Commonwealth v. Williams

DISSENTING OPINION BY

COLVILLE, J.:

I dissent.

Among his several convictions, Appellant was found guilty of forgery. More specifically, Appellant was convicted of violating 18 Pa.C.S.A. § 4101(a)(1). Subsection 4101(a)(1) states, “A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor ... alters any writing of another without his authority!.]” 18 Pa.C.S.A. § 4101(a)(1).

Under his second issue, Appellant contends, inter alia, that the Commonwealth failed to present sufficient evidence to prove that he “altered a writing of another without permission!.]” Appellant’s Brief at 24. My review of the record confirms Appellant’s contention.

The trial court and the Majority both acknowledge that Appellant was convicted of violating Subsection 4101(a)(1). Trial Court Opinion, 07/26/12, at 1 (“Following a motion to suppress ... and a non-jury trial ..., [Appellant] was convicted of 18 Pa.C S. § 4101(a)(1) (2012) Forgery (F3).... ”); Majority Opinion at 620 n. 1 (noting that Appellant was convicted of violating 18 Pa.C.S.A. § 4101(a)(1)). Yet, in determining that the evidence was sufficient to support Appellant’s forgery conviction, the trial court concluded that the Commonwealth proved that Appellant executed or transferred a writing claiming to be an act of another. (Trial Court Opinion, 07/26/12, at 7-9). Stated differently, the court found that the evidence was suf*620ficient to support a conviction under 18 Pa.C.S.A. § 4101(a)(2).1 The Majority agrees with the trial court’s analysis. Majority Opinion at 618-19. Because Appellant was not convicted of violating Subsection 4101(a)(2), I cannot agree with the trial court’s analysis.

Regarding Appellant’s first issue, I believe the trial court erred by denying Appellant’s motion to suppress. Officer Garrett testified that he reached into the bag and grabbed the receipt. N.T., 11/08/11, at 8. He, however, did not testify that it was immediately apparent to him that the receipt was incriminating. The officer did not notice that the receipt indicated that the objects in the bag were purchased with a credit card until after he grabbed the receipt. Id. Thus, I cannot agree with any conclusion that the officer’s seizure of the receipt was permissible under the plain view doctrine.

Moreover, the record establishes that two officers approached Appellant, with one officer at each of his sides. Id. at 7. Officer Garrett asked Appellant from where he was coming. Id. Appellant did not give a response. Id. at 7-8. The officer then asked Appellant his name, and Appellant gave him the wrong name. Id. at 8. At that point, the officer reached into the bag and grabbed the receipt. Id.

In my view, upon the grabbing of the receipt, after the two officers approached and questioned Appellant, the officers displayed a show of force such that a reasonable person would not have felt free to leave. Thus, at this point, I believe the officers subjected Appellant to a custodial detention. I further conclude that the officers lacked probable cause to justify the seizure of the receipt and Appellant. Thus, the evidence the officers obtained from this point forward was acquired in an unconstitutional manner. Consequently, I agree with Appellant that the trial court erred by denying his motion to suppress.

For these reasons, I would reverse Appellant’s judgment of sentence as it relates to his forgery conviction. I also would reverse Appellant’s forgery conviction. In addition, I would vacate the remainder of Appellant’s judgment of sentence, vacate the remaining convictions, and reverse the order denying his motion to suppress. I would remand the matter to the trial court for further proceedings consistent with this Dissenting Opinion.

. Subsection 4101 (a)(2) states:

A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor ... makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed!-]

18 Pa.C.S.A. § 4101(a)(2) (emphasis added).