author: DANTOS, J,

text:
    Commonwealth v. Hart

      C.P. of Lehigh County,
    no. 1737/2009.

      Stephen M. Van Natten, chief deputy district attorney, for Commonwealth.

      Eric K. Dowdle, for defendant.
    October 27, 2010
   DANTOS, J,

— Defendant, Clarence Hart, has filed an appeal from this court’s order of July 29, 2010, which denied the defendant’s post sentence motions. Accordingly, we are issuing this opinion pursuant to the provisions of Pennsylvania Rule of Appellate Procedure 1925.

The relevant facts are as follows: Defendant, Clarence Henry Hart, after a jury trial, was found guilty of the charges of robbery, burglary, theft by unlawful taking, simple assault, criminal conspiracy to commit robbery and criminal conspiracy to commit burglary. Thereafter, on July 6, 2010, this court sentenced the defendant to the following: On the count of robbery, imprisonment in a state correctional institution for a period of not less than five (5) years nor more than ten (10) years; on the count of burglary, imprisonment a state correctional institution for a period of not less than ten (10) years nor more than twenty (20) years; on the count of simple assault, imprisonment in a state correctional institution for a period of not less than one (1) year nor more than two (2) years; on the count of criminal conspiracy to commit burglary, imprisonment in a state correctional institution for a period of not less than ten (10) years nor more than twenty (20) years; and on the count of criminal conspiracy to commit robbery, imprisonment in a state correctional institution for a period of not less than five (5) years nor more than ten (10) years. All sentences were ordered to run consecutively to each other, with an aggregate sentence of thirty-one (31) to sixty-two (62) years. Thereafter, the defendant filed post sentence motions pursuant to Pennsylvania Rule of Criminal Procedure Rule 720. In his post-sentence motion, the defendant challenged the sufficiency and weight of the evidence. Additionally, the defendant requested that this court reconsider and modify the sentence imposed. This court denied the defendant’s post sentence motions on July 29, 2010. The within appeal followed on August 19, 2010.

On August 23, 2010, this court instructed the defendantto file ofrecord and serve upon this court aconcise statement of errors complained of on appeal no later than September 13,2010, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). Defendant complied with this order. In his concise statement of errors complained of on appeal, the defendant asserts several allegations of error: (1) this court erred in denying the defendant’s Batson challenge as to the commonwealth’s strike of a prospective juror; (2) this court erred in sentencing the defendant to an unduly harsh sentence and erroneously failed to note that the defendant was a productive member of society; (3) this court erred in denying the defendant’s motion for a new trial, in so far as the verdict was against the weight of the evidence; (4) this court erred in denying the defendant’s motion to suppress the search of defendant’s vehicle, in so far as the search was the product of coercion, and not a knowing and voluntary waiver; (5) this court erred in denying the defendant’s motion to dismiss counsel, as well as the defendant’s motion to proceed pro se; and (6) this court erred in denying the defendant’s motion for recusal. These arguments are baseless and defendant’s appeal must be dismissed.

A. Batson Challenge

The defendant argues that this court committed an error of law by denying the defendant’s Batson challenge as to the commonwealth’s strike of a prospective juror. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This contention is legally flawed.

In Batson, the United States Supreme Court held that the “Equal Protection Clause forbids [a] prosecutor to challenge potential jurors solely on account of their race.” Batson, 476 U.S. at 89, 106 S.Ct. 1712. Indeed, the United States Supreme-Court’s Ratoon decision revolutionized the jury selection process by “overruling prior case law and allowing an individual defendant to show that he was denied equal protection by the prosecutor’s improper exercise of peremptory challenges in a racially discriminatory manner in his individual case.” Commonwealth v. Sneed, 587 Pa. 318, 899 A. 2d 1067 (2006).

Under Batson, once the objecting party makes out a prima facie case of discrimination, the burden shifts to the striking party to provide a race-neutral explanation for the challenge. Commonwealth v. Daniels, 600 Pa. 1, 42, 963 A.2d 409, 434 (2009). Then, it is incumbent upon the trial court to make the ultimate determination of whether the obj ecting party has carried its burden of proving purposeful discrimination. Commonwealth v. Cook, 597 Pa. 572, 586, 952 A.2d 594, 602 (2008). To establish a prima facie case of purposeful discrimination, the defendant must show that he is a member of a cognizable racial group, that the prosecutor exercised a peremptory challenge or challenges to remove from the venire members of the defendant’s race, and that other relevant circumstances combine to raise an inference that the prosecutor removed the juror for racial reasons. Batson, 476 U.S. at 97, 106 S.Ct. 1712.

In the instant case, the defendant is African American and is a member of a cognizable racial group. The defendant argues that the commonwealth improperly used peremptory challenges to exclude two (2) potential jurors based solely on their race. Specifically, juror number 3, juror number 8 and juror number 21. As an initial matter, it is not clear that juror numbers 8 and 21 are African-Americans. Juror Number 8 was a 20-year-old woman who appeared to be African-American, but had checked “other” as her race. Similarly, juror number 21 was a 30 year old female of mixed descent. Therefore, this court is not even certain that juror numbers 8 and 21 are the same race as the defendant, let alone members of a cognizable racial group. Nevertheless, in an abundance of caution, this court will address same.

This court notes that these two (2) are the sole peremptory challenges that the commonwealth utilized on a potential “African-American” juror. All other African-Americans in the jury pool were selected or dismissed for cause. In particular, juror number 3, an African-American, was dismissed from the panel “for cause” agreed upon by both the commonwealth and the defendant. Additionally, potential juror number 32, a 5 0-year-old African-American woman was seated on the jury panel. Therefore, there was no “course of conduct” on behalf of the commonwealth to suggest purposeful discrimination. Additionally, the defendant failed to set forth facts and circumstances that raise an inference that the commonwealth excluded people from the jury on account of their race. Thus, this court does not find that the defendant sustained his burden.

Assuming, arguendo, that the defendant had established a prima facie case of improper use of peremptory challenges, and the burden shifted to the commonwealth, the prosecutor set forth on the record race-neutral reasons for his challenge of juror numbers 8 and 21. Specifically, with regard to juror number 8, the commonwealth cited to her meek and timid manner of verbally responding to questions, as well as her young age and lack of life experience. With regard to juror number 21, the commonwealth explained that she made numerous errors in completing the juror questionnaire form, had no position one way or the other, and was a victim of a robbery which is the central crime in the within matter.

This court found the prosecutor’s reasons for exercising his peremptory challenges were factually valid, without discriminatory intent, and accepted them as legitimate race-neutral reasons for striking juror number 8 and juror number 21. This court’s assessment of the genuineness of the commonwealth’s reasons must, of necessity, be accorded great deference on appeal because the ultimate question of discriminatory intent involves an assessment of credibility. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Commonwealth v. Lloyd. 376 Pa. Super. 188, 198, 545 A.2d 890, 895 (1988). Indeed, only if the court’s findings are “unsupported by the record or appear to be unreasonable or arbitrary in the face of clear evidence to the contrary” should this court’s findings be disturbed. Id. Such is not the case.

B. Unduly Harsh Sentence

In his concise statement of errors complained of on appeal, the defendant ásserts that this court erred in imposing an unduly harsh sentence without noting that the defendant was a productive member of society. The defendant is challenging the discretionary aspects of sentencing. Commonwealth v. Bishop. 831 A.2d 656, 660 (Pa. Super. 2003). Initially this court notes that:

Sentencing is within the sound discretion of the sentencing judge, and that decision will not be disturbed absent an abuse of discretion. Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587, 591 (1992)(en banc). “To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive.” Commonwealth v. Gaddis, 432 Pa. Super. 523, 639 A.2d 462, 469 (1994). Nevertheless, sentencing guidelines are merely advisory, and the court may, in its discretion, sentence outside the guidelines. When a trial court deviates from the guidelines, it must state its reasons for deviation on the record at the time of sentencing or in a contemporaneous written statement. Commonwealth v. Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994). The court must also consider the guidelines as a starting point and deviate so as to impose a sentence consistent with both the public’s safety needs and the defendant’s rehabilitative needs. Id. Commonwealth v. Shaffer, 722 A.2d 195, 198-199 (Pa. Super. 1998).

If “the sentencing court proffers reasons indicating that its decision to depart from the guidelines is not unreasonable,” its responsibilities have been fulfilled and the appellate courts will not disturb the sentence. Commonwealth v. Gibson, 716 A.2d 1275, 1277 (Pa. Super. 1998).

In the instant case, the defendant’s minimum sentence for each offense was beyond the aggravated range and set at the statutory minimum. Similarly, the maximum sentence for each offense was set at the statutory maximum. Unquestionably, the sentences imposed did not exceed the statutory limits. Therefore, the defendant’s sentence must be evaluated to determine if it was “manifestly excessive.” To do so, the following considerations must be examined:

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court’s discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Where an excessiveness claim is based on a court’s sentencing outside the guideline ranges, we look, at a minimum, for an indication on the record that the sentencing court understood the suggested sentencing range. 42 Pa. C.S.A. § 9721(b). When the court so indicates, it may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, the gravity of the particular offenses as it relates to the impact on the life of the victim and the community, so long as the court also states of record the factual basis and specific reasons which compelled him to deviate from the guideline range. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (citations omitted).

Moreover, “[i]t is well-settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); see also Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54,55 (Pa. Super. 2003). The defendant must demonstrate that a substantial question exists concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005). Furthermore, a substantial question requires something more than an allegation that the sentences imposed are excessive or harsh. Ladamus, 896 A.2d at 595. Consequently, defendant’s assertion that this court abused its discretion by imposing an excessive and harsh sentence fails to present a substantial question to justify a review of his claim.

Additionally, even if the merit of the defendant’s sentencing claim were addressed, defendant’s argument must fail. The defendant’s sentence must initially be evaluated to determine if there was an abuse of discretion. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). The standard of review has been explained in the following manner:

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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)(en banc).

In imposing the defendant’s sentence, this court considered the “protection of the public, the gravity of the offense as it relates to the impact on the victim and the community, the defendant’s rehabilitative needs, and the sentencing guidelines.” 42 Pa. C.S.A. § 9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008). Prior to sentencing, this court carefully reviewed the pre-sentence investigation report prepared on May 5, 2010. At the time of sentencing, this court heard from Peter Fuller, who made a statement on his own behalf, as well as read a victim impact statement authored by Ms. Benner.

This court articulated that the defendant had forty-four (44) arrests in approximately thirty-four (34) years of his adult life, including nineteen (19) known convictions. Defendant’s prior record would translate to a prior record score of “18.” However, the law does not provide for such a deplorable score, but caps at a prior record score of “5.” Therefore, the guidelines do not adequately factor in such a horrific and appalling criminal past. Furthermore, the within crimes were extremely brutal in nature given that with each successive blow the hits were getting stronger and stronger and Ms. Benner did not know if she was going to survive. The defendant’s actions could have resulted in the death of this victim. Additionally, Ms. Benner was particular vulnerable in light of her age. The defendant displayed no remorse and his actions have shown defiance and indifference to the criminal justice system.

The defendant is not and has never been a productive member of society in light of his extensive criminal history. In fact, the defendant is a “career criminal” from which the community needs to be protected. Even though the defendant was gainfully employed for three and a half (3 Vz) years with Patterned Concrete, this court did not err in classifying the defendant as a non-productive member of society. The defendant’s deplorable and shameful criminal history speaks for itself. The defendant is a predator on society and selects easy targets as his prey.

Also, this court did not fail to consider mitigating factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12(1988) (holding that where a pre-sentence report exists, there is a presumption that the sentencing judge was aware of and adequately considered information relevant to the defendant’s character, as well as any mitigating factors). With all of this information in mind, the major factors driving the defendant’s sentence included the brutal nature of the crimes committed, in conjunction with the defendant’s poor candidacy for rehabilitation and treatment; the fact that the sentencing guidelines do not adequately reflect his involvement in illegal activity for a span of four (4) decades; the fact that the defendant’s actions could have resulted in the death of his victim who was particularly vulnerable due to her age; the impact on the victim; and the protection of the community. Indeed, the sentence ordered was necessary and reasonable under the circumstances. Using its discretion, this court imposed a sentence that was within the guidelines and within the law. Accordingly, the defendant’s argument is baseless and his appeal should be dismissed with regard to this allegation of error.

C. Challenging the Weight of the Evidence

The defendant also alleges that this court erred in finding that the verdict was not against the weight of the evidence. This court notes that a motion for a new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict, but contends that it is against the weight of the evidence. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000); Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003). Furthermore, a challenge that the verdict is against the weight of the evidence requires this court to conclude in its discretion that “the verdict is so contrary to the evidence as to shock one’s sense of justice.” Lyons, 833 A.2d at 258. Indeed, for a new trial to lie on a challenge that the verdict is against the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa. Super. 1998). See also Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

In the within matter, the testimony and physical evidence provided sufficient evidence to demonstrate that the defendant committed the aforementioned offenses. Indeed, on November 28, 2008, at approximately 6:00 P.M., Barbara Benner, an eighty-three- (83) year-old woman, was returning to her residence located at 225 North Broad Street, Allentown, after purchasing wine at a liquor store located at 19th and Allen Streets, Allentown, Lehigh County, Pennsylvania. (C. Ex. 3) Ms. Benner’s residence is situated between 27th and 28th Streets, Allentown, and is less than ten (10) minutes from the liquor store by vehicle. Upon arriving at her residence in her vehicle, Ms. Benner drove into her driveway and opened her garage door utilizing a garage door opener. (C. Ex. 4; C. Ex. 5; C. Ex. 6) Ms. Benner then drove into the garage attached to her home and parked her vehicle. (C. Ex. 4; C. Ex. 5; C. Ex. 6)

Upon exiting her vehicle, Ms. Benner pushed the button that is secured on the inside wall of the garage by the interior garage door leading into the kitchen in an effort to close the garage door. The garage door began to close, but due to interference, went back up. Ms. Benner investigated the garage door track to confirm that the path was unobstructed. She then proceeded to push the garage door button another time. Suddenly, aman jumped out at her screaming, with his arms flailing in the air. He swiftly came around her vehicle that was parked in the garage, and grabbed Ms. Benner. As a result of the physical contact between Ms. Benner and the man, Ms. Benner ended up on the floor of her garage. The man was situated on top of her and was repeatedly striking Ms. Benner in the face and shoulders with his fists. The man snatched Ms. Benner’s Vera Bradley purse from her grasp. Although Ms. Benner did not see the man’s face, she indicated that the perpetrator was wearing a dark hat, dark clothes and gloves, and had his face covered with either a mask or a scarf. She also stated that the perpetrator was short, but taller than she is by about four (4) to five (5) inches. Ms. Benner could not determine the man’s race or ethnicity.

Ms. Benner’s granddaughter, Kiolco Furst, opened the interior garage door to help her grandmother carry the bottles of wine into the residence. By doing so, she startled the perpetrator, who began to flee from the garage and run towards a gray vehicle parked across the street. Upon learning that something was wrong, Ms. Benner’s son-in-law, Peter Fuller, and her grandson, Nicholas Furst, immediately began to chase the male figure. Mr. Fuller, taking a direct path to the parked gray vehicle, witnessed the attacker jump into the rear driver’s side door and motion for the driver to pull away. Mr. Fuller had the opportunity to peer into the gray sedan and he observed what appeared to be a light-skinned Hispanic woman with reddish bleached-blonde hair sitting in the driver’s seat. The grandson and Mr. Fuller clearly viewed the Pennsylvania license plate of the vehicle, to wit, GYA-2642.

Mr. Fuller described the perpetrator as wearing a black puffy coat, gloves, dark hat, dark pants. Mr. Fuller also noted that he jogged in an unusual and distinctive way, i.e. an “up and down motion,” almost as if he were running on his toes. While Ms. Benner’s son-in-law and grandson were pursuing the attacker, her daughter, Joan Fuller, tended to Ms. Benner and her injuries. Ms. Benner was bloody, with scratches on her face and ear.

Thereafter, on November 30, 2008, Officer Damien Murray of the Allentown Police Department responded to a call of a purse being found in the vicinity of 133 South Lumber Street, Allentown, Lehigh County. (C. Ex. 1; C. Ex. 8; C. ex. 9; C. Ex. 10; C. Ex. 11). The homeowner at that location had found Ms. Benner’s purse on her porch. (C. Ex. 1; C. Ex. 8; C. ex. 9; C. Ex. 10; C. Ex. 11). Officer Murray recovered the purse. (C. Ex. 1). Additionally, the Communications Center informed Officer Murray that there had been a home invasion robbery two (2) days earlier involving the owner of the purse. Consequently, Officer Murray then telephoned Ms. Benner and made arrangements to deliver the purse to her. Upon inspecting the purse, Ms. Benner noted that the purse was not in the condition that it had been in two (2) days earlier. (C. Ex. 1). Specifically, the purse was now dirty and had a slit in it, like it had been cut. (C. Ex. 1). Additionally, the three hundred ($300.00) dollars in cash had been removed. (C. Ex. 1). Also, a bag from McDonald’s with a receipt inside indicating a purchase of small fries did not belong to Ms. Benner and they were not in her purse prior to it being taken. (C. Ex. 12).

In response to the information that Ms. Benner provided to Officer Murray and in possession of the McDonald’s receipt dated November 28, 2008, at 5:24 P.M., Officer Murray went to the McDonald’s located at 14th and Tilghman Streets, Allentown (C. Ex. 12). Officer Murray viewed footage of the McDonald’s surveillance videos for that date and time (C. Ex. 12). In the surveillance photos, Officer Murray observed a black male with a bright orange hat purchasing a small order of fries at the designated time (C. Ex. 18).

Assisting in the investigation further, Officer Murray ran the license plate information that had been provided to him by Ms. Benner through the PennDOT system. Officer Murray was notified that the plate belonged to a rental vehicle from the Enterprise Rental Cars fleet. Officer Murray contacted Enterprise Rental Cars and was informed that the individual who rented the subject vehicle was Clarence Hart, with an address of 1734 Chew Street, Allentown (C. Ex. 19). Officer Murray traveled to the 1700 block of Chew Street and determined that the address was a recovery house. Officer Murray learned that defendant Clarence Hart no longer resided in the recovery house. Continuing his investigation. Officer Murray contacted the Communication Center in an effort to obtain an address based on the telephone number provided to him by Enterprise Rental Cars. The Communication Center supplied Officer Murray with an address of 829 Jackson Street, Allentown, Lehigh County (C. Ex. 13; C. Ex. 14; C. Ex. 15; C. Ex. 16; C. Ex. 17; C. Ex. 17A). Officer Murray noted that defendant’s residence, 829 Jackson Street, Allentown, is located across the street from where the subject purse had been discovered that morning (C. Ex. 8; C. ex. 9; C. Ex. 10; C. Ex. 11; C. Ex. 13; C. Ex. 14; C. Ex. 15; C. Ex. 16; C. Ex. 17; C. Ex. 17A). Additionally, Officer Murray observed a gray Pontiac sedan, bearing the subject license plate, parked to the rear of the Jackson Street building.

Assisting Officer Murray in the investigation, Detective Eric Landis viewed and obtained the video surveillance from the Liquor Store located at 1918 Allen Street, Allentown (C. Ex. 2). Detective Landis observed Ms. Benner in the liquor store (C. Ex. 2). He also observed on the video surveillance a black man with an orange hat exit the liquor store within one (1) minute of Ms. Benner’s arrival (C. Ex. 2).

A sealed warrant was obtained for defendant Clarence Hart’s arrest. Detective Landis attempted to locate the defendant in order to effectuate the arrest. He went to 829 Jackson Street, Allentown, and spoke with the owner of the building. Detective Landis was informed that defendant Clarence Hart usually drives a tan suburban vehicle. On December 5, 2008, Chief Ron Manescu observed a tan Chevrolet Tahoe at the defendant’s place of employment on Sumner Avenue. Chief Manescu witnessed the defendant go back and forth to the vehicle and therefore he ran the license plate on the Chevrolet Tahoe. The vehicle was registered to Gail Fields, the girlfriend of defendant Clarence Hart. Defendant Clarence Hart was arrested at this time.

The tan Chevrolet Tahoe had been in an accident and was not able to be driven. Specifically, the front passenger side wheel was severely damaged. Detective Landis and Detective Hackman went to Gail Fields’ residence located on 16th Street, Allentown. Detective Landis informed Ms. Fields that her vehicle had been involved in an accident and he asked her to accompany him to headquarters. Ms. Fields agreed and was very cooperative. At headquarters, Detective Landis explained that her vehicle needed to be towed due to its condition and Ms. Fields was agreeable to this resolution. Ms. Fields executed a Consent Search of Vehicle Form with regards to her Chevrolet Tahoe (C. Ex. 21). The contents of the form were explained to Ms. Fields prior to her executing same, and at no time was Detective Landis’ demeanor threatening or coercive. In fact, the police were cordial and polite to Ms. Fields. Detective Landis and Detective Hackman were dressed in casual clothes and neither displayed a gun at any time. While it is true that the first time that Ms. Fields was informed of the detectives’ belief that defendant Clarence Hart was involved in a robbery was in the interview room after she had executed the Consent Search of Vehicle Form, at no time did Ms. Fields request that her consent be revoked.

Ms. Fields’ vehicle was searched later that day. Defendant’s wallet was recovered from the vehicle. A rental agreement between Enterprise Rental Cars and Defendant Clarence Hart for a gray Pontiac sedan was located in the defendant’s wallet (C. Ex. 22).

Viewing all the evidence and all reasonable inferences arising therefrom in the light most favorable to the commonwealth, it is clear that the evidence was sufficient to enable a finder of fact to conclude that all the elements of the offenses were established beyond a reasonable doubt. Indeed, at the conclusion of the jury trial, despite the lack of forensic evidence and a positive identification linking the defendant to the crimes, the jury had no doubt that the defendant robbed, burglarized (and conspired to do the same with the driver of the get-away vehicle) and assaulted Ms. Benner and stole her Vera Bradley purse on the night in question.

From the evidence recounted above, it is reasonable to have concluded that the defendant was the individual who robbed, burglarized and assaulted Ms. Benner, and conspired to do the same. Indeed, the defendant’s image was captured at the liquor store within one (1) minute of Ms. Benner entering the premises. Similarly, the defendant was seen on the McDonald’s surveillance video purchasing small french fries at the time and date that was stamped on the McDonald’s receipt that was located in Ms. Benner’s recovered purse. Additionally, the license plate information that was noted by Mr. Fuller and Ms. Benner’s grandson on the get-away vehicle belonged to a rental vehicle from the Enterprise Rental Cars fleet. The rental agreement reflected that Clarence Hart was the individual who rented the subject vehicle. Clarence Hart had a known address of 829 Jackson Street, Allentown, Lehigh County, which was located across the street from where the purse had been discovered. In light of this evidence, the defendant’s challenge to the weight of the evidence must fail.

D. Motion to Suppress

Next, the defendant contends that this court erred in denying the defendant’s motion to suppress the items seized as a result of the search of the defendant’s vehicle, in so far as the search was the product of coercion, and not a knowing, voluntary waiver. The defendant’s contention that the officers did not have valid consent to search his girlfriend’s Chevrolet Tahoe on December 5, 2008, lacks merit. To establish a valid consensual search, the commonwealth must first prove that the consent was given during a legal police interaction. Commonwealth v. Strickier, 563 Pa. 47, 57, 757 A.2d 884, 889 (2000). Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus. Id. As articulated in Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003):

It is the commonwealth’s burden to prove that a defendant consented to a warrantless search. Cleckley, 558 Pa. at 520, 738 A.2d at 429 (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978)). To establish a voluntary consensual search, the commonwealth must prove ‘that a consent is the product of an essentially free and unconstrained choice - not the result of duress or coercion, express or implied, or a will overborne - under the totality of the circumstances.’ Mack, 568 Pa. at 334, 796 A.2d at 970 (quoting Strickler, 563 Pa. at 79, 757 A.2d at 901 (2000).

Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003). Various factors are considered in evaluating the voluntariness of a consent, including the following: (1) the use of coercion, duress, or deception; (2) the defendant’s belief that no incriminating evidence will be found; (3) he defendant’s education and intelligence; (4) the extent and level of the defendant’s cooperation with the law enforcementpersonnel; (5) the defendant’s custodial status; and (6) the defendant’s knowledge of his right to refuse to consent. Commonwealth v. Cleckley, 558 Pa. 517, 521, 738 A.2d 427, 429 n.7 (1999); Commonwealth v. Blasioli, 454 Pa. Super. 207, 685 A.2d 151, 156 (1996), affirmed, 713 A.2d 1117 (Pa. 1998). Voluntariness is a question to be determined by the totality of the circumstances. Cleckley, 558 Pa. at 521, 738 A.2d at 429; See also Commonwealth v. Grosso, 448 Pa. Super. 552, 559, 672 A.2d 792, 795 (1996).

In the instant case, the Chevrolet Tahoe had been involved in an accident with substantial damage resulting to the front passenger wheel and was not able to be driven. Consequently, on December 5,2008, Detective Landis and Detective Hackman went to Gail Fields’ residence located on 16th Street, Allentown. Detective Landis informed Ms. Fields that her vehicle had been involved in an accident and he asked her to come down to headquarters with him. Ms. Fields agreed and was very cooperative. At Headquarters, Detective Landis explained to Ms. Fields that her vehicle needed to be towed due to its condition. Ms. Fields was agreeable to this resolution. In fact, Ms. Fields executed a consent search of vehicle form with regards to her Chevrolet Tahoe. The contents of the form were explained to Ms. Fields prior to her signing, and at no time was Detective Landis’ demeanor threatening or coercive. Indeed, the police were cordial and polite to Ms. Fields. Detective Landis and Detective Hackman were dressed in casual clothes and neither displayed a gun at any time. While it is true that the first time that Ms. Fields was informed of the detectives’ belief that her boyfriend, Clarence Hart, was involved in a robbery was in the interview room after she had executed the consent search of vehicle form, at no time did Ms. Fields request that her consent be revoked.

Ms. Fields’ vehicle was searched later that day. From the vehicle, defendant’s wallet, cell phone paperwork pertaining to Ms. Fields and two (2) Keystone Medical identification cards were recovered. A rental agreement between Enterprise Rental Cars and Clarence Hart for a gray Pontiac sedan was located in the defendant’s wallet.

Applying the facts of the within case to the above-mentioned factors, Gail Fields’ consent to allowthe officers to search her vehicle was voluntary. Neither Detective Landis nor Detective Hackman employed coercive tactics to compel Ms. Fields to consent to the search of her vehicle. Consequently, Ms. Fields voluntarily, knowingly and intelligently executed a consent search of vehicle form which provided the detectives with a valid consent for the subject search. The record is void of evidence to suggest that the consent was a product of coercion.

E. Motion to Dismiss Counsel and Proceed Pro Se

Next, this court contends that this court erred in denying the defendants’ motions to dismiss counsel, as well as defendant’s motion to. proceed pro se. The procedural history involving this allegation is voluminous: On December 17,2008, Robert Long, Esquire, was appointed to represent the defendant. On April 2,2009, the defendant filed a pro se motion for change of counsel and appointment of new counsel. Thereafter, on April 14, 2009, a hearing was held in relation to that motion. On April 15, 2009, this court denied the defendant’s request to have Robert Long, Esquire, removed as his attorney. Then, on June 1, 2009, the defendant filed another pro se motion for change of counsel. On June 17, 2009, after hearing, this court granted leave for attorney Long to withdraw as counsel, and appointed Eric K. Dowdle, Esquire, in his stead.

Subsequently, on October 9, 2009, at the time of the evidentiary hearing being conducted relative to the defendant’s omnibus pretrial motions, the defendant orally made a motion to have his counsel discharged from representing him. At the hearing, the defendant argued that attorney Dowdle was ineffective in his preparation for the hearing on defendant’s omnibus pretrial motion. This argument formed the basis for his oral motion to have attorney Dowdle removed from his case. This court denied this motion because it found that attorney Dowdle had filed an omnibus pretrial motion in compliance with the directives of his client, both as to form and substance. Additionally, attorney Dowdle was present in court and prepared to proceed with the evidentiary hearing. Also, attorney Dowdle had secured the presence of the witness that the defendant desired to have available for the hearing. Based on the foregoing, the defendant’s ineffectiveness assertion lacked merit and his oral motion was denied.

Thereafter, on December 4, 2009, the defendant filed yet another pro se motion for change of counsel. At the January 6, 2010 hearing, the defendant stated that he was dissatisfied with attorney Dowdle because attorney Dowdle failed to provide oral argument at the conclusion of the omnibus pretrial motion hearing. The defendant also expressed his dissatisfaction with attorney Dowdle’s failure to submit a brief in support of the defendant’s position after the evidentiary hearing on the defendant’s omnibus pretrial motions. Additionally, the defendant accused attorney Dowdle of not zealously representing him at the omnibus pretrial motion hearing. This court found the defendant’s assertions to lack foundation. Attorney Dowdle conducted himself appropriately at the evidentiary hearing by questioning the witnesses and challenging the testimony. As a courtesy, this court afforded counsel for the commonwealth and defense counsel the opportunity to file a brief in support of their positions. Both the attorney for the commonwealth and attorney Dowdle chose not to file a brief. Such action did not violate any duty, as attorney Dowdle is vested with the authority to make strategic decisions as to what is presented to the court. Consequently, this court denied the defendant’s pro se motion for change of counsel.

Then, on January 29,2010, the defendant filed a pro se motion for waiver of counsel. A hearing was conducted on this motion on February 12, 2010, in which the defendant stated that he felt “coerced” to waive his right to counsel. In particular, the defendant indicated that he was “under duress” to represent himself because the court would not appoint new counsel for him. Because the waiver was not voluntary, this court properly denied the defendant’s pro se motion for waiver of counsel.

Based on the foregoing, this court appropriately denied the defendants’ numerous motions to dismiss counsel, as well as defendant’s motion to proceed pro se. Defendant’s appeal lacks merit in this regard.

F. Motion for Recusal

Finally, defendant Clarence Hart argues that the undersigned judge erred in not granting the defendant’s motion for recusal filed on December 18, 2009. At the time of the hearing on defendant’s motion for recusal on January 6,2010, the defendant alleged that the undersigned judge’s prior rulings formed the basis for his motion for recusal. Specifically, the defendant stated that the unfavorable rulings issued from the bench indicated a bias on the part of the Judge. Additionally, defendant Hart stated that he had filed a complaint with the Judiciary Misconduct Board against the undersigned, thereby creating a conflict of interest until final resolution of that issue. The defendant’s argument is baseless.

Initially this court notes that the party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312(1976); Commonwealth v. Curtin, 365 Pa. Super. 424, 430, 529 A.2d 1130, 1133 (1987). In general, a trial judge should recuse herself whenever she has any doubt as to her ability to preside impartially in a criminal case or whenever she believes her impartiality can be reasonably questioned. Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973).

In the instant case, the undersigned ruled on the motions filed based solely on the evidence presented. This court conveyed to the defendant that it had the ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The defendant failed to produce a scintilla of evidence establishing the necessity for recusal. Therefore, this court found that the defendant’s recusal request was unwarranted and denied same.

In light of the foregoing, the defendant’s appeal should be dismissed.

       TÍ8 Pa. C.S.A. §370l(a)(l)(iv).

      . 18 Pa. C.S.A. §3502(a).

      . 18 Pa. C.S.A. §3921(a).

      . 18 Pa. C.S.A. §2701(a)(l).

      . 18 Pa. C.S.A. §3701(a)(l)(iv); 18 Pa. C.S.A. §903.

      . 18 Pa. C.S.A. §3502(a); 18 Pa. C.S.A. §903.

      . In his concise statement of errors complained of on appeal, the defendant fails to refer to a specific juror. Consequently, this court will address all of the potential jurors discussed at the time of voir dire, even though the concise statement of errors complained of reveals that he is challenging the commonwealth’s striking of only one potential juror: “Whether this court erred in denying defendant’s Batson challenge as to the commonwealth’s strike of a prospective juror.” (concise statement of errors complained of on Appeal, ¶1).

      . The quotes indicate this court’s hesitancy in categorizing the jurors’ race as African-American.

      . The defendant’s actions and means that he used to obtain money from this victim went far beyond what was necessary to accomplish his goal. The defendant has a history of violent crimes and unnecessarily using extreme force.

      . Additionally, it is axiomatic that the imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court. Commonwealth v. Booze, 953 A.2d 1263, 1279 (Pa. Super. 2008). Long-standing precedent recognizes that 42 Pa. C.S.A. §9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. 42 Pa. C.S.A. §9721. See also Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008); Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005). “A challenge to the imposition of consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence.” Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005). Indeed, the Superior Court of Pennsylvania has stated: “We see no reason why [a defendant] should be afforded a ‘volume discount’ for his crimes by having all sentences run concurrently.” Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214 (1995).

      . Ms. Benner had gone to the liquor store alone that evening to purchase two (2) or three (3) bottles of wine to share with her family during dinner that night.

      . The interior garage door light illuminates when the garage door is activated.

      . Ms. Benner could determine that the attacker was a man because of the manner in which he walked and moved.

      . Initially, Ms. Benner thought that someone was playing a trick on her. However, as the male figure continued to approach her, she quickly realized it was not a joke.

      . With each successive blow, the hits were getting progressively stronger.

      . The purse contained important papers, credit cards and approximately three hundred ($300.00) dollars in cash.

      . Ms. Benner did note that while she described the male as “short” in stature, he was taller than she was.

      . Ms. Benner is 5’2” tall. Although Ms. Benner could only estimate the perpetrator’s height, she was cognizant of the fact that the perpetrator appeared short for a man.

      . The gray sedan had the engine running.

      . Ms. Benner’s granddaughter called the police and the events that transpired were related to the responding officers. (C. Ex. 3). Officer George Heiserman indicated that he was told that the perpetrator was an African American male, standing approximately 5’5” tall.

      . Ultimately the grandson wrote down the license plate numbers that he observed.

      . Ms. Benner was in fear of being hurt or killed during the attack that she endured on November 28,2008.

      . Officer Murray copiedthe surveillance footage from McDonald’s onto a disk. However, the disk on which he burned the images was unusable. Consequently, on or about December 3, 2008, Detective Eric Landis made another copy of the video surveillance. Detective Landis also printed still photos from the surveillance video (C. Ex. 18; C. Ex. 20).
      The defendant stipulated that the person in the McDonald’s video was the defendant. (C. Ex. 24).

      . In furtherance of the investigation, Detective Landis spoke with a representative of Enterprise Rental Cars located at 13 th and Tilghman Streets, Allentown. Subsequently, Detective Landis received a facsimile copy of the signed Rental Agreement between Enterprise Rental Cars and defendant Clarence Hart. (C. Ex. 19).

      . A review of the video surveillance of the liquor store establishes that a black male with a bright orange hat was in the liquor store at 5:45 P.M. on November 28, 2008 (C. Ex. 23). This individual left the liquor store at approximately 5:46 P.M. (C. Ex. 23). Ms. Benner entered the same liquor store at approximately 5:47 P.M. (C. Ex. 23). Detective Landis identified the person in the video as Clarence Hart. Additionally, the person in the Liquor Store video had on the same clothes as the person in the McDonald’s video, who indisputably was the defendant (C. Ex. 23).

      . Ms. Fields was interviewed at headquarters for approximately 40 minutes. This interview was recorded with the consent of Ms. Fields. At the conclusion of the interview, Detective Landis drove Ms. Fields back to her residence.

      . While this court granted the defendant’s motion for change of counsel, this court made it abundantly clear that it was not suggesting that Robert Long, Esquire had acted inappropriately in any manner in his representation of the defendant. Rather, this court was basing its decision on the fact that the attorney-client relationship was irreparably damaged and this court feared that such a contentious relationship potentially could be harmful to the defendant’s presentation of his defense.

      . This court based its decision on the facts presented at the time of the hearing on defendant’s omnibus pretrial motion. A brief is not evidence.

      . At the time of trial, the defendant and attorney Dowdle communicated extremely well. The discord that existed prior to the trial vanished. Indeed, attorney Dowdle and the defendant conferred with each other, and the defendant participated actively in his defense and the presentation thereof.

      . The defendant cited to this court’s failure to grant his motions for change of counsel, as well as this court denial of the defendant’s motion to suppress.


source: Caselaw Access Project

author: BOCCABELLA, J,

license: Public Domain

text:
    Commonwealth v. Ulrich

      C.P. of Berks County,
    no. 3852/09.

      Douglas A. Rhoads, assistant district attorney, for Commonwealth at trial.

      Alisa R. Hobart, district attorney, for Commonwealth on appeal.

      Tim M. Barrouk, for defendant.
    October 4, 2010
   BOCCABELLA, J,

— On December 2, 2009, following an omnibus pretrial hearing in the above captioned matter, this court denied the defendant’s motion for suppression of evidence, but granted the motion for writ of habeas corpus with respect to the charge of fleeing or attempting to elude a police officer, and the matter was listed for trial. On March 9, 2010, after a one (1) day jury trial, the defendant was found guilty of count two (2) driving under the influence of alcohol.

On April 28, 2010, this court sentenced the defendant, Travis Lee Ulrich, to not less than ninety (90) days nor more than five (5) years incarceration in the Berks County jail system and a fifteen hundred dollar ($1,500.00) fine.

On May 5, 2010, the defendant, by and through his counsel, Tim M. Barrouk, Esquire, filed a post-sentence motion, which was denied by this court on May 13, 2010. On June 11, 2010, the defendant, by and through counsel, filed a notice of appeal to the Superior Court of Pennsylvania. On June 18, 2010, this court ordered the defendant as appellant to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On June 7, 2010, defendant, through his counsel, filed his concise statement. Defendant raises the following issues for appellate review:

1. Whether this honorable court erred by denying the defendant’s motion to suppress for lack of probable cause to arrest. Specifically, that the commonwealth failed to produce evidence that it was probable that defendant’s mental and physical faculties where impaired to the point that he could not safely operate a motor vehicle.
2. Whether the Jury’s finding of guilt as to the charge of general impairment was not supported by sufficient evidence. Specifically, that the commonwealth failed to produce evidence sufficient evidence [sic] that defendant’s mental and physical faculties where impaired to the point that he could not safely operate a motor vehicle.
3. Whether the jury’s finding of guilt as to the charge of general impairment was against the weight of the evidence. Specifically, that the that the [sic] weight of the evidence failed to establish that defendant’s mental and physical faculties where impaired to the point that he could not safely operate a motor vehicle.

FACTUAL SUMMARY

On April 25, 2009, at approximately 11:00 p.m. Officer Christopher A. Cortazzo of the City of Reading Police Department was in the area of North Fifth Street and Crescent Avenue due to a DUI related accident that damaged a fire hydrant and flooded the nearby roadway. Officer Cortazzo had his marked patrol vehicle, with its emergency lights on and tail lights flashing, parked perpendicular to the street in order to block both southbound lanes. The roadblock was intended to be used as a visual indication that the roadway was closed. Officer Cortazzo observed several cars make a u-turn or turn left on Crescent Avenue. Flowever, Officer Cortazzo observed one car, a black Nissan, drive through the water and squeeze past the roadblock. He stated that this was the only car to go beyond the roadblock.

Officer Cortazzo, with his emergency lights already on and utilizing his siren and fog horn intermittently, attempted to initiate a traffic stop on the black car. Officer Cortazzo followed the black car for several moments and observed no change in speed. Therefore, Officer Cortazzo went around the car and pulled in front before slowing to a stop, to which the black car stopped behind the patrol car. Officer Cortazzo stated that when he passed the black car, the driver, later identified as the defendant, Travis Lee Ulrich, continually looked forward and did not seem to see him. Officer Cortazzo estimated that the distance between the roadblock and where the defendant finally stopped was approximately four hundred (400) to five hundred (500) feet, or about two (2) blocks.

Officer Cortazzo approached the defendant, and after asking for and receiving his license, asked him to go back to the roadblock so that he could reposition his car to block the road again. Officer Cortazzo testified that the defendant did not respond much, had a glazed look over his face, and that he had some initial difficulty turning around before deciding to go back to the roadblock backwards. Officer Cortazzo approached the defendant back at the roadblock and detected an odor of alcohol from the car. Since there was a passenger in the car, Officer Cortazzo asked the defendant to exit the vehicle in order to help locate the source of the smell of alcohol. The defendant denied having anything to drink and stated that he was coming from a concert. However, Officer Cortazzo testified that the defendant was driving towards the city where the concert was held and not away from it. Officer Cortazzo asked the defendant to step outside the vehicle. Officer Cortazzo stated that as the defendant did so, he could smell an odor of an alcoholic beverage coming from his breath. Officer Cortazzo stated that the defendant again denied that he had been drinking. In order to verify that an alcoholic beverage was coming from the defendant’s breath, Officer Cortazzo asked the defendant to say his name and keep his head forward. Officer Cortazzo testified that the defendant complied in saying his name four (4) times but kept turning his head to the side. When the defendant fully complied the fifth (5) time, Officer Cortazzo could smell an odor of alcohol on the defendant’s breath. Officer Cortazzo also observed that the defendant’s eyes were glassy, watery and had some redness around the rims, and that he was slow and lethargic. Officer Cortazzo stated that the defendant was belligerent the entire time.

While waiting for another officer to arrive on the scene, Officer Cortazzo put the defendant in the back of his patrol vehicle, which lasted about ten (10) minutes. When Officer Cortazzo let the defendant out of his patrol vehicle, he stated that he found a very strong odor of an alcoholic beverage emitting from the vehicle, and that his vehicle smelled like a brewery. Officer Keith Franz arrived soon after and engaged the defendant. Officer Franz testified that the defendant had a strong odor of alcohol on his breath, bloodshot eyes, slurred speech, and that he was slow to answer questions. Officer Cortazzo initially decided to write the defendant a citation, but the defendant refused to sign it before knowing what it was for. Officer Cortazzo declined to provide that information and then placed the defendant under arrest for suspicion of driving under the influence and took him to St. Joseph Medical Center for the purpose of a blood test.

Officer Cortazzo testified that he had been employed as a police officer for just over nine (9) years. He stated that his training or experience in determining if someone is under the influence of alcohol included: Training at the Reading Police Academy, on the job training while in the Field Training Officer (FTO) program, experience on the job making DUI arrests and making arrests of subjects under the influence of alcohol, and his own life experiences with alcohol, including personal consumption.

At trial, the evidence was substantially similar, with some limited inconsistencies. At trial, Officer Cortazzo went into greater detail regarding the visual indications on his vehicle and added that when he drove around the defendant and began to slow down in an effort to get the defendant to stop his car, his tapped on his brake a few times. He also added that the defendant moved back and forth a couple of times before stopping. When describing his approach to the car after the defendant had driven back to the roadblock, Officer Cortazzo added that the odor of alcoholic beverage from the car was “strong.” Officer Cortazzo also added that when the defendant stepped out of his car, the defendant held onto the door. He also went into an added explanation regarding his five (5) requests to have the defendant say his name while he stood directly in front of him. Officer Cortazzo described making the numerous requests not because he continued to be unsure about the source of alcohol, but as a test of honesty, to prove a point to the defendant that he could definitely smell alcohol. Officer Cortazzo also describes the odor as “strong” after the defendant complied with his request. Officer Cortazzo also noted at trial that when he asked the defendant questions, the defendant did not respond to all the questions he asked. Additional trial testimony from Officer Cortazzo included his ensuing request for a blood test from the defendant, which testimony was not required at the omnibus pretrial hearing. Officer Cortazzo stated that after the arrest, he transported the defendant to St. Joseph Medical Center for the purpose of getting his BAC. He testified that he read the defendant the implied consent form verbatim, after which the defendant declined to submit to the test. Officer Cortazzo stated that the defendant said that he didn’t feel he had the right to submit to the test and that he didn’t think he should do so under the circumstances. A noted subtraction regarding testimony at trial is that Officer Franz was never called to testify. Also, at trial, Officer Cortazzo’s testimony seems to imply that the defendant only was belligerent when demanding to know what the citations were for.

DISCUSSION

The defendant has raised three (3) separate and distinct issues for appellate review. The first claim is that this court erred by denying the defendant’s motion to suppress for lack of probable cause to arrest. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625, at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H). “[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part ornone ofthe evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002); See also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

A probable cause evaluation is done by considering all the relevant facts under a totality of the circumstances analysis. See Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007) citing Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (citing Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985)). “Probable cause to arrest exists when the facts and circumstances within the police officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) quoting Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007) (quoting In re C.C.J., 799 A.2d 116, 121 (Pa. Super. 2002)). The facts must only be such that a reasonable man would believe that a crime had been committed and that the person arrested is probably the perpetrator. Commonwealth v. Gambit, 418 A.2d 554, 557 (Pa. Super. 1980). However, probable cause is not an overwhelming burden: “[Pjrobable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.” Commonwealth v. Cook, 865 A.2d 869, 875 (Pa. Super. 2004) quoting Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004).

In a DUI case, “probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance.” Commonwealth v. Angel, 946 A.2d 115, 118 (Pa. Super. 2008) quoting Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008). This analysis includes “all facts and circumstances to be considered, not just those that suggest DUI.” Schindler v. Department of Transportation, Bureau of Driver Licensing, 976 A.2d 601, 605 (Commw. 2009) quoting Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1207 (Pa. 1999). “Except in extreme cases where the overwhelming circumstances give rise to probable cause of a DUI violation, it is the ensuing interaction between the officer and the driver that yields the information that gives rise to probable cause of a DUI violation, i.e., the slurred speech, the strong odor of alcohol, the blood shot eyes, and the generally disoriented and sometimes combative nature of the driver.” Commonwealth v. Hilliar, 943 A.2d 984, 991 (Pa. Super. 2008). “[A] police officer may utilize both his experience and personal observations to render an opinion as to whether a person is intoxicated.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) quoting Commonwealth v. Kelley, 652 A.2d 378, 382 (Pa. Super. 1994) (citing Commonwealth v. Bowser, 624 A.2d 125 (Pa. Super. 1993)).

Officer Cortazzo, sitting in a marked patrol vehicle with several visual indications, including emergency lights, observed the defendant squeeze through a roadblock and drive through a flooded roadway. Notes of Testimony, November 13, 2009, p. 4-5. Officer Cortazzo, with his emergency lights already on and utilizing his siren and fog horn intermittently, attempted to initiate a traffic stop. N.T. at p.7. When Officer Cortazzo followed the car for several moments and observed no change in speed, he went around the car and pulled in front before slowing to a stop, to which the car finally stopped. N.T. at p. 7-8.

Officer Cortazzo approached the defendant and asked him to go back to the roadblock to reposition his car. N.T. at p. 8-9. Officer Cortazzo approached the car and detected an odor of alcohol from the car. N.T. at p. 9. Since there was a passenger in the car, Officer Cortazzo asked the defendant to step outside the vehicle. N.T. at p. 9. The defendant stated that he was coming from a concert, but was driving towards the city where the concert was and not away from it. N.T. at p. 9-10. Officer Cortazzo then verified, after the defendant failed to follow his instructions four (4) times, that alcohol was coming from the defendant’s breath by requesting the defendant to look at him and say his name. N.T. atp. 10. Officer Cortazzo observed thatthe defendant’s eyes were glassy, watery and had some redness around the rims, and that he was slow and lethargic. N.T. at p. 11. Officer Cortazzo stated that the defendant was belligerent the entire time. N.T. at p. 26.

While awaiting back-up, Officer Cortazzo put the defendant in the back of his patrol vehicle, which lasted about ten (10) minutes. N.T. at p. 12. Officer Cortazzo stated that when he let the defendant out of the vehicle, he found a “very strong” odor of an alcoholic beverage emitting from his vehicle, stating that it smelled “like a brewery.” N.T. at p. 12. Officer Franz, who arrived as back-up, spoke to the defendant and stated that he had a “strong” odor of alcohol on his breath, bloodshot eyes, slurred speech, and that he was slow to answer questions. N.T. at p. 33-34. As such, the evidence is clearly sufficient to conclude that the defendant’s failure to obey Officer Cortazzo’s roadblock provided reasonable suspicion for him to stop the defendant’s vehicle and that Officer Cortazzo had probable cause to arrest the defendant and conclude that the defendant was sufficiently impaired to the point of being incapable of safely driving.

The defendant’s second claim is that the jury’s finding of guilt as to the charge of general impairment is not supported by sufficient evidence. “In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the commonwealth as verdict winner, together with all reasonable inference therefrom, the trier of fact could have found every element of the crime charged beyond a reasonable doubt.” Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008) (citation omitted).

In applying this standard, we bear in mind that the Commonwealth may sustain its burden by means of wholly circumstantial evidence; that the entire trial record should be evaluated and all evidence received considered, whether or not the trial court’s rulings thereon were correct; and that the trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence. Commonwealth v. Kennedy, 959 A.2d 916, 921 (Pa. 2008).

“The established facts and circumstances do not have to be absolutely incompatible with the accused’s innocence, but any doubt is for the factfinder unless the evidence is so weak and inconclusive that no probability of fact can be drawn from the totality of the circumstances as a matter of law.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (internal citations and quotations omitted).

The Motor Vehicle Code provides in pertinent part:

(d) General impairment. — An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. 75 Pa. C.S.A. § 3802 (a)(1).

The Pennsylvania Superior Court has stated that:

[I]t must be shown that alcohol has substantially impaired the normal mental and physical faculties required to safely operate the vehicle. Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving. Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003); see also Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006) quoting Commonwealth v. Gruff, 822 A.2d 773, 781 (Pa. Super. 2003), appeal denied, 863 A.2d 1143 (Pa. 2004); see also 75 Pa. C.S.A. § 3802 (a)(1).

This court notes that this issue has been waived, as “[a] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006) quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013 (Pa. Super. 2001). However, even if not waived, the evidence shows several factors that indicate that the defendant was under the influence of alcohol to a degree which rendered him incapable of safely driving. The evidence shows that while Officer Cortazzo, sitting in a marked patrol vehicle with several visual indications, including emergency lights, observed the defendant squeeze through a roadblock and drive through a flooded roadway. Notes of Testimony, March 9, 2010, p. 19,25. When Officer Cortazzo, with his emergency lights already on, attempted to initiate a vehicle stop, the defendant continued to look straight ahead, even when Officer Cortazzo used his sirens and fog horn intermittently. N.T. at p. 26-27. Officer Cortazzo had to drive his car in front of the defendant and slow to a stop in front of him to get him to stop, but not before observing the defendant moving back and forth a couple times. N.T. at p. 27. The defendant initially had difficulty going back to the roadblock and Officer Cortazzo testified that the defendant appeared “very slow,” and “very lethargic.” N.T. at p. 29.

Upon approaching the car, Officer Cortazzo observed a strong smell of an alcoholic beverage and asked the defendant to step out of the car. N.T. at p. 30. Officer Cortazzo testified that the defendant had to hold the door as he stepped out of the vehicle. N.T. at p. 37. Officer Cortazzo was able to smell a “strong” odor of an alcoholic beverage on the defendant’s breath when the defendant finally said his name inches in from his face. N.T. at p. 31. Officer Cortazzo also observed that the defendant’s eyes were “very” glassy, watery, and that there was a red ring around both eyelids and underneath the eyes. N.T. at p. 31, 37, 63. The defendant spoke “very” slowly, didn’t respond to all his questions, and had a “very” lethargic demeanor. N.T. at p. 60. The defendant also stated to Officer Cortazzo that he was headed back in the city when he had said he had just come from a concert in the city. N.T. at p. 32. Officer Cortazzo found that his car “smelled like a brewery” after leaving the defendant alone in his patrol vehicle for ten (10) minutes. N.T. at p. 33. After trying to give the defendant a break, Officer Cortazzo described the defendant as “uncooperative” and “belligerent,” with a cocky, arrogant, and demanding attitude. N.T. at p. 35-36. After being arrested and transported to St. Joseph Medical Center, and being read the implied consent form verbatim, the defendant declined to submit to a blood test. N.T. at 41-42.

The evidence presented with respect to the defendant’s driving suggests that he was unable to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. In addition, the evidence presented with respect to his physical faculties indicates that he was under the influence of alcohol, which rendered him incapable of safe driving. As such, the evidence is clearly sufficient to sustain the jury conviction of 3802 (a)(1).

Lastly, the defendant contends that the jury’s finding of guilt as to the charge of general impairment was against the weight of the evidence. “Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) citing Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). The Supreme Court has stated:

The term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Id. at 753 quoting Coker v. S.M. Flickinger Co., Inc., 625 A.2d 1181, 1185 (Pa. 1993).

When reviewing such an allegation, a trial judge does not sit as a thirteenth juror to assess the credibility of the witnesses or opine whether he would have assented to the verdict himself; rather the judge must determine that “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) quoting Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994). Stated otherwise, a verdict will not be against the weight of the evidence unless the evidence is “so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) quoting Commonwealth v. La, 640 A.2d 1336, 1351 (Pa. 1994).

The evidence in this case, as described above, is not vague and uncertain. The verdict is not manifestly unreasonable and does not shock the conscience of this court. The defendant’s appearance and conduct are sufficient facts upon which reasonable jurors could find a verdict of guilty. The evidence is clearly sufficient to find thatthe jury’s finding of guilt as to the charge of general impairment is not against the weight of the evidence.

For the foregoing reasons this court respectfully requests defendant’s appeal be denied and his judgment of sentence affirmed.

       75 Pa. C.S.A. §3733(a).

       75 Pa. C.S.A. §3802(a)(l).


author: CARPENTER, P.J.,

text:
    Hampton v. Hampton

      C.P. of Blair County,
    no. 2009 GN 4074.

      Gerald M. Nelson, for plaintiff.

      Suzanne Bigelow-Cherry, for defendant.
    November 10, 2010
   CARPENTER, P.J.,

— This matter comes before the court for determination of wife’s request for exclusive occupancy of the parties’ residence. A hearing was held to a conclusion on September 9, 2010. Briefs were received on September 20, 2010, on behalf of wife and October 6, 2010, on behalf of husband. The matter is presently ready for determination.

Both parties concede the court’s ability to award exclusive occupancy on a temporary basis. See generally Laczkowski v. Laczkowski, 496 A.2d 56 (Pa. Super. 1985). The Laczkowski case (and the line of Pennsylvania cases following Laczkowski) have consistently affirmed the ability of courts under 23 Pa.C.S.A. Section 3502(c) as follows:

(c) Family home. — The court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.

Beyond the clear expression in the statute, however, there is precious little guidance as to when such an award is appropriate. Traditionally, this court has looked to 23 Pa.C.S.A. 3102 for guidance where exclusive possession is concerned. That section highlights the intent of the Divorce Code as follows:

Section 3102. Legislative findings and intent
(a) Policy. — -The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to:
(1) Make the law for legal dissolution of marriage effective for dealing with realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
(b) Construction of part. — the objectives set forth in subsection (a) shall be considered in construing provisions of this part and shall be regarded as expressing the legislative intent.

In applying this section to the subject of exclusive possession, we have paid special attention to the facts of a particular situation to deal with the realities of matrimonial experience, the welfare of the family rather than the vindication of private rights or punishment of matrimonial wrongs, and the impact of such an award on the family generally (and children specifically.) Of course, we also acknowledge the need to effectuate economic justice. We have also been mindful that exclusive possession should be treated as special relief and not awarded routinely. All of these standards are important to the resolution of this particular case.

Based on the testimony, there seems little question that these parties are headed for a divorce (the wife filed a divorce complaint on October 30, 2009). There is no discussion of reconciliation. Indeed, the parties speak to each other only when they have to. As the husband put it, he does not do much more than eat, sleep, and shower at the residence. If removed, he would likely buy or rent another home. He describes no particular tension between himself and his wife.

The wife testified she is driven to divorce because she cannot live with the husband’s drinking. She describes the situation in the home as “very tense.” She agrees with the husband the parties do not speak and that he is gone most of the day. She claims he does little or nothing around the house. She was sufficiently disgusted with the situation that she left the home this past year for approximately four months. She returned home based on a belief the husband would curtail his drinking and attempt to salvage this thirty-year-old marriage. Apparently, that attempt was unsuccessful. She concedes she rarely sees her husband in the home and that he sleeps on the couch. Her main concerns now are his comings and goings at all hours.

Historically, the wife “leaving” has been her long standing response to his behaviors. She has moved out numerous times. She believes at this juncture he should go because the husband has inconvenienced her “enough.” Essentially, those are the facts.

Measured against the legislative intent contained in the Divorce Code it seems to us exclusive possession should be denied in this instance. In so holding, we believe to award the marital home essentially requires our adopting “the vindication of private rights for the punishment of matrimonial wrongs” claimed by the wife.

In this case, there are no minor children involved. Further, we see no real harm to the parties from awarding the home to both of them at the present time. Each party has the demonstrated financial ability to move if they choose. We believe that is the appropriate action by either party who wish to live separately rather than evicting one of them. Of course, the husband has already had a period of what amounted to exclusive possession when the wife vacated for four months. She noted the place was “a mess” when she returned. This is not, however, a basis to award exclusive possession. The fact is the bills are currently being paid (although slowly at times) under the existing situation. No one is claiming there is any physical abuse or special circumstances which favor one spouse or the other in terms of their actual need for the marital home. Under these circumstances, to grant what we view as extraordinary relief would do no more than vindicate the wife’s grievances. Exclusive possession should not be used for that purpose.

Accordingly, and consistent with the above, it is ordered, directed and decreed that the petition for special relief in this case is denied.


author: MINORA, J.,

text:
    Riese v. Super Truck Service Inc.
    C.P. of Lackawanna County,
    no. 06 CV 6281.

      Brian Walsh, for plaintiffs.

      Patrick J. Murphy, for defendants Super Truck Service Inc. and Eric Curtis.

      Daniel E. Cummins, for defendant C&M Sales Inc.
    November 1, 2010
   MINORA, J.,

— The issues before the court are the motions for summary judgment by defendant C&M Sales, Inc. and defendants Eric Curtis and Super Truck Service, Inc.

FACTUAL AND PROCEDURAL HISTORY

This case was commenced by plaintiffs, Timothy Riese and Regina Angeli-Riese, filing a complaint in negligence for an automobile/tractor trailer accident occurring on or about November 23, 2005 on Interstate 81 in Lackawanna County.

While traveling south on Interstate 81, plaintiff Timothy Riese was stopped in a line of traffic in the left lane. The operator of the tractor trailer, Eric Curtis, collided with the rear of the stopped Riese vehicle, driving the Riese vehicle into a second vehicle which was ultimately driven into a third vehicle.

As a result of the accident, plaintiff Timothy Riese sustained significant and permanent injuries to his lumbar spine which required him to undergo two back surgeries including a spinal fusion surgery at two levels of his lumbar spine. Plaintiff Timothy Riese has been unable to return to his occupation as the director of manufacturing at Laminations, Inc.

Plaintiffs initiated this action by filing a complaint against defendants Super Truck Service, Inc. and Eric Curtis in the Court of Common Pleas of Luzerne County on September 7, 2006. On November 7, 2006, a court order transferred the case to this court. On March 20, 2007 Super Truck Service, Inc. and Eric Curtis filed their answer and new matter to plaintiffs’ complaint.

In their answer and new matter, Super Truck Service, Inc. and Eric Curtis averred that Eric Curtis was an employee of C&M Sales, Inc. at the time of the accident of November 23, 2005. The plaintiffs then filed an amended complaint on or about July 21, 2007, naming Super Truck Service, Inc., Eric Curtis, and C&M Sales, Inc. as defendants. Count I of plaintiffs’ amended complaint is a claim for negligence, recklessness, and carelessness against Eric Curtis seeking compensatory and punitive damages. Count II of the amended complaint is a claim for negligence, recklessness, and carelessness against Super Truck Service, Inc. and C&M Sales, Inc. seeking compensatory and punitive damages. Count III is a separate and independent claim for punitive damages against the defendants alleging that the actions of defendants were outrageous, willful, wanton, malicious, careless, and in wanton disregard for the rights and safety of plaintiff.

Each of the defendants in this matter have filed motions for summary judgment alleging that there are insufficient facts to allow plaintiffs’ claim for punitive damages to go to the jury. Additionally, each corporate defendant has filed a motion for summary judgment claiming that it was not the employer of Eric Curtis at the time of the accident, i.e. each claims that the other was Curtis’s employer. Both parties agreed to have the issue decided on briefs without the necessity of oral argument. We now find this issue ripe for disposition.

LEGAL STANDARD

Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which states:

After the relevant pleadings are close, but within such time as not to unreasonably delay the trial, any party may move for summary judgment in whole or in part as a matter of law.
(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Summary judgment may be granted only if “the record clearly shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, and the moving party has the burden of proving no genuine issues of fact exist.” Abrams v. Pneumo Abex Corp., 939 A.2d 388, 390 (Pa. Super. 2007). A material fact is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic., 751 A.2d 662, 664 (Pa. Super. 2000). A proper grant of summary judgment depends upon an evidentiary record that either: 1) shows that the material facts are undisputed; or 2) contains insufficient facts to make out a prima facie cause of action or defense and therefore, there is no issue to submit to jury. Gateway Towers Condominium Ass’n v. Krohn, 845 A.2d 855, 858 (Pa.Super. 2004); See also Pa.R.C.P. 1035.2. For purposes of a summary judgment motion, a nonmoving party may not rely merely upon allegations in pleadings, but must set forth specific facts by way of affidavit or in some other way to demonstrate that genuine issue of material fact exists. Banks v. Trustees of University of Pennsylvania, 666 A.2d 329 (Pa. Super. 1995), See also: Pa.R.C.P. 1035.3(a).

However, “summary judgment is to be entered only in the clearest of cases where there is not the slightest doubt as to the absence of a triable issue of material fact.” Northern Tier Solid Waste Authority v. Com., Dept. of Revenue, 860 A.2d 1173, 1182 (Pa. Cmwlth. 2004). “In determining whether to grant summary judgment, the court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party.” Craig v. Amateur Softball Ass’n of America, 951 A.2d 372, 375 (Pa.Super. 2008).

LEGAL ANALYSIS

1. Defendants ’ motion for summaiy judgment on the issue of punitive damages

The Pennsylvania Supreme Court set forth the standard for punitive damages in 2005:

Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct.

Hutchison v. Luddy, 582 Pa. 114, 121, 870 A.2d 766, 770 (Pa. 2005) (citations omitted).

The defendants contend that their conduct did not rise to the level of willful, wanton, or reckless. Defendants argue that there is no evidence that Eric Curtis operated his tractor trailer in a reckless manner. However, defendants fail to consider that punitive damages may not only be awarded on the basis of vicarious liability, but on the outrageous conduct of the corporate defendants themselves.

Through their expert, plaintiffs have proffered instances of conduct by the corporate defendants which could be considered outrageous and thus, sufficient to award punitive damages. A non-exhaustive list of examples includes the following: (1) Neither Super Truck Service nor C&M Sales made any effort to account for the hours worked or to comply with the Federal Motor Carrier Safety Regulations (FMCSR) that limits the hours a driver may work in a 7-day period; (2) Super Truck Service, Inc., and its management violated FMCSR Part 391, when they hired Eric Curtis, a driver who had been in multiple collisions and had arguably proven himself unable to safely operate a commercial motor vehicle; (3) Super Truck Service, Inc. failed to provide safety related training to Eric Curtis during the scope of his employment; (4) Super Truck Service, Inc. had no log audit program and did nothing to ensure that their drivers were operating within the hours limitations set forth in the FMCSR; (5) Super Truck Service, Inc. and C&M Sales, Inc. were aware of the FMCSR and intentionally violated them by allowing and encouraging Eric Curtis to falsify his logs.

Certainly a jury could conclude that this conduct as alleged and if believed by the jury is outrageous. Thus, plaintiffs have averred facts sufficient to support a claim for punitive damages. Defendants’ motions for summary judgment on the issue of punitive damages are therefore denied with respect to counts I and II of the plaintiffs’ amended complaint.

However, defendants are correct to assert that punitive damages are ancillary to a claim and not an independent cause of action in and of themselves. McClellan v. Health Maintenance Organization of Pennsylvania, 604 A.2d 1053 (Pa. Super. 1992). Therefore defendants are therefore entitled to summary judgment on count III of plaintiffs’ amended complaint. Plaintiffs acknowledge this fact and do not dispute it. As such, defendants’ motions for summary judgment on the issue of punitive damages are granted with respect to count III of the plaintiffs’ amended complaint.

2. Defendants ’ motions for summary judgment on the issue of defendant Curtis’s employment

Super Truck Service, Inc. contends that it was not the employer of Eric Curtis at the time of the accident and that it was in fact C&M Sales, Inc. that employed Curtis. To this end, Super Truck Service, Inc. submits (1) that it does not have any salaried employees, a payroll, or any type of workers’ compensation insurance, (2) that C&M Sales, Inc. was responsible for the payment of Eric Curtis’s wages, payroll taxes, and workers' compensation insurance, and (3) that the tractor trailer involved in the accident was owned by C&M Sales, Inc. and leased to Super Truck Service, Inc.

At the same time, defendant C&M Sales, Inc. contends that it was not the employer of Eric Curtis at the time of the accident and that it was in fact Super Truck Service, Inc. that employed Curtis. C&M Sales, Inc. supports this proposition by citing several facts and admissions: (1) Eric Curtis was driving a truck labeled as a Super Truck Service, Inc. truck at the time of the accident; (2) Super Truck Service, Inc. admits in the pleadings that Eric Curtis was within the right of control of Super Truck Service, Inc at the time of the accident; (3) Admissions by Eric Curtis and Robert Terrel, the president of Super Truck Service show that Mr. Curtis was an employee of Super Truck Service, Inc at the time of the accident; (4) Admissions by Melvin and Clara Plucknett, the president and secretary of C&M Sales, Inc., also establish that Curtis was an employee of Super Truck Sales, Inc. at the time of the accident.

Plaintiffs submit that C&M Sales, Inc. and Super Truck Service, Inc. entered into a joint venture and that Eric Curtis was actually employed by both corporations at the time of the accident.

The central question in these summary judgment proceedings is not whether Mr. Curtis was an employee of each corporate entity, but whether each entity controlled or had the right to control Mr. Curtis’s truck driving activities at the time of the accident. Therefore, in order for either defendant to succeed in its motion, it must prove that no genuine issue of material fact exists as to its control or lack of control of Mr. Curtis’s truck driving activities at the time of the accident sufficient to cause this case to be submitted to a jury for its consideration.

Each party has presented and argued several indicia of employment and control that support their respective positions. As the Supreme Court has stated, “[wjhere, as here, it is not entirely clear who is the controlling master of the borrowed employee, and different inferences in that regard can fairly be drawn from the evidence, it is for the jury, not the court, to determine the question of agency.” Lynn v. Cepurneek, 508 A.2d 308, 316 (Pa. Super. 1986) (quoting Kimble v. Wilson, 352 Pa. 275, 286-87, 42 A.2d 526, 531 (Pa. 1945)).

Thus, the court concludes a genuine issue of material fact exists. Defendants’ motions for summary judgment on the issue of defendant Curtis’s employment are therefore denied. An appropriate order will follow.

ORDER

And now, on this November 1,2010, upon consideration of the pleadings and their supporting briefs, it is hereby ordered as follows:

1. Defendants’ motions for summary judgment on the issue of punitive damages are denied and dismissed with respect to counts I and II of plaintiffs’ amended complaint and granted with respect to count III of plaintiffs’ amended complaint.
2. Both defendants’ motions for summary judgment on the issue of defendant Curtis’s employment are denied and dismissed.

      . Pa.R.C.P. 1035.2

      . Plaintiff has argued that some of the evidence presented by defendants is inadmissible. Because the court has denied the motion on other grounds, the admissibility of this evidence has not been addressed at this time.