Commonwealth v. Kitchen , 2017 Pa. Super. 147 ( 2017 )

J-S14040-17
2017 Pa. Super. 147
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIMBERLY M. KITCHEN, :
:
Appellant : No. 1371 MDA 2016
Appeal from the Judgment of Sentence July 19, 2016
in the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000274-2015
BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER*, JJ
OPINION BY STRASSBURGER, J.: FILED MAY 16, 2017
Kimberly M. Kitchen (Appellant) appeals from the judgment of
sentence entered on July 19, 2016, following her convictions for
unauthorized practice of law, forgery, and tampering with public records or
information. We affirm.
On March 26, 2015, Appellant was charged with the aforementioned
offenses.
The affidavit of probable cause indicat[es] that [Appellant],
from February 2005 through December 2014, held herself out as
a lawyer and practiced law in Pennsylvania when in fact she was
not a lawyer. [At the time of her arrest, Appellant had been
elevated to partner at BMZ Law, a firm in Huntingdon County.
Prior to becoming partner, she had served as president of the
Huntingdon County Bar Association.] The forgery charges
relate[s] to documents that [Appellant] purportedly fabricated
during the time period of December 19-23, 20[1]4, including an
attorney license for 2014, a list from the Pennsylvania Board of
Law Examiners showing bar examination results, an email
verifying she had attended Duquesne University and a check
evidencing payment of her attorney registration fee. The
*
Retired Senior Judge assigned to the Superior Court.
J-S14040-17
tampering with public records charge relates to allegations that
from October 2006 through December 2014 [Appellant]
knowingly filed documents with the Huntingdon County register
of wills and prothonotary offices falsely representing that she
was an attorney.
Trial Court Opinion, 11/8/2016, at 1 (unnecessary capitalization omitted).
On March 24, 2016, following a non-jury trial, Appellant was found
guilty of all three offenses. A pre-sentence investigation was ordered and
Appellant was placed on supervised release pending her sentencing.
However, on April 20, 2016, the court ordered Appellant taken into custody
and transported to the State Correctional Institution for Women at Muncy for
a psychiatric examination. Counsel filed with this Court an emergency
petition for review of the trial court’s order, which was denied by order dated
April 28, 2016. Order, 4/28/2016.
On July 19, 2016, Appellant was sentenced to a term of incarceration
of two years plus one day to five years for the tampering with public records
conviction, a concurrent one-to-two-year term of incarceration for the
offense of forgery, and a year of concurrent probation for the unlawful
practice of law conviction. Appellant was also ordered to pay fines and costs
at each count. Appellant’s motion to modify sentence was denied on August
2, 2016. This timely-filed appeal followed. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
On appeal, Appellant (1) challenges the sufficiency of the evidence
presented to increase the grading of the offense of tampering with public
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records or information from a misdemeanor to a felony and (2) asks this
Court to consider whether the trial court abused its discretion in sentencing
Appellant with respect to that offense. Appellant’s Brief at 6.
With respect to Appellant’s first argument, it is well-settled that,
our standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
… Significantly, we may not substitute our judgment for that of
the fact finder; thus, so long as the evidence adduced, accepted
in the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant’s crimes beyond a
reasonable doubt, the appellant’s convictions will be upheld.
Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016)
(internal citations omitted). Credibility of witnesses and the weight of the
evidence produced is within the province of the trier of fact, who is free to
believe all, part or none of the evidence. Commonwealth v. Scott, 146
A.3d 775, 777 (Pa. Super. 2016).
Relevant to the instant case, a person commits the crime of tampering
with public records or information if he or she “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
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by law to be kept by others for information of the government[.]” 18 Pa.C.S.
§ 4911(a)(1). The statute provides that “[a]n offense under this section is a
misdemeanor of the second degree unless the intent of the actor is to
defraud or injure anyone, in which case the offense is a felony of the third
degree.” 18 Pa.C.S. § 4911(b) (emphasis added).
Appellant concedes that the Commonwealth presented evidence
sufficient to prove that she knowingly falsified documentation in order to
mislead others into believing she had been admitted to the bar. Appellant’s
Brief at 32-40. Further, Appellant admits that from 2005 to 2014 she
actively practiced law and signed her name to legal documents knowing she
was not licensed to do so. Id. However, Appellant contends that the
evidence of false entry alone does not prove the intent to defraud necessary
to increase the grade of this charge to a felony of the third degree. Id. at
36-40. Rather, Appellant suggests that the intent to defraud requires the
presence of a pecuniary element and argues that, because she merely
“made false entry regarding her status as a lawyer,” but was honest with her
clients’ money, the Commonwealth failed to sustain its burden. Id. at 40
(emphasis in original). Additionally, Appellant argues that the clients of BMZ
Law “did not suffer loss” due to her actions and any harm caused to the firm
was remediated. Id. at 39.
The trial court addressed Appellant’s arguments as follows.
… The essence of [Appellant’s] argument is that if the legal work
done by [Appellant] was basically done appropriately and the
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Commonwealth failed to offer the testimony of any complaining
clients, then none of the clients [was] defrauded and, as such,
[Appellant] did not possess the intent to defraud anyone. As
previously noted, [Appellant] did offer three witnesses at [the]
time of trial who each testified that [he or she was] quite
satisfied with the legal work which had been done for [him or
her] by [Appellant].
The intent to defraud constitutes an element of the offense
and as previously noted the prosecution must prove it as such
before the trier of fact; any fact that increases the penalties of
crime beyond prescribed statutory maximum must be submitted
to the jury (finder of fact) and proved beyond a reasonable
doubt. Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). So
then, what does it mean to defraud? Black’s Law Dictionary, 7 th
Edition defines fraud as follows: “A knowing misrepresentation of
the truth or concealment of a material fact to induce another to
act to his or her detriment,” and “A misrepresentation made
recklessly without belief in its truth to induce another person to
act.”
“[F]raud consists of anything calculated to deceive,
whether by single act or combination, or by suppression of truth,
or suggestion of what is false, whether it be by direct falsehood
or by innuendo, by speech or silence, word of mouth or look or
gesture. That is, there must be a deliberate intent to deceive.
Finally, the concealment of a material fact can amount to a
culpable representation no less than does an intentional false
statement.” Rohm and Haas Co. v. Conti CAS. Co., 781 A.2d
1172, 1179 (Pa. 2001). (internal citations omitted). The essence
of fraud is deceit intentionally and successfully practiced to
induce another to part with property or with some legal right.
Fraud is practiced when deception of another to his damage is
brought about by a misrepresentation of fact or by silence when
good faith required expression. In Re McClellan’s Estate, 75
A.2d 595 (Pa. 1950).
In Pennsylvania, in order to maintain a civil cause of action
for fraud, a plaintiff must allege the following elements: (1) a
representation; (2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity or recklessness as
to whether it is true or false; (4) with the intent of misleading
another into relying on it; (5) justifiable reliance on the
misrepresentation; and (6) the resulting injury was proximately
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caused by the reliance. Bartz v. Noon, 729 A.2d 555, 560 (Pa.
1999).
The problem with [Appellant’s] argument is that the law
does not permit anyone to practice law without a license. To do
so is a violation of a criminal statute, 42 Pa.C.S. § 2524(a).
Therefore, it should not be assumed by this court, or any other
court, that to practice law without a license is not a big deal.
[Appellant’s] clients, and the BMZ law firm, were, without
question, defrauded. [Appellant] held herself out as a practicing
attorney, associated with a well-known law firm in Huntingdon
County. She used the word “esquire” after her name and used
another lawyer’s attorney identification number claiming that it
was hers. It is reasonable to infer that the clients of BMZ law
would not have consented to have her as their attorney if they
had known that she possessed no education beyond [community
college] and had not passed the Pennsylvania bar exam. It is
reasonable to infer that the clients would not have paid the sums
that they did for the administration of the estates in question
and other legal work if they had not believed that in exchange,
they would receive the legal knowledge which comes with
graduation from law school and passing the bar examination.
Since the clients were in fact defrauded, it is reasonable to infer
that [Appellant] intended to defraud them. If she had not
intended to defraud the clients, she would have honestly
disclosed to them and to BMZ Law that she in fact had not
graduated from law school, and had not in fact passed the bar
exam. Her intent to defraud is shown by her many years of
misrepresentation and deceit on these subjects.
Trial Court Opinion, 11/8/2016, at 11-13 (unnecessary capitalization
omitted).
Based on the foregoing, we conclude that the totality of the evidence
presented by the Commonwealth was sufficient to establish that Appellant
undertook her decade-long deception with the intent to defraud. As the
Commonwealth points out, Appellant’s argument that she was “a good fake
lawyer” does not negate her intent. Commonwealth’s Brief at 17. The record
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shows that Appellant benefitted personally and economically from the fraud
she perpetrated, regardless of whether she handled properly those funds
entrusted to her. See N.T., 3/23-24/2016, at 34-35. As members of BMZ
Law testified, the firm spent a substantial amount of time, effort, and money
remedying the situation once it was brought to light. See N.T., 3/23-
24/2016, at 85-90. As a result, the firm also lost business and suffered a
loss of reputation. Id. at 89-90. Additionally, despite Appellant’s assertions
to the contrary, Appellant’s Brief at 38-39, those clients affected by
Appellant’s deception suffered a tangible loss: the breach of the trust central
to relationship between attorney and client. The role of an attorney is not
merely transactional and Appellant’s attempt to argue as such demonstrates
an ignorance of the nuances of the profession.
Thus, evidence shows that Appellant’s actions were knowingly and
intentionally calculated to defraud, and not done out of some altruistic, yet
misguided, desire to provide competent representation to the clients of BMZ
Law or leadership to the Huntingdon County Bar Association. Accordingly,
we discern no error in the trial court’s finding and hold that the charge of
tampering with public records or information was properly graded as a felony
of the third degree.
We turn now to Appellant’s second claim of error: that the trial court
abused its discretion in imposing a sentence outside the guideline range.
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Appellant’s Brief at 41-50. We consider this question mindful of the
following.
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an appellant
challenging the discretionary aspects of his sentence must invoke this
Court’s jurisdiction. We determine whether the appellant has invoked our
jurisdiction by considering the following four factors:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify sentence, and her brief contains a statement
pursuant to Pa.R.A.P. 2119(f). We thus consider whether there is a
substantial question that Appellant’s sentence is inappropriate.
In her Pa.R.A.P. 2119(f) statement, Appellant claims that her sentence
“exceeds the aggravated range of the sentencing guidelines and overstates
the severity of the crime, resulting in a manifestly excessive sentence.”
Appellant’s Brief at 30. Appellant’s sentence for each offense exceeded the
aggravated range of her sentencing guidelines. Trial Court Opinion,
11/8/2016, at 13-14. “Under 42 Pa.C.S.[] § 9781(c)(3), a claim that the
sentencing court sentenced outside the sentencing guidelines, … presents
such a substantial question.” Commonwealth v. Hanson, 856 A.2d 1254,
1257 (Pa. Super. 2004) (citation and quotation marks omitted). Thus, we
conclude that Appellant has presented a substantial question for our review,
and proceed to evaluate Appellant’s sentencing argument on its merits.
In every case where a sentencing court imposes a
sentence outside of the sentencing guidelines, the court must
provide in open court a contemporaneous statement of reasons
in support of its sentence.
The statute requires a trial judge who intends to sentence
a defendant outside of the guidelines to demonstrate on the
record, as a proper starting point, [its] awareness of the
sentencing guidelines. Having done so, the sentencing court may
deviate from the guidelines, if necessary, to fashion a sentence
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which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the
victim and the community, so long as [it] also states of record
the factual basis and specific reasons which compelled [it] to
deviate from the guideline range.
When evaluating a challenge to the discretionary aspects
of sentence ... it is important to remember that the sentencing
guidelines are advisory in nature. If the sentencing court deems
it appropriate to sentence outside of the guidelines, it may do so
as long as it offers reasons for this determination. [O]ur
Supreme Court has indicated that if the sentencing court proffers
reasons indicating that its decision to depart from the guidelines
is not un reasonable [(sic)], we must affirm a sentence that falls
outside those guidelines.
A sentencing court, therefore, in carrying out its duty to
impose an individualized sentence, may depart from the
guidelines when it properly identifies a particular factual basis
and specific reasons which compelled [it] to deviate from the
guideline range.
Commonwealth v. Shull, 148 A.3d 820, 835–36 (Pa. Super. 2016)
(citations and quotation marks omitted; emphasis in original).
We note that the trial court herein reviewed the presentence
investigation report, and, thus, “we presume that the court properly
considered and weighed all relevant factors in fashioning [Appellant’s]
sentence.” Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super.
2013). Further, the record reveals that the trial court was cognizant of the
sentence it was imposing. At sentencing, the trial court set forth eight
reasons for imposing a sentence above the aggravated guideline range.
1. The scope and extent of [Appellant’s] ten[-]year
deception and misrepresentation of herself as an
attorney and law school graduate.
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2. The systematic and all-encompassing nature of the
deception which involved multiple individuals from the
legal and nonlegal community on a daily workday
basis.
3. The extreme negative effect of her deception on the
BMZ law firm as to the law firm’s business, reputation
for professionalism and integrity, client base and costs
and in terms of time and money spent on the
remunerative efforts.
4. [Appellant’s] disregard of the risk of substantial
financial loss to the BMZ law firm as if she committed
actionable malpractice[;] there is no doubt that the
firm’s malpractice insurance company would not have
provided coverage for acts performed by a nonlawyer.
5. The negative effect on the reputation in general on
members of the Huntingdon County Bar Association as
a whole.
6. The fact that the filing of only one count of each of the
three charges does not in any way accurately reflect
the scope and extent of [Appellant’s] criminal
deception and conduct.
7. A lesser sentence would depreciate the seriousness of
the crimes, and
8. The sentence imposed is in the interests of justice due
to the circumstances of this case.
N.T., 7/19/2016, at 48-50.
Appellant first contends the trial court “appears to have been guided
by its own sense of injury with regard to the fraud” and argues that the
sentence imposed was the product of the “irreconcilable conflict” and
“unsound reasoning” of a judge who felt personally aggrieved by Appellant’s
actions. Appellant’s Brief at 44-45. We disagree. To the contrary, the
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record evidences that the trial court considered the appropriate sentencing
factors and did not act out of bias or ill-will toward Appellant. Indeed, if, as
Appellant suggests, being a member of the legal profession disqualifies the
court from sentencing Appellant, there would, arguably, be no one available
to do the job.
Appellant next argues that the court abused its discretion when it
“explicitly sentenced [Appellant] as if the prosecution had charged, tried and
convicted her for multiple counts of fraud, rather than the singular [(sic)]
count charged, tried and convicted. Through its actions, the court usurped
prosecutorial discretion, one of the key features of fairness in our judicial
system.” Appellant’s Brief at 46. However, it is well-settled that “[w]hen
imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). Consistent
with this mandate, the disparity between the number of crimes charged and
the extent and nature of Appellant’s deception was but one factor the court
evaluated in imposing sentence. We discern no abuse of discretion in the
court’s acknowledgment that, although charged as a single offense,
Appellant’s conduct was ongoing and pervasive.
For the foregoing reasons, we conclude that Appellant has failed to
demonstrate that “the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
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arrived at a manifestly unreasonable decision.” Commonwealth v.
Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quoting Commonwealth
v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)). Accordingly, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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