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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J-S14040-17


     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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J-S14040-17


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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J-S14040-17


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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J-S14040-17


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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J-S14040-17


     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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J-S14040-17



           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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J-S14040-17


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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J-S14040-17


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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