author: FRITSCH JR., J,

text:
    Commonwealth v. Robertson

      Gracia Robert Montilus, for defendant/appellant.

      Holly Smith, for Commonwealth/appellee.
    April 4, 2008
   FRITSCH JR., J,

— On January 18,2008, following a de novo trial before the undersigned, this court found the appellant, Bryce Robertson, guilty of the summary offenses of disorderly conduct and public drunkenness. The convictions stemmed from appellant’s drunken and disorderly conduct while he was staying at a hotel with his wife and children. The appellant was sentenced to pay fines of $300 and costs on each offense.

Appellant has filed an appeal to the Superior Court of Pennsylvania from the judgment of sentence. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

FACTUAL AND PROCEDURAL BACKGROUND

On Saturday, June 16,2007, the appellant was staying at the Radisson Hotel in Bensalem Township with his wife, son and daughter, along with other parents and children associated with a youth basketball team. The group had traveled from New York to attend a basketball tournament in the Philadelphia area. Appellant was an assistant coach, and his 12-year-old daughter played on the team. (N.T., 1/18/08, pp. 172-73.)

On Saturday evening at approximately 9 p.m., appellant and a group of about 10 other parents assembled in the lobby of the Radisson. They pushed furniture together and some began drinking shots of alcohol from half-gallon containers sitting on a table. Other parents were drinking beer. (N.T., 1/18/08, pp. 6-8.) The assemblage became noisy and was consequently approached by Suzanne Gambino Rivera, the manager on duty. Upon noticing the alcohol, she informed them that they could not drink alcoholic beverages in the lobby and asked the group to disperse and take the alcoholic beverages up to their rooms. (N.T., 1/18/08, pp. 7-8,58-59.) In response, several men from the group arose and confronted Ms. Rivera, somewhat encircling her and becoming physically intimidating. She was poked several times by one individual, who told her that he would do anything he wanted. At that point the police were called to the hotel. (N.T., 1/18/08, pp. 8-10.) Appellant, who was visibly intoxicated, began to argue with her loudly and at close range. (N.T., 1/18/08, pp. 62-63.) He disparaged Ms. Gambino Rivera, calling her a “f-ing bitch” and a “WOP with a badge on her shoulder.” (N.T., 1/18/08, pp. 11-12, 60.) Fortunately, the group began to disperse from the lobby before hotel security and the police arrived. (N.T. 1/18/08, pp. 12-13.)

Later that evening, at approximately 11:45 p.m., the front desk at the hotel received a complaint that children were upset in appellant’s room on the fourth floor. (N.T., 1/18/08, pp. 15-16.) Ms. Rivera and hotel security officer Kevin Pate responded. Appellant opened the door and came out into the hallway. He appeared intoxicated and approached Ms. Rivera, cursing loudly and berating her. (N.T., 1/18/08, pp. 16-17.) After checking on the children, Mr. Pate attempted to calm down the appellant, but to no avail, as appellant began cursing at him as well. (N.T., 1/18/08, pp. 84-86.) Other guests on the fourth floor, upon hearing the commotion, began coming out into the hallway. (N.T., 1/18/08, pp. 17,86,135,156.) The police were again summoned to the hotel. (N.T. 1/18/08, pp. 17, 88.)

Bensalem Township police officers responded to the fourth floor and found the appellant standing by his doorway with a beer bottle in hand. (N.T., 1/18/08, p. 120.) The trained officers found him to be visibly intoxicated, exhibiting slurred speech and unsteady gait, with an odor of alcoholic beverage on his breath. (N.T., 1/18/08, pp. 120, 130, 141, 155.) Ms. Rivera asked that the officers remove appellant from the premises. Rather than complying, appellant began arguing with the officers in a boisterous and combative manner. He got so close to Officer Dennis Hart that he spat in his face as he yelled at him. (N.T., 1/18/08, p. 155.) When Officer Hart put his hands up to cover his face and protect himself from the spitting, appellant feigned contact and flopped backwards, bracing himself in his doorway and alleging “police brutality”. (N.T., 1/18/08, p. 155.) Appellant also stuck out his jaw at Officer Hart and stated “hit me” and threatened suit. (N.T., 1/18/08, pp. 146, 156-57.)

After entering and exiting his room numerous times, and following several loud outbursts containing defiant and vulgar language, appellant reluctantly agreed to leave the hotel peacefully with the officers. (N.T. 1/18/08, pp. 142, 158.) He was escorted to his vehicle in the hotel parking lot, where his family joined him. Officer Hart informed the appellant that he wished to administer a portable breath test (PBT), whereupon appellant again became upset. (N.T. 1/18/08, p. 158.) He came to within six inches of Officer Hart’s face and began cursing at him and arguing. (N.T., 1/18/08, p. 159.) At that point, Officer Hart had no recourse but to tell appellant he was placing him under arrest. When the officer reached for appellant’s arm, appellant flopped onto the ground with his arms underneath him, requiring the officers to forcibly handcuff him. (N.T., 1/18/08, pp. 146, 158.) Appellant was subsequently charged with the offenses at issue.

ISSUES RAISED ON APPEAL

In response to the order of this court pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), appellant has filed a statement of errors complained of on appeal in the form of a memorandum challenging and discussing the sufficiency of the evidence with respect to the charges at issue, with an emphasis on the argument that the conduct in question did not occur in a public place. Accordingly, we shall address in our discussion both offenses with respect to the sufficiency of the evidence.

DISCUSSION

Disorderly Conduct

In the case at bar, the appellant was charged with the summary offense of disorderly conduct, 18 Pa.C.S. §5503(a)(4), which provides:

“A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: . . . (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

At trial, we found that the Commonwealth witnesses, consisting of hotel staff, hotel security and several Bensalem Township police officers, were credible, and we did not find the testimony presented by the defense to be believable with respect to the dispositive facts in the case. From this perspective, we shall discuss the evidence as it relates to the charges.

The evidence clearly established that the appellant engaged in conduct which created a physically offensive condition. He approached both hotel employees and the police in a menacing manner while verbally abusing them in a loud voice. He stood face to face with them at extremely close range such that he was spitting at them as he spoke, requiring them to protect their faces with their hands. He provoked and baited hotel security and the police with bodily gestures such as sticking out his chin and flopping about, thereby creating some risk of bodily contact. Rather than peaceably submitting to arrest, he threw himself to the ground, requiring the police to use force to bring him under control. Furthermore, such unruly conduct continued after many pleas to desist, and over a substantial period of time.

We are mindful that the offense of disorderly conduct is not to be a catchall for conduct that is merely uncivil, annoying or irritating, See Commonwealth v. Gilbert, 449 Pa. Super. 450, 674 A.2d 284 (1996), nor is it to apply in all situations where police officers suffer verbal indignities. See Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). The present facts, however, as described herein, clearly are sufficient to support at the very least a summary disorderly conduct conviction.

Appellant maintains that the conduct in question did not occur in a public place, and therefore, the disorderly conduct statute cannot apply. We do not find appellant’s argument persuasive. The disorderly conduct statute sets forth the definition of “public” as follows:

“(c) Definition. — As used in this section the word ‘public’ means affecting or likely to affect persons in a place to which the public or a substantial group has access: among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.”

Hotel premises are certainly places of business, open and accessible to the public. Any member of the public may park in a hotel parking lot, enter the hotel lobby and inquire about obtaining a room. Hotels also commonly contain restaurants and gift shops, open and accessible to the public. Furthermore, once an individual becomes a paying patron of a hotel, there is no reason why that person should not retain his or her right to be protected by the laws pertaining to public conduct when in common areas of the hotel.

In the instant case, appellant’s unruly and intimidating conduct took place in the busy hotel lobby, an upstairs common hallway for hotel guests and the hotel parking lot. With respect to the upstairs hallway, which one might consider the most private of those areas, the appellant’s noisy behavior drew other hotel guests out of their rooms and actually caused public annoyance and alarm. Clearly, with respect to the other locations, his conduct at the very least recklessly created a risk of such a result.

For the above-stated reasons, we determined that the appellant’s conduct was both physically offensive and recklessly impacted the public, and therefore, we found him guilty of the summary offense of disorderly conduct.

Public Drunkenness

Appellant was also charged in this case with the summary offense of public drunkenness, 18 Pa.C.S. §5505, which provides in pertinent part:

“A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol... to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.”

Appellant maintains that the evidence did not establish that he was “manifestly under the influence of alcohol.” This argument clearly lacks merit. Several Bensalem Township police officers who responded to the Radisson Hotel gave unequivocal testimony concerning the appellant’s state of intoxication. Officer Donald Schwab, an experienced patrolman who has made approximately two thousand driving under the influence arrests, described the appellant as “highly intoxicated”. (N.T., 1/18/08, p. 120.) Officer Nicholas Suder related that the appellant had slurred speech, red bloodshot eyes and an odor of an intoxicating beverage emanating from his breath. (N.T., 1/18/08, pp. 130, 127.) Officer John Catrombon described the appellant as “highly intoxicated,” with bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. (N.T., 1/18/08, p. 141.) He further related that the appellant had trouble standing and yelled, cursed and screamed constantly in the upstairs hallway. (N.T. 1/18/08, pp. 141-42.) Officer Dennis Hart also described the appellant as “very highly intoxicated,” with slurred speech and very bad balance. (N.T., 1/18/08, p. 155.)

Based on the totality of the credible testimony, it is apparent that the appellant was manifestly under the influence of alcohol on the night of June 16, 2007 and during the early morning hours of June 17, 2007.

In the context of the public drunkenness charge, appellant also contends that he was not in a public place, or in the alternative, that if he was in a public place, he was not there voluntarily and his conduct is somehow excused by the fact that the police caused him to be there. We do not find either of these arguments persuasive.

As discussed above, hotel lobbies, hallways and parking lots are clearly public places where the public has access. Indeed, the testimony established that members of the public, including children, were actually present at those locations when the appellant was engaging in drunken and disorderly conduct. (N.T., 1/18/08, pp. 17, 86, 135, 149, 156.)

With respect to the conduct of the police, we disagree that they alone were responsible for appellant being intoxicated in a public place. When summoned to appellant’s room, the officers requested that appellant quietly remain in his room and gather his belongings so that he could leave the premises. Rather than comply, the appellant repeatedly came out of his room of his own volition, confronting the police and creating an uproar that caused other hotel guests to come out of their rooms and assemble in the hallway. It is also relevant to the issue of volition that hotel security, when they initially responded to appellant’s room, never instructed him to leave. Once they determined that his children were unharmed, they requested that he merely remain quietly in his room. (N.T., 1/18/08, pp. 86-87.) Only when he refused to do so and became boisterous and profane in the hallway did security summon the police to remove him. Thus, it was appellant who caused himself to come into contact with the public in an intoxicated state.

For the reasons stated above, we determined that the appellant was manifestly under the influence of alcohol in a public place to a degree that he might endanger and annoy persons in his vicinity. Accordingly, we found him guilty of the summary offense of public drunkenness.

Finally, we feel compelled to state that we found this case particularly disturbing because minor children were impacted by appellant’s drunken and disorderly conduct. The children were given an opportunity to spend a weekend away from home and participate in a basketball tournament. It should have been a time of family fun, good competition and learning. Regrettably, due to the excessive drinking of appellant, the trip turned into an experience that will evoke painful memories for those young people who witnessed appellant’s unruly behavior.

CONCLUSION

For the foregoing reasons, this court finds no merit in appellant’s allegations of error.

      . Disorderly conduct, 18 Pa.C.S. §5503(a)(4), and public drunkenness and similar conduct, 18 Pa.C.S. §5505.


source: Caselaw Access Project

author: BUCCI, J,

license: Public Domain

text:
    Commonwealth v. Baucage

      Michael Cammarano, for defendant/appellant.

      Alisa Hobart, assistant district attorney, for Commonwealth/appellee.
    April 24, 2008
   BUCCI, J,

PROCEDURAL HISTORY

On July 13, 2006, the defendant was found guilty by a jury of two counts of aggravated assault, three counts of recklessly endangering another person, possessing instruments of a crime, and conspiracy to commit recklessly endangering another person. On July 17, 2006, he pled guilty to prohibited possession of a firearm. He was subsequently sentenced on that same date to an aggregate sentence of nine to 20 years. The defendant, by and through his attorney, filed a notice of appeal on August 16, 2006. On August 17, 2006, this court ordered the defendant to file a concise statement of errors complained of on appeal. However, appellant’s counsel failed to file a timely concise statement, waiving all issues on appeal, and appellant’s appeal was dismissed by the Superior Court on October 12, 2006.

On December 12,2006, appellant filed a pro se motion to reinstate appeal. This court treated appellant’s motion as a petition for post conviction collateral relief and appointed counsel. On January 23,2008, appellant filed an amended PCRA petition requesting reinstatement of his direct appeal rights. On January 25, 2008, this court granted appellant’s petition, granting him leave to appeal nunc pro tunc.

On February 25,2008, appellant filed a notice of appeal to the Pennsylvania Superior Court. On March 3, 2008, this court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure 1925(b). Appellant filed a concise statement on March 24,2008, and, with this court’s permission, an amended concise statement on March 26, 2008, raising the following issues:

“(1) The evidence presented at trial is insufficient to support the verdict of the jury, inter alia that:

“(a) the Commonwealth failed to present any evidence as to which weapon caused the injuries alleged to have been sustained by the victim;

“(b) the Commonwealth failed to present any evidence as to any weapon alleged to be in possession of the defendant;

“(c) the alleged victim did not identify the defendant as the person who assaulted him.

“(2) The verdict of the jury was against the weight of the evidence in that:

“(a) there were six alleged eyewitnesses to the shooting, five testified that they knew the defendant and he was not present at the scene of the shooting;

“(b) the allegation of a single witness who claimed the defendant participated in the attack was not corroborated by any circumstantial evidence and was contradicted by all the direct evidence;

“and the interests of justice require that the defendant be granted a new trial.”

STATEMENT OF FACTS

On the evening of August 5, 2005, Jacqueline Cortes and her boyfriend, Eddie Flores, went to El Tapatio Bar in Reading, Berks County, Pennsylvania. N.T., jury trial, 7/11/06, at 81-82. While there, they met her brothers, Ariel and Alexander Cortes, their friend Marcus Espada, and Ariel’s girlfriend, Grace Perez. N.T., jury trial, 7/11/06, at 82.

Ms. Cortes’ brothers and Mr. Espada left the bar first to visit their sister, Yahaira Cortes. Ms. Cortes, Mr. Flores, and Ms. Perez followed later, stopping first at a tavern on Walnut Street to purchase several six-packs of beer. N.T., jury trial, 7/11/06, at 85. The group reunited at Yahaira Cortes’ apartment, 334 North 10th Street, Reading, where they were joined by Alexander’s girlfriend Christine Cartagena. N.T., jury trial, 7/11/06, at 87-88.

In the early morning hours on August 6, 2005, as the group was sitting on the porch drinking, appellant’s co-defendant, Pedro Sanchez-Perez, appeared walking north on 10th Street and crossed in front of Jacqueline Cortes, standing less than a foot away from her. N.T., jury trial, 7/11/06 at 88-90. Ms. Cortes recognized Mr. Sanchez-Perez as the same person she had seen while at the El Tapatio Bar, speaking to Ariel Cortes. N.T., jury trial, 7/11/06, at 83-85, 90-91.

Mr. Sanchez-Perez told everyone on the porch, “Get inside. They are coming.” N.T., jury trial, 7/11/06, at 93. At that point, Ms. Cortes observed a shotgun in his hand, which she identified as the same shotgun Reading police recovered from Mr. Sanchez-Perez at his arrest. N.T., jury trial, 7/11/06, at 91-93, 95. Then as she was still sitting on the porch, she heard multiple gunshots from more than one gun coming from the direction of Elm Street. N.T., jury trial, 7/11/06, at 95-96. She observed two shooters, one whom she identified as the appellant, Jose Baucage, before she ran inside. N.T., jury trial, 7/11/06, at 96. Ms. Cortes also testified that appellant had a handgun and that she saw him fire it in the direction of the porch where everyone was sitting. N.T., jury trial, 7/11/06, at 97-98, 104.

As a result of this gunfire, Ariel Cortes was shot in the arm, the chest and in each leg. N.T., jury trial, 7/11/06, at 50-51. Marcus Espada was shot in the foot as he attempted to flee. N.T., jury trial, 7/11/06, at 68-69. The police recovered bullet casings from four different weapons at the scene of the crime, including four .38 casings, eight .40 casings, 12 9mm casings, and a shotgun wad. N.T., jury trial, 7/12/06, at 240-42. Additionally, many of the cars parked along the 300 block of North 10th Street were damaged by gunfire. N.T., jury trial, 7/11/06, at 29.

The testimony of Jacqueline Cortes was substantially corroborated by the testimony of Grace Perez and Eddie Flores. N.T., jury trial, 7/11/06, at 120-38, 156-74. Additionally, after the shooting, Eddie Flores told the Reading police that he saw Mr. Sanchez-Perez fire what looked like a sawed-off shotgun at Ariel Cortes one or two times. See e.g., Commonwealth exhibit 13. However, at trial, Mr. Flores testified that although he saw Mr. Sanchez-Perez chase Mr. Cortes into the street and heard a shotgun blast, he never saw Mr. Sanchez-Perez fire his weapon. N.T., jury trial, 7/11/06, at 164-65.

Ariel Cortes and Marcus Espada testified that they could not identify their attackers. N.T., jury trial, 7/11/06, at 54, 69. However, they admitted that even if they did know who shot them, they would not tell the police. N.T., jury trial, 7/11/06, at 57, 73.

DISCUSSION

I. Sufficiency of the Evidence

Appellant first alleges that the evidence is insufficient to support the jury’s verdict.

Unfortunately, appellant has failed to clarify which of the numerous charges he believes are unsupported by the evidence.

Nevertheless, this court will address the issue below.

“The standard [applied] when reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. ... [T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002). (citations omitted)

A. Aggravated Assault

To support a guilty verdict for aggravated assault under 18 Pa.C.S. §2702(a)(l), the Commonwealth must prove beyond a reasonable doubt that appellant attempted to cause serious bodily injury to another or caused such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. §2702(a) (1). Serious bodily injury is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18Pa.C.S. §2301.

The Commonwealth’s evidence has been summarized above. The jury was presented with sufficient evidence to conclude beyond a reasonable doubt that appellant participated in the shooting at 334 North 10th Street and either caused or attempted to cause serious bodily injury to Ariel Cortes under circumstances manifesting extreme indifference to the value of human life. Jacqueline Cortes testified that she saw appellant at the scene of the shooting firing a handgun at the people sitting on the porch. Shooting a firearm at another individual undoubtedly creates a substantial risk of death and may cause serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. While the victim, Ariel Cortes, was either unable or unwilling to identify his assailant, Ms. Cortes’ testimony was sufficient to support the jury’s verdict.

While appellant argues that it was not appellant’s bullet that struck Ariel Cortes, that issue is irrelevant.

“To sustain a conviction for aggravated assault, the Commonwealth need not show that serious bodily injury actually occurred, but only that the defendant attempted to cause serious bodily injury to another person. An ‘attempt’ exists when the accused intentionally acts in a manner which constitutes a substantial or significant step toward perpetuating serious bodily injury upon another.” Commonwealth v. Stevenson, 894 A.2d 759, 11A (Pa. Super. 2006). (internal citations omitted)

The jury could certainly find that appellant’s conduct constituted a substantial step toward causing serious bodily injury to another. Additionally, appellant was also convicted of conspiracy, making him liable for the acts of his co-conspirators committed in furtherance of the conspiracy. See Commonwealth v. Johnson, 920 A.2d 873, 879 (Pa. Super. 2007) (“Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.”). Thus, appellant could be found guilty of aggravated assault as a co-conspirator, even if he was not the one who shot Ariel Cortes.

B. Recklessly Endangering Another Person

Appellant is guilty of recklessly endangering Ariel Cortes, Jacqueline Cortes, and Marcus Espada if it is proved that he recklessly engaged in conduct that placed the victims in danger of death or serious bodily injury. 18 Pa.C.S. §2705. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that serious bodily injury will result from his conduct. 18 Pa.C.S. §302(b)(3). The risk must be of such nature and degree that, considering the nature and intent of the individual’s conduct, and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct a reasonable person would have observed in the individual’s situation. Id.

As discussed above, the Commonwealth presented evidence that appellant discharged a handgun in the direction of the victims. Such conduct surely demonstrates a reckless disregard of the likelihood that the victims, as well as any other bystanders, would suffer serious bodily injury as a result of his gunfire.

C. Possessing an Instrument of a Crime

In order to find appellant guilty of possessing an instrument of a crime, the jury must be satisfied beyond a reasonable doubt that appellant possessed a handgun, pistol, or other firearm; that this item was an instrument of a crime; and that appellant possessed this item with the intent to attempt to commit or commit a crime. 18 Pa.C.S. §907(b).

The Commonwealth presented testimony from Jacqueline Cortes that appellant possessed a handgun on the night of the shooting. A gun is an object that is commonly used for criminal purposes, and the evidence suggests that appellant’s gun was possessed by him under circumstances inconsistent with any lawful uses a gun has. The jury could reasonably find that on the night of the shooting, appellant possessed a gun with the intent to engage in the shooting of Ariel Cortes.

D. Conspiracy

To sustain a conviction for criminal conspiracy, the Commonwealth must establish that appellant (1) entered an agreement to commit or aid in the unlawful act with another person or persons, (2) with a shared criminal intent and, (3) an overt act was done in furtherance of the conspiracy. This overt act need not be committed by appellant; it need only be committed by a co-conspirator. Commonwealth v. Ruiz, 819 A.2d 92 (Pa. Super. 2003). An explicit or formal agreement to commit crimes can seldom, if ever, be proved, but a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. Id. at 97, citing Commonwealth v. Johnson, 719 A.2d 778, 784-85 (Pa. Super. 1998).

“The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.” Id. The Pennsylvania Superior Court has identified four factors to be utilized in determining the sufficiency of the evidence supporting the existence of a conspiracy. These factors are: “(1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy.” Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). The presence of these four circumstances “may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred.” Id.

The evidence presented by the Commonwealth painted a picture of a well-planned ambush in which appellant, Pedro Sanchez-Perez, and an unknown third party converged on 334 North 10th Street almost simultaneously and opened fire on Ariel Cortes, his family, and friends. Such coordination among the assailants supports the jury’s finding of guilt on the charge of conspiracy to commit recklessly endangering another person (Ariel Cortes).

Thus, for all the above reasons, the evidence was sufficient to support the verdict in this case.

II. Weight of the Evidence

Appellant also claims that the verdict was against the weight of the evidence.

Assuming that appellant has properly presented this issue for review, “[t]he weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003).

In determining whether the verdict is against the weight of the evidence, the role of the trial court is to determine whether “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000). (citations omitted) Stated more concisely, the verdict should not be disturbed unless it is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Miller, 555 Pa. 354, 367, 724 A.2d 895, 901 (1999).

The Commonwealth’s evidence is summarized above. After carefully reviewing the entire record and considering the relevant facts and law, this court cannot find that the verdict shocks its sense of justice.

While appellant argues that not all of the Commonwealth’s witnesses testified in a consistent manner, the mere fact that there are some inconsistencies in a witness’ testimony is not enough to destroy the Commonwealth’s case or render the evidence insufficient to support the verdict. Commonwealth v. Long, 425 Pa. Super. 170, 185, 624 A.2d 200, 208 (1993), appeal denied, 535 Pa. 645, 633 A.2d 150 (1993). Furthermore, while only a single witness placed appellant at the scene of the crime, the jury was free to find her description of events to be the most credible. See McCloskey, 835 A.2d at 809.

Accordingly, this court finds no merit to appellant’s contention that the verdict is against the weight of the evidence.

CONCLUSION

For all the above reasons, the court respectfully requests that the defendant’s appeal be denied and his sentence affirmed.

      . 18 Pa.C.S. §2702(a)(1); 18 Pa.C.S. §2702(a)(4).

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §907(a).

      . 18 Pa.C.S. §903(a)(1).

      . 18 Pa.C.S. §6105(a)(1).

      . An instrument of a crime is anything specially made or specially adapted for criminal use or anything commonly used for criminal purposes and possessed by the defendant under circumstances not manifestly appropriate for lawful uses it may have.


author: GEORGE, J,

text:
    Commonwealth v. Lacy

      Matthew Smith, for Commonwealth.

      Michael Halkias, public defender, for defendant.
    April 30, 2008
   GEORGE, J,

— This appeal follows a jury conviction of the defendant, Joe Paul Lacy, for two counts of aggravated assault, one count of resisting arrest, a count of driving under the influence of alcohol, and a summary violation of careless driving. On appeal, Lacy argues that this court erred in failing to instruct the jury on a lesser included offense of simple assault. Additionally, Lacy makes a boilerplate claim as to the sufficiency of the evidence, however, fails to offer any specifics in regard to which conviction he challenges or what element is allegedly lacking.

In his first challenge, Lacy alleges error on the part of this court in failing to instruct the jury on the crime of simple assault alleging that the same is a lesser included offense of aggravated assault. This issue is both waived and wholly frivolous.

Pennsylvania Rule of Criminal Procedure 647(b) provides that:

“No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.”

The Supreme Court has held that this rule requires “a specific objection to the charge or an exception to the trial court’s ruling on a proposed point [for charge in order] to preserve an issue involving a jury instruction.” Commonwealth v. Pressley, 584 Pa. 624, 630, 887 A.2d 220, 224 (2005). (footnote omitted) See also, Commonwealth v. Garcia, 585 Pa. 160, 164, 888 A.2d 633, 636 (2005). Instantly, Lacy did not object following this court’s charge to the jury. Accordingly, under the precedent oí Pressley, Lacy has waived any issues respecting this court’s instructions.

Lacy’s lack of objection to this court’s charge was prompted, perhaps, by the Superior Court’s decision in Commonwealth v. Novak, 388 Pa. Super. 33, 35, 564 A.2d 988, 990 (1989). Based upon a factual background substantially similar to the one underlying the current issue, the Superior Court held that there was no error in the trial court’s refusal to instruct the jury on the elements of simple assault where the defendant was charged with aggravated assault under section 2702(a)(3) of the Pennsylvania Crimes Code (relating to attempting to cause or intentionally or knowingly causing bodily injury to an enumerated officer acting in the performance of their duty). Although recognizing that simple assault has been held to be a lesser included offense of aggravated assault, see Commonwealth v. Sirianni, 286 Pa. Super. 176, 180, 428 A.2d 629, 630 (1981), the Novak court reiterated that a trial court should give charge on a lesser included offense only where there is disputed evidence on an element of the greater offense. Novak at 35, 564, A.2d at 990. There simply is no duty on the part of trial judge to charge upon law which has no applicability to the presented facts. Commonwealth v. Jordan, 407 Pa. 575, 584, 181 A.2d 310, 315 (1962).

Instantly, Lacy was charged with two counts of aggravated assault pursuant to allegations that he attempted to cause or intentionally or knowingly caused bodily injury to two separate state troopers acting in the performance of their duty. Trial evidence indicated that the troopers were on duty in an unmarked state police vehicle. Upon commencing pursuit of Lacy’s vehicle, emergency lights were activated. Immediately upon interacting with Lacy, the troopers identified themselves as Pennsylvania State Police. By all accounts, Lacy’s actions, specifically related to the charges of aggravated assault, did not occur until he was placed under arrest. There was neither claim nor suggestion at trial that either of the troopers were acting outside the performance of their duties as one of the enumerated officers set forth in the statutory section. In fact, at trial, Lacy admitted to lawfully being placed under arrest for driving under the influence of alcohol prior to the assault. See trial transcript, p. 88. Defense counsel conceded as much in both his opening and closing statements to the jury. See trial transcript, pp. 19, 112. Under the clear precedent of Novak, jury instructions on the crime of simple assault were unwarranted.

In his second issue, Lacy raises a boilerplate claim of sufficiency of the evidence. This claim, however, has not been properly preserved. In his concise statement of matters complained of on appeal, Lacy neither identifies the conviction which he is challenging nor the elements which are allegedly lacking sufficient evidence. The purpose of Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure is to facilitate the preparation of a trial court opinion, to allow meaningful appellate review of issues, and to promote the certainty, consistency, and fairness which arise when all parties are equally obligated to meet procedural rules. Commonwealth v. Flores, 909 A.2d 387, 390 (Pa. Super. 2006) (Flores I). If a party wishes to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. Commonwealth v. Flores, 921 A.2d 517, 522 (Pa. Super. 2007) (Flores II). Indeed, a Rule 1925(b) statement essentially identical to that currently before the court has been held to be insufficient to properly preserve a sufficiency challenge. See Flores I, supra.

For the foregoing reasons, it is respectfully requested that Lacy’s convictions be affirmed.

      . At the conclusion of jury instructions, the court inquired of counsel whether they wished to offer anything in regard to the instructions to which both responded in the negative. See trial transcript, p. 134.

      . Lacy confirms the same in his testimony at trial. See trial transcript, p. 68.


author: GEORGE, J.,

text:
    Commonwealth v. Stallsmith

      Shane F. Crosby, for Commonwealth.

      Robert J. Chester, for defendant.
    April 23, 2008
   GEORGE, J.,

— On July 5,2007 at approximately 9:30 p.m., a vehicle operated by the defendant, Gregory Lee Stallsmith, was stopped by Officer William Orth of the Gettysburg Borough Police Department. Officer Orth was attracted to the vehicle after hearing the sound of a car horn blowing. When he turned to the direction of the noise, he observed Stallsmith’s vehicle traveling eastbound on State Route 30 at a distance of approximately four to five feet behind a vehicle moving in front of it in the same direction. He opined that the vehicles were traveling at, or slightly in excess of, the legally posted speed limit of 25 miles per hour and that Stallsmith’s vehicle would not be able to stop in the event of an emergency stop by the lead vehicle. Orth observed Stallsmith’s vehicle for approximately 300 yards during which the distance between the two vehicles remained the same. Based upon observations, Officer Orth conducted a vehicle stop. As a result of evidence derived from the stop, Stallsmith was charged with driving under the influence of alcohol. He was also cited for the summary offenses of following too closely (75 Pa.C.S. §3310) and operating a vehicle without financial responsibility (75 Pa.C.S. §1786).

After formal arraignment, Stallsmith filed an omnibus pretrial motion seeking suppression of all evidence derived as the result of the stop. That motion was denied following hearing on November 20, 2007. Thereafter, Stallsmith was convicted at a non-jury trial on January 15, 2008. Following sentencing on February 25, 2008, Stallsmith filed a timely appeal to the Superior Court. In his appeal, Stallsmith challenges this court’s decision upholding the legality of the vehicle stop.

The proper standard to be applied in determining the legality of the traffic stop is whether the arresting officer had a reasonable suspicion that provisions of the Motor Vehicle Code were being violated. See 75 Pa.C.S. §6308(b); Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006). In order to determine whether the arresting officer had reasonable suspicion, the totality of the circumstances must be considered. In the Interest of D.M., 566 Pa. 445, 449, 781 A.2d 1161, 1163 (2001). The totality of the circumstances does not limit inquiry to an examination of only those facts which clearly indicate criminal conduct but also includes a consideration of whether a combination of innocent facts, when taken together, warrant further investigation by the police officer. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676-77 (1999). In making this determination, due weight must be given to the specific reasonable inferences which the police officer is entitled to draw from the facts in light of his or her experience. Commonwealth v. Barnhart, 933 A.2d 1061, 1065 (Pa. Super. 2007) citing to Commonwealth v. Cook, 735 A.2d at 676.

Officer Orth stopped Stallsmith’s vehicle because of his belief that Stallsmith was operating his vehicle in violation of section 3310 of the Pennsylvania Motor Vehicle Code. That section provides:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of vehicles and the traffic on and the conditions of the highway.” 75 Pa.C.S. §3310(a).

Because this language is clear and unambiguous, it is to be construed according to the plain meaning of the word used. Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982).

In Commonwealth v. Phin, 761 A.2d 176, 180 (Pa. Super. 2000), the Superior Court concluded that a state trooper’s observations, standing alone, were legally sufficient to justify a stop for a violation of section 3310(a) when the trooper testified that he observed a vehicle following a tractor-trailer less than a motorcycle length distance behind at a speed of 55 miles per hour. The court reasoned that “[t]he evidence clearly bespeaks a hazard within the contemplation of section 3310(a).” Commonwealth v. Phin, 761 A.2d 176, 180 (Pa. Super. 2000). In Commonwealth v. Bybel, 779 A.2d 523, 524-25 (Pa. Super. 2001), the Superior Court found similar evidence sufficient to support a conviction for section 3310. In finding the evidence sufficient beyond a reasonable doubt, the court noted that the evidence established that the appellant’s actions in tailgating the lead vehicle compromised safety on the highway in direct contravention of the language of section 3310. In part, the court relied upon the testimony of the citing trooper that the “appellant could not have avoided a collision if the tractor-trailer had cause to brake suddenly.” Id., 779 A.2d at 525.

Unlike Bybel, the burden on the Commonwealth at a suppression hearing is not beyond a reasonable doubt but rather, as mentioned, whether a reasonable suspicion was present. Officer Orth’s observations are clearly sufficient to meet that burden. He noted that the sound of a vehicle horn caught his attention. His observations thereafter are consistent with the type of tailgating specifically prohibited by the Vehicle Code. Stallsmith placed his vehicle immediately off the rear bumper of lead vehicle and followed the lead vehicle for a distance of 300 yards at a speed that made an immediate safe stop impossible. The everyday experiences of motorists on our roadways teach how dangerous Stallsmith’s actions were. While I cannot conclude that Officer Orth’s intervention may have avoided a more serious incident spawned by “road rage,” the totality of the circumstances permits the reasonable conclusion that Stallsmith was aggressively tailgating the lead vehicle due to some perceived disrespect on the roadway. This observation certainly warranted further investigation as it is precisely the type of conduct which is made illegal by the Vehicle Code.

For the foregoing reasons, it is respectfully requested that Stallsmith’s sentence be affirmed.

      . Interestingly, Stallsmith currently does not challenge the sufficiency of evidence supporting his conviction of violation of 75 Pa.C.S. §3310.

      . A reading of Stallsmith’s concise statement of matters complained of on appeal leaves this court unclear as to whether he is challenging the probable cause for Stallsmith’s arrest. Nevertheless, the issue, if raised by Stallsmith, is frivolous. At suppression hearing, Officer Orth’s testimony established an odor of alcohol on Stallsmith’s person. Subsequent discussion with Stallsmith revealed slurred speech and his admission to the consumption of alcohol. Stallsmith failed the sobriety testing given to him. Based upon these observations, including Stallsmith’s aggressive driving, Officer Orth formed the opinion that he was under the influence of alcohol. Officer Orth was a police officer for approximately 14 years and has been trained in the identifiers for persons under the influence of alcohol. He has been involved in arresting individuals for DUI on at least 50 to 60 occasions. Similar evidence has been found by the Superior Court to be sufficient to support a finding of probable cause. See Commonwealth v. Gruff, 822 A.2d 773, 781 (Pa. Super. 2003), appeal denied, 581 Pa. 672, 863 A.2d 1143 (2004); Commonwealth v. Smith, 904 A.2d 30, 36-37 (Pa. Super. 2006); Commonwealth v. Hunsinger, 379 Pa. Super. 196, 203, 549 A.2d 973, 977 (1988).


author: HODGSON, P.J.,

text:
    Commonwealth v. Heimbach

      Risa Vetri Ferman, Mary McNeill Killinger and Erin Colleen Lentz, for Commonwealth.

      Elizabeth Lippy, for defendant.
    April 30, 2008
   HODGSON, P.J.,

— Ronald Heimbach (appellant) appeals to the Superior Court of Pennsylvania from our order dated February 8, 2008 denying his request for post conviction relief.

FACTS AND PROCEDURAL HISTORY

On March 20, 2006, appellant pled guilty to two counts of possession of controlled substance with intent to deliver. Upon entering his plea, appellant testified under oath that he was pleading guilty of his own free will and that no one forced, threatened or coerced him into doing so. Appellant also admitted that he committed the crimes that he was pleading guilty to and that he was aware of their mandatory minimum and maximum sentences. Moreover, appellant asserted that he understood that by entering a guilty plea, he was waiving his right to a trial by jury or judge as well as his right to have the Commonwealth prove him guilty beyond a reasonable doubt. As a result, appellant was subsequently sentenced to two concurrent terms of imprisonment of four to 12 years in a designated state correctional institution. Thereafter on January 18,2007, appellant filed a pro se Post Conviction Relief Act (PCRA) petition, which we dismissed without a hearing on May 14,2007. Appellant then requested permission to file an amended PCRA petition which we granted. Said petition was subsequently filed and a hearing was held on January 18,2008 to determine its merits, which we ultimately denied. Appellant now appeals our decision to the Pennsylvania Superior Court.

In accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed appellant to file and serve upon us a concise statement of errors complained of on appeal by no later than April 4,2008. Said statement was filed on March 20, 2008.

LEGAL DISCUSSION

Appellant maintains that his trial counsel provided ineffective assistance as a result of his failure to advise appellant of any potential and relevant suppression issues, which invalidates his guilty plea. At appellant’s PCRA hearing, his trial attorney testified that because he did not believe that there were any legitimate suppression issues and since appellant was attempting to cooperate with the Commonwealth, he did not file a suppression motion. However, appellant claims that this explanation does not provide a reasonable basis for his lawyer’s decision since his cooperation with the Commonwealth had dissolved well before his guilty plea was entered and, therefore, a suppression hearing should have been requested.

“[A]negations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.” Commonwealth v. Boyd, 835 A.2d 812, 815 (Pa. Super. 2003). In order to succeed on such a claim, a defendant must demonstrate that “(1) his underlying contention possesses arguable merit; (2) the course chosen by counsel had no reasonable basis designed to serve his interests; and (3) counsel’s conduct prejudiced him.” Commonwealth v. Vealey, 398 Pa. Super. 449, 453, 581 A.2d 217, 219 (1990). When evaluating such a claim, the court must first consider the merit of the defendant’s underlying issue. If the court finds that the issue is in fact meritorious, it then must determine whether counsel’s actions were intended to effectuate his or her client’s interests. Commonwealth v. Moore, 321 Pa. Super. 442, 448, 468 A.2d 791, 794 (1983).

In Moore, the defendant argued that his trial attorney was ineffective for failing to argue a motion to suppress which he had filed prior to completing a guilty plea colloquy. The court held against the defendant and found that even if the motion had arguable merit, the trial counsel was not ineffective for failing to pursue it since he testified at the defendant’s post conviction relief hearing that there was not a likelihood of succeeding on such a motion and, moreover, he believed that the terms of his client’s plea bargain were favorable. Id. at 449, 468 A.2d at 794-95.

Similarly in the instant case, we find that appellant’s trial counsel had a reasonable basis for his course of conduct. At appellant’s PCRA hearing, his lawyer testified that he did not believe there were any legitimate suppression issues because appellant’s charges resulted from a discovery of controlled substances obtained from a consented search of his vehicle. This is further supported by a statement appellant made to police that he intended to deliver the said substances to another individual. His attorney also stated that because appellant was attempting to cooperate with the Commonwealth and continued to do so up until a couple of days before his sentencing, he could not simultaneously file suppression motions and allege police misconduct. On this basis, appellant’s trial lawyer felt that his client’s negotiated plea agreement with the Commonwealth best served his interests. We agree with appellant’s counsel and upon reviewing his testimony, find it to be credible and conclude that his representation of appellant was not ineffective and therefore does not invalidate appellant’s guilty plea.

Appellant also asserts that this court erred in denying him the opportunity to present expert testimony to establish that the common practice and procedure of a criminal defense attorney is to discuss any possible suppression issues with his or her client in order to ensure that the plea entered is knowing, intelligent and voluntary. We find appellant’s argument to be meritless. To evaluate a claim of ineffective assistance of counsel, the test is not whether alternative courses of action were more reasonable, but rather, whether the attorney’s decision and course of conduct had a reasonable basis which was designed to effectuate the client’s interests. Commonwealth v. Penrose, 447 Pa. Super. 478, 486, 669 A.2d 996, 1000 (1995). In the instant case, although we denied appellant the opportunity to call an expert witness in support of his claim of ineffective assistance of counsel, this was not required. Rather, it was necessary for appellant’s trial attorney to explain the logic behind his decisions so that we could determine whether his conduct was reasonable and in his client’s interests in this case.

CONCLUSION

Based on the forgoing, the undersigned respectfully requests that the court’s denial of appellant’s request for post conviction relief be affirmed.


author: LASH, J,

text:
    Vollrath v. Vollrath

      Laura E. Cooper, for plaintiff.

      Lisa D. Gentile, for defendant.
    November 1, 2006
   LASH, J,

— This court held a custody trial on October 11, 16 and 25, 2006. At issue is primary custody of the parties’ minor child, Lauren Vollrath, born June 7, 1999. The court makes the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Paul D. Vollrath (Father), is an adult individual who currently resides at 982 Garfield Court, Warrington, Bucks County, Pennsylvania 18976.

(2) Defendant, Tracy M. Vollrath (Mother), is an adult individual who currently resides at 52 Wood Circle, Reading, Berks County, Pennsylvania 19607.

(3) Father and Mother are the natural parents of a minor child, Lauren Vollrath (Minor Child), born June 7, 1999.

(4) The parties were formerly married but are now divorced.

(5) The parties separated on December 19,2004, when Mother moved from the marital residence. Since the date of separation, Mother has had primary custody of the Minor Child, with Father having partial custody on alternating weekends and one weeknight every week.

(6) The parties and the Minor Child resided in Willow Grove, Montgomery County, Pennsylvania, from the Minor Child’s birth until 2002. Later in 2002, the parties and the Minor Child moved to 8 Osprey Lane, Birdsboro, Berks County, Pennsylvania.

(7) When the parties separated, Mother moved to her present residence. Father remained in Birdsboro for a short time, then moved to his current residence in Bucks County.

(8) Father resides in the Central Bucks School District.

(9) Mother resides in the Governor Mifflin School District.

(10) The Minor Child attends daycare three days per week at the Flying Hills Preschool, located in the same residential complex where Mother resides. She attends approximately six hours per week during the school year and 30 hours per week during the summer.

(11) The Minor Child is deaf in one ear. The Governor Mifflin School District has taken the necessary steps to accommodate the Minor Child’s special needs.

(12) Father is currently employed as the IT Director for Chapman Management, located at 1170 Easton Road, Horsham, Pennsylvania, where he has been employed for the last 12 years. He works full-time with flexible hours.

(13) Mother is currently employed by the Hartford Fire Insurance Company at 600 Office Center Drive in Fort Washington, Bucks County, Pennsylvania 19034, having been employed there for the last nine and one-half years. Her work hours are Monday through Friday from approximately 8 a.m. to 4:30 p.m., but her hours are flexible. She is permitted to work at home on Wednesdays and Fridays.

(14)Mother’s work commute is approximately one hour, one way.

(15)Father is remarried. His wife is Pamela Vollrath. She has three children from her previous marriage, John Tucker, born February 24, 1990, David Tucker, born February 11,1991, and Nancy Tucker, bom February 13, 1995. Her former husband and she share custody of their children.

(16) The Minor Child attends counseling with Lauren Fritz at Spring Psychological Associates in Sinking Spring, Berks County, Pennsylvania.

(17) Father’s home is a single-family home located on a cul-de-sac. The home is approximately 2,900 square feet, set on a half acre lot. It features four bedrooms, two bathrooms, a family room and a game room, among other things. Father’s home is suitable for rearing the Minor Child.

(18) Mother’s home is a three bedroom, two and one-half bath townhouse. There is a playroom for the Minor Child. The townhouse is in a residential community which features several playgrounds, a duck pond, fields, tennis courts, a basketball court and a swimming pool. Mother’s home is suitable for rearing the Minor Child.

II. DISCUSSION

In determining primaiy custody, this court considered the testimony of the parties, Father’s current wife, Pam, Mother’s paramour, Charles Tancini, called as of cross-examination, Mariann McNally, the controller at Father’s employment, Father’s current mother-in-law, Irene Sparango, the Minor Child’s counselor, Lauren Fritz, and various other friends and family members of both parties. This court also conducted an informal interview with the Minor Child. Also considered were the exhibits admitted into evidence and the questionnaires submitted by the parties, which were filed of record.

Father believes it would be best for the Minor Child if the parties’ current arrangement were changed and he would assume primary custody. For one, he argues that he would be more available for the Minor Child. Because he has flexible hours and because he lives close by the school where the Minor Child would attend if he had custody, the Minor Child would not be required to spend time in the daycare. He contrasts his availability to that of Mother who, because of her long commute, is substantially less able to provide quality time for the Minor Child. Additionally, because of Mother’s job location, the Minor Child is isolated during the day. Father is concerned that if an emergency or other substantial issue arose. Mother’s response time would be wholly inadequate.

Father states that he is ready and able to provide all the necessary caretaking and daily maintenance for the Minor Child. He cites his training with foster care agencies because his parents were foster parents and there were foster children living in his home while he was growing up. His training included safety and CPR. He also testified that it was he who worked with the Minor Child to help her learn to tie her shoes, to ride a bicycle with training wheels and to swim. He takes time with her educationally, such as helping her to learn about dinosaurs. He also likes to have fun and enjoys games and other forms of recreation with the Minor Child.

Father believes that the Minor Child would also benefit by the presence of her stepbrothers and, in particular, her stepsister, Nancy, with whom she has a good relationship. Further, there are many children in the neighborhood who are always out playing and enjoy the Minor Child’s company. Additionally, Father has family members who live near his residence, contrasting this with Mother, who has no relatives living near her.

Father testified of his love for his daughter, stating: “It kills me to see her only four days a month.” He would like to increase the time, and would make himself available for that purpose, but claims that Mother refuses to work with him. On his scheduled Wednesday evenings, he has not been able to see the Minor Child because Mother has scheduled activities for the Minor Child after school, including cheerleading and dancing. She refuses to modify the schedule to work with him. She refuses to share in the transportation. She limits telephone conversations with the Minor Child. All of these things have denied him the time he wants to have with his daughter.

He stated that he and Mother have difficulty communicating. At first, the communication was reasonable, but has deteriorated. At this point, the parties communicate via e-mail. Mother fails to communicate with Father about school, medical or other day-to-day issues. He cites one occasion when the Minor Child was accidentally burned by a cigarette while at a swimming pool while the Minor Child was being cared for by the daycare. He did not become aware of this until five hours after it happened. Father recommended that Mother fill out a form and e-mail it to him on a daily basis so that he can keep up with the Minor Child’s daily activities. He states Mother refuses to do this. Father believes that co-parenting counseling would be appropriate and states he would agree to participate.

Father has concerns about Mother’s paramour, Charles Tancini. For one, Mother would not provide any information on him. Father had only his nickname Chuck, but had no last name, nor an address. Later, the Minor Child complained about Mr. Tancini and some of his actions, which she wanted to stop. He had a tendency to tickle her, primarily around the knees, but also in her stomach area, which he called her rock. Additionally, on at least one occasion, he was licking her face, and also when he and the Minor Child were together in a swimming pool, he was spitting the pool water in her direction.

Father believes that Mother should have chosen a residence closer to her employment, which would also be close to where he resides. This would permit easy and frequent access of both parents to the Minor Child. The reason she gave him for moving to her current residence was that she could not afford to live in his area. He disputes this, claiming that there are several attractive areas for her to reside at reasonable cost.

Father also believes that Mother does not properly attend to the Minor Child. He states that based on his conversations with the Minor Child, he believes that sometimes she goes several days without a bath. He wants the Minor Child to have a bath everyday.

Father finds Mother to be controlling and unilateral in decisions regarding the Minor Child. She refuses to meet with him to discuss the Minor Child. She hangs up on him when he tries to speak with her over the phone. She originally did not include his name as a contact person on the daycare data sheet. She refuses to cooperate with Father even on matters of importance, such as Father’s wedding to his current wife, which happened to fall on Mother’s weekend. She would not work with Father on scheduled visits, on changing times for visits to accommodate schedules. When Mother needed someone to watch the Minor Child, she would seek out her friends, and never Father.

Mother presented that primary custody should remain with her, because the Minor Child is thriving under her care. From the time of separation, Mother has been the primary custodian. She has seen to all the Minor Child’s day-to-day needs. She has been active with the Minor Child educationally and recreationally. She has encouraged the Minor Child to engage in activities such as dance class.

When Mother is unavailable, the daycare provides appropriate caretaking responsibilities. The daycare is located in close proximity to Mother’s residence. The school bus can pick up and drop off the Minor Child at the daycare. In the event of an emergency, Mother has friends available until Mother arrives from work.

Mother opposes awarding Father additional time, believing Father is insincere in his representations. While he asks for additional time, he does not take advantage of the time scheduled for him, namely Wednesday evenings. Mother believes Father works much more than he relates, meaning that if the Minor Child were living at his house, the Minor Child would be cared for by her stepmother.

Father has never been as invested as Mother in the care of the Minor Child, previously agreeing that Mother should be the primary custodian, and reiterating to her and friends on several occasions that this is what was best. Further, Mother believes that Father’s true motive in seeking primary custody is to reduce his support obligation.

Mother does not believe the Minor Child would be as well cared for if she resided at Father’s house. Father frequently drinks alcohol, particularly on weekends. His house is known as the party house. It was common when the parties resided together to have drinking parties arranged by Father. This has continued on after the parties’ separation. When the Minor Child was born, Father proposed that her first drink at age 21 would be with him.

Mother also questions how well the Minor Child gets along with stepmother and her children. She believes that the stepmother is not warm to the Minor Child. The Minor Child’s relationship with stepmother’s daughter, Nancy, is on again, off again.

Mother also urges that Father acted improperly by coaching the Minor Child to strengthen his position in the custody case. According to Father, the Minor Child has stated on many occasions that she wants to live with him. According to Mother, the Minor Child has complained to Mother and to her counselor about these discussions with Father, which make her uncomfortable.

The paramount concern in a child custody proceeding is the best interests of the Minor Child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

Both of these parties warrant mixed reviews. Father presents with an energy and strong desire to spend as much time with the Minor Child as possible. His presentation comes across as an appreciable need to have a strong and frequent parent-child relationship. While he has not used his Wednesday visits as often as possible, he points out that Mother has made it difficult for him to do so, by scheduling activities, and by refusing to participate in any transportation. With his work commitments, it becomes a hardship to pick up and drop off the Minor Child on the same evening, which would entail two two-hour round trips for him.

Father’s household contains a family atmosphere. His wife’s children are often present. There are children in the neighborhood, who play with each other in the neighborhood cul-de-sac where Father resides.

Father is perplexed why Mother will not make any effort to work with him to facilitate frequent interaction with him and the Minor Child. He is willing to do whatever it takes to ensure that the Minor Child has a good relationship with both parents.

On the other hand, Father conceded custody to Mother at a volatile time in the parties’ lives, believing that Mother was better able, at least at that time, to care for the Minor Child. He has blown hot and cold, sometimes strongly moving forward into the Minor Child’s life, while at other times being willing to take a subordinate role to Mother.

The party atmosphere at his home is not conducive to rearing a Minor Child. If Father insists on continuing with social drinking, he will have to install adequate safeguards so that the Minor Child is not exposed to intoxicated adults, driving under the influence or any byproducts of the use of alcohol. That being said, this court also recognizes that Father’s activities occur on weekends, and neither Father nor Mother are seeking any change in the weekend schedule. As such, this issue does not impact on the issue of primary custody to the same extent as some of the other matters raised by the parties.

Father’s involving the Minor Child in the custody proceeding was wholly inappropriate. This Minor Child is a shy, reserved, 7-year-old, already involved in counseling. The last thing she needs is to be put in a position where she is choosing between parents or where she wants to live. Most children, when asked, will tell the parent asking that the child wants to live with that parent. Whether true or not, the response is geared to pleasing that parent and avoiding the pain of telling a parent that the child would rather live with the other parent.

This court also has serious concerns about Mother. We first acknowledge that Mother did step to the plate and assume all the caretaking responsibilities, at a time that was difficult for her. Living alone as a single mother, in an area where she had no relatives and probably few friends, she nevertheless adapted and provided a suitable home for the Minor Child. She established continuity. She has never reduced her level of commitment.

Father has criticized Mother for refusing to move closer to her employment, which would also mean the Minor Child would be living closer to him. From a current perspective, it, of course, would make it easier if Mother would reside closer to Father and her employment. Nevertheless, this court does not fault Mother for her choice of residence, because when she chose the residence, it was in close proximity to the marital residence in Birdsboro, where Father still resided. It was Father’s move which created the distance between the parties.

Unfortunately, Mother has done her part to make custody transitions as difficult as possible. After assuming primary custodial duties, Mother, at some point, decided to take full control of the reins, shutting Father out whenever she could. She is uncooperative with Father. She refuses to speak with him or include him in, on important decisions. She originally failed to provide his name as a contact person to the daycare. She has refused to recognize that Father does have a say in legal custody proceedings. She has refused to assist in transportation, pointing out that it was Father who moved away and created the distance between the parties. The difficulties Father encountered when seeking to have the Minor Child attend his wedding came simply from Mother’s pettiness.

There is also the issue of the Minor Child’s physical contact with Mother’s paramour, Chuck. While this court believes that Mother is the type of parent who would never compromise her Minor Child’s safety, or permit her to be placed in a position of vulnerability, nevertheless, she did not exercise good judgment in allowing these activities, particularly Chuck’s licking the Minor Child’s face. The fact that Chuck’s actions may be harmless and innocent aren’t the point. What is the point is that Mother is dealing with a 7-year-old child and an adult male, a non-relative. It is significant that the Minor Child complained to Father’s mother-in-law about being uncomfortable with these contacts. Mother, however, appears oblivious to the issue and was unconcerned about Father’s objections. It was also unreasonable for Mother to be secretive about her involvement with Chuck. Father is entitled to know pertinent information regarding Chuck or anyone Mother has a steady relationship with, because Father is entitled to know with whom the Minor Child is spending time, on what basis, and at what location.

It is crucial that the Minor Child have frequent interaction with both parents. She has a strong bond with both. It is also clear that the current arrangement does not work logistically. Father cannot be required to drive four hours to spend approximately two to three quality hours with the Minor Child on a particular evening.

The current arrangement also puts the Minor Child in a position where her best interests are subordinated to Mother’s schedule. She spends a substantial amount of time in daycare. There is a degree of isolation. Unfortunately, Mother and the Minor Child are so rushed in the morning that Mother, while taking the time to cook the Minor Child a hot breakfast, cannot feed the Minor Child, who must eat the breakfast at the daycare.

This court finds that the Minor Child’s best interests could be accomplished if she resides with Father during the week during the school year, with Mother to have two evenings per week. Mother can choose her evenings contingent on what is most convenient for her based on her work schedule, and whether she intends to continue the Minor Child in her activities. She would return the Minor Child to Father or directly to school the next morning, on her way to work. The weekends would stay the same. This would enable the Minor Child to be with Father, or if he is unavailable, with his family after school, and not with a daycare. This would also facilitate custodial transfers, for Mother could pick the Minor Child up from Father’s home upon leaving work. The increased driving and inconvenience to her would be minimal. Conversely, Father would be spared an inordinate amount of driving for a short time with the Minor Child. All of these things would increase the overall quality time of the Minor Child with a parent. Further, Mother’s time would only be reduced by one evening per week.

During the summer, Mother would have Wednesdays, Thursdays and Fridays of each week, with Father to have Mondays and Tuesdays, and with the weekends continuing on an alternating basis. Currently, Mother’s schedule, where she is at home from work on Wednesdays and Fridays, would permit her to be available for the Minor Child. Mother would pick up the Minor Child on Tuesday evenings after work. If it was her weekend, she would continue having custody with the Minor Child until Monday morning when she would return the Minor Child with her on her way to work. On Father’s weekend, Father would pick up the Minor Child on Friday evenings.

It is important that the parties do not treat this decision as a win or a loss, but as an action taken by the court to facilitate the Minor Child’s best interests and to promote quality interaction between each party and the Minor Child. The parties will have to learn to get along better, which would start if they would begin seeing the other party’s point of view. It would also be greatly beneficial to the Minor Child if the parties would remain magnanimous in their dealings with each other, willing to defer their own needs and interests in favor of the other party when appropriate, because all this can do is help the Minor Child. A child is not a possession to be hoarded, nor is she someone who should be embroiled in the parties’ difficulties, or coaxed into accepting one side’s position.

We enter the following order:

ORDER

And now, November 1,2006, after custody trial held, custody of the parties’ minor child, Lauren Vollrath, born June 7, 1999, shall be as follows:

(1) The parties shall share legal custody.

(2) During the school year, plaintiff, Paul D. Vollrath (Father), shall have primary physical custody, with defendant, Tracy M. Vollrath (Mother), to have partial physical custody as follows:

(A) On alternating weekends, from Friday evening at 6:30 p.m. to Monday morning;

(B) Two evenings/ovemights a week, the nights to be chosen by Mother, to be returned the next morning for school; and

(C) Mother shall be responsible for transportation both ways on the weekdays/overnights she chooses to have the Minor Child. On Mother’s weekends, Father shall transport the Minor Child to Mother’s home, at a time agreed upon by the parties or, in lieu thereof, at 6:30 p.m., unless Mother is working at her office on Friday. In that event, Mother shall pick up the Minor Child from Father’s home upon her completion of work and transport the Minor Child. The return, on Mother’s weekends, shall be by Mother on Monday mornings, either to Father’s home in sufficient time to enable her to prepare herself for school, or directly to the school.

(3)During the summer months, the parties shall continue to alternate weekends. During the week, Father shall have custody on Mondays and Tuesdays and Mother shall have custody on Wednesdays, Thursdays and Fridays. The transfer shall occur on Tuesday evenings, with Mother being responsible for transporting the Minor Child at the end of her work day. On Father’s weekends, he shall pick up the Minor Child on Friday evenings, at a time to be agreed upon by the parties or, in lieu thereof, at 6:30 p.m. After Mother’s weekends, Mother shall transport the Minor Child to Father’s home on Monday mornings, on her way to work.

(4)Mother shall have Mother’s Day each year and Father shall have Father’s Day each year from 10 a.m. to 6 p.m.

(5)The parties shall share the Christmas holiday evenly, in accordance with their previous tradition. If they cannot so agree, Father shall have custody of the Minor Child in odd-numbered years from Christmas Eve at 1 p.m. to Christmas Day at 1 p.m., then Mother shall have custody from Christmas Day at 1 p.m. to December 26 at 1 p.m., with the parties to reverse the schedule on even-numbered years. Each party shall transport the Minor Child one way.

(6) The parties shall engage in co-parenting counseling with a counselor agreed to by the parties or, in lieu thereof, appointed by the court. The co-parenting counseling shall occur in Berks County.

(7) The Minor Child shall continue counseling with Lauren Fritz.

(8) The attached appendix is made a part of this order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

(2)In the event of any serious illness of the child at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

(3) Neither party shall alienate nor permit to attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

(6) The parties shall, at all times, consider the children/ child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7) Neither party shall question the child as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of spy.

(8) The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.

(D) The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.

      . Father would have to ensure that the Minor Child’s special needs are appropriately addressed by the school at which she will be enrolled.


author: NEWMAN, Member,

text:
    In re Jacobs

      Disciplinary Board Docket nos. 68 D.B. 2002 and 88 D.B. 2003.
    December 21, 2006
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NEWMAN, Member,

— Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

By order of the Supreme Court of Pennsylvania dated June 26,2003, Robert C. Jacobs was suspended from the practice of law for 41 months retroactive to June 13, 2002. Mr. Jacobs filed a petition for reinstatement from suspension on December 28,2005. Office of Disciplinary Counsel filed a response to petition on April 3, 2006, stating its intent not to oppose the reinstatement.

A reinstatement hearing was held on May 2, 2006, before a District I Hearing Committee comprised of Chair Steven M. Steingard, Esquire, and Members A. Harold Datz, Esquire, and W. Matthew Reber, Esquire. Petitioner was represented by John Rogers Carroll, Esquire.

The hearing committee filed a report on August 17, 2006, and recommended that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting on November 15, 2006.

II. FINDINGS OF FACT

The Board makes the following findings of fact:

(1) Petitioner is Robert C. Jacobs. He was bom in 1951 and was admitted to the practice of law in Pennsylvania in 1976. His current business address is 1700 Walnut Street, Suite 200, Philadelphia, PA 19103.

(2) In 1998 petitioner was a tax attorney for J.G. Went-worth S.S.C., a limited partnership formed to purchase structured settlements, and for its three partners, including James Delaney.

(3) In the spring of 1998, petitioner, while representing J.G. Wentworth and its partners, fraudulently created and backdated documents on behalf of the partners which falsely supported tax deductions to which they were not entitled in the years claimed.

(4) Petitioner also impeded the administration of internal revenue laws by causing IRS auditors examining Delaney’s individual income tax returns to rely on false information concerning the validity of claimed deductions for partnership losses.

(5) Although petitioner had no direct personal benefit at stake in creating the false documentation, he was concerned that his law firm might lose a significant client if he did not accommodate their request. He also stood to benefit indirectly by keeping J.G. Wentworth as a client of the firm.

(6) On March 5, 2002, petitioner was charged with one count of conspiracy to defraud the IRS in violation of 18 U.S.C. §371 and one count of attempting to interfere with the administration of IRS laws in violation of 26 U.S.C. §7212. (United States v. Robert Jacobs, criminal no. 02-134-02, United States District Court, Eastern District of Pennsylvania).

(7) On May 6,2002, petitioner pleaded guilty to both counts of the indictment.

(8) On August 19, 2002, petitioner was sentenced by the Honorable Berle M. Schiller, U.S. District Judge, to six-months imprisonment in a community corrections center, followed by three years supervised release. He was fined $100,000 and ordered to pay a $200 special assessment.

(9) As a condition of his supervised release, petitioner served five months in home detention after his community corrections release. He was also required to complete 250 hours of community service while on supervised release.

(10) Petitioner successfully completed his sentence, spending six months in the federal community corrections center at Broad and Spring Garden Streets in Philadelphia and five months in home detention, completing his community service obligation and timely paying his fine and assessment.

(11) On April 25, 2005, petitioner’s application for early termination of supervised release was granted by Judge Schiller effective immediately.

(12) On June 13, 2002, the Supreme Court of Pennsylvania granted a joint petition to temporarily suspend petitioner as a result of his guilty plea.

(13)On September 20, 2002, petitioner was notified by the U.S. Department of Housing and Urban Development of his proposed debarment from participation in government programs as a result of his criminal conviction.

(14) On October 24,2002, petitioner made an offer of consent to suspension from practice before the Department of Treasury, Internal Revenue Service, for 41 months beginning October 21,2002, and ending on April 20, 2006.

(15) On October 30,2002, the IRS accepted the offer and petitioner was suspended for 41 months.

(16) On December 10, 2002, the U.S. Department of Housing and Urban Development and petitioner entered into a settlement agreement whereby petitioner was debarred from government procurement and non-procurement programs for 18 months retroactive to May 8, 2002.

(17) By order of March 27, 2003, the Supreme Court of Pennsylvania issued a rule to show cause on petitioner to show why reciprocal discipline should not be imposed pursuant to Rule 216, Pa.R.D.E.

(18) On June 26, 2003, the Supreme Court of Pennsylvania suspended petitioner from the practice of law in Pennsylvania for a period of 41 months, retroactive to June 13, 2002, the date of temporary suspension.

(19) After entering his guilty plea in May 2002, petitioner resigned his partnership with Wolf Block.

(20) In compliance with the Rules of Disciplinary Enforcement and Disciplinary Board Rules, petitioner sent notice of his suspension to all of his existing clients.

(21) On July 19, 2002, petitioner filed the statement of compliance required by the rules, stating that he had notified all existing clients of his suspension and had fully complied with the court’s temporary suspension order and the applicable provisions of the rules.

(22) Petitioner has not practiced law or held himself out as an attorney during the time frame of his suspension.

(23) Working as a financial consultant in real estate transactions since his suspension, petitioner limited his work to only the financial aspects and in every instance informed the clients and their attorneys that he was not a practicing lawyer, and he did not participate in the legal work on the transactions.

(24) Petitioner failed to cancel his listings as an attorney in the 2003-2004 super pages and the current internet yellow pages.

(25) Petitioner failed to correct his accountant’s reference to his occupation as an attorney in the copies of his 2002-2004 tax returns.

(26) These failures were inadvertent and minor technical violations of Rule 217, Pa.R.D.E.

(27) As part of his rehabilitation over the past four years, petitioner has been an active volunteer. He has devoted substantial time to two charities in particular: Federation Housing and Trinity Episcopal Church soup kitchen.

(28) Federation Housing is a nonprofit organization established by the Jewish Federation of Greater Philadelphia to develop and manage subsidized housing for low or modest income elderly persons. Petitioner was a board member of Federation Housing for at least 15 years.

(29) When petitioner entered his guilty plea in May 2002, he resigned his position on the board of Federation Housing.

(30) Petitioner stayed with Federation Housing as an unpaid consultant and over the past four years has assisted in the refinancing of several properties and provided financial advice to the current board members when requested.

(31) Petitioner described his underlying misconduct as a disgrace. He acknowledged that he embarrassed his family, friends and law partners.

(32) Petitioner described his misconduct as an act of stupidity and plainly wrong. He explained that he will be more careful and responsible in his dealings in the future.

(33) Richard Canel, Esquire, is a lawyer who worked closely with petitioner for four years at Wolf Block. He believes that petitioner has learned from his mistake and was very pained by it.

(34) Mr. Canel believes petitioner is a better person and a more careful person and is qualified to return to the practice of law.

(35) Mr. Canel described petitioner as extraordinarily bright and talented. As an indication of the high esteem he feels for petitioner, Mr. Canel testified that if petitioner is reinstated, his firm would be honored to have him join them as a partner.

(36) Barry Ludwig is a long-time board member and president of Federation Housing and has known petitioner for 15 years. He described petitioner as forthright, exceptionally knowledgeable and very helpful to his organization.

(37) JeroldNovick, Esquire, is a real estate practitioner with Klehr Harrison and a former partner of petitioner at Wolf Block. He opined that petitioner has the highest integrity.

(38) Asked about the issue of petitioner’s remorse and any changes he has noticed, Mr. Novick testified: “I know that he regrets everything that happened and wouldn’t repeat the mistake again.”

(39) Mr. Novick does not believe that the reputation of the bar would suffer if petitioner were reinstated.

(40) Petitioner has taken more than 38 credit hours and has satisfied the requirements for continuing legal education to be reinstated.

(41) During his suspension, petitioner remained current in real estate tax law by purchasing and reading the 2004 and 2005 IRS Code Amendments and Regulations related to his areas of practice and taking several tax-related CLE courses.

III. CONCLUSIONS OF LAW

(1) Petitioner has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

(2) Petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar and administration of justice nor subversive of the public interest.

IV. DISCUSSION

Petitioner has filed a petition to resume practicing law in Pennsylvania following his 41 month suspension for conviction of the crimes of conspiracy to defraud the IRS and attempting to interfere with the administration of IRS laws.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner bears the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitation efforts the lawyer has made since the time that sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

There is clear evidence in the record that petitioner has been rehabilitated through recognition of his wrongdoing, successfully serving his criminal sentence, changing his attitude and volunteering his time and talents. Petitioner has undergone nearly four years of rehabilitation, which efforts have been favorably observed by petitioner’s testifying witnesses.

Shortly after his indictment, petitioner acknowledged that he had committed a crime, that he had done something wrong when he created backdated documents for clients and provided false information to IRS auditors during their investigation of his client. Petitioner entered a guilty plea and served his sentence without incident, spending six months in a federal community corrections center and five months in home detention. He completed 250 hours of community service.

Petitioner characterized his criminal conduct as “an act of gross stupidity.” He did not attempt to justify his actions to the hearing committee. Instead he testified that his actions were plainly and obviously wrong. Petitioner expressed sincere remorse. He is keenly aware of the magnitude of his misconduct and the embarrassment he caused to his family, friends and law partners. Petitioner does believe that he is not the same person that engaged in criminal conduct and he does believe that he has learned from his experience.

Further evidence of petitioner’s rehabilitation is found in his volunteer work during his suspension. He worked as an unpaid consultant to Federation Housing, a nonprofit organization, and he volunteered at a soup kitchen.

Apart from his volunteer work, petitioner worked as a financial consultant in real estate transactions, using his business expertise to assist developers and investors. Petitioner did not practice law while engaged in these endeavors and made certain that all parties were aware of his inability to practice law. „

Office of Disciplinary Counsel does not oppose petitioner’s reinstatement; however, it did raise an issue that petitioner may have held himself out as an attorney during his suspension. Petitioner failed to remove his professional listing from all telephone and internet directories and failed to correct his accountant’s error in listing his occupation as that of an attorney in his tax returns. While it appears that petitioner was remiss in failing to attend to these items, the board does not find that petitioner was interested in practicing law and intentionally sought clientele from telephone or internet notices. Likewise, the mistake on the tax returns was not intended to deceive the IRS. Petitioner’s mistakes were minor technical errors in the overall context of the case and do not serve as an impediment to reinstatement.

Petitioner satisfied his burden of proving he is competent and learned in the law. He fulfilled his continuing legal education credits and remained current in the law. Petitioner’s colleagues described him as extraordinarily bright and talented and hold him in high esteem. Richard Canel continued to refer clients to petitioner’s financial consulting business after the suspension, as he considered petitioner “the best guy in town.”

Petitioner is fit to resume the practice of law. He does not pose a threat to the public, the courts or the legal profession. His colleagues who testified support his reinstatement and believe that he has learned from his mistakes and will be a more careful practitioner, as well as an asset to the community.

Petitioner proved by clear and convincing evidence that he is fit to return to the practice of law. For the reasons stated above, the board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Robert C. Jacobs, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Jefferies did not participate in the adjudication.

ORDER

And now, March 13, 2007, upon consideration of the report and recommendations of the Disciplinary Board dated December 21,2006, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.