Commonwealth v. Shamberger

McEWEN, President Judge Emeritus,

Dissenting:

¶ 1 While the author of the majority view has proposed quite a perceptive expression of rationale for rejection of each of the arguments of appellant, I am compelled to join the dissenting statement of President Judge Del Sole that the criminal conduct of appellant cannot be graded as a first-degree misdemeanor under 18 Pa.C.S. § 3903, because the purses were purloined from the floor of the theatre and not from the person of the victims.

¶ 2 It is my further view that the convictions for forgery must be reversed since the use by appellant of a fictitious name when he executed the police fingerprint cards did not compose a violation charged by the Commonwealth under the Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 4101(a)(2), which provides15:

§ 4101. Forgery
(a) Offense defined. — A person is guilty of forgery if, WITH INTENT TO DEFRAUD or injure anyone ...
(2) 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. § 4101(a)(2) (emphasis supplied).

¶3 Since it is undisputed that Kevin Price is not a real person, appellant did not, by signing the name Kevin Price, adopt the identity of a real person with the intent to defraud. Nor can it be said that the police were defrauded.

¶ 4 A basic tenet of our jurisprudence is that:

A fundamental principle of a government of laws is that a citizen may only be subjected to punishment for violation of expressly proscribed conduct, which is to say that a citizen may not be subjected to punishment for conduct which a prosecutor or editor, or even a neighborhood, or even a majority of the citizenry, perceives as offensive or wanting in style or taste or demeanor — nullum cri-men sine lege.

Commonwealth v. Cosgrove, 436 Pa.Super. 550, 648 A.2d 546, 548 n. 8 (1994), aff'd., 545 Pa. 71, 680 A.2d 823 (1996) (emphasis supplied).

¶ 5 Thus, prosecutors are obliged to be focused and precise16 at the charging stage, since overindictment reflects a lack of confidence in the ability of the prosecutor to establish the guilt of the core offenses, while wrongful indictment suggests *422professional irresponsibility, if not misuse of office.

. Although the Commonwealth charged appellant with violations of all three subsections of Section 4101(a), Subsection (a)(1) and (a)(3) are patently inapplicable to the conduct of appellant.

. It is not purposeful to here address whether the Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 4904, describing unsworn falsification to authorities, applies to this conduct of appellant. See: Commonwealth v. Miller, 414 Pa.Super. 56, 606 A.2d 495 (1992), appeal denied, 531 Pa. 639, 611 A.2d 711 (1992).