Com. v. Pantalion

Citation957 A.2d 1267,2008 PA Super 226
Decision Date26 September 2008
Docket NumberNo. 1379 MDA 2007,1379 MDA 2007
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Sunceray B. PANTALION, Appellant.
CourtSuperior Court of Pennsylvania

James P. Goodman, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

BEFORE: GANTMAN, ALLEN, and HUDOCK, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Sunceray B. Pantalion, appeals from the judgment of sentence entered in the Schuylkill County Court of Common Pleas, following her guilty plea to one count each of forgery,1 tampering with record s,2 theft by unlawful taking,3 and theft by deception.4 Appellant asks us to determine whether the trial court erred in grading forgery of a money order as a second-degree felony. We hold Appellant's negotiation of a counterfeit United States Postal Service money order constituted a second-degree felony under the forgery statute. Accordingly, we affirm.

¶ 2 The relevant facts and procedural history of this case are as follows. On September 13, 2005, Appellant signed and redeemed a counterfeit United States Postal Service money order in exchange for seven hundred dollars ($700.00) at Boyer's Food Market in Shenandoah Borough, Schuylkill County. On May 30, 2006, the Commonwealth charged Appellant in an information with forgery graded as a second-degree felony, tampering with records, theft by unlawful taking, and theft by deception. On May 31, 2007, Appellant entered a guilty plea to all charges. On July 10, 2007, the court sentenced Appellant to eleven and one-half (11½) to twenty-three (23) months' imprisonment on the forgery offense plus a concurrent six (6) to twelve (12) months' imprisonment on the theft by unlawful taking offense. The remaining charges merged for sentencing purposes.

¶ 3 On July 12, 2007, Appellant filed a motion to withdraw her guilty plea. At the hearing on July 30, 2007, Appellant testified that she was innocent and had entered her guilty plea out of concern over the cost of taking her case to trial.5 Appellant also expressed dissatisfaction with the sentence imposed. The court denied Appellant's motion to withdraw her plea on August 2, 2007. Appellant timely filed her notice of appeal on August 9, 2007. That same day, the court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant timely filed her Rule 1925(b) statement on August 30, 2007.

¶ 4 Appellant raises two issues for our review:

WERE THE ACTS ADMITTED BY APPELLANT SUFFICIENT TO PROVE FELONY 2 FORGERY, SINCE A MONEY ORDER IS A COMMERCIAL INSTRUMENT?

DID THE COURT ERR WHEN IT FOUND APPELLANT DID NOT DEMONSTRATE PREJUDICE ON THE ORDER OF MANIFEST INJUSTICE WHEN APPELLANT EXPLAINED THAT SHE DID CASH THE MONEY ORDER BUT WAS NOT GUILTY OF FORGERY?

(Appellant's Brief at 2).6

¶ 5 On appeal, Appellant argues her forgery conviction involving a money order should have been graded as a third-degree felony, not as a second-degree felony. Appellant insists a money order is akin to a bank check, which has been categorized as a commercial instrument for purposes of grading under the forgery statute in Commonwealth v. Muller, 334 Pa.Super. 228, 482 A.2d 1307 (1984). Appellant maintains forgery of a commercial instrument is explicitly graded as a third-degree felony under the statute. Appellant further contends the legislature intended the second-degree felony grading to apply to documents which require special expertise to execute and the forgery of which can readily perpetuate widespread fraud and undermine confidence in widely circulating instruments representing wealth. Appellant suggests the money order she altered does not fall into this category of documents. Appellant avers if any ambiguity exists, the statute should be interpreted in her favor as the criminally accused; and the less severe third-degree felony grade should apply in her case. Appellant asserts the court's acceptance of her guilty plea to an incorrectly-graded offense constitutes a manifest injustice, because she was misinformed about the true nature of the crime and the consequences of her plea. Appellant concludes she is entitled to withdraw her guilty plea or, alternatively, have her case remanded for re-sentencing on the forgery charge.7 We disagree.

¶ 6 When an appellant enters a guilty plea, she waives her right to "challenge on appeal all non-jurisdictional defects except the legality of [her] sentence and the validity of [her] plea." Commonwealth v. Rush, 909 A.2d 805, 807 (Pa.Super.2006). A claim that the court improperly graded an offense for sentencing purposes implicates the legality of a sentence. Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa.Super.2004) (citing Commonwealth v. Passarelli, 789 A.2d 708, 714 (Pa.Super.2001)); Commonwealth v. Kisner, 736 A.2d 672, 673-74 (Pa.Super.1999). "The issue of whether a sentence is illegal is a question of law; therefore, our task is to determine whether the trial court erred as a matter of law and, in doing so, our scope of review is plenary. Additionally, the trial court's application of a statute is a question of law that compels plenary review to determine whether the court committed an error of law." Commonwealth v. Williams, 871 A.2d 254, 262 (Pa.Super.2005) (internal citations omitted). "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa.Super.2004) (quoting Commonwealth v. Kinney, 777 A.2d 492, 494 (Pa.Super.2001)).

¶ 7 Further, a defendant who attempts to withdraw a guilty plea after sentencing must demonstrate prejudice on the order of manifest injustice before withdrawal is justified. Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super.2002). "A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly, or unintelligently." Id. Under certain circumstances, a defendant who enters a guilty plea after the court communicates an incorrect maximum sentence may be considered to have entered her plea unknowingly and involuntarily. Commonwealth v. Lenhoff, 796 A.2d 338 (Pa.Super.2002). However, "every mistake in computing the possible maximum or advising the defendant of the possible maximum will [not] amount to manifest injustice justifying the withdrawal of a guilty plea; the mistake must be material to the defendant's decision to plead guilty." Commonwealth v. Barbosa, 819 A.2d 81, 83 (Pa.Super.2003).

¶ 8 The crime of forgery is defined and graded as follows:

§ 4101. Forgery

(a) Offense defined. — A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

(1) alters any writing of another without his authority;

(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or

(3) utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2) of this subsection.

* * *

(c) Grading. — Forgery is a felony of the second-degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments issued by the government, or part of an issue of stock, bonds or other instruments representing interests in or claims against any property or enterprise. Forgery is a felony of the third-degree if the writing is or purports to be a will, deed, contract, release, commercial instrument, or other document evidencing, creating, transferring, altering, terminating or otherwise affecting legal relations. Otherwise forgery is a misdemeanor of the first degree.

18 Pa.C.S.A. § 4101.8

¶ 9 The elements of the crime are the same for all grades of forgery. Commonwealth v. Smith, 883 A.2d 612 (Pa.Super.2005). The type of instrument involved determines the grade of a forgery charge. Id.; 18 Pa.C.S.A. § 4101(c). If the forged document is not enumerated under the grading provision, we must apply principles of statutory construction to designate an appropriate grading:

When construing a statute, our objective is to ascertain and effectuate the legislative intent. In pursuing that end, we are mindful that when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Indeed, as a general rule, the best indication of legislative intent is the plain language of a statute. Moreover, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, and any ambiguity in a penal statute should be interpreted in favor of the defendant. Additionally, when construing a statute, we must begin with a presumption that the General Assembly intends the entire statute to be effective and certain.

Commonwealth v. Ede, 949 A.2d 926, 930 (Pa.Super.2008) (quoting General Assembly intends the entire statute to be effective and certain. Commonwealth v. Tareila, 895 A.2d 1266, 1269 (Pa.Super.2006)). Moreover, "[u]nder the `doctrine [of] ejusdem generis (of the same kind or class), where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.'" Commonwealth v. Ryan, 909 A.2d 839, 842 n. 6 (Pa.Super.2006) (quoting Independent Oil and Gas Ass'n. of Pennsylvania v. Board of Assessment Appeals of Fayette County, 572 Pa. 240, 246, 814 A.2d 180, 184 (2002)).

¶ 10 Recently, this Court was asked to determine the...

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