Com. v. Ryan

• Decision Date: 12 October 2006
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joshua Russell RYAN, Appellant.
• Court: Pennsylvania Superior Court

909 A.2d 839

COMMONWEALTH of Pennsylvania, Appellee, v. Joshua Russell RYAN, Appellant.

Superior Court of Pennsylvania.

Argued May 2, 2006.

Filed October 12, 2006.

David F. Pollock, Waynesburg, for appellant.

Marjorie J. Fox, Asst. Dist. Atty., Waynesburg, for Com., appellee.

BEFORE: MUSMANNO, TODD, and JOHNSON, JJ.

OPINION BY TODD, J.:

¶ 1 Joshua Ryan appeals the July 19, 2005 judgment of sentence imposed by the Greene County Court of Common Pleas after he was convicted by a jury of forgery.¹ For the reasons that follow, we vacate the judgment of sentence and remand for resentencing.

¶ 2 The trial court summarized the underlying facts of this case as follows:

The present case arose as a result of [Ryan] entering into a repair contract with the Econo Lodge Motel. Upon completion of the work, the motel owner requested a certification of the work by the township zoning officer before he would make final payment to [Ryan]. Apparently unknown by both the motel owner and [Ryan], such a certification of completion was not required by the township. However, in order to obtain final payment, [Ryan] presented the motel owner with a forged document containing the signature of the township zoning enforcement officer and as a result, received final payment for the work completed. Although the motel owner [did] not complain of receiving a forged document, the zoning enforcement officer, Steven Coss, did complain.

(Trial Court Opinion, 11/2/05, at 2.)

¶ 3 On July 30, 2004, a state police trooper filed a criminal complaint against Ryan, charging him with two counts of forgery,² each graded as a third-degree felony, and one count each of deceptive or fraudulent business practices³ and theft by deception.⁴ On September 23, 2004, the Commonwealth filed criminal informations grading both forgery counts as second-degree felonies. The case proceeded to a jury trial on May 19, 2005, where, upon completion of the Commonwealth's case, the charges of deceptive or fraudulent business practices and theft by deception were dismissed. At the same time, Ryan moved for a directed verdict on the forgery charges, which was denied. At the conclusion of the trial, Ryan was found guilty of the forgery charge involving an utterance of a writing known to be forged, but found not guilty of the other forgery charge. Ryan was sentenced on July 19, 2005 to 3 to 23½ months imprisonment. He timely filed post-sentence motions, which were denied, and this appeal followed, wherein he raises three issues for our review:

A. Did the trial court err in finding, as a matter of law and without submitting it to the jury, that the Appellant's guilty verdict was to a felony of the second degree?

B. Did the trial court err in not granting a new preliminary hearing after the Commonwealth raised the offense gravity from a felony of the third degree to a felony of the second degree?

C. Did the trial court err in not granting a directed verdict as to the two forgery counts since the Commonwealth drafted the informations listing the Econo Lodge as the victim instead of Franklin Township?

(Appellant's Brief at 3.)

¶ 4 In his first argument, Ryan questions whether the trial court erred in failing to submit the grading of the forgery offense to the jury. We find this issue to be waived, however, as Ryan failed to develop any argument in support of his position on this issue. Indeed, as the Commonwealth points out, he makes no mention of this issue, much less cites any authority in support of his position, in the argument section of his brief. Accordingly, the issue is waived. See Commonwealth v. Mitchell, 883 A.2d 1096, 1108 (Pa.Super.2005) (finding issue waived where appellant fails to adequately develop his argument), appeal denied, 587 Pa. 688, 897 A.2d 454 (2006).

¶ 5 Instead of addressing the specific issue he raises in his first statement of questions involved, Ryan argues in the corresponding argument section of his brief that the trial court erred in determining that the forgery offense of which he was found guilty was a second-degree felony. Although we could find this argument waived because Ryan did not specifically include it in his statement of questions involved, see Pa.R.A.P. 2116, we decline to do so as the issue arguably is suggested by his first question. Accordingly, we will address the issue.

¶ 6 Pursuant to 18 Pa.C.S.A. § 4101(c), forgery is graded as follows:⁵

(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(c). In this case, the trial court concluded that the forged building permit at issue, while obviously not an issue of money or a security, fell within the category of "other instruments issued by the government" and, as such, should be graded as a second-degree felony under Section 4101(c). Ryan argues that the building permit is not the type of document listed as constituting as a second-degree felony under the statute, and contends that "the nature of the document, that being one that affects legal relations, is, at it's [sic] most severe grading, a Felony III, but more likely a misdemeanor." (Appellant's Brief at 7.) While we do not find the forgery of a building permit to be a misdemeanor, for the following reasons, we conclude that it is a felony of the third, not the second, degree.

¶ 7 As this Court recently recognized, the grading provision of the forgery statute is broadly written. Commonwealth v. Smith, 883 A.2d 612, 615 (Pa.Super.2005). According to the rules of statutory construction, where an ambiguity exists in the language of a penal statute, it should be interpreted in a light most favorable to the criminally accused. Id. We must also strictly construe the language of the statute. Id.

¶ 8 With these rules in mind, we conclude that a forged building permit is not the type of document the legislature intended to comprise a felony of the second degree. Although the permit purports to be issued by Franklin Township in Greene County, a government agency, it is different in kind and class from the documents enumerated in Section 4101(c) as qualifying for a felony two designation. Unlike money, securities, postage, revenue stamps, stocks, and bonds, a permit has no intrinsic value. Rather, it is a license to do something, in this case, build or alter a structure. Further, under the statutory construction doctrine of ejusdem generis,⁶ the reference in the statute to "other instruments issued by the government" must be limited to instruments of the same general nature or class as those preceding the phrase—that is, instruments with intrinsic value. Again, a permit has no intrinsic value.

¶ 9 Moreover, this conclusion is supported by the commentary to Section 224.1 of the Model Penal Code, on which Section 4101 is based and to which Section 4101(c), in particular, is identical. See 18 Pa.C.S.A § 4101, Historical and Statutory Notes; Model Penal Code § 224.1. The commentary states that the second-degree felony grading was intended to apply to "documents which require special expertise to execute, which can readily be the means of perpetrating widespread fraud, and the forgery of which can undermine confidence in widely circulating instruments representing wealth." Model Penal Code § 224.1, Explanatory Note. The forged building permit in this case does not match this description. For all these reasons, we find that the trial court erred in concluding that a building permit fell within the felony two class of writings, and thus erred in grading Ryan's forgery offense as a second-degree felony.

¶ 10 We do not agree with Ryan, however, that the forgery of a building permit is a misdemeanor rather than a third-degree felony. As noted above, Section 4101(c) provides that forgery is a felony three offense if it involves a document—such as a will, deed, contract, release, or commercial instrument—"evidencing, creating, transferring, altering, terminating or otherwise affecting legal relations." 18 Pa.C.S.A. § 4101(c). Although our research has disclosed no cases directly on point, we find several of this Court's decisions nonetheless instructive.⁷

¶ 11 In Commonwealth v. Sneddon, 738 A.2d 1026 (Pa.Super.1999), this Court concluded that the forgery of cash register receipts constituted a third-degree felony, relying on the following reasoning of the trial court:

[T]he Court is of the opinion that a cash register receipt is a "document evidencing . . . or otherwise affecting legal relations" under § 4101(c) above. Like a written contract or a deed, a cash register receipt is a writing which evidences a legal transaction. Specifically, a cash register receipt evidences a contract for the sale of goods between a buyer and a seller. The amount of the cash register receipt sets forth the consideration given for the goods. The receipt has value, since a buyer, upon returning a receipt to the seller, may receive a refund of monies, a store credit, or goods in kind. To alter a cash register receipt is to alter the legal relationship between a buyer and seller.

Sneddon, 738 A.2d at 1028 (quoting trial court opinion).

¶ 12 Relying on Sneddon, in Commonwealth v. Lenhoff, 796 A.2d 338 (Pa.Super.2002), we concluded that the forgery of a gun application (by the use of a false name) should be graded as at least a third-degree felony. We reasoned:

Appellant in this case was attempting to obtain the legal right to own a gun, and the...