author: CARPENTER, J,

text:
    Commonwealth v. Clyburn

      Anthony Gil, Assistance District Attorney, for Commonwealth at Trial.

      Robert Martin Falin, Deputy District Attorney, for defendant on appeal.

      Anne C. Clyburn, pro se at trial.

      Samuel C. Stretton, for defendant on appeal.
    December 3, 2010
   CARPENTER, J,

FACTUAL AND PROCEDURAL HISTORY

Appellant, Anne L. Clyburn, appeals from the judgment of sentence imposed on September 9, 2009, following her conviction of theft by unlawful taking or disposition (over $2,000), theft by unlawful taking or disposition ($200 - $2,000), theft by deception, false impression (over $2,000), theft by deception, false impression ($200 - $2,000), receiving stolen property (over $2,000), receiving stolen property ($200 - $2,000), tampering with records or identification and unlawful use of a computer.

Appellant’s convictions arose from her former position as Chief Executive Officer at the United Food and Commercial Workers Local 1776 Federal Credit Union. During her approximately six and one-half years as CEO, appellant awarded herself raises which were never approved by the credit union’s board of directors, she manipulated the line of credit on her credit union issued debit card and wrote checks from the credit union’s operating account for her personal expenses. Appellant stole more than $32,400.00 from the credit union’s members, a credit union which serves people of very modest means.

On July 7, 2010, appellant was brought before this court for a three-day jury trial, stating that she wished to represent herself. (Trial 7/7/10 p.4) Thereafter, this court conducted a colloquy in order to assure the validity of appellant’s waiver of counsel. Satisfied that appellant knowingly, intelligently and voluntarily waived her right to counsel, this court proceeded to conduct the trial with appellant promoting a pro se defense.

At trial, the Commonwealth called Joseph Bressi, the current CEO of the credit union and appellant’s successor, to testify. The Commonwealth also presented Mary Dunne, the treasurer of the credit union, Sergeant Rocco Wack and a forensic accountant, Steven A. Witten, to testify. After the Commonwealth rested, appellant presented the testimony of Professor Stephan Clybum, appellant’s husband. The Commonwealth then presented a rebuttal witness, Nans Lassen, a union-side labor attorney.

At the conclusion of the trial, appellant was found guilty of the aforementioned charges. On September 9, 2010, appellant, who was then represented by counsel, was sentenced. Subsequently, with the assistance of counsel, appellant filed post-sentence motions. These were denied on September 13, 2010. This timely counseled appeal followed.

ISSUES

I. Whether appellant knowingly, voluntarily and intelligently waived her right to counsel at trial.

II. Whether the verdict was against the weight of the evidence, and whether the evidence was sufficient to convict appellant.

III. Whether this court properly warned appellant to ask proper questions at trial.

IV. Whether appellant had the opportunity to voir dire the expert witness, Steve Whitten.

V. Whether Steve Whitten’s expert opinion was proper.

VI. Whether this court was responsible for directing the court reporter to transcribe the notes of testimony of the opening statements and closing arguments.

VII. Whether this court properly allowed the jury to take back, during deliberations, the forensic accounting reports.

VIII. Whether the testimony of Nans Lassen was proper.

IX. Whether this court was required to colloquy appellant on her decision not to testify at trial.

X. Whether the accountant’s report was properly introduced during the testimony of Joseph Bressi.

XI. Whether appellant had the opportunity to question Joseph Bressi on re-cross examination.

XII. Whether Mary Dunne properly referenced the forensic report.

XIII. Whether testimony regarding a severance package was proper.

DISCUSSION

I. Appellant Knowingly, Voluntarily and Intelligently Waived Her Right to Counsel at Trial

First, appellant argues that she did not have a knowing, voluntary and intelligent waiver of her right to counsel. This court disagrees.

A criminal defendant’s right to counsel under the Sixth Amendment includes the concomitantrightto waive counsel’s assistance and proceed to represent oneself at criminal proceedings. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. El, 602 Pa. 126, 134, 977 A.2d 1158, 1162 (2009). The right to appear pro se is guaranteed as long as the defendant understands the nature of his choice. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. In Pennsylvania, Rule of Criminal Procedure 121 sets out a framework for inquiry into a defendant’s request for self-representation. Pa.R.Crim.P. 121. Where a defendant knowingly, voluntarily, and intelligently seeks to waive his right to counsel, the trial court must allow the individual to proceed pro se. See, El, supra; Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335 (1995) (holding that a defendant must demonstrate a knowing waiver).

To ensure that a waiver of counsel is knowing, voluntary and intelligent, a defendant must be colloquied on her understanding of at least the following six elements: (1) whether she understands her right to free counsel, (2) whether she understands the nature of the charges against her and their elements, (3) whether she is aware of the possible sentences, (4) whether she understands that if she waives her right to counsel, she will still be bound by the rules of procedure and that counsel would be familiar with these rules, (5) whether she understands that there are possible defenses of which counsel might be aware and which may be lost permanently and (6) whether she understands that she has other rights that may be lost permanently if not timely asserted, including objections to errors. Pa.R.Crim.P 121(A)(2); Commonwealth v. Houtz, 856 A.2d 119 (Pa.Super. 2004).

In this case, appellant affirmatively stated that she wished to represent herself. (Trial 7/7/ 10 p. 4). This was not the first time that appellant expressed to the court that she wished to do so. Id. at 13. It is a conversation that appellant had with this court on more than one occasion in the courtroom. Id. at 13-14. Appellant had previously expressed that she had some difficulty with attorneys in the past and finally got to the point where she intended to represent herself. Id. at 13. The decision to waive the right to counsel was not a decision appellant made on the day of trial. Id.

Appellant reviewed, understood and signed the waiver of counsel form. Id. at 4-5, 13. The Commonwealth comprehensively reviewed with appellant the possible range of sentences she could be facing if she were to be found guilty of the various charges. Id. at 5-9. Appellant was also made aware that those sentences could be imposed consecutively. Id. at 8-9. This court explained that the rules of criminal procedure, The Pennsylvania Rules of Evidence and the rules of criminal law would be applied in this case, and appellant would be bound by such rules. Id. at 9. Appellant affirmed that she understood. Id. It was made clear that appellant would be expected to ask proper questions or they would not be allowed. Id. Appellant was aware that proper courtroom decorum was expected. Id. at 9-10. Additionally, the process of jury selection was thoroughly described. Id. at 9-12. Moreover, this court explained an overview of how the trial would proceed. Id. at 13. After this extensive colloquy, this court was satisfied that appellant’s decision to proceed without the benefit of counsel was a deliberate decision and her waiver of counsel was voluntarily tendered.

Appellant also argues that stand-by counsel should have been appointed and available to her during trial; however, under Pa.R.Crim.P.121 the power to do so is discretionary and not mandatory. She had discharged counsel previously retained. After her trial she retained new counsel. Had she desired standby counsel, she clearly had the means to retain standby counsel but chose not to.

II. The verdict Was Not Against the Weight of the

Evidence, and the Evidence Was Sufficient to Convict Appellant.

Next, appellant contends that the verdict was against the weight of the evidence and the evidence was insufficient to support the verdict. Appellant argues that the evidence essentially consisted of alleged pay raises that were not approved by the board of directors and three or four checks written for dental treatment for her husband.

Appellant states that the record referenced the board of directors raising questions about whether or not she was entitled to additional monies since she was a union member at all pertinent times and somehow was entitled to such raises. Further, appellant claims that the record also demonstrated there was an issue on the dental matters as to a test account. Appellant argues that the minutes of the board of directors were presented, but that no one from the board of directors with authority was presented to indicate that there was no approval for such raises. Appellant also argues that Mary Dunne, the member of the board of directors who testified, was uncertain and confused about her being a union member, did not remember many things. Ms. Dunne testified she was aware that both the Federal government and the supervisory board has repeatedly audited the accounts and found nothing wrong. Finally, appellant argues that Ms. Dunne confirmed that she did a good job during her years of being a CEO from 2000 through 2007.

At trial the following facts were established. Joseph Bressi, the current CEO of the credit union and appellant’s successor, uncovered accounting irregularities which occurred during appellant’s tenure. (Trial 7/7/10 p. 49-52). After uncovering these irregularities and reporting it to the board of directors, the board of directors hired an independent forensic auditor, Steven A. Witten, to perform a forensic investigation. (Trial, V. 2, 7/8/10 p. 35). Mr. Witten’s investigation revealed that appellant during her tenure as CEO of the credit union provided herself with $32,469 in unauthorized pay raises and bonuses, wrote three checks totaling approximately $1000 to Alan Kirsh, who was not on the list of the credit union’s approved vendors and accessed her debit card account to increase the availability of funds. Id. at 37, 44 - 45, 52 - 80.

Mary Dunne, a union representative of the credit union and a member of the board of directors, also testified on behalf of the Commonwealth. In part, Ms. Dunne verified that appellant did not have the authority to give herself pay raises and bonuses not approved of by the board of directors. (Trial 7/7/10 p. 113). Additionally, Ms. Dunne confirmed that appellant did not have permission to write checks to Alan Kirsh, appellant’s husband’s dentist. Id. at 112. On cross-examination, appellant vigorously questioned Ms. Dunne. In the course of her cross-examination, appellant asked Ms. Dunne about the union and its collective bargaining agreement. Through this line of questioning, appellant advocated the defense that she was only giving herself raises and bonuses as provided for in the collective bargaining agreement that she was entitled to as a union member. Id. at 123-133, 158-160. On re-direct, Ms. Dunne explained that appellant was exempt from union status since she held a management position with the credit union. Id. at 161.

In support of appellant’s union member defense, she presented the testimony of her husband, Professor Stephan Clyburn. Mr. Clyburn testified that appellant had been a union member since February 2, 2002 as indicated on her union membership card. (Trial, V. 3 7/9/10 pp. 11). He also stated that appellant had been paying union dues from early 2002 until the time of her termination as CEO. Id. at 13.

The Commonwealth presented a rebuttal witness, Nans Lassen. Ms. Lassen is a union-side attorney who represent’s the credit union. Id. at 34, 35. In significant part, Ms. Lassen testified that the recognition clause in the 2002 and 2004 collective bargaining agreements contains language that specifically excludes from coverage the president and CEO of the credit union, supervisors and other managerial employees. Id. at 42 - 43,45. In other words, these individuals are not entitled to the benefits of the collective bargaining agreement. Ms. Lassen explained that such individuals are excluded from union coverage because they negotiate the collective bargaining agreement on behalf of the credit union and they don’t share the same community of interests as non-managerial employees under the agreement. Id. at 43. In addition to discussing the recognition clause, Ms. Lassen also explained the difference between being a member of a union as opposed to being entitled to the benefits of a collective bargaining agreement. Id. at 46. Ms. Lassen clarified that although appellant might have been a member and paid dues to the union, she was not entitled to the benefits under the collective bargaining agreement as set forth in the recognition clause in the agreement, a contract that appellant helped to negotiate and signed on behalf of the credit union. Id. at 49.

Although appellant styles her issue as both a sufficiency of the evidence and weight of the evidence claim, it seems that based on the argument in support thereof appellant is really asserting a weight claim only as she is asking our appellate court to ignore the evidence presented by the Commonwealth and only focus on her defense as asserted through her cross-examination of the Commonwealth witnesses and the testimony of Mr. Clyburn. Appellant’s argument identifies and concentrates only on the evidence that was inconsistent with the evidence presented by the Commonwealth. In effect, appellant’s current argument is a reiteration of the defense she advocated, but which was ultimately rejected by the jury.

III. This Court Properly Warned Appellant to Ask Proper Questions at Trial.

Third, appellant contends that this court erred in repeatedly threatening her with contempt when she would not properly frame her questions or sometimes referenced other matters. Appellant argues that if this court felt that she was incapable of representing herself, then this court erred in allowing her to waive her right to counsel. Appellant claims that this court’s repeated threats of contempt chilled her right of advocacy and her ability to effectively represent herself.

During cross-examination at trial, appellant repeatedly made statements in the form of testimony that were not questions. At sidebar, this court warned appellant that such conduct was improper, and cautioned her to not continue making those kinds of statements. Appellant was warned that if she did not cease this behavior a contempt hearing would be held. (Trial 7/7/10 p. 79 - 80). Appellant acknowledged that she understood this warning. Id. at 80. This court warned appellant again. Id. at 83. Appellant continued to make improper remarks rather than ask proper questions. Id. at 86. At that point, this court addressed the jury and instructed them to disregard the highly improper side remarks that appellant insisted on making, which were not in the form of questions. It was made clear to appellant that stronger action would be taken if it continued to happen. Id. at 86 - 87. The warning needed to be repeated once again while the jury was • not in the courtroom. Id. at 118. At that time this court noted that appellant had been disregarding and willfully abusing the court’s order by not complying. Appellant was told that if she continued to make the improper comments in front of the jury that are testimonial in nature and speaking in terms of things that she believed occurred or did not occur, this court would conduct contempt proceedings. Id. Finally, prior to the arrival of the jury on the second day of trial, this court gave appellant a court order, specifically warning her against any further disruptive conduct, which would not be tolerated by this court. (Trial, V. 2 7/8/10 p.3).

During appellant’s colloquy to determine whether her waiver of counsel was knowing and intelligent, this court informed appellant that she would be bound by the Rules of Criminal Procedure, the Pennsylvania Rules of Evidence and the rules of criminal law. (Trial 7/7/10 p. 9). Appellant acknowledged that she understood. Id. In addition, this court specifically stated that she would have to ask proper questions or they wouldn’t be allowed. Id. Given these directives, appellant stated that it was still her decision to proceed pro se with a jury trial. Id. at 10. Therefore, appellant knew before the trial began that she would be held to the same standard as an attorney regarding proper questioning of witnesses, and she decided to go forward with the jury trial unrepresented. A criminal defendant who knowingly and intelligently waives her right to counsel so that she may represent herself at trial may not later rely upon her own lack of legal expertise as aground for a new trial. Commonwealth v. Bryant, 579 Pa. 119, 136, 855 A.2d 726, 736 (Pa. 2004). That is exactly what appellant is doing here.

Additionally, appellant’s behavior was improper, and this court properly warned appellant of the consequences. Appellant’s claim that her right of advocacy was chilled is disingenuous as evidenced by the fact that this court was required to issue repeated warnings of contempt for the same improper behavior. In fact, these warnings had little impact on appellant’s advocacy.

IV. Appellant Had the Opportunity to Voir Dire the Expert Witness, Steve Whitten.

Appellant next contends that this court erred in not allowing her the opportunity to voir dire Mr. Whitten, the expert witness. In particular, appellant claims that after the Commonwealth questioned him on his qualifications, this court never gave her an opportunity to do so. Appellant argues that his testimony was critical and the failure to allow a challenge to his credentials was reversible error.

After the Commonwealth conducted its voir dire, this court accepted Mr. Whitten as an expert in forensic accounting. Appellant did not object to his qualifications, object to this court’s finding that Mr. Whitten as an expert or make it known that she wished to voir dire Mr. Whitten. Therefore, this issue is waived as it may not be raised for the first time on appeal. Pa.R.A.P. 302(a).

V. Whether Steve Whitten’s Expert Opinion was Proper.

In her fifth issue on appeal, appellant claims that this court erred in allowing Mr. Whitten to give expert opinions on the ultimate issue as to fraud. Appellant states that Mr. Whitten was presented as an expert witness on forensic accounting as to what was done and not done. Appellant argues that because Mr. Whitten was allowed to go far beyond that to indicate her guilt or innocence a new trial is warranted. Appellant asserts that this court improperly allowed this witness to opine on the ultimate issue.

There was no objection at the time of trial as to Mr. Whitten’s testimony in any respect; therefore, this issue is waived because as a general rule, in order to preserve an issue for appeal, a defendant must make a timely objection at trial. Commonwealth v. Fox, 619 A.2d 327, 331 (Pa.Super. 1993).

Here, there was no objection. Additionally, Pennsylvania does allow expert opinion on the ultimate issue under Pennsylvania Rule of Evidence 704.

Therefore, it was up to appellant to object if she believed that it was somehow improper.

VI. This Court Was Responsible for Directing the Court Reporter to Transcribe the Notes of Testimony of the Opening Statements and Closing Arguments.

Sixth, appellant claims that this court erred in not having the notes of testimony of the opening and closing statements transcribed and having these taken down by the court reporter. Appellant argues that as a result there is no record of what was said and no opportunity to examine whether inappropriate statements were made by the district attorney during the opening or closing statements.

In this case, the opening and closing statements were recorded by the court reporter; however there has been no request that they be transcribed. Appellate counsel puts the onus on the court for this failure. However, the burden is on defense counsel to request that arguments to the jury be transcribed. Commonwealth v. Banks, 454 Pa. 401, 409, 311 A.2d 576, 580 (Pa. 1973).

It is not the responsibility of the trial court to order the transcription of the closing arguments. To the contrary, Pa.R. A.P. 1911 makes it clear that it is the responsibility of the appellant to order all transcripts necessary to the disposition of his appeal. Commonwealth v. Steward, 775 A.2d 819, 833 (Pa. Super. 2001). In this case, the record reveals that appellant did not specifically order that a transcript of the closing arguments be made. As a result the court reporter did not automatically transcribe those arguments, since under our rules of judicial administration the court reporter was under no obligation to do so. See, Pa.RJ.A. 5000.2(g) (“[O] pening or closing statements of counsel...shall be recorded, but not transcribed, unless otherwise ordered.).

VII. This Court Properly Allowed the Jury to Take Back, During Deliberations, the Forensic Accounting Reports.

Next, appellant contends that this court erred in allowing the jury to take back, during deliberations, the forensic accounting reports (Exhibits C-24 and C-25). Appellant argues that this evidence had been testified to and, by allowing only Commonwealth evidence in the deliberating room, this court in effect allowed the jury to have detailed reports of Commonwealth evidence during the deliberation process, to the exclusion of the defense evidence. Appellant concludes that this was reversible error since it placed under emphasis of the Commonwealth’s key evidence without emphasizing the cross-examination.

Pennsylvania Rule of Criminal Procedure 646 provides that the jury may take with it such exhibits as the trial judge deems proper. Accordingly, whether an exhibit should be allowed to go out with the jury during deliberation is within the discretion of the trial judge, and such decision will not be overturned absent an abuse of discretion. Commonwealth v. Hawkins, 701 A.2d 492 (Pa.Super. 1997).

In this case, during deliberations the jury requested in pertinent part Exhibits C-24 and C-25, which they identified as the payroll ledgers. There seemed to be some confusion what Exhibit C-24 consisted of whether the exhibits were the actual payroll ledgers or the payroll ledgers attached to the forensic accounting investigation report. (Trial, V. 3, 7/9/10 p. 79 - 80). Regardless of this contusion, appellant agreed that they should be sent back with the jury. Id. at 80.

This court finds this issue waived on appeal because as a general rule, in order to preserve an issue for appeal, a defendant must make a timely objection at trial. Commonwealth v. Fox, 619 A.2d 327, 331 (Pa. Super. 1993). Here, not only was there no objection, appellant in fact agreed that Exhibit C-24 and C-25 should be sent back with the jury during deliberations.

VIII. The Testimony of Nans Lassen Was Proper.

Appellant also raises on appeal that this court erred in allowing the testimony of Ms. Lassen, the lawyer for the credit union in the gender discrimination case, to indicate that there had been no probable cause finding. Appellant argues that this testimony was irrelevant and a collateral issue. However, there was no objection at trial of Ms. Lassen’s testimony; therefore, this issue is waived. Pa.R.A.P. 302(a).

By way of further explanation, appellant in part advocated the defense by way of her witness, Mr. Clyburn, namely, that the credit union asserted the charges of theft against her in retaliation for her initiation of a charge of discrimination she lodged with the Pennsylvania Human Relations Commission (“PHRC”) against the credit union. Therefore, the Commonwealth called Ms. Lassen as a rebuttal witness. Ms. Lassen read into evidence the letter written by the PHRC to appellant after its investigation into her charges of discrimination. In pertinent part, the letter stated that after its investigation of her unlawful discrimination complaint, it determined that the complaint should be dismissed because the facts of the case do not establish that probable cause exists to credit the allegations of unlawful discrimination. (Trial, V. 3, 7/9/10 p.38). When Ms. Lassen’s testimony is read in the context of the entire transcript, it is clear that the purpose of Ms. Lassen’s testimony was in direct response to the defense theory and an attempt to discredit it.

IX. This Court Was Not Required to Colloquy Appellant on Her Decision Not to Testify at Trial.

Appellant states that there was no valid colloquy concerning her right to testify, and this court erred in not conducting a colloquy. She argues that she was not properly informed of her absolute right to testify. Appellant asserts that she should have testified during her trial and was not properly notified of her right to do so and apparently was also chilled by the repeated threats of a contempt finding if she said anything wrong.

In choosing to represent herself at trial, appellant understood that she may have rights that, if not timely asserted, may be lost permanently. See, Waiver of Counsel Colloquy Form. Appellant’s right to testify on her own behalf is one of those rights. It was not the role of this court to act as defense counsel and inform appellant of that right. Accordingly, it must be presumed that appellant knew she had the right to testify on her own behalf. Furthermore, her trial tactic of not exposing herself to cross examination was a sound trial decision.

The record shows that appellant did not assert this right, nor did she object to the lack of an on-the-record colloquy. As she did not object to the lack of a colloquy at trial, this issue is waived because issues not raised to the trial court cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Even if this issue is not waived, it is meritless because there is no requirement that a court conduct an on-the-record colloquy when a defendant waives her right to testify. Commonwealth v. Duffy, 832 A.2d 1132, 1137 n. 3 (Pa. Super. 2003).

Additionally, there is no support in the record for appellant’s claim that the contempt warnings had any chilling effect on her advocacy. This claim is disingenuous. Rather, these warnings had very little impact on appellant because throughout trial appellant ignored these warnings and continued to ask improper questions in the form of testimony.

X. The Accountant’s Report Was Properly Introduced During the Testimony of Joseph Bressi.

For the first time on appeal, appellant objects to the introduction of Mr. Whitten’s forensic investigation report during the testimony of Mr. Bressi, arguing that it was not a business record and should not have been allowed to be used to buttress Mr. Bressi’s testimony.

“In order to preserve an issue for review, a party must make atimely and specific objection at trial.” Commonwealth v. Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994). The failure to object to an offer of evidence at time the offer is made, assigning grounds for objection, is a waiver upon appeal of any ground of complaint against its admission. Commonwealth v. Bullock, 518 A.2d 824, 826 (Pa. Super. 1986). As such, appellant has waived her right to argue this issue on appeal.

XI. Appellant Had the Opportunity to Question Joseph Bressi on Cross-Examination.

In appellant’s eleventh issue on appeal she contends that this court erred in not allowing her to question Mr. Bressi on re-cross examination. Appellant argues that there was no opportunity given to her for re-cross.

After the Commonwealth questioned Mr. Bressi on redirect examination, this court excused the witness. Appellant did not object. Therefore, this issue is waived on appeal. Pa.R.A.P. 302(a).

XII. Mary Dunne Properly Referenced the Forensic Report.

Appellant claims that this court erred in allowing the witness, Mary Dunne to reference the forensic report, which was not properly introduced. Again this issue is waived based on appellant’s failure to object at trial. Pa.R.A.P. 302(a) (stating: “Issues not raised in the [trial] court are waived and cannot be raised for the first time on appeal”); Commonwealth v. Schoff 911 A.2d 147, 157 (Pa. Super. 2006) (holding party must make timely and specific objection at trial to preserve issue for appellate review).

XIII. Testimony Regarding a Severance Package was Proper.

In appellant’s final issue, she contends that this court erred in allowing Ms. Dunne’s testimony as to a severance package offered to her by the credit union. Specifically, appellant objects to the testimony in which Ms. Dunne testified that the severance package was withdrawn, arguing that it tainted the jury. However, no objection was made to this testimony at trial; therefore, this issue is waived. See, Pa.R.A.P. 302(a). Additionally, such testimony was proper because it was in response to comments made by appellant earlier in the trial. (Trial, V. 1, 7/7/10 p. 120).

CONCLUSION

The arrogance that caused appellant to conclude that she could steal also caused her to conclude that she could represent herself better than any attorney. Based on the forgoing analysis, the September 9, 2010 judgment of sentence should be affirmed.

      . 18 Pa.C.S.A. §3921(a);

      . Id.;

        Id. at §3922(a)(l);

      . Id.;

      . Id. at §3925(a);

      . Id.;

        . Id. at §4104(a);

      . Id. at §7611 (a)(1).

      . The Waiver of Counsel form reads as follows:
      (1) I understand that I have the right to be represented by counsel (a lawyer), and the right to have free counsel appointed if I am indigent (unable to afford counsel).
      (2) I understand the nature of the charges against me and the elements of each of those charges.
      (3) I am aware of the permissible range of sentences and/or fines for the offenses charges.
      (4) I understand that if I waive the right to counsel I will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
      (5) I understand that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
      (6) I understand that, in addition to defenses, I have many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by me, these errors may be lost permanently.
      (7) I read write and understand the English language.
      (8) No one has tricked, threatened or forced me into waiving my right to counsel. I am doing this of my own free will.
      (9) I do not want to have counsel advise me or speak for me. I understand that by signing this paper I am waiving my right to counsel and will be representing myself.


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Baldwin Hardware Mfg. Co. v. Berks County Bd. of Assessment Appeals

      C.P. of Berks County,
    no. 09-15740.

      Joshua D. Baer, for appellant.

      Edwin L. Stock, for appellee.
    November 30, 2010
   LASH, J.,

The appellant, Baldwin Hardware Mfg. Co. (“Baldwin”), has filed an appeal from the decision entered by the Berks County Board of Assessment appeals (“board”) assessing real estate owned by Baldwin at three million three hundred fifty thousand seven hundred dollars ($3,350,700.00), effective January 1, 2010 for city and county taxes and July 1, 2010 for school taxes. A de novo trial was held on the appeal on November 8,2010. The court enters the following findings of fact:

I. FINDINGS OF FACT

1. Appellant, Baldwin Hardware Mfg. Co. (“Baldwin”), is a corporation, maintaining an address at 841 East Wyomissing Boulevard, Reading, Berks County, Pennsylvania 19611-1759.

2. Appellee, Berks County Board of Assessment Appeals (“board”), is located at the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.

3. Intervenor, Reading School District (“school district”), is a school district of the second class, having a principal office at 800 Washington Street, Reading, Berks County, Pennsylvania 19601-3691. School District filed its Notice of Intervention on December 30, 2009.

4. The property that is the subject of this assessment appeal is owned by Baldwin and is located at 841 East Wyomissing Boulevard, City of Reading, Reading School District, Berks County, Pennsylvania (“Property”), Parcel Identification Number 18-5306-10-45-3607.

5. The property is situated on 28.17 acres of land.

6. The property consists of twenty-six (26) major buildings and/or sections, containing a total of 293,198 square feet of gross building area, built at different times, from 1956 through 2001.

7. The land is zoned H-M, Heavy Manufacturing.

8. Baldwin uses the facilities on the property for manufacturing and warehousing, in the business of the manufacture of brass fixtures and other hardware.

9. The buildings used for manufacturing are interconnected, totaling 268,570 square feet on two (2) separate levels, connected by an underground tunnel. The upper portion of the manufacturing warehouse was constructed in 1956, 1963, 1965, and 1983. Portions of the lower plan area were constructed in the early 1960’s and expanded in 1968 and 1986.

10. There is also a freestanding administrative office building with gross building area of nearly 25,000 square feet.

11. The facility, having been constructed in several installments over a period of years, is eclectic, being in part concrete block, part brick, and part metal panel. The ceiling heights range from 16 feet to 26 feet, with a predominate ceiling height of approximately 16 feet 8 inches.

12. The property has been environmentally polluted. Baldwin had constructed on the site two (2) unlined surface impoundments used for storage of electroplating waste water sludge generated by Baldwin’s manufacturing process. Environmental testing revealed that these impoundments were compromised, resulting in trichloroethylene (TCE) being found in on-site monitoring wells.

13. Sometime in 1987, Baldwin entered into a consent decree before the United States Environmental Protection Agency. The consent decree required remediation. Said remediation has been ongoing and continues to this day and is expected to continue for the foreseeable future. The costs for these remediation measures have been borne by Baldwin. Since the remediation efforts began, no new environmental pollution problems have been reported.

14. On or about July 30, 2009, Baldwin filed an appeal from its current assessment of three million four hundred seventy-three thousand one hundred dollars ($3,473,100.00) to the board.

15. After hearing held, the board issued a notice on October 30, 2009, establishing the assessment at three million three hundred fifty thousand seven hundred dollars ($3,350,700.00).

16. Baldwin filed a timely appeal to common pleas court.

17. The years in question for this appeal are 2010 and 2011. The Berks County common level ratio for tax year 2010 is .677 and for 2011 is .701.

II. DISCUSSION

The issue before this court is the fair market value of the premises. Actual or market value is defined as “the price which a purchaser, willing but not obligated to buy, would pay an owner, willing but not obligated to sell, taking into consideration all issues to which the property is adapted and might in reason be applied.” F & M Schaeffer Brewing Company v. Lehigh County Board of Appeals, 530 Pa. 451, 457, 610 A.2d 1, 3 (1992)(citation omitted).

In support of their respective positions, each party presented testimony by an appraiser expressing an opinion of fair market value. Baldwin’s expert was Kevin B. Flynn, MAI, CCIM, of the Flynn Group, who valued the fair market value of the property, as of January 1,2010, to be three million five hundred twenty-five thousand dollars ($3,525,000.00), if considered free and clear of environmental issues, and two million seven hundred thousand dollars ($2,700,000.00) as is. The board and school district jointly retained Thomas J. Bellairs, GRI, GAA, RAA, who-found the fair market value of the property to be four million eight hundred thirty-five thousand dollars ($4,835,000.00) as of March 31, 2010.

The court’s function is not to independently value the property, but to determine the value based on competent and credible evidence. Appeal of F.W. Woolworth Company, 426 Pa. 583, 586, 235 A. 2d 793, 795 (1967). When there are conflicting experts, the court may accept all, none or part of an expert’s testimony, part of one expert’s testimony and part of another’s. Appeal of Avco Corporation, 515 A.2d 335, 338 (Pa. Cmwlth. 1986). In determining actual value, three approaches to valuation are to be used: cost (reproduction over placement, as applicable, less depreciation in all forms of obsolescence), comparable sales, and the income approach. 72 P.S. §5020-402, 5348(d), F & M Schaeffer Brewing Company, 610 A.2d at 3. In considering the weight to be given to various approaches to valuation, a trial court has discretion to determine which of the conflicting methods (cost, comparable sales or capitalized income) is the fairest and most reasonable for a particular property. Pennypack Woods Home Ownership Association v. Board of Revision of Taxes, 639 A.2d 1302, 1303 (Pa. Cmwlth. 1994), allocatur denied, 539 Pa. 669, 652 A.2d 839 (1994).

Both appraisers relied solely on the comparable sales approach, finding both the income and cost approach to be impractical, requiring too much assumption and speculation to reach appropriate figures.

In reaching his opinion, Baldwin’s appraiser conducted an onsite inspection on November 11, 2009, reviewed documentation received from Baldwin, including documentation regarding the environmental issues, performed a locational analysis and market overview, and searched for appropriate comparable properties in the immediate vicinity. He ultimately identified five (5) comparable properties, sold from February 2007 through February 2010, with two (2) properties being located in Berks County, one (1) in Chester County, one (1) in York County, and one (1) in Montgomery County. He then employed a quantitative analysis on the comparables, making adjustments in percentages to account for features of the comparables that were superior or inferior to the property. From this analysis, he reached a determination that twelve dollars ($12.00) per square foot properly reflected fair market value for the property. Multiplying that figure by the square footage of the facility, he concludes that the fair market value, prior to deduction for environmental concerns, was three million five hundred twenty-five thousand dollars ($3,525,000.0o).

Comparable number 1 was a one (1) story, multi-building industrial complex, the former Alcoa plant in Chester County, sold in February 2010 for two million dollars ($2,000,000.00) to investors who planned to convert the building to multi-tenant use, requiring between two million dollars ($2,000,000.00) and three million dollars ($3,000,000.00) of renovations and upgrades. The building size is 200,999 square feet on 11.11 acres. The building was constructed in 1954 and 1965 with a ceiling clearance of between 16 feet and 22 feet. The price per square foot was nine dollars and ninety-five cents ($9.95). The only adjustment made by the appraiser was an upward adjustment of fifteen percent (15%) to account for the renovations contemplated, resulting in an adjusted sales price of eleven dollars and forty-four cents ($11.44) per square foot.

Comparable number 2 was a one (1) and part two (2) story industrial building located in York County, sold in February 2007. The building size was 191,000 square feet, set on 19.290 acres, being constructed in 1975 and the 1980’s. The sale price was two million two hundred eighty thousand dollars ($2,280,000.00), representing eleven dollars and ninety-four fents ($11.94) per square foot. Ceiling clearance was 16 feet. This property also featured eight (8) tailgate loading doors and two (2) drive-in doors, features superior to the subject property. The appraiser initially adjusted downward ten percent (10%) for superior market conditions, then adjusted downward by five percent (5%) to account for the physical superiority, based on newer construction and the loading access system, and an additional five percent (5%) downward to account for the location. This resulted in an adjusted sales price per square foot of eleven dollars and eighty-two cents ($11.82).

Comparable number 3 is the former Tyco Electronic Corporation located in Berks County, Pennsylvania, in a similar neighborhood as the subject property. The building, a one (1) story, multi-building industrial complex, is much smaller than the subject property, being 89,448 square feet. Additionally, the complex is bifurcated by a street. The buildings are somewhat older than the subj ect property, being constructed in the 1940’s, 1950’s, and 1960’s. The ceiling clearance is lower than the subject property, being 12 feet to 18 feet. The comparable was sold in May 2009 for one million two hundred fifty thousand dollars ($1,250,000.00) or thirteen dollars and ninety-seven cents ($13.97) per square foot. The appraiser adjusted upward five percent (5%) to account for the less desirable zoning of the comparable and adjusted downward fifteen percent (15%) because of the smaller size of the property. The appraiser did not adjust for age or physical condition. The adjusted sale price was twelve dollars and fifty-eight cents ($12.58) per square foot.

The fourth comparable was a one (1) and part two (2) story industrial building located in Montgomery County and purchased by Allentown Refrigerated Terminals in August 2008 for three million seven hundred ninety-six thousand three hundred fifty dollars ($3,796,350.00), or fourteen dollars and sixty cents ($14.60) per square foot. The facility is 260,000 square feet with 80,000 (30.8%) being refrigerated space. The ceiling clearance is somewhat lower at 12 feet to 19 feet. The building was constructed in 1956 and renovated in the early 1990’s and includes fifteen (15) tailgate loading doors and one (1) drive-in door. The appraiser initially adjusted downward by five percent (5%) for superior market conditions, then downward five percent (5%) for superior physical conditions, and downward by ten percent (10%) due to the refrigeration capacity, resulting in an adjusted selling price of eleven dollars and seventy-nine cents ($11.79) per square foot.

Comparable number 5 is a one (1) and part two (2) story industrial facility located in Leesport, Berks County, Pennsylvania, sold on August 2008 for four million five hundred thousand dollars ($4,500,000.00), or eighteen dollars and ninety-eight cents ($18.98) per square foot. It is somewhat smaller than the subject property, being 237,038 square feet, and setting on 22.66 acres. There is 40,060 square feet (16.9%) of office space. The construction is newer than the subject property, being constructed in 1967, with additional construction in the 1970’s and 1980’s. The comparable is rectangular, more uniform, and therefore, more attractive to a prospective buyer than is the subject property. The appraiser adjusted downward by five percent (5%) for market considerations, then five percent (5%) downward due to the newer construction, five percent (5%) downward because of its location being closer to a highway than the subject property, and ten percent (10%) downward for physical characteristics, including the superior quality of the physical condition, and the rectangular appearance, five percent (5%) for the level of interior finish and five percent (5%) for other functional features, resulting in an adjusted selling price per square foot of twelve dollars and sixty-two cents ($12.62).

Reviewing the adjusted selling price per square foot of the comparables, all of which were between eleven dollars and forty-four cents ($11.44) and twelve dollars and sixty-two cents ($12.62), Baldwin’s appraiser opined that the proper value would be twelve dollars ($12.00) per square foot, resulting in his fair market value figure of three million five hundred twenty-five thousand dollars ($3,525,000.00).

Baldwin’s adjuster then considered the environmental pollution which he believes will adversely impact fair market value. He obtained past remediation costs incurred by Baldwin, including an initial outlay of one million two hundred sixty-four thousand two hundred forty-four dollars ($1,264,244.00) followed by the continuing samplings, analyses, technical review, report generation, energy to run the process and pump replacement and administrative costs. From these costs, Baldwin’s appraiser projected what the continuing costs would be going forward, costs which would be incurred by a buyer assuming the remediation upon purchase, stating:

As of the date of valuation, TCE levels continue to exceed acceptable levels. For purposes of our analysis, we have assumed that the existing remediation, testing, monitoring and reporting requirements will continue for an additional 10 years from the January 1,2010 date of valuation. Going forward, annual expenditures for sampling, analysis, technical review, energy charges required to operate the pumps, equipment maintenance repairs/replacements and administrative costs, can be anticipated.
From 2000 through 2008 annual expenditure for sampling, analysis, technical review and reporting requirements ranged from $32,860 to $40,340 and the average annual expenditure was $37, 074. We have of [sic] assumed that in 2010 the annual expenditure would be $38,000, and increase 2% annually thereafter.
From 2000 through 2008 annual expenditure for electricity to operate the remediation pumps reportedly totaled $ 17,000 per year. We have of [sic] assumed that in 2010 the annual expenditure would be $17,000. However, beginning January 2011 rate caps for electricity charges in Pennsylvania expire and increases for non-residential uses of between 20% and 40% are anticipated. For purposes of this analysis, we have assumed electricity rates will increase by 20% or $20,400 per year beginning in calendar year 2011 and increasing 3% annually thereafter.
Annual expenditure for pump maintenance/replacement ranged from $0 to $17,419 from 2000 through 2008. The average annual expenditure was $3,328. We have of [sic] assumed that in 2010 the annual expenditure would be $3,400, and increase 2% per year each of the following years.
Lastly, from 2000 through 2008 administrative expenditure ranged from $5,020 to $6,430 and averaged $5,765. We have assumed that the annual expenditure for administrative costs in 2010 to be $5,800 with an annual increase of 3.5% increase thereafter.
...we have calculated the present worth of the anticipated annual expenditures for ongoing remediation expenses at a 9% discount factor to be $469,670 which has been rounded upward slightly to $475,000.

The Flynn Group real estate appraisal report, p. 37.

The appraiser determined that a discount based on the effects of “stigma” on market value was also appropriate. He notes that real estate that has been affected by environmental pollution, whether remediated or in the process of being remediated, is stigmatized, such that prospective buyers are less inclined to embrace purchase of such a property. He concedes that the stigma may not be as substantial when dealing with an industrial property, particularly when the contamination is underground, nevertheless, he believes that a segment of the market will not buy, at any price, a property that has been contaminated, even with guarantees or indemnification provided by the seller. He estimates an appropriate deduction for the stigma is ten percent (10%) from the original estimate of fair market value of three million five hundred twenty-five thousand dollars ($3,525,000.00). He rounds this figure off to three hundred fifty thousand dollars ($350,000.00). Subtracting four hundred seventy-five thousand dollars ($475,000.00) for anticipated remedial costs and three hundred fifty thousand dollars ($350,000.00) for stigma from the initial figure of three million five hundred twenty-five thousand dollars ($3,525,000.00), the appraiser estimates fair market value in an “as is” condition, as of January 1, 2010, to be two million seven hundred thousand dollars ($2,700,000.00).

The school district’s appraiser also conducted an inspection of the subject property, one on May 7, 2008 and another on March 31, 2010, also reviewing data and then performed research on obtaining comparable sales. He identified seven (7) comparables, all found in Berks County, with the exception of comparable number 5, which is located in Orwigsburg, Schuylkill County, close to the Berks County line. The school district’s appraiser also used a quantitative percentage adjustment. After determining that the average adjusted price per square foot for the comparables would be sixteen dollars and forty-six cents ($16.46), he concluded the price per square foot for the subject property would be sixteen dollars and fifty cents ($16.50).

The school district’s appraiser also found that a discount is warranted due to the environmental pollution.

His method for factoring in the discount was different from Baldwin’s adjuster, however, as he applied a five percent (5%) downward adjustment to all the comparables, thereby affecting each comparable’s adjusted price per square foot. His conclusion was not based on an independent review of continuing remediation costs, but instead was a reliance on a previous finding made by Berks County Court on a 2000 assessment appeal of the subject property.

That decision, entered April 12, 2000 by the Honorable Jeffrey K. Sprecher, provided, among other things:

30. The comparable sales offered by Mr. Haring are credible and persuasive. However, the adjustments calculated by Mr. Haring do not sufficiently account for the negative features of the subject property. Mr. Haring underestimated the environmental, topographical, and structural problems. Mr. Haring estimated that the subject property has a value of $15.00 per square foot of building area. This court reduced Mr. Hiring’s estimated value by 10% for the topographical and structural problems and 5% for the environmental problems at the subject property. Reducing $15.00 by 15% renders a value of $12.75 per square foot of building area.

School district’s appraiser’s comparable number 1 was an industrial/warehouse facility located in the city of reading, Berks County, Pennsylvania, sold on November 9,2006 for one million three hundred thousand dollars ($1,300,000.00). This facility was much smaller than the subject property, being 58,012 square feet, located on 4.009 acres, resulting in a price per square foot of twenty-two dollars and forty-one cents ($22.41).

He then adjusted downward ten percent (10%) due to the superior market conditions and twenty percent (20%) for the square footage and adjusted upward five percent (5%) because part of the acreage is located in a flood plain. With the five percent (5%) downward environmental adjustment, the total adjustment was thirty percent (30%), resulting in an adjusted square footage of fifteen dollars and sixty-eight cents ($15.68).

Comparable number 2 is an industrial/warehouse facility located in Boyertown, Berks County, Pennsylvania. The property sold on June 6, 2007 for one million three hundred thousand dollars ($1,300,000.00). The facility is 84,525 square feet set on 6.809 acres, resulting in a price per square foot of fifteen dollars and thirty-eight cents ($15.38). The appraiser made a downward adjustment of ten percent (10%) for superior market conditions, a downward adjustment of fifteen percent (15%) based on the size of the property and the five percent (5%) environmental adjustment, resulting in a thirty percent (30%) downward adjustment and a resulting adjusted price per square foot of ten dollars and seventy-seven cents ($10.77).

Comparable number 3 is an industrial/warehouse facility located in Exeter Township, formerly owned by Tyco, a comparable also identified by Baldwin’s adjuster. The property was sold on May 7, 2009 for a sale price of one million two hundred fifty thousand dollars ($1,250,000.00). Based on the school district’s appraiser’s modified figure of 72,000 square feet, the price per square foot was seventeen dollars and forty cents ($17.40). There was a fifteen percent (15%) downward adjustment for building size and a five percent (5%) environmental adjustment, resulting in a total adjustment of twenty percent (20%). This results in a adjusted price per square foot of thirteen dollars and ninety-two cents ($13.92).

Comparable number 4 is located in the Borough of Hamburg, Berks County, and is a manufacturing/ warehouse facility sold on March 13, 2009 for three million thirty-seven thousand five hundred dollars ($3,037,500.00). The facility is 151,160 square feet on a lot size of 49.05 acres, resulting in a price per square foot of twenty dollars and nine cents ($20.09). The appraiser made a downward adjustment of ten percent (10%) for superior location, downward ten percent (10%) for the smaller building size, and downward five percent (5%) for environmental concerns. There was an upward adjustment of ten percent (10%) based on the appraiser’s assessment that the comparable facility was inferior. This resulted in a total adjustment downward of twenty-five percent (25%) and an adjusted price per square foot of fifteen dollars and seven cents ($15.07).

Comparable number 5 is a brick manufacturing building located in Orwigsburg, Schuylkill County. The property sold in Januaiy 2007 for three million seventy-three thousand eight hundred seventy-five dollars ($3,073,875.00) or twenty dollars and twenty-six cents ($20.26) per square foot. The building area is 151,740 square feet on a lot of 92.2 acres. The appraiser adjusted ten percent (10%) downward due to the superior market at the time of sale, ten percent (10%) downward for lot size, ten percent (10%) downward for the smaller building, and five percent (5%) downward for environmental concerns, resulting in a total adjustment of thirty-five percent (35%) and an adjusted price per square foot of thirteen dollars and seventeen cents ($13.17).

Comparable number 6 is a multi-tenant industrial complex located in Muhlenberg Township, Berks County. The property was sold in June of 2006 for twelve million two hundred thousand dollars ($12,200,000.00) or thirty-two dollars and thirty-eight cents ($32.38) per square foot. The building area is 328,000 square feet on 32.46 acres. The appraiser adjusted ten percent (10%) downward due to the superior market conditions at the time of sale and downward ten percent (10%) for superior location. With the five percent (5%) adjustment for environmental concerns, the total adjustment was twenty-five percent (25%) downward, for an adjusted sale price of twenty-four dollars and twenty-nine cents ($24.29). We note that there was no adjustments made because the property was a multi-tenant facility.

Comparable number 7 was an industrial/warehouse facility located in St. Lawrence Borough, Berks County, Pennsylvania. It was sold on December 4, 2008 for three million six hundred fifty thousand dollars ($3,650,000.00). The facility is 144,517 square feet, located on 13.472 acres, resulting in a price per square foot of twenty-five dollars and twenty-five cents ($25.25). The appraiser adjusted downward ten percent (10%) for the superior market conditions at time of sale, ten percent (10%) for the smaller building size, and five percent (5%) for environmental concerns, resulting in a downward adjustment of twenty-five percent (25%), for an adjusted sales price per square foot of eighteen dollars and ninety-four cents ($18.94).

This court’s analysis requires several preliminary observations. First, as stated, the two (2) appraisers took different approaches in factoring for the adverse environmental impact. To facilitate the comparison of these two (2) approaches, this court chose to adopt the approach employed by Baldwin’s appraiser, requiring therefore a conversion of the school district’s appraiser’s approach. To accomplish this, the court initially removed the downward adjustment for environmental impact in school district’s comparables, enabling those comparables to then be considered on the question of fair market value exclusive of the environmental impact. After so determining fair market value, this court then discounted for the impact.

Secondly, as stated, both appraisers identified the former Tyco property as an appropriate comparable. However, the appraisers provided different square footage figures for the facility. School district’s appraiser conceded that the original figure he provided of 54,309 square feet was incorrect, in that he failed to consider a second building. He then measured a portion of the facility himself and opined that 72,000 square feet was an appropriate figure. Baldwin’s appraiser relied on data supplied from documents relative to the sale of the property, data which appears to be based on a stronger foundation. Accordingly, we acceptBaldwin’s appraiser’s figures. Further, we accept Baldwin’s appraiser’s adjustments as being credible, his downward adjustments being more conservative, and actually resulting in a higher price per square foot, than if school district’s appraiser’s adjustments are used. Therefore; we accept the adjusted figure of twelve dollars and fifty-eight cents ($12.58) for Baldwin’s comparable number 3 and school district’s comparable number 3.

Third, school district’s appraiser objected to some of Baldwin’s comparables, arguing that they could not properly be compared to the subject property because of their location, being from different counties. We disagree. In properties such as the subject property, location is important on matters such as proximity to a highway, zoning, and nature of the surrounding neighborhood, but geographic proximity of a comparable to the subject property is not as crucial as it might be for a residence or other type of commercial property. In other words, it does not appear that a prospective buyer of a facility like the subject property would be too concerned whether the property he is looking to purchase is located in Berks County, Chester County, or some other surrounding county, so long as the features the buyer is looking for are present. We find that fair market value for this type of property is not substantially affected by its geographic location within a multi-county region.

We find that all five (5) comparables submitted by Baldwin’s appraiser are appropriate. Likewise, we find that the first five (5) comparables submitted by school district’s appraiser are appropriate. School district’s comparable number 6, a Muhlenberg Township property, is a multi-tenant industrial facility with data difficult to compare to the other comparables or to the subject property. As such, the use of comparable number 6 skewed the median price per square foot upwards beyond what was appropriate. Likewise, comparable number 7, the St. Lawrence property, being used as an operation and distribution center by Goodwill, appears to be more of a warehouse facility, a property that may be more easily marketed and sold than the subject property, which has substantial limitations and would be difficult to convert to multi-tenant or warehouse use. For these reasons, school district’s comparables numbers 6 and 7 were not considered.

Adjusting the price per square foot of the five (5) remaining school district comparables to remove the environmental downward adjustment, the new adjusted prices per square foot are sixteen dollars and eighty cents ($16.80) for comparable number 1, eleven dollars and fifty-four cents ($11.54) for comparable number 2, twelve dollars and fifty-eight cents ($12.58) for comparable number 3, sixteen dollars and seven cents ($16.07) for comparable number 4, and fourteen dollars and eighteen cents ($14.18) for comparable number 5, resulting in a median price per square foot of fourteen dollars and twenty-three cents ($14.23). This figure appears to be in line with the figure of twelve dollars ($12.00) per square foot provided by Baldwin’s adjuster. As this court cannot identify any other basis for preferring one appraiser’s choice of comparables or adjustments over the other, we determine that the appropriate price per square foot, exclusive of environmental concerns, is thirteen dollars ($13.00). Multiplying thirteen dollars ($13.00) by the square foot figure of 293,198, we reach a fair market value of three million eight hundred eleven thousand five hundred seventy-four dollars ($3,811,574.00).

We turn then to the remaining issue, ascertaining an appropriate discount on fair market value to account for the environmental concerns. As stated, school district’s appraiser urges that this court must accept a figure of five percent (5%) of fair market value, being bound by the ruling issued by Judge Sprecher in the 2000 assessment appeal of the property on the basis of coordinate jurisdiction or collateral estoppel. However, in this case, the effect of the environmental concerns on fair market value must be from a 2010 perspective. There is more data and a longer record of the process and a probable better ability to project remedial costs into the future. While we acknowledge that the yearly costs have remained somewhat constant, this alone cannot be a basis for accepting the five percent (5%) figure, considering all the variables.

Additionally, overall factors affecting fair market value, which would impact on any adjustment for pollution in 2010, are very different from the factors germane to an assessment conducted in 2000. For example, market factors have changed. Both appraisers acknowledge this, finding it necessary to adjust fair market value for any comparable sales they identified which took place more than two (2) years prior to the 2010 appeal. Secondly, the condition of the property has changed, and in fact, there were some renovations performed in 2001.

Most importantly, the five percent (5%) deduction found by Judge Sprecher was a factual determination, not a legal one. This is an important distinction, as the matter before us is a de novo appeal, requiring an assessment of the Property for calendar years 2010 and 2011. As such, the action is an independent action, separate from the 2000 appeal, requiring that new evidence be taken and a ruling be issued based on the facts and circumstances adduced. It would be improper to accept Judge Sprecher’s factual findings as our own, in the same sense as it would be improper for us to make our findings from the record developed at Judge Sprecher’s trial. Accordingly, we find that this court is not bound by the prior decision.

Unfortunately, school district’s appraiser did not provide any independent analysis on the impact of the environmental concerns to fair market value, relying solely on Judge Sprecher’s previous decision. Accordingly, in reaching an appropriate discount, our only guidance comes from Baldwin’s appraiser.

As stated, Baldwin’s appraiser first factored in continuing remediation costs, opining that a prospective buyer would insist that Baldwin assume these costs for the time they continued to exist, estimated to be ten (10) years. A buyer would therefore have to consider whether it intends to retain ownership of the property for at least ten (10) years, and if so, whether the remediation process would terminate on or before that time, in essence, gambling that the discount would be sufficient, or perhaps even an overcompensation for the cost outlay a buyer would incur over time.

The propriety of this analysis must also take into consideration the buyer’s intended use for the property. A buyer who intends to convert the property into a multi-tenant use would likely be very concerned about the continued existence of environmental problems and the costs for remediation. Since the current condition of the property is only fair and the costs to retrofit for multi-tenant use would be substantial, it appears the property would be unattractive to a buyer seeking to rent to several tenants. On the other hand, a manufacturer, seeking an inexpensive property, might be more willing to take on this property and its issues, including the environmental issue. For these reasons, it is more than likely that a buyer for this property would be an owner/operator, either purchasing the business from Baldwin and continuing with the same line of production, or doing some type of similar production, maintaining the property in a manufacturing capacity. Further, the owner would likely be planning to continue ownership of the property for an extended period of time. The offering of a discount on the sales price in the form of requiring Baldwin to pay the equivalent of ten (10) years worth of costs of remediation may be attractive, particularly if it appears that the remediation could be ended in less time. Also, considering the length of time that the property has been in remediation, it appears that the ten (10) year figure would be appropriate. We accept Baldwin’s appraiser’s conclusion.

We also agree with his figure for the ten (10) year payout of four hundred seventy-five thousand dollars ($475,000.00). These figures are based on remediation costs experienced by Baldwin over the course of the remediation since it began in 1987 or 1988. The costs have been remarkably consistent, particularly over the last ten (10) years, appearing to provide adequate data to make responsible projections. As this data is primarily based on actual figures provided by Baldwin and there was no data or other evidence provided by school district’s appraiser sufficient to call the figures into question, the data is deemed reliable and the figure of four hundred seventy-five thousand dollars ($475,000.00) shall be deducted from fair market value, in accordance with Baldwin’s appraiser’s method.

As we also previously noted, Baldwin’s appraiser provided a ten percent (10%) discount for stigmatization. We believe this figure to be high. Assuming the continuing remediation costs are adequately addressed with the four hundred seventy-five thousand dollars ($475,000.00), and assuming that the prospective buyer would be an owner-operator which, as stated, appears to be the case, the concerns regarding stigma, while they do exist, are not that substantial to require a ten percent (10%) reduction on fair market value. While a buyer would certainly rather purchase a “clean” property and avoid the environmental issue altogether, it does not appear that the value for stigma should exceed five percent (5%), net after deduction of the four hundred seventy-five thousand dollars ($475,000.00). Accordingly, after subtracting four hundred seventy-five thousand dollars ($475,000.00) from three million eight hundred eleven thousand five hundred seventy-four dollars ($3,811,574.00), arriving at a net figure of three million three hundred thirty-six thousand five hundred seventy-four dollars ($3,336,574.00), we adjust further with a five percent (5%) discount of one hundred sixty-six thousand eight hundred twenty-eight dollars and seventy cents ($166,828.70), arriving at a net fair market value of three million one hundred sixty-nine thousand seven hundred forty-five dollars and thirty cents ($3,169,745.30), rounded off to three million one hundred seventy thousand dollars ($3,170,000.00).

We enter the following order:

ORDER

And now, November, 30 2010, upon consideration of the within appeal and after a de novo trial held, it is ordered that the actual market value of the property owned by appellant, Baldwin Hardware Mfg. Co., and situated in the Reading School District, with an address of 841 East Wyomissing Boulevard, City of Reading, Berks County, Pennsylvania 19611-1759, Parcel Identification Number 18-5306-10-45-3607, is set at three million one hundred seventy thousand dollars ($3,170,000.00) for calendar years 2010 and 2011. Applying the common level ratio of .677 for 2010, the assessed value for tax year beginning January 1, 2010 for county and township taxes and beginning July 1, 2010 for school district taxes is two million one hundred forty-six thousand ninety dollars ($2,146,090.00). The common level ratio for tax year 2011 being .701, the assessed value for tax year beginning January 1, 2011 for county and township taxes and beginning July 1,2011 for school district taxes is two million two hundred twenty-two thousand one hundred seventy dollars ($2,222,170.00).

      . Baldwin’s appraiser’s fair market value is based on a square foot figure of 293,450 feet. Based on a stipulation of the parties, this court employed a square foot figure of293,198 square feet.

      . In his testimony, the school district’s appraiser conceded that his data on the square foot size for comparable number 3 of 54,309 square feet was incorrect. He subsequently measured a portion of the property himself and found that the square footage for the facility would be roughly 72,000 feet. This changed the price per square foot for the comparable from twenty-three dollars and two cents ($23.02) to thirteen dollars and ninety-seven cents ($13.97), resulting in anew adjusted price of thirteen dollars and ninety-two cents ($13.92). This would also affect the average adjusted price for the comparables, reducing that figure to fifteen dollars and ninety-eight cents ($15.98) per square foot. In his testimony, the appraiser stated that this modification would not change his opinion that fair market value would be sixteen dollars and fifty cents ($16.50) per square foot.

      . Court of Common Pleas of Berks County, Docket No. 98-12882.

      . In his comparable sale grid on page 29, the appraiser identifies the date of sale as November 9, 2009. Because he made a ten percent (10%) downward adjustment due to superior market conditions, existing prior to 2008, it appears that the 2006 figure is accurate and the 2009 figure is a typographical error.

      . Initially, the building size adjustment was twenty percent (20%) but based on the incorrect square footage, the adjustment was modified downward by fifteen percent (15%).

      . The consent order issued by the Environmental Protection Agency permits discontinuance on several bases, including EPA approval or the reduction of TCE concentration to or below the cleanup level for twelve (12) consecutive months.

      . School district’s appraiser attacked the validity of the energy costs, pointing out that a figure of seventeen thousand dollars ($17,000.00) was set forth for energy for every year from 1988 through 2009, providing a different cost of eighteen thousand five hundred thirty dollars ($18,530.00) for 2010. The fact that the figure is identical for all of these years only establishes that the figure is an estimate, not an actual figure. It is likely that actual figures were not available because the energy costs for the environmental remediation were subsumed within the energy costs for the entire operation and could not be broken out. In any event, the costs of seventeen thousand dollars ($17,000.00) per year for energy to run the environmental operation appears reasonable and was not otherwise challenged by the school district’s appraiser.


author: MOTTO, P.J.,

text:
    Commonwealth v. Latham

      C.P. of Lawrence County,
    no. 1266 of 2008, CR.

      Kathleen Fee Baird, assistant district attorney, for Commonwealth.

      Shontee Latham, pro se.
    November 19, 2010
   MOTTO, P.J.,

In the instant matter, the defendant shontee Latham, has filed motions for post-sentence relief which consist of a motion in arrest of judgment, motion for judgment of acquittal and a motion for a new trial raising eight issues of alleged error, many of which involve allegations of ineffective assistance of counsel. The defendant alleges the following errors occurred:

I. The District Court erred in failing to dismiss to charge of terroristic threats with Intent to Terrorize Another [Pa.C.S.A. §2706(a)(l)] at his preliminary hearing because the circumstances spelled out in the police criminal complaint did not establish the elements of the charge.
II. Defendant’s first appointed counsel, Robert Barietta, was ineffective for failing to object when Commonwealth witness Sherbelle Hall offered hearsay testimony at the omnibus pre-trial motion hearing and speculated as to the dimensions of the firearm used in the crime.
III. Defendant’s first appointed counsel was ineffective for failing to argue at the omnibus pre-trial motion hearing that the prosecution did not prove a prima facie case as to all charges.
IV. The court erred in denying defendant’s omnibus pre-trial motion for habeas corpus relief.
V. Defendant’s trial counsel, Gerald Iwanejko, was ineffective for failing to impeach Commonwealth witness Sherbelle Hall on her multiple inconsistent statements, including her statements regarding the gun she claimed was in the defendant’s possession.
VI. Defendant’s trial counsel was ineffective for referencing hearsay evidence by alleging that an unavailable witness told Officer Newton that she observed the defendant in possession of a gun as the submission of this hearsay evidence was prejudicial to the defendant and if not for trial counsel’s error the hearsay evidence would have been inadmissible.
VII.Defendant’s trial counsel was ineffective for failing to raise issues and preserve argument that the New Castle Police Department violated the defendant’s rights guaranteed under the 4th, 5th, 6th, and 14th amendments of the United States Constitution.
VIII. The court erred by denying the defendant’s motion judgment of acquittal at the close of Commonwealth’s case due to insufficiency of the evidence because the Commonwealth never produced the alleged firearm and there was no reliable proof provided to establish the essential element of barrel length.

On the evening of September 30, 2008, Sherbelle Hall was at her neighbor’s house at 219 West Lincoln Avenue in the Lincoln housing project in New castle hanging out with friends when she looked outside and saw the defendant leaning on a car that did not belong to him parked outside the residence. Ms. Hall recognized the defendant so she went outside and told him get off the car and when he wouldn’t leave she nudged him to try to make him move. The defendant told Ms. Hall that no one was going to disrespect him and proceeded to pull a gun out of his pocket and fired a bullet into the air right above her head. Ms. Hall started yelling at the defendant and began to walk away when the defendant started following her and telling her that no one was going to disrespect him. He pointed the gun at her chest and told her he would “put one in her.” Ms. Hall walked away from the defendant and went back to her house and called the police. Ms. Hall watched as the defendant entered his girlfriend’s house, located right behind her house, at 335 Cuba Street. The New Castle Police Department responded and interviewed Ms. Hall and she advised them that the defendant had fired a gunshot above her head, held a gun to her chest and threatened to “put one in her,” and that after the incident the defendant went into Tracy Cuffia’s house located at 335 Cuba Street in the Lincoln housing project. The police went to that residence and tried knocking on the door and when no one would open the door they obtained the master key from the Lawrence County Housing Authority to gain entry. They tried unlocking the door several times and each time someone inside the house would slam the door shut and lock it again. The police eventually retrieved the ram from the police station and broke the door down to gain entry. The defendant was found in the upstairs bathroom taking a shower.

The defendant was arrested and charged with firearms not to be carried without a license, recklessly endangering another person, possession of a firearm prohibited and terroristic threats. Trial commenced on April 20, 2010, and the defendant was subsequently convicted of all charges on April 22, 2010. As a result, the defendant was sentenced to a term of imprisonment of not less than five years nor more than ten years incarceration at a state correctional institution on August 5, 2010. The defendant has filed post-sentence motions, which include a motion for new trial, a motion for arrest of judgment and motion for judgment of acquittal.

First, the defendant claims that the Commonwealth did not present sufficient evidence at the preliminary hearing to establish a prima facie case to the charge of terroristic threats. Defendant contends that the circumstances spelled out in the police criminal complaint did not establish the elements of the charge of terrorist threats, therefore, the district court erred in not dismissing the charge at his preliminary hearing.

It is well settled that the preliminary hearing serves a limited function. The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Fox, 619 A.2d 327, 332 (Pa. Super. 1993); Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991). Appeal denied, 533 Pa. 39, 617 A.2d 1263 (1992)(quoting Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991(1983)). In other words, a preliminary hearing merely serves the function of determining whether a defendant should be discharged or bound over to court with or without bail. The Commonwealth must, however, establish a prima facie case as to all elements of the offenses charged.

A preliminary hearing was held on October 28, 2008, and the district court heard the testimony of Sherbellee Hall about the events that transpired on the night of September 30, 2008. All charges against the defendant were bound over to this court. The defendant’s contention that the charge of terroristic threats should be discharged based upon the insufficiency of the evidence at his preliminary hearing is meritless, as our supreme court has held that the failure to establish a prima facie case at a preliminary hearing is clearly immaterial where at the trial the Commonwealth met its burden by proving the offense beyond a reasonable doubt. Commonwealth v. Troop, 571 A.2d 1084, 1088 (Pa. Super. 1990); Commonwealth v. McCullough, 501 Pa. 423, 427, 461 A.2d 1229, 1231 (1983); Commonwealth v. Davis, 454 A.2d 92, 96 (Pa. Super. 1982)(fact that defendant did not succeed in obtaining discharge at district justice level on grounds that complaint was defective is not grounds for disturbing conviction on appeal), allocatur denied (February 28, 1983). Therefore, the defendant’s claim that the district court erred when it found the Commonwealth presented a prima facie case for the charge of terroristic threats is denied.

Second, the defendant contends that the suppression court erred in denying the defendant’s omnibus pre-trial motion for writ of habeas corpus with respect to all of the charges because the Commonwealth failed to establish a prima facie case that the defendant committed any of the offenses with which he was charged. Defendant argues that during the hearing on his petition for writ of habeas corpus, the Commonwealth’s only evidence was the testimony of witness Sherbellee Hall and her testimony against him was uncorroborated and was the product of speculation and imagination. There was a full hearing held before the court and after receiving arguments from the commonwealth and the defendant, the court in an order dated July 29,2009 denied the defendant’s motion for writ of habeas corpus as the Commonwealth presented a prima facie case against the defendant on all charges.

A court ruling on a motion for writ of habeas corpus is precluded from passing judgment on the credibility and weight of the evidence presented at the hearing because weight and credibility are issues reserved for a j ury to decide at a later date. Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002). The prohibition against the suppression court making credibility and weight determinations has been determined by the Pennsylvania Supreme Court in Commonwealth v. Wojkak, supra, where the Supreme Court specifically held that weight and credibility of the evidence are not factors to be considered at a habeas corpus hearing. Since the suppression court cannot make a credibility and weight determination regarding the testimony of Ms. Hall and her testimony was accepted as true, a prima facie case had been established as to the defendant on all of the aforementioned charges.

In the suppression court’s order, the court found that evidence was produced that the defendant did carry a firearm concealed on his person without a license and that defendant has a prior felony conviction as the result of which he was not legally permitted to possess a firearm, and that defendant discharged a firearm approximately three feet away from Sherbelle Hall’s head and threatened to “put a bullet” into the person of Sherbelle Hall. Accordingly, defendant’s claim that the suppression court erred in finding that the Commonwealth presented a prima facie case as to all charges is denied. Additionally, the court notes that the defendant was convicted of all charges at trial and our Supreme Court has held that the failure to establish a prima facie case is clearly immaterial where at trial the Commonwealth met its burden by proving the offense beyond a reasonable doubt. See Commonwealth v. Troop, supra.

Next, in his motion for judgment of acquittal, the defendant contends there was insufficient evidence presented at trial to convict him of firearms not to be carried without a license, recklessly endangering another person, possession of a firearm prohibited and terroristic threats because the Commonwealth failed to produce the firearm and there was no reliable proof provided to establish the essential element of barrel length.

A claim challenging the sufficiency of the evidence is a question of law to be decided by the court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). Sufficient evidence to sustain a verdict has been presented when the Commonwealth establishes that the accused has committed each material element of the crime charged beyond a reasonable doubt. Id. (citing Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 1993)). In deciding a post-sentence motion challenging the sufficiency of the evidence, the court must evaluate the entire record and read all of the evidence in a light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. Commonwealth v. Johnson, 631 A.2d 639, 642 (Pa. Super. 1993)(quoting Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977)). The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove. Id., 631 A.2d at 642. A mere conflict in the evidence does not render the evidence insufficient as the fact finder must determine the weight to be given to the testimony and may believe all, part or none of the evidence. Commonwealth v. Walter, 849 A.2d 265, 267 (Pa. Super. 2004)(citing Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (Pa. Super. 1986); Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977)). The court is not to determine the weight or the credibility to assign to the testimony of record. Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). Before granting a post-sentence motion based on the sufficiency of the evidence, a court must find the evidence supporting the verdict to be so weak and inconclusive that a jury of reasonable persons would not have been satisfied as to the accused’s guilt. Commonwealth v. Bigelow, 611 A.2d 301,303 (Pa. Super. 1992) (citing Commonwealth v. Blevins, 453 Pa. 481, 487, 309 A.2d 421, 425 (1973)).

In the case sub judice, the Commonwealth has presented sufficient evidence to prove that the defendant committed the crimes of firearms not to be carried without a license, recklessly endangering another person, possession of a firearm prohibited and terroristic threats. The evidence was presented through the testimony of Sherbelle Hall who gave clear testimony regarding the charges against the defendant, and through her testimony established each element of each of the offenses charged. She stated that on the evening of September 30, 2008, she was at her neighbor’s house at 219 West Lincoln Avenue in the Lincoln housing project in New Castle with friends when she looked outside and saw the defendant leaning on a car that did not belong to him parked outside the residence. She recognized the defendant so she went outside and told him get off the car and when he wouldn’t leave she nudged him to try to make him move. The defendant told her that no one was going to disrespect him and proceeded to pull a gun out of his pocket and fired a bullet into the air right above her head. She started yelling at the defendant and began to walk away when the defendant began to follow her and tell her that no one was going to disrespect him and he pointed a gun at her chest and told her he would “put one in her.”

The testimony in this case supplied evidence of each of the elements of each of the crimes for which the defendant was convicted. In support of his argument, defendant cites reasons why the testimony of Sherbelle Hall is not sufficient to establish the elements of the crimes. However, defendant is essentially arguing reasons as to why the victim should not have been found to be credible. A mere conflict in testimony does not render evidence insufficient. It is within the province of the fact finder to determine what weight is to be given to the testimony and to believe all, part or none of it. Commonwealth v. Machalski, 707 A.2d 528 (Pa. Super. 1998). In order to grant a motion for judgment of acquittal on sufficiency grounds, the trial court must find that the evidence supporting the verdict is so weak and inconclusive that a jury of reasonable persons could not have been satisfied as to the accused’s guilt. Commonwealth v. Bigelow, supra. Here, defendant’s argument for insufficiency of the evidence is an attack on the credibility of the witnesses. It is within the province of the jury to accept or reject the testimony of the witnesses and the court here cannot conclude that the testimony of the witnesses was so weak and inconclusive that the jury as a matter of law could not have been satisfied as to the accused’s guilt.

Defendant argues that because the Commonwealth never produced the firearm and there was no reliable proof to establish the essential element of barrel length, the evidence was insufficient to sustain his conviction on all charges. Section 6105 of the crimes code provides, “No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.” Section 6102 of the crimes code defines “firearm” as “any pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.” The barrel length specified by 6102 is an essential element of the offense proscribed by section 6105. Commonwealth v. Todd, All Pa. 529, 384 A.2d 1215 (1978). Defendant contends that the jury could not have found this element had been established beyond a reasonable doubt. This court disagrees.

At the trial, defendant stipulated that he is not a person who is legally authorized to possess a firearm and the jury heard testimony from Sherbelle Hall indicating that the barrel length was about 5 inches long. She also estimated the length with hand motions when she described the nozzle of the gun as “at least this long. I seen that much when he was pointing it at my chest. The nozzle had to be this long, at least.” Although the jury did not observe the gun itself, the jury observed a witness who indicated the dimensions of the gun. Therefore, defendant’s claim that the Commonwealth presented insufficient evidence of the gun barrel length is without merit. Likewise, the jury heard testimony from Sherbelle Hall indicating that when she confronted the defendant he pulled a gun from his pocket and fired a shot approximately three feet away from her head and threatened to “put a bullet” into her person. It is within the province of the juiy to accept or reject the testimony of the witness and the jury chose to accept her testimony. As a result, the Commonwealth presented sufficient evidence to the establish the defendant committed the crimes of firearms not to be carried without a license and possession of a firearm prohibited.

Additionally, a person commits the crime of recklessly endangering another person if he recklessly engages in conduct which places another person in danger of death or serious bodily injury. 18 Pa.C.S.A. §2705. To sustain a conviction under this statue, the Commonwealth must prove that the defendant had actual ability to do so. Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978) (en banc) as quoted in Commonwealth v. Maloney, 636 A.2d 671, 674 (Pa. Super. 1994). Danger, and not merely the apprehension of danger, must be created. Id. In Commonwealth v. Rivera, 503 A.2d 11 (Pa. Super. 1985), the court found evidence sufficient to establish recklessly endangering another person where the defendant broke into the victim’s home, tied-up and robbed the victims, and threatened the victims with death or serious injury by shooting. Id. The court concluded that the robbers placed the victims in a situation in which the risk of death or serious bodily injury was real, not merely apparent and, therefore, the Commonwealth did not need to prove that a bullet was in the chamber of the gun used by the defendant. Id. at 12-13.

In the instant case, the court finds that the Commonwealth presented sufficient evidence to sustain defendant’s conviction of recklessly endangering another person, when the evidence is viewed in the light most favorable to the Commonwealth it is clear that it was sufficient to support an inference that defendant placed Ms. Hall in a situation where the risk of death or serious bodily injury was real, not merely apparent. Ms. Hall testified that the defendant told her that no one was going to disrespect him and proceeded to pull a gun out of his pocket and fire a bullet into the air right above her head. She stated she started yelling at the defendant and began to walk away when the defendant began to follow her and tell her that no one was going to disrespect him and he pointed the gun at her chest and told her he would “put one in her.” This evidence is sufficient to permit a finding that Ms. Hall was in actual danger from the gun pointed at her and that the defendant was in a position whereby he could shoot her. Therefore, this court finds the evidence sufficient to sustain defendant’s conviction of recklessly endangering another person.

Moreover, a person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to commit any crime of violence with intent to terrorize another. 18 Pa.C.S. §2706(a)(l). Based on this definition, the Commonwealth must prove that 1) the defendant made a threat to commit a crime of violence, and 2) the threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror. Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009); Commonwealth v. Tizer, 684 A.2d 597, 600 (Pa. Super. 1996). The harm sought to be avoided is the psychological distress that follows an invasion of the victim’s sense of personal security. Id. In the case sub judice, this court finds that the Commonwealth presented sufficient evidence to sustain defendant’s conviction of terroristic threats. Ms. Hall testified that the defendant pulled a gun out of his pocket and fired a bullet into the air right above her head. She started yelling at the defendant and began to walk away when the defendant followed her and told her that no one was going to disrespect him and he pointed the gun at her chest and told her he would “put one in her.” This testimony establishes that defendant intended to terrorize the victim by holding a gun to her chest and threatening to put a bullet into her person. Therefore, this court finds the evidence sufficient to sustain defendant’s conviction of terroristic threats.

Accordingly, based on the totality of the record, sufficient evidence was presented to allow the jury to convict the defendant of firearms not to be carried without a license, recklessly endangering another person, possession of a firearm prohibited and terroristic threats. Defendant’s motion for judgment of acquittal is therefore denied.

Next, the defendant raises five claims of ineffective assistance of counsel. In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), the Pennsylvania Supreme Court held that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of counsel until collateral review. In Grant, the court broke from the longstanding precedent that had its origin in Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), and Commonwealth v. Hubbard, All Pa. 259, 372 A.2d 687 (1977), and indicated that it was no longer necessary that ineffective assistance of trial counsel claims be raised “at the earliest stage of proceedings at which the allegedly ineffective counsel no longer represents the defendant.” Grant, 572 Pa. at 51, 813 A.2d at 729. The applicable rule of law now holds that a claim raising trial counsel ineffectiveness will no longer be considered waived because new counsel on direct appeal did .not raise a claim related to prior counsel’s ineffectiveness. Id. 572 Pa. at 67, 813 A.2d at 737. Summarizing the new position, the court states as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review. Thus, any ineffectiveness claim will be waived only after a petitioner has had the opportunity to raise that claim on collateral review and has failed to avail himself of that opportunity. Id. 572 Pa. at 67, 813 A.2d at 738. Applying the rule in Grant, the Supreme Court dismissed the defendant’s claims of ineffectiveness without prejudice to raise these claims, in addition to other claims of ineffectiveness in a first PCRA petition. Id. 572 Pa. 68, 813 A.2d at 739.

In the present case, there appears to be no reason to depart from the approach employed by the Pennsylvania Supreme Court in Grant. Accordingly, defendant’s claims for ineffective assistance of counsel will be dismissed without prejudice. Defendant can raise these claims in addition to other claims of ineffectiveness is a first PCRA petition and at that time the PCRA court will be in a position to ensure that defendant receives an evidentiary hearing on his claims, if necessary.

For the reasons set forth in this opinion, the defendant’s motions for post-sentence relief are denied.

ORDER OF COURT

And now, November 19,2010, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that defendant’s motion for post-sentence relief, including defendant’s motion in arrest of judgment, motion for judgment of acquittal and motion for new trial are each denied. All claims of the defendant based on alleged ineffective assistance of counsel are denied without prejudice to the right of defendant to raise such claim on collateral review.

Defendant is advised that he has the right to appeal this order to the Superior Court of Pennsylvania, and that such appeal must be filed within thirty (30) days of the date this order is filed or the right to file the appeal will be lost.

      . 18 Pa.C.S.A. §6106(a)(l).

      . 18 Pa.C.S.A. §2705.

      . 18 Pa.C.S.A. §6105 (a)(1).

      . 18 Pa.C.S.A. §2706 (a)(1).