author: FURBER, J,

text:
    Commonwealth v. Krause

      Patricia E. Coonahan, for Commonwealth.

      Ari S. Moldovsky, for defendant.
    July 7, 2008
   FURBER, J,

— On December 10, 2004, we found David M. Krause guilty of unlawful contact or communication with a minor, corruption of minors, attempt to commit unlawful contact or communication with a minor, attempt to commit indecent assault, attempt to commit involuntary deviate sexual intercourse, attempt to commit statutory sexual assault and attempt to commit corruption of minors. This verdict followed a non-jury trial held on October 7,2004. The evidence consisted of stipulated exhibits and the transcript of the suppression hearing held before the Honorable Kent H. Albright on November 14, 2003. Counsel presented oral argument at the time of trial, and provided copies of cases thereafter. The defendant, through his counsel, argued that the elements of the offenses had not been made out, and that the Commonwealth failed to negate the defense of renunciation beyond a reasonable doubt.

Defendant was 25 years old at the time of the offenses. The charges at 0965-03 arose from an internet investigation, in which detectives posed as a 13-year-old girl, using the screen name “Prettieyes07.” Case no. 5239-03 involved a real 15-year-old female high school student we will call “Amber” in this opinion. In the Amber case defendant and Amber engaged in two episodes of “cybersex”: Mr. Krause described explicitly the sexual activity in which the two were pretending to be engaged.

The cybersex with Amber was discovered on defendant’s computer, which was obtained through a consensual seizure after Mr. Krause was arrested in the Prettieyes case on January 17,2003. That investigation began in April 2002 with an internet chat between an Abington Township detective and defendant, who was using the screen name DM99K. The following January, County Detective Katherine J. Hart took over the investigation and contacted DM99K as Prettieyes07. Over seven days Prettieyes and the defendant held lengthy chats in which Prettieyes stated her interest in meeting DM99K, dating, and, after he suggested it, learning sex from him.

These chats are recorded on exhibit “C-2”. The defendant asks about Prettieyes’ age, learns she is 13, and states he could get into trouble. (Exhibit “C-2”, pp. 1-2.) Later she repeats her age, and defendant says she has to be at least 16. He continues to acknowledge her age of 13 and that she could get him in trouble. (Exhibit “C-2”, pp. 4, 5, 6, 8, 10.)

Defendant was the first to suggest they meet. (Exhibit “C-2”, p. 9.) The defendant then tries to get Prettieyes to describe what she wants him to teach her, but she only states she wants to learn what he wants to teach. In time, defendant describes the oral sex in which they will engage. (Exhibit “C-2”, pp. 17-18.) Eventually they agree to get together on January 17,2003 at the Plymouth Meeting Mall. They planned for defendant to pick up Prettieyes at the movie theater in the mall, and then go to her house in Plymouth Meeting, when her mother would not be at home. She agrees to wear what he asks her to wear, a short skirt, top and “cute” bra and panties. (Exhibit “C-2”, p. 26.) The day before the planned meeting they have this chat:

“Prettieyes07: im still a little scared

“DM99K: of?

“Prettieyes07: the firsttime

“DM99K: oh.

“DM99K: I will be gentle

“Prettieyes07:1 know u will its just scary

“DM99K: well we don’t have to do tht if you don’t feel like it.

“Prettieyes07: as long as your gentle

“Prettieyes07:1 knoqw u will be

“DM99K: I wil sweetheart.

“Prettieyes07: do i have 2 worry about gettin pregnant

“DM99K: ha. Nah.

“Prettieyes07: y not

“DM99K: because I’ll use a condom silly.

“DM99K: And I do not plan on cumming inside of you.

“DM99K: Even with the condom on.” (Exhibit “C-2”, p. 28.)

On January 17, 2003 defendant arrived at the movie theater at the Plymouth Meeting Mall in the green BMW he described to Prettieyes. He stopped in the fire lane, and looked into the theater. The police surrounded his car. When he was arrested he had two condoms in the inside breast pocket of his jacket. When questioned, he admitted chatting on-line with Prettieyes, and that the picture she sent to him would be on his laptop computer.

On March 29,2005 we sentenced the defendant to not less than three and one-half and not more than seven years imprisonment on the charge of attempt to commit involuntary deviate sexual intercourse, and probation on the other charges. Defendant was directed to register under 42 Pa.C.S. §9793. On April 25, 2005 we modified the imprisonment to a term of not less than three nor more than six years.

The appeal filed by trial counsel was quashed by the Superior Court on August 19,2005 as untimely filed. On June 29,2006, on consideration of the stipulation of new defense counsel and the attorney for the Commonwealth, we granted defendant leave to file a post-trial motion within 10 days, and to file a direct appeal subsequently. The motion filed by new counsel on July 10,2006 raised several issues that could be decided on the record, and ineffective assistance of counsel. We heard testimony and argument on the ineffective assistance claims on April 11, 2007, September 17, 2007 and February 1, 2008.

Defendant and trial counsel testified at those hearings. Defendant asserts in his statement of errors complained of on appeal, trial counsel was ineffective by: (1) advising defendant to waive his speedy trial rights and not moving for discharge, (2) surrendering computer passwords without permission or getting anything in return, (3) advising defendant to waive his preliminary hearing for no good reason, (4) advising and agreeing to a stipulated trial, especially where it meant stipulating to things like the condoms, (5) failure to pursue and argue entrapment, (6) failure to introduce character testimony or get a stipulation from the Commonwealth on defendant’s behalf, and (7) advising defendant not to testify.

The evidence established that trial counsel sought continuances, which, when subtracted from the time between arrest and commencement of trial, caused the case to be tried within 365 days of defendant’s arrest. He requested those continuances while Judge Albright’s decision on the suppression motion was under advisement, because he considered suppression to be the significant issue in the case: if the motion to suppress had been granted there would be no support for the charges in case no. 5239-03, and there would be considerably less evidence in case no. 0965-03.

Trial counsel recommended that Mr. Krause agree to a trial on stipulated evidence because the defense of renunciation could be predicated on one of the stipulated police reports, and he was concerned if the witness testified this factual basis could be changed by testimony. He was also afraid defendant’s case would be harmed if he had to submit to cross-examination. For these reasons, and because he considered suppression to be the principal basis on which the case could be won by the defendant, counsel advised Mr. Krause to agree to the stipulated trial, not to testify on his own behalf and not to present character evidence. He informed Mr. Krause that the decision to testify or not to do so was his to make, both in private and on the record. (N.T. trial 10/7/04, p. 23; N.T. PCRA hearing 4/11/07, p. 59.)

The preliminary hearing was waived, and the computer passwords were handed over as a result of an agreement between defendant and the Commonwealth. The assistant district attorney offered a sentence of 11 to 23 months imprisonment if defendant would agree to waive that hearing and plead guilty. Trial counsel believed it would be unwise to accept this deal without discovery. Defendant had previously consented to the search of his home and computer. That computer required three passwords to be accessed immediately, and defense counsel, with the consent of the defendant, agreed to provide those passwords in exchange for an agreement by the Commonwealth to hold its offer open until the completion of discovery.

Trial counsel did not argue the defense of entrapment, because he considered renunciation a defense he could support based on the stipulated evidence. Given the facts and the law he did not believe there was support for the entrapment defense. As we will discuss, he was correct.

By order of March 19, 2008 we denied defendant’s motions for post-trial relief. Defendant filed an appeal to the Superior Court on April 17, 2008. On April 18, 2008 we directed defendant to file a statement of errors complained of on appeal. That statement was filed and served on May 6, 2008.

Defendant asserts the evidence was insufficient to establish the crimes charged (although his arguments addressed attempt only), and that it did establish the defenses of renunciation and entrapment. In the Prettieyes case, no. 0965-03, he was convicted of five counts of attempt.

Section 901 of the Crimes Code, 18 Pa.C.S. §901 provides:

“Criminal attempt

“(a) Definition of attempt. — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime....

“(c) Renunciation.—

“(1) In any prosecution for an attempt to commit a crime, it is a defense that under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if the mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

“(2) A renunciation is not ‘voluntary and complete’ within the meaning of this subsection if it is motivated in whole or part by:

“(i) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or

“(ii) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.”

We found defendant guilty of attempting to commit these offenses:

“18 Pa.C.S. §3123(a)(7):

“Involuntary deviate sexual intercourse

“(a) Offense defined. — A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant:...

“(7) who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.

“18 Pa.C.S. §3122.1

“Statutory sexual assault

“Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other.

“18 Pa.C.S. §3126(a)(8):

“Indecent assault

“(a) Offense defined. — A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:...

“(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.

“18 Pa.C.S. §6301(a)(l)

“Corruption of minors

“(a) Offense defined.—

“(1) Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree....

“18 Pa.C.S. §6318:

Unlawful contact with minor

“(a) Offense defined.- — -A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

“(1) Any of the offenses enumerated in chapter 31 (relating to sexual offenses)....”

Defendant’s arguments on the issues of sufficiency of the evidence, renunciation and entrapment are addressed only to the attempt offenses charged in the Prettieyes case. He does not challenge sufficiency in the Amber case, no. 05239-03, in which we found him guilty of unlawful conduct with a minor and corruption of minors, in violation of 18 Pa.C.S. §§6301 and 6318, quoted above.

Both defendant and the Commonwealth rely on Commonwealth v. Zingarelli, 839 A.2d 1064 (Pa. Super. 2003), allocatur denied, 579 Pa. 692, 856 A.2d 834 (2004) with regard to sufficiency of the evidence and renunciation. Mr. Zingarelli made a date with a state trooper posing as a 15-year-old girl looking for a man to teach her oral sex he met in a “father and daughter sex” chat room. They discussed a location and time to meet, and arranged to do so at an ice cream stand, where defendant was arrested. Mr. Krause argues that the steps taken to carry out his intent were insufficient to convict him because they were lesser in degree than those in Zingarelli, specifically that he did not pack an overnight bag, did not book a hotel room, did not buy a bottle of wine, and did not have an unopened box of condoms, just the two in his pocket, which any young man might carry. The Commonwealth argues the differences are merely due to the situation: defendant was going to Prettieyes’ home, and did not have to stay overnight because of the shorter distance.

Zingarelli does not set a minimum standard of what constitutes an attempt to commit a sexual offense against a minor as a result of an internet arrangement. The court ruled that when considering the sufficiency of the evidence it will view all the evidence at trial in the light most favorable to the verdict winner to determine if there was sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. The Commonwealth need not preclude all possibility of innocence, and doubts may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances. 839 A.2d at 1069.

Defendant’s intent to commit the crimes is established beyond a reasonable doubt by the internet chats. We found beyond a reasonable doubt that those chats, the arrangement to meet Prettieyes, defendant’s drive of more than 10 miles and his arrival at the agreed-upon location are, each, substantial steps toward the commission of each crime attempted.

In Commonwealth v. Jacob, 867 A.2d 614 (Pa. Super. 2005) the Superior Court affirmed the sentence imposed by a judge of this court in a similar case. It held that multiple sexually explicit conversations with a purported 12-year-old girl, a plan to meet her, an offer (there by telephone) to teach the girl oral sex, and arrival at the agreed-upon location with condoms were sufficient evidence to convict the defendant of the attempt to commit involuntary deviate sexual intercourse with a minor. The Superior Court held the slight differences of fact in Zingarelli were not significant: the shorter drive, the lack of an overnight bag and the failure to rent a hotel room were consequences of the shorter distance involved and the plan to use defendant’s home.

Commonwealth v. Zingarelli, 839 A.2d 1064 (Pa. Super. 2003) also supports our decision that the Commonwealth negated the defense of renunciation beyond a reasonable doubt. The defense is statutory, and the statute places the burden on the Commonwealth. 18 Pa.C.S. §901(c). We found the defendant did stop and wave at someone in the theater, but even if we agreed with his interpretation of the evidence, that he only stopped when the police blocked his car, he did not try to drive away “under circumstances manifesting a voluntary and complete renunciation of his criminal intent.”

In Commonwealth v. Joseph, 848 A.2d 934, 941 (Pa. Super. 2004) the Superior Court held it was not error to refuse to instruct the jury on renunciation under the circumstances. The court stated it was difficult to understand how the defendant was entitled to a renunciation instruction when he appeared at a parking lot on the date and time agreed, and reiterated his request to have sex with a 12-year-old.

Defendant asserts the defense of entrapment is established on this record. This is also a statutory defense, but, unlike renunciation, the burden of proof is on the defendant. 18 Pa.C.S. §313 provides:

“Entrapment

“(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:

“(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

“(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

“(b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment....”

There is no evidence to suggest the police made knowingly false representations designed to induce the belief defendant’s conduct was not prohibited. On several occasions during the chats Mr. Krause stated he knew a sexual relationship between the two could get him in trouble, and the police never said anything to the contrary. There is no support in the evidence for the proposition that defendant was not ready to commit the offenses charged. He proposed the meeting. He described the oral sex he would perform. He proposed sexual relations, and told Prettieyes what he intended they would do.

Defendant concludes the relevant paragraph of his statement of errors complained of by stating: “This is especially true when applying the statutes in effect at the time of defendant’s arrest were not the same as the statutes as later amended after his January 17,2003 arrest.” This argument was not presented, and we do not understand the point. No specific amendment was identified, so the issue is not preserved. Commonwealth v. Lemon, 804 A.2d 34 (Pa. Super. 2002); Commonwealth v. Dowling, 778 A.2d 683 (Pa. Super. 2001).

Commonwealth v. Zingarelli, 839 A.2d 1064 (Pa. Super. 2003) also rejects the defense of entrapment under similar circumstances. Although there the police entered the chat room and waited to be approached and the detectives initiated chats with Mr. Krause after a long period in which there was no contact, that is not a meaningful distinction given the statute and its purpose. As stated in Zingarelli, the defense of entrapment is a sanction for overzealous and reprehensible police conduct. See also, Commonwealth v. Johnson, 448 Pa. Super. 42, 670 A.2d 666 (1996) in which the court held that providing the opportunity for a person with the intent to commit a crime to do so is not entrapment.

There was nothing overzealous nor reprehensible about the police conduct in this case. David Krause had the intent to have sexual intercourse and oral sex with a 13-year-old girl. He engaged in multiple internet conversations with a person he believed to be one. He explained exactly what he intended to do with her. He traveled to the designated place at the designated time. That a police officer prevented Mr. Krause from meeting a real child by pretending to be one is neither outrageous nor reprehensible. It is good and fair law enforcement that protects children.

Next, we address the arguments asserting Pa.R.Crim.P. 600 was violated. Defendant was arrested in the first case on January 17, 2003. His trial commenced on October 7, 2004, 629 days later. He filed his motion to suppress evidence on October 17, 2003. Judge Albright entered his decision on August 6,2004,294 days after the motion was filed. Subtracting that period, trial commenced on the 335th day, within the 365 days allowed by Rule 600, subsection (C) of which provides:

“(C) In determining the period for commencement of trial, there shall be excluded therefrom:...

“(3) such period of delay at any stage of the proceedings as results from:

“(a) the unavailability of the defendant or the defendant’s attorney;

“(b) any continuance granted at the request of the defendant or the defendant’s attorney.”

The parties were to submit proposed findings and conclusions 30 days from transcription of the notes of testimony, that is, on January 12, 2004. On January 9, 2004, this period was extended at the request of counsel for defendant. The Commonwealth filed a brief on February 8,2004, and on March 12,2004 the defendant filed proposed findings and conclusions. The Commonwealth filed proposed findings and conclusions on April 12, 2008. (Judge Albright’s order, findings of fact and conclusions of law of August 6, 2004, ¶¶35-39, p. 8.) Each time the case was re-listed for trial the defense requested a continuance.

Time required to decide a defense pretrial motion is excluded from Rule 600. Commonwealth v. Cook, 544 Pa. 361, 676 A.2d 639 (1996), cert. denied, 519 U.S. 1119 (1997); Commonwealth v. Williams, 726 A.2d 389, 392 (Pa. Super. 1999), allocatur denied, 560 Pa. 745, 747 A.2d 368 (1999). Continuances granted at the request of the defense are excluded. Pa.R.Crim.P. 600(C)(3)(b); Commonwealth v. Cook, 865 A.2d 869 (Pa. Super. 2004), allocatur denied, 584 Pa. 672, 880 A.2d 1236 (2005). Therefore, there was no violation of Pa.R.C.P. 600.

Defendant challenges the rulings on pretrial motions made by the Honorable Kent H. Albright. We agree with Judge Albright’s decision and reasoning, as set forth in his order, findings of fact and conclusions of law of August 6, 2004. We need not address those issues in this opinion, since the reasons are already of record. Pa.R.A.P. 1925(a).

Defendant asserts trial counsel was ineffective for several reasons. To prevail, he must demonstrate that (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him. Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334 (1998), cert. denied, 526 U.S. 492 (1999).

First, defendant asserts trial counsel was ineffective by advising defendant to waive his speedy trial rights and not moving for discharge. As discussed, this claim is not of arguable merit. Trial counsel explained that he sought continuances because he considered suppression the best “defense”, and that it was not in defendant’s interest to seek to go to trial before Judge Albright ruled. Since an order suppressing evidence would have resulted in dismissal of the charges involving Amber, the continuance requests were designed to effectuate defendant’s interest.

Defendant claims it was ineffective for trial counsel to surrender computer passwords and waive the preliminary hearing without permission, for no good reason and without getting anything in return. We find the testimony of trial counsel credible, and defendant not credible. The preliminary hearing was waived, and the passwords surrendered, to get the Commonwealth to keep open its offer of an 11 to 23 month sentence. He also explained that there is no such thing as a password that cannot be cracked eventually, and that once he saw the discovery he considered it best to give up the offer and file a motion to suppress. The waiver of the hearing and surrender of the passwords were designed to effectuate defendant’s interests.

Defendant asserts trial counsel was ineffective by advising and agreeing to a stipulated trial, because it meant stipulating to “things like the condoms and other facts that could have been contested (more examples are detailed in defendant’s post-sentencing testimony).” We address only the example stated, and will not search the record for others. Issues not listed in the statement of errors complained of are waived. Pa.R.A.P. 1925(b)(4); Commonwealth v. Lemon, 804 A.2d 34 (Pa. Super. 2002).

Trial counsel explained that, after discussion with the defendant, he agreed to a stipulated trial for several reasons: there was a factual basis for the defense of renunciation in one of the police reports, and he did not want this explained away by testimony. He believed the strongest defense was the suppression of evidence, and that a stipulated trial would preserve those issues, and perhaps result in a more lenient sentence. He was concerned that defendant’s testimony would expose him to cross-examination that could harm his case. As far as the condoms were concerned, these were seized from defendant’s person when he was arrested and he does not explain why they would be inadmissible. Counsel articulated a reasonable basis why a stipulated trial would effectuate defendant’s interest.

Next, defendant asserts trial counsel was ineffective by failing to pursue and argue entrapment. As discussed above, the police conduct is the subject of incontestable recorded internet chats. Under the law, there was no basis for an entrapment defense. Trial counsel also explained because the defense was so difficult to establish under the facts and the law, asserting it would have detracted from the defense of renunciation, which could be supported on the record.

Defendant claims trial counsel was ineffective by failing to introduce character testimony or get a stipulation from the Commonwealth on defendant’s behalf. Defendant offered one character witness at sentencing who testified he was hard working and a decent, honest, ethical person. No one else was identified. To establish ineffective assistance on this basis, defendant must prove the existence and availability of the witnesses, counsel’s duty to know of the witness, the witness’ willingness to appear on his behalf, and the necessity for the proposed testimony to avoid prejudice. Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 254 (1998), cert. denied, 528 U.S. 880 (1999).

He has not done this except for the single witness, whose testimony would not have changed our view of defendant’s criminal intent, which was based on the recorded internet chats. Trial counsel explained he did not believe character testimony would have changed the result. Defendant did not establish the Commonwealth would have stipulated to his good character if asked.

Defendant asserts trial counsel was ineffective by advising him not to testify. The advice was designed to effectuate defendant’s interests, because testimony would have prevented the strategy of proceeding on stipulated facts. Counsel was also concerned that cross-examination of the defendant would have harmed him. Defendant was fully advised of this right to testify and to refuse to testify, both in private and on the record.

Finally, defendant asserts the verdict was against the weight of the evidence due to the “pervasive contradictions in the evidence and the evidence of entrapment and renunciation.” A verdict is against the weight of the evidence only when it is so contrary to the evidence as to shock one’s sense of justice. This is addressed primarily to our discretion, and will be reviewed only for abuse. Commonwealth v. Blakeney, 946 A.2d 645 (Pa. 2008). Although no contradictions are pointed out, those we recall were minimal and, at worst, were the results of differences in recollection recorded in police reports made after the fact. Our verdict does not shock our sense of justice. It was based on recorded internet chats with children, including two instances of cybersex with one child, and defendant’s steps toward having sexual relations with a child he believed was 13 years old.

      . Defendant lived in Abington, Montgomery County, which is near Pennsylvania Turnpike Exit 343. The Plymouth Meeting Mall is at Exit 333.

      . This list appears after the phrase “For example”: and, as to item (4) the statement recites that “more examples are detailed in defendant’s post-sentencing testimony.” We address only the items set forth in the statement, because those not listed in it are waived. Pa.R.A.P. 1925(b) (4); Commonwealth v. Lemon, 804 A.2d 34 (Pa. Super. 2002).

      . The validity and scope of that consent were determined by Judge Albright in his August 6, 2004 findings and conclusions, which we adopt.


source: Caselaw Access Project

author: SOLOMON, J.,

license: Public Domain

text:
    Fedorko v. Fedorko

      David Reiss, for plaintiff.

      Daniel Webster, for defendant.
    May 14, 2008
   SOLOMON, J.,

— Presently before the court are exceptions to the special master’s report, filed by both the plaintiff, Beatrice Fedorko, and the defendant, Michael Fedorko. Each party presented oral arguments and submitted briefs to the court.

STATEMENT OF THE CASE

The plaintiff, Beatrice G. Fedorko, and the defendant, Michael R. Fedorko, were married on January 4, 1969. (Special master’s report, filed 08/06/07, at 2.) The marriage was the first for both parties, and they had one child, Ashley Whitney Fedorko, bom June 14,1984. Id. Presently, the plaintiff is 64 years old, being bom on August 19, 1943, and the defendant is 62 years old, being bom on August 24, 1945. Id.

The plaintiff obtained a high school diploma and, throughout the marriage, was primarily a homemaker and a stay-at-home mother. Id. at 4. For a short time period in 1998, the plaintiff worked part-time, stacking magazines. Id. The defendant graduated high school and obtained an engineering degree from West Virginia University. Id. He has been employed by Bechtel Bettis Inc., formerly Westinghouse Electric Corporation, since 1969. Id. The special master found that the defendant was in good health and that the plaintiff was in fair health, having carpal tunnel syndrome, short-term memory problems, and depression. Id. at 3. Presently, the defendant is residing in the marital residence and the plaintiff rents an apartment. Id. at 6.

After hearing, the special master, John M. Zeglen, Esquire, made recommendations for the equitable distribution of the parties’ marital assets and for alimony. Under the master’s equitable distribution scheme, it was recommended that the plaintiff receive an investment account, valued at $45,714.84, and 50 percent of another investment account, valued at $123,250. Id. at 14. As to the defendant, the master recommended that he retain the marital home, which had an equity value of $153,557.55. Id. at 15. It was also recommended, among other things, that the husband be awarded a Metropolitan life insurance policy with no cash value and a Bechtel term life insurance policy with a $50,000 cash value. Id. The special master further recommended that each party receive a 50 percent share of the defendant’s pension from Bechtel Bettis Inc., when payments begin. Id. at 14, 16.

In addition to considering the length of the marriage, the age of the parties, and the earning capacities of both parties, the special master took into account several other factors in equitable distribution. He was aware that there were potential tax ramifications related to the marital assets, which he estimated could reduce the value of some assets by 25 percent. Id. at 7. Also, the master acknowledged that neither party contributed significantly to the education and training of the other party. Id. Further, the special master was aware that the defendant was primarily responsible for acquiring and maintaining most of the marital assets. Id. at 6.

Furthermore, the special master made a recommendation that the defendant make alimony payments to the plaintiff. In making this recommendation, the special master was aware that the defendant’s income can increase based upon performance, and had increased eveiy year since 1995. Id. at 11. Also, the master was aware that the plaintiff had some employment history, id. at 4, but essentially is “unable to meet her daily needs and expenses without the receipt of alimony.” Id. at 12. Another factor taken into consideration was that the defendant’s extramarital affair was a major factor in the breakdown of the marriage. Id.

For the purposes of alimony, the special master recommended that the defendant pay the greater of $2,058, or 40 percent of the difference between the defendant’s net monthly income and $700, excluding pension benefits. Id. at 19. The master also recommended a reduction in alimony, dollar for dollar, for each dollar the plaintiff receives via her Social Security retirement benefits. Id. Moreover, if the defendant is not employed, and only receives passive income, the defendant’s obligation for alimony payments shall be reduced to 40 percent of the difference between the defendant’s Social Security retirement benefits and the amount of Social Security retirement benefits the plaintiff is receiving or could receive. Id. Additionally, it was recommended that the defendant provide health insurance for the plaintiff until she receives Medicare. Id.

Finally, in making his determination that the defendant pay all counsel fees, the special master considered the financial condition of the parties, the factors relevant to equitable distribution, and the facts considered on the issue of alimony. Id. at 14. Specifically, the special master had knowledge of the defendant’s significantly higher earning potential, id. at 4, the defendant’s recommended share in equitable distribution, which includes the marital residence, id. at 15, and the fact that the plaintiff is unable to meet her daily needs without the receipt of alimony. Id. at 12.

DISCUSSION

The following exceptions were submitted by the plaintiff to the special master’s report:

“(1) Pertaining to the issue of equitable distribution, the plaintiff files the following exceptions:

“(a) The master failed to equitably divide the marital estate by awarding only 48.7 percent of the marital estate to the plaintiff.

“(b) In light of the enumerated factors set forth in 23 Pa.C.S. §3 502(a)( 1-11), as they apply to the facts of the within case, the master erred in failing to award 65 percent of the marital estate to the plaintiff.

“(c) The master erred in failing to take into consideration the federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned pursuant to 23 Pa.C.S. §3502(a)(10.1), especially the income tax ramification to be borne by the plaintiff associated with the receipt of funds from Fidelity Investment account no. ********* an(j 50 percent of Fidelity Investments Bechtel NR Program Savings Plan.

“(d) The master erred in failing to recommend that the defendant name the plaintiff as the sole irrevocable beneficiary of his Bechtel term life insurance policy with a $50,000 face value and Metropolitan life insurance policy no. *****, with the defendant being required to pay any and all premiums, fees and costs associated with maintaining said policies during his lifetime.

“(2) Pertaining to the special master’s recommendation of alimony, the plaintiff makes the following exceptions:

“(a) The master erred in finding that the defendant’s monthly net income was $5,847 for purposes of calculating his alimony payments, as said income represents defendant’s income as of August 12, 2002, which is approximately five years prior to the date of the special master’s report.

“(b) The master erred in failing to calculate the defendant’s income by using current monthly net income from employment at Betchel Bettis Inc., as set forth in his 2006 Federal Income Tax Return, previously submitted to the master.

“(c) The master erred in failing to find that the defendant’s monthly net income for the purposes of determining his alimony obligation was $6,285.39.

“(d) The master erred in failing to conclude that in light of the plaintiff’s prior work history, earning capacity and current health condition, no income should be attributed to her for the purposes of calculating her monthly net income.

“(e) The master erred in failing to conclude that the defendant must pay a minimum of $2,524.12 or 40 percent of the difference between defendant’s monthly net income, excluding pension benefits, whichever is greater, as monthly alimony to plaintiff, until plaintiff receives Social Security retirement benefits.”

In his exceptions to the report of the special master, the defendant contends:

“(1) That the master erred in concluding that if the plaintiff did not survive to receive her 50 percent share of payments from the defendant’s Bechtel Bettis Inc. pension plan, then the benefit could go to a beneficiary named by the plaintiff in accordance with the plan.

“(2) That the master erred in recommending that the defendant have an obligation to provide COBRA benefits for the plaintiff until she receives Medicare.

“(3) That the master erred in recommending that the triggering event for a reduction in the obligation in alimony payments should be when the plaintiff receives Social Security retirement benefits.

“(4) That the master erred in requiring that in the event the defendant retires and receives Social Security benefits, the defendant is obligated to pay alimony in the amount of 40 percent of the difference between the defendant’s and the plaintiff’s monthly Social Security amount.

“(5) The master erred in recommending that the defendant pay all of plaintiff’s legal counsel fees related to the divorce proceeding.

“(6) That there is a typographical error in the special master’s report in section XIV, paragraph 11. Here, the report states that the defendant will receive a monthly pension benefit upon retirement of $44,647 per month, while in fact the correct amount is $4,647.02.

“(7) That the master committed a factual error at Item II, F. Here, the master found that the defendant agreed to pay the counsel fees of the plaintiff Wife.”

The provisions of the Divorce Code for alimony and equitable distribution provide the trial court with flexibility in resolving the economic fate of the parties upon divorce. Hess v. Hess, 327 Pa. Super. 279, 284, 475 A.2d 796, 799 (1984). The factors that are relevant in making a decision as to equitable distribution are enumerated in the Divorce Code under 23 Pa.C.S. §3502(a), and the factors relevant for determining alimony are enumerated under 23 Pa.C.S. §3701(b). Moreover, equitable distribution does not presume an equal division of marital property, and the goal of economic justice will often dictate otherwise. Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa. Super. 2004). Further, as a matter of law, although this court is not bound by the special master’s findings, a special master’s report is entitled to great consideration. Naddeo v. Naddeo, 426 Pa. Super. 131, 142, 626 A.2d 608, 614 (1993).

Initially, the plaintiff submits an exception to the special master’s recommendation regarding equitable distribution. The plaintiff contends that the master failed to adequately take into account the tax ramifications of the assets awarded to the plaintiff. Specifically, the plaintiff argues that she would incur significant tax liability in liquidating her interests in two of the retirement investment accounts.

Under the Divorce Code, included in the factors relevant to equitable distribution, are the tax ramifications associated with each asset, each party’s contribution to the education and training of the other party, and the contribution of each party to the acquisition and preservation of marital property during the marriage. 23 Pa.C.S. §3502(a). Upon review of the special master’s recommendation, it is clear that the master was fully aware of the possibility of a 25 percent reduction in value of the two retirement accounts due to tax ramifications. Additionally, the special master found that neither party contributed to the education and training of the other party, and that the defendant primarily contributed to the acquisition and preservation of marital property during the marriage. Since the special master’s recommendations on equitable distribution were based on relevant factors, in accordance with the Divorce Code, this court finds no reason to grant the plaintiff’s exception regarding the percentage of marital assets awarded in equitable distribution.

The plaintiff next submits an exception on the grounds that it was in error to distribute two life insurance policies to the defendant. The plaintiff argues that because she is substantially dependent upon the defendant as a source of income, it would be equitable to make her the sole beneficiary of both life insurance polices to financially protect her. This court notes that, under the Divorce Code, “[wjhere it is necessary to protect the interests of a party, the court may also direct the purchase of, and beneficiary designations on, a policy insuring the life or health of either party.” 23 Pa.C.S. §3502(d). Therefore, it would properly be within this court’s discretion to order a change in the beneficiary of the life insurance policies. However, in the present case, this court does not find any reason to disturb the recommendation of the special master. The special master was aware of the value of these life insurance policies, and gave consideration to the relevant factors of 23 Pa.C.S. §3502(d), including the tax ramifications associated with each asset, each party’s contribution to the education and training of the other party, and the contribution of each party to the acquisition and preservation of marital property during the marriage. Since this court gives great consideration to the findings of the special master, this court will not modify the distribution of the two life insurance policies.

The plaintiff also takes exception to the special master’s report on the grounds that it was error to base the monthly award of alimony, in the amount of $2,058, on the 2002 salary of the defendant. It is her contention that the defendant’s monthly salary has continually increased since that calculation was made, and a more recent base for the monthly alimony payment is necessary. Upon considering the special master’s report, this court does not find it necessary to adjust the monthly alimony amount. The special master’s findings indicate that he was aware that the defendant’s income had a pattern of increasing and would likely increase in the future. Consequently, the special master recommended an alternative method to calculate the defendant’s alimony payments in the event of an increase. According to the recommendation, the defendant should pay the greater of $2,058 monthly, or 40 percent of the difference between the defendant’s monthly net income, excluding pension benefits, and $700. Therefore, this court finds no error in the special master’s recommendation.

Also, concerning alimony, the plaintiff submits an exception to the special master’s recommendation challenging the finding that plaintiff’s monthly income capacity is $700. The plaintiff submits that because of her health problems, age and lack of a significant employment background, it would be equitable to reduce her monthly earning capacity to $0. In regard to health problems, the master found that the plaintiff suffered from some physical and mental afflictions, but overall was in fair health. Also, although the special master found that the plaintiff was incapable of supporting herself, he was aware that she once was employed stacking magazines. Given these findings, it appears that the special master gave consideration to the plaintiff’s limitations in obtaining employment to support herself, but found these limitations were not such that she had no earning capacity. Therefore, the plaintiff’s exception concerning the plaintiff’s earning capacity is denied.

Turning to the defendant, he raises an exception claiming that it was error for the special master to find that the plaintiff’s 50 percent share of the defendant’s monthly pension plan payment could go to a designated beneficiary in the event of the plaintiff predeceasing payment. Retirement pension benefits, vested or non-vested, are marital property subject to equitable distribution. Brown v. Brown, 447 Pa. Super. 424, 430, 669 A.2d 969, 972 (1995). In the present case, this court believes that because of the efforts of the defendant in acquiring and maintaining the pension benefits, due to his employment at Bechtel Bettis, it is equitable to place a limit on the person who may be eligible to receive a 50 percent share of the pension benefit should the plaintiff predecease payment. Therefore, this court finds it necessary to limit the beneficiary of the plaintiff’s share to only the issue, and his heirs, of the marriage between the plaintiff and the defendant. This will avoid the occurrence of having a third party, who has no relation to the marriage of the two parties, from obtaining a significant benefit that was primarily acquired and maintained during the parties’ marriage. In the event that the plaintiff and the defendant have no surviving issue, then the recommendation of the master shall be followed.

The next two exceptions presented by the defendant concern the reduction in defendant’s obligations to pay alimony and provide health insurance when the plaintiff starts receiving Social Security retirement benefits and Medicare. The defendant contends that the triggering event for both of these reductions should be when the plaintiff becomes eligible for Social Security retirement benefits and Medicare. In recommending the award of alimony, the special master considered several factors pursuant to 23 Pa.C.S. §3701(b), including the relative needs of the parties, the capability of each party of self-support, and the marital misconduct of the parties. The findings of the special master demonstrate that the master took into consideration the fact that the plaintiff was primarily dependent on the defendant and needed alimony to meet her daily living expenses, health care needs and retirement needs. Further, on the issue of marital misconduct, the special master found that the defendant admitted to having an affair which eventually drove the plaintiff away from the marriage. Since the special master’s recommendations were based on well-reasoned considerations, which are relevant to the issue of alimony pursuant to the Divorce Code, the defendant’s exceptions regarding the triggering events for reduction in alimony are denied.

The defendant’s next exception argues that the special master erred in recommending that upon his retirement and receipt of Social Security retirement benefits, he would still be required to pay monthly alimony in the amount of 40 percent of the difference between the defendant’s Social Security benefits and the amount of Social Security benefits to which the plaintiff is, or would be, eligible. His contention is that, in light of the significant pension benefit awarded in equitable distribution to the plaintiff, and which the plaintiff should receive upon his retirement, it will become unnecessary for the defendant to continue making alimony payments to the plaintiff. However, as previously discussed, the special master took into account many factors in making his recommendation of alimony, including the relative needs of the parties, the capability of each party of self-support, and the marital misconduct of the parties. Consequently, this court finds it unnecessary to alter the special master’s recommendations regarding a reduction in alimony.

Additionally, the defendant takes exception to the special master’s recommendation that the defendant pay all counsel fees incurred by the plaintiff. The defendant submits that, given the amount received by the plaintiff in equitable distribution, she is in a financial position to afford her own counsel fees. The purpose of awarding counsel fees in a divorce proceeding is to “enable the dependent spouse to maintain the action without being placed at a financial disadvantage.” Harasym v. Harasym, 418 Pa. Super. 486, 496, 614 A.2d 742, 747 (1992). Considering that the special master found the defendant to have a significantly higher earning potential, he recommended that a significant amount of assets be distributed to the defendant, including the marital residence, and found that the plaintiff is unable to meet her daily needs without the receipt of alimony, this court finds sufficient facts to draw the conclusion that the plaintiff was at a financial disadvantage. Therefore, this court concurs with the special master in awarding counsel fees to the plaintiff. Consequently, the exception must be denied.

Lastly, the defendant has two exceptions to factual findings of the special master’s report. First, the defendant points out that in section XIV, paragraph 11, it is stated that the defendant’s monthly income is $44,647.02. This court is of the opinion that this was a typographical error, and will grant the exception to allow the income to be changed to $4,647.02. The second exception of the defendant to the master’s determination, based on the plaintiff’s testimony, is that the defendant agreed to pay counsel fees of the plaintiff. In general, particular consideration should be given by a trial court towards the special master on issues of credibility. McBride v. McBride, 335 Pa. Super. 296, 298, 484 A.2d 141, 142 (1984). As the special master was in the best position to assess the credibility of each witness, this court will uphold the fact-finding of the special master on this issue.

Wherefore, we will enter the following order.

ORDER

And now, May 14, 2008, it is hereby ordered and decreed that the exception of the plaintiff to the special master’s report as to the share of marital property the plaintiff is entitled to under equitable distribution; the exception of the plaintiff as to the award of two life insurance policies to the defendant; the exception of the plaintiff as to the special master’s calculation of the defendant’s monthly alimony payments; and the exception of the plaintiff to the special master’s finding of income attributable to the plaintiff for the purpose of calculating alimony are denied.

Further, it is hereby ordered and decreed that the exception of the defendant to the special master’s report as to the option of the plaintiff to name a beneficiary for her share of the pension benefit of the defendant, in the event she predeceases its payment, is denied, except that it is ordered that only the issue of the marriage between the plaintiff and the defendant be permitted as a beneficiary. In the event that there is no surviving issue, then the recommendation of the master shall be followed.

Still further, the exception of the defendant as to the triggering event for reductions in the obligation of the defendant for alimony and to provide health insurance for the plaintiff; the exception of the defendant as to his alimony obligations after his retirement and receipt of Social Security retirement benefits; and the exception of the defendant as to the recommendation that the defendant pay the plaintiff’s attorney’s fees are denied.

Still further, the exception of the defendant to the special master’s report finding on the expected monthly pension benefit of the defendant is granted; and, therefore, and it is ordered that the expected monthly pension amount in section XIV, paragraph 11 is $4,647.02.

Still further, the exception of the defendant to the special master’s factual finding that the defendant agreed to pay the plaintiff’s counsel fees is denied.


author: WORTHINGTON, J,

text:
    Erb v. Erb

      Melissa R Rudas, for plaintiff.

      Ryan C. Blazure, for defendant.
    April 28, 2008
   WORTHINGTON, J,

— This matter comes before us on defendant Ellen Erb’s motion for summary judgment. The issue is whether plaintiff, Dennis Erb, released defendant from liability for injuries he sustained as a result of an accident, which he claims was either intentional or based on defendant’s negligence. The parties, currently divorced, had entered into a property settlement agreement which contained the release provisions upon which defendant is relying.

On August 30, 2004, plaintiff sustained injuries from a motor vehicle accident while attending a sporting event for one of his children. Specifically, the plaintiff alleges that the defendant ran over his foot with her vehicle and refused to immediately move the vehicle once she was made aware of the situation. Plaintiff filed a civil complaint on October 5,2005 alleging Count I — assault and Count II — negligence demanding an amount in excess of $50,000, punitive damages, interest, and costs.

On May 10, 2006, plaintiff filed his amended complaint. Defendant filed her answer and new matter to plaintiff’s amended complaint on June 21, 2006.

On April 13,2007, defendant filed a motion for leave to file amended new matter. Plaintiff filed his brief in opposition to said motion on June 11, 2007. On July 2, 2007, we granted defendant’s motion pursuant to Pa.R.C.P. 1033.

On July 18, 2007, defendant filed her amended new matter which raised the defense of release and several factual averments. Plaintiff filed his answer to defendant’s amended new matter on December 4, 2007.

On January 16, 2008, defendant filed her motion for summary judgment and praecipe for argument. Defendant filed her brief in support of said motion on February 19, 2008 and the plaintiff filed his response and brief in opposition on February 27, 2008.

Arguments on defendant’s motion for summary judgment were heard on March 3,2008. As such, defendant’s motion for summary judgment is now before us for consideration.

Pennsylvania Rule of Civil Procedure 1035.2 provides that a motion for summary judgment may be granted if:

“After the relevant pleadings are closed, but within such time as to not unreasonably delay trial; any party may move for summaiy judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which, in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

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 summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Company, 764 A.2d 59, 61 (Pa. Super. 2000). The moving party has the burden of proving the nonexistence of any genuine issue of material fact and the record must be viewed in the light most favorable to the non-moving party. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id. Entry of summary judgment is only proper where 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. Id.

In her motion, defendant argues that as a matter of law, there exists no genuine issue of material fact and that judgment should be entered in her favor because plaintiff has generally released all claims against her. To do this, we must first determine the purpose of the property settlement agreement and if a general release did in fact exist.

Settlement and release agreements are construed in the same manner as contracts generally. Nationwide Insurance Company v. Schneider, 906 A.2d 586, 595 (Pa. Super. 2006). The intention of the parties to a written release is paramount. Therefore, a settlement and release normally covers matters that can be fairly said to have been contemplated by the parties when the agreement was signed. A settlement and release agreement should be interpreted in a manner which “ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Id. Property settlement agreements incorporated but not merged into divorce decrees are considered independent contracts, interpreted according to the law of contracts. Chen v. Chen, 586 Pa. 297, 306, 893 A.2d 87, 93 (2006).

On November 18, 2004, in contemplation of their pending divorce, plaintiff and defendant entered into the agreement. The agreement contained a release clause which read, in pertinent part:

“It is the intention of Husband and Wife to give each other by the execution of this agreement, a full, complete and general release with respect to any and all property and obligations of any kind or nature, real, personal or mixed, which the other now owns or may later acquire, except for all rights and obligations arising under this agreement or for the breach of any provision of this agreement.” (Agreement, section II, K.)

Neither party nor their counsel made any reference to the possible accident claim within the agreement.

Also within the agreement a background and purpose section was included. Here, the parties agreed that the purpose of entering into such agreement was to “settle all of their respective property rights, claims, interests and causes of action under the Domestic Relations Code. ” (Agreement, section I, E.) (emphasis added)

From this language, we conclude that the parties intended that the agreement only deal with issues arising from their marriage and pending divorce. The objects to be accomplished by the agreement were to settle all of the parties’ respective property rights, claims, interests and causes of action relating to the marriage. As the release section is part of the agreement, we must interpret it in the same way. The release section included in the agreement did not act as a general release to all claims, but was more limited in scope, dealing only with matters that arose from the marital relationship.

The only issue left now is to determine whether plaintiff’s claim arose during the marital relationship. If we find that it did, the claim is one that was contemplated within the agreement and as a result, will be released.

As a general rule, “marital property” means:

“(a) ... all property acquired by either party during the marriage and the increase in value of any nonmarital property acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection (a.l). However, marital property does not include: ...

“(4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets ...

“(b) Presumption. — All real or personal property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a).” 23 Pa.C.S.§3501.

Only property acquired prior to the date of final separation is marital property and therefore subject to equitable distribution. McCoy v. McCoy, 888 A.2d 906, 910 (Pa. Super. 2005). Property acquired after separation is nonmarital. Oaks v. Cooper, 536 Pa. 134, 142, 638 A.2d 208, 212 (1994). The law regarding a personal injury claim and when it arose is no different.

In the case at bar, plaintiff and defendant separated on December 12, 2003 and plaintiff filed a complaint in divorce on March 3, 2004. The accident which gave rise to plaintiff’s personal injury claim took place on August 30, 2004. If the accident had occurred during the marriage, we would have no problem stating that it was contemplated by the agreement and therefore, would be released. But our facts indicate that the accident occurred almost eight months after the parties were separated. Since the right to the claim arose after the date of separation, it would not be considered a claim that was contemplated during the marriage and therefore, not within the agreement. As such, the agreement does not act as a bar against plaintiff from filing his cause of action.

Because we determine that the personal injury claim was not one that was contemplated by the agreement, there still exists a genuine issue of material fact. Defendant’s motion for summary judgment is denied.

Accordingly, we enter the following:

ORDER

And now, April 28,2008 defendant’s motion for summary judgment is denied.


author: PARISI, J,

text:
    Commonwealth v. Ervin

      Craig Scheetz and Adrian Schuka, for the Commonwealth.

      Michael K. Hollinger, for defendant.
    April 21, 2008
   PARISI, J,

— On July 6,2007, Samuel Ervin, defendant, pled guilty to one count of rape of a child on docket number CP-06-CR-3005-2006, and an additional count of rape of a child, as well as four counts of aggravated indecent assault of a child on docket CP-06-CR-4522-2006. He was subsequently classified as a sexually violent predator at a stipulated hearing on October 15, 2007. On January 3, 2008, the defendant was sentenced to an aggregate of 36 to 88 years of incarceration: six to 20 years on each rape charge and six to 12 years on each aggravated indecent assault charge. The defendant now appeals his sentence, alleging that this court committed several errors:

(1) The trial court committed an abuse of discretion by imposing a sentence that was greater than requested by the Commonwealth;

(2) The trial court committed an abuse of discretion in sentencing the defendant by failing to take into consideration the significant amount of cooperation of the defendant;

(3)The trial court committed an abuse of discretion by inaccurately crediting the Commonwealth with taking into consideration defendant’s cooperation and lack of re-victimization when the Commonwealth rendered its recommendation, where the record is devoid of any such consideration by the Commonwealth;

(4)The trial court committed an abuse of discretion by failing to take into consideration the nature of the acts committed when sentencing the defendant; specifically, sentencing defendant to consecutive six-year sentences on rape as well as the same consecutive six years on the lesser offenses (both legally and factually) of aggravated indecent assault of a child;

(5)The trial court committed an abuse of discretion by inappropriately running the lesser offenses consecutively rather than concurrently, considering defendant’s overall cooperation with the police and judicial system;

(6)The trial court committed an abuse of discretion by failing to sentence defendant to an appropriate sentence after recognizing that defendant was truthful in his statements to the court and after recognizing that some of the rulings may not necessarily be fair to the defendant; and

(7)The trial court committed an abuse of discretion in that the court failed to take into consideration that, although a serious crime, other individuals have committed worse offenses and received less time.

All of the defendant’s charges of error go to the discretionary aspects of his sentence. In challenging the discretionary aspects of a sentence, an appellant must present a substantial question. 42 Pa.C.S. §9781(b). An appeal of the discretionary aspects of sentencing presents a substantial question only where the “appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the Sentencing Code or contrary to fundamental norms which underlie the sentencing process.” Commonwealth v. Urrutia, 439 Pa. Super. 227, 236, 653 A.2d 706, 710 (1995). If a sentence is within the statutory guidelines, a substantial question can be raised as to excessiveness only if the sentence is “so manifestly excessive as to [constitute] too severe a punishment.” Commonwealth v. Mouzon, 571 Pa. 419, 430, 812 A.2d 617, 624 (2002). Similarly, a substantial question is generally not presented by challenges to consecutive sentences or by claims that the trial court improperly discounted mitigating factors. Commonwealth v. Johnson, 873 A.2d 704, 709 n.2 (Pa. Super. 2005); Commonwealth v. Lopez, 426 Pa. Super. 625, 630, 627 A.2d 1229, 1231-32 (1993). Given these standards, the defendant asserts no substantial questions worthy of appellate review.

If the appellate court finds a substantial question has been raised, the standard for review is well settled: “Sentencing is a matter vested in the sound discretion of the sentencing court whose judgment will not be disturbed on appeal absent an abuse of discretion.” Commonwealth v. Harclerode, 768 A.2d 1132, 1134 (Pa. Super. 2001) (quoting Commonwealth v. Adams, 760 A.2d 33, 39 (Pa. Super. 2000)). An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that “the judgment exercised [was] manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.” Commonwealth v. Kocher, 529 Pa. 303, 306, 602 A.2d 1308, 1310 (1992). By contrast, “where the record [strongly indicates] that the lower com! was aware of the relevant sentencing considerations and attempted to weigh them appropriately, appellate courts are not free to interfere arbitrarily.” Commonwealth v. Semuta, 386 Pa. Super. 254, 261, 562 A.2d 894, 897 (1989) (citing Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988)). This rule of deference applies even where a sentence exceeds the sentencing guidelines, as long as the sentence is within the statutory limits and the court states valid grounds for the sentence. See e.g., Commonwealth v. Martin, 416 Pa. Super. 507, 611 A.2d 731 (1992) (ratifying a trial court’s upward departure from the “advisory” sentencing guidelines).

In accordance with this rule of deference, the Superior Court has preserved lengthy sentences in cases of sexual abuse. Commonwealth v. Gaddis, 432 Pa. Super. 523, 639 A.2d 462 (1994); Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587 (1992). For example, in Gaddis the defendant received an aggregate sentence of 235 to 470 years, primarily on charges related to child sexual abuse. Gaddis, supra at 529, 639 A.2d at 465. Even though this was effectively a life sentence, the Superior Court considered the circumstances of the case and determined that the sentence was not excessive to the point of rising to the level of stating a substantial question. Id. at 537-38, 639 A.2d at 469-70. Similarly, in Jones the trial court sentenced the defendant to 50 to 100 years of incarceration on charges arising out of his sexual involvement with 14 boys, aged 4 to 15. Jones, supra at 97, 613 A.2d at 587. The Superior Court noted that the defendant had been charged with enough crimes to merit up to 710 years of incarceration if sentenced in the standard range on each count. Id. at 106, 613 A.2d at 593. More importantly though, the Superior Court invoked factors enumerated in the Sentencing Code as justifying the lengthy sentence: the defendant’s danger to the public, his need for treatment, and the seriousness of the offenses. Id. at 107, 613 A.2d at 593-94 (citing 42 Pa.C.S. §9725).

In the defendant’s case, the same factors warranted a strict sentence. At sentencing, this court primarily weighed the danger presented by the defendant against the possibility of a future breakthrough in rehabilitation for sexual offenders. The nature of the offenses, the singular vulnerability of the pre-school-age or mentally-retarded victims, and the defendant’s horrific violation of the victims’ trust- — he was their teacher at a day-care center — profoundly demonstrated the threat posed by the defendant. Even considering the defendant’s cooperation and displays of contrition, the circumstances of the case made even a sentence beyond the aggravated range reasonable. However, recognizing the possibility of progress in sexual offender treatment, this court left open the chance of release in 36 years. The defendant’s sentence fell completely within the sentencing guidelines, the rape sentences within the standard range and the aggravated indecent assault sentences within the aggravated range. Moreover, this court took into account all the testimony and evidence provided at and before the sentencing hearing, including non-hearsay portions of the Megan’s law report, and so stated on the record.

Additionally, the defendant impliedly argues that some of the sentences should have been imposed concurrently. Considering that each count was with regard to a separate victim, this would have been inappropriate in the opinion of the trial court.

Given the circumstances of the case and the considered approach of this court, the defendant’s sentence was well within this court’s discretion and does not merit change on appeal.

For the foregoing reasons, it is respectfully requested that the defendant’s appeal of sentence be denied.


author: MELLON, J,

text:
    Clark v. PennDOT

      Nancy Larkin Taylor, for plaintiffs.

      Alton Grube, for Commonwealth.
    March 13, 2008
   MELLON, J,

— Plaintiffs appeal this court’s grant of a compulsory nonsuit, entered in favor of the Commonwealth defendant, Pennsylvania Department of Transportation on December 5, 2007.

Plaintiffs filed this action on June 27, 2003 against PennDOT to recover for damages sustained when a tree fell on plaintiffs’ vehicle. PennDOT joined as additional defendants, homeowners Karl and Edeltraud Miller. Plaintiffs subsequently added Warrington Township as a defendant in this case.

On November 28,2007, trial commenced in the Bucks County Court of Common Pleas. Prior to the commencement of trial, plaintiffs settled with the homeowners. The case proceeded to trial against both Warrington Township and PennDOT.

At the close of all the evidence, on or about December 5, 2007, PennDOT moved for a compulsory nonsuit pursuant to Pa.R.C.P 230.1. Plaintiffs contend that the facts of this case fall within the real estate exception of 42 Pa.C.S. §8522(b)(4). The court found that 42 Pa.C.S. §8522(b)(4) was inapplicable in the instant case because plaintiff Daniel Clark’s injuries were not caused by a condition of the government realty itself deriving, originating from, or having the realty as its source. Accordingly, PennDOT’s motion for compulsory nonsuit was granted.

Plaintiffs appeal this court’s grant of PennDOT’s motion for compulsory nonsuit. This opinion follows pursuant to Pa.R.A.P 1925(b).

FACTUAL AND PROCEDURAL BACKGROUND

On July 19,2002, plaintiffs were traveling westbound on Street Road, a state highway located in Warrington Township, Bucks County, Pennsylvania at approximately 6:30 p.m. That evening, there was a fast-moving summer storm with high winds, torrential rain, lightening and thunder. As the plaintiffs were approaching the intersection of Street Road and Griffiths Road, a tree located on the homeowners’ property snapped and fell into Street Road, striking the plaintiffs’ car. The falling tree impacted and crushed the roof of the vehicle. This required both plaintiffs to be extricated from the vehicle. Debra Clark’s passenger, son Daniel, was non-responsive after the collision. Daniel was later rendered a paraplegic.

The tree in this case stood on the homeowners’ property and not within PennDOT’s right-of-way. PennDOT’s right-of-way is measured 16.5 feet in either direction from the center line of Street Road, for a total of 33 feet. In our case, due to high winds, the tree snapped from its trunk approximately 18.5 feet away from the edge of PennDOT’s right-of-way on Street Road and approximately 35 feet away from the center line of Street Road.

Plaintiffs contend that the tree in this case is within PennDOT’s right-of-way since there was an overhanging tree limb above PennDOT’s right-of-way on Street Road. In support, plaintiffs rely on the testimony of the homeowner who allegedly called PennDOT to inform them of this allegedly dangerous limb which overhung PennDOT’s right-of-way at a 30-degree angle. Upon review, the record at trial was devoid of any evidence that any tree limb which overhung PennDOT’s right-of-way separated from this tree and impacted the vehicle which caused Daniel Clark’s injuries. Rather, the evidence established that the tree separated from its trunk and fell as a single unit from the homeowners’ property.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Pursuant to Pa.R.A.P. 1925(b), Plaintiffs filed a concise statement of matters complained of on appeal on or about February 7, 2008.

On appeal, plaintiffs present the following issue:

“(1) The court erred in deciding as a matter of law and removing from the jury’s consideration, the issue of whether, under the circumstances and given the testimony that PennDOT was warned of the danger and the testimony of its former employees, the tree and limb constituted a dangerous condition of Commonwealth real estate, bringing the condition within the waiver of sovereign immunity of 41 Pa.C.S. §8522(b)(4).”

DISCUSSION

A. This Court Finds That PennDOT Is Entitled to Sovereign Immunity Under Pennsylvania Law Because Plaintiff Has Failed To Prove That the Tree Is Located on Commonwealth Property

The standard of review in determining the propriety of the entry of a nonsuit is well settled: a judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. Based on the following, this court granted PennDOT’s motion for a compulsory nonsuit.

The Commonwealth parties, including PennDOT, are entitled to sovereign immunity unless the cause of action falls within the strictly construed exceptions defined in 42 Pa.C.S. §8522. Plaintiffs contend that this case falls within the real estate exception and applies because this action involves an allegedly dangerous condition of PennDOT’s right-of-way. Specifically, liability is imposed under 42 Pa.C.S. §8522(b)(4) if:

“(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

“(4) Commonwealth real estate, highways and sidewalks.- — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).”

The 2001 Pennsylvania Supreme Court case Jones v. SEPTA is the leading case which defines this applicable standard in imposing liability on a Commonwealth party, such as PennDOT, under the Sovereign Immunity Act’s real estate exception. In Jones, the court concluded that liability depends on the “legal determination that an injury was caused by a condition of the government realty itself deriving, originating from, or having the realty as its source(emphasis added)

The Commonwealth Court’s decision in Marker v. Commonwealth of Pennsylvania aptly enunciates this standard:

“[T]he characterization of the real estate from which a dangerous condition derives or originates from is material. If the real estate in question from which the dangerous condition derives, originates from, or has as its source, is not Commonwealth realty, then the Commonwealth cannot be held liable under the real estate exception to sovereign immunity.”

Applying this standard to the facts before us, it is clear that the tree which fell during the wind storm did not derive, originate from, or have as its source, the Commonwealth realty. It was undisputed that the portion of the tree which failed was on the homeowners’ property. The mere fact that a branch or limb of the tree overhung the state highway is insufficient to impose liability on PennDOT. There was no evidence that any portion of the tree which overhung the state highway created a dangerous condition. The undisputed evidence establishes that the dangerous condition of the diseased tree failed from its trunk. The trunk of this tree was not located on Commonwealth realty. Therefore, plaintiffs have failed to satisfy the terms of the Sovereign Immunity Act’s real estate exception.

B. Plaintiffs’ Failure To Establish That the Tree Was on Commonwealth Property Is Fatal to Their Claim

Plaintiffs principally argue that the tree in this case was a dangerous condition because a limb of this tree overhung a portion of PerinDOT’s right-of-way. Plaintiffs rely on the testimony of homeowner Karl Miller who testified that he was concerned about a large limb overhanging the road. Plaintiffs correspondingly argue that PennDOT failed to remove this allegedly dangerous limb in contravention of their operational duties set forth in chapter 13 of their maintenance manual. Each argument will be evaluated in turn.

First, despite plaintiffs’ concession that the tree in this case failed from its trunk 35 feet from the center line on Street Road, plaintiffs nonetheless argue that an overhanging limb within PennDOT’s right-of-way is sufficient to effectuate a waiver of sovereign immunity. Such an argument is clearly a red-herring and irrelevant to the case at bar. Our Supreme Court found in Snyder v. Harmon that the real property exception to the Sovereign Immunity Act must be strictly construed such that any dangerous condition must exist from “Commonwealth agency real estate.” Thus, any dangerous condition “must derive, originate from, or have as its source, the Commonwealth realty.”

In our case, it is clear that the allegedly dangerous condition is the trunk of the tree located outside PennDOT’s right-of-way. Therefore, crediting any weight to plaintiffs’ argument would be contrary to all of the record evidence. At trial, plaintiffs could not identify any particular branch or limb which allegedly caused Daniel Clark’s tragic injuries. In fact, quite the opposite was gleaned. Debra Clark testified that she now knows it was a “whole tree” which fell on her car, not just a branch she previously thought she saw as she passed the intersection of Griffiths and Street Roads. Further, police officers at the scene could not identify any particular branch or limb which fell on plaintiffs’ vehicle as parts of the tree were scattered all over Street Road. The indisputable evidence in this case is that the tree snapped from its trunk 11 feet off the ground and 18.5 feet away from the edge of PennDOT’s right-of-way. Thus, the snapping point of the tree, allegedly creating the dangerous condition, was well outside PennDOT’s right-of-way. In strictly construing the allegedly dangerous condition causing Daniel Clark’s injuries, plaintiffs’ argument fails.

Likewise, plaintiffs’ second argument similarly fails. Plaintiffs argue that PennDOT failed to remove this allegedly dangerous limb which overhung PennDOT’s right-of-way on Street Road in violation of their maintenance manuals which require any dead, weakened or decayed trees and limbs within its right-of-way which constitute a dangerous condition to be removed.

In evaluating this argument, it is clear that plaintiffs’ argument is misplaced and misguided. PennDOT’s respective duties under its maintenance manuals only become relevant when plaintiffs have satisfied the threshold legal inquiry that there be a “dangerous condition” of Commonwealth realty. Our courts have consistently held that liability depends, first, “on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source, and, only then, the factual determination that the condition was dangerous.” (emphasis added) Plaintiffs continually argue that “liability is premised on its failure to correct a dangerous condition of which PennDOT knew.” Under Pennsylvania law, such is an untenable position.

In Marker v. Commonwealth of Pennsylvania, our Commonwealth Court refused to evaluate PennDOT’s duties under its maintenance manuals since plaintiffs could not show that the allegedly dangerous condition was “of Commonwealth realty.” The court rejected plaintiff’s contention that PennDOT was liable “based on a responsibility to inspect property outside its legal right-of-way located adjacent to state highways for potential hazards to the motoring public.”

In our case, it is clear that plaintiffs have failed to satisfy the threshold legal inquiry since plaintiffs have failed to prove that the trunk of the tree in question causing Daniel Clark’s injuries derived, originated from, or has as its source, Commonwealth property. Since plaintiffs have failed to show that the allegedly defective trunk of the tree was a “dangerous condition of Commonwealth realty,” no further examination of PennDOT’s duties is warranted.

Assuming arguendo that the overhanging limb in this case is determined to be a dangerous condition, this court found that PennDOT would still be entitled to a compulsory nonsuit because plaintiffs have failed to establish a prima facie case. Specifically, plaintiffs have failed to establish a causal connection between this overhanging limb and Daniel Clark’s tragic injuries. The evidence at trial was clear that the tree in question, causing Daniel Clark’s injuries, failed from its trunk on the homeowners’ property. To the contrary, there was no evidence in the record to support plaintiffs’ argument that an overhanging limb over PennDOT’s right-of-way was the cause of Daniel Clark’s injuries.

CONCLUSION

A judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. Since plaintiffs have failed to show that the tree in question was located on Commonwealth property, this court granted PennDOT’s motion for compulsory nonsuit pursuant to Pa.R.C.P 230.1.

      . After PennDOT’s motion for compulsory nonsuit was granted, Warrington Township settled with the plaintiffs.

      . Pl. compl. ¶¶6, 12.

      . N.T. 7:14-19. “We had a fast-moving storm that developed shortly, approximately a half-hour before that. It was high wind. It’s one of those summer-type thunderstorms where it got real dark, high winds, torrential downpours, lightening, thunder. It was a real torrential storm.” Testimony of Officer Friel.

      . N.T. 11:13-19 (Nov. 29, 2007). Testimony of Officer Daniel Friel. Debra Clark testified that as she was traveling westbound on Street Road, she thought a large limb fell from the tree in question. N.T. 14:15-22. Debra Clark further testified that she now knows it was a “whole tree.” N.T. 18:4-7 (December 3, 2007).

      . N.T. 8:18-19 (Dec. 4, 2007). Testimony of Officer John Blanchard.

      . N.T. 17:10-18 (Dec. 3,2007). Testimony of Debra Clark.

      . Pl. compl. ¶15. Warrington Township and the plaintiffs dispute whether the tree in question was located on Warrington Township’s right-of-way. Plaintiffs contended at trial that Warrington Township’s right-of-way extended 40 feet from the center line of Street Road by virtue ofthe township’s acceptance of a subdivision plan in 1955. Thus, plaintiffs argue that the tree in this case is located on Warrington Township’s right-of-way since the tree was located 35 feet from the center line of Street Road. In response, Warrington Township contended that there was no “actual documentation” to demonstrate the official acceptance and dedication of this right-of-way. Prior to resolution of this issue, Warrington Township and plaintiffs settled. Therefore, this appeal focuses solely on the purported liability of the Commonwealth defendant, PennDOT.

      . The 18.5 feet distance is calculated by subtracting the location of the tree from the center line (35 feet) from the 16.5 foot distance of the right-of-way from the center line.

      . N.T. 17:8-15 (Dec. 4,2007). Testimony of David Riley.

      . N.T. 13 (Nov. 29, 2007). Testimony of Karl Miller.

      . The applicable statute is 42 Pa.C.S. §8522(b)(4).

      . Kramer v. Port Authority of Allegheny County, 876 A.2d 487 (Pa. Commw. 2005).

      . Jones v. SEPTA, 565 Pa. 211, 217, 772 A.2d 435, 439 (2001). “Subsection 8522(b) then delineates the specific instances in which the defense of sovereign immunity may not be raised.”

      . Id. at 226, 772 A.2d at 444.

      . Marker v. PennDOT, 677 A.2d 345, 348 (Pa. Commw. 1996).

      . N.T. 21:4-14 (Nov. 29,2007). Testimony of Karl Miller.

      . N.T. 21 (Nov. 29.2007). Testimony of Karl Miller. Karl Miller testified that a branch, eight inches in diameter, allegedly went halfway across Street Road at a 30-degree angle. N.T. 13 (Nov. 29, 2007).

      . Chapter 13 of PennDOT’s Roadside Maintenance Manual at section 13.6 reads:
      “Any dead, weakened or decayed trees and limbs within the right-of-way which constitute a dangerous condition of the state highway (as verified by the district roadside specialist) shall be scheduled for removal. 36 Pa.C.S. §670-410.

      . Snyder v. Harmon, 522 Pa.424, 433, 562 A.2d 307, 311 (1989). In this Supreme Court decision, several people were injured when they fell off a high wall into a strip mine located 12 feet from a Commonwealth highway. Since the allegedly dangerous strip mine was located some distance away from the Commonwealth’s right-of-way, our Supreme Court determined that the mine did not derive, originate from, or have as its source, the Commonwealth realty. Accordingly, our Supreme Court reinstated the lower court’s order granting PennDOT’s motion for summary judgment.

      . Id

      . N.T. 18:4-7 (Dec. 3,2007). Testimony of Debra Clark. Q: “What hit the car, do you know?” A : “I know now. I didn ’t know — at that time I thought it was half the branch that I saw. Now I know the whole tree hit the car.”

      . N.T. 9:23-10:1 (Dec. 4. 2007). Testimony of Officer John Blanchard. Q: “So between his actions and the actual impact itself, were parts of the tree scattered all over?” A: “Yes. They were all over.”

      . Jones, 565 Pa. at 221, 772 A.2d at 441, citing Finn v. City of Philadelphia, 541 Pa. 596, 605, 664 A.2d 1342, 1346 (1995). Our Supreme Court in Jones found that their decision in that case was entirely consistent with the decision in Finn.

      . Plaintiffs’ brief in response to defendant PennDOT’s motion for compulsory nonsuit, 5.

      . Marker v. PennDOT, 611 A.2d 345, 349 (Pa. Commw. 1996). Plaintiffs will likely rely on the Marker decision for the proposition that evidence of an overhanging limb within PennDOT’s right-of-way is sufficient to bring about a waiver of sovereign immunity. However, that case involved a lack of any evidence discerning the location of the allegedly dangerous tree. In our case, however, the location of the allegedly dangerous condition is clear: 18.5 feet from the edge of PennDOT’s right-of-way and 35 feet from the center line of Street Road.

      . Id.

      . See Mailey v. SEPTA, 104 Fed.Appx. 224 (C.A.3 Pa. 2004) (finding that to prevail under the real estate exception to sovereign immunity, it must be shown that some defect or dangerous condition in the property itself directly caused his injuries) citing Jones v. SEPTA, 565 Pa. at 226, 772 A.2d at 443-44.

      . Kramer, 876 A.2d 487 (Pa. Commw. 2005).