J-S24012-20
2020 PA Super 295
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EVAN D. BALLARD :
:
Appellant : No. 2662 EDA 2019
Appeal from the Judgment of Sentence Entered August 5, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000845-2019
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
CONCURRING & DISSENTING OPINION BY BENDER, P.J.E.:
FILED DECEMBER 22, 2020
I concur with the Majority’s rationale for reversing Appellant’s
conviction for identity theft. However, I must respectfully disagree with the
Majority’s conclusion that the evidence was sufficient to sustain Appellant’s
conviction for access device fraud. Accordingly, I concur and dissent.
I part with the Majority on the meaning of the phrase, “can be used,” in
the definition of “access device.” See 18 Pa.C.S. § 4106(d). Citing Merriam-
Webster’s Online Dictionary, the Majority states that the word “‘can’ means
‘be inherently able or designed to’ and is ‘used to indicate possibility.’”
Majority Opinion at 7 (footnote omitted). The Majority then concludes that
any credit card, whether capable of working or not, “is an access device
because it is a card designed ‘to obtain money, good[s], services, or anything
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* Retired Senior Judge assigned to the Superior Court.
J-S24012-20
else of value’ and/or designed ‘to transfer funds.’” Id. (quoting 18 Pa.C.S. §
4106(d)).
However, as the Majority recognizes, we must construe statutory
language according to its common usage. See id. (quoting Commonwealth
v. Hall, 80 A.3d 1204, 1212 (Pa. 2013)). In my view, the common usage of
the word “can” is “be physically or mentally able to,” which is the first
definition listed in the same dictionary cited by the Majority.1 Additionally,
the at-issue statutory phrase also contains the word “used,” which means
“employed in accomplishing something[.]”2 Therefore, the common usage
of the phrase, “can be used,” requires that a credit card be physically able
to be employed to “obtain money, goods, services or anything else of
value[,] or … to transfer funds” to constitute an “access device.” 18 Pa.C.S.
§ 4106(d).
This interpretation does not “produce the absurd result of penalizing
individuals who cancel stolen or missing credit cards and absolving defendants
who happen to have stolen from a prudent card-holder.” Majority Opinion at
8. If an individual intends to commit access device fraud, and takes “a
substantial step toward the commission of that crime” by stealing a working
credit card, he or she could be prosecuted for attempted access device fraud
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1 Can, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/can (last visited Nov. 18, 2020).
2 Used, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/used (last visited Nov. 18, 2020).
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J-S24012-20
(or theft), regardless of whether the owner canceled the card. See 18 Pa.C.S.
§ 901(a) (defining criminal attempt).
Accordingly, I would conclude that, to sustain Appellant’s conviction
under 18 Pa.C.S. § 4106(a)(3), the Commonwealth was required to prove that
he possessed a credit card that was able to be employed to “obtain money,
goods, services or anything else of value or … to transfer funds.” 18 Pa.C.S.
§ 4106(d).3 The Commonwealth failed to meet this burden. No witness
observed Appellant (or anyone else) use, or attempt to use, any of the cards
found in his possession. Moreover, while Officer Fuller’s testimony
established that there were account numbers linked to four of the cards, the
officer did not testify that he verified the authenticity of those account
numbers, or that the return of account numbers on the scanner proved —
or even circumstantially suggested — that the cards could be used to obtain
cash, make a purchase, or transfer funds. Therefore, I would hold that the
Commonwealth did not present sufficient evidence to establish that any
credit card possessed by Appellant was an “access device,” and I would
reverse his conviction for that offense.
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3 This panel’s disagreement regarding the meaning of the statutory language
may arguably establish its ambiguity. See, e.g., Commonwealth v.
Giulian, 141 A.3d 1262, 1268 (Pa. 2016) (“When the parties read a statute
in two different ways and the statutory language is reasonably capable of
either construction, the language is ambiguous.”). In that case, I would still
hold that my interpretation of the statute prevails under the rule of lenity.
See Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa. Super. 2004) (“Any
ambiguity concerning the ambit of a penal statute must be resolved in favor
of lenity.”).
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