Commonwealth v. Nypaver

69 A.3d 708

2013 PA Super 144

COMMONWEALTH of Pennsylvania, Appellee

v.Myron P. NYPAVER, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 12, 2013.

Filed June 18, 2013.

Michael J. DeRiso, Pittsburgh, for appellant.

Robert E. Grimm, Assistant District Attorney, Smithfield, for Commonwealth, appellee.

BEFORE: BOWES, LAZARUS, and COLVILLE,^* JJ.

OPINION BY BOWES, J.:

Myron P. Nypaver appeals from the judgment of sentence of two years probation, fines, fees, and restitution in the amount of $16,990. We affirm.

On March 7, 2012, a jury found Appellant, who was tried together with his wife Lisa Nypaver, guilty of one count each of theft by deception and conspiracy. The convictions arose from Appellant's receipt of unemployment benefits from March 6, 2010, until October 2, 2010, when he was ineligible to receive those payments due to the fact that he was on the payroll of his employer, Uniontown. Kimberly Marshall, City Clerk for Uniontown, testified as follows. Her administrative position entailed, among other things, keeping employment records for Uniontown employees. After becoming an employee on March 10, 1989, Appellant worked in various capacities, including code enforcement officer, assistant fire chief, and fire chief. He was continuously employed until February18, 2009, when he was laid off. Appellant was recalled for work on March 14, 2009, and he worked until December 31, 2009, when he again was separated from employment. Less than three months later, on March 6, 2010, Appellant was again recalled and worked continuously for Uniontown until October 6, 2010.

In April, July, and October 2010, Ms. Marshall received a quarterly statement from the Pennsylvania Department of Labor and Industry, (the “Department”) which is responsible for the processing and payment of unemployment compensation claims. Uniontown is self-insured so that it must reimburse the Department in full for all unemployment payments made to its employees. On the three reports, the Department indicated that Appellant received unemployment compensation for the period of March 6, 2010, to October 2, 2010. On September 30, 2010, Ms. Marshall became aware that Appellant was receiving those benefits and initiated an investigation.

Ms. Kimberly Bury, an Employment Security Audit and Investigator employed by the Department, investigated the matter of Appellant's receipt of unemployment benefits when he was not unemployed. She testified as follows. A claimant can file unemployment claims over the internet. If that method is used, the initial application paperwork is sent to the employer, and the claimant is provided a personal identification number (“PIN”) with which to file benefits. By utilizing the PIN and his or her social security number, the claimant can file bi-weekly claims for unemployment benefits over the internet. Additionally, benefits may be deposited directly into a checking or savings account or can be issued onto a debit card. A second PIN must be used to access the debit card. Ms. Bury established that, from March 6, 2010 to October 2, 2010, Appellant filed his bi-weekly unemployment claims online and used a debit card to obtain his payments. The amount of benefits received on the debit card over the relevant period amounted to $16,990. The amount on the card was depleted by cash withdrawals and purchases.

Ms. Bury related that the Department provides information to claimants regarding the importance of safeguarding their PIN numbers, as follows: “[Y]our pin number protects you from another person trying to claim your benefits. Your pin has the same legal authority as your signature. Do not give your pin to anyone. Giving your pin to anyone, even family is not permitted.” N.T. Trial, 3/5/12, at 68. Claimants are also advised, “If you think someone else knows your pin, change it immediately.” Id. After Uniontown reported that Appellant received benefits while employed, Ms. Bury interviewed Appellant on November 16, 2010. Appellant told her that “he had no knowledge of who was continuing to file for his unemployment benefits, and that after he returned to work on March 6, 2010, that he did not file any additional benefits [.]” Id. at 72–73. Appellant also represented to Ms. Bury that “when he was laid off or returned to work on March 6, that he cut up his debit card[.]” Id. at 73.

The Commonwealth introduced into evidence a record of the transactions on Appellant's unemployment compensation debit card that were made after March 6, 2010, which consisted primarily of cash withdrawals. Pictures of the person who made some of those cash withdrawals were introduced into evidence. While the exhibits are not contained in the record certified to this Court for purposes of this appeal, the record indicates that they depicted Mrs. Nypaver withdrawing the funds. N.T. Trial, 3/6/12, at 78–79.

Steve Kontaxes, a financial controller under the Defense Department Contracts, a detective supervisor with the Fayette County District Attorney's Office, and captain of the Perryopolis Police Department, became involved in Appellant's investigation. On November 10, 2010, Detective Kontaxes interviewed both Appellant and his wife at their residence. During that interview, Mrs. Nypaver acknowledged to Detective Kontaxes that she knew about the unemployment claims, and said, in Appellant's presence, that she made them. Appellant told her, “I am not going to let you take the heat for this,” and he then turned toward Detective Kontaxes and said, “I was with her when she did it.” N.T. Trial, 3/6/12, at 32.

There was a stipulation to admit Exhibit Number 12, which was a portion of testimony that Appellant previously gave under oath. He swore that he bent and broke the debit card. Mrs. Nypaver testified at trial that she took the debit card from the trash and used it to make the withdrawals and purchases. She also said that Appellant had given her his two PINs, the one for filing claims as well as the one to use the debit card. She represented that she completed the false claims online and that Appellant had no knowledge of any of her activities. Even though Appellant swore that the card was destroyed, it also was admitted into evidence.

Based on this evidence, a jury convicted Appellant of conspiracy and theft, and the above-described sentence was imposed. Appellant filed a post-sentence motion, which included an allegation that the verdict was against the weight of the evidence. In this appeal that followed denial of that motion, Appellant raises these contentions:

[1]. Did the trial court err in assuming jurisdiction of this matter where the special provision of the unemployment compensation law at 43 P.S. § 871(a) provides for prosecution in a “summary proceeding.”

[2]. Did the trial court err in refusing to admit evidence under Pennsylvania rule of evidence 404(a)?

[3]. Was the evidence presented sufficient to sustain a verdict of guilty on counts 1 and 6 [theft and conspiracy] of the information.

[4]. Was the jury verdict was against the weight of the evidence?

[5]. Did the trial court improperly influence [Appellant] to testify?

[6]. Was the jury verdict ... the product of jury error?

Appellant's brief at 4.

Appellant's first position is that the trial court lacked jurisdiction over this prosecution for wrongful receipt of unemployment benefits due to 43 P.S. § 871(a),¹ which is part of the Unemployment CompensationLaw. In pertinent part, 43 P.S. § 871(a) states, “Whoever makes a false statement or representation knowing it to be false ... to obtain or increase any compensation or other payment under this act ... shall upon conviction thereof in a summary proceeding, be sentenced to pay a fine of not less than one hundred dollars nor more than one thousand dollars, or shall be sentenced to imprisonment for not longer than thirty days, or both [.]” Under the provision, a person must be ordered to make restitution for improperly received compensation, and each false statement or representation is a separate offense. Appellant contends that since § 871 is a specific penal provision applicable to the receipt of unemployment benefits, he could not be prosecuted under the more general Crimes Code for offenses he committed thereunder. Thus, the issue presented is whether § 871 provides the sole means by which the Commonwealth may prosecute crimes involving the receipt of unemployment benefits based upon false representations. This allegation “involves statutory construction, which is a question of law; thus, our review is plenary.” Commonwealth v. Garzone, 613 Pa. 481, 34 A.3d 67, 74 (2012).

Appellant refers us to Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962). Therein, we interpreted § 871 and concluded that it prevented a person from being prosecuted under the 1939 Penal Code, which was succeeded by the Crimes Code of 1972. The sole question presented was “whether a defendant who knowingly makes a false representation, thereby obtaining compensation under the Unemployment Compensation Law, as amended in 1955, which provides for conviction in a summary proceeding, may be indicted for a felony under the Penal Code.” The defendants in that case were charged with felony theft under the Penal Code after they obtained unemployment benefits by fraudulently claiming that they were unemployed. The indictments were quashed, and we affirmed on appeal. We held that § 871 of the Unemployment Compensation Law was intended by the legislature to exclusively cover situations where a person obtains unemployment benefits by false representations. To achieve our holding, we applied the maxim that the law does not “permit prosecutions under the general provisions of a penal code when there are special penal provisions available.” Id. at 250. This principle is outlined in 1 Pa.C.S. § 1933 (emphases added):

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be...