Com. v. Fredericks, K. ( 2020 )

J-S42045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTI FREDERICKS :
:
Appellant : No. 3245 EDA 2019
Appeal from the Judgment of Sentence Entered August 2, 2019
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002349-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTI FREDERICKS :
:
Appellant : No. 3246 EDA 2019
Appeal from the Judgment of Sentence Entered August 2, 2019
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003155-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTI FREDERICKS :
:
Appellant : No. 3247 EDA 2019
Appeal from the Judgment of Sentence Entered August 2, 2019
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001984-2017
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
J-S42045-20
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 15, 2020
Kristi Fredericks (“Fredericks”) appeals from the judgments of sentence
entered following her convictions of five counts of theft by deception; four
counts of forgery; three counts of tampering with records; two counts each of
unsworn falsifications, theft by failure to make required deposit, attempt to
commit theft by deception, and unauthorized practice of law; and one count
each of attempt to commit theft by unlawful taking, theft by unlawful taking,
and theft by extortion.1 We affirm in part, vacate the judgment of sentence,
and remand for resentencing.
Fredericks was formerly licensed as an attorney in the Commonwealth
of Pennsylvania and the State of New Jersey.2 Fredericks was charged on
June 30, 2017, at docket number CP-15-CR-0001984-2017 (“Docket No.
1984-2017”), September 20, 2017, at docket number CP-15-CR-0003155-
2017 (“Docket No. 3155-2017”), and July 24, 2018, at docket number CP-15-
CR-0002349-2018 (“Docket No. 2349-2018”), after an investigation revealed
that she had defrauded several of her clients between October 2013 and June
2016, and engaged in the unauthorized practice of law after she had been
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118 Pa.C.S.A. §§ 3922(a)(1), (2); 4101(a)(2), (3); 4104(a); 4904(b); 3927;
901(a), 3922(a)(1); 2524; 901(a), 3921(a)(1); 3921(a)(1); 3923(a)(4).
2 By Order of the Supreme Court of Pennsylvania, Fredericks was disbarred
from the practice of law in Pennsylvania, effective January 1, 2016.
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disbarred in Pennsylvania. The trial court, in its Opinion, summarized the
circumstances underlying Fredericks’s convictions as follows:
[Docket No.] 1984-2017
In or about July of 2014, [Fredericks], then licensed to
practice law in Pennsylvania, improperly wrote herself a check on
the Susquehanna [Bank] account of the Estate of G. Raymond
Elmer [(the “Elmer Estate”)], a client of [Fredericks], in the
amount of $28,972.50, without the knowledge, permission, or
consent of the executor of the [Elmer] Estate. [Fredericks] later
deposited the check into one of her own personal bank accounts.
In or about February of 2015, [Fredericks] … fabricated a Fee
Agreement Letter purportedly addressed to Raymond K. Elmer,
the executor of the [Elmer Estate], providing for a 15% attorney
fee instead of the 10% which had been previously agreed upon.
In or about November of 2014, [Fredericks] … improperly
wrote herself a check of [sic] the First Niagara [Bank (“First
Niagara”)] account of the Estate of Vera Ahern [(the “Ahern
Estate”)], a client of [Fredericks], in the amount of $9,000,
without the knowledge, permission or consent of the executor of
the [Ahern Estate]. [Fredericks] subsequently deposited the
check she wrote to herself on the [Ahern] Estate account into one
of her own personal bank accounts. In or about February of 2015,
[Fredericks] … improperly wrote herself a second check on the
First Niagara account of the [Ahern Estate], in the amount of
$57,000, without the knowledge, permission, or consent of the
executor of the [Ahern] Estate. [Fredericks] subsequently
deposited the check into one of her own personal bank accounts.
Because the First Niagara Estate account had already been closed,
[Fredericks] was unable to obtain [] money from the check.
Also in or about February 2015, [Fredericks] … executed a
verification, subject to the provisions set forth in 18 Pa.C.S.[A.
§] 4904, in which she attested that the facts contained in the
document titled “Answer to Petition for Return of Estate Property”
(“Answer”), were true and correct to the best of her knowledge,
information and belief. The Answer, which was filed of record in
the Orphan’s Court, contained a statement that [the] executor,
Raymond K. Elmer, had prepared an inheritance tax return, a
statement that [Fredericks] knew to be false because she herself
had prepared and filed the tax return that was grossly inadequate
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and erroneous. The Answer, verified by [Fredericks], also had
attached to it a copy of the purported Fee Agreement Letter which
[Fredericks] had falsified and contained a statement that
[Raymond] Elmer had agreed to an attorney fee of 15% when, in
reality, [Fredericks] knew that he had only agreed to a 10%
attorney fee.
In or about November of 2014, [Fredericks] … received an
advanced payment of attorney’s fees in the amount of $2,500
from Donald Peszko [(“Peszko”)], a client of [Fredericks], which,
pursuant to a written Fee Agreement Letter, she was required to
hold in escrow. Instead of complying with the applicable Fee
Agreement, [Fredericks] deposited [] Peszko’s money into one of
her own personal bank accounts. In or about January of 2015,
[Fredericks] … received a second $2,500 payment from [] Peszko,
and again failed to properly escrow it as required by the written
Fee Agreement Letter. In or about May of 2015, [Fredericks] …
sent [] Peszko a fraudulent billing invoice for $5,200 when, in fact,
[Fredericks] knew she had not earned the purported billed
amount. In or about September 2015, [Fredericks] … altered a
written Fee Agreement Letter that had been executed in
November of 2014 by [] Peszko, a client, by changing the amount
of an attorney fee from $2,500 to $5,000, and by removing the
requirement that [] Peszko’s money be escrowed, thereby making
[] Peszko’s advanced payments for attorney’s fees non-
refundable. In or about September of 2015, [Fredericks] … signed
[] Peszko’s name and signature on the written Fee Agreement
Letter that she had previously altered. [Fredericks] did so without
[] Peszko’s knowledge, consent or permission. In or about
September 2015, [Fredericks], … [while] under investigation by
the Office of Disciplinary Counsel of the Disciplinary Board of the
Supreme Court of Pennsylvania, submitted to Disciplinary Counsel
a copy of the written Fee Agreement with [] Peszko, wherein she
had altered and forged [] Peszko’s name and signature on the
document.
In or about October of 2013, [Fredericks] … obtained $3,000
from Esther Meeks [(“Meeks”)], a client of [Fredericks], to resolve
a subdivision matter for [] Meeks. In order to secure a retainer
from [] Meeks, [Fredericks] knowingly misrepresented her
qualifications, telling [] Meeks that it was a “simple subdivision”
when, in fact, [Fredericks] had no experience handling land
use/subdivision matters. In or about May of 2014, [Fredericks] …
obtained another $3,000 from [] Meeks by false pretenses. In
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doing so, [Fredericks] represented to [] Meeks that the subdivision
approval process was progressing along when, in reality, she had
not even initiated the process or earned the previous $3,000 that
she had received from [] Meeks in October of 2013. In or about
March of 2015, [Fredericks] … fabricated a written billing invoice
and provided it to [] Meeks in which [Fredericks] claimed to have
done subdivision approval work for [] Meeks, which, in fact, she
did not actually perform.
[Docket No.] 3155-2017
In or about August of 2015, [Fredericks] … knowingly
submitted a written billing invoice to Margaret Muller [(“Muller”)],
a client of [Fredericks], for $1[,]530.10, which [Fredericks] had
not actually earned.
In or about February of 2014, [Fredericks] … secured $4,000
from Frank Balistrieri [(“Balistrieri”)], a client of [Fredericks], on
the representation that the $5,000 retainer that [] Balistrieri had
paid her in [sic] December 13, 2013, to handle a property damage
claim, needed to be replenished when, in fact, she had not earned
the initial $5,000 retainer. In or about July of 2015, [Fredericks]
… improperly obtained from [] Balistrieri an additional $5,000 to
arbitrate his property damage claim when, in fact, the two year
statute of limitations had run and [Fredericks] had no intention of
earning the additional $5,000.
In or about August of 2015, [Fredericks] … obtained $5,000
from Danielle and Eric Behrenhauser [(the “Behrenhausers”)],
clients of [Fredericks], on her representation that she would
handle a personal injury claim for them when, in fact, [Fredericks]
had no intention of earning the money.
In or about June of 2016, [Fredericks] … unlawfully induced
William Moser [(“Moser”)], a former Social Security Disability
[(“SSD”)] client of [Fredericks], to give her $6,000 by threatening
to have his [SSD] benefit payments stopped unless he paid her
the money.
[Docket No.] 2349-2018
In or about June of 2016, [after her disbarment in
Pennsylvania,] [Fredericks] … unlawfully held herself out to
Administrative Law Judge Susanne Straus [(“Judge Straus”)], to
Craig Smedley [(“Smedley”)], a[n SSD] client of [Fredericks], and
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to [] Smedley’s wife, Wendy Smedley [(“Mrs. Smedley”)], that
[Fredericks] was licensed to practice law in Pennsylvania when, in
fact, she knew that she was not.
Trial Court Opinion, 2/26/19, at 5-9 (some paragraphs reordered and
combined).
After a nine-day trial, a jury convicted Fredericks of the above-
mentioned offenses. On August 2, 2019, the trial court sentenced Fredericks
to an aggregate term of 137 months to 420 months in prison, plus two years
of probation, and ordered Fredericks to pay restitution, to not contact the
victims, and to provide a DNA sample. Fredericks filed timely post-sentence
Motions seeking a new trial, and a separate Motion for reconsideration of her
sentence. The trial court denied Fredericks’s Motion for reconsideration, and
scheduled argument for her remaining post-sentence Motions. Notably, the
argument was scheduled beyond the 120-day period in which the trial court
could rule on the post-sentence Motions. See Pa.R.Crim.P. 720(B)(3)(a).
On October 16, 2019, Fredericks filed a Motion seeking to vacate the
Order denying her Motion for reconsideration, and to extend the time period
for deciding the merits of her post-sentence Motions. The trial court did not
rule on Fredericks’s Motions. Prior to the scheduled argument on Fredericks’s
Motions, Fredericks filed timely Notices of Appeal at each docket number, and
separate, but identical, court-ordered Pa.R.A.P. 1925(b) Concise
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Statements.3, 4 On April 2, 2020, this Court issued an Order, upon Application
by Fredericks, consolidating Fredericks’s appeals filed at the three docket
numbers.
Fredericks raises the following issues for our review:
A. Did the [trial] court abuse its discretion in sentencing a first-
time, non-violent offender to a term of up to 36 years in prison?
B. Was the evidence sufficient to prove that [] Fredericks engaged
in the unauthorized practice of law at a [SSD] hearing where
federal law governs qualifications to represent litigants at such
hearings[,] and [] Fredericks was qualified to represent her client
under that federal provision?
C. Did the [trial] court err by failing to impose an alternative
minimum sentence under the [Recidivism Risk Reduction Initiative
(“]RRRI[”)5] program where [] Fredericks clearly qualified under
that program?
Brief for Appellant at 3 (footnote added).
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3We note that the trial court filed two Pa.R.A.P. 1925(a) Opinions: the first,
on February 26, 2020, addressed Fredericks’s first and third issues presently
on appeal, and the second, supplemental Opinion on March 19, 2020, which
addressed her second issue on appeal.
4 After Fredericks filed her Notices of Appeal, this Court ordered Fredericks to
show cause why her appeals should not be quashed as interlocutory, as,
though the trial court denied her Motion for reconsideration, it had not yet
ruled on her post-sentence Motions. Fredericks submitted a Response,
indicating that she had filed her Notices of Appeal in order to preserve her
claims, as the trial court’s scheduled argument on her Motions fell outside the
120-day statutory period, and the trial court had not ruled on her Motion to
extend such time period. We acknowledge that the denial of Fredericks’s
Motions by operation of law did not occur until after she filed her Notices of
Appeal. However, in the interest of judicial economy, we will address her
appeal as though it were filed after the trial court’s denial of her Motions by
operation of law.
5 61 Pa.C.S.A. §§ 4501-4512.
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In Fredericks’s first issue, she presents four distinct challenges
regarding her sentence. Id. at 21-23. Fredericks argues that the trial court
(1) imposed an excessive aggregate sentence in light of her criminal conduct;
(2) failed to consider Fredericks’s rehabilitative needs; (3) improperly focused
on Fredericks’s lack of acceptance of responsibility for her crimes; and (4)
erred in imposing its sentence on two of her theft by deception convictions,
as she was not provided with notice of the invocation of a mandatory minimum
sentence pursuant to 42 Pa.C.S.A. § 9717. Brief for Appellant at 21-23.
We will address Fredericks’s challenge to imposition of her sentence
pursuant to section 9717 first. Fredericks argues that the trial court’s
imposition of sentence pursuant to section 9717 for two of her convictions of
theft by deception—counts 28 and 31, both related to the Meeks subdivision
matter—were improper, as Fredericks had not been provided reasonable
notice. Id. at 33.
Section 9717 states, in relevant part, the following:
(a) Mandatory sentence.--A person under 60 years of age
convicted of the following offenses when the victim is over 60
years of age and not a police officer shall be sentenced to a
mandatory term of imprisonment as follows:
***
18 Pa.C.S.[A.] § 3922 (relating to theft by deception)--not
less than 12 months, but the imposition of the minimum
sentence shall be discretionary with the court where the
court finds justifiable cause and that finding is written in the
opinion.
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42 Pa.C.S.A. § 9717(a). This Court has explained that a defendant must be
afforded notice prior to the imposition of the mandatory minimum sentence
under section 9717:
The only requirement [to satisfy the notice requirements to
the imposition of a mandatory minimum sentence] is that the
defendant receive reasonable notice of the Commonwealth’s
intention to invoke [s]ection 9717 after conviction and before
sentencing. … What is reasonable must necessarily depend upon
the nature, purpose, and circumstances of each case. To be
adequate, notice must be sufficient to permit an objection or a
defense.
Commonwealth v. Rizzo, 523 A.2d 809, 811 (Pa. Super. 1987).
Here, in imposing its sentence, the trial court stated that its sentences
for two of Fredericks’s theft by deception convictions were made pursuant to
“the enhancement [] under [section] 9717(a) [of] Title 42.” N.T., 8/2/19, at
49. Further, the record does not reveal any indication that Fredericks was
notified of the potential invocation of section 9717.6 See N.T., 8/2/19, at 31-
32 (wherein Fredericks’s counsel states that he was not prepared to address
the mandatory minimum sentence dictates in section 9717, as it was not
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6 We note that the trial court and the Commonwealth both concede that such
notice never occurred, and are in agreement that the appropriate remedy is
to vacate the judgment of sentence, as to the two counts, and to remand for
resentencing. See Trial Court Opinion, 2/26/20, at 13-14; Commonwealth’s
Brief at 18-19.
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referenced in the Commonwealth’s sentencing memorandum).7
Accordingly, because Fredericks did not receive proper notice of the
invocation of the mandatory minimum provisions in section 9717, the trial
court erred in sentencing Fredericks in accordance with section 9717, and her
judgment of sentence as related to those two counts must be vacated.
Additionally, because the vacation of Fredericks’s judgment of sentence for
counts 28 and 31 disrupts the trial court’s sentencing scheme, as the two
counts were run consecutive to each other and to other counts, we must
vacate the judgment of sentence in its entirety. See Commonwealth v.
Baney, 187 A.3d 1020, 1023 (Pa. Super. 2018) (stating that “if a trial court
errs in its sentence on one count in a multi-count case, then all sentences for
all counts will be vacated so that the [trial] court can restructure its entire
sentencing scheme.”) (citation omitted). As a result of the foregoing, we
vacate Fredericks’s judgment of sentence, and remand to the trial court for
resentencing.
We will address Fredericks’s remaining discretionary challenges
together. First, Fredericks argues that sentencing a “non-violent, 43-year-old
mother of two children[,] whose prior record consists of a petty offense[,] will
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7 We further observe that the Commonwealth did not seek to invoke section
9717, either in its sentencing memorandum or during the sentencing hearing.
Rather, the trial court decided to impose sentences under section 9717 for
counts 28 and 31, because Meeks was over the age of 60. Nevertheless,
Fredericks did not receive notice adequate to permit an objection. See Rizzo,
supra.
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spend up to 36 years in prison” constitutes an abuse of discretion. Brief for
Appellant at 24. Fredericks claims that the trial court’s decision to impose two
sentences above the aggravated range, eight sentences at the top of the
aggravated range, and seven sentences at the top of the standard range, with
eighteen of her twenty-three convictions being imposed consecutively, was
manifestly excessive. Id. at 26. Further, Fredericks points to the letters and
testimony submitted by the victims, wherein she characterizes their remarks
about the stress that Fredericks’s conduct caused them, rather than financial
or emotional ruin, as indicative that she should have received a lesser
sentence. Id. at 27. Second, Fredericks claims that the trial court failed to
properly consider her rehabilitative needs, and instead “myopically focused on
the seriousness of her crimes and her fiduciary duty.” Id. at 28-30. Third,
Fredericks, citing this Court’s decision in Commonwealth v. Bowen, 975
A.2d 1120, 1126 (Pa. Super. 2009), argues that the trial court’s focus on her
lack of acceptance of responsibility for her crimes violated her Fifth
Amendment right against self-incrimination. Brief for Appellant at 30.
Fredericks claims that she did, in fact, accept responsibility for her crimes
during sentencing, and that the trial court refused to accept her acceptance
unless “she uttered [] magic words.” Id. at 33.
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Fredericks’s remaining claims challenge the discretionary aspects of her
sentence, from which there is no automatic right to appeal. 8 See
Commonwealth v. Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016).
Before [this Court may] reach the merits of [a challenge to the
discretionary aspects of sentence], we must engage in a four part
analysis to determine: (1) whether the appeal is timely [filed]; (2)
whether [a]ppellant preserved h[er] issue; (3) whether
Appellant’s brief includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise statement raises
a substantial question that the sentence is appropriate under the
sentencing code…. [I]f the appeal satisfies each of these four
requirements, we will then proceed to decide the substantive
merits of the case.
Commonwealth v. DiSalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Here, Fredericks filed timely Notices of Appeal and preserved her claims
in her post-sentence Motions for reconsideration of sentence. Further,
Fredericks has included in her appellate brief a separate Pa.R.A.P. 2119(f)
Statement. See Brief for Appellant at 21-23. Further, Fredericks has raised
a substantial question in each of her remaining claims. See Commonwealth
v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (stating that a substantial
question is raised where the “aggregate sentence is unduly harsh, considering
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8 We note that our ultimate disposition necessitates that Fredericks’s entire
judgment of sentence be vacated, and the matter be remanded to the trial
court for resentencing. However, we will still address Fredericks’s challenges
to the discretionary aspects of sentencing for the trial court’s consideration at
resentencing.
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the nature of the crimes and length of punishment.”); Commonwealth v.
Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (stating that an appellant’s
claim that the trial court failed to provide meaningful consideration to the
character of the offender raises a substantial question); Bowen, 975 A.2d at
1122 (stating that an appellant’s claim that the trial court factored a
defendant’s lack of acceptance of responsibility into her sentence may raise a
substantial question). Accordingly, we will address the merits of Fredericks’s
claims.
We begin with our well-settled standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted). “When reviewing sentencing matters, this Court must
accord the sentencing court great weight as it is in the best position to view
the defendant’s character, displays of remorse, defiance or indifference, and
the overall effect and nature of the crime.” Commonwealth v. Ventura,
975 A.2d 1128, 1134 (Pa. Super. 2009). “We cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009).
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A trial court’s sentence “should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Pursuant to 42 Pa.C.S.A.
§ 9781(c), we can vacate and remand only if we find that: (1) the trial court
intended to sentence within the guidelines, but “applied the guidelines
erroneously;” (2) a sentence was imposed within the guidelines, “but the case
involves circumstances where the applications of the guidelines would be
clearly unreasonable;” or (3) “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S.A.
§ 9781(c).
“In every case in which the court imposes a sentence for a felony or a
misdemeanor, the court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason or reasons for
the sentence imposed.” Commonwealth v. Mouzon, 812 A.2d 617, 620-21
(Pa. 2002); 42 Pa.C.S.A. § 9721(b). Although the sentencing court is required
to explain on the record its reasons for imposing sentence, it “need not
specifically cite or include the language of the sentencing code, it must only
demonstrate that the court has considered the factors specified in the code.”
Commonwealth v. Baker, 507 A.2d 872, 874 (Pa. Super. 1986) (internal
citation omitted). Finally, in imposing a sentence, “the trial [court] may …
determine whether, given the facts of a particular case, a sentence should run
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consecutive to, or concurrent with, another sentence being imposed.”
Commonwealth v. Hill, 66 A.3d 365, 370 (Pa. Super. 2013).
The trial court, at sentencing, placed on the record its reasons for
imposing its sentence:
Not only have you committed the crimes that are often in front of
me on thefts and unlawful takings, and thefts by deception and
attempts to do so, thefts by extortion and forgeries, but those
crimes were committed against individuals that you have a
fiduciary duty to. So it is not just the run-of-the-mill theft, if there
is such a thing, and therefore, I believe that on every one of those
crimes which I sentence you to, although some of them may not
be in the aggravated range, I believe that the breach of fiduciary
duty enhances all of these crimes and would drive them all into
the aggravated range.
***
And, lastly, you have heard victims come up here and not
only express the impact that it had on them financially and
emotionally, but the impact that it had on their perception of the
justice system and of the legal system. So considering all that
has been said, because independent of what has occurred with
them in the conjunction of your representation of them, you have
also engaged in conduct that was intended to defraud the system.
And that’s the system that you were an officer of the [c]ourt
before.
***
I [sentence you consecutively] because I cannot distinguish
between not imposing sentences for each of the victims running
them concurrent. Each of your actions with regard to them
violated your fiduciary duties to them, as well as the underlying
thefts and forgeries. They are entitled to, and I cannot separate
them from each other, as to their own individual sentence.
Otherwise it would depreciate in their minds, as well as the
[c]ourt’s, the importance of their rights being violated. It would
also send, what I believe, a terrible message to a victim who has
been victimized by you, through the exercise of a breach of
fiduciary duty. And there must be a deterrent [e]ffect, that no
one in your position would do this to somebody else to which they
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owe a fiduciary obligation. And there must be a message sent
that the system will not allow it to be perverted by someone who
has an obligation as an officer of the [c]ourt to this system. Not
only to this system, but to your clients.
N.T., 8/2/19, at 45-47, 49-50 (some paragraphs combined).
The record reflects that the trial court thoroughly explained its reasons
for imposing Fredericks’s sentence. See Mouzon, supra. Additionally,
despite Fredericks’s contention that the trial court only considered the
seriousness of her crimes in crafting its sentence, the trial court specifically
stated that it had “presided over the trial[,] heard all the testimony[,] read
diligently both the Commonwealth’s sentencing memorandum and
[Fredericks’s,] listened to all of the evidence presented in this sentencing[,
and] listened to [Fredericks’s] statements.” N.T., 8/2/19, at 45. While the
trial court did not specifically reference Fredericks’s rehabilitative needs in its
sentence, it stated that it had read Fredericks’s sentencing memorandum,
which detailed Fredericks’s background, mitigating circumstances, and
rehabilitative needs. See Defendant’s Sentencing Memorandum, 6/26/19, at
1-8; N.T., 8/2/19, at 45 (wherein the trial court states that it had reviewed
Fredericks’s sentencing memorandum). Given the circumstances of the
offense and the many victims, the characteristics of Fredericks, the sentencing
court’s observations, and the guideline ranges, the aggregate sentence of 137
to 420 months was not excessive, nor did it constitute an abuse of discretion.
See Shugars, supra; Baker, supra.
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Further, regarding Fredericks’s assertion that the trial court improperly
focused on her lack of remorse, her reliance on Bowen is misplaced. In
Bowen, the defendant invoked his constitutional right not to testify during his
jury trial, and maintained his silence at sentencing. The trial court, in
imposing a sentence in the aggravated range, cited multiple factors, including
that “[the defendant] failed to show any remorse for his crime or to take
responsibility for them, even after the jury’s decision.” Bowen, 975 A.2d at
1121-22. On appeal, Bowen argued that the trial court violated his Fifth
Amendment rights by considering his silence as indicative of a lack of remorse.
This Court determined that “[i]t is undoubtedly appropriate for a trial court to
consider a defendant’s lack of remorse as a factor at sentencing, provided that
it is specifically considered in relation to protection of the public, the gravity
of the offense, and the defendant’s rehabilitative needs. Id. at 1125 (citation
omitted). It determined that “a court may not consider a defendant’s silence
at sentencing as indicative of his failure to take responsibility for the crimes
of which he was convicted.” Id. at 1121.
Here, Bowen is distinguishable from the instant matter, as Fredericks
did not invoke her right to remain silent at her sentencing hearing. See N.T.,
8/2/19, at 39-45 (wherein Fredericks testified at sentencing). Further, our
review of the sentencing hearing discloses that the trial court did not abuse
its discretion when imposing Fredericks’s sentences. Rather, the trial court
properly considered her lack of acceptance of responsibility as one factor when
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imposing a sentence that was consistent with the protection of the public, took
into account the gravity of the offense as it related to the impact on the lives
of the victims and on the community, and considered Fredericks’s
rehabilitative needs pursuant to section 9721(b). See Bowen, 975 A.2d at
1125; see also N.T., 8/2/19, at 45-47. Therefore, Fredericks is not entitled
to relief on this claim.
In her second issue, Fredericks argues that the evidence was insufficient
to support her convictions for the unauthorized practice of law. Brief for
Appellant at 37. Fredericks argues that although she was disbarred from the
practice of law in the Commonwealth of Pennsylvania at the time of Smedley’s
SSD hearings, she remained a licensed attorney in the state of New Jersey.
Id. Fredericks disputes her convictions on the grounds that her
representation of Smedley was arguably legal pursuant to 42 U.S.C.
§ 406(a)(1), the federal statute which governs SSD proceedings. Brief for
Appellant at 37. According to Fredericks, she never received “due notice”
under that statute revoking her ability to represent clients in such
proceedings. Id. at 37-38. Fredericks points to testimony from her trial,
wherein the Commonwealth and the trial court were unsure of whether her
representation of Smedley was legal under federal law. Id. at 40-41.
Accordingly, based on the ambiguity surrounding the federal legality of her
representation of Smedley, Fredericks claims that the evidence was also
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insufficient to support her conviction of unauthorized practice of law as to the
SSD proceedings. Id. at 41.
A challenge to the sufficiency of the evidence presents a question of law;
our standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017). When
analyzing whether sufficient evidence existed to support a conviction, we must
“view the evidence in the light most favorable to the Commonwealth as the
verdict winner in order to determine whether the jury could have found every
element of the crime beyond a reasonable doubt.” Commonwealth v.
Thomas, 215 A.3d 36, 40 (Pa. 2019). “The evidence established at trial need
not preclude every possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented.” Commonwealth v. Brown, 52
A.3d 320, 323 (Pa. Super. 2012). “[T]he uncorroborated testimony of a single
witness is sufficient to sustain a conviction for a criminal offense, so long as
that testimony can address and, in fact, addresses, every element of the
charged crime.” Commonwealth v. Johnson, 180 A.3d 474, 482 (Pa.
Super. 2018). “Any doubts regarding a defendant’s guilt may be resolved by
the fact-finder unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the combined
circumstances.” Commonwealth v. Vargas, 108 A.3d 858, 867 (Pa. Super.
2014) (en banc). Additionally, we may not “re-weigh the evidence and
substitute our judgment for that of the fact-finder.” Id.- 19 -
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The unauthorized practice of law is governed by 42 Pa.C.S.A. § 2524
which states, in relevant part, as follows:
General rule.-- … [A]ny person, including, but not limited to, a
paralegal or legal assistant, who within this Commonwealth shall
practice law, or who shall hold himself out to the public as being
entitled to practice law, or use or advertise the title of lawyer,
attorney at law, attorney and counselor at law, counselor, or the
equivalent in any language, in such a manner as to convey the
impression that he is a practitioner of the law of any jurisdiction,
without being an attorney at law or a corporation complying with
15 Pa.C.S. Ch. 29 (relating to professional corporations), commits
a misdemeanor of the third degree upon a first violation. A second
or subsequent violation of this subsection constitutes a
misdemeanor of the first degree.
42 Pa.C.S.A. § 2524(a). “Accordingly, one who is not an attorney yet practices
law violates this provision.” Commonwealth v. Pilchesky, 151 A.3d 1094,
1100 (Pa. Super. 2016) (citation omitted).
Our Supreme Court has explained the purpose underlying the
prohibition against the unauthorized practice of law as follows:
The Pennsylvania Constitution vests with our [Supreme] Court the
exclusive authority to regulate the practice of law, which includes
the power to define what constitutes the practice of law. Pa.
Const. Art. V, § 10(c); Dauphin County Bar Ass’n v.
Mazzacaro, … 351 A.2d 229, 233 ([Pa. ]1976). What constitutes
the practice of law, however, is not capable of a comprehensive
definition. For this reason, our Court has not attempted to provide
an all-encompassing statement of what activities comprise the
practice of law. Office of Disciplinary Counsel v. Marcone, …
855 A.2d 654, 660 ([Pa. ]2004); Shortz et al. v. Farrell, … 193
A. 20, 21 ([Pa. ]1937). Thus, we have determined what
constitutes the practice of law on a case-by-case basis.
Harkness v. Unemployment Comp. Bd. of Review, 920 A.2d 162, 166-67
(Pa. 2007) (footnotes omitted).
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In this case, Mrs. Smedley testified that she and Smedley retained
Fredericks in late 2014 to represent Smedley in his SSD hearings. N.T.,
5/6/19, at 15-17. Fredericks was disbarred from the practice of law in the
Commonwealth of Pennsylvania effective January 1, 2016. See N.T., 5/7/19,
at 122 (wherein Fredericks testified that she had been disbarred by Order of
the Supreme Court of Pennsylvania in December 2015); see also
Commonwealth’s Exhibit 61A (Disbarment Order). Mrs. Smedley testified that
she and Smedley received sporadic contact with Fredericks’s office prior to
their scheduled SSD hearing on June 9, 2016. N.T., 5/6/19, at 18-24. The
hearing was rescheduled for July 26, 2016, where Fredericks appeared and
represented Smedley at the hearing. Id. at 29-30; see also Commonwealth’s
Exhibit 92I (SSD Hearing Transcript) (wherein Fredericks does not inform the
hearing judge or the Smedleys of any change to her licensure, and performs
a direct examination of Smedley). Mrs. Smedley testified that she had not
been informed, prior to the hearings, that Fredericks had been disbarred in
Pennsylvania. Id. at 29-30.
Accordingly, the Commonwealth presented sufficient evidence that
Fredericks engaged in the unauthorized practice of law with regard to
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Smedley’s SSD proceedings.9 See Pichelsky, supra.
In her third claim, Fredericks argues that the trial court abused its
discretion by failing to impose an RRRI minimum sentence, when calculating
Fredericks’s sentence. Brief for Appellant at 41. Fredericks claims that she
was eligible for the RRRI program based on her criminal history, which
contained one prior conviction for retail theft. Id. at 42-43. Further,
according to Fredericks, her instant convictions do not cause her to fall outside
of the RRRI’s “eligible offender” definition. Id. Accordingly, Fredericks claims,
the trial court erred in imposing a non-RRRI sentence, and we should remand
the matter for resentencing in accordance with the provisions of the RRRI
program. Id. at 43.
Fredericks’s “challenge relative to the failure to apply a RRRI minimum
[is] a non-waivable illegal sentencing claim.” Commonwealth v. Tobin, 89
A.3d 663, 670 (Pa. Super. 2014) (citation omitted). We have repeatedly held
that “where the trial court fails to make a statutorily required determination
regarding a defendant’s eligibility for an RRRI minimum sentence as required,
the sentence is illegal.” Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa.
Super. 2010). “Issues relating to the legality of a sentence are questions of
____________________________________________
9 As the trial court astutely noted, “[t]o permit another jurisdiction, whether
it be Federal or State, to allow an individual, who was previously disbarred
from the practice of law in Pennsylvania, to practice law in Pennsylvania, under
the cloak of legitimacy established by some other system outside of
Pennsylvania would lead to an absurd result.” Trial Court Opinion, 3/19/20,
at 5-6.
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law.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014)
(citation omitted). “Our standard of review over such questions is de novo
and our scope of review is plenary.” Id.Section 9756(b.1) of the Sentencing Code provides that a trial court
imposing sentence “shall determine if the defendant is eligible for a recidivism
risk reduction incentive minimum sentence under 61 Pa.C.S. Ch. 45.”
Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014) (citation omitted);
see also 61 Pa.C.S.A. § 4505(a) (providing that “[a]t the time of sentencing,
the court shall make a determination whether the defendant is an eligible
offender.”).
Upon review, the record confirms that the trial court failed to make a
determination on the record as to Fredericks’s RRRI eligibility. N.T., 8/2/19,
at 45-55. Accordingly, Fredericks’s sentence is illegal. See Chester, supra.
We must therefore vacate Fredericks’s judgment of sentence, and remand the
matter for resentencing. Upon remand, the trial court shall make an on-the-
record finding as to Fredericks’s RRRI eligibility and, if necessary, construct
its sentencing in accordance with section 4505(c).10
____________________________________________
10 We note that the trial court, in its Opinion, conceded that Fredericks was
“statutorily eligible to participate in the RRRI program.” Trial Court Opinion,
2/26/20, at 13. The Commonwealth, in its appellate brief, agrees that
Fredericks qualified as an eligible offender for the RRRI program, and that
remand is an appropriate remedy. See Commonwealth’s Brief at 15-16.
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Judgment of sentence affirmed in part, and vacated in part. Case
remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2020
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