PA Superior Court Lowers Bar for Forgery Convictions

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Attorney

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.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Forgery, Access Device Fraud, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Pulling Over to the Side of Road Is Not Suspicious

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hampton, holding that police illegally stopped the defendant by physically blocking in his car after the officer saw the defendant do nothing more than pull over to the side of the road. In Hampton, the Court rejected the idea that an officer can stop someone under the community caretaking exception to the warrant requirement just because they pulled over to the side of the road.

The Facts of Commonwealth v. Hampton

In Hampton, a Montgomery County, PA  police officer was on patrol in a marked vehicle at approximately 3:22 am. The officer saw a vehicle drive by her, turn, and then pull over into a field on a property belonging to a church. The driver, who was later identified as the defendant, stopped his car in the grass in front of the church’s office building. The officer pulled behind the car, but she did not activate her lights or sirens. She did, however, park her car in such a way that the car blocked the defendant’s ability to drive back onto the road. The defendant and his passenger eventually got out of their vehicle, and after an interaction with the officer, the officer ended up arresting the defendant for Driving Under the Influence.

The Motion to Suppress

After prosecutors charged the defendant with DUI, the defense lawyer filed a motion to suppress all of the evidence. The defendant argued that the officer stopped the defendant by physically blocking his car with her car without reasonable suspicion or probable cause. At the hearing on the motion to suppress, the officer admitted that she had “stopped” the defendant and that her car physically blocked his. She also admitted that she had not seen any evidence of ongoing criminal activity or motor vehicle code violations. However, she testified that she pulled in behind the defendant because she was concerned that he could be having some kind of medical emergency or car trouble. She also had not activated her lights or sirens. The trial court denied the motion to suppress. Because this was the defendant’s third DUI offense, the court sentenced the defendant to 1 – 5 years’ state incarceration.

The Superior Court Appeal

The defendant appealed the denial of the motion to suppress to the Pennsylvania Superior Court. The Superior Court ultimately overturned the conviction and found that the trial court should have granted the motion.

First, the Superior Court concluded that although the officer did not activate her lights or sirens or specifically tell the defendant to stop, the officer had stopped the defendant by physically blocking the movement of his car. Because the officer had conducted a stop for Fourth Amendment purposes, the officer was required to have reasonable suspicion, probable cause, or some other exception to the warrant requirement.

Second, the Superior Court concluded that the officer did not have reasonable suspicion or probable cause to stop the defendant because the officer candidly testified at the motion to suppress hearing that she did not see any criminal activity of any kind.

Third, the Superior Court rejected the trial court’s conclusion that the stop was justified by the community caretaking exception. Under the community caretaking exception, police may conduct a warrantless search or seizure under limited circumstances such as to render emergency aid when such aid is reasonably necessary. In order for the exception to apply, the officer’s actions must be motivated by a desire to render aid or assistance rather than the investigation of criminal activity. Additionally, the officer must be able to point to specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen is in need of assistance. Thus, the officer must have reasonably believed that an actual emergency was ongoing.

Here, the Superior Court rejected the application of the community caretaking exception because the defendant did nothing more than pull over to the side of the road. Such behavior is encouraged and perfectly consistent with innocent activity. A motorist may pull over the road to answer the phone, rest for a moment, check a map, or for any number of other legitimate reasons. Therefore, the community caretaking exception did not apply. Accordingly, the Court reversed the defendant’s conviction and remanded the case to the trial court with instructions to grant the motion to suppress.

This is a good case for Fourth Amendment rights because the Superior Court recognized the obvious fact that when a police officer in a marked car blocks someone’s ability to drive away, the officer has stopped that person for Fourth Amendment purposes. In many cases, courts attempt to characterize contact between police and defendants as a “mere encounter” which does not require any level of suspicion. Here, the Court recognized that any reasonable person in the defendant’s position would not have felt free to leave and therefore a stop had occurred. 

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Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in state and federal courts throughout Pennsylvania and New Jersey. We have obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, DUI, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: A really specific anonymous tip might be enough for a stop.

Criminal Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Price, holding that a very specific anonymous tip might provide the reasonable suspicion necessary for police to conduct a Terry stop. This case is a disastrous decision for civil liberties and Fourth Amendment rights which defies common sense and ignores decades of Pennsylvania Supreme Court and Superior Court precedent.

The Facts of Price

In Price, the defendant was charged with various firearms offenses including possession of a firearm by a prohibited person, firearms not to be carried without a license, and possession of a firearm in the City of Philadelphia. Price filed a motion to suppress the gun, and the trial court conducted a hearing on the motion.

At the motion to suppress hearing, the Commonwealth presented the testimony of a Philadelphia Police Officer. The officer testified that he was on routine patrol with his partner when he received a radio call to respond to the 5100 block of Willows Ave. The officer testified that he had been on the force for seven years, and he knew that the 5100 block of Willows Ave is an area where violent crime is prevalent. He testified that the radio call provided the information that a black male, wearing a white t-shirt and gray shorts, was driving a silver Lexus with a license plate reading GWL8569, and was carrying a firearm. The officer had also learned that the radio call was the result of a call to 911.

The officers drove to 51st and Willows Avenue within a minute of receiving the broadcast and found a silver Lexus stopped at a stop sign. The officers were able to see that the driver was a black male who was wearing a white t-shirt, and they saw that the license plate read GWL8568, meaning it differed only by one digit from the number provided to 911. The officers activated their lights and sirens and stopped the vehicle. The Lexus pulled over, and the officers approached the vehicle. They could then see that the defendant was wearing gray shorts in addition to the white t-shirt. The officers opened the door and asked the defendant to step out. He did, and as he got out, the officer could see that he had a large bulge in the stomach area of his waistband. The officers searched the defendant and found a gun in his waistband.

 As the officers were recovering the gun, a woman approached them. She told police that she was the person who had called 911 and that they had arrested the right guy. She asked the officers if they had recovered the gun. The officers noted that at first, this woman was standing outside of the defendant’s view and seemed to be nervous. She later told them that she had called 911 because she saw the defendant with the gun and bullets. She told the officers that she saw the defendant put bullets in the trunk. Police asked the defendant if there was anything else in the car, and he confirmed that there were bullets in the trunk.

The trial court denied the motion to suppress. The defense argued that at the time of the stop, police were relying on an entirely anonymous radio call and had no way to verify whether the call, no matter how specific, contained accurate and reliable information. Decades of Pennsylvania case law, including Commonwealth v. Jackson and Commonwealth v. Hawkins, have held that anonymous tips do not provide police with any level of reasonable suspicion or probable cause to make a stop unless the police are able to corroborate that information prior to the stop. Nonetheless, relying on a recent United States Supreme Court case, the trial court found that police had reasonable suspicion to stop the defendant based on the 911 call. The court reasoned, possibly without supporting evidence, that the 911 call center in Philadelphia has caller ID and can track who made the call, thereby ensuring that calls to 911 are not actually anonymous. Because people know that they may be tracked when calling 911, the court reasoned, they have an incentive not to call in with fake accusations. Therefore, the court denied the motion to suppress, and the defendant was eventually convicted of all of the gun charges.

The Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. Breaking with decades of precedent, the Superior Court affirmed the trial court’s reasoning. It also inexplicably concluded that because the 911 call center has caller ID, people would never call in incorrect information to 911 in order to harass someone else. Obviously, this reasoning is absurd and completely ignores the fact that most school-age children possess the technological prowess to use a “burner” phone or mask their true phone number or caller ID with an app. It also erroneously assumes that everyone knows (and cares) that their cell phone number could be tracked by 911 if they make a call. Accordingly, the court affirmed the trial court’s denial of the motion to suppress.

It is highly likely that this opinion will be appealed further. It is also important to note that the opinion relies entirely on federal law as the defendant in this case did not advance the argument that the Pennsylvania Constitution provides greater protections against stops based on anonymous tips than the United States Constitution. Whether such arguments will work in the future remains an open question. Finally, the tip in this case was extremely specific down to the make and model of the car, the defendant’s clothing, and the license plate of the vehicle. Nonetheless, this case substantially expands the power of the police to make stops based on anonymous radio calls. Such a power is extremely problematic because of the ease with which any citizen may mask his or her identity and call in an anonymous and false complaint against someone else to harass them. Normally, police are required to show that information was at least relatively trustworthy prior to acting on it. This opinion eliminates that requirement.

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Goldstein Mehta LLC Criminal Defense

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Out-Of-State Sale of Drugs Not a Defense to Drug Delivery Resulting in Death Prosecution

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Peck, holding that a defendant can be convicted of drug delivery resulting in death in Pennsylvania even if the defendant sold the drugs in a different state. This decision is concerning because it exposes people to more criminal liability for actions that occurred outside of Pennsylvania.  

Commonwealth v. Peck

The decedent lived in York County, Pennsylvania with his father. The decedent texted the defendant, and they met at a convenience store located ten miles south of the Pennsylvania border in Maryland. At the meeting in Maryland, the defendant sold the decedent heroin. After this meeting, the two continued to text. The decedent expressed concern that the heroin looked like a “rock,” to which the defendant replied that the heroin was “off the brick, purest of the pure” and told the decedent to try it. Further messages indicated that the decedent tried the heroin and then thanked the defendant for it.

The next day, the decedent’s father discovered the decedent. He was hunched over on the floor, and his body was stiff. His face was blue and had blood on it. His father immediately called 911. A Pennsylvania State Trooper responded to the call and found a “rock” of heroin on the decedent’s nightstand. He also found the decedent’s cell phone and read the text messages between the decedent and the defendant.

A criminal complaint was filed against the defendant charging him with possession with the intent to deliver (“PWID”) and drug delivery resulting in death. The defendant then filed a motion to dismiss the PWID charge because he sold the drugs in Maryland. However, the defendant did not file a motion to dismiss the drug delivery resulting in death charge. At the motions hearing, the Commonwealth conceded the motion to dismiss the PWID charge. The defendant then went to trial on the drug delivery resulting in death charge. A York County jury found the defendant guilty of drug delivery resulting in death despite the fact that the drugs had not been sold in Pennsylvania.

At the sentencing hearing, the trial court sentenced the defendant to the statutory maximum sentence of twenty to forty years’ imprisonment. The defendant then filed timely post-sentence motions requesting the dismissal of the conviction or a re-sentencing hearing. These motions were denied. The defendant then filed an appeal. His appeal focused on two issues: 1) whether the evidence was insufficient to sustain his conviction because he sold the drugs in Maryland, and 2) whether the trial court erred in imposing the statutory maximum sentence. For purposes of this post, only the issue of whether the evidence was sufficient to convict the defendant of drug delivery resulting in death will be discussed. However, for a more detailed analysis of a judge’s discretion in sentencing, please see our blog posts on the Superior Court’s decisions in Commonwealth v. Sarvey and Commonwealth v. Conte.

What is the crime of Drug Delivery Resulting in Death?  

18 Pa. C.S.A. § 2506 is the statute that governs the crime of drug delivery resulting in death. A person commits this offense if the person intentionally administers, dispenses, delivers, gives, etc. any controlled substance or counterfeit substance, in violation of the Controlled Substances Act, and another person dies as a result of using the substance. A defendant does not have to intend to kill the decedent to be convicted of this crime. Instead, the defendant must only intend to provide the decedent with the controlled substance. Further, a defendant can be found guilty even if the decedent has a controlled substance in their system other than the one that the defendant provided to the complainant. To convict, the Commonwealth only must show that the controlled substance that was given to the decedent was a direct and substantial factor in causing their death.

How Does Jurisdiction Work in Criminal Cases?

Jurisdiction can be a complicated issue. Even though the defendant in Commonwealth v. Peck did not technically argue that the trial court lacked jurisdiction to hear his case, his argument on appeal was basically a jurisdictional argument. As a preliminary matter, there are multiple types of jurisdiction. The subsequent paragraphs in this section will discuss the most common jurisdictional issues in criminal cases. However, if you are charged with a crime where you believe that jurisdiction may be an issue, you need an experienced defense attorney to handle your case.

The most basic example of jurisdiction is when it is based on geography. If a defendant commits a crime in Pennsylvania, usually only Pennsylvania would have jurisdiction to hear the case. A different state (i.e. New York) probably would not have jurisdiction over the case because the crime did not occur there. However, as Commonwealth v. Peck shows, Pennsylvania can have jurisdiction over a defendant when he commits a crime in a different state but the defendant’s actions have a consequence or “result” in Pennsylvania.

Another example of jurisdiction is federal and state jurisdiction. The federal government has jurisdiction over some offenses that states do not have (i.e. immigration offenses). However, there are plenty of crimes for which the federal government and the states share jurisdiction. For example, both the state and federal government have jurisdiction over cases involving drugs and guns. Unfortunately, as of now, state and federal governments can both prosecute a defendant for the exact same crime. This issue is currently before the United States Supreme Court, however most legal experts do not expect the Supreme Court to overturn this principle. In Pennsylvania, prosecutors may not file charges if the federal government has already prosecuted a defendant. The federal government, however, is not limited from filing charges even if a defendant has already been prosecuted in Pennsylvania state court.   

Jurisdiction is also relevant in determining whether a police officer legally stopped someone. Some police officers have very limited authority. For example, the South Eastern Pennsylvania Transportation Authority (hereinafter “SEPTA”) police officers do not have the same authority as regular Philadelphia Police Officers. SEPTA police officers are restricted to areas involving SEPTA property and customers. However, just because a police officer does not have jurisdiction to stop you does not mean that a court lacks jurisdiction over you to hear your case. As stated above, jurisdiction can be a very complicated issue, and if your case involves different jurisdictions, then you need an attorney who is knowledgeable on these complex issues.

What is the remedy if a court or police officer does not have jurisdiction to arrest me or hear my case?

There are different remedies for whether a court lacks jurisdiction versus whether a police officer lacks jurisdiction. If a court lacks jurisdiction, then the remedy is the dismissal of the case. This is what happened with the PWID charge in Commonwealth v. Peck. Because the PWID occurred in Maryland, the charge was dismissed. If Maryland wanted to prosecute the defendant, then they likely could, and he would not be able to get the case dismissed on jurisdiction grounds. However, if a police officer who lacks jurisdiction arrests a defendant, then the case will not be automatically dismissed. Instead, what will happen is that a defendant will be able to argue that the evidence seized as a result of the illegal seizure should be suppressed because the police officer lacked the authority, or jurisdiction, to stop the defendant in the first place.

Pennsylvania Superior Court affirms the defendant’s conviction

In a very limited opinion, the Superior Court affirmed the defendant’s conviction. The Superior Court rejected the defendant’s argument that there was not sufficient evidence to convict him of drug delivery in resulting in death because he sold the drugs to the decedent in Maryland. The Superior Court stated because the decedent died in Pennsylvania, there was sufficient evidence to convict him. In other words, the Superior Court stated it was inconsequential that the defendant sold the drugs in Maryland for him to be convicted of drug delivery resulting in death. Further, the Superior Court also affirmed his sentence, so he will not get a new sentencing hearing.   

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.