Commonwealth v. Hughes

986 A.2d 159, 2009 Pa. Super. 240, 2009 Pa. Super. LEXIS 4963, 2009 WL 4756418

• Court: Superior Court of Pennsylvania
• Decided: December 14, 2009
• Docket: 177 MDA 2009
• Status: Published

Opinions

OPINION BY

HUDOCK, J.:

¶ 1 Appellant, Brian Hughes, appeals from the order dated January 20, 2009, dismissing his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

¶ 2 The facts and procedural history are as follows. The Commonwealth charged Appellant with one count each of forgery, identity theft, theft by deception, and criminal conspiracy¹ after Appellant and two co-defendants signed Benjamin Maurer’s name without consent, or fraudulently induced him to sign his name, to a total of seven cashier checks and then cashed them. Appellant entered an open guilty plea to the charges on July 2, 2007. On October 3, 2007, the trial court sentenced Appellant to an aggregate term of three to 18 months’ imprisonment. On November 28, 2007, Appellant filed a pro se motion to withdraw his guilty plea and the trial court notified him that he failed to attach a corresponding order. Appellant did not respond and the trial court never ruled on Appellant’s motion. On July 2, 2008, Appellant filed a motion to reinstate his post-sentence rights nunc pro tunc, which the trial court denied.

¶ 3 On September 5, 2008, Appellant filed a pro se PCRA petition and the PCRA court appointed counsel to represent Appellant. The PCRA court initially denied Appellant relief without a hearing in an opinion dated December 1, 2008. On December 18, 2008, Appellant filed a counseled response requesting a hearing to resolve a challenge to the legality of his sentence. Specifically, Appellant argued that the Commonwealth inappropriately graded the forgery charge as a second-degree felony instead of a third-degree felony. Following a hearing, the PCRA court denied relief. This timely appeal followed.

¶ 4 Appellant presents the following issue for our review:

Whether the trial court erred when it dismissed [Appellant’s] Post Conviction Relief Act petition?

Appellant’s Brief at 4 (complete capitalization omitted).

¶ 5 Specifically, Appellant contends that the trial court incorrectly graded the forgery offense as a second-degree felony. Id. at 6. He argues that cashier’s checks are “commercial instruments” and because the Crimes Code grades forgery of commercial instruments as a third-degree felony, his crime should have been graded accordingly. Id. at 7-9.

¶ 6 Initially, we note that Appellant is challenging the legality of his sentence. See Commonwealth v. Tustin, 888 A.2d 843, 845 (Pa.Super.2005) (holding that a claim of improper grading of an offense challenges the legality of a sentence). “[T]he determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary.” Commonwealth v. Williams, 868 A.2d 529, 532 (Pa.Super.2005), appeal denied, 586 Pa. 726, 890 A.2d 1059 (2005). “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)(en banc) (citation omitted). “Moreover, challenges to an illegal sentence can never be waived and may be reviewed sua sponte by this Court.” Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.Super.2003) (en banc) (citation and quotations omitted).

¶ 7 “The substantive portion of the forgery statute, which sets forth the elements of the crime, is the same for all grades of forgery.”² Commonwealth v. Smith, 883 A.2d 612, 614 (Pa.Super.2005). “The distinctions in the grading provision of the statute go to the type of writing involved.” Id. (emphasis in original). Specifically, the Crimes Code grades forgery as follows:

(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).

¶ 8 Here, the trial court determined that a cashier’s check is an issue of money, rather than a commercial instrument. Trial Court Opinion, 12/1/2008, at 8-9. Because a cashier’s check is not specifically delineated in the forgery statute, the trial court relied upon the legal definition of a cashier’s check, set forth in Black’s Law Dictionary, in making its determination. Id. at 8. Ultimately, it found the offense was properly graded as a second-degree felony. Id. at 8-9.

¶ 9 As set forth above, the forgery grading provision does not specifically enumerate what type of writing a cashier’s check constitutes. As such, we must interpret the statute, mindful of the following principles:

[T]he Statutory Construction Act of 1972 (“Act”) ... 1 Pa.C.S.A. § 1501 et seq ... instructs, in relevant part that, the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly, and [w]hen 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. 1 Pa.C.S.A. § 1921(a), (b). A court should resort to other considerations, such as the General Assembly’s purpose in enacting a statute, only when the words of a statute are not explicit. 1 Pa.C.S.A. § 1921(c). The Act also provides that [wjords and phrases shall be construed according to the rules of grammar and according to their common and approved usage, but that technical words and phrases and such others as have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning. 1 Pa.C.S.A. § 1903(a). Finally, in ascertaining the General Assembly’s intent, we may presume that the General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable. 1 Pa.C.S.A. § 1922(1).

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super.2008)(quotations omitted), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008).

¶ 10 Our recent decision in Commonwealth v. Pantalion, 957 A.2d 1267 (Pa.Super.2008) is instructive. Therein, a defendant challenged the grading of forgery of money orders as a second-degree felony that, like a cashier’s check, is not defined in the forgery grading provision. In Pan-talion, we determined that writings that qualified as second-degree forgery felonies are those with “intrinsic value.” Id. at 1273 (citation omitted). Relying on the Model Penal Code, we found 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 the widely circulating instruments representing wealth.’ ” Id., citing Model Penal Code § 224.1, Explanatory Note.

¶ 11 We ultimately determined that

[w]ith respect to money orders, they are instruments to facilitate the transmission of money. A money order is drawn by the issuer upon itself and issued to the purchaser as evidence that the issuer has received a specified sum of money from the purchaser and agrees to pay that sum to the payee or holder of the money order. Money orders qualify as negotiable instruments pursuant to the Commercial Code. As such, a money order is a financial document which contains an unconditional promise or order to pay a sum certain in money and is payable on demand to the bearer. A money order may be presented in exchange for cash. It may also be used to purchase goods at a commercial establishment. Because of their intrinsic monetary value, money orders can readily be the means of perpetrating widespread fraud, and the forgery of money orders can undermine confidence in these instruments for transmission of money.

Id. at 1273-74 (citations and quotations omitted).

¶ 12 “In contrast, documents compromising third-degree felonies are writings which create or otherwise affect legal relations.” Id. at 1273 (citation omitted). Examples of cases involving third-degree forged writings include, but are not limited to, the following: Commonwealth v. Ryan, 909 A.2d 839 (Pa.Super.2006) (building permits); Commonwealth v. Lenhoff, 796 A.2d 338 (Pa.Super.2002) (gun applications); Commonwealth v. Sargent, 823 A.2d 174 (Pa.Super.2003) (credit card receipts); and Commonwealth v. Sneddon, 738 A.2d 1026 (Pa.Super.1999) (cash register receipts).

¶ 13 A cashier’s check is defined by the Commercial Code as “a draft with respect to which the drawer and drawee are the same bank or branches of the same bank.” 13 Pa.C.S.A. § 3104(g). Similarly, Black’s Law Dictionary defines a cashier’s check as:

A bank’s own check drawn on itself and signed by the cashier or other authorized official. It is a direct obligation of the bank. One issued by an authorized officer of a bank directed at another person, evidencing that the payee is authorized to demand and receive upon presentation from the bank the amount of money represented by the check. A form of a check by which the bank lends its credit to the purchaser of the check, the purpose being to make it available for immediate use in banking circles. A bill of exchange drawn by a bank upon itself, and accepted by the act of the issuance. In its legal effect, it is the same as a certificate of deposit, certified check or draft.

Blaok’s Law Dictionary 237 (6th ed. 1990) (emphasis added); see also id. at 217.

¶ 14 Here, Appellant pled guilty to forging cashier’s checks in return for thousands of dollars of cash. Because a bank is directly obligated to make payment on a cashier’s check upon demand to facilitate immediate funds for use in banking circles, and based on our holding in Pantalion, we conclude that cashier’s checks are items of “intrinsic value” similar in form and function to money orders. Like money orders, cashier’s checks “can readily be the means of perpetrating widespread fraud” and the forgery of cashier’s checks “can undermine confidence in these instruments for transmission of money.”³ Pantalion, 957 A.2d at 1274.

¶ 15 Additionally, we note that Appellant’s reliance on our decision in Commonwealth v. Muller, 334 Pa.Super. 228, 482 A.2d 1307 (1984) is misplaced. In that case, we determined that forged personal checks were commercial instruments and graded as third-degree felonies. As explained in detail above, cashier’s checks are issued by the bank while personal checks are not. A bank guarantees funds when issuing a cashier’s check; as such, the issuance is akin to the transmission of money. In contrast, a personal check is subject to verification of available funds before release, thereby making it a commercial instrument. Muller, 482 A.2d at 1311, citing 13 Pa.C.S. § 3104(b) and (c). For all of the foregoing reasons, we conclude that the trial court in this ease properly graded the forgery offense as a second-degree felony and Appellant is not entitled to collateral relief.

¶ 16 Order affirmed.

¶ 17 FITZGERALD, J., files a Dissenting Opinion.

1 . 18 Pa.C.S.A. §§ 4101, 4120, 3922, and 903, respectively.

2 . The elements of the crime of forgery are not at issue instantly.

3 . Moreover, while certainly not binding, we are persuaded by the following rationale:

Cashier's checks are used and, in fact, are often requested because they, unlike cash, checks, or other negotiable instruments, do not carry the normal risks of loss, counterfeit, litigation, or insolvency inherent in those other instruments. A cashier's check is the bank's obligation rather than the drawer's personal obligation. Therefore, people accept a cashier’s check as a substitute because they trust the bank's obligation and believe it to be almost unshakable. This general belief in the validity of cashier’s checks shows the credit substitution function for which they are used. The bottom line to a person's request to be paid by a cashier’s check is that person's belief that receipt of the cashier’s check should remove all doubt as to whether it will be returned because of insufficient funds in the drawer’s account, a stop-payment order, the drawer’s insolvency, or any other reason. The bank's obligation releases the recipient of a cashier's check from these concerns.

Other attributes of cashier's checks are that they provide increased acceptability, they are less vulnerable to the risks of loss and theft, and persons without checking accounts often use cashier's checks when they do not want to pay cash.

Douglas J. Landy, Failure of Consideration is Not a Defense to a Bank’s Refusal to Pay a Cashier’s Check: Revised UCC § 3-411(c), 115 Banking L.J. 92, 102 (1998)(footnotes omitted).