Commonwealth v. Fredericks

245 A.3d 1071 (Table)

COMMONWEALTH of Pennsylvania v. Kristi FREDERICKS, Appellant Commonwealth of Pennsylvania v. Kristi Fredericks, Appellant Commonwealth of Pennsylvania v. Kristi Fredericks, Appellant

No. 3245 EDA 2019

No. 3246 EDA 2019

No. 3247 EDA 2019

Superior Court of Pennsylvania.

Filed December 15, 2020

MEMORANDUM BY MUSMANNO, J.:

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 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 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 nonrefundable. 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 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 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...