certain Pennsylvania cases did not justify an increase in sentence. The sentencing judge stated that it had been a very long trial and he would review the record in light of the cases cited, and, if a lesser sentence was warranted, he would contact both parties. After reviewing the record, we find that this isolated comment by the trial judge, after sentence was imposed, did not prejudice appellant.

[548]*548Appellant’s second contention is that the trial court erred in admitting, over appellant’s objections, Commonwealth Exhibits 9, 17, and 18.

Exhibit 9 is an overpayment referral sheet which lists the dates of the overpayment of public assistance checks to the appellant.

The Uniform Business Records Evidence Act provides:

(b) ... A record of an act, condition or event shall insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition, or event, and if, in the opinion of the tribunal, the sources of information, method, and time of preparation were such as to justify its admission.
(c) ... As used in this section “business” includes every kind of business, profession, occupation, calling, or operation of institutions whether carried on for profit or not.

Act of 1976, July 9, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 6108. At trial, the Commonwealth presented two witnesses, Marilyn Read, supervisor of records at the Elmwood district office, and Philip Friedrich, applications supervisor at the Snyder district office, to identify Exhibit 9 and to provide information as to the circumstances surrounding its preparation. Ms. Read first met Janice Visconto in 1974 when she applied for public assistance. At trial, Ms. Read identified appellant as Janice Visconto. Mr. Friedrich also identified appellant at trial, and he testified that when appellant applied for public assistance at the Snyder district office, he knew her as Janice D’Amico. At some point later, after appellant had applied for public assistance, Mr. Fried-rich saw her at an administrative appeal hearing where she went by the name Janice Visconto.

Marilyn Read discovered the double payment of public assistance to appellant when the Claims Settlement Bureau of the Pennsylvania Department of Welfare instructed her and Mr. Friedrich to review both the Visconto and D’Amico [549]*549case records to determine if the cases involved the same person.5

Marilyn Read personally appeared and signed an overpayment referral shqet based upon the discovery of appellant’s receipt of double payments of public assistance from the Elmwood and Snyder district offices between the time period of August 26, 1976 to January 23, 1977.

We therefore conclude that Exhibit 9 was properly admitted into evidence under the business records exception to the hearsay rule. Marilyn Read was a qualified witness who testified to: the Exhibit’s identity, her personal preparation of the document, and, the preparation of the document in the regular course of business at the time of the discovery of the overpayment of public assistance benefits to appellant.

Exhibit 17 is a computer print-out of unemployment payments issued to appellant by the Pennsylvania Bureau of Unemployment Compensation. The trial court admitted the record as an official record of the Bureau of Unemployment Compensation. At trial, appellant objected that a proper foundation had not been laid for its admission. The applicable law provides:

(a) ... An official record kept within this Commonwealth by any court, district justice or other government unit, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that the officer has the custody. The certificate may be made by any public officer having a seal of office and [550]*550having official duties with respect to the government unit in which the record is kept, authenticated by the seal of his office. ..

Act of 1976, July 9, P.L. 586, No.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Smoot, J.
Superior Court of Pennsylvania, 2016
Moser, B. v. Renninger, R.
116 A.3d 1107 (Superior Court of Pennsylvania, 2015)
Commonwealth v. Lungin
77 Pa. D. & C.4th 267 (Bucks County Court of Common Pleas, 2005)
Thorne v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
727 A.2d 1205 (Commonwealth Court of Pennsylvania, 1999)
Commonwealth v. Cummings
487 A.2d 897 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Braxton
451 A.2d 764 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Visconto
448 A.2d 41 (Supreme Court of Pennsylvania, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
448 A.2d 41, 301 Pa. Super. 543, 1982 Pa. Super. LEXIS 4603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-visconto-pa-1982.