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Commonwealth v. Kitchen

Superior Court of Pennsylvania

May 16, 2017

COMMONWEALTH OF PENNSYLVANIA,
v.
KIMBERLY M. KITCHEN, Appellant

          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

          STRASSBURGER, J.

         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 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 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 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 ...


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