Opinion
J-S69011-15 No. 494 EDA 2015
01-27-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. ALEXIS A. BROWN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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). We affirm Appellant's convictions but vacate and remand for resentencing.
18 Pa.C.S.A. §§ 3922(a)(1); 4911(a)(2); 4101(a)(2); 62 P.S. § 481, respectively.
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, 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?
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?(Appellant's Brief at 6-7).
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.
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 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) 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, 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); (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.
Appellant also failed to disclose his purported earnings to the Public Welfare agency.
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.
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 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 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 statutes42 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).
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.
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, 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 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).
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-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.
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.
(5) The amount involved is $100,000 or more but less than $500,000.18 Pa.C.S.A. § 3903. Additionally, the Public Welfare Code provides the following grading for a false statements conviction:
(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.
* * *
§ 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 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 Assistanceor Food Stamps | Degree of Crime |
|---|---|
| $3,000 or more | Felony of the third degree |
| $1,500 to $2,999 | Misdemeanor of the firstdegree |
| $1,000 to $1,499 | Misdemeanor of thesecond degree |
| $999 and under, or anattempt to commit anyact prohibited insubsection (a) | Misdemeanor of the thirddegree |
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 counsel regarding the grading of Appellant's offenses for sentencing purposes:
[THE COURT]: All right, we are here for sentencing.(N.T. Sentencing, 1/16/15, at 3; R.R. at Exhibit E) (emphasis added). The Commonwealth also offered the following sentencing recommendation:
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, 3 to 14 in the standard range, level three, felony three; forgery M-1, R.S. to 9, level two.
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.
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.
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.( Id. at 16; R.R. at Exhibit E) (emphasis added).
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.
The court referred to Appellant's false statements conviction as welfare fraud.
Appellant's theft and false statements were actually level two offenses of varying degrees from third-degree felony to first-degree misdemeanor.
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 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. ( 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). 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.
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.
Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2016
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