J-A12023-24
2024 PA Super 215
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
EBBONI L. GASPARD :
:
Appellant : No. 2977 EDA 2023
Appeal from the Judgment of Sentence Entered November 16, 2023
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000358-2022
BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E. *
OPINION BY KING, J.: FILED SEPTEMBER 17, 2024
Appellant, Ebboni L. Gaspard, appeals from the judgment of sentence
entered in the Monroe County Court of Common Pleas, following her jury trial
convictions for theft by deception and false swearing. 1 We affirm.
The relevant facts and procedural history of this case are as follows. In
2020, Appellant was a tenant of the Monroe County Housing Authority
(“Authority”) Section 8 program. Jozie Castaldo, the Section 8 coordinator for
the Authority, was assigned as Appellant’s caseworker. In July 2021,
Appellant contacted Ms. Castaldo because she had been given a notice to
vacate by her landlord and wanted to move to a different Section 8 rental.
Ms. Castaldo helped Appellant prepare the transfer paperwork, and provided
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3922 and 4903.
J-A12023-24
Appellant with recertification paperwork that was required prior to approval
for a new unit. The recertification required Appellant to disclose any change
in income.
When Ms. Castaldo contacted Appellant to request missing documents,
Appellant’s voicemail identified the number as the “Above the Bar Soap
Company.” Appellant later confirmed to Ms. Castaldo that “Above the Bar
Soap Company” was her business. Upon further investigation, Ms. Castaldo
discovered that Appellant had never disclosed the soap business or any other
self-employment income, even though Appellant had signed notice of a policy
requiring her to report all income changes within five days of the date of the
change in income, or any increase in income regardless of the source.
When Ms. Castaldo questioned Appellant about the lack of disclosure,
Appellant claimed that the business was only a hobby. However, Appellant
listed the company on her LinkedIn page, and Facebook pages showed
storefront retail locations of the Above the Bar Soapery business, including
shelves of products and commercial soapmaking equipment, as well as
Appellant’s travel trailer which she used to sell the products at flea markets.
Appellant also rented storage facilities for her business. Appellant
subsequently provided Ms. Castaldo with receipts of her gross income, but no
records of her expenses, income tax returns, or any other records of other
profits and losses.
The total housing benefit paid to Appellant’s landlord from March 2017,
-2-
J-A12023-24
when she received housing voucher benefits, until June 2021, through the
recertification process, was $65,826.00.
The Commonwealth ultimately charged Appellant with the above-
mentioned crimes and the matter proceeded to a jury trial. At trial, Appellant
admitted to operating the business during the time she had received Section
8 benefits through the Authority, but she claimed that the money she made
was solely used to pay business expenses. (N.T. Trial, 6/13/23, at 113-31).
Appellant testified that she did not take a salary. (See id.)
On June 13, 2023, the jury convicted Appellant of theft by deception
(false impression) and false swearing. The court sentenced Appellant to an
aggregate term of two years of probation on November 16, 2023. On
November 21, 2023, Appellant timely filed a notice of appeal. On November
22, 2023, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, and Appellant timely complied.
Appellant raises the following issue for our review:
Whether the [trial] court erred, and whether there was
insufficient evidence at trial to convict Appellant of count 1,
theft by deception (F3) because, like the case in
Commonwealth v. Thomas, 70 A.2d 458 (Pa.Super.
1950), the testimony only showed that Appellant provided
false information, but did not show that Appellant actually
obtained any property or benefit by giving that false
information, or that she would otherwise not have been
entitled to the Section 8 housing assistance that she
received based upon the correct and truthful information?
(Appellant’s Brief at 6).
Appellant argues that it was the Commonwealth’s burden to prove she
-3-
J-A12023-24
received housing benefits in excess of what she would have received if she
had disclosed her business income. Appellant asserts that she may have been
entitled to Section 8 benefits even if she had disclosed her business income,
depending on her net income. Appellant claims the Commonwealth did not
provide any evidence regarding the amount of Section 8 benefits to which
Appellant was entitled. Appellant concludes the Commonwealth presented
insufficient evidence to sustain her conviction for theft by deception, 2 and this
Court must grant relief. We disagree.
Appellate review of a challenge to the sufficiency of the evidence is
governed by the following principles:
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.
____________________________________________
2 Appellant does not challenge her conviction for false swearing on appeal.
-4-
J-A12023-24
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting
Commonwealth v. Bullick,
830 A.2d 998, 1000 (Pa.Super. 2003)).
The Pennsylvania Crimes Code defines theft by deception as follows:
(a) Offense defined.—A person is guilty of theft if [s]he
intentionally obtains or withholds property of another by
deception. A person deceives if [s]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 [s]he did not subsequently perform the
promise;
(2) prevents another from acquiring information which
would affect [her] judgment of a transaction; or
(3) fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver
knows to be influencing another to whom [s]he stands in
a fiduciary or confidential relationship.
(b) Exception.—The term “deceive” does not, however,
include falsity as to matters having no pecuniary
significance, or puffing by statements unlikely to deceive
ordinary persons in the group addressed.
18 Pa.C.S.A. § 3922. Thus, “[a] person is guilty of theft by deception if [s]he
intentionally obtains property from another by deception. The Commonwealth
must prove that the victim relied upon the false impression.”
Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa.Super. 2000), appeal
denied,
564 Pa. 728,
766 A.2d 1246 (2000). Further, except where a
defendant may be held strictly liable for committing an offense, “guilty
knowledge or criminal intent is elemental to any misdeed[.] Criminal intent
-5-
J-A12023-24
may be established by direct or circumstantial evidence” and may further “be
inferred from acts or conduct or the attendant circumstances.”
Commonwealth v. Grife, 664 A.2d 116, 122 (Pa.Super. 1995), appeal
denied,
544 Pa. 654,
676 A.2d 1196 (1996) (holding that Commonwealth
presented sufficient evidence to sustain appellant’s conviction for theft by
deception where appellant prevented lenders from acquiring information
which would have affected their judgment about loan transactions).
In Thomas, supra, the defendant applied for public assistance for
herself and her children. During the time she was receiving benefits, the
defendant was employed and received wages such that the defendant
obtained more assistance than she would have had she properly reported her
employment. The Commonwealth charged the defendant with what was
known at the time as false pretense. In its analysis, this Court focused on
whether the Commonwealth had produced any evidence of a “false
representation of an existing fact.”3 See
id. Notably, when the defendant
executed the affidavit for public assistance, the affidavit asked many questions
about household composition, resources, and references, but did not ask
____________________________________________
3 At the time, the Penal Code provided: “Whoever by any false
pretense…obtains from any other person any chattel, money, or valuable
security, with intent to cheat and defraud any person of the same, is guilty of
a felony.”
Thomas, supra at 459. Further, the law defined a false pretense
as “the false representation of an existing fact, whether by oral or written
words or conduct, which is calculated to deceive, intended to deceive, and
does, in fact, deceive, and by means of which one person obtains value from
another without compensation.” See
id.
-6-
J-A12023-24
about employment or unemployment of the defendant at the time. Ultimately,
this Court concluded:
The indictment charges that the defendant falsely pretended
that “she was eligible and entitled to receive assistance from
the Department of Public Assistance of the Commonwealth
of Pennsylvania whereas in truth and in fact she…was not
eligible for assistance.” The Commonwealth contends that
because the defendant was employed she was not eligible
for assistance. There is, of course, no merit in this
contention. One may be employed and still eligible for
assistance in Pennsylvania, depending on the amount of
wages received from the employment, the needs of the
family and other factors. Even here, the Commonwealth
admits that the defendant was entitled to receive some
assistance during her period of employment; the testimony
is only that she received more than she would have received
had her employment been known to the Department of
Public Assistance.
Id. at 460 (emphasis in original). Therefore, because the affidavits that the
defendant signed did not require her to disclose her employment or
unemployment, this Court held there was no false statement or
misrepresentation based on the defendant’s failure to disclose her
employment or any changes to her employment status. See
id.
Instantly, Appellant’s reliance on Thomas is misplaced. In Thomas,
the defendant had signed a certification that did not require her to disclose
her employment; here, Appellant signed a certification that specifically
required her to report all changes in income, as well as any increase in
income regardless of the source of income. (See N.T. Trial at 32,
Commonwealth’s Ex. 1). Thus, the facts of Thomas are readily
distinguishable from the case at bar. Compare Thomas, supra.
-7-
J-A12023-24
Here, the record confirms that Appellant intentionally withheld reporting
a source of income to the Authority despite her signed certifications that she
would report any changes in income from any source, and that the Authority
relied on Appellant’s statements when awarding her Section 8 housing. See
18 Pa.C.S.A. § 3922(a)(1); McSloy, supra;Grife, supra. As the trial court
observed, the Authority could not investigate whether Appellant had a net
income from self-employment if it was not put on notice of that employment.
(See Trial Court Opinion, filed 12/19/23, at 8). By failing to disclose her
business income, Appellant prevented the Authority from acquiring
information which might have affected her entitlement to Section 8 housing,
and the Authority paid a housing benefit on Appellant’s behalf. See 18
Pa.C.S.A. § 3922. Thus, viewing the evidence in the light most favorable to
the Commonwealth as the verdict-winner, the evidence was sufficient to
sustain Appellant’s conviction for theft by deception. See
Jones, supra.
Accordingly, we affirm.
Judgment of sentence affirmed.
Date: 9/17/2024
-8-
