author: WETTICK, J.,

text:
    In re Petition of Jacobs

      Robert L. Monks, for petitioner.

      Richard M. Rubenstein, for AEGON Structured Settlements Inc. and Monumental Life Insurance Company.
    July 1, 2006
   WETTICK, J.,

Petitioner has filed an appeal to the Superior Court from an April 25, 2006 order of court which I entered denying her petition to transfer structured settlement payment rights filed pursuant to the Structured Settlement Protection Act, Act of February 11, 2000, P.L. 1, no. 1, 40 P.S. §4001 et seq. This opinion setting forth the reasons for my ruling is filed pursuant to Pa.R.A.P. 1925.

Section 3(a) of the Structured Settlement Protection Act, 40 P.S. §4003 (a), provides that no transfer of structured settlement payment rights shall be effective unless the payee has filed a petition requesting such transfer and the petition has been granted by a final order of court. Under paragraph 3 of section 3(a), a court cannot grant the petition without a finding that “the payee has established that the transfer is in the best interests of the payee or his dependents.”

In the case of In re Johnny Bush, 152 P.L.J. 207, 208 (2004), I stated that under the Structured Settlement Protection Act, the issue is not whether the petitioner is a competent adult who understands the transaction; instead, this legislation compels a court to make an independent determination that the transfer is in the best interests of the petitioner:

“I find to be persuasive the description of the role of the court set forth in a memorandum written by Honorable Gene D. Cohen of the Court of Common Pleas of Philadelphia County, no. 03714, September Term 2003, In re Petition To Transfer Structured Settlement Payment Rights of Mario Curto.
“In that case, the petitioner sought court approval to permit the purchase for $25,000 of an annuity valued at $38,627. The court stated that the Structured Settlement Protection Act places the burden on the petitioner to establish that the transfer is in the petitioner’s best interests:
“In a sense, the Structured Settlement statute places the court in the position of a guardian of a person who stands in the presumptive position of the defenseless recipient of a benefit. It is for the court to determine, as a guardian would, on an independent basis, whether the transaction serves the best interests of an unsophisticated (if not incompetent) person. Pp. 2-3.
“The intent of the Structured Settlement Protection Act, according to this court, ‘is to ensure that an otherwise financially defenseless and possibly injured individual would receive a regular, sustaining source of income. Unless the factual record sufficiently supports a compelling and reasonably informed necessity that the plaintiff receive a lump sum discounted payment, this court is reluctant to approve any petition akin to the one before it on the thin record offered in support’ (p. 4). Using this standard, the court ruled that the proposed transfer would operate against the best interests of the petitioner because it would be hazardous to the petitioner’s future to entrust him with a lump sum payment rather than receipt of regular payments.
“Also see In re William Macumber, no. 151 O.C. 2003, Common Pleas Court of Monroe County, where Judge O’Brien concluded that a proposed transfer was not in the petitioner’s best interests:
“The discount rate being charged by 321 Henderson Receivables Limited Partnership is in excess of any interest rate allowed under Pennsylvania law and the payee did not give any coherent or rational reasons for entering into such a bad bargain at this time. The circumstances underlying the present petition are dramatic evidence of the wisdom of the legislature in enacting the ‘Structured Settlement Protection Act.’”

The most comprehensive discussion of legislation governing transfers of structured settlement payment rights is set forth in a memorandum and order issued in In re Theresa Fee, no. 06 CV 1423 (Lacka. Cty. 6/30/06). In this memorandum, Judge Nealon describes the reasons for the enactment of this legislation and the criteria to be considered in making the determination of whether a transfer is in the payee’s best interests.

I require a petition to transfer structured settlement payment rights to contain the information that a court needs to consider in making a determination as to whether the proposed transfer is in the best interests of the payee. I review the petition before scheduling a hearing. If the petition contains insufficient information, I deny the petition in a court order which briefly describes what needs to be addressed in any amended petition that the petitioner may seek to file. If the petition contains factual allegations that preclude me from finding that the transfer is in the payee’s best interests, I deny the petition in a court order which briefly describes my reasons for denying the petition. If the petition, on the other hand, sets forth sufficiently detailed factual allegations that, if established, may support a finding that the transfer is in the payee’s best interests, I schedule a hearing on the petition.

At the time my April 25,2006 court order was entered in these proceedings, it was left to a petitioner to prepare a petition that included the information that a court needed to consider in order to determine whether the transfer would be in a payee’s best interests. In early May 2006,1 prepared and made available to counsel for petitioners a document entitled Requirements of Judge Wettick for Petitions to Transfer Structured Settlement Payment Rights, which is attached to this opinion as attachment 1.

The petition that is the subject of this litigation avers that petitioner was injured in an accident in May 1985. In June 1987, she entered into a settlement agreement with the tort-feasor’s insurance company which provided for petitioner to receive the following payments:

“The agreement provided for the following payments to petitioner: 60 monthly payments each in the amount of $ 1,900 beginning with the payment on July 1, 1987, through and including June 1, 1992; 60 monthly payments each in the amount of $2,150 beginning with the payment on July 1, 1992, through and including June 1,1997; 60 monthly payments each in the amount of $2,400 beginning with the payment on July 1, 1997, through and including June 1, 2002; 60 monthly payments each in the amount of $2,650 beginning with the payment on July 1, 2002, through and including June 1, 2007; 240 monthly payments each in the amount of $2,900 beginning with the payment on July 1, 2007, through and including June 1, 2027, and monthly payments each in the amount of $2,900 for the rest of petitioner’s lifetime thereafter; and lump sum payments of $10,000 due on June 1, 1992; $20,000 due on June 1, 1997; $40,000 due on June 1, 2002; $80,000 due on June 1, 2007; $120,000 due on June 1, 2012; and $150,000 due on June 1, 2017.” Petition ¶2 at 1-2.

In the proposed transaction that is the subject of these proceedings, petitioner would be assigning (i) 180 monthly payments in the amount of $1,450 per month, beginning on March 1, 2008 and extending through a February 1, 2023 payment, (ii) a payment of $75,000 from the $120,000 lump sum payment due on June 1, 2012, and (iii) a payment in the amount of $ 100,000 from the $150,000 lump sum payable on June 1, 2017. The petition alleges that the gross amount payable to petitioner in exchange for the transferred payments is $143,000. (tlO.e at 5.) According to the petition, the effective annual discount rate for this transaction is 13.97 percent. (¶11 at 6.)

Petitioner alleges that she is 39 years old, married, and has two children. (Petition exhibit D, ¶¶1 and 5 at 1.) Her husband is employed as a service technician and earns approximately $34,000 per year. (Exhibit D, ¶6 at 1.) However, he was injured on the job and was unable to work; he may require surgery which would mean he would miss additional work. Past-due bills are getting further behind. Petitioner has been turned down for consolidation and home equity loans. With the proceeds, petitioner intends to pay off all outstanding bills, loans, medical, and orthodontia expenses, and other debts including property taxes of nearly $2,000. These debts are in excess of $54,000. Also, her home is in need of a new furnace, roof repairs, and repairs due to water damage to the basement. (Exhibit D, ¶12 at 2.)

The petition that is the subject of this litigation does not refer to prior proceedings at GD05-017254 in which, in a memorandum and order of court dated November 10, 2005, I denied an amended petition by the same petitioner to transfer structured settlement payment rights. In the prior petition, petitioner sought to transfer $100,000 of the $120,000 lump sum payment payable on June 1,2012 and $130,000 of the $150,000 lump sum payment payable on June 1, 2017 in exchange for a net amount of $62,266. The reason given for the transfer was the petitioner’s husband was injured at work in June 2005 and the lump sum would be used to pay debts of approximately $56,000.

I denied the petition for the following reason:

“It appears that petitioner will receive a lump sum payment of $80,000 on June 1,2007 and that the sale of this payment at the effective interest rate of 15.45 percent will produce the funds which petitioner seeks. Therefore, I cannot make an express finding that it has been established that the proposed transaction described in the petition is in the best interests of petitioner.” In re Michelle Junecko-Jacobs, no. GD05-017254 at 3 (Allegheny Cty., 11/10/05).

The petition that is the subject of this litigation alleges that previously petitioner entered into a purchase agreement with a different structured settlement purchasing company where she transferred her right to receive the lump sum payment of $80,000 due on June 1, 2007, as well as her monthly payments to March 2008. (¶6 at 3.) Petitioner does not provide any details as to when the transaction occurred, the amount of money that she received, or what she did with this money.

The April 25, 2006 court order that I entered in the current proceedings reads as follows: “Petition is denied; there is no explanation as to the circumstances of the prior transfer or any showing that the funds from the prior transfer were prudently used-petitioner’s best interests are served by preserving an income stream.”

I entered the April 25,2006 court order because I could not make a finding that the transfer of $75,000 payable on June 1, 2012 and $100,000 payable on June 1, 2017 to pay the same debts referred to in the 2005 amended petition would be in petitioner’s best interests without an explanation regarding petitioner’s use of the proceeds from the sale of the June 1, 2007 lump sum payment of $80,000 and her entire monthly payments through February 2008.

Also, petitioner was no longer seeking to transfer only these two lump sums, which would produce a payment to her in excess of the amount of her indebtedness. She was also seeking to transfer one-half of her tax-free income stream for the next 15 years in a transaction that would result in a net payment of $143,000. There was no explanation in the petition as to the use that would be made of the substantial balance that would remain after payment of debts and making repairs to the house.

I recognize that in paragraph 12 exhibit D, petitioner alleges that her husband had been out of work because he was injured on the job and that if his injury requires surgery, he will be out of work again.1 also recognize that petitioner previously assigned her monthly payments through February 2008. However, I was not presented with a petition (or an amended petition) requesting the sale of a lump sum payment that would produce only sufficient funds to replace the income stream through February 2007 that petitioner previously transferred. Instead, I was presented with a petition in which petitioner sought to give up one-half of her tax-free monthly income stream of $2,900 from March 2008 through February 2023. These monthly tax-free payments of $2,900 are equivalent to monthly earnings of approximately $4,000 (15 percent federal tax, 6 percent state and local taxes, and 7 percent Social Security).

In the statement of matters complained of on appeal, petitioner’s counsel contends that I erred as a matter of law by denying petitioner’s petition to transfer without first scheduling and holding a hearing. It is the position of petitioner that under 40 P.S. §4004, a court can never deny a petition without scheduling and holding a hearing. Paragraph 4 at 2-3 of the statement quotes this provision as follows:

“The court of common pleas of the judicial district in which the payee is domiciled shall have jurisdiction over any petition as required under section 3 for a transfer of structured settlement payment rights. Not less than 20 days prior to the scheduled hearing on any petition for authorization of a transfer of structured settlement payment rights under section 3, the payee shall file with the court and serve on the transferee a notice of the proposed transfer and the application for its authorization, including in such notice a copy of the payee’s petition to the court, a copy of the transfer agreement, a copy of the disclosure statement required under section 3, notification that the transferee, the structured settlement obligor or the annuity issuer is entitled to support, oppose or otherwise respond to the payee’s petition, either in person or by counsel, by submitting written comments to the court or by participating in the hearing and notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the petition must be filed, which shall be not less than 20 days after service ofthe payee’s notice, in order to be considered by the court.” (emphasis in statement)

This section does not require the court to schedule a hearing on every petition that is filed. To the contrary, this section addresses notice requirements which insure that interested third parties (the transferee and the structured settlement obligor or the annuity issuer) have the opportunity to submit comments to the court.

The procedure that I am using for petitions to transfer structured settlement rights is a procedure ordinarily used in motions practice. A court does not schedule a hearing unless a petition or motion contains material facts which support the granting of the relief which the moving party seeks.

Approximately one year ago, I assumed responsibility for deciding petitions to transfer structured settlement payment rights filed in this court. I have ruled on several dozen petitions.

Initially, I scheduled hearings in every case. I found that this was an inefficient procedure. Where a petition simply alleged that the purpose of the proposed transfer was to pay debts, at the hearing I would question the petitioner as to the amount of the debts and to whom they were owed. The petitioner would say that he or she had not brought this information to the hearing.

Where the allegations in a petition showed that the petitioner’s monthly payments of $1,000 were the sole source of income for the petitioner and her baby, and the petitioner sought to transfer monthly payment of $300 to purchase a car, I realized that there was no reason to make the petitioner come to a hearing to be told that I was denying the petition because I believed she needed her full income stream. This is equally true where I told the petitioner at the hearing that I was denying the petition because the effective annual discount rate of 22 percent, set forth in the petition, was far too high.

In the statement of the matters complained of, petitioner states that since I denied her right to a hearing, she was unable to offer to the court any explanation as to the circumstances of the prior transfer and any showing that the funds from the prior transfer were used prudently. However, this is very relevant information that petitioner’s counsel should have included in the petition. Since the Act requires a showing that the transfer is in the best interests of petitioner, it is the obligation of counsel to set forth information that is clearly required in order for the court to make this determination of whether the proposed transfer is in the best interests of petitioner and her dependents. Furthermore, nothing prevented petitioner in this case from filing at the same case number an amended petition that addressed the matters referred to in my April 25, 2006 order of court.

In addition, any failure to hold a hearing is harmless error. In her petition, petitioner states that her family is having difficulty making ends meet. Consequently, a transfer of one-half of petitioner’s tax-free stream of income for 15 years cannot be within the best interests of petitioner and her dependents.

ATTACHMENT 1

REQUIREMENTS OF JUDGE WETTICK FOR PETITIONS TO TRANSFER STRUCTURED SETTLEMENT PAYMENT RIGHTS

(1) The parties to the petition to transfer structured settlement payment rights shall be the payee and the transferee.

(2) The petition shall contain factual allegations which, if established, will support the findings set forth in 40 P.S. §4003.

(3) The petition shall contain a paragraph which in bold type sets forth the net amount payable to the payee after deduction of all commissions, fees, costs, expenses, and charges and which contains the following statement setting forth the interest rate: “Based on the net amount that the payee will receive from this transaction ($_) and the amounts and timing of the structured settlement payments that would be assigned, the payee is, in effect, paying interest at a rate of_percent per year.”

(4) A payee’s affidavit in support of petition in the form prescribed by paragraph (7) shall be attached to the petition as attachment 1.

(5) The petition shall include an initial order of court scheduling the hearing in the form prescribed by paragraph (8) and a final order of court granting the petition in the form prescribed by paragraph (9).

(6) If the petition and payee’s affidavit meet the requirements of this rule and state prima facie grounds for relief, the court shall enter an order scheduling a hearing date which shall be at least 30 days from the date of the order scheduling the hearing.

(7) The payee’s affidavit in support of petition shall be substantially in the following form:

PAYEE’S AFFIDAVIT IN SUPPORT OF PETITION

I represent that the information below is true and correct:

(1) Name, address, age.

(2) Marital status:

_Never married;_Married;_Separated; _Divorced

If married or separated, include spouse’s name.

(3) Minor children: names, ages, places of residence.

(4) (a) Payee’s monthly income and sources;

(b) If presently married, spouse’s monthly income and sources.

(5) Any obligations to pay child support, alimony, or alimony pendente lite?

_Yes_No

If yes, describe the obligations and state whether there are arrearages.

(6) (a) Have you previously filed a petition to transfer structured settlement payment rights?

_Yes_No

If yes, for each petition that you filed, state the name of the court, the term and number, and the court ruling. If you received funds, itemize the manner in which the money was used, including receipts and cancelled checks.

(b) Have you ever received a lump sum from a workers’ compensation carrier?

_Yes _____ No

If yes, describe the date and amount of the payment.

(7) Has any court or responsible administrative authority previously approved the structured settlement that is the subject of this petition?

_Yes __No

(See requirements of 40 P.S. §4003.3(a)(5)(i)(B).)

(8) Describe, in detail, your reasons for the proposed transfer, including an explanation as to why a sale of a lesser amount of the structured settlement amount will not better serve your interests. If you seek the transfer in order to pay debts, list each debt, including the name of the creditor and the amount presently owed.

VERIFICATION

I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.

Date:_ _

Signature

(8) The proposed initial order of court shall be substantially in the following form:

ORDER

On this_day of_,_, it is ordered that a hearing will be held on this petition to transfer structured settlement payment rights on _, in courtroom_at_o’ clock; within seven days, the transferee shall notify the structured settlement obligor and the annuity issuer of the hearing date. The payee shall bring income tax returns for the prior two years to the hearing. The payee, the payee’s spouse, and any person receiving child support payments, alimony, or alimony pendente lite should attend the hearing.

By the court:

J.

And

(9) The proposed final order of court shall be substantially in the following form:

ORDER

On this_day of_,_, it is ordered that the petition for court approval for settlement rights of structured settlement is granted.

The court specifically finds that the requirements of 40 RS. §4001 et seq. have been met.

Payee shall receive from the transferee, as of _, the amount of $__, from which no funds are owed for counsel fees, administrative fees, or other costs or fees.

By the court:

J.

      . At this time, there are no rules of civil procedure which specifically govern petitions filed pursuant to the Structured Settlement Protection Act. The Civil Procedural Rules Committee is proposing new Rule 229.2 which would govern these petitions. The recommendation of the Rules Committee, which has not been submitted to the Pennsylvania Supreme Court for review, has been published for comments to be submitted by August 31, 2006. See the home page of the Administrative Office of the Pennsylvania Courts at www.aopc.org. or 36 Pennsylvania Bulletin at 3521 (7/8/06).

      . The denial of a petition does not prevent the petitioner from filing an amended petition which contains additional information or a modified agreement to transfer structured settlement payment rights.

      . For example, my court order may state “petition is denied because a 23.4 percent interest rate is excessive” or “petition is denied because income stream that petitioner seeks to transfer in order to purchase a car is needed to pay child support.”

      . This effective annual discount rate is the interest rate that petitioner would be paying if she was a borrower. For example, if a payee is receiving $25,000 on April 1,2006 in exchange for 36 payments of $1,000 payable from May 1, 2006 to April 1, 2009, the effective annual discount rate is the interest rate that the payee would be paying if she was receiving $25,000 on April 1, 2006 in exchange for making 36 monthly installment payments of $ 1,000 from May 1,2006 to April 1,2009.
      This interest rate has nothing to do with a payee’s credit rating. The risk that the payments which a payee is assigning will not be paid is based on the credit rating of the insurance company that issued the annuity. In most instances, there is little likelihood that these payments will not be made. Furthermore, it is possible that the transferee will immediately sell the payments which it purchased to the company that issued the annuity.

      . The amended petition in the 2005 proceedings provided for petitioner to receive net proceeds of $62,266 for the sale of the two lump sums in a transaction in which the effective annual discount rate would be 15.45 percent.

      . There is no mention of workers’ compensation payments.

      . Paragraph 19 at 7 of the petition to transfer structured settlement payment rights describes the role of counsel in these proceedings as follows: “[The law firm] has not been engaged to render professional advice with respect to the advisability, or the implications of the transfer, including the tax ramifications of the transfer. Counsel has been engaged solely to prepare and present the within petition, based upon petitioner’s independent determination and/or professional advice obtained from others, with respect to the advisability and ramifications of the transfer.”

      . A petition to transfer structured settlement payment rights is governed by the Rules of Civil Procedure governing motions practice. Pa.R.C.P. 208.1. These rales require a motion to set forth material facts constituting grounds for the relief sought. Pa.R.C.P. 208.2(a)(3). These rules permit a court to dispose of a motion without an evidentiary hearing. Pa.R.C.P. 208.3 and 208.4.


source: Caselaw Access Project

author: KELLER, J.,

license: Public Domain

text:
    Darlington v. Darlington

      Jill Gehman Koestel, for plaintiff.

      Joan B. Darlington, pro se.
    October 30, 2006
   KELLER, J.,

The plaintiff and defendant were married on June 10, 1967 and are the parents of three adult children. The parties separated in October of 1990 and have not cohabitated since that time. A complaint in divorce and an affidavit pursuant to section 3301(d) of the Divorce Code were filed by plaintiff on October 12,2005. A special master’s hearing was held on June 15, 2006.

The master’s report and recommendations were filed by Jeffrey J. Howell, Esquire on June 21, 2006. Defendant filed exceptions to the master’s report and recommendations on June 30, 2006. After two Berks County Court of Common Pleas judges recused themselves, this case was assigned to the Honorable Scott D. Keller and argument on the defendant’s exceptions was heard on September 11, 2006. The defendant’s exceptions were denied on that date for procedural reasons, as she failed to obtain a transcript of the master’s hearing and failed to file a brief. A divorce decree was signed on September 11.2006. An amended decree was signed on September 14.2006, noting that exceptions had been filed but were denied. The recommendations of the special master were incorporated into the decree by reference and made an order of court.

On October 6, 2006, defendant filed a timely notice of appeal to this court’s order of September 14, 2006. On October 11, 2006, defendant was ordered to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 14 days. On October 25, defendant did file her concise statement, raising only the following issue:

“I, Joan Darlington, petitioner and defendant, claim that it is inappropriate to leave a wife of 39 years without any provision. Petitioner seeks insurance provision for five years supplementing her medicare and to be named pension beneficiary upon plaintiff’s death. The hearing master failed to take into account the petitioner’s need for continued medical treatment and the need for medical benefits.”

These precise issues were addressed by the master in his report and recommendation. Defendant has requested that she be named as a beneficiary of the term life insurance policy provided to plaintiff through his employment with the Keystone School District. She made a similar request regarding his Pennsylvania State Employees Retirement System (PSERS) pension. 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). As the parties separated in October 1990 and the plaintiff did not commence employment with the Keystone School District until his relocation to western Pennsylvania following the final separation. Clearly the life insurance policy is not marital property. Similarly, the plaintiff participated in the PSERS program during the marriage but withdrew his contributions in the amount of $33,000 to support his family at or about the time he resigned from his position at the Antietam School District. Although the plaintiff continues to participate in the PSERS retirement plan, any contributions currently in the account were made subsequent to the date of final separation and are thus non-marital as well. Pursuant to 23 Pa.C.S. §3501(a)(3), which states that “marital property does not include... property acquired after final separation until the date of divorce,” the master properly denied defendant’s request to be named a beneficiary of his life insurance and pension plans.

In her concise statement, defendant also alleges that the master failed to take into account her need for continued medical treatment and the need for medical benefits. We disagree entirely. In the findings of fact contained in his report and recommendation, the master found that the defendant receives $379 monthly from the plaintiff pursuant to a court order. The plaintiff has been paying this support since the parties initially separated 15 years ago. She also receives $987 monthly in Social Security disability benefits. Defendant also receives $1,000 monthly from an annuity purchased by her mother and these payments will continue at this fixed rate until defendant’s death. The master found that the defendant has reasonable monthly expenses of $1,390 and that she will have medical insurance after the divorce through the medicare program. The master further found that there was no evidence in the record to show that any post-decree uninsured dental and psychiatric expenses exceeded the sum of $600 monthly and therefore found that there was no economic basis upon which to award Wife alimony. Amaster’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demean- or of the parties. Moran v. Moran, 839 A.2d 1091, 1094 (Pa. Super. 2003). We agreed with the master’s recommendation that the defendant’s request to be designated as a beneficiary on plaintiff’s life insurance and pension plans be denied, because they are not marital property and she did not present any evidence that an award of alimony is necessary.

For all of the foregoing reasons, this court respectfully requests that the defendant’s appeal be denied and the order of September 14,2006, denying her exceptions to the master’s recommendations and divorcing the parties from the bonds of matrimony be affirmed.


author: NANOVIC, P.J.,

text:
    Commonwealth v. Brooke

      Jean A. Engler, assistant district attorney, for Commonwealth.

      Kent D. Watkins, for defendant.
    November 5, 2008-
   NANOVIC, P.J.,

PROCEDURAL AND FACTUAL BACKGROUND

On August 11, 2004, Albert Edward Brooke (defendant) pled nolo contendere to one count of aggravated indecent assault (F2), two counts of corruption of minors (Ml), and two counts of endangering the welfare of a child (Ml), in the case docketed to no. 128 CR 2003 for incidents involving his stepdaughter when she was 5 and 6 years old; defendant also pled nolo contendere to one count of corruption of minors (Ml) and one count of endangering the welfare of a child (Ml), in the case docketed to no. 129 CR 2003, for incidents involving his 4-year-old stepson. Defendant’s pleas were entered pursuant to a negotiated plea agreement in which the majority of the charges filed were to be nolle pressed, several consisting of felonies of the first degree. Under this agreement, defendant was to receive an aggregate sentence of four to eight years’ imprisonment in a state correctional facility, followed by 20 years’ probation. The plea agreement was accepted by this court and, in accordance with the agreement, defendant was sentenced on the same date.

On May 21, 2007, defendant filed the instant petition for post-conviction collateral relief pro se. An amended, counseled petition was filed on November 5, 2007. In this petition, defendant claims that while he was competent to stand trial, he was not competent to represent himself and that standby counsel was ineffective in permitting him to enter a plea.

A hearing on defendant’s petition, at which defendant was present and represented by counsel, was held on January 31,2008. Defendant’s petition is now before us for disposition.

DISCUSSION

1) Self Representation

On August 11,2004, after juiy selection was complete, defendant requested and was granted permission to represent himself with the assistance of his former trial counsel as standby counsel. Defendant now argues he should not have been permitted to do so, averring that he was not mentally competent to represent himself in legal proceedings. We are at a loss to explain why defendant now chooses to raise this issue, rather than in any of his scores of previous filings, particularly his motion to withdraw his nolo contendere pleas, for which he was represented by new counsel.

To be eligible for relief under the Post Conviction Relief Act (PCRA), a defendant must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more errors set forth in 42 Pa.C.S. §9543 and that the issue has not been previously litigated or waived. For purposes of the PCRA, “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding.” 42 Pa.C.S. §9544(b); see also, Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa. Super. 1998) (recognizing that “nearly all claims are waived under the PCRA since nearly all claims potentially could have been raised on direct appeal”). Waiver is an issue which may be raised sua sponte by the PCRA court. See Commonwealth v. Davis, 393 Pa. Super. 88, 97, 573 A.2d 1101, 1105 (1990), appeal denied, 527 Pa. 597, 589 A.2d 688 (1991).

Nevertheless, waiver will not be found where the issue involves a defendant’s competency to waive a constitutional right. “[I]t would be contradictory to argue that a defendant may be incompetent, and yet knowingly and intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” Commonwealth v. Santiago, 579 Pa. 46, 63, 855 A.2d 682, 692 (2004). Thus, we hold only that during the time defendant represented himself this issue was not waived.

In addressing the merits of this claim, we must first be precise in defining the claim: the issue is not whether the colloquy which preceded our granting defendant’s request to represent himself at trial was sufficient, but whether defendant was mentally ill and therefore not competent to waive his constitutional right to counsel and thereby represent himself. The burden of establishing mental incompetency is upon the defendant and must be met by a preponderance of the evidence. See Commonwealth v. Appel, 547 Pa. 171, 189, 689 A.2d 891, 899 (1997). The record in this case does not evidence that defendant was incapable of waiving either his right to counsel or entering a plea.

The competency standard for evaluating a criminal defendant’s ability to stand trial and his ability to waive counsel and enter a plea are the same. See Godinez v. Moran, 509 U.S. 389, 397-98 (1993). To be competent to stand trial, a defendant must (1) have “a rational as well as factual understanding of the proceedings against him” and (2) have a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). Likewise, the Mental Health Procedures Act provides that a defendant is legally incompetent if he is “substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense.” 50 P.S. §7402(a).

In Godinez, the court “rejected the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.” Indiana v. Edwards, 128 S.Ct. 2379, 2384 (2008). The court further found that “[t]he decision to plead guilty ... is no more complicated than the sum total of decisions that a [represented] defendant may be called upon to make during the course of a trial,” and that “there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” Id. However, “[i]n addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.” Godinez, 509 U.S. at 400. “The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings.” Id. at 401 n.12. “The purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.” Id.

In distinguishing further between competence and what is required for a knowing and voluntary waiver, the court noted that “even assuming that self-representation might pose special trial-related difficulties, the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Indiana, 128 S.Ct. at 2384. (emphasis in original) “[A] criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.” Godinez, 509 U.S. at 400; see also, Commonwealth v. Starr, 541 Pa. 564, 585, 664 A.2d 1326, 1337 (1995). Therefore, while “a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta v. California, 422 U.S. 806, 835 (1975). Simply put, a criminal defendant’s “technical legal knowledge [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” Id. at 836.

In Godinez, the court’s finding that the standard for measuring a defendant’s competency to stand trial is the same as that for measuring his competency to enter a plea decided the case. At issue in Godinez was the defendant’s decision to represent himself and to change his pleas from not guilty to guilty. The present case, at least ostensibly, goes one step further, asking whether a higher standard applies to measure a defendant’s ability to conduct a defense at trial, as opposed to his ability to enter a plea. That is, is there a competency limitation to the right of self-representation.

In Indiana v. Edwards, the court held that “the constitution permits states to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” 128 S.Ct. at 2380. In applying the principles of Indiana and Godinez to the present case, while we determined at the time of trial that defendant was mentally competent to conduct his own defense, given the limited period of defendant’s self-representation and his ultimate decision to enter a plea, we find Godinez to be closer factually to what actually occurred in this case.

Significantly, the issue of the validity of defendant’s plea was previously litigated and is binding on defendant. Moreover, defendant’s plea was taken on the same day he waived his right to counsel. Also significant is that in pretrial proceedings when defendant’s competence to stand trial was questioned by his then counsel, we determined that defendant was competent to stand trial, a finding which defendant has not challenged. See order dated April 30,2004. At that time, Dr. David G. Petkash, a diplomat in the American Board of Psychiatry and Neurology, board certified in general adult psychiatry, forensic psychiatry, addiction psychiatry, and geriatric psychiatry, credibly opined that defendant had the capacity to rationally and factually understand the nature of the proceedings against him and to rationally interact with counsel and assist in his own defense.

As importantly, if not more so, in both the waiver of counsel and plea colloquies defendant responded appropriately to the court’s questions, openly acknowledged facts of which he was unaware, and disclosed that when certain questions in the written guilty plea colloquy were unclear to him, he sought standby counsel’s assistance and guidance. At times, defendant asked his own questions which themselves demonstrated an understanding of what was at issue. He also requested and accepted the appointment of standby counsel to provide assistance. In opening to the jury, he responded appropriately when an objection was made by the Commonwealth.

The plea agreement which was eventually reached, and which defendant was actively involved in negotiating, was extremely beneficial to defendant. Additionally, at both the hearing on defendant’s motion to withdraw his plea, and the hearing on the instant petition, standby counsel credibly testified that defendant was an intelligent man who knew what he was doing. See generally, Medina v. California, 505 U.S. 437, 450 (1992) (observing that “defense counsel will often have the best-informed view of the defendant’s ability to participate in his defense”). All of the foregoing supports our conclusion that defendant’s decision to waive counsel was an informed and independent one, made knowingly and voluntarily. While we believe defendant’s decision to represent himself was unwise, and so advised defendant at the time of the waiver colloquy, we continue to believe that defendant knew what he was doing and was entitled to exercise his right to represent himself at trial. Defendant has presented no evidence to the contrary. See generally, Appel, 547 Pa. at 188, 689 A.2d at 899 (noting that “the sensitive nature of competency determinations requires that a trial judge’s conclusions be afforded ‘great deference’ because the judge has the opportunity to personally observe a defendant’s behavior”).

It must also be emphasized that defendant was represented by counsel in all pretrial and post-trial proceedings. Defendant was represented by counsel as early as March 14, 2003, when counsel filed an application for competency evaluation, and counsel continued to represent defendant through and including jury selection. Defendant opened to the jury on his own and decided after the first Commonwealth witness was called, but before extensive questioning of that witness had occurred, to enter a plea. When defendant sought to challenge this plea and have it withdrawn, separate counsel was again appointed at defendant’s request. Counsel represented defendant during these post-sentence proceedings and on direct appeal, and continues to do so in the instant post-conviction collateral proceedings.

In sum, defendant’s representation of himself was limited to that which occurred on August 11,2004. While this period of self-representation was unquestionably significant, defendant does not dispute his guilt and has failed to establish any prejudice or unfairness in the proceedings. More specifically, he has failed to establish that he was so mentally incompetent that he was incapable of waiving his constitutional right to counsel or exercising his right to represent himself.

2) Ineffective Assistance of Standby Counsel in Entering Nolo Contendere Pleas

As already discussed, prior to pleading nolo contendere, defendant was granted permission to represent himself with the assistance of standby counsel. Again, we must be precise in defining the issue: the issue is not whether defendant was ineffective in representing himself, but whether court-appointed standby counsel was ineffective in their representation of defendant. Indeed, “[a] criminal defendant who knowingly and intelligently waives his right to counsel so that he may represent himself at trial may not later rely upon his own lack of legal expertise as a ground for a new trial.” Commonwealth v. Bryant, 579 Pa. 119, 136, 855 A.2d 726, 736 (2004) (citing Faretta, 422 U.S. at 834 n.46 (“[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.”)); see also, Appel, 547 Pa. at 198, 689 A.2d at 904 (“claims of ineffective assistance of counsel are not cognizable during post-trial proceedings, when the defendant has previously insisted on representing himself’). To hold otherwise would make “amockeiy of the judicial process and guarantee immunity from the consequences of self-representation.” Bryant, 579 Pa. at 136, 855 A.2d at 736.

Standby counsel’s role in representing a defendant who insists on representing himself is limited: to assist the defendant if and when he requests assistance and to be available to represent him in the event that termination of the defendant’s self-representation is necessary. See Faretta, 422 U.S. at 834 n.46. If defendant fails to request assistance, he cannot “bootstrap from his own failure to raise [a] claim by blaming [standby] counsel for failing to remedy his own mistake.” Bryant, 579 Pa. at 144, 855 A.2d at 740. To impose such an obligation on standby counsel would necessarily infringe upon the defendant’s right of self-representation, the converse of which is that a state cannot force a lawyer upon an accused who insists on conducting his own defense. See Faretta, 422 U.S. at 807. In assuming his own representation, a defendant assumes the consequences of that representation, including doing so to his own detriment: “his choice must be honored out of that respect for the individual which is the lifeblood of the law.” Faretta, 422 U.S. at 834. Here, defendant knowingly, voluntarily, and intelligently waived his right to counsel; having done so, he cannot now argue his own ineffectiveness.

Turning to defendant’s claim that standby counsel was ineffective, defendant is entitled to no relief. “To prevail on a claim that counsel acting in an advisory or other limited capacity has rendered ineffective assistance, a self-represented defendant must show that counsel failed to perform competently within the limited scope of the duties assigned to or assumed by counsel. ” People v. Bloom, 774 P.2d 698, 718 (Cal. 1989) (emphasis in original), cert. denied, 494 U.S. 1039 (1990), cited in Bryant, 579 Pa. at 163 n.1, 855 A.2d at 752 n.1 (Saylor, J. dissenting).

Pursuant to the PCRA, a petitioner’s claim of ineffective assistance of counsel will succeed only where trial counsel’s alleged ineptitude “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. §9543(a)(2)(ii). To establish this degree of ineffectiveness, the petitioner must “rebut the presumption of [counsel’s] professional competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.” Bryant, 579 Pa. at 136, 855 A.2d at 735-36.

Not once has defendant alleged in these post-trial proceedings, much less proven, that standby counsel’s performance undermined the truth-determining process. Defendant does not affirmatively assert his innocence. At the PCRA hearing, he claimed only that he could not remember the incidents. Defendant has not identified what counsel should have done differently or how this affected his decision to enter a plea. Defendant does not dispute that at the time of the plea colloquy it was, in fact, his intent to enter a plea. Nor does defendant dispute that the plea agreement reached was to his benefit. To the contrary, at the PCRA hearing defendant testified he knew he could have faced more time in jail, potentially the rest of his life, if he had gone through a trial.

We fail to understand how defendant was prejudiced by the conduct of standby counsel. Defendant insisted on representing himself. He negotiated a plea which was favorable to his long-term interests and he participated in a plea colloquy which demonstrated clearly that he had a full understanding of the plea and its consequences. In Appel, our Supreme Court held that it would “not deem counsel ineffective for respecting his or her client’s wishes.” 547 Pa. at 201, 689 A.2d at 906. Nor will we do so here.

CONCLUSION

After a thorough review of the record, for the above reasons, we conclude that defendant is not entitled to relief under the PCRA on either his claim of the improper grant of permission to represent himself or his claim of ineffective assistance of standby counsel.

      . 18 Pa.C.S. §3125.

      . 18 Pa.C.S. §6301.

      . 18 Pa.C.S. §4304.

      . The validity of defendant’s pleas was previously litigated when defendant filed a post-sentence motion to withdraw his pleas on the basis that the pleas were not knowingly, intelligently, voluntarily, and understanding^ entered, which we denied. See defendant’s concise statement of matters complained of on appeal, filed April 27, 2006. This decision was affirmed by the Superior Court on February 28, 2007.

      . Defendant was sentenced to a period of imprisonment of not less than 34 months nor more than 68 months on the aggravated indecent assault charge docketed to no. 128 CR 2003; four consecutive five-year periods of probation on the two corruption of minors charges and the two endangering the welfare of a child charges docketed to no. 128 CR 2003; a period of imprisonment of not less than seven months nor more than 14 months on the corruption of minors charge docketed to no. 129 CR 2003, consecutive to the sentence imposed in no. 128 CR 2003; and a period of imprisonment of not less than seven months nor more than 14 months on the endangering the welfare of a child charge docketed to no. 129 CR 2003, consecutive to the sentences imposed in no. 128 and no. 129 CR 2003.

      . At the nolo contendere plea hearing, defendant was assisted by two members of the Carbon County Public Defender’s Office who acted as standby counsel: Chief Public Defender Gregory Mousseau, Esquire, and Public Defender William G. Schwab, Esquire. (N.T., 08/11/2004 (plea colloquy), pp. 2-3.)

      . A criminal defendant has a constitutional right, guaranteed by the Sixth and Fourteenth Amendments, to self-representation. See Faretta v. California, 422 U.S. 806, 807 (1975). However, before this right may be exercised, the defendant must be advised of his right to counsel, and his decision to waive counsel and to represent himself must be unequivocal, voluntary and intelligent, timely, and not for purposes of delay. See Commonwealth v. Blakeney, 596 Pa. 510, 527, 946 A.2d 645, 655 (2008); Commonwealth v. Vaglica, 449 Pa. Super. 188, 192, 673 A.2d 371, 373 (1996). The defendant must understand both the significance and consequences of his decision.
      To ensure a defendant’s waiver of counsel is knowing, voluntary, and intelligent, Pa.R.Crim.P. 121, in its present form, adopts the “probing colloquy” standard described in Commonwealth v. Starr, 541 Pa. 564, 585, 664 A.2d 1326, 1335 (1995). Under this standard, if the inquiry is deficient, “relief is warranted only if the [defendant] suffers actual prejudice as a result thereof.” Commonwealth v. Davis, 393 Pa. Super. 88, 102 n.7, 573 A.2d 1101, 1108 n.7 (1990), appeal denied, 527 Pa. 597, 589 A.2d 688 (1991). From the evidence ofrecord, there is no reason to believe that defendant’s plea was unlawfully induced by his decision to waive counsel, or that he suffered any prejudice regardless of the sufficiency of his colloquy.
      In this case, an extensive colloquy was conducted in which we explained defendant’s rights to him, emphasized the dangers of representing himself — including the responsibilities he would assume as his own counsel, and inquired into defendant’s understanding of the charges and the penalties he faced if convicted. (N.T., 08/11/04 (waiver colloquy), pp. 9-27.) At the conclusion of this waiver colloquy, we determined that defendant’s decision to proceed without counsel was knowingly, voluntarily, and intelligently made, and we granted defendant’s request.

      . On this issue, it is important to note that at the time of defendant’s waiver of counsel, we specifically advised defendant that an accused who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel, and defendant indicated his understanding of this concept. (N.T., 08/11/2004 (waiver colloquy), p. 21.)


author: LUDGATE, J.,

text:
    Commonwealth v. Brettman

      Jason C. Glessner, assistant district attorney, for Commonwealth.

      Sean M. Fitzgerald and Eric M. Gibson, for defendant.
    February 6, 2009—
   LUDGATE, J.,

I. FACTUAL AND PROCEDURAL HISTORY

On June 13,2008, Brian Edward Brettman (defendant) was charged in a Bill of Information with two counts of corruption of minors, 18 Pa.C.S. §6301, one count of indecent exposure, 18 Pa.C.S. §3127(a), and one count of open lewdness. Following a jury trial which began October 27, 2008 and concluded October 28, 2008, the defendant was found guilty of two counts of corruption of minors, 18 Pa.C.S. §6301(a)(1), one count of indecent exposure, 18 Pa.C.S. §3127(a) and one count of open lewdness, 18 Pa.C.S. §5901.

At trial, the Commonwealth presented the testimony of Amber Rupp, who stated that on February 29, 2008 she was 17 years of age. (N.T., 10/27/2008-10/28/2008 p. 15.) On that day, around 11:30 p.m., Amber was at her mother’s house in Berks County, Pennsylvania, with her mother, Pamela Rupp and sister, Courtney Rupp, when the defendant came to the house. (N.T. p. 16.) The defendant knocked on the door and was let in by Pamela Rupp. (N.T. p. 17.) The defendant asked Pamela Rupp for a needle, which she provided to him, then left, returning within a half an hour. Id. Amber told the defendant to leave while he was standing in the kitchen. At which point, the defendant took Pamela Rupp’s head and pushed it down towards his penis and was touching her butt and vagina. (N.T. p. 18.) Amber and Courtney Rupp yelled at the defendant to leave. The defendant left the house as Pamela Rupp pushed him out to the back yard. The defendant laid down on the ground in the yard with his penis exposed, his pants being pulled down to about his hips. Although it was dark and snowing, Amber was able to see the defendant due to a light on the side of the house and by use of a flashlight. (N.T. p. 19.) Amber Rupp saw the defendant’s penis exposed and recognized that he was aroused because his penis was “right up” instead of down. (N.T. pp. 27-28.) The defendant was in the yard for about 10 minutes total. Amber and Courtney repeatedly yelled at him to leave and said the cops had been called and were coming. (N.T. p. 20.)

The Commonwealth next presented the testimony of Courtney Rupp. Courtney was 15 years of age in February of 2008. (N.T. p. 29.) Courtney stated she entered the kitchen while her mother and the defendant were in the kitchen; the defendant had his pants down and Courtney saw his pubic hair. (N.T. p. 31.) Courtney saw the defendant push Pamela’s head down with his pants down. Amber told the defendant to leave, and at first he refused. Courtney next saw the defendant in the back yard, where he was standing against a wall. (N.T. p. 32.) Courtney witnessed the defendant masturbating with his right hand, although she never saw his penis because it was dark. (N.T. p. 33.)

The Commonwealth also presented the testimony of Monica Brock. Ms. Brock was present at a neighboring apartment of the Rupp’s home on February 29, 2008. (N.T. p. 49.) At approximately 11 or 11:30 p.m., Ms. Brock heard a commotion and looked out the back door of the apartment to see the defendant in the Rupp’s back yard. (N.T. pp. 49-50.) Ms. Brock saw the defendant with his left arm against a wall and his right hand down his pants. The defendant’s pants were up and Ms. Brock never saw his genitals. (N.T. pp. 50-51, 54.) Ms. Brock used a flashlight because the outside light was not working. (N.T. p. 51.) Ms. Brock called police, told the defendant she had called police, and the defendant left. (N.T. p. 52.)

The defendant’s date of birth is January 26, 1968. Commonwealth exhibit 1.

On November 12, 2008, this court sentenced the defendant to a total of 12 months to two years confinement in a state correctional facility for Count 1, indecent exposure; 18 months to five years confinement in a state correctional facility for Count 2, corruption of minors, to run concurrent with sentence for Count 1; 18 months to five years confinement in a state correctional facility for Count 3, corruption of minors, to run concurrent with sentence for Counts 1 and 2; Count 4, open lewdness, merged with Count 1 for sentencing purposes.

Timely notice of appeal was filed on December 19, 2008. On December 29, 2008, this court ordered the defendant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days of the order. The defendant, through his counsel, filed a timely 1925(b) statement on January 14, 2009.

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 ON APPEAL

The defendant raises the following issues on appeal:

(1) The evidence is insufficient to establish the offenses of corruption of minors. See Commonwealth v. Rodriguez, 296 Pa. Super. 348, 442 A.2d 803 (1982).

(2) The guilty verdicts for the offenses of corruption of minors are against the weight of the evidence.

(3) The evidence is insufficient to establish the offenses of indecent exposure and open lewdness. See Rodriguez, supra.

(4) The guilty verdicts for the offenses of indecent exposure and open lewdness are against the weight of the evidence.

Sufficiency of the Evidence

Because the defendant’s first and third claims of error allege insufficient evidence, the court will address the issues together.

When determining sufficiency of the evidence claims, the court must determine whether the evidence and all reasonable inferences therefrom, drawn in the light most favorable to the verdict winner, was sufficient to enable the fact-finder to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Sullivan, 864 A.2d 1246, 1249 (Pa. Super. 2004). The Commonwealth’s burden may be established through wholly circumstantial evidence. Id. The fact-finder is free to believe all, part, or none of the evidence presented. Id. “Although a conviction must be based on ‘more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.’” Commonwealth v. McFadden, 850 A.2d 1290, 1293 (Pa. Super. 2004).

In order to obtain a conviction for the crime of corruption of minors, the Commonwealth must establish that the defendant “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 —” 18 Pa.C.S. §6301(a)(1). “ ‘Tending to corrupt’... is a broad term involving conduct toward a child in an unlimited variety of ways which tends to produce or to encourage or to continue conduct of the child which would amount to delinquent conduct.” Commonwealth v. Meszaros, 194 Pa. Super. 462, 465, 168 A.2d 781, 782 (1961). (emphasis in original) See also, Commonwealth v. Barnette, 760 A.2d 1166 (Pa. Super. 2000). Actions that tend to corrupt the morals of a minor are those that “would offend the common sense of the community and the sense of decency, propriety and morality which most people entertain.” Commonwealth v. DeWalt, 752 A.2d 915, 918 (Pa. Super. 2000). Evidence of indecent exposure, by itself, can supporta conviction for corruption of a minor. Commonwealth v. Todd, 348 Pa. Super. 453, 462 n.2, 502 A.2d 631, 635 n.2 (1985). The Commonwealth need not prove that the defendant’s acts actually corrupted the minor’s morals, but only that they tended to do so. Commonwealth v. Pankraz, 382 Pa. Super. 116, 554 A.2d 974 (1989).

In order to obtain a conviction for indecent exposure, the Commonwealth must establish that the defendant “expose[d] his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.” 18 Pa.C.S. §3127(a).

A defendant commits the crime of open lewdness when “he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.” 18 Pa.C.S. §5901.

In this case, the two counts of corruption of minors are supported by the evidence. The evidence, in light most favorable to the Commonwealth as verdict winner, establishes that the defendant, being 40 years of age, exposed Amber and Courtney Rupp, 17 and 15 years of age at the time, to acts tending to corrupt their morals. Courtney Rupp, saw his exposed pubic hair and observed him masturbating in the back yard. Amber Rupp observed the defendant’s act of pushing Pamela Rupp’s head towards his penis and saw the defendant’s aroused penis exposed while he was in the back yard. As stated in Todd, indecent exposure by an adult, observed by a minor, is sufficient to sustain a conviction for corruption of minors. Although Courtney Rupp never saw the defendant’s genitals, his conduct is sufficient to sustain the conviction, as his actions “would offend the common sense of the community and the sense of decency, propriety and morality which most people entertain.” DeWalt, 752 A.2d at 918.

The defendant cites Commonwealth v. Rodriguez, 296 Pa. Super. 348, 442 A.2d 803 (1982) in support of his claim that the evidence was insufficient to sustain the convictions for corruption of minors. In Rodriguez, the defendant exposed his penis to a 7-year-old girl, shook it and put his finger to his mouth, a gesture indicating that the child should remain silent. There was no evidence that Rodriguez was aroused or masturbating. Id. at 353, 442 A.2d at 805. These actions were insufficient to sustain convictions for corruption of minors and indecent exposure. Id. at 353-54, 442 A.2d at 805-806. The defendant’s conduct in the case sub judice did involve sexual conduct, thus having a greater tendency to corrupt the morals of Amber and Courtney Rupp.

Concerning the charge of indecent exposure, the case law cited by the defendant is unavailing. The Rodriguez case interpreted the element of the defendant’s intent to arouse or gratify sexual desire on the part of himself or anyone else. Rodriguez, 296 Pa. Super, at 352, 442 A.2d at 804. This intent is no longer required under the modem statute; the current text of 18 Pa.C.S. §6301 requires only that the defendant exposed his or her genitals in a public place, or any place where others were present, under circumstances in which the defendant knows or should know the conduct was likely to offend, affront or alarm. However, even under the previous text of the statute, the case would provide no relief. In Rodriguez, the defendant exposed his penis and shook it. The Superior Court found that, absent other evidence, this action could be consistent with a sexual act or urination, and thus the evidence was insufficient to sustain the conviction. Rodriguez, 296 Pa. Super. at 353, 442 A.2d at 805. However, in the present case, Amber Rupp testified that the defendant exposed his penis in the back yard and Monica Brock and Courtney Rupp saw him masturbating. There is no ambiguity as to the defendant’s intent to arouse or gratify sexual desires in himself. Therefore, even if the statute still required the element of intent, the evidence would remain sufficient to sustain the conviction for indecent exposure.

Applying the current statute, the evidence is clear that the defendant did expose his aroused penis in a place where others were present, and this action was likely to offend, affront or alarm. In fact, his action did cause affront and alarm to Amber Rupp, as she yelled at the defendant to leave and said the police were coming. The defendant knew or should have known his actions were likely to cause affront or alarm because he was aware that Pamela, Amber and Courtney Rupp were in the house, as he was just pushed out of the house by Amber Rupp, who continued to yell at him to leave.

Open lewdness is supported by the evidence. The defendant’s masturbating and exposing his genitals in the back yard, which was visible from the Rupp’s home, as well as the apartment occupied by Ms. Brock was likely to affront or alarm; the acts in fact caused alarm to Amber Rupp and Monica Brock.

Weight of the Evidence

Because the defendant’s second and fourth claims of error concern the weight of the evidence, the court will address these claims together.

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

The jury, as finder of fact, found the evidence and testimony presented by the Commonwealth’s witnesses to be credible as to all charges. This court does not find that the verdict in this case was so contrary to the weight of the evidence that it shocks its sense of justice.

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

      . The defendant had a prior record score of five. N.T. p. 114. Accordingly, the guideline range for the various counts are as follows: indecent exposure — standard six to 16 months, aggravated up to 19 months, mitigated as low as three months; corruption of minors— standard 12 to 18 months, aggravated up to 21 months, mitigated range nine months. Notes of testimony, sentencing hearing 11/12/2008 p. 5.


author: RUEST, J.,

text:
    Capital One Bank (USA) NA v. Clevenstine

      Paul J. Klemm Jr., for plaintiff.

      Carl Mollica, for defendant.
    January 30, 2009
   RUEST, J.,

Presently before the court are the preliminary objections of defendant Patricia L. Clevenstine. Oral argument was scheduled for January 23,2009. Plaintiff’s attorney failed to appear. Both parties submitted briefs. After consideration of the parties’ briefs, the court determines the preliminary objections of defendant are sustained in part and overruled in part.

BACKGROUND

Plaintiff initiated this cause of action by filing a complaint on September 29, 2008. Defendant filed preliminary objections to the complaint. An amended complaint was filed on December 1, 2008. Defendant filed preliminary objections to the amended complaint. The complaint arises out of a Capital One credit card allegedly issued to defendant. Defendant is alleged to be in default on the account for failing to make payment on or about September 9, 2006 and to have accumulated an unpaid balance of $6,108.03.

DISCUSSION

I. Failure of a Pleading To Conform to Law or Rule of Court — Pa.R.C.P. 1028(a)(2)

In a credit card suit, a creditor must “attach the writings which assertedly establish [the creditor’s] right to a judgment.” Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 345 (Pa. Super. 2003). Defendant maintains plaintiff’s complaint should be dismissed because it does not include the writings which form the alleged contractual relationship between the parties and doesn’t explain their absence. Plaintiff maintains it has satisfied the requirements ofPa.R.C.P. 1019(i) by attaching a copy of a customer agreement to the complaint. Pa.R.C.P. 1019(i) states “when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing.” Under this rule, written agreements are considered “writings.” Plaintiff maintains its claim is based upon the attached customer agreement. Defendant maintains this “agreement” is not signed by defendant and is dated 2002. Plaintiff avers defendant entered into the agreement with Capital One in 2006.

Plaintiff has not attached the relevant writing to establish its claim against defendant, instead attaching a copy of a customer agreement from seven years ago. Plaintiff has not attached defendant’s original credit application or a statement averring that it lacks access to any or all of the relevant writings. The undated and unsigned customer agreement, dated 2002, may reflect the terms of the original agreement between defendant and Capital One, but the unsigned customer agreement is insufficient to establish plaintiff’s claim.

Defendant’s preliminary objection is sustained.

II. Insufficient Specificity in a Pleading— Pa.RC.P 1028(a)(3) and 1028(a)(4)

Defendant argues plaintiff’s complaint is insufficiently specific because it does not meet the requirements of Pa.R.C.P. 1019(a) and (f). Plaintiff maintains it has pled facts with sufficient specificity to allow defendant to answer the complaint.

In determining sufficiency of the pleadings in a complaint, the court will consider “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). Pa.R.C.P. 1019(a) states that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(f) states that “[ajverments of time, place and items of special damage shall be specifically stated.”

Plaintiff avers that defendant owes $6,108.03 for charges made under a credit agreement with a credit card. The court has previously held that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Remit Corporation v. Miller, 5 D.&C.5th 43, 48 (Centre Cty. 2008); accord Marine Bank v. Orlando, 25 D.&.C.3d 264 (Erie Cty. 1982). Plaintiff has met this requirement by attaching several Capital One monthly billing statements bearing defendant’s name, dating from the opening of the account to the present, and reflecting individual charges and fees. Plaintiff has attached all statements which illustrate how it has arrived at the amount that it claims is due from defendant.

Defendant’s preliminary objection is overruled.

III. Motion To Strike/Insufficient Specificity ofPleading — Pa. R.C.P. 1028(a)(3)

Plaintiff avers defendant owes a principal sum of $6,108.03 on a book account, and that defendant owes plaintiff for goods sold and delivered. Plaintiff also avers that defendant owes it based on an account stated theory. Defendant maintains this averment is insufficient to plead an account stated cause and, even if it were, an account stated theory is inappropriate in a credit card case.

An account stated is “an account in writing, examined and expressly or impliedly accepted by both parties thereto as distinguished from a simple claim or a mere summary of accounts.” Target National Bank/Target Visa v. Samanez (Allegheny Cty. 2007); Target National Bank/Target Visa v. Celesti (Allegheny Cty. 2007); P.L.E. 2d Contracts §512, 9-10 (2008). An account stated is appropriate where the parties have an ongoing relationship and the substance of their conversations is averred in the complaint.

Plaintiff has not set forth sufficient facts regarding defendant’s agreement to either the total amount due and it has not set forth facts which show, in addition to alleged receipt of monthly statements without objection, that defendant has agreed to pay the amount plaintiff claims is owed. Plaintiff appears to be relying on defendant’s silence to prove acquiescence to an account stated. This is not a permissible use of the account stated. An account stated is more appropriately pled in a situation in which two equal, sophisticated parties have an ongoing business relationship. An account stated theory is not appropriate in a credit card account case.

An account stated was traditionally a promise by a debtor to pay a stated amount of money which the parties expressly agreed was owed, in satisfaction of a preexisting debt. 29 Williston on Contracts 4th 73:55. When a debtor has had an opportunity to scrutinize the account, his or her silence is prima facie evidence of acquiescence in an account stated. Pierce v. Pierce, 199 Pa. 4, 48 A. 689 (1901), but something more than mere acquiescence by failing to take exception to a series of statements of account received in the mail is required to create an account stated. 13 P.L.E.2d Contracts §513 at 11-12 (2009), citing C-E Glass v. Ryan, 70 D.&.C.2d 251 (Beaver Cty. 1975).

An account stated theory may have been appropriate when credit card issuers gave cardholders fixed interest rates and charged very few fees. With the proliferation of credit cards over the past two decades, however, interest rates have varied and fees have increased in number and severity. It is unreasonable to expect the average debtor to understand the changing terms of a customer agreement such that he or she can object to any invoice received in a timely manner. For many, the first and only time they will consider what is in the “fine print” is when they fall behind on payments and find themselves in a position like the one in which defendant now finds herself.

Defendant’s preliminary objection is sustained.

Accordingly the following is entered:

ORDER

And now, January 30, 2009, the following is ordered:

(1) Defendant Patricia L. Clevenstine’s preliminary objections I and V are sustained.

(2) Defendant Patricia L. Clevenstine’s preliminary objections II, III, and IV are overruled.

(3) Plaintiff’s complaint is dismissed. Plaintiff shall have 20 days from the date of this order to file an amended complaint.


author: STALLONE, J.,

text:
    Commonwealth v. Castro

      Dennis Skayhan, assistant district attorney\ for Commonwealth.

      Richard Joyce, assistant public defender, for defendant.
    February 19, 2009
   STALLONE, J.,

This matter is presently before this court pursuant to the defendant’s omnibus pretrial motion to suppress statements/physical evidence, arising out of the shooting death of Oscar Sanabria in the early morning hours of Sunday, June 22, 2008.

Having held a hearing, we now set forth the following findings of fact, discussion, and conclusions of law in disposition of the defendant’s pretrial motion.

FINDINGS OF FACT

(1) On Sunday, June 22,2008, at approximately 1 p.m., the body of the decedent, Oscar Sanabria, was found inside a vehicle located at 544 S. 14-1/2 Street, City of Reading, Berks County, Pennsylvania.

(2) At approximately 2 p.m. on that date, Criminal Investigator William Kase and Criminal Investigator Randy Organtini of the Reading Bureau of Police were detailed to locate the defendant, Antonio Castro, concerning the death of Oscar Sanabria.

(3) Criminal Investigators Kase and Organtini subsequently found the defendant at 1246 Moss Street in the City of Reading and asked him to accompany them back to Reading City Hall.

(4) After the defendant agreed to do so, he was “patted down” for weapons and sat down in the left rear passenger seat of an unmarked police vehicle, with Criminal Investigator Kase driving and Criminal Investigator Organtini sitting next to the defendant in the right rear passenger seat.

(5) Upon their arrival at Reading City Hall, Criminal Investigator Kase informed the defendant that he was not under arrest.

(6) During his interview with Criminal Investigator Kase on Sunday, June 22, 2008, the defendant denied any knowledge of, or involvement relative to, the death of Oscar Sanabria.

(7) After Criminal Investigator Kase left Reading City Hall at approximately 9:45 p.m. on that date, the defendant met with Criminal Investigator Angel Cabrera of the Reading Bureau of Police.

(8) At that time, Criminal Investigator Cabrera pointed out various “inconsistencies” in the defendant’s statement, to which the defendant responded by asking if he was under arrest.

(9) In response, Criminal Investigator Cabrera advised the defendant that he was not under arrest, but that “he [Angel Cabrera] was coming for him [the defendant].”

(10) However, the defendant left Reading City Hall at approximately 10:37 p.m. on Sunday, June 22,2008 and walked home.

(11) On Monday, June 23,2008, at approximately 1:26 p.m., Criminal Investigator Kase received a telephone call from the defendant, in which the defendant asked Criminal Investigator Kase to come to 1246 Moss Street so that the defendant could speak to him once again about the death of Oscar Sanabria.

(12) Criminal Investigator Kase, accompanied by Criminal Investigator Cabrera, proceeded to 1246 Moss Street, at which time the defendant asked to speak to Criminal Investigator Kase alone.

(13) Criminal Investigator Kase thereafter spoke with the defendant on the sidewalk in front of 1246 Moss Street, outside the presence of Criminal Investigator Cabrera.

(14)At that time, the defendant indicated that he was present when the homicide took place, that it occurred after he had driven Oscar Sanabria to a specific location in the vehicle that had been found at 544 South 14-1/2 Street so that Sanabria could complete an illegal drug transaction, that certain unknown males had shot Oscar Sanabria outside the defendant’s presence and that, upon discovering the dead body of Oscar Sanabria in the back seat of the vehicle, the defendant drove the vehicle to 544 South 14-1/2 Street and attempted to set it on fire in order to conceal his fingerprints.

(15) Criminal Investigator Kase relayed this information to Criminal Investigator Cabrera, who then asked the defendant if he would take both of them to the alleged crime scene, which the defendant agreed to do.

(16) After being “patted down” once again for weapons for purposes of officer safety, the defendant got into the rear seat of the unmarked police vehicle, with Criminal Investigator Kase driving and Criminal Investigator Cabrera sitting next to the defendant.

(17) The defendant then directed both criminal investigators to the alleged crime scene, instructing them turn by turn, and ultimately ending up in a secluded driveway near Tailgaters Restaurant in Oley Township.

(18) The defendant was not handcuffed or shackled while they were en route to the alleged crime scene.

(19) The doors to the rear passenger seat of the vehicle were unlocked and there was no cage or any type of “blockade” between the rear and front seats of the vehicle.

(20) Upon their arrival at the alleged crime scene, Criminal Investigators Kase and Cabrera were joined by Pennsylvania State Troopers, who had been called in to assist with the investigation due to the fact that Criminal Investigators Kase and Cabrera were now outside of their City of Reading jurisdiction.

(21) At the alleged crime scene, the defendant showed the position of the vehicle and where he was at the time of the homicide to the criminal investigators and state troopers.

(22) Thereafter, the defendant agreed to go to Reading City Hall with Criminal Investigators Kase and Cabrera in order to give a statement.

(23) On the trip to Reading City Hall, the defendant rode in the rear seat of the same unmarked police vehicle, he was not restrained in any way and the doors of the vehicle were again unlocked.

(24) At no time during the trip did the defendant indicate that he no longer wished to speak with the investigators or that he wanted to consult with an attorney.

(25) Upon arriving at Reading City Hall, the defendant proceeded to an interview room with Criminal Investigators Kase and Cabrera.

(26) At approximately 3:40 p.m., the defendant was advised by Criminal Investigator Kase that he was not under arrest and that he was free to leave the interview room at any time, and showed the defendant that the door to the interview room, although shut, was unlocked.

(27) The defendant acknowledged that he understood what was happening and that he was free to leave at any time.

(28) The defendant then gave an oral statement to Criminal Investigator Kase concerning his actions on the evening of Saturday, June 21,2008 and Sunday, June 22, 2008.

(29) The defendant was not handcuffed or restrained in any way during the time that he gave this oral statement to Criminal Investigator Kase.

(30) After the defendant had completed his oral statement, Criminal Investigator Kase asked the defendant to put it in writing and was given a pad of paper and writing utensil to do so.

(31) The defendant took approximately one hour to complete his written statement, at which time he signed and dated it, and after which it was notarized.

(32) After he had finished giving this written statement, the defendant was provided with pizza and soda.

(33) Criminal Investigator Kase advised the defendant that he needed time to review the defendant’s written statement in order to corroborate it and asked the defendant to return to Reading City Hall the following morning at 10 a.m., for a follow-up interview.

(34) The defendant agreed to do so, but requested that his family not be notified of his meeting with the criminal investigators.

(35) Criminal Investigator Kase and Trooper Michael Yeity of the Pennsylvania State Police, who was also involved in the investigation and was present at the time that the defendant gave his oral and written statements, drove the defendant back to his residence at 1246 Moss Street at 7:45 p.m. on the evening of Monday, June 23, 2008.

(36) At some point prior to 10 a.m. on Tuesday, June 24, 2008, the defendant once again telephoned Criminal Investigator Kase to advise him that he would be late, to which Criminal Investigator Kase replied “no problem.”

(37) At no time did Criminal Investigator Kase, Criminal Investigator Cabrera or Trooper Yeity attempt to locate the defendant or to bring him in, nor was any such desire or intent to do so conveyed to the defendant.

(38) The defendant appeared at Reading City Hall at 10:45 a.m. and went with Criminal Investigator Kase and Trooper Yeity to an interview room for further questioning.

(39) Prior to the start of the questioning, the defendant requested police protection for his mother and sister, due to the fact that his sister had received death threats from one of the victim’s relatives.

(40) During the interview, the defendant was questioned by Criminal Investigator Kase concerning various inconsistencies between his written statement and other evidence which the police had obtained at the crime scene and from other witnesses.

(41) The defendant was permitted to use the lavatory and was not handcuffed or restrained in any way prior to or during this interview.

(42)At no point during the questioning did the defendant express any desire to leave or to have an attorney present.

(43)The door to the interview room remained unlocked throughout the duration of the interview.

(44)Trooper Yeity was present during the questioning of the defendant by Criminal Investigator Kase.

(45)At approximately 2:30 p.m., Criminal Investigator Kase administered Miranda warnings to the defendant, but left shortly thereafter and was replaced by Criminal Investigator Cabrera.

(46)The defendant was advised of his Miranda rights (for a second time) by Criminal Investigator Cabrera at approximately 3 p.m.

(47)After Criminal Investigator Cabrera advised the defendant of his Miranda rights, he asked the defendant if he understood his rights, if he was willing to give a statement, and if he wanted to consult with an attorney prior to giving a statement and have an attorney present during questioning.

(48) The defendant responded by indicating that he understood his rights, that he wished to give a statement and that he did not want to consult with an attorney.

(49) In the presence of Trooper Yeity, Criminal Investigator Cabrera posed a series of questions to the defendant, with each question, along with the defendant’s responses, being immediately typed.

(50) At the conclusion of the questioning, Criminal Investigator Cabrera advised the defendant to review each question and answer, making any corrections that he felt were necessary and to initial all of his responses and corrections.

(51) The defendant was provided with food during the questioning, as indicated on the typewritten statement itself.

(52) Following the conclusion of the questions and answers, the defendant was left alone in the interview room to review and initial his statement and to make any corrections.

(53) The defendant made several corrections to his statement, which he initialed, and then signed his name on each page.

(54) As part of this written statement, the defendant indicated that the statement was complete and that it was made of his own free will.

(55) In this written statement, the defendant admitted to shooting and killing Oscar Sanabria during the early morning hours of Sunday, June 22, 2008.

(56) Thereafter, the defendant was arrested and charged with first-degree murder and related offenses arising out of the death of Oscar Sanabria.

DISCUSSION

In its seminal decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that, prior to being subjected to a “custodial interrogation,” an individual must make a knowing and voluntary waiver of his privilege against self-incrimination and right to counsel. The test for determining whether an individual has been subjected to “custodial interrogation” is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of movement or action is being restricted. Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977); Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994).

Therefore, a “custodial interrogation” does not require that the police make a formal arrest, nor that the police intend to make an arrest. Rather, police detention becomes “custodial” when, based on the totality of the circumstances, the conditions and/or the duration of the detention become so coercive as to become the functional equivalent of an arrest. Commonwealth v. Dupre, 866 A.2d 1089 (Pa. Super. 2005). Among the factors that a reviewing court must utilize in making this determination are (1) the basis for the detention, (2) the location of the detention, (3) whether the suspect was transported against his will, (4) how far, and why, (5) whether restraints were used, (6) the show, threat or use of force and (7) the methods of investigation used to confirm or dispel suspicions. Id. at 1106.

With this standard in mind, we must determine, based on the totality of the circumstances, whether the defendant was subjected to a “custodial interrogation” at any time prior to his giving his formal written statement on Tuesday, June 24, 2008, thereby requiring the administration of Miranda warnings. Since there is no dispute that the defendant was not physically deprived of his freedom in any significant way, the sole remaining issue is whether the defendant was placed in a situation in which he could have reasonably believed that his freedom of movement or action was being restricted.

Beginning with Sunday, June 22, 2008, the record indicates that the defendant agreed to come to Reading City Hall to speak to the investigators and that, during the interview, he denied any knowledge or involvement relative to the death of Oscar Sanabria. The defendant was also advised that he was not under arrest and ultimately left Reading City Hall at approximately 10:37 p.m. and walked home. Certainly, then, the defendant could not have reasonably believed that his freedom of movement or action was being restricted in any way on Sunday, June 22, 2008.

Moving on to Monday, June 23, 2008, we note that the defendant does not dispute the admissibility of the oral statement that he gave to Criminal Investigator Kase on the sidewalk in front of 1246 Moss Street during the early afternoon hours. However, he claims that any oral statements which he may have made during the trip to the alleged crime scene in Oley Township, as well as his subsequent oral and written statements given at Reading City Hall, are inadmissible because they were made during the course of a “custodial interrogation.” In making that argument, the defendant relies upon the case of Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977). In that case, the Supreme Court suppressed statements given by a defendant who had been questioned by law enforcement officers on two consecutive days. The Brown court based its ruling on the fact that the defendant was the subject of a “custodial interrogation” at the start of questioning on the second day, because he was transported to the police station by authorities and was questioned about discrepancies in a statement that he made the previous day, without being advised that he was not under arrest.

However, Brown is certainly distinguishable from the case at bar, in that the record shows not only that the contact on Monday, June 23, 2008 was initiated by the defendant, but also that he agreed to take the investigators to the scene of the alleged homicide. He was not restrained in any way during the trip either to or from the alleged homicide scene and the doors of the unmarked police vehicle, in which he was riding, were not locked. In directing the investigators exactly where to go, the defendant certainly could not have reasonably believed that his freedom of action was being restricted. The same is true for the oral and written statements which the defendant gave to the investigators at Reading City Hall later that day. Upon his trip to Reading City Hall, the defendant was advised that he was not under arrest and was free to leave at any time, which he indicated that he understood, and then proceeded to give both the oral and written statements. We also note that, at that time, the defendant asked both criminal investigators not to tell his family about his meetings with them. In our opinion, this shows that he was comfortable enough with the criminal investigators to make this request and, therefore, had no reason to believe that his freedom of movement was being restricted in any way.

That leaves us with the events which took place on Tuesday, June 24,2008. The record shows that, after the defendant called Criminal Investigator Kase to say that he would be late for the follow-up interview, there was no attempt by anyone to bring the defendant in and no threat was made to him regarding any possible failure on his part to appear. Again, we must also note that, before the interview started, the defendant felt comfortable enough to ask the criminal investigators for police protection for his mother and sister. The record also shows that, during the interview itself, the defendant was not restrained or threatened in any way, nor did he indicate that he wanted to leave or that he no longer wished to speak with Criminal Investigator Kase and/ or Trooper Yeity. Therefore, the defendant once again could not have reasonably believed that his freedom of movement was being restricted at any time during that interview.

The record also shows that, after being administered Miranda warnings on two separate occasions at approximately 2:30 p.m. and 3 p.m. that day, the defendant proceeded to give a typewritten statement to the police, which he was given the opportunity to review, make corrections and sign, and in which he indicated that the statement was being made of his own free will. It was only after he admitted in that typewritten statement to shooting and killing Oscar Sanabria that he was subsequently placed under arrest and charged with first-degree murder and multiple offenses arising out of Oscar Sanabria’s death.

CONCLUSIONS OF LAW

(1) Under the totality of the circumstances, the defendant could not have reasonably believed that his freedom of movement or action was being restricted in any way by the police on Sunday, June 22, 2008, Monday, June 23, 2008, and Tuesday, June 24, 2008.

(2) The defendant was not subjected to a “custodial interrogation” on Sunday, June 22, 2008.

(3) The defendant was not subjected to a “custodial interrogation” on Monday, June 23, 2008.

(4) The defendant was not subjected to a “custodial interrogation” on Tuesday, June 24, 2008.

And so, in accordance with the foregoing, we enter the following attached order.

ORDER

And now, February 19,2009, the defendant’s omnibus pretrial motion for suppression of statement/physical evidence is hereby denied.

      . All italicized language in this opinion is for emphasis only.