author: CURRAN, Member,

text:
    Office of Disciplinary Counsel v. Walsh

      March 8, 2006
   CURRAN, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On May 12,2005, Office of Disciplinary Counsel filed a petition for discipline against William A. Walsh, respondent. The petition charged respondent with professional misconduct arising out of his failure to appear for an informal admonition and failure to perform the condition of the informal admonition. Respondent did not file an answer to petition for discipline.

A disciplinary hearing was held on August 24, 2005, before a District II Hearing Committee comprised of Chair Robert F. Morris, Esquire, and Members Andrew J. Reilly, Esquire, and Christine Fizzano Cannon, Esquire. Respondent did not appear.

The Hearing Committee filed a report on November 7,2005, finding that respondent engaged in professional misconduct and recommending that he be suspended for one year and one day.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on February 1, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, Office of Disciplinary Counsel, whose principal office is situated at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings in accordance with the various provisions of the aforesaid rules.

(2) Respondent, William A. Walsh, was bom in 1953 and was admitted to practice law in the Commonwealth of Pennsylvania in 1985. He was placed on inactive status by order of the Supreme Court of Pennsylvania dated August 24, 2002.

(3) Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(4) Respondent has no prior history of discipline.

(5) By letter dated January 27, 2005, Paul J. Killion, Chief Disciplinary Counsel, informed respondent that the reviewing authorities had directed that respondent should receive an informal admonition with condition as the disciplinary action to be taken in disposition of the complaints filed against respondent by Gladys M. Davis and Joyce J. Slay.

(6) The letter dated January 27,2005, advised respondent that he was in violation of:

(i) R.P.C. 1.3 — by failing to act with reasonable diligence and promptness in representing Ms. Davis and Ms. Slay;

(ii) R.P.C. 1.4(a) — by failing to keep Ms. Davis and Ms. Slay informed about the status of their matters and failing to comply with reasonable requests for information;

(iii) R.P.C. 1.4(b) — by failing to explain the matters to the extent necessary to permit Ms. Davis and Ms. Slay to make informed decisions regarding their representation;

(iv) R.P.C. 1.5(b) — by failing to communicate, in writing, to Ms. Davis and Ms. Slay, clients whom he had not regularly represented, the basis or rate of his fee;

(v) R.P.C. 1.15(b) — by failing to provide to Ms. Davis and Ms. Slay an accounting of services rendered when requested to do so;

(vi) R.P.C. 1.16(d) — by failing to take steps to protect Ms. Davis’ and Ms. Slay’s interests when he withdrew from representing them by failing to timely provide a refund of any unearned advance payment of fees to Ms. Davis, failing to return Ms. Davis’ file, failing to provide a refund of unearned advance payment of fees to Ms. Slay and failing to return Ms. Slay’s file; and

(vii) R.P.C. 8.4(c) — by making a misrepresentation to Ms. Slay by telling her that he had filed a bankruptcy petition on her behalf when he had not.

(7) The condition attached to the informal admonition was that respondent was required to:

Provide to Ms. Slay an accounting of services rendered, a refund of any unearned advance payment of fees and her file;

Provide proof of such compliance to Disciplinary Counsel Suzy S. Moore within 20 days after his receipt of the January 27, 2005 letter.

(8) The January 27, 2005 letter advised respondent that failure to comply with the condition would result in a reconsideration of the matter.

(9) The January 27, 2005 letter advised respondent that he had 20 days to give written notification to Elaine M. Bixler, secretary of the Disciplinary Board, that he did not wish to accept the informal admonition and that he desired formal proceedings to be initiated.

(10) Respondent never sought to secure the vacation of the informal admonition and never requested that formal proceedings be instituted against him.

(11) The January 27,2005 letter was sent to respondent by certified mail, return receipt requested, and was returned by the U.S. Postal Service marked “unclaimed.”

(12) The January 27,2005 letter was sent to respondent by regular mail and was not returned.

(13) By notice to appeal’ dated February 25, 2005, Chief Disciplinary Counsel advised respondent that an informal admonition with condition had been scheduled for Friday, March 11, 2005.

(14) The February 25,2005 notice to appear was sent by certified mail to respondent’s registered address and was returned by the U.S. Postal Service marked “undelivered.”

(15) The notice to appear was sent by regular mail to respondent’s registered address and was not returned by the U.S. Postal Service.

(16) On March 10,2005, respondent called the District II Office of Disciplinary Counsel and left a message advising that he was aware of the informal admonition scheduled for March 11,2005, but that it was inconvenient for him to appear.

(17) Respondent did not appear on March 11, 2004 for his scheduled informal admonition.

(18) By letter dated March 23,2005, Chief Disciplinary Counsel advised respondent that:

(a) Respondent had failed to appear on March 11, 2005;

(b) If respondent had any reason he wished to offer for not appearing at the time set for the informal admonition he should advise Chief Disciplinary Counsel within 20 days from the date of the March 23, 2005 letter;

(c) More serious disciplinary action would be initiated in the absence of receiving from respondent any explanation for not appearing for his informal admonition.

(19) Chief Disciplinary Counsel’s March 23, 2005 letter was sent by certified mail, return receipt requested, and returned by the U.S. Postal Service marked “unclaimed.”

(20) On March 24,2005, Chief Disciplinary Counsel sent to respondent, by regular mail, a letter that was in all respects identical to the March 23, 2005 letter, and the letter was not returned.

(21) To date, respondent has not replied in any manner or attempted to contact Chief Disciplinary Counsel.

(22) On June 1, 2005, Joyce Slay filed a claim with the Pennsylvania Lawyers Fund for Client Security.

(23) By letter dated June 2, 2004, Kathryn S. Peifer, Esquire, Executive Director of the Lawyers Fund, advised respondent of Ms. Slay’s claim and advised respondent of his opportunity to respond to the claim and to request a hearing.

(24) By letter dated July 25,2005, respondent advised Ms. Peifer that he was going to make a full refund to Ms. Slay and return her file.

(25) Respondent did not request a hearing on Ms. Slay’s claim with the Lawyers Fund.

(26) By letter dated June 24,2005, Ms. Peifer advised respondent that the Lawyers Fund decided to pay Ms. Slay’s claim and advised respondent that if he made payment to Ms. Slay prior to that date, he could avoid additional costs and expenses.

(27) As of the date of the disciplinary hearing, respondent had not provided an accounting of services rendered, a refund of any unearned advance payment of fee and her file to Ms. Slay and, as a result had not provided proof to Office of Disciplinary Counsel that he complied with the condition attached to the January 27, 2005 letter.

(28) Respondent failed to file an answer to petition for discipline; failed to appear at the pre-hearing conference; and failed to appear at the disciplinary hearing.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) Pa.R.D.E. 203(b)(2) — willful failure to appear before Disciplinary Counsel for informal admonition shall constitute misconduct and shall be grounds for discipline.

(2) Pa.R.D.E. 204(b) — conditions may be attached to an informal admonition and failure to comply with such conditions, shall be grounds for reconsideration of the matter and prosecution of formal charges against the respondent-attorney.

(3) R.P.C. 8.4(d) — it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

In addition to the foregoing violations resulting from respondent’s failure to appear for an informal admonition, respondent is conclusively deemed to have violated the following Rules of Professional Conduct as a result of his failure to demand the institution for formal proceedings:

(1) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(2) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(3) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(4) R.P.C. 1.5(b) — A lawyer shall communicate to the client, in writing, the basis or rate of the lawyer’s fee before or within a reasonable time after commencing the representation when the lawyer has not regularly represented the client.

(5) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(6) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to protect a client’s interest, including refunding to the client any unearned advance payment of fee and returning the client’s file.

(7) R.RC. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

Respondent has been charged with violating the Rules of Disciplinary Enforcement and Rules of Professional Conduct due to his failure to appear for an informal admonition in connection with his representation of two clients, and his failure to comply with the condition to the informal admonition requiring him to provide an accounting to his client of services rendered and a refund of any unearned advance payment of fees and the client’s file. The record supports the conclusions that respondent violated Rules of Disciplinary Enforcement 203(b)(2) and 204(b) and Rule of Professional Conduct 8.4(d). The record further supports the conclusion that respondent violated the Rules of Professional Conduct that precipitated the original imposition of an informal admonition.

Respondent failed to appear at the disciplinary hearing on these charges. Had he appeared and participated and had he given a plausible basis for his failure to appear for the informal admonition and his failure to comply with the condition, a recommendation for discipline less severe than a suspension of one year and one day could be considered by the board. In re Lawrence W. Kustra, 69 D.&C.4th 211 (2004), wherein the Supreme Court suspended respondent for six months with two years of probation and mental health monitoring for his failure to appear for a private reprimand. However, it is the recommendation of this board that more severe discipline is appropriate in the instant matter because respondent’s misconduct is aggravated by the fact that he has made no effort to confront his disciplinary issues and has basically ignored the disciplinary process. He has provided no evidence that he has a desire to keep his license or that his misconduct will not continue in the future. There is no evidence that respondent places value on his privilege to practice law. He has forfeited any opportunity to accept responsibility or express remorse for his misconduct.

The recent matter of Office of Disciplinary Counsel v. McVay, no. 112 DD 2002, 984 Disciplinary Docket no. 3 (Pa. Jan. 31, 2005), is applicable to the situation at hand. The Supreme Court suspended Mr. McVay for one year and one day following his failure to appear for a private reprimand, failure to comply with a condition, and failure to participate in or appear at the disciplinary hearing. The board is equally persuaded that a one year and one day suspension will ensure that respondent’s fitness to practice law is tested and found sufficient before he is allowed to practice law in Pennsylvania in the future.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, William A. Walsh, be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

ORDER

And now, May 25, 2006, upon consideration of the report and recommendations of the Disciplinary Board dated March 8, 2006, it is hereby ordered that William A. Walsh be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: ASHWORTH, J.,

license: Public Domain

text:
    Commonwealth v. Lazar

      Christopher J. Lechner, assistant district attorney, for Commonwealth.

      November 5, 2007

      James J. Karl, chief public defender, for defendant.
   ASHWORTH, J.,

Nicholas W. Lazar has filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence imposed on August 31,2007, as finalized by the denial of appellant’s post sentence motion by order dated September 10,2007. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, and for the following reasons, this court requests that this appeal be denied.

I. PROCEDURAL BACKGROUND

By Criminal Information docketed to no. 489 of2006, appellant was charged with having committed the offenses of burglary (FI) (two counts), burglary (F2) (11 counts), criminal conspiracy to commit burglary (FI) (two counts), and criminal conspiracy to commit burglary (F2) (nine counts). These charges stemmed from burglaries in various municipalities in Lancaster County between September 21, 2005, and December 15, 2005.

By Criminal Information docketed to no. 519 of2006, appellant was charged with having committed the offenses of burglary (F2) (three counts), criminal conspiracy to commit burglary (F2), and criminal mischief (M3). These charges stemmed from burglaries in Lea-cock Township, Lancaster County, on December 16, 2005.

By Criminal Information docketed to no. 574 of2006, appellant was charged with having committed the offenses of burglary (F2) (two counts), criminal conspiracy to commit burglary (F2) (two counts), burglary (FI), and criminal conspiracy to commit burglary (FI). These charges stemmed from burglaries in East Lampeter Township, Lancaster County, on December 6, 2005.

By Criminal Information docketed to no. 757 of2006, appellant is charged with having committed the offenses of possession with intent to deliver marijuana (F), and criminal conspiracy to possession with the intent to deliver marijuana (FI). These charges stemmed from a search of appellant’s apartment in Salisbury Township, Lancaster County, on October 3,2005, which yielded 11 marijuana plants, packaging materials, a scale, and drug paraphernalia.

By Criminal Information docketed to no. 576 of2006, appellant was charged with having committed the offense of possession of a small amount of marijuana. This charge stems from a criminal incident occurring in Lea-cock Township, Lancaster County, on December 9, 2005.

By Criminal Information docketed to no. 700 of2006, appellant was charged with having committed the offenses of burglary (F2), and criminal mischief (summary). These charges stem from a criminal incident in West Earl Township, Lancaster County, between December 8, 2005, and December 9, 2005.

On June 18, 2007, Lazar appeared before the Honorable William L. Henry II to enter open guilty pleas to all charges. After conducting a thorough colloquy, Judge Herny accepted the pleas and ordered a presentence investigation report (PSI). Lazar was represented by counsel at his plea.

Subsequent to the acceptance of the guilty plea, these cases were reassigned to this court for disposition. At the sentencing hearing on August 31, 2007,1 imposed the following sentence: (1) on Information no. 489 of2006, a net sentence of 57 to 180 months incarceration, plus costs and restitution in the amount of $ 16,569.10; (2) on Information no. 519 of 2006, a net sentence of 9 to 36 months incarceration plus costs and restitution in the amount of$4,619.47; (3) on Information no. 574 of2006, a net sentence of 18 to 48 months incarceration, plus costs and restitution in the amount of $9,610; (4) on Information no. 575 of 2006, a mandatory sentence of 12 to 24 months incarceration, plus costs; (5) on Information no. 576 of 2006, a net sentence of one to six months, plus a fine of $50 and costs; and (6) on Information no. 700 of 2006, a sentence of three to 12 months incarceration, plus costs, restitution in the amount of $385, and afine of $25. (N.T., sentencing at 12-16.)

Appellant was sentenced on the low end of the standard guideline range on each burglary charge in each Information. Each net burglary sentence at each Information was made consecutive to one another for an aggregate sentence of 99 months to 300 months, or eight years and three months to 25 years in the state correctional institution. The criminal conspiracy charges were made concurrent to the burglary charges and to each information. Appellant’s total restitution was in the amount of $31,183.57. Lazar was represented by counsel at this sentencing hearing.

On September 7,2007, Lazar filed a timely motion to modify and reduce the sentence of imprisonment imposed on these offenses. By order dated September 10, 2007, this motion was denied.

Lazar then filed a direct appeal with the Superior Court of Pennsylvania on October 9, 2007. Pursuant to this court’s directive, Lazar furnished a concise statement of matters complained of on appeal which sets forth two bases for this appeal: (1) the sentence imposed by the court was so manifestly excessive as to constitute an abuse of discretion because of the court’s “clearly unreasonable” imposition of consecutive sentences; and (2) the sentence imposed by the court was so manifestly excessive as to constitute an abuse of discretion because it was “grossly disproportionate” to the sentence imposed by this court on his co-defendant, Eric Kinney.

II. DISCUSSION

Appellant’s two arguments on appeal relate to his sentencing. The sentence imposed by this court on Lazar is within the permissible statutory máximums and, therefore, clearly is a legal sentence. Lazar asserts that it nonetheless is a manifestly excessive one. With this issue, appellant is challenging the discretionary aspect of his sentencing. Commonwealth v. Hartman, 908 A.2d 316 (Pa. Super. 2006). Such challenges must be raised in a post sentence motion or during the sentencing proceedings, or they are waived. Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). See also, Pa.R.A.P. 302(a). Appellant did raise this claim in his motion to modify sentence; therefore, this claim is preserved for appeal.

However, even when the discretionary aspects of a judgment of sentence are properly challenged, there is no automatic right to appeal. See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super. 2007), citing Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000). Two requirements must be met before such a challenge will be heard on the merits. First, the appellant must set forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. Pa.R.A.P. 2119(f); Hornaman, 920 A.2d at 1284. Second, he must show that there is “a substantial question that the sentence [imposed] is not appropriate under the Sentencing Code.” 42 Pa.C.S. §9781(b). See also, Commonwealth v. Mouzon, 571 Pa. 419, 425, 812 A.2d 617, 621 (2002).

The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. Commonwealth v. Simpson, 829 A.2d 334, 337 (Pa. Super. 2003); Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003). Generally, however, in order to establish a substantial question, the appellant must show actions by the sentencing court that were either “(1) inconsistent with a specific provision of the Sentencing Code or (2) contrary to the fundamental norms underlying the sentencing process.” Hornaman, 920 A.2d at 1284; Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003). Only then do the facts require a grant of allowance of appeal of the discretionary aspects of the sentence.

In this case, appellant has filed with this court a timely statement of matters complained of on appeal in which he raises a discretionary aspect of sentence claim. We will assume for purposes of this appeal that appellant will likewise satisfy the requirements of Pa.R.A.P. 2119(f) by filing a separate concise statement with the Superior Court. Additionally, Lazar has averred that the trial court imposed a sentence in violation of a particular provision of the Sentencing Code. Specifically, appellant claims a sentence of eight years and three months to 25 years incarceration was “clearly unreasonable” under 42 Pa.C.S. §9781(c)(2). Thus, as appellant has challenged his sentence imposed under 42 Pa.C.S. §9781(c)(2), which is a specific provision of the Sentencing Code, he has raised a substantial question on appeal and we will address the merits of appellant’s discretionary aspect of sentence claim. See Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). Moreover, appellant’s second claim raises a substantial question by alleging an unexplained disparity between his sentence and that of a co-defendant. See Commonwealth v. Cleveland, 703 A.2d 1046, 1048 (Pa. Super. 1997), citing Commonwealth v. Canfield, 432 Pa. Super. 496, 501, 639 A.2d 46, 49 (1994) (substantial question presented because “a disparity between sentences imposed upon co-defendants does touch upon the fundamental norms which underlie the sentencing process”).

We begin by noting that sentencing is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). An abuse of discretion is more than an error in judgment. A sentencing court has not abused its discretion “unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill will.” Walls, 592 Pa. at 564, 926 A.2d at 961 (quoting Commonwealth v. Smith, 543 Pa. 566, 571, 673 A.2d 893, 895 (1996).

In considering whether a sentence was manifestly excessive or unreasonable the appellate court must give great weight to the sentencing judge’s discretion, as he or she is in “the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.” Walls, 592 Pa. at 565, 926 A.2d at 961 (quoting Commonwealth v. Ward, 524 Pa. 48, 52, 568 A.2d 1242, 1243 (1990). See also, Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997) (noting that the sentencing court is in the best position to measure various factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance or indifference).

In clarifying the proper standard of appellate review of a sentencing court’s imposition of sentence, our Supreme Court recently noted:

“Simply stated, the sentencing court sentences flesh- and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. Even with the advent of the sentencing guidelines, the power of sentencing is a function to be performed by the sentencing court____Thus, rather than cabin the exercise of a sentencing court’s discretion, the guidelines merely inform the sentencing decision.” Walls, 592 Pa. at 565, 926 A.2d at 961-62. (footnote omitted; citations omitted)

Reduced to its essence, appellant’s first claim on appeal is that the only “reasonable” sentence that he could have received for his many crimes at six different dockets is one that runs entirely concurrently. Appellant was facing sentencing on 38 separate felony charges. The sheer number of crimes which he committed between September and December 2006 could not be ignored by making all of the sentences concurrent with one another. In fact, our appellate courts have expressed disapproval of routinely running sentences concurrently lest criminals receive a “volume discount” for their separate criminal acts. See Commonwealth v. McClintic, 589 Pa. 465, 486, 909 A.2d 1241, 1253 (2006); Commonwealth v. Mouzon, 828 A.2d 1126, 1130 (Pa. Super. 2003).

Long-standing precedent recognizes that 42 Pa.C.S. §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, upon consideration of the individual circumstances concerning the defendant and the many crimes he committed. Commonwealth v. Perry, 883 A.2d 599 (Pa. Super. 2005); Mouzon, 828 A.2d 1126; Commonwealth v. Wright, 832 A.2d 1104 (Pa. Super. 2003). The imposition of consecutive, as opposed to concurrent, sentences is solely within the discretion of the trial court. Commonwealth v. Johnson, 873 A.2d 704 (Pa. Super. 2005); Commonwealth v. Druce, 796 A.2d 321 (Pa. Super. 2002), judgment aff’d, 577 Pa. 581, 848 A.2d 104 (2004).

Discretion is limited, however, by 42 Pa.C.S. §9721(b), which provides that a sentencing court must formulate a sentence individualized to that particular case and that particular defendant. Section 9721(b) provides: “[t]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant....” 42 Pa.C.S. §9721(b).

Although acknowledging that the sentence was within the standard range of the sentencing guidelines, appellant nonetheless claims that the court “applied a uniform rule and did not tailor its sentence to the individual circumstances of this case and this particular defendant,” disregarding mitigating circumstances and concentrating instead on the nature of the offense. It is clear from a review of the record in this case that in fashioning this sentence the court did consider the individual circumstances concerning appellant and the many crimes he committed. As noted at the sentencing hearing, the court took into account the following factors: appellant’s age (28); his family history; his adult criminal record; his educational background; his alcohol and substance abuse history, starting with his use of marijuana at the age of 15 and alcohol at the age of 16; his employment history; appellant’s letter to the court; the victim impact statements; and the entire pre-sentence investigation report. (N.T., sentencing at 11-12.)

Specifically, the court is aware that appellant left high school before completing the tenth grade. However, appellant admitted that he dropped out of school as a result of “lack of motivation toward education,” not because of intellectual difficulties. In fact, appellant reported that when he was 18 years old, his employer enrolled him in a basic trade course in electricity at the Delaware County Area Community College in Media, Pennsylvania, which he successfully completed.

Despite appellant’s somewhat consistent work history between October 2000 and July 2005, he owes a total of $2,896.85 in fines, costs and restitution, resulting from his prior criminal activity in Chester, Delaware and Lancaster counties. With regard to his criminal history, his theft charges started in 1998, and grew to include forgery and drug charges. Appellant’s sentencing in August 2007 marked his twelfth appearance before the court, including three prior court appearances for probation/parole violations.

It is clear that this court carefully considered the entire pre-sentence investigation report. As our Superior Court noted:

“Since the sentencing court had and considered a presentence report, this fact alone was adequate to support the sentence, and due to the court’s explicit reliance on that report, we are required to presume that the court properly weighed the mitigating factors present in the case. Commonwealth v. Boyer, 856 A.2d 149 (Pa. Super. 2004). In Boyer, we stated:

“ Tn imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant’s prior criminal record, age, personal characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a pre-sentence investigation report, it will be presumed that he or she was aware of the relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. . . .’” Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006).

To the extent that appellant argues that the trial court did not adequately consider the mitigating factors, i.e., his cooperation with the police at the time of his arrest and his acceptance of full responsibility for his actions, such a claim is not supported by the record and, in any case, does not raise a substantial question. Commonwealth v. Hanson, 856 A.2d 1254, 1257-58 (Pa. Super. 2004).

In addition, we note that when “sentencing an appellant, the trial court is permitted to consider the seriousness of the offense and its impact on the community.” Commonwealth v. Roden, 730 A.2d 995, 998 (Pa. Super. 1999). Appellant has an eight-year history of committing thefts, forgeries and burglaries in this county. He has done nothing to show that he has attempted to alter his behavior. Restrictive measures are required in order to protect society from being further victimized by his criminal conduct. Appellant’s history of criminal activity and encounters with the law are the result of his confirmed, unchangeable criminal attitude towards society and its rules.

The assertion that appellant’s sentence is “unreasonable” for failing to tailor it to the individual circumstances of this case is without any support in the record or the facts of this case.

Moreover, while the burglary sentences in this case were made consecutive to one another, it should be noted that all of appellant’s sentences on the criminal conspiracy charges were made concurrent to each other and to the burglary sentences. Given the sheer number of criminal acts committed in this case, as well as appellant’s total exposure as far as lawful máximums and potential consecutive sentences, appellant’s sentence was not an abuse of discretion.

In his second issue on appeal, appellant contends that the sentence was so manifestly excessive as to constitute an abuse of discretion because it was disproportionate to the sentence imposed on his co-defendant, Eric Kinney. The fact that the sentences for these co-defendants were, in appellant’s terms, “disproportionate” speaks to the fact that the sentences were individualized and not uniform.

As stated by the Supreme Court in Commonwealth v. Burton, 451 Pa. 12, 15, 301 A.2d 675, 677 (1973), it has never been the rule in this Commonwealth that co-defendants are required to receive equal sentences. See Commonwealth v. Myers, 370 Pa. Super. 326, 330, 536 A.2d 428, 430 (1988), citing Commonwealth v. Sinwell, 311 Pa. Super. 419, 427, 457 A.2d 957, 960 (1983). Because sentencing judges are required to look beyond the facts of the crime to the character and record of the individual defendant, different sentences for co-defendants does not mean that one of the sentences is disproportionate. Commonwealth v. Speight, 578 Pa. 520, 542, 854 A.2d 450, 463 (2004). However, when there is a disparity between co-defendants’ sentences, a sentencing court must give reasons particular to each defendant explaining why they received their individual sentences. Cleveland, 703 A.2d at 1048 (where sentencing court noted defendant’s unresponsiveness to previous attempts at rehabilitation, lack of remorse, and drug and alcohol use, court clearly articulated ample, individualized reasons for the sentence imposed on defendant that sufficiently explain the disparity between defendant’s sentence and that of his co-defendant). Thus, disparity of sentences between co-defendants is permissible and will be upheld when facts exist to warrant unequal sentences. Burton, supra.

Initially, it is important to note that appellant’s co-defendant, Eric Kinney, pleaded guilty to a total of 30 criminal charges, as opposed to appellant’s 40 offenses. Moreover, Kinney’s family, social and educational histories differed significantly from appellant’s. Kinney lived all his life with his parents in Parkesburg, Pennsylvania. While attending high school and playing varsity baseball, Kinney held jobs at Wendy’s and Wal-Mart. He graduated high school in June 2005. After graduation, Kinney worked part-time at a Wawa.

Kinney began his alcohol and drug use while a senior in high school, about the time he starting hanging out with appellant, who was nine years his senior. Following graduation, Kinney was drinking alcohol weekly and smoking marijuana on a daily basis. Kinney’s prior juvenile record consists of three disorderly conducts from incidents occurring on August 18,2005, and August 23, 2005, in Parkesburg. These charges resulted in a payment of fines and costs.

Between September and December 2005, Kinney participated with appellant in the burglaries of 13 different businesses in and around Lancaster County and was involved in the growing of almost a dozen marijuana plants at appellant’s residence. Kinney was 17 going on 18 when he engaged in this criminal activity with appellant, who was then 27.

After his incarceration on these charges in January 2006, Kinney participated in the Lancaster County Prison’s Substance Abuse Program from August 2006 through January 2007, when he was successfully discharged. At his sentencing, Kinney provided non-family character references from a community outreach coordinator for the organization, “Octorara Communities That Care,” a Parkesburg Borough Council member and police committee chair, an Octorara schools volunteer, and a neighbor and friend.

Given the disparate facts relative to the character and record of the individual defendants, the sentences imposed on appellant and his co-defendant Kinney were not “grossly disproportionate, clearly unreasonable, and unjust.” (See motion to modify sentence at ¶14.) Moreover, the sentence imposed on appellant was not so manifestly excessive as to constitute too severe a punishment. See Mouzon, 571 Pa. at 430-31, 812 A.2d at 625. Appellant’s sentence was within the standard range of the sentencing guidelines and did not exceed the statutory máximums. Thus, the sentence should stand.

III. CONCLUSION

For the reasons set forth above, appellant’s judgment of sentence should be affirmed and his appeal dismissed.

Accordingly, I enter the following:

ORDER

And now, November 5,2007, the court hereby submits this opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

      . 18 Pa.C.S. §3502(a), 18 Pa.C.S. §903(a)(l), respectively.

      .18 Pa.C.S. §3502(a), 18 Pa.C.S. §903(a)(l), 18 Pa.C.S. §3304(a) (5), respectively.

      . 18 Pa.C.S. §3502(a), 18 Pa.C.S. §903(a)(l), respectively.

      . 35 Pa.C.S. §780-113(a)(30), 18 Pa.C.S. §903(a)(l), respectively-

      .35 Pa.C.S. §780-113(a)(31).

      . 18 Pa.C.S. §3502(a), 18 Pa.C.S. §3304(a)(l), respectively.

      . Judge Henry is a visiting senior judge from Jefferson County.

      . Appellant also entered a negotiated plea of guilty to the charges docketed to Criminal Information no. 2787 of 2005. These charges occurred between December 10 and 12, 2004. On the charge of small amount of marijuana, appellant was sentenced to 30 days probation and ordered to pay a fine of $100 and costs. On the charge of drug paraphernalia, appellant received a sentence of one year probation and costs. For the charge of theft by unlawful taking, appellant was sentenced to one year probation and costs. A sentence of two years probation plus costs was imposed for the charge of access device fraud. Restitution was further ordered in the amount of $393.50. All sentences were concurrent. (Notes of Testimony (N.T.), guilty plea, at 2-3, 8-9, 11.)

      . Section 9781(c) provides in pertinent part:
      “(c) Determination on appeal. — The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
      “(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
      “(2) the sentencing court sentenced within the sentencing guidelines but the case in vol ves circumstances where the application of the guidelines would be clearly unreasonable; or
      “(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable. In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.” 42 Pa.C.S. §9781(c)(2).

      . Appellant self-reported that he had worked at RGB Electric in Malvern, Pennsylvania from the summer of 2001 to the summer of 2002. This information was unverifiable as the owner and president of the company indicated that his employment records only date back to 2005. Additionally, appellant reported that he worked at Brian Osborne’s Painting in Gap, Pennsylvania from the summer of2002 to the summer of 2005. The Office of Probation was unable to verify this employment as the business could not be located.


author: GORBEY, J.,

text:
    In re J. S.

      David Alspach, for Children and Youth.

      Cynthia Gorman, for J. S.

      Gina Carnes, for Mother.

      November 20, 2007

      Pamela Brenaman, for Father.
   GORBEY, J.,

PROCEDURAL HISTORY

E. F. (Mother) and R. S. (Father) first came to the attention of the court on August 8,2007 when a petition was filed by the Lancaster County Children and Youth Social Service Agency requesting temporary custody of J. S. (J.), then known as Baby Boy F., who had been born on August 6, 2007. J. was placed in the temporary care of the Agency on August 8,2007 and a shelter care hearing was scheduled for August 10, 2007. The hearing scheduled for August 10 was continued at Father’s request, and after a rescheduled hearing on August 15, 2007, the child was continued in the care, custody, and control of the Agency. The next hearing was scheduled for and held on September 12,2007, after which the court issued an order finding J. to be dependent, found aggravated circumstances as to both Mother and Father and approved the child permanency plan of no return home.

On October 4, 2007, Father filed an appeal of the September 12 order to the Superior Court and on October 9, 2007, Mother filed a similar appeal. On October 10, the court ordered Mother to file a concise statement of the errors complained of on appeal, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. In the same order, Father was ordered to file an answer, specifically addressing those matters identified. On October 9, the court ordered Father to file a concise statement of the errors complained of on appeal, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. In the same order, Mother was ordered to file an answer, specifically addressing those matters identified. Both parties filed a timely statement of matters complained of on appeal on October 25, 2007.

FACTUAL HISTORY

Mother has had a long history with the Lancaster County Children and Youth Social Service Agency, extending back to 1989. (N.T. 5.) The records of her past cases have been made a part of this record by agreement of the parties. (N.T. 28-29.) Her first child, R. R., went into foster care on December 18, 1990 and her rights to that child were terminated on April 2,1992, because she failed to complete her reunification plan. (N.T. 5.) A second child, A.V., was placed on October 25,1991, and again Mother’s rights were involuntarily terminated. (N.T. 5-6.) A. was adopted on December 22, 1993 and custody was released to the adoptive parents on December 28, 1993. (Decree dated December 28,1993, 657 of 1991.)

On August 8, 1992, Mother called the Agency to request placement of her two children, S. S. and J. S., because she was in labor and had no one to care for them when she went to the hospital. The Agency placed the children with the paternal grandmother, where they remain. (N.T. 7, 15.)

On November 10, 1998, Mother again called the Agency to ask for assistance. She told them she had returned to Lancaster from Harrisburg with her two children to go into hiding from an abusive relationship and had nowhere to live. Both children, A. and A. B., had high lead levels which were untreated. The Agency took custody of the children and experienced difficulty with Mother’s lack of commitment to visits, therapy and failure to distance herself from R. S. (N.T. 13-14, hearing of October 3,2001, no. 373 of 1999.) Finally at ahearing on April 12, 1999, the court returned the children to Mother, conditioned upon her staying in the Bridge Housing Program in Harrisburg. (N.T. 12, hearing of April 12, 1999, no. 1209 of 1998.) Seven days later, Mother was discharged from the program for failure to cooperate through inadequately supervising her children on two occasions, verbally abusing a staff person and leaving against staff advice. She returned to Lancaster, and the children were again placed in the Agency’s custody on April 21, 1999, with a finding of aggravated circumstances. Mother’s parental rights were subsequently terminated and the two girls were adopted together in October of 2003. (Id. at 7.)

A fifth child, A. R, was permanently placed with relatives pursuant to a private agreement in 1998.

N. J. S. was born on January 22,2002 and the Agency took him directly from the hospital. (N.T. 3, hearing of January 28,2002, no. 44 of 2002.) His father was R. S., who had been Mother’s boyfriend for several years and with whom she had a history of domestic violence. Aggravated circumstances were found against both parents. Father never participated in an Agency assessment. (N.T. 8.) Father’s parental rights were involuntarily terminated and Mother’s voluntarily relinquished on May 12, 2004. (N.T. 15.) N. has been adopted.

J. S. was born on August 6, 2007 at home and was taken by the Agency one day later. Although Mother contended that she had broken off all contact with R. S. in 2004, J. was conceived on one occasion when, she explained, she accidentally ran into Father. (N.T. 10-11.) Both parents visit J. and act appropriately toward him. (N.T. 9.)

R. S. is the father of the last two of Mother’s children. He has exhibited violence against Mother. On July 13, 2001 he shot at her and at a taxicab she was entering. (N.T. 5-6, October 3, 2001, no. 313 of 1999.) Two charges were brought against him, assault and recklessly endangering. (Id. at 7.) The charge of aggravated assault was withdrawn because Mother refused to cooperate with the police and refused to testify against Father. (N.T. 7-8.) Since then he has faced drug charges, possession of drugs and drug paraphernalia, simple assault and terroristic threats. As of the hearing in August of 2007, he was awaiting arraignment on drug charges. (N.T. 12.) When he lived with Mother he refused to fill out a form for a criminal check. (N.T. 56-57, hearing of October 3, 2001, no. 373 of 1999.) However, Father has told the Agency his life has moved in another direction. He has been living in a Christian group home since a month prior to the August 7, 2007 hearing and has been employed since September 4, 2007 in a clothing store. The home has regulations that their residents must have a positive lifestyle, working and attending church. (N.T. 12-13,23.) Prior to living in the group home he had been in prison. (N.T. 23.)

Mother has had eight children prior to J. Three have been permanently placed with relatives. Her rights to one were voluntarily relinquished for purposes of adoption, and four others have been involuntarily terminated pursuant to Mother’s failure to cooperate with her return plans. She failed to obtain stable housing or employment. She had lied to the Agency and to the court. She lied to the Agency during A.’s and A.’s case by denying her involvement with R. S. She told the Agency that R. S., who was not to be in the house with children, was her brother, not her live-in boyfriend, a lie that was discovered when the caseworker went to visit S. in prison and recognized the man she had met at Mother’s house. (N.T. 16, hearing of October 3, 2001, no. 373 of 1999.) At other times she introduced him to a caseworker as a neighbor. {Id. at 65.) She lied to the court about her status with the Harrisburg Bridge Housing Program. (N.T. 34-40.) She has a history of relationships with violent men, Mr. S. only being the latest. {Id. at 28-29.)

Lately, however, Mother appears to have shown improvement and contends she has changed her life for the better. (N.T. 32.) She had a part-time job prior to J.’s birth. She has been in the same housing since February of 2007. (N.T. 10.) She receives Social Security disability because of anxiety, and has the support of her family. (N.T. 11.) She receives public assistance. (N.T. 16.) She was compliant with her prescribed prenatal care. (N.T. 18.) She has looked into budgeting and neighborhood services. (N.T. 18.) She does not plan on a fixture relationship with Father. (N.T. 10.) She has not had any criminal charges for two years. (N.T. 17.) Her only recent drug test was negative. (N.T. 18.) The Agency presented the court with two options — either to provide a reunification plan for J. with Mother or to do a plan for J. alone. (N.T. 14.)

ISSUES

(1) Whether a 3-month-old child can be adjudicated dependent and its mother given no reunification plan when this is Mother’s ninth child to be removed from her care, five of whom to which her rights had been terminated, when Mother has a history of becoming involved with and protecting violent men, was often without a suitable home, did not supervise her children properly, and lied to the Agency and to the court about substantial relevant matters, despite the passage of several years since the last termination.

(2) Whether a 3-month-old child can be adjudicated dependent and his father given no reunification plan when Father’s rights to his first child had been involuntarily terminated, he has a history of perpetrating domestic violence, had shot at the mother of the child several years before, had a criminal history of drug possession and use, assault, terroristic threats and has been in adequate housing only since the baby’s birth.

ANALYSIS

Under the Juvenile Act, a dependent child is one without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. 42 Pa.C.S. §6302. A determination of dependency depends upon the answers to two questions: (1) whether the child at this moment is without proper care or control, and (2) if so, whether such care and control is immediately available. In re R. T., C.A., K.A., 778 A.2d 670, 677 (Pa. Super 2001). There is little doubt that J. is a dependent child. He was taken immediately after birth because of Mother’s and Father’s substantially negative past histories. Mother has never supplied sufficient commitment or ability to parent or maintain eight prior children in her care and there is no new evidence that that commitment or ability to parent has been attained. Father has had his rights to his prior child terminated and has exhibited excessive violence against Mother, as well as having had a criminal history involving drugs, assault, and terroristic threats. Neither parent can provide appropriate care and control of J.

Additionally, aggravated circumstances are clearly present in both cases, since both parents have had their rights to prior children involuntarily terminated. 42 Pa.C.S. §6302. With a finding of aggravated circumstances, the court’s examination takes on a new direction. As the Superior Court has explained:

“Placement of and custody issues pertaining to dependent children are controlled by the Juvenile Act, which was amended in 1998 to conform to the federal Adoption and Safe Families Act (ASFA). The policy underlying these statutes is to prevent children from languishing indefinitely in foster care, with its inherent lack of permanency, normalcy, and long-term parental commitment. Consistent with this underlying policy, the 1998 amendments . . . place the focus of dependency proceedings, including change of goal proceedings, on the child. Safety, permanency, and well-being of the child must take precedence over all other considerations, including the rights of the parents.” In re N.C., A.C. and L.C., 909 A.2d 818, 823 (Pa. Super 2006). (emphasis in original) (citations omitted)

In other words, the ASFA was “designed to curb an inappropriate focus on protecting the rights of parents when there is a risk of subjecting children to long-term foster care or returning them to abusive families.” In the Interest of C.B. and A.L., 861 A.2d 287, 295 (Pa. Super, 2004).

The court must now consider whether Mother’s and/ or Father’s current apparent improvement has placed this particular child in a different situation so that a reunification plan is appropriate or whether apian should be made only for J.’s future. The court has decided that the latter option is in the child’s best interest.

Analysis of Mother’s Case

Since 1989, Mother has not shown an ability to parent appropriately. Eight children have been permanently removed from her care. The last time she cared for children, she failed to supervise them to such an extent that the Harrisburg Bridge Housing Program found that as part of the reason for her being expelled from their program. But now, Mother says she has changed. She has lived in the same apartment for eight months. She had a part-time job prior to J.’s birth. She receives SSI. She has looked into community services. She has family support. But all of these actions are new, all begun, it appears, since the onset of her pregnancy. And during this time she has not had the stress of a child in her care. She has not yet found a new boyfriend, who historically tend to be violent. There was no testimony concerning her participating in counseling, which the court considers to be necessary. While Mother has made progress toward the goals of past permanency plans, her present parenting skills have not been addressed in the record and therefore remain as problematic as they were in her eight previous situations. She is not yet able to give this child permanency and stability, since clearly at least another six months in care is contemplated. The guardian ad litem, who supported a reunification plan, did not support an immediate return to Mother.

The Agency has presented the court with two options— one a reunification plan and the other a plan for J. should the court not want reunification. The court does not wish this child to have to undergo the problems that reunification with this particular mother would cause. She has apparently made some improvements in her life, as set out above. But the court does not believe that they are enough and is not sure that they are permanent and/or sincere.

Mother has a history of lying both to the Agency and to the court. Knowing that Father’s violent tendencies were not acceptable to the Agency, she falsely denied that he was living with her, even going so far as to introduce him to a caseworker as her brother. The court is leery of her assertions that she is not now and will not in the future have a relationship with him. J. was conceived during a time when Mother denied a relationship with Father. Given Mother’s penchant for presenting untruths to save herself from further problems, the court believes it to be more than possible that Mother and Father did not just accidentally run into each other and then produce a child after a “one night stand.” She lied to the court about her involvement in the Bridge Housing Program and still continued to insist at the last hearing she was truthful, although credible facts showed otherwise. In short, the court finds Mother to be a non-credible witness, whose word is not to be trusted.

If reunification were chosen, J. would remain in foster care, certainly longer than the next six months, waiting for Mother to complete her plan, a task which she has failed at least four times before, in order to retrieve custody of this child. Mother has waited too long to easily convince the court that she can finally be trusted to complete her plan in order to have J. returned to her. If she follows her past behavior, this child will remain in foster care, visiting with his mother and refused permanent placement. The operable statutes give this court the obligation to consider this matter from the point of view of providing the child with safety, permanency and well-being. The court does not believe that the relationship between Mother and Father is at an end, since it is not clear what will happen if she runs into him again, or no longer has her child’s return to motivate her. After 18 years, the court does not see that Mother can complete her plan, including efficacious counseling, within the next year, which time frame jeopardizes the child’s current relationships and permanency. A child’s life simply cannot be put on hold in the hope that the parent will summon the responsibility of parenting. In re N. C., A. C. and L.C., 909 A.2d 818, 824 (Pa. Super 2006). The court is concerned, because of Mother’s propensity to paint reality as she wishes it to be, not as it is, that the welfare of this child will not be served by being connected to a mother whose behavior has been unpredictable and untrustworthy. The best interest of this child in terms of permanency and well-being is to be adopted into a loving, stable family, where he can grow up appropriately, not to be held in limbo while we wait to see if Mother has really altered her ability to care for a child.

Analysis of Father’s Case

J. is Father’s second child to be without a reunification plan, the first having beenN., to whom Father’s parental rights were terminated. There is no question as to the action the court must take in this case in the face of aggravated circumstances. Father has a history of violence and criminal activity. He has treated Mother violently, shooting at her and the taxicab she was entering in 2004. He is involved with drugs not only in the far past, but awaiting arraignment for a drug charge as of August of 2007. He too informs the court that he has turned his life around, living in a Christian group home which requires moral behavior, and holding a job. But neither the home, nor the job are of long standing, the latter being only two months. This is a man who would not cooperate with an agency plan or criminal check in the past and cooperated with Mother in lying to the Agency about his identity. The court does not see that Father can reform at a fast enough rate. There is no evidence that his violent streak, or his propensity toward criminal activity has been permanently cured, and it is much too soon to place J. in a situation which will threaten his safety and well-being. And, as in Mother’s case, waiting for Father to clear up all of his difficulties will be a negative for J.’s permanency. A reunification plan will not be given to Father.

Both appellants objected in their 1925(b) statements to the court’s referring to past records. This is an objection without merit, since both parties agreed to the incorporation of those records during the September 12, 2007 hearing in this case.

Also, both appellants contend that their negative behavior of the past took place several years earlier, and should not now be considered. The court notes that that past behavior lasted over a long period of time and the improved behavior is very new. Neither party offered convincing evidence, professional or otherwise, that their improved behavior can be expected to continue. The court is loathe to risk J.’s welfare on a premature acceptance of Mother or Father’s reform after so long a time of behavior antithetical to a child’s well-being.

CONCLUSION

For the reasons stated above, the court finds J. S. to be a dependent child and will not provide a reunification plan for Mother, E. F., or Father, R. S.

      . The Superior Court has provided separate docket numbers to Mother’s and Father’s appeals. This opinion is applicable to both actions since the parties and facts are so intricately entwined.

      . The dateless cites to notes of testimony refer to the September 12,2007 hearing involving J. Any cites to the record of past cases will contain date and docket number.

      . Names and dates not appearing in the testimonial record were obtained from the Agency petition for custody.


author: MINORA, J,

text:
    Taylor v. Nourian

      James E. Colleran and David J. Colleran, for plaintiffs.

      Mark T. Perry, for defendants Moskel, Nourian and Rahman.

      Michael P Perry, for defendant Scranton Counseling Center.

      Eugene P Feeney, for defendant Community Medical Center.

      October 22, 2007
   MINORA, J,

I. INTRODUCTION

Currently outstanding in this consolidated medical professional liability action are the following:

(1) The motion for summary judgment of the defendants Ali Nourian M.D., Muhammed Rahman M.D. and Peter Moskel M.D.

(2) The preliminary objections of the defendants Ali Nourian M.D., Muhammed Rahman M.D. and Peter Moskel M.D.

(3) The preliminary objections of defendants Scranton Counseling Center and Community Medical Center.

In the interests of judicial economy, we will dispose of the above with this comprehensive memorandum and order. By way of factual background, this medical malpractice action was commenced by the filing of a complaint on October 21, 2005. The complaint alleges that defendants were negligent for discharging the mother, plaintiff Janice Taylor, from the Community Medical Center in June of 2000, and for failing to recognize and appreciate the severity of Janice Taylor’s psychiatric condition during her pregnancy in 1999-2000. As a result of this alleged negligence, Janice Taylor experienced a psychotic episode on July 14,2000 and stabbed her then 4-year-old son, minor-plaintiff Zachaiy Taylor, numerous times and attempted to inflict harm upon herself and her unborn daughter, minor-plaintiff Claire Taylor, by overdosing on Thorazine and stabbing herself in the abdomen. As alluded to above, the claim of Janice Taylor and Brian Taylor filed to docket no. 2002 Civil 2879 has been consolidated with the related claim of the minor-plaintiffs Zachaiy Taylor and Claire Taylor filed to 2005 Civil 4254.

All of the outstanding preliminary objections and/or motions for summary judgment have been thoroughly submitted on brief and are ripe for disposition.

We will address the above in seriatum.

II. MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS ATI NOURIAN M.D., MUHAMMED RAHMAN M.D. AND PETER MOSKELM.D.

A. Standards for Summary Judgment

In ruling on a motion for summary judgment, the court shall enter judgment whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Under the rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt. See Pa. R.C.P. 1035.2 and Toy v. Metropolitan Life Insurance Co., 928 A.2d 186, 194-95 (Pa. 2007). (internal citations omitted)

Keeping those principles in mind, we now turn to the specifics of defendant, Nourian’s, Rahman’s and Moskel’s motion for summary judgment.

Moving defendants contend they are entitled to judgment as a matter of law since their actions cannot constitute “gross negligence” as a matter of law sufficient to pierce the immunity provisions of the Mental Health Procedures Act. The specific section at issue is 50 P.S. §7114(a) which states:

“Section 7114. Immunity from civil and criminal liability
“(a) In the absence of willful misconduct or Gross Negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this Act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination or treatment, shall not be civilly or criminally liable for such decision or for any of its consequences.” (emphasis added)

In that regard, we note that plaintiffs have produced an expert report dated November 19,2004 from one Dr. Robert M. Toborowsky which opines and supports a theory of gross negligence. (See exhibit “B” to plaintiffs’ brief in opposition to the instant motion for summary judgment.)

Also, our colleague, the Honorable Trish Corbett, ruled in an order dated and filed February 15, 2005, that genuine issues of material fact exist as to whether the defendants’ conduct can be deemed grossly negligent. (See exhibit “K” to plaintiffs’ brief in opposition to the instant motion for summary judgment.)

It is obvious that Judge Corbett relied on the report of Dr. Toborowsky in making her ruling. Moreover, we cannot alter the resolution of this legal issue previously decided by a trial judge of coordinate jurisdiction as it is now the law of the case. Zane v. Friends Hospital, 575 Pa. 236, 836 A.2d 25 (2003).

Therefore, any attempt to support a summary judgment motion based on 50 P.S. §7114 must be denied.

Also, moving defendants are supplementing their request for summary judgment based on the absence of a physician-patient relationship establishing a duty between the minor plaintiffs and moving defendants.

However, they are overlooking the fact that Pennsylvania has adopted Restatement (Second) of Torts, §324A which states:

“Section 324A. Liability to thirdpersons for negligent performance of undertaking
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third persons upon the undertaking.”

See DiMarco v. Lynch Homes—Chester County Inc., 525 Pa. 558, 583 A.2d 422 (1990); Haas v. Mateer, no. 2005-1957, PICS no. 07-0713 Court of Common Pleas of Centre County — Judge Kistler (exhibit “A” to plaintiff’s third supplemental brief in opposition to defendants’ preliminary objections). Moreover in DeJesus v. U.S. Department of Veterans Affairs, 479 F.3d 271 (3d Cir. 2007), the court indicated that a defendant psychiatrist could owe a duty to third persons based on the Mental Flealth Procedures Act, 50 P.S. §7114(a) whenever a plaintiff can prove that a healthcare provider failed to meet his duty to refrain from gross negligence in decisions regarding treatment, discharge or commitment of a patient, thus rendering that healthcare provider liable for injury to the person or property of third parties where such injury resulted from the healthcare provider’s grossly negligent failure to meet his responsibility. See DeJesus v. U.S. Department of Veterans Affairs, 479 F.3d 271, 282 (3d Cir. 2007); Goryeb v. Pennsylvania Department of Public Welfare, 525 Pa. 70, 575 A.2d 545 (1990); Vattimo v. Lower Bucks Hospital Inc., 502 Pa. 241, 258, 465 A.2d 1231, 1240 (1983); Sherk v. County of Dauphin, 531 Pa. 515, 526, 614 A.2d 226, 232 (1992).

Therefore, since Judge Corbett already established that there are issues of material fact regarding the existence of “gross negligence” and a statutory duty to third persons is possible based on such gross negligence, we must deny moving defendants’ motion for summary judgment based on an alleged absence of a physician-patient relationship and a duty to the third party minor-plaintiffs.

III. THE PRELIMINARY OBJECTIONS OF THE DEFENDANTS, ALI NOURIAN M.D., MUHAMMED RAHMAN M.D. AND PETER MOSKELM.D.

The preliminary objections of the defendants, Nourian, Muhammad and Moskel are two-fold:

(1) The plaintiffs have not pled gross negligence with the specificity required by Pa.R.C.P. 1019(a) and 1028(a)(3) and therefore paragraphs 61,62 and 63 of their complaint should be stricken.

(2) Plaintiffs have failed to state a claim upon which relief can be granted based on the absence of a physician-patient relationship to the third party minor plaintiffs and therefore, a demurrer should be granted as per Pa.R.C.P. 1028(a)(4).

A. General Standards for Preliminary Objections in the Nature of a Demurrer and/or Motion To Strike

A preliminary objection in the nature of a demurrer or a motion to strike can only be granted where the pleading is legally insufficient. We must accept as true all facts set forth in plaintiff’s complaint as well as all inferences reasonably deducible therefrom.

We must determine that even if the facts alleged are accepted as true would the pleading permit recovery under any legal theory.

Finally, a demurrer can be granted only when it is clear and free from doubt that the law would not permit recovery under any legal theory and all doubts must be resolved against granting a demurrer. See Hess v. Fox Rothschild LLP, 925 A.2d 798 (Pa. Super. 2007).

In regards to whether or not plaintiffs have pled gross negligence with enough specificity to satisfy Pa.R.C.P. 1019, we note that the material facts upon which a cause of action is based must be stated in a concise and summary form. See Pa.R.C.P. 1019(a); Commonwealth ex rel. Pappert v. TAP Pharmaceutical Products Inc., 885 A.2d 1127 (Pa. Commw. 2005). We further note that a plaintiff does not have to plead evidence. PennDOT v. Bethlehem Steel Corporation, 33 Pa. Commw. 1, 380 A.2d 1308 (1977).

In reviewing the sufficiency of a pleading, we look at the complaint as a whole and recognize that “sufficiency” is not capable of precise measurement. Yacoub v. Lehigh Valley Medical Associates PC., 805 A.2d 579 (Pa. Super. 2002), appeal denied, 573 Pa. 692, 825 A.2d 639 (2003); Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978).

In looking at the pleading as a whole in the context of the claim as presented, plaintiffs have sufficiently placed the defense on notice of their claim for gross negligence and whether a certain set of circumstances satisfies the definition of “gross negligence” is a question of fact to be determined by a jury and not as the result of a hyper-technical analysis of pleadings. See Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159 (1997).

Therefore, defendants Nourian’s, Rahman’s, and Moskel’s preliminary objections in the nature of a motion to strike paragraphs 61,62 and 63 of plaintiffs ’ complaint will be overruled, dismissed and denied.

As to the next preliminary objection in the nature of a demurrer based on the absence of a duty to the minor-plaintiffs based on the absence of a physician-patient relationship, we have already addressed those legal issues in section II of this memorandum and for the same reasons relative to the adoption of Restatement (Second) of Torts §324A, defendants Nourian’s, Rahman’s and Moskel’s preliminary objections in the nature of a demurrer will be overruled, dismissed and denied.

IV. THE PRELIMINARY OBJECTIONS OF DEFENDANTS COMMUNITY MEDICAL CENTER AND SCRANTON COUNSELING CENTER

Again, these preliminary objections in the nature of a demurrer per Pa.R.C.P. 1028(a)(4) are premised on a lack of duty and lack of physician-patient relationship between the minor children and the healthcare providers.

For the same reasons set forth in our analysis of the duty to third parties set forth in section II of this memorandum, the preliminary objections of defendant Community Medical Center and Scranton Counseling Center will be overruled, dismissed and denied.

A comprehensive order consistent with the above will follow.

ORDER

And now to wit, October 22,2007 upon consideration of the various motions for summary judgment and/or preliminary objections of the collective defendants and in accordance with the foregoing memorandum, the following rulings are made:

(1) The motion for summary judgment filed on behalf of defendants, Ali Nourian M.D., Muhammed Rahman M.D. and Peter Moskel M.D. is denied.

(2) The collective preliminary objections of defendants, Ali Nourian M.D., Muhammed Rahman M.D., Peter Moskel M.D., the Scranton Counseling Center and the Community Medical Center are overruled, dismissed and denied.


author: SPATARO, J.,

text:
    State Farm Mutual Insurance Co. v. Pfaff
    July 25, 2007

      William C. Wagner, for plaintiff.

      Alan L. Pepicelli, for defendants.
   SPATARO, J.,

State Farm Mutual Automobile Insurance Company has filed this declaratory judgment action against Kevin Pfaff and Sonya Pfaff. State Farm asks that the court “issue a declaration providing that the Pfaff defendants’ claim for underinsured motorists benefits to cover defendant Kevin Pfaff’s alleged emotional injury is denied, that plaintiff State Farm is not required under the terms of its policies to make any underinsured motorists payment to Pfaff.”

State Farm issued an automobile insurance policy to Pfaff. On May 30,2005 both Kevin and Sonya Pfaff were involved in a terrible vehicular accident. On that date, Kevin Pfaff was operating a motorcycle, with his wife Sonya seated behind as a passenger. The motorcycle was struck by a vehicle that had crossed the center line of the highway. Sonya Pfaff suffered significant injuries, including the loss of her left leg. Kevin Pfaff was not as seriously injured and has apparently made a full recovery of his physical injuries.

At the time of the accident, the tort-feasor was insured through Erie Insurance Company which paid over to Pfaff the policy limits. Thereafter, the Pfaffs sought to recover pursuant to the underinsured coverage provisions of the State Farm policy. State Farm paid the underinsured limits to Sonya, but did not pay the limits to Kevin. Kevin then moved toward having his underinsurance claim resolved by way of the arbitration provisions of the State Farm policy, appointing Attorney E. Max Weiss as his arbitrator. State Farm moved toward arbitration as well, appointing Attorney William Haushalter. State Farm then filed this declaratory judgment action.

Pfaff has filed preliminary objections, asserting lack of jurisdiction over the subject matter, as well as contending that there is a prior action and agreement for arbitration which supplants the effort to have the court decide the issues of coverage in a declaratory judgment action. In addition, Pfaff has filed a petition to compel arbitration.

The Superior Court case of Bottomer v. Progressive Casualty Insurance Company, 816 A.2d 1172 (Pa. Super. 2003), is dispositive of the issues now before the court. Specifically, in Bottomer the insured filed a petition to compel arbitration, contending that a coverage issue, i.e., whether the “family car exclusion” precluded coverage of the insured’s UIM claim, was an issue which was subject to arbitration and could also be litigated by the insurer filing a declaratory judgment action. As in the present case, the insurer in Bottomer had filed a declaratory judgment action, seeking enforcement of the family car exclusion language. Thus, both actions were tracking at the same time, the insured’s petition to compel and the insurer’s declaratory judgment action.

The Superior Court in Bottomer noted the differing forms of arbitration, those being:

(1) Common-law arbitration;

(2) Arbitration under the Uniform Arbitration Act of 1980; and

(3) Arbitration under the Act of 1927.

The insurance policy in Bottomer, as in the instant case, authorized arbitration pursuant to the Arbitration Act of 1927, distinguishing cases which were decided under the other forms of arbitration. The Supreme Court held that “where arbitration is to proceed under the rules and procedures of the Arbitration Act of 1927, a declaratory judgment action and the underlying arbitration should be allowed to proceed at the same time.” Id. at 1177.

Not only is the holding in Bottomer good law, but also we note a significant distinction between Bottomer and the instant matter that compels that the arbitration proceeding complete its course first. In Bottomer the underlying issue was strictly a matter of law, i.e., whether the family car exclusion precluded coverage. In the instant matter, there are mixed issues of fact and law. Kevin Pfaff was not only present when his wife was injured, but was himself injured in the accident. State Farm asserts, in the declaratory judgment action, that Kevin Pfaff was fully compensated for the bodily injuries he actually sustained in the accident, but who is to say that is the case? It may be that Kevin Pfaff was not made whole with respect to his physical injuries, even if one does not consider the emotional distress he most certainly experienced from observing the horrific injuries sustained by his wife. The term “bodily injury” is subject to interpretation in the context of the insurance contract and by application of tort law generally. Damages for negligently caused mental trauma are not precluded in every case, and tort law now recognizes a cause of action for such damages in certain situations, even when the claimant is outside the zone of danger of actual physical contact with the negligent force. See e.g., Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Brooks v. Decker, 343 Pa. Super. 497, 495 A.2d 575 (1985), aff’d, 512 Pa. 365, 516 A.2d 1380 (1986); Anthem Casualty Insurance Company v. Miller, 729 A.2d 1227 (Pa. Super. 1999).

Once the arbitration proceeding has concluded and the decision of the arbitrators has been made, the parties will have the transcripts from that proceeding for use in the declaratory judgment action if there is a need to proceed with the declaratory judgment action. Issues of fact will have been decided. The board of arbitrators is no less capable of deciding the coverage issue than this court. Therefore, the prudent course in this case, which has mixed questions of both law and fact, would be to grant the petition to compel arbitration, but deny the preliminary objections, while issuing the equivalent of a case management order that requires that the declaratory judgment action be held in abeyance until after the completion of the arbitration proceedings.

In accordance with the foregoing, it is hereby ordered as follows:

ORDER

And now, July 25,2007, the petition to compel arbitration is granted. The parties are directed to proceed, without delay, with the arbitration process as required under the insurance contract and in conformity with the Arbitration Act of 1927.

The defendants’ preliminary objections are denied at this time. However, in the nature of a case management order, this court directs that the declaratory judgment action be held in abeyance or otherwise stayed pending the outcome of the arbitration proceedings. In the event the arbitration proceedings result in a resolution acceptable to all parties, then the plaintiff is directed to file a praecipe, discontinuing the declaratory judgment action. In the event either or both of the parties are dissatisfied with the decision of the arbitrators, provided that the dissatisfaction is in connection with the coverage issue raised in the declaratory judgment action, then in that event, the stay relating to this declaratory judgment action will be lifted upon motion of the dissatisfied party to the arbitration proceedings.


author: HANNA, J,

text:
    Bruner v. Gaskill

      Martha Bruner, pro se.

      Anthony Sottile III, for defendant.

      May 10, 2007
   HANNA, J,

This matter comes before the court on defendant’s exceptions to the report and recommendation of the permanent hearing officer. For the reasons set forth in this opinion, the court will grant the defendant’s exceptions.

FACTUAL AND PROCEDURAL HISTORY

Robert L. Gaskill is an unemancipated adult (age 19, d.o.b.: January 19, 1988), and is in 11th grade at the Blairsville Area School District. He is the child of Eric Gaskill (Father) and Brenda McDannell (Mother). Robert had been living with Mother pursuant to a 1992 custody order. In August 2006, Robert moved out of Mother’s home and into the home of his maternal grandmother, Martha Bruner (Grandmother). The move was done without consulting either parent. Robert moved on his own volition, and Grandmother accepted him into her home because she wanted to create stability in Robert’s life. Prior to the move, Father had been paying child support to Mother.

On August 24, 2006, Grandmother filed a complaint for child support against Father and Mother. On September 13,2006, this court entered an order directing Father to pay $479 per month ($409 in current support of $70 in arrears) to Grandmother for child support. On September 18,2006, Father filed an appeal and requested a de novo hearing. A hearing was held before the permanent hearing officer, Robert S. Muir, Esquire (PHO), on November 6, 2006. Based on the testimony presented the PHO recommended that Father be directed to pay $488 per month in child support. On November 28,2006, this court ordered Father to pay $513 per month ($488 in current support and $25 in arrears) in child support.

On December 21,2006, Father filed 12 exceptions to the PHO’s findings and recommendations:

(1) The PHO erred in finding that Grandmother accepted Robert into her residence because she was interested in creating stability in his life.

(2) The PHO erred in finding that Grandmother falls within the definition of guardian under Pa.R.C.P. 2026(b).

(3) The PHO erred in finding that the living accommodations provided by Grandmother are reasonable.

(4) The PHO erred in finding that Grandmother has standing to bring the action pursuant to Rule 1910.3(e) as a guardian in the nature of next friend.

(5) The PHO erred in finding that the rationale for allowing this case to proceed is different from that presented in the Elkin case.

(6) The PHO erred in finding that Grandmother has standing to file for child support even though it was filed after Robert’s 18th birthday.

(7) The PHO erred in finding that the only reason the Oeler court terminated support was due to the fact that the court found the child to be emancipated.

(8) The PHO erred in finding that Father cannot attempt to avoid support by claiming a desire to have his son reside with him when he has not initiated an action for custody.

(9) The PHO erred in finding that this result does not seem unfair to Father since Father was paying child support for Robert to Robert’s mother prior to the residence change.

(10)The PHO erred in finding that the Solomon case was decided on the basis that the person of interest was deemed emancipated and that all of the needs of the subject child were being met.

(11)The PHO erred in finding that since Grandmother is a third party, her income is of no relevance and shall not be considered for child support purposes.

(12)The PHO erred in finding that the combined net monthly income of the parties is $2,632.98.

DISCUSSION AND ANALYSIS

Father’s first major issue of contention is that the PHO erred in finding that Grandmother has standing to file for child support. Father argues that Grandmother does not fall within the category of people who are allowed to bring support actions.

23 Pa.C.S. §4341(b) states: “[a]ny person caring for a child shall have standing to commence or continue an action for support of that child regardless of whether a court order has been issued granting that person custody of the child.” For domestic relations purposes, a child is defined as “[a]ny unemancipated person under 18 years of age.” 23 Pa.C.S. §5302. The PHO found that Robert Gaskill is not a child under this definition, and therefore Grandmother does not have standing under 23 Pa.C.S. §4341(b). The court agrees with this finding.

Further, Pa.R.C.P. 1910.3(e) provides that a support action may be brought “by a parent, guardian or public or private agency on behalf of an unemancipated child over 18 years of age to whom a duty of support is owing.” Grandmother obviously does not fall into either the category of parent or agency. Therefore, the only category she could fall into is guardian. The PHO found that Grandmother is a guardian, relying on the definition of guardian in Pa.R.C.P. 2026, which states: “ ‘guardian,’ except where the context otherwise indicates, means the party representing the interest of a minor party in any action, whether as (a) the guardian of a minor appointed by any court of competent jurisdiction, (b) a person in the nature of a next friend selected to represent a minor plaintiff in an action, or (c) a guardian ad litem specifically appointed by the court in which the action is pending.”

The PHO found that Grandmother satisfied subsection (b) of 2026 and that she had standing as Robert’s next friend. Father argues this finding is incorrect because next friend status requires representation of a minor plaintiff in an action, and Robert was not a minor at the time the action was instituted. This issue was addressed by the Pennsylvania Superior Court in Elkin v. Williams, 755 A.2d 695 (Pa. Super. 2000), where an 18-year-old unemancipated adult moved in with a family friend while he finished high school. The Elkin court found that the family friend did not fit the definition of “guardian” under 1910.3(e) because the 18-year-old was not a minor. Id. at 699. Like the family friend in Elkin, Grandmother does not fit the description of a guardian as it is used in Rules 1910.3(e) and 2020(b) because Robert was not a minor at the time that the action was instituted. Therefore, the court finds that Grandmother did not have standing to bring this support action because she does not meet the statutory requirements.

Further, even if Grandmother did have standing to bring the action, she is still not entitled to support under Pennsylvania case law. In Oeler v. Oeler, 527 Pa. 532, 594 A.2d 649 (1991), the Pennsylvania Supreme Court found that the trial court properly terminated child support when a 17-year-old child chose to live in her own apartment and did not offer justifiable reason for not living with her father. The court stated that the father clearly did not refuse to support his daughter. Rather, the father was “refusing to allow his daughter to dictate the proper allocation of support monies.” Id. at 537, 594 A.2d at 651.

Further, in Elkin, the Superior Court cited Oeler and stated that an unemancipated adult “may not prevail in departing from [his] mother’s home claiming attainment of majority and a desire to attend a certain high school, and then charge [mother] with his support.” 755 A.2d at 699. The court further noted that, even though a parent has the duty of supporting a child until the child reaches 18 or graduates from high school, the parent does not have to be subjected to the child dictating how or to whom the support should be allocated.

Additionally, in Solomon v. Solomon, 13 D.&C.4th 395, 400 (Westmoreland Cty., 1991), the trial court cited Oeler, stating:

“If the Supreme Court has concluded that support need not be paid when a minor child refuses to live with a parent, it appears all the more clear that an adult child cannot compel a parent to pay for her support when she chooses not to reside with a parent who has offered his home.”

In that case, an unemancipated 18-year-old woman chose to live with her former foster mother rather than live with her father, who had offered his home to her.

In the present case, as in Oeler and Elkin, Robert was trying to dictate the allocation of support monies. He apparently no longer wished to live with Mother, to whom Father was obligated to pay Robert’s support. He also did not wish to live with Father, who could provide his support directly. Rather, Robert wanted to choose to live apart from both of his parents and still reap the benefits of their support.

Further, as in Solomon, there was testimony that Father was willing to allow Robert to live with him. (Hearing transcript, page 18.) This court agrees with the Solomon court that, based on Oeler, it would be particularly unfair to compel a parent to pay support for his adult child when he is willing to directly provide support to the child by taking the child into his home.

Therefore, because Robert chose to live with Grandmother instead of Father, and the record shows no justifiable reason for doing so, the court finds that Father is not obligated to pay support to Grandmother.

Wherefore, the court makes the following order.

ORDER

And now, May 10, 2007, this matter having come before the court on the defendant/Father’s exceptions and the court having heard oral argument thereon, and based upon the argument, and the court’s review of the record, it is hereby ordered and directed that the defendant/Father’s exceptions are granted and this court’s orders of November 28, 2006 and September 13, 2006 are vacated.

      . These facts were derived from the PHO’s report, the pleadings and the hearing transcript.

      . The court notes that the Oeler court focused on the fact that the daughter in that case did not have a “justifiable reason” for not living with her father. Here, as in Oeler, the record is devoid of any evidence of a justifiable reason for why Robert cannot live with Father. If Grandmother had standing, a different outcome may have occurred if such evidence had been presented.


author: SOLOMON, J.,

text:
    Commonwealth v. Humphreys
    August 22, 2007

      Jack Heneks, for Commonwealth.

      Dianne Zerega, for appellant.
   SOLOMON, J.,

Following a trial by jury, the appellant, Terry Keith Humphreys, was found guilty of indecent assault, 18 Pa.C.S. §3126(a)(7), and corruption of minors, 18Pa.C.S. §6301(a)(l). Thereafter, the appellant was sentenced and then filed an appeal from the judgment of sentence to the Superior Court of Pennsylvania. This opinion is in support of the verdict of the jury.

STATEMENT OF THE CASE

When M.S., the victim in this case, was 5 years old, she began to visit her grandparents every weekend. N.T., 3/7/07, at 19,21-22. During these visits, she would also visit the home of her aunt and her husband, the appellant. Id. at 23.

One day, as her aunt slept, the victim was watching television. Id. at 31. The appellant sat beside her and put his hand down her pants and then under her shirt, touching her “private parts” and her “chest” underneath her clothes. Id. at 32-33. Putting his hand inside her underwear, he touched her vagina and moved his hand around. Id. at 35. He then put his hand under her shirt and felt her breast. Id. at 35-36.

After touching M.S., the appellant removed his pants and told her to touch his penis, which she did, and it became “hard.” Id. at 37-38. When he was finished, he told her he would do it again if she told anyone. Id. at 36.

The same acts then occurred more than 20 times until M.S. was 10 years of age. Id. at 41. The appellant finally stopped these actions when, at age 10, M.S. told him she had told someone but, in reality, she had not told anyone. Id. at 41-42.

At the time of trial, M.S., who was bom on August 7, 1993, was 13 years and 7 months of age. Id. at 17. The Commonwealth and the appellant stipulated that the appellant was over the age of 18. Id. at 63.

In his own defense, the appellant denied that any improper touching had ever occurred.

Upon this testimony, a jury of the appellant’s peers found him guilty of indecent assault and corruption of a minor.

DISCUSSION

In his concise statement, the appellant raises the following issues:

(1) That the verdict was against the weight and sufficiency of the evidence;

(2) That “the court erred in precluding the defense to introduce testimony from the alleged victim’s brother”; and

(3) That “the court erred in allowing the testimony of the alleged victim, who was under 14 years of age at the time of trial, without making an inquiry into the competence of the witness under Rule 601 of the Pennsylvania Rules of Evidence.”

Initially, the appellant asserts that the verdict was against the weight of the evidence. This issue has not been properly preserved for consideration since the appellant did not present it first to the trial court. Pa.R.Crim.P. 607(A), 42 Pa.C.S. (“A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentencing motion”). See also, Commonwealth v. Butler, 729 A.2d 1134, 1140 (Pa. Super. 1999), appeal denied, 560 Pa. 668, 742 A.2d 167 (1999). Here, the appellant first raises this claim on appeal. Therefore, since he did not comply with Rule 607, this claim is waived.

Also in his first issue, the appellant contends that the “verdict was against the... sufficiency of the evidence.” With regard to insufficiency of evidence claims, we observe the following standard:

“ ‘ [A]n appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.’. . . The proper application of the sufficiency test requires us to evaluate the entire trial record and all evidence actually received in the aggregate and not as fragments isolated from the totality of the evidence____This standard means that [the appellate court] must review the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. . . . Moreover, the jury, as the trier of fact, is free to believe all, some or none of the evidence presented____” Commonwealth v. Kasunic, 423 Pa. Super. 112, 115-16, 620 A.2d 525, 527 (1993). (citations omitted)

Instantly, the trier of fact was free to believe all or part of the testimony of any witness, while disregarding the testimony which it deemed to be untruthful. Likewise, mere conflict of testimony does not render a verdict insufficient. Commonwealth v. Evans, 299 Pa. Super. 529, 445 A.2d 1255 (1982).

Since there were two guilty verdicts, we are unsure if the appellant is contending that the evidence was insufficient to sustain the guilty verdicts against him for both indecent assault and corruption of minors. However, we will address both guilty verdicts.

With regard to the charge of indecent assault, the statute provides that “[a] person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if: (7) the complainant is less than 13 years of age.” 18 Pa.C.S. §3126(a)(7). Indecent contact is defined as “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S. §3101. This contact even encompasses touching through the clothing. Commonwealth v. Ricco, 437 Pa. Super. 629, 634, 650 A.2d 1084 (1994) (concluding that touching through the clothing may be considered “indecent contact” and rejecting a per se rule requiring “skin-to-skin” contact); In the Interest of M.S., a Minor, 10 D.&C.4th 282, 283 (1990) (“The [‘indecent contact’] element of‘touching’ can be established even though the private parts of the victim are touched over the clothing.”).

Here, though, we have testimony presented by the victim that the appellant touched her breasts and her vagina, placing his hand underneath her shirt and inside her underwear. In addition, the appellant also had the victim touch his penis. These acts continued to take place between the time the victim was 5 years old and 10 years of age. Therefore, since the jury is free to believe this testimony, and viewing the facts in a light most favorable to the Commonwealth as the verdict winner, it is clear that the jury could have reasonably concluded that all of the elements of the crime of indecent assault were established beyond a reasonable doubt. Hence, the verdict should not be disturbed.

With regard to the issue of whether the evidence was sufficient to establish that the appellant had corrupted the morals of a minor, we utilize the standards set forth, supra, and look to the elements of the crime.

Corruption of minors is defined as “[w]hoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age . . . commits a misdemeanor of the first degree.” 18 Pa.C.S. §6301(1). This charge encompasses any act, the consequence of which transcends any specific sex act. Commonwealth v. Hitchcock, 523 Pa. 248, 253, 565 A.2d 1159, 1162 (1989).

Viewing the evidence in a light most favorable to the Commonwealth as the verdict winner, the acts of the appellant, who was older than 18 years of age, in touching the breasts of the victim, a child of 10 years of age or less at the time, placing his hand inside her underwear and touching her vagina, as well as having her touch his penis, were clearly acts which would corrupt, or tend to corrupt, the morals of the victim, a minor. Therefore, it is clear from the testimony presented, and believed by the jury, that the evidence was sufficient for the jury to reasonably conclude that all of the elements of the crime of corruption of a minor had been proven beyond a reasonable doubt. Thus, this issue is without merit.

The next issue raised by the appellant is that the trial court erred in precluding the appellant from introducing testimony from the victim’s brother. With regard to this issue, we are at a loss. The transcript of the trial reveals that after the Commonwealth had rested, the appellant took the stand in his own defense. Id. at 64. Upon the conclusion of his testimony, the appellant rested without offering, or calling, any other witness. Id. at 84. Nowhere in the transcript is there any request or offer by the appellant to call any other witness. Hence, this issue lacks merit.

The last contention of the appellant is that the trial court erred in allowing the victim, who was under the age of 14 at the time of trial, to testify without making inquiry into her competence under Rule 601 of the Pennsylvania Rules of Evidence. Initially, we would note that when the victim, who was nearly 14 years of age, was called to testify, no question was raised as to her competency. Id. at 15-16. Additionally, no objection as to her competency was ever raised.

Under Rule 601, “[ejvery person is competent to be a witness.” However, a person can be incompetent to testify “if the court finds that because of a mental condition or immaturity the person:

“(1) is, or was, at any relevant time, incapable of perceiving accurately;

“(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;

“(3) has an impaired memory; or

“(4) does not sufficiently understand the duty to tell the truth.” Pa.R.E. 601.

Prior to Rule 601, it had been held that if the child is under the age of 14, there must be a judicial inquiry as to mental capacity. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). However, since Rosche, new Rule 601 does not establish a minimum age for competency. Pa.R.E. 601. “A decision on the necessity of a competency hearing is addressed to the discretion of the trial court.” Commonwealth v. Delbridge, 578 Pa. 641, 662, 855 A.2d 27, 39 (2003).

In her testimony, both on direct and cross, the victim was able to clearly and accurately recall the assaults made upon her by the appellant. Her testimony demonstrates that, at all relevant times, she was capable of perceiving accurately; able to express herself so as to be understood; did not have an impaired memory; and sufficiently understood the duty to tell the truth. Therefore, this issue is also without merit.

Wherefore, it is respectfully submitted that the appeal of the defendant lacks merit and should be denied.