Commonwealth v. Kitchen
162 A.3d 1140
| Pa. Super. Ct. | 2017Background
- Kimberly M. Kitchen was charged and convicted (non-jury) of unauthorized practice of law, forgery, and tampering with public records after holding herself out as a licensed attorney from ~2005–2014.
- Allegations included fabricated documents (attorney license, bar results, university attendance, registration payment) and filing false documents with county offices representing she was an attorney.
- Trial court found her guilty on March 24, 2016; she was later confined for a psychiatric exam before sentencing.
- On July 19, 2016 Kitchen was sentenced: tampering with public records — 2 years + 1 day to 5 years (concurrent), forgery — 1–2 years concurrent, and probation for unlawful practice; fines and costs imposed.
- Appeal raised (1) sufficiency of evidence to grade tampering as a 3rd-degree felony (intent to defraud), and (2) discretionary sentencing challenge to an above-guidelines sentence.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Kitchen) | Held |
|---|---|---|---|
| Whether evidence proved intent to defraud to grade tampering as a 3rd-degree felony | Kitchen’s decade-long misrepresentations, fabricated documents, use of attorney identifiers, and personal/economic benefit show intent to defraud clients and firm | Intent to defraud not shown; no proof of pecuniary loss to clients, some clients satisfied, harm remediated — thus only misdemeanor grading justified | Court affirmed felony grading: totality of evidence supports intent to defraud (clients and firm deceived; benefit and reputational/financial harm inferable) |
| Whether the trial court abused discretion by sentencing outside guideline range | Above-guideline sentence justified by scope/duration of deception, systemic impact on firm and bar, remediation costs, potential malpractice exposure, and need to reflect seriousness | Sentence excessive, guided by judge’s personal sense of injury and effectively punished as if multiple fraud counts were prosecuted | No abuse: court gave contemporaneous, specific reasons for upward departure; considered factors and did not act from bias |
Key Cases Cited
- Commonwealth v. Tukhi, 149 A.3d 881 (Pa. Super. 2016) (standard for sufficiency review)
- Commonwealth v. Scott, 146 A.3d 775 (Pa. Super. 2016) (factfinder determines credibility/weight)
- Rohm & Haas Co. v. Conti CAS Co., 781 A.2d 1172 (Pa. 2001) (definition and elements of fraud; concealment as misrepresentation)
- Bartz v. Noon, 729 A.2d 555 (Pa. 1999) (elements required for civil fraud claim)
- Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014) (sentencing is within judge’s discretion; factors to consider)
- Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) (requirements to invoke appellate review of discretionary aspects of sentence)
- Commonwealth v. Hanson, 856 A.2d 1254 (Pa. Super. 2004) (departure from guidelines presents substantial question)
- Commonwealth v. Shull, 148 A.3d 820 (Pa. Super. 2016) (requirements for reasons supporting outside-guidelines sentence)
- Commonwealth v. Baker, 72 A.3d 652 (Pa. Super. 2013) (presumption that court considered PSI and relevant factors)
- Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 2002) (court must consider offense circumstances and defendant’s character at sentencing)
- Commonwealth v. Johnson, 125 A.3d 822 (Pa. Super. 2015) (appellant must show sentencing court ignored/misapplied law or reached manifestly unreasonable decision)
- Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 2013) (standard for abuse of discretion in sentencing)