author: CEPPARULO, J,

text:
    Commonwealth v. Odeniyi

      C.P. of Bucks County,
    nos. 804-2005, 805-2005.

      Ronald Elgart, for appellant.

      Karen A. Diaz, for appellee.
    February 22, 2010
   CEPPARULO, J,

I. INTRODUCTION

The Commonwealth appeals to the Superior Court of Pennsylvania from this court’s grant of Post Conviction Relief Act (PCRA) relief to defendant Olusegun Sege Odeniyi based on a of violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). Defendant also appeals to the Superior Court based on this court’s denial of defendant’s remaining PCRA claims.

II. FACTUAL AND PROCEDURAL BACKGROUND

A few minutes before 4 a.m., Thursday, November 11, 2004, officers from Bristol Township, Bucks County, Pennsylvania, responded to the 5700 block of Mitchell Road to a report of multiple gunshots in the Bloomsdale section of Bristol Township. Upon arrival, the officers discovered seven .45 caliber shell casings in the street, intermixed with shards of broken vehicle glass.

Shortly thereafter, a different police officer observed a white vehicle driving nearby the scene of the shooting with a shattered rear window. The officer stopped the vehicle and interviewed the occupants. Asa Brewington was the driver, Samantha Weismann, a female juvenile, was in the front passenger seat, and Taureen Jewett was in the rear passenger seat. Weisman stated that she was in the vehicle with Brewington, when Jewett walked up to the car and hastily dumped several items in her lap, including a small black bag, a digital scale, a cell phone and keys. Soon afterwards, while Weismann was still in the car, a fist fight between Brewington and defendant Olusegun Sege Odeniyi was broken up outside of the vehicle by Jewett. After the fight ended, Weismann overheard Jewett and Brewington laughing at defendant because defendant said he was going home to get a gun and would return.

Brewington, Jewett and Weismann then left the area, but returned later that night. As they drove on Mitchell Road near its intersection with Airacobra Street, they were stopped and warned that defendant was back in the neighborhood. As Brewington, Jewett and Weismann began to drive down the street, a series of loud gunshots rang out. Their rear window suddenly shattered and Weismann felt a bullet travel through her hair and out the passenger window to her immediate right.

After the investigatory police stop of Brewington’s vehicle, several slugs were recovered from inside the vehicle, while another bullet was recovered from a nearby home, where it was lodged in a wall of a bedroom near a wheelchair.

At or about the time of the Bristol police stop, Officer Brian Detrick of Falls Township noticed a late model Buick station wagon speeding along nearby Mill Creek Road. Officer Detrick followed the vehicle with his overhead lights on, but the vehicle continued speeding through residential areas, disregarding traffic signs and almost hitting parked vehicles. Eventually defendant jumped from his moving vehicle and fled into a nearby wetlands. A police dog was used to track and apprehend defendant in the wetland area. Defendant was brought to Frankford Bucks Hospital to treat a dog bite on his shoulder and his hypothermia. After his release from the hospital several hours later, defendant was taken to the Falls Township Police Station.

At approximately 8:15 a.m. on that same morning, an employee of Waste Management Inc. turned in a handgun he found on a street in the North Park section of Falls Township, the same street and location where the vehicle chase with defendant occurred. Investigation determined that the spent shell casings on the ground at Mitchell Road and the bullets recovered from inside Brewington’s vehicle were fired from this same weapon.

Although initially uncooperative, the victims in this case eventually identified defendant as the person who shot at them. Brewington testified that he and defendant initially got into a verbal argument, which led to a fist fight. Notes of testimony, (N.T.) May 10, 2005 p. 126. Brewington recalled defendant saying that he was “going to get my gun”. Id. at 129. Brewington was also shown a photographic lineup wherein he identified defendant as the shooter. Id. at 139.

At trial, Jewett was an uncooperative and hostile witness, but he did corroborate the individuals in the vehicle and his presence in the backseat during the shooting. Id. at 84-94. Jewett previously identified defendant as the shooter in a photo lineup, but at trial he denied knowing why the identification was made. Id. at 96. Jewett acknowledged his prior statement to police identifying defendant as the shooter. He testified at trial, however, that he was unable to identify the shooter the night of the shooting.

Weismann, a 16-year-old female juvenile, provided the clearest trial testimony. She indicated that she was in the vehicle during the initial fight between Brewington and defendant. Id. at 173. Weismann also indicated that when Jewett and Brewington returned to the vehicle, they were joking about defendant’s claim that he was going to get a gun. Id. at 174. Weismann also testified that within seconds of being warned that defendant had returned to the area, shots were fired at their vehicle, shattering their rear window. Id. at 178-80. Weismann further testified that as the glass shattered around her, she felt a bullet fly through her hair, and explode through the passenger side window next to her head. Id. at 181-82.

Defendant was arrested on November 11, 2004 and charged in Information 0805-2005 with attempted murder, six counts of aggravated assault, six counts of simple assault, three counts of recklessly endangering another person, and one count of disorderly conduct. On Information 0804-2005, defendant was charged with fleeing or attempting to elude police officer, recklessly endangering another person, disorderly conduct and three related vehicular summary offenses.

On May 12, 2005, after a three-day jury trial on both informations, which had been consolidated for trial, defendant was found guilty of all charges, except for two counts of aggravated assault. On September 2,2005, on Information 0805-2005 defendant was sentenced to a term of incarceration of not less than seven and one-half, nor more than 15 years on the attempted murder charge and two consecutive sentences of not less than one, nor more than 10 years incarceration on two counts of aggravated assault. On Information 0804-2005, defendant was sentenced to a concurrent term of not less than one, nor more than two years of incarceration on the fleeing and eluding count. No further penalty was imposed on the remaining counts of either criminal information.

On September 30,2005, defendant filed a direct appeal challenging the discretionary aspects of his sentence. The Superior Court of Pennsylvania affirmed this court’s judgment of sentence on September 14, 2006. On November 27,2006, defendant filed his first Post Conviction Relief Act (PCRA) petition seeking a nunc pro tunc petition for allowance of appeal to the Supreme Court of Pennsylvania. On February 1, 2007, defendant’s first PCRA was granted and defendant filed his petition for allowance of appeal on March 23, 2007. The Supreme Court denied the petition on September 19, 2007.

On June 16, 2008, defendant filed his second PCRA petition. After several scheduling delays, a fully counseled PCRA hearing was held on July 16, 2009, wherein defendant primarily challenged trial counsel’s effectiveness for failing to challenge the admission at trial of a non-Mirandized statement defendant made to police. After the PCRA hearing, the petition was held under advisement. On November 10,2009, defendant’s PCRA petition was granted and a new trial was ordered. On December 16,2009, a second order was issued formally denying the other issues raised in defendant’s PCRA petition.

The Commonwealth filed an appeal from the November 10 order, on December 1, 2009. Defendant, despite still being represented by PCRA counsel, filed a pro se cross-appeal on December 18, 2009.

III. MATTERS COMPLAINED OF ON APPEAL

On December 21, 2009, the Commonwealth filed its statement of matters complained of on appeal, raising the following issue verbatim:

“This honorable court erred in granting appellee post-conviction collateral relief on his claim of ineffective assistance of counsel for failing to move to suppress ‘non-Mir andize' statements subsequently introduced at trial, where appellee failed to plead and prove, and where this honorable court did not find, actual prejudice. Based on the evidence of appellee’s guilt introduced at trial, appellant has not and cannot demonstrate that the verdict would have been different but for the admission of the aforementioned statement.”

Defendant meanwhile filed his own pro se statement of matters complained of on appeal. Defendant is still being represented by appointed PCRA counsel, but for completeness of review, this court will address the following verbatim issues raised by defendant:

“I. Was PCRA counsel and appellant counsel ineffective for failing to argue on appeal, the evidence at trial by the Commonwealth was insufficient to establish the identity of the appellant as the shooter, to support the finding of guilt for aggravated assault, recklessly endangering another person, simple assault and criminal attempt homicide. Beyond a reasonable doubt, (sic)

“II. Trial counsel was constitutionally ineffective for failing to file a pretrial motion in limine to have the gun, (sic) suppressed or excluded before trial.

“HI. Appellant counsel was constitutionally ineffective for failing to argue on appeal, the trial court erred, (sic) when it consolidated the defendant’s offenses for trial.

“IV. Trial counsel was constitutionally ineffective for failing to object to the trial court’s erroneous jury charge on flight, that should not have been given.

“V. Did the PCRA court err, and abused it’s (sic) discretion when he failed to rule on these issues and should al (sic) the charges have been (sic) dismissed in accordance with sufficiency of the evidence issue, issue I and because of double jeopardy.”

IV. DISCUSSION

The Commonwealth asserts in its appeal that this court erred in granting defendant PCRA relief because the non-Mirandized statement was not prejudicial and defendant has not established that the verdict would have been different, but for the admission of the statement. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

The standard of review regarding PCRA claims of ineffective assistance of counsel is well settled:

“The PCRA provides relief to individuals who prove they were convicted of crimes they did not commit and those receiving illegal sentences. 42 Pa.C.S. §9542. ‘A defendant is eligible for PCRArelief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. §9543(a)(2).’ Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310, 320 (2007). One of these circumstances is ineffective assistance of counsel. 42 Pa.C.S §9543(a)(2)(h) (the PCRA provides relief to those individuals whose convictions or sentences ‘resulted from ... ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place’). To obtain relief under this provision, a defendant must plead and prove that: (1) the claim underlying the ineffectiveness claim has arguable merit; (2) counsel’s actions lacked any reasonable basis; and (3) counsel’s actions resulted in prejudice to defendant. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237 (2008); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). ‘A chosen strategy will not be found to have lacked a reasonable basis unless it is proven “that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” ’ Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006) (quoting Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 237 (1998)). ‘Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different.’ Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel is presumed to have been effective and the burden of rebutting that presumption rests with the defendant. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 728 n.10 (2000).” Commonwealth v. Fletcher, 2009 WL 5133421 (Pa. 2009).

Trial counsel was ineffective solely for his failure to move to suppress anon-Mirandizedadmission by defendant that placed defendant at the time and location of the shooting. Like the PCRA standard of review, the standard of review for Miranda violations is well settled:

“Statements made during custodial interrogation are presumptively involuntary, unless the accused is first advised of... Miranda rights. Commonwealth v. DiStefano, 782 A.2d 574, 579 (Pa. Super. 2001), appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). Custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [his] freedom of action in any significant wayI Miranda, supra at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. ‘The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.’ Commonwealth v. Gaul, 590 Pa. 175, 180, 912 A.2d 252, 255 (2006), cert. denied, 552 U.S. 939, 128 S.Ct. 43, 169 L.Ed.2d 242 (2007). Thus, ‘Interrogation occurs where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect.’ Commonwealth v. Ingram, 814 A.2d 264, 271 (Pa. Super. 2002), appeal denied, 573 Pa. 671, 821 A.2d 586 (2003). ‘In evaluating whether Miranda warnings were necessary, a court must consider the totality of the circumstances ...Gaul, supra.” Commonwealth v. Gonzalez, 979 A.2d 879 (Pa. Super. 2009).

The statement at issue occurred while defendant was in police custody following his capture by a canine unit and soon after his treatment for hypothermia. It is unclear from the record, but while defendant was either receiving treatment at the hospital or while he was transported from the hospital to police headquarters, Officer Detrick asked defendant why he ran. N.T., May 10, 2005 pp. 253-55. The officer did not provide defendant with any Miranda warnings and the Commonwealth has not challenged the fact that this was a custodial interrogation that should have been preceeded with Miranda warnings. Id. Trial counsel, despite having knowledge of defendant’s admission, did not seek to suppress the statement and defendant’s response was introduced to the jury by the district attorney on direct examination of the police officer as follows:

“Q. And he acknowledged he was driving the car; is that correct?

“A. Yes.

“Q. Did you ask him why he was fleeing?

“A. He said he was scared.

“Q. Did he give you any other reason besides that?

“A. He was scared.

“Q. Did he tell you where he was coming from?

“A. Bloomsdale.

“Q. Did he say what he was doing in Bloomsdale?

“A. He was at a girl’s house.

“Q. Did he say where he was going?

“A. Yardley.” Id. at 253.

Defendant’s admission that he was coming from the small neighborhood of Bloomsdale in Bristol Township a little after four in the morning affirmatively placed defendant at the time and location of the shooting and helped explain defendant’s seemingly unprovoked flight from the police.

The admission of this statement clearly should have been challenged by trial counsel. It was provided by the Commonwealth in discovery documents sent to trial counsel on April 13, 2005, yet counsel’s explanation at the PCRA hearing as to why the statement was not challenged, was that counsel was unaware of the statement prior to trial and that he did not think the Commonwealth provided the statement in advance. N.T., July 16, 2009 pp. 37, 57-59. Counsel’s stated reason for not challenging the defendant’s statement was clearly in error and is not a reasonable basis for failing to challenge its admission.

The Commonwealth does not challenge this court’s findings that the admission should have been challenged and that counsel did not have a reasonable basis for failing to do so. The Commonwealth does claim, however, that counsel’s actions did not prejudice defendant in such a way that there is “a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different.” Commonwealth v. Fletcher, 2009 WL 5133421 (Pa. 2009).

The admission of defendant’s statement into evidence did have a reasonable probability of altering the outcome of the trial. There were other significant pieces of evidence tying defendant to the shooting in Bloomsdale, but much of this evidence came from uncooperative witnesses, who denied their prior statements identifying defendant as the shooter. While their prior inconsistent statements were presented to the jury, defendant’s statement to the police became a significant piece of evidence because it placed defendant at the location and time of the shooting and gave further weight to the uncooperative witnesses’ prior identifications of defendant.

When Taureen Jewett, one of the intended victims testified, he stated that he was under the influence of crack cocaine the night of the shooting and that he did not see the shooter. N.T. May 10, 2005, pp. 85, 87-88. He further claimed that he neither saw a fist fight between defendant and Asa Brewington, nor broke one up, and that he only identified defendant in the photograph lineup as someone he knew and not the shooter. Id. at 88-89, 94-97.

When Brewington testified, he admitted that he was in a fist fight with defendant and that the two of them were threatening one another, but he tried to deny his statement to police that defendant threatened to get his gun. Id. at 125-27. Even after being presented with the statement he made to the police on the night of the shooting, Brewington still tried to deny that defendant made the specific threat to go get a gun. Id. at 127-29. Brewington also tried to distance himself from his prior police statement by denying his identification of defendant as the shooter, now claiming that he did not see the shooter. Id. at 132-35, 141-42.

Samantha Weismann was more cooperative than the other victims. She described the fist fight that occurred earlier in the night, she testified that Brewington and Jewett were laughing over defendant’s threat to go get his gun, and she testified that they were stopped and warned that defendant was back in the neighborhood right before their car was shot. Id. at 172-74, 176-80. Weismann, however, testified that she could not identify the shooter. Id. at 191.

In addition to the three victims’ testimonies, the jury was presented with evidence and expert testimony linking the gun found in the North Park section of Falls Township with the Bloomsdale shooting. The gun was recovered by a private employee of Waste Management, along the route defendant used to flee from the police. The bullets recovered from the victims’ vehicle and from the bedroom wall of the nearby home were matched to the recovered gun.

While the jury heard conflicting identifications and retractions by the victims and was presented with evidence regarding the gun used in the shooting, the one piece of evidence that clearly established defendant’s presence in the Bloomsdale section at the time of the shooting was defendant’s inadmissible statement to the police. What was surely intended as an exculpatory explanation by defendant, was in fact inculpatory, as it definitively placed defendant in Bloomsdale at the time of the shooting. While there was other circumstantial evidence, such as the recovered gun, defendant’s flight from the police, and several witnesses’ prior inconsistent identifications, defendant’s own non-Mirandized admission was a significant piece of evidence linking the shooting and the flight together and there is a reasonable probability that but for counsel’s error, the outcome of the proceeding would have been different.

Defendant, meanwhile, filed a separate appeal from his grant of post-conviction collateral relief. Defendant first claims that PCRA counsel and appellate counsel were ineffective for failing to challenge the sufficiency of the evidence. As PCRA counsel still represents defendant on appeal and cannot argue his own ineffectiveness, defendant’s claims against PCRA counsel must be dismissed. Furthermore, appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence. Aside from defendant’s own inculpatory statement to police, the handgun used in the Bloomsdale shooting was discovered by a sanitation worker along defendant’s flight path from the police. Expert testimony identified this gun as the one that fired the bullets recovered both from the victims’ vehicle and from the interior bedroom wall of a nearby house. Furthermore, while several witnesses tried at trial to retract their prior statements to police and prior photographic identification of defendant as the shooter, their prior statements and identifications were presented to the jury, along with their inconsistent trial testimony. Finally, there was also defendant’s seemingly unprovoked flight from the police. Viewing all the evidence received and drawing all reasonable inferences from the evidence in favor of the Commonwealth as verdict winner, there was sufficient evidence to convict defendant of the charged offenses and appellate counsel was not ineffective for failing to raise this issue on direct appeal.

Defendant’s second claim is that trial counsel was ineffective for failing to suppress the gun found along the side of the road by an employee of Waste Management, a private corporation. As there is no basis for challenging the admission of a handgun discovered by a private citizen while working for a non-government organization, counsel was not ineffective. Furthermore, the Commonwealth sufficiently traced the chain of custody from the gun’s discovery through the ballistics investigation and up until its introduction at trial. There is no basis for suppressing the gun and, therefore, trial counsel was not ineffective for failing to do so.

Defendant’s third claim is that appellate counsel was ineffective for failing to challenge the consolidation of defendant’s offenses for trial. The criminal charges resulting from the shooting in Bloomsdale and the criminal charges for defendant’s flight from the police were properly consolidated as they were all the result of one criminal event. Within minutes of the Bloomsdale shooting, police attempted to stop defendant for speeding. Instead of stopping, however, defendant fled from the police both via car and foot, eventually requiring a canine unit to track and apprehend him in wetlands off the side of the road. As all the charges contained in criminal in-formations numbers 804 and 805 of2005 stemmed from the same event, they were properly consolidated pursuant to Pennsylvania Rule of Criminal Procedure Rule 582(A)(1). There was no basis for appellate counsel to file an appeal on the consolidation of the offenses and therefore counsel was not ineffective.

Defendant’s fourth claim is that counsel was ineffective for failing to object to the trial court’s jury charge on fleeing or attempting to elude a police officer. The charge provided to the jury was the standard jury instruction for fleeing or attempting to elude a police officer. N.T., May 12, 2005 pp. 95-97. At the PCRA hearing, defendant raised this issue, but was unable to elaborate on why the instruction was erroneous. N.T., July 16,2009 pp. 17-19. As defendant was charged with one count of fleeing or eluding a police officer in criminal Information 804-2005, the appropriate charge was given to the jury. Again, as there was no basis for trial counsel to object to the instruction, trial counsel was not ineffective for failing to object to it.

Defendant’s final claim is that this court abused its discretion by not ruling on each of defendant’s PCRA issues and by not dismissing all of defendant’s charges under either his sufficiency of the evidence argument or because of double jeopardy. Defendant was granted PCRA relief pursuant to a November 10, 2009 order. A subsequent order was issued by the court on December 16,2009 clarifying that aside from defendant’s Miranda violation claims, all other raised issues were denied and dismissed. There is no issue of the court failing to rule on defendant’s PCRA petition.

Furthermore, defendant is not entitled to the dismissal of his criminal charges on sufficiency of the evidence grounds. As discussed above, viewing the totality of the evidence in favor of the Commonwealth as verdict winner, there was sufficient evidence for the jury to find defendant guilty of all charges beyond a reasonable doubt. Defendant, nonetheless, was granted PCRA relief because trial counsel failed to identify or attempt to suppress defendant’s non-Mirandized statement to police. Trial counsel’s error was sufficiently prejudicial to defendant that there was a reasonable probability of a different outcome. As such a new trial was ordered.

Finally, defendant is not entitled to dismissal of his criminal charges on double jeopardy grounds, as defendant was granted a new trial solely on the basis of defense counsel’s error. It has long been the rule “that neither the reversal of a conviction on appeal, nor the cessation of a trial by reason of a mistrial, bars the subsequent retrial of a criminal defendant.” Commonwealth v. Martorano, 559 Pa. 533, 540, 741 A.2d 1221, 1224 (1999) (dissent) (citing United States v. Dinitz, 424 U.S. 600, 609, 96 S. Ct. 1075, 1080, 47 L.Ed.2d 267 (1976), United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896)). Defendant cannot obtain the benefit of double jeopardy protections from his own counsel’s errors at trial, for as the United States Supreme Court has noted, “it would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587 (1964). Double jeopardy is not implicated by the grant of new criminal trial on the basis of defense counsel’s prejudicial error.

V. CONCLUSION

The foregoing represents this court’s opinion regarding the Commonwealth’s appeal from the grant of PCRA relief on the Miranda claim and PCRA defendant’s appeal from this court’s denial of the remaining PCRA claims.

      . 18 Pa.C.S. §901.

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

      . 18 Pa.C.S. §2701(a)(l); 18 Pa.C.S. §2701(a)(3).

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §5503(a)(l).

      . 75 Pa.C.S. §3733.

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §5503(a)(l).

      . Based on the testimony at trial and at the PCRA hearing, we found trial counsel ineffective for failing to file a motion to suppress the nonMirandized statement and a new trial was ordered due to the impact of this statement and its failure to qualify as harmless error.

      . The shooting occurred several minutes before 4 a.m. N.T., May 10, 2005, pp. 34, 64. Officer Detrick began pursuit of defendant’s speeding car, near the Bristol Township and Falls Township border, at approximately 4:06 a.m. Id. at 224.


source: Caselaw Access Project

author: LUDGATE, J,

license: Public Domain

text:
    Commonwealth v. Keenan

      C.P. of Berks County,
    no. CP-06-CR-523-09.

      Catherine J. Nadirov, for the Commonwealth.

      Christopher M, Brett, for the defendant.

      March 16, 2010
   LUDGATE, J,

The matter before the court is the defendant’s direct appeal from judgment of sentence. The court adopts and incorporates its findings of fact and conclusions of law issued June 10, 2009.

I. PROCEDURAL AND FACTUAL HISTORY

On June 18, 2009, Jessie Keenan (defendant) was charged by information with arson, 18 Pa.C.S. §3301(a) (l)(i), arson, 18Pa.C.S. §3301 (a)( 1 )(ii), arson, 18Pa.C.S. §3301(c)(l), 18 Pa.C.S. §3301(c)(2), causing or risking catastrophe, 18 Pa.C.S. §3302(b), criminal mischief, 18 Pa.C.S. §3304(a)(l) and recklessly endangering another person, 18 Pa.C.S. §2705.

On June 9, 2009, the court held a hearing on the defendant’s omnibus pretrial motion. On June 10, 2009, the court issued findings of fact and conclusions of law and denied the defendant’s suppression and habeas corpus claims.

On September 23, 24 and 25, 2009, the court held a jury trial. At trial, the Commonwealth presented the testimony of Officer Eric Driesbach of City of Reading Police Department. (N.T. 9/23/2009-9/25/2009, p. 9.) Officer Driesbach testified that on June 18, 2006 at approximately 10:45 p.m., he was walking to his patrol car near city hall when he heard two loud bangs or explosions. (N.T. pp. 9-10.) Officer Driesbach observed smoke and flames at the comer of 9th and Washington Streets, one-half block from city hall. (N.T. p. 10.) Officer Driesbach observed a white male walking north on Cedar Street; another officer on a motorcycle motioned with his arms, which Officer Driesbach interpreted to mean the white male should be stopped. (N.T. pp. 10-11.) By the time Officer Driesbach reached the white male, other officers had already approached the white male; no one else was outside in the intersection of Cedar and Washington Streets. (N.T. p. 11.) Officer Driesbach said the building at 9th and Washington Streets was engulfed in flames when he arrived at the scene, and he had left city hall only 30-45 seconds before arriving. (N.T. p. 13.) Officer Driesbach testified that he was scared but felt comfortable once the fire department arrived. (N.T. p. 14.)

Officer Arnold Labella testified that he is a police officer with the Reading Police Department. (N.T. p. 18.) On June 19,2006, Officer Labella was riding his motorcycle towards city hall to work the midnight patrol shift. (N.T.p. 18.) At that time, Officer Labella heard an explosion and observed the building at 9th and Washington Streets to be on fire. (N.T. pp. 18-19.) Officer Labella observed a large white male walking from an alleyway towards Washington Street. (N.T. p. 19.) No one else was in the area at that time. (N.T. p. 20.)

Sergeant Marc Pentheny testified that he is employed by the Reading Police Department and was working on June 18, 2006. (N.T. p. 22.) At approximately 11 p.m., Sergeant Pentheny was leaving city hall at the conclusion of his shift when he received a call for an explosion and fire at 9th and Washington Streets. (N.T. p. 23.) While walking to the scene, Sergeant Pentheny ran into a male who was staggering, incoherent and had been severely burned; Sergeant Pentheny assumed the male was a victim of the fire. (N.T. pp. 23-24.) The male was identified as the defendant. (N.T. p. 24.) Once emergency medical personnel got to the defendant, Sergeant Pentheny went to the scene of the fire. (N.T. p. 25.)

Officer Matthew Schappell testified that he is employed by the Reading City Police Department and was so working on June 19,2006. (N.T. p. 27.) Officer Schappell responded to a fire at North 9th and Washington Streets; upon his arrival, paramedics asked Officer Schappell to drive their ambulance to Reading Hospital because an individual who was injured in the fire required the attention of both paramedics. (N.T. p. 28.) Officer Schappell drove the ambulance to Reading Hospital then returned to city hall; Officer Schappell returned to Reading Hospital to stay with the individual who was injured in the fire. (N.T. p. 28.) That individual was the defendant. (N.T. p. 29.) Officer Schappell collected the clothing the defendant was wearing when he arrived at the hospital, consisting of pairs of pants, boots and socks. (N.T. p. 29.) Officer Schappell turned the clothing over to Officer Naugle, an evidence technician. (N.T. p. 29.)

Thomas Kemmery testified that he is employed by the City of Reading Fire Department. (N.T. p. 33.) Mr. Kemmery is a firefighter and registered nurse with specialty in pre-hospital care. (N.T. p. 38.) Mr. Kemmery responded to the fire at 9th and Washington Streets on June 18, 2006. (N.T. pp. 33-34.) At that time, Mr. Kemmery came into contact with the defendant, who was badly burned. (N.T. p. 36.) The defendant had bums to about 55 percent of his body including his torso, face, arms, left upper leg; the defendant also had injury to his breathing passages as a result of fire. (N.T. p. 39.) Mr. Kemmery testified that injury to breathing passages indicates a person was in close proximity to a fire because inhaling radiant heat can cause redness and swelling of the soft tissue inside the nose, throat and mouth. (N.T. pp. 39-40.)

Dale Kite testified that in June of 2006 he was living in an apartment at 839 Washington Street, Reading, Berks County, Pennsylvania; this address is two doors away from Sunny’s Steaks, which is at the comer of 9th and Washington Streets. (N.T. p. 52.) Mr. Kite testified that on June 18, 2006 there was a large explosion which knocked a clock off his wall. (N.T. p. 53.) Mr. Kite looked out his window to the roof of 841 Washington Street; at that time, Mr. Kite heard a male voice say something to the effect of “which way do I go” or “where do I go.” (N.T. pp. 53,55.) Mr. Kite said it is possible to get to the roof of 841 Washington from the roof of Sunny’s Steaks. (N.T. pp. 54-55.) Mr. Kite went out his front door to Washington Street and saw a pile of bricks that were burning; the bricks came down from the second floor of the restaurant. (N.T. pp. 55-56.) Mr. Kite helped neighbors get out of 841 Washington Street, which contained three apartments, including George Butler, who had heart problems. (N.T. pp. 56-58.) While going to find his neighbors, Mr. Kite saw the defendant and recognized him as the source of the voice he heard on the roof. (N.T. pp. 58-59.) The defendant was known to Mr. Kite because the defendant had been a cook at Sunny’s Steaks, a restaurant Mr. Kite frequented, and Mr. Kite did odd jobs for the defendant and the owner of the restaurant. (N.T. pp. 60-62.)

Richardo Pena testified that in 2006 he worked with his father-in-law managing his properties, including 100 and 102 North 9th Street. (N.T. p. 66.) Mr. Pena’s father-in-law sold a restaurant at that location to John Thomas, who began operating the restaurant as Sunny’s Steaks. (N.T. p. 67.) Before transferring the property to Mr. Thomas, Mr. Pena cleaned out the second and third floors above the restaurant; the floors did not contain drywall or gas or electric utilities. (N.T. pp. 68-69.) There is no way to access the second and third floors from the first floor restaurant; those floors are only accessible through the roof. (N.T. p. 69.) Mr. Pena identified the defendant, whom he recognized because the defendant had worked for John Thomas at a different restaurant. (N.T. pp. 70-71.)

Officer Michael Dobrosky testified that in 2006 he was employed as an evidence technician for the City of Reading Police Department. (N.T. p. 84.) Officer Dobrosky photographed the scene and collected evidence on June 19,2006, following the fire. (N.T. p. 84.) Officer Dobro-sky collected a glove found in an alley between North 9th and Cedar Streets. (N.T. pp. 86,271,285.) The glove from the alley was Commonwealth’s exhibit 8. (N.T. p. 87.) A matching glove was found on the roof of the building; the glove in the alley was left-handed, the glove on the roof was right-handed. (N.T. pp. 89-90, 295.) A pair of glasses was found on the same roof, near the glove. (N.T. pp. 90,293.) Officer Dobrosky also found a duffle bag containing plastic gasoline cans inside the building and a hat on Washington Street. (N.T. pp. 92-94.)

Detective Ivan Martinez testified that he is employed by the City of Reading Police Department. (N.T. p. 188.) Detective Martinez obtained PennDOT records indicating the defendant is required to wear corrective lenses. (N.T. p. 190.)

Todd Iaeger testified that he is employed as Fire Marshal by the City of Reading Department of Fire and Rescue Services. (N.T. p. 105.) On June 18, 2006, Mr. Iaeger responded to the fire at North 9th and Washington Streets. (N.T. pp. 105-106.) Mr. Iaeger assisted Officer Dobrosky in collecting a sample of wood baseboard from the second floor of the building. (N.T. pp. 107-108.)

Mr. Iaeger was qualified as an expert witness in the area of fire investigation, origin and cause. (N.T. p. 132.) Mr. Iaeger concluded the fire was started by incendiary means, meaning it was a set fire. (N.T. p. 174.) Mr. Iaeger’s conclusion was based upon exclusion of all other possible ignition sources and the presence of gasoline and gasoline containers. (N.T. p. 176.)

The Commonwealth and defendant entered into the following two stipulations, which were read to the jury:

“(1) On June 18, 2006, Officer Scott Naugle of the Reading Police Department secured Commonwealth’s exhibits 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.

“(2) A liquid sample, using gauze pads, was taken from each of the red plastic gas cans, which were collectively marked as Commonwealth’s exhibits 11, on June 18, 2006 by Officer Scott Naugle. Officer Naugle of the Reading Police Department then took possession of the sample and stored it in a secured evidence locker. The samples were not altered or tampered with in any way.

“(3) On July 21, 2006, Forensic Scientist Jessica J. Oberle retrieved the items from the secure evidence area and conducted trace evidence analyses. She then prepared lab report B06-03152-1, also identified as Commonwealth’s exhibit 22.

“(4) Ms. Oberle tested the items using standard scientific tests and practices.

“(5) Ms. Oberle is an expert in trace evidence analyses and is qualified to render an opinion as to the presence of trace evidence, including the presence of ignitable liquids.

“(6) If called to testify, Ms. Oberle would state, to a reasonable degree of scientific certainty, the following:

“(a) gasoline, an ignitable liquid was identified on the gauze pad sample from Commonwealth exhibit 17; and

“(b) gasoline, an ignitable liquid was identified on the gauze pad sample from Commonwealth exhibit 18; and

“(c) gasoline, an ignitable liquid was identified on the gauze pad sample from Commonwealth exhibit 19; and

“(d) gasoline, an ignitable liquid was identified on the gauze pad sample from Commonwealth exhibit 15, a right black Timberland boot; and

“(e) gasoline, an ignitable liquid was identified on the gauze pad sample from Commonwealth exhibit 14, left black Timberland boot; and

“(f) no common ignitable liquid was identified on Commonwealth exhibit 16, black socks,

“(g) no common ignitable liquid was identified on Commonwealth exhibits 12 and 13, two parts of a pair of black sweatpants; and

“(h) gasoline, an ignitable liquid was identified on the gauze pad sample from Commonwealth exhibit 10, charred wood.

“(7) The Pennsylvania State Police Lab at Bethlehem is approved to conduct trace evidence analyses, which includes the examination of items for the presence of ignitable liquids.

“(8) At each and every one of the labs the samples were logged and stored in a secure evidence area, and were not altered or tampered with in any way.

“(9) All evidence was returned to the custody of the Reading Police Department, where it was stored in a secure facility and was brought to court for this trial. The evidence has not been altered, and the chain of custody has remained intact at all times.” (N.T. pp. 121-23,238-39.)

“(1) On June 19, 2006 Officer Michael Dobrosky of the Reading Police Department secured Commonwealth’s exhibits 8 and 9.

“(2) A DNA sample, Commonwealth’s exhibit 20 was taken from the defendant, Jessie Keenan, on December 16, 2008 by Officer Eric Hartman, and witnessed by Criminal Investigator Harold Shenk of the Reading Police Department. Officer Kirby Hartzell, of the Reading Police Department, then took possession of the sample and stored it in a secure evidence refrigerator. The sample was not altered or tampered with in any way.

“(3) On March 15, 2009, Forensic Scientist Sabine Panzner-Kaelin, Pennsylvania State Police Laboratory at Greensburg, retrieved the DNA sample from the secure evidence area and ran a DNA comparison. She then prepared lab report B06-03152-6, also identified as Commonwealth exhibit 23.

“(4) Ms. Panzner-Kaelin tested the items using standard scientific tests and practices.

“(5) Ms. Panzner-Kaelin is an expert in DNA analysis and is qualified to render an opinion as to DNA comparison.

“(6) If called to testify, Ms. Panzner-Kaelin would state, to a reasonable degree of scientific certainty the following:

“(a) that the DNA found in the sample from Commonwealth exhibit 8 matches the known sample of DNA from the defendant Jessie Keenan; and

“(b) that the probability of randomly selecting an unrelated individual exhibiting this combination of DNA types is 1 in 7.3 quintillion from the Caucasion population.

“(7) The Pennsylvania State Police Lab at Greensburg is approved by the Commonwealth to conduct DNA analysis.

“(8) At each and every one of the labs the samples were logged and stored in a secure evidence area, and were not altered or tampered with in any way.

“(9) All evidence was returned to the custody of the Reading Police Department, where it was stored in a secured facility and was brought to court for this trial. The evidence has not been altered, and the chain of custody has remained intact at all times.

“(10) The laboratory reports generated in regards to the DNA analysis are attached to this stipulation as exhibit 24.” (N.T. pp. 124-25, 240-41.)

On September 25, 2009, the defendant was found guilty of arson, 18 Pa.C.S. §3301 (a)( 1 )(i), arson, 18 Pa.C.S. §3301 (a)( 1 )(ii), arson, 18Pa.C.S. §3301(c)(l), 18 Pa.C.S. §3301(c)(2), causing or risking catastrophe, 18 Pa.C.S. §3302(b), criminal mischief, 18 Pa.C.S. §3304(a)(l) and recklessly endangering another person, 18 Pa.C.S. §2705.

On October 9, 2009, the defendant was sentenced to a total of 57 months to 37 years incarceration in a state facility. On October 19, 2009 the defendant filed post-sentence motions through counsel, which were denied October 20, 2009.

On November 17, 2009, the defendant filed a notice of appeal through counsel. On November 19,2009, this court ordered counsel for the defendant to file a concise statement of errors complained of on appeal within 21 days. On December 9, 2009, counsel timely filed the concise statement. Trial transcripts were lodged on January 22,2010.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the instant appeal be denied.

II. ISSUES RAISED BY THE DEFENDANT

(1) Whether the trial court erred by not suppressing defendant’s clothing when police collected that clothing from a hospital where defendant was receiving treatment and did so without a warrant at a time when an exception to the warrant requirement did not exist.

(2) Whether the evidence presented by the Commonwealth at trial was sufficient to sustain the convictions for arson and related charges when the reasonable inferences to be drawn from the evidence presented at trial are equally consistent with the possibility that someone other than defendant started the fire.

(3) Whether defendant’s convictions are against the weight of the evidence when the evidence presented at trial allows for the possibility that another individual caused the explosion and/or ignited the fire that destroyed the building at 100-104 North Ninth Street, Reading, Pennsylvania.

(4) Whether the sentencing court erred by imposing consecutive sentences on Count 1: arson and Count 6: criminal mischief when the criminal mischief count arose from the arson and the two offenses differ only in degree and constitute one act.

(5) Whether the sentencing court erred by imposing an aggravated range sentence on Count 1: arson. ■

(6) Whether Count 5: causing or risking a catastrophe merges with Count 1: arson for sentencing purposes.

III. ANALYSIS

1. Suppression

Exigent circumstances justified the warrantless search and seizure of the clothing of a gunshot victim, not yet a suspect, for the purposes of ascertaining the identity of the gunshot victim and facilitate investigation of the attack. Commonwealth v. Johnson, 969 A.2d 565 (Pa. Super. 2009) (distinguishing Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978)). In Silo, suppression was required because Silo was a suspect in the death of his mother at the time of the warrantless search of his clothes at the hospital. Silo, supra.

At the pretrial hearing, Officer Matthew Schappell testified that he went to Reading Hospital and Medical Center at approximately 11 p.m. on June 18,2006 and 1 a.m. on June 19, 2006 and was instructed to wait at the hospital with a burn victim until the victim was transported to another hospital. Findings of fact, conclusions of law, 6/10/2009, p. 1. After the victim was transported elsewhere, hospital staff asked Officer Schappell if he wanted to take the victim’s clothing. Id. at 1-2. Officer Schappell took the clothing, unsure of its evidentiary value; if the clothing were left at the hospital, it may have been thrown away or destroyed. The bum victim was the defendant. Id. at 2. Because the defendant was not yet a suspect at the time of the seizure, the warrantless seizure of the clothing was justified by exigent circumstances.

2. Sufficiency of the Evidence

i. Arson

In order to sustain conviction for arson endangering persons, 18 Pa.C.S. 3301(a)(1), the Commonwealth must establish beyond a reasonable doubt that the defendant intentionally set a fire or caused an explosion, whether on his own property or that of another, which recklessly placed another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire (section 3301(a)(l)(i)), or when done with the purpose of destroying or damaging an inhabited building or occupied structure of another (section 3301(a)(1)(h)).

In order to sustain conviction for arson endangering property, 18 Pa.C.S. §3301(c), the Commonwealth must establish beyond a reasonable doubt that the defendant intentionally set a fire or caused an explosion, whether on his own property or that of another, with the intent of destroying or damaging a building or unoccupied structure of another (section 3301(c)(1)), or thereby recklessly placing an inhabited building or occupied structure of another in danger of damage or destruction (section 3301(c)(2)).

There was sufficient evidence to sustain conviction for arson endangering persons and arson endangering property where lieutenant in fire marshal’s office testified that fire was started intentionally with open flame and that man fitting defendant’s description was seen running out of home at time of fire. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988).

In this case, the fire placed police and firefighters in danger of death or bodily injury as well as occupants of 100-104 North 9th Street. The fire also placed inhabited buildings in danger of damage or destruction. Marshal Iaeger testified that this fire was set, a conclusion which was based on the presence of gas containers and elimination of other possible ignition sources. The defendant was observed at the scene by multiple witnesses and was badly burned. A glove containing the defendant’s DNA was found on Washington Street; a matching glove was found on the roof of building where the fire originated. The defendant’s boots tested positive for gasoline. The evidence is sufficient for the jury to infer the fire was set by the defendant.

ii. Risking a Catastrophe

In order to sustain conviction for causing or risking a catastrophe, 18 Pa.C.S. §3302(b), the Commonwealth must establish beyond a reasonable doubt that the defendant recklessly created a risk of catastrophe in the employment of fire, explosives or other dangerous means. “Catastrophe” is intended to be synonymous with “widespread injury or damage.” Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505 (2005). Where a building with only one occupant was set, but the fire could have spread to a connected building with more than one hundred people inside, conviction for risking catastrophe was upheld. Commonwealth v. John, 408 Pa. Super. 234, 596 A.2d 834 (1991).

The defendant’s action of setting fire to 100-104 North 9th Street also placed persons in adjacent buildings at risk or injury and placed those buildings in risk of damage. The fire placed Dale Kite, George Butler and the other occupants of 841 Washington Street at risk. The fire also risked damage to the building at 841 Washington and other adjacent structures.

iii. Criminal Mischief

To sustain a conviction for criminal mischief, the Commonwealth must establish beyond a reasonable doubt that the defendant damaged tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means defined by section 3302(a). 18 Pa.C.S. §3304. The evidence was sufficient for the jury to conclude the defendant set the fire to the buildings located at 100-104 North 9th Street, causing damage.

iv. Recklessly Endangering Another Person

To sustain a conviction for recklessly endangering another person, the Commonwealth must establish beyond a reasonable doubt that the defendant recklessly engaged in conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa.C.S. §2705. This conviction merged with arson for sentencing purposes; the evidence being sufficient to sustain the arson convictions, it is likewise sufficient to sustain the reckless endangerment conviction.

3. Weight of the Evidence

The 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). “A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to [support] the verdict, but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). Whether a new trial should be granted on grounds that it is against the weight of the evidence is addressed to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Id. 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 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).

In this case, the jury found the evidence and testimony presented by the Commonwealth’s witnesses to be credible as to arson and related counts. The court does not find that the verdict was so contrary to the weight of the evidence that it shocks its sense of justice.

4. Sentencing

i. Consecutive Sentences

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Burkholder, 719 A.2d 346 (Pa. Super. 1998). This discretion is permitted because the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

An appellate court will not disturb the lower court’s judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). (citation and internal quotations omitted) A challenge to an alleged excessive sentence is a challenge to the discretionary aspects of sentencing. Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008). A challenge to the discretionary aspects of the sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. Id. A chailenge to discretionary aspects of a sentence must present a substantial question as to the appropriateness of the sentence under the Sentencing Code, 42 Pa.C.S. §9781(b), in order to be reviewed. Id. “Long-standing” precedent provides that any challenge to the exercise of discretion enjoyed by a trial court in imposing a sentence consecutively or concurrently fails to raise a substantial question. Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006).

The defendant fails to raise a substantial question for review. This claim of error is a challenge to this court’s discretionary decision to impose consecutive rather than concurrent sentences.

ii. Aggravated Range Sentence

“A sentencing court may consider any legal factor in determining that a sentence in the aggravated range should be imposed.” Commonwealth v. Stewart, 867 A.2d 589, 592-93 (Pa. Super. 2005). “In addition, the sentencing judge’s statement of reasons on the record must reflect this consideration, and the sentencing judge’s decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion.” Id. at 593.

During the sentencing hearing, the guideline range was placed on the record as to Count 1, arson, 18 Pa.C.S. §3301(a)(l)(i): offense gravity score 9; prior record score 0; standard range 12-24 months, aggravated range 36 months. (N.T., transcript of proceedings, 10/9/2009, pp. 3, 10.) An aggravated range minimum sentence of 36 months was imposed. The court enumerated the following reasons for the sentences imposed:

“The court here today has considered the age of the defendant and the nature of the offenses. The fact that the arson caused damage to property, that was a true catastrophe that resulted in buildings being destroyed. And as the assistant district attorney stated, that block had not yet been restored.

“The issue the court considers defendant’s actions putting firefighters, police officers and citizens at tremendous risk and the court notes that there was an exhibit at the trial of a film and the film showed the coverage at the time of the fire, of the firefighters, of the police officers and citizens, some of whom were there watching. And I’m not concerned about those.

“I’m mentioning people who lived, as the district attorney said, on either side of that building, people who that was their apartment, that was their home. And the court considered the testimony from Mr. Butler who lived in one of the adjacent buildings and according to his testimony was very concerned about another individual there and whether or not that man made it out of the building.

“And the jury heard that. The jury heard all of it and was the basis of the verdict finding the defendant guilty. The facts are undisputed that this was a high population area, that the actions of the defendant put more people than we can count at risk.

“The court has considered the pre-sentence investigation report that was adopted. The court has considered the guidelines that were placed in the record here today. The court has considered the recommendation — I’m sorry. The court has considered the request for restitution which the defendant has agreed to of the amount stated.

“The court has considered that the actions of the defendant were without any concern on that night for the consequences of his actions and now says he’s thankful for the help he received that night. But I didn’t hear any remorse for the people whose lives were also threatened but thankfully not taken by his deliberate actions. The court believes that any lesser sentence would depreciate the seriousness of the crimes for which the defendant has been found guilty.

“The court did consider the recommendation from the district attorney, the recommendation from defense counsel, as well as the testimony of Mr. Keenan’s father. The fact that the defendant has no prior record is being considered in that guideline ranges that were placed in the record. The court has considered all of those ranges and is satisfied that the sentence imposed is necessary. And for those reasons, the court will enter the following orders.” (N.T., 10/9/2009, pp. 14-16.)

Due to the court’s consideration of numerous reasons for the sentence, imposition of an aggravated range sentence for Count 1, arson, did not constitute an abuse of discretion.

iii. Merger

The defendant did not seek merger of Count 1, arson, and Count 5, causing or risking a catastrophe, at sentencing or in his post-sentence motion; it is being asserted for the first time on appeal. This issue has been waived by the defendant. Pa.R.A.P. 302(a).

The claim is also without merit. “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Commonwealth v. Baldwin, 985 A.2d 830, 2009 WL 5067544 (Pa. 2009) quoting Blockburger v. United States, 284 U.S. 299 (1932). Counts 1 and 5 do contain additional elements. Count 1, arson, 18 Pa.C.S. §3301(a)(l)(i) requires that, to be found guilty, the defendant set a fire which recklessly places another person in danger of death or injury. Risking a catastrophe, 18 Pa.C.S. §3302(b), requires the defendant recklessly create a risk of widespread injury or damage by employment of fire or explosives. The element of risk of widespread injury or damage precludes merger.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied.

      . The notice of lodging transcript of record reflects that the transcript was lodged on January 8, 2009. This date is incorrect for two reasons. The year was 2010, not 2009. Also, the official court reporter filed an amended notice of lodging of transcript to reflect the actual date of lodging, that being January 22. Transcription took longer than usual due to a technical problem.


author: LASH, J,

text:
    Freymoyer v. Freymoyer

      C.P. of Berks County,
    no. 07-1263, I.D. #2

      Brian K. Freymoyer, pro se.

      Kathy Freymoyer, pro se.
    December 1, 2009
   LASH, J,

The matter before this

court is the custody complaint filed by plaintiff, Brian K. Freymoyer (Father), seeking partial custody of the parties’ minor children, Devin and Nathan. The court held a custody trial on November 30, 2009. From the time of the parties’ separation, based upon the terms set forth in a protection from abuse final order, Father’s custody time has been supervised. At the time of trial, Father agreed to his visits continuing to be supervised, but has requested a modification to permit the supervisor be his aunt, Sandra Funk. This court enters the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Brian K. Freymoyer (Father), is an adult individual who currently resides at 607 Gregg Avenue, Reading, Berks County, Pennsylvania 19611-1623.

(2) Defendant, Kathy Freymoyer (Mother), is an adult individual who currently resides at 1329 Windsor Castle Road, Hamburg, Berks County, Pennsylvania 19526.

(3) The parties are the natural parents of two children, Devin, bom February 18, 1998, and Nathan, bom July 23, 2001 (minor children).

(4) The parties were husband and wife and resided together until February of 2007, when Father was removed from the marital residence through a temporary protection from abuse order obtained by Mother. The protection from abuse petition was resolved by entry of a final order in favor of Mother on February 16, 2007. The order is set to expire on February 16, 2010.

(5) Since the separation, the minor children have resided with Mother. In the final protection from abuse order, the court entered a temporary custody provision, awarding primary physical custody to Mother, with Father to have partial custody supervised by Frank and Crystal Sivak. Frank is Father’s cousin.

(6) Since the entry of the protection from abuse order, Frank and Crystal Sivak have separated. Frank is residing with Father, along with another cousin and the paternal grandfather.

(7) Mother resides with the minor children and her paramour, John Polm. Mr. Polm also has a child, who resides in Florida with her mother. Mr. Polm has not seen his child for some time, but does speak to her by telephone.

(8) Due to their separation or for other reasons, Frank and Crystal Sivak are no longer an option for continuing as supervisors for Father’s visitation. Father’s aunt, Sandra Funk, was substituted as a supervisor, but Mother became dissatisfied, after Father left Ms. Funk’s residence with the minor children and later became intoxicated. Subsequently, through court proceedings, Kids First, an agency that handles supervised visitation services, was recommended to be the supervisor, but was not utilized due to Father’s financial constraints. Accordingly, Father has not had visits with the minor children recently, but does maintain contact by telephone.

II. DISCUSSION

In making disposition, this court considered the testimony of Mother, Father’s proposed supervisor, Sandra Funk, Father’s probation officer, Susan Halbeisen, and the in camera testimony of the elder child, Devin. Devin’s in camera conference was held between him and the court alone, outside the presence of the parties, by agreement of the parties.

Father is requesting supervised visitation at Sandra Funk’s house with Ms. Funk to be the supervisor. Mother had some reservations, based on the previous incident in which Ms. Funk allowed the minor children in Father’s care outside of her presence.

Father has a history of alcohol abuse. He had several automobile accidents. He is on probation for driving under the influence of alcohol. Alcohol was also a factor in the incident resulting in Mother obtaining the protection from abuse order. Mother is adamant that the minor children are not to be exposed to Father while he is drinking, or to any of his friends.

Upon questioning by this court, Mother conceded that if rules were put in place, including a prohibition against Father using alcohol during or prior to his visits with the minor children, and that Ms. Funk would never permit the minor children outside her presence, then she would agree to Ms. Funk being the supervisor.

After further discussion, the parties reached an understanding allowing Father’s visits to be supervised by Ms. Funk. Mother would transport the minor children to Ms. Funk’s house. Prior to that time, Ms. Funk will pick up Father from his residence and transport him to her residence. Father cannot operate a vehicle, as his license is suspended. If Ms. Funk has any reservations about Father’s condition, she will decline to pick up Father and will notify Mother that the visit will not take place. If there are no issues, Father will be permitted to visit with the minor children at Ms. Funk’s house. Ms. Funk will also be permitted to transport Father and the minor children to suitable public locations, such as a restaurant, the mall, or some recreational facility. However, it is stressed that Ms. Funk, at no time, will permit the minor children outside of her presence. Further, if Father creates a problem, Ms. Funk will notify Mother immediately and terminate the visit.

This court is satisfied that Ms. Funk is responsible and caring and will perform her supervision in an appropriate manner. We are also satisfied that Ms. Funk will maintain proper controls such that if Father does not abide by the terms of the order, Ms. Funk will end the visit immediately and will report to Mother and, if necessary, to the court. Mother also appears to be satisfied with this arrangement. Accordingly, we enter the following order:

ORDER

And now, December 1,2009, after trial held, custody of the parties’ minor children, Devin, bom February 18, 1998, and Nathan, bom July 23,2001, (minor children), shall be as follows:

(1) Defendant, Kathy Freymoyer (Mother), shall have sole legal custody and primary physical custody of the minor children.

(2) Plaintiff, Brian K. Freymoyer (Father), shall have visitation, to be supervised by his aunt, Sandra Funk, at her residence. The parties, by written agreement, can substitute another supervisor.

(3) Father’s visits shall take place on alternate Saturdays commencing December 5, 2009 from 11 a.m. to 5 p.m. Visits shall take place with Mother dropping off and picking up the minor children at Ms. Funk’s residence. Ms. Funk is responsible for having Father present at her residence when the minor children arrive.

(4) The following rules shall be observed:

(A) At no time when the minor children are under Ms. Funk’s supervision shall there be any alcohol present or imbibed.

(B) When Ms. Funk arrives to pick up Father for his visits, she shall observe whether Father is sober. If she has concerns about Father’s sobriety, she shall cancel the visit and notify Mother.

(C) No third parties shall be permitted at Ms. Funk’s house during the visitation time without Mother’s prior written consent, other than the family members who already reside at Ms. Funk’s residence; and

(D) Ms. Funk shall be permitted to transport Father and the minor children to places outside of her home, such as restaurants, a mall, or recreational locations to facilitate the visit.

(5) Father shall have reasonable telephone calling privileges with the minor children.

(6) The attached appendix shall be made a part of the within 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 children:

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

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

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

(2) In the event of any serious illness of the children at any time, any party then having custody of the children 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 children as he or she desires consistent with the proper medical care of the children.

(3) Neither party shall alienate nor permit to attempt to alienate the children from the other party. While in the presence of the children, 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 children should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and any time they take a trip with the children 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 children.

(6) The parties shall, at all times, consider the children’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 children as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the children. By this we mean that the children will not be used as spies 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 children 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 children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules 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 children.

(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 children to unnecessary apprehension and failure of expectations.

(D) The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them 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 children.

(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.


author: GEORGE, J,

text:
    Discover Bank v. Winfree

      C.P. of Adams County,
    no. 09-S-1944.

      Kimberly Scian, for plaintiff.

      John Perry, for defendant.
    March 16, 2010
   GEORGE, J,

Plaintiff filed the original complaint on August 31,2009. Defendant filed preliminary objections onNovember 6,2009. Thereafter, plaintiff filed an amended complaint on January 11,2010, alleging that defendant applied for and received a credit card issued by plaintiff. Defendant used the credit card and as of November 20, 2009 there was an outstanding balance due and owing in the amount of $9,115.52. Plaintiff asserts that although demand has been made, defendant has failed to make payment of the amount due.

On February 3, 2010, defendant filed preliminary objections to plaintiff’s amended complaint. Defendant argues that the amended complaint is deficient for several reasons. First, defendant argues that plaintiff failed to attach the original application or agreement between the parties, and failed to explain its absence as required by Pa.R.C.P. 1019(h) and (i). Moreover, defendant argues that plaintiff failed to attach any writing containing the terms and conditions that the credit card was allegedly subject to, and failed to explain the absence of such a writing in violation of Pa.R.C.P. 1019(h) and (i).

Additionally, defendant argues that plaintiff’s complaint fails to conform to the requirements of Pa.R.C.P. 1019(a) and (f) in that it fails to state the material facts upon which the cause of action is based by failing to aver the time, place, and items of goods and/or services allegedly delivered to defendant. Defendant acknowledges that plaintiff has attached a Discover Card statement of account dated November 4, 2008 as exhibit A. However, defendant argues that the exhibit fails to provide any documentation or accounting of charges, payments, and interest which support plaintiff’s claim for damages. Finally, defendant argues that the pleadings fail to conform to Pa.R.C.P. 1024, which requires that the pleadings containing averments of fact be verified by the party making the averments. Defendant argues that the attorney’s signature of verification is not sufficient and that none of the exceptions to the requirement for verification exist on the face of the record in this case. For the reasons set forth below, defendant’s preliminary objections are sustained.

It is well-established that in ruling on preliminary objections, the court must accept as true all well-pleaded allegations of material fact as well as all inferences reasonably deducible from those facts. Ballroom LLC v. Commonwealth, 984 A.2d 582, 586 (Pa. Commw. 2009). Preliminary objections will be sustained only where the case is clear and free from doubt. Rambo v. Greene, 906 A.2d 1232, 1235 (Pa. Super. 2006).

In the present case, defendant’s preliminary objections are primarily based upon Rule 1019 of the Pennsylvania Rules of Civil Procedure governing the contents of pleadings. Rule 1019 states in relevant part as follows:

“(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form;...

“(f) Averments of time, place and items of special damage shall be specifically stated;...

“(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written; and

“(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.”

When a debt collection action is filed against a credit card holder, in order to comply with the requirements of Rule 1019, the plaintiff must attach to the complaint a copy of the cardholder agreement, a statement of account and, where applicable, the contract between the original creditor and assignee as evidence of the assignment. Failure to do so may be fatal to the complaint. Atlantic Credit and Finance Inc, v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). If a plaintiff does not have access to the documents the plaintiff must so state in writing along with (1) the reason that the plaintiff does not have access to the documents and (2) the substance of the missing document. Pa.R.C.P. 1019(i).

Plaintiff in the present case has failed to attach a copy of the cardholder agreement. The court finds that plaintiff’s attached exhibits are insufficient to satisfy Pa.R.C.P. 1019(h) and (i). Plaintiff’s exhibit A, Discover Card statement of account provides no information as to what, if any, contractual terms {i.e., payment obligations, interest rates, dates of charges, principal charges versus accrued interest, methods of calculating interest, billing cycles) were applicable to defendant. In addition, although plaintiff need not recite details of every purchase and account transaction in the complaint itself, plaintiff must allege sufficient detail (and attach sufficient documentation) to apprise defendant of the basis for plaintiff’s demand. Without the required documentation the complaint lacks the requisite specificity to allow defendant to respond.

Plaintiff has also failed to properly verify the amended complaint. An attorney’s signature does not satisfy Pa.R.C.P. 1024(c) unless certain requirements are met. Pa.R.C.P. 1024(c) requires that the verification “shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading.” Plaintiff has failed to indicate whether such circumstances exist to allow for an attorney to verify the amended complaint.

For the reasons stated herein, defendant’s preliminary objections are sustained. Plaintiff’s amended complaint will be dismissed without prejudice. Plaintiff is granted 20 days to file an amended complaint.

ORDER

And now, March 16, 2010, defendant’s preliminary objections are sustained. Plaintiff’s complaint is hereby dismissed without prejudice. Plaintiff is granted 20 days to file an amended complaint


author: COX, J.,

text:
    Allen v. Tanchuk

      C.P. of Lawrence County,
    no. 11005 of 2007.

      Charles P. Sapienza, for plaintiffs.

      Bret J. Southard and Rebecca Penn, for defendant.
    November 10, 2009
   COX, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of the defendant Geraldine Tanchuk, which argues that the defendant was not negligent as the dog was under the control of the plaintiff at all times during the incident and the defendant cannot be held liable for her child grabbing the dog’s tail. Additionally, the defendant claims that the plaintiff’s claims are barred by the “veterinarian’s rule”.

On September 14, 2005, the defendant, her son, Thomas Eichler, her daughter, Shanalyn Hartzell, and Ms. Hartzell’s boyfriend, Frank Hammet, brought the defendant’s dog, a 70-pound Bullmastiff and Dalmatian mix named Nikita, to Alpine Trail Veterinary Clinic located at 4374 Harlansburg Road, Slippery Rock, Lawrence County, Pennsylvania. Nikita needed a rabies booster shot and the defendant wanted the dog to undergo a physical examination as he refused to eat as a result of what appeared to be depression suffered after the death of the defendant’s husband. The plaintiff was a veterinary technician, who was employed at Alpine Trail Veterinary Clinic. She brought Nikita into the examination room with the defendant, Mr. Eichler and Mr. Hammet present. While waiting for the veterinarian to arrive, the plaintiff petted Nikita and noticed that the dog made a low growl when she approached his hindquarters. In her deposition, the defendant explained that the dog did not like to be touched on the hindquarters and became aggressive “when he would see black people or someone in uniform.”

When Dr. Mark Pullman, the veterinarian, arrived, the plaintiff held the dog as Dr. Pullman conducted the examination. As the examination progressed, Nikita’s tail began wagging and started striking Dr. Pullman in the groin area causing him discomfort. Mr. Eichler decided to assist the examination by holding the dog’s tail. The plaintiff and the defendant instructed Mr. Eichler to release Nikita’s tail and the dog immediately became enraged. The dog struck the plaintiff in the head several times with its mouth and teeth. The plaintiff’s grip was broken when the dog pushed on her chest. Nikita jumped off the examination table and bit the plaintiff on the leg.

The plaintiff filed a complaint on July 11, 2007, and the defendant filed an answer to the same on February 25, 2008. The parties conducted discovery and the defendant has now filed this motion for summary judgment contending that the defendant was not negligent as the plaintiff was in control of the dog at the time of the incident and the defendant is not liable for the negligent conduct of her son. Furthermore, the defendant argues that the plaintiff’s claims are barred by the “veterinarian’s rule”.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, certiorari denied 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense, which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2.

However, summary judgment is only appropriate when discovery relevant to the motion has been completed. Id. Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650-51 (Pa. Super. 1999)).

The moving party bears the burden of proving the nonexistence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 471, 684 A.2d 137, 140 (1996).

■ When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339 (2000); Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block Inc. 761 A.2d 1115 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990).

First, defendant argues that she cannot be held liable for the plaintiff’s injuries as she was not in control of the dog at the time of the incident. Additionally, plaintiff contends that she should not be held liable for the negligent act of her son.

Pennsylvania law does not impose absolute liability upon dog owners from torts caused by their dogs. McCloud v. McLaughlin, 837 A.2d 541, 544 (Pa. Super. 2003) (citing Deardorff v. Burger, 414 Pa. Super. 45, 52, 606 A.2d 489, 493 (1992)). This means that aperson who is injured by a dog must prove that the dog owner acted negligently. Id. The Pennsylvania courts have abolished the “one free bite” rule, which required that an owner restrain his or her dog only after its behavior evidenced viciousness. Villaume v. Kaufman, 379 Pa. Super. 561, 564-65, 550 A.2d 793, 795 (1988) (citing Freeman v. Terzya, 229 Pa. Super. 254, 323 A.2d 186 (1974)). A plaintiff cannot recover for injuries sustained in an incident involving a dog bite by merely establishing that the dog had a propensity for viciousness and the owner was aware of the same, the plaintiff must demonstrate that the owner failed to take proper precautions to preclude the dog from acting in a vicious manner. Deardorff 414 Pa. Super, at 50, 606 A.2d at 492 (Darby v. Clare F. and R. Co., 111 Pa. Super. 537, 170 A. 387 (1934)). Several factual instances set forth circumstances that constitute knowledge of the dog’s viciousness or dangerous propensities, which include but are not limited to: (1) complaints brought to the owner’s attention; (2) fighting with other dogs; (3) frequent confinement of the dog; (4) warning signs on the owner’s premises; and (5) statements by the owner as to the dog’s character. Sheptak v. Wagner, 23 D.&C.3d 46, 48 (1982) (citing Proof of Facts 2d, vol. 13, p. 473).

In the case sub judice, the plaintiff has produced evidence that establishes an issue of material fact as to whether Nikita had a propensity for viciousness. First, the defendant stated that Nikita did not like his tail or back legs touched, even though she did not know the reason for the dog’s sensitivity to that area. Additionally, the defendant explained that Nikita exhibited aggressive tendencies “when he would see black people or someone in uniform.” Moreover, Nikita was acting strangely after the defendant’s husband died, which included not eating, nor was he rambunctious or happy. The defendant could not recall whether she informed the technicians at the veterinary clinic why Nikita was brought in for an examination. Mr. Hammet indicated to the staff that he felt the dog should be muzzled as Nikita was not used to being around new people. Apparently, the defendant had several indications that Nikita had violent tendencies and may need to be restrained or muzzled for his examination, but failed to reiterate this to the technicians at the veterinary clinic. The defendant also failed to inform the technicians that Nikita acted aggressively towards people in uniform, which the technicians and veterinarians were most likely wearing when the dog bite occurred. Furthermore, it would be reasonable for a jury to find that the defendant should have stopped her son from grabbing the dog’s tail or approaching the examination table, which she failed to do. Therefore, the plaintiff, as the non-moving party, has presented sufficient evidence that a genuine issue of material fact exists to permit this case to proceed to trial.

Defendant also contends that the plaintiff’s action is barred by the “veterinarian’s rule”, which precludes claims by veterinarians or veterinary technicians who are bitten by animals in the course of their employment as they were aware of the risks involved with examining the animals. After extensive research, the court could not discover any Pennsylvania case law adopting the veterinarian’s rule. It must be noted that the defendant cited to case law from other jurisdictions, which are not binding on this court’s decision.

However, Pennsylvania case law clearly adopts the defense of assumption of the risk for dog bite cases. Groner v. Hedrick, 403 Pa. 148, 153, 169 A.2d 302, 304 (1961). The plaintiff in Groner was employed as the housekeeper for the defendants. When the plaintiff entered the defendants’ residence she was knocked over by the defendants’ 107-pound Great Dane, causing the plaintiff to break her arm and leg. There was evidence that the plaintiff was aware that the dog routinely jumped on people and she held onto things to steady herself, so that she would not fall when approached by the dog. The Groner court reasoned that there are many variables when encountering animals and the surrounding circumstances. Id. Therefore, “it was for the jury to say whether plaintiff, under the economic pressure of the job, had knowledge of the facts and understanding of the risks, when the facts and the risks were dependent upon [the dog’s] mood and hence whether she can be held to have assumed them.” Id.

It is apparent that the Pennsylvania courts have not applied a per se rule prohibiting veterinarians or veterinary technicians from asserting claims arising from injuries sustained as a result of dog bites during the course of their employment. Instead, the courts have established that the defense of assumption of the risk applies to dog bite cases. In accordance with the decision in Groner, this case is not precluded by the doctrine of assumption of the risk because there has been evidence presented that the plaintiff was not fully aware of the extent of Nikita’s temperament at the time of the examination. Thus, it is the role of the jury to decide whether the plaintiff assumed the risk in the current matter.

For the reasons set forth in this opinion, the defendant’s motion for summary jugment is denied.

ORDER

Now November 10, 2009, this case being before the court on October 26,2009, for oral argument on the motion for summary judgment filed by the defendant, with both parties appearing through counsel, the plaintiffs, Laurie Allen and Michael Allen, her husband, represented through counsel, Charles P. Sapienza, Esquire and the defendant, Geraldine Tanchuk, represented through counsel, Rebecca Penn, Esquire and after consideration of the arguments and briefs presented and submitted by counsel, and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the motion for summaiy judgment filed by the defendant is hereby denied.

(2) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Charles P. Sapienza, Esquire and Rebecca Penn, Esquire.

      . For the purpose of this motion, the term plaintiff refers to Laurie Allen.