The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, affirming the defendant’s conviction for forgery where the evidence showed that the defendant cashed a check that he knew should not have been made out to him. This decision is problematic for future forgery defendants as it could make it easier for prosecutors to prove that a given defendant had the knowledge necessary to be convicted of forgery.
The Facts of Commonwealth v. Green
In August 2015, St. Moritz Labor Services, a temporary staffing agency, discovered 18 checks drawn on its account that had not been issued in accordance with company procedures. These checks were fraudulent duplicates of lawfully issued checks. The payees were not known to St. Moritz. Further, the amounts on the checks were much higher than St. Moritz standard payroll checks. One of these checks was made payable to the defendant. The defendant never worked for St. Moritz and had no affiliation with that entity. On August 3, 2015, the defendant cashed a St. Moritz check at a local K-Mart.
St. Moritz reported the checks to the police, and the police began an investigation. During the course of their investigation, Officer Green of the Whitehall Police Department contacted the defendant and asked to speak with him regarding a cashed check. According to Officer Green, the defendant stated “[I] only did it once.” After he was given his Miranda rights, the defendant stated that he cashed the check to pay off fines. The defendant stated that he received the check in the mail and he did not know where the check came from or who sent the check. The defendant confirmed that he never worked for St. Moritz and admitted that he did not have any reason to receive a check from that company.
Police arrested the defendant and charged him with forgery, access device fraud, and bad checks. At the preliminary hearing, a magistrate judge dismissed the access device fraud and bad check charges. The defendant proceeded by way of bench trial, and the judge found him guilty and sentenced him to two years’ reporting probation and restitution. The defendant then filed a timely appeal. On appeal, a divided Superior Court panel reversed the judgment of sentence. Thereafter, the Commonwealth sought en banc review, which the Superior Court granted. On appeal, the defendant challenged whether the evidence was sufficient to satisfy the mens rea element of the forgery charge.
What is Forgery?
18 Pa. C.S.A. § 4101 provides for the crime of forgery. A person is guilty of forgery if, with the intent to defraud or injure anyone, the actor either: 1) alters a writing without his authority; 2) makes, completes, executes…issues or transfers a writing so that it purports to be the act of another who did not authorize the act; or 3) utters any writing that he knows to be forged.
As a practical matter, forgery is a difficult crime for the Commonwealth to prove. The Commonwealth typically needs multiple witnesses to prove their case, which often makes it difficult for the Commonwealth to get ready for a preliminary hearing or trial. Because prosecutors may not use hearsay evidence at a trial, they often have significant problems in proving forgery cases. For example, prosecutors generally need to present the testimony of the witness or witnesses who saw a defendant use the allegedly forged instrument, the officer who arrested him or her, the detective or bank investigator who investigated the case, and a custodian of records from the organization that owns the checking account in question. Getting all of these witnesses to appear at the same time can be difficult, and the failure to do so often results in the dismissal of cases.
Additionally, proving the mens rea for forgery is also difficult for the Commonwealth. Forgery is not a strict liability crime. In other words, just because one possesses a forged check does not mean that one is guilty of forgery. As such, trial courts are supposed to heavily scrutinize a defendant’s actions to see if they are guilty of this offense and whether there is any evidence that the defendant actually forged the document or had reason to know that the document was in fact forged. One of the seminal cases on this issue (and one that was analogized in the instant case) was Commonwealth v. Gibson. In Gibson, the Pennsylvania Superior Court held that the defendant in that case did not commit the crime of forgery even though he possessed a forged check. The reason was because, in Gibson, the circumstances did not show that he was trying to commit a fraud or any other type of wrongdoing. After presenting the forged check, the defendant in Gibson presented his identification when asked for it, did not attempt to flee when asked for said identification, and otherwise did not engage in any suspicious behavior when he attempted to cash said check. Because of the lack of suspicious or criminal behavior, the Pennsylvania Superior Court held that the Commonwealth failed to prove that the defendant knew that the check was forged. Without the requisite level of knowledge, a defendant cannot be convicted of forgery.
A Divided Pennsylvania Superior Court Affirms the Defendant’s Conviction
In this case, a divided en banc panel of the Pennsylvania Superior Court affirmed the defendant’s conviction for forgery. In the split decision, the Pennsylvania Superior Court held that, unlike the defendant in Commonwealth v. Gibson, the defendant possessed the requisite mens rea to commit the crime of forgery. Specifically, the majority opinion focused on the defendant’s statement to the police that “he only did it once.” According to the Court, this statement and the defendant’s admission that he had no affiliation with St. Moritz or any reason to receive a check from them established that he had the necessary mens rea to justify a forgery conviction.
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