author: RIZZO, J.,

text:
    Benn v. Board of Pensions and Retirement of the City of Philadelphia

      Bruce S. Allen, for plaintiff.

      Frederick J Gentile, for defendant.
    June 14, 2005
   RIZZO, J.,

— Appellant, City of Philadelphia Board of Pensions and Retirement, appeals from this court’s order of March 24, 2005, reversing the July 15, 2004 decision of the board which denied appellee Don Benn’s petition for service-related disability benefits. For the reasons that follow, the decision of the board was properly reversed.

FACTS AND PROCEDURAL HISTORY

Mr. Benn was employed as an adult probation and parole officer with the First Judicial District for 20 years, from 1977 until 1997. (Findings of the Board of Pensions and Retirement, p. 2.) From February through October of 1996, he was employed as an officer with the Fugitive Task Force of the First Judicial District Enforcement Unit. This was a marked change from his previous position which required mostly desk work. (Board of Pensions and Retirement record, exhibit K, p. 208.) As an officer in the Enforcement Unit, he was responsible for apprehending wanted felons and fugitives. (Record, exhibit I, p. 133.) He was also required to carry a gun. (Record, exhibit I, p. 133.) Mr. Benn received almost no training for his new position, receiving only two to three hours of firearm training and weapon cleaning. (Record, exhibit I, p. 134.) Other Enforcement officers had received many hours of training and testing, which occurred before Mr. Benn’s appointment to the unit. (Record, exhibit I, p. 135.)

After beginning his work with the Enforcement Unit, Mr. Benn began to sense overwhelming fears of death, of killing someone, or of one of his colleagues being killed due to his own lack of training and experience. (Record, exhibit I, p. 134.) Mr. Benn identified two specific stressful experiences that triggered his overwhelming feelings of fear. First, on October 1,1996, Mr. Benn was the first officer to respond to the violent assault and stabbing of a probation officer and a civilian security guard. (Record, exhibit I, p. 134.) He struggled with the perpetrator, and subsequently arrested him. On October 22, 1996, psychologist Dr. John Hartke diagnosed Mr. Benn as suffering from post-traumatic stress disorder (PTSD), as a result of his lack of training and experience for his position with the Enforcement Unit, which was then aggravated by the October 1 incident. (Record, exhibit I, p. 13 8.) As identified by Dr. Hartke, symptoms of PTSD include numbness, slowness of speech, irritability, startle response, nausea, stomach pain, crying jags and fear. (Record, exhibit K, p. 232.)

On October 23, 1996, the very next day, Mr. Benn was hit by a car while attempting to arrest a fugitive. He suffered physical and neurological injuries as a result of this accident. Due to the physical injuries suffered in the car accident, and his previously diagnosed PTSD, Mr. Benn was unable to work for several months.

Mr. Benn did not return to work until March of 1997. His return was against the recommendation of Dr. A. Anthony Arce, a psychiatrist at the City Health Department, who refused to clear his return to work. (Board, p. 13.) Upon his return, Mr. Benn was given no duties but was allowed to report to work daily. (Board, p. 5.) Mr. Benn’s employment with the First Judicial District ended in the summer of 1997. (Board, p. 5.) There is some dispute over the date and manner in which his employment ended, neither of which are relevant to the determination at hand.

Both Doctors Hartke and Bomfriend found Mr. Benn’s PTSD to be permanent, or likely to be permanent. (Record, pp. 138, 140.) As a result of Mr. Benn’s likely permanent PTSD, he is currently receiving both Social Security benefits and workers’ compensation. (N.T., record, p. 59.) In June of 1999, upon application, retroactive to March of 1997, Social Security benefits were granted based on the permanent nature of Mr. Benn’s incapacity. On February 23, 2000, a workers’ compensation judge awarded benefits to Mr. Benn upon the determination that he suffered from work-related post- traumatic stress disorder. That decision was affirmed by the Workers’ Compensation Appeal Board on January 23, 2001. (Record, exhibit N, p. 398.)

In addition, Mr. Benn filed an application for service-connected disability benefits with the Board of Pensions of the City of Philadelphia. The board denied his application on July 15, 2004, finding that Mr. Benn failed to meet his burden of proof as he did not demonstrate permanent incapacity from the performance of the duties of his position, nor could he substantiate that his physical complaints resulted solely from the performance of the duties of his position. (Board, pp. 6-7.) Mr. Benn timely appealed the board’s decision to this court. After briefing and oral argument by the parties, on March 24,2005, this court reversed the decision of the Board of Pensions. Appellant filed a timely appeal of this court’s decision on April 22,2005.

SUMMARY OF ISSUES RAISED ON APPEAL

In the statement of matters complained of on appeal filed pursuant to 1925(b) of the Pennsylvania Rules of Appellate Procedure, the Board of Pensions and Retirement asserts that this court abused its discretion by reversing the Board of Pensions’ decision denying service-related disability benefits to appellee as the court’s decision is against the weight of the evidence, based on the substitution of its own judgment for that of the board when the board’s conclusion was supported by substantial competent evidence.

LEGAL DISCUSSION

The appellate court’s standard of review of the reviewing court’s decision is whether the court committed an error of law or an abuse of discretion. Board of Pensions and Retirement of the City of Philadelphia v. Einhorn, 77 Pa. Commw. 228, 465 A.2d 139 (1983). The reviewing court’s standard of review of the board’s decision is limited to a determination of “whether constitutional rights have been violated, errors of law committed, or whether the findings of fact of the agency are supported by substantial evidence.” 2 Pa.C.S. §754(b); Hetman v. State Civil Service Commission, 714 A.2d 532, 535 (Pa. Commw. 1998). Substantial competent evidence is that which a reasonable mind might accept as adequate to support a finding. O ’Connor Appeal, 444 Pa. 206, 209 n.6, 283 A.2d 279, 280 n.6 (1971).

In making its determination of whether to award a service-connected disability pension, the board must find that, “the employee is mentally or physically totally incapacitated from the further performance of the duties of his position, that such incapacity resulted solely from the performance of his duties, and that such disability is likely to be permanent.” Municipal Retirement System Ordinance §22-401.

The appellant argues that this court’s order reversing the decision of the Board of Appeals was contrary to the evidence presented in the record; namely, that Mr. Benn did not meet his burden of proof that (1) he suffered an incapacity, PTSD, related solely to his employment with the city and (2) that his incapacity is likely to be permanent.

This court’s order properly reversed the decision of the Board of Appeals as the record evidence establishes that Mr. Benn did meet his burden of proof on the above two requirements.

1. Appellee Met His Burden ofProof by Demonstrating That He Suffered an Incapacity Related Solely to His Employment With the City

At the board hearing, Mr. Benn offered evidence that his incapacity was solely related to his employment by showing no previous diagnosis of PTSD at any time prior to his work with the Enforcement Unit. Mr. Benn also presented evidence to the board in the form of opinions from Doctors Hartke, Bomfriend, and Arce that he continues to suffer from PTSD and is not able to return to work. Furthermore, both the Workers’ Compensation Board and the Social Security Administration found that Mr. Benn was totally disabled and continues to be disabled. The workers’ compensation judge based her decision on the credibility of the medical opinions of Doctors Hartke and Bomfriend that Mr. Benn’s PTSD was permanent or likely to be permanent. In light of the evidence, the board improperly found that Mr. Benn’s incapacity is not permanent, or likely to be permanent, as required by the Municipal Retirement System Ordinance.

The evidence relied on by the Board of Pensions in reaching their conclusion was not substantial or competent, and therefore this court’s order reversing the decision of the Board of Pensions was not an abuse of discretion. The board erred in its findings that Mr. Benn’s psychiatric condition was not solely related to his employment, and, in the alternative, that the psychiatric condition was not permanent. The only evidence relied upon by the board in making its decision that Mr. Benn’s post-traumatic stress disorder was not solely related to his work was Mr. Benn’s 1994 diagnosis by Dr. Hartke of “Personality disorder — not otherwise specified.” Evidence that Mr. Benn actually suffered from any mental disease or defect prior to 1996, when Mr. Benn commenced his duties with the Fugitive Task Force, is not substantiated in the record.

Beginning in 1994, Mr. Benn had been required as part of his training as a forensic psychoanalyst at the Philadelphia School of Psychoanalysis to undergo 300 hours of training analysis. He met with Dr. Hartke weekly to complete these training hours. Dr. Hartke offered sworn testimony that he had diagnosed Mr. Benn with “Personality disorder — not otherwise specified,” solely because he was a man over the age of 40 who had never married or fathered children. At no time before beginning his work on the Enforcement Unit was Mr. Benn ever diagnosed with post-traumatic stress disorder. Clearly, Dr. Hartke’s “diagnosis” was not with respect to Mr. Benn’s psychological condition, nor was it related to the later diagnosis of PTSD. Therefore, the board relied on evidence that was neither substantial nor competent when it determined that Mr. Benn’s PTSD was not solely related to his employment.

2. Appellee Met His Burden ofProof by Demonstrating That His Incapacity, PTSD, Was Permanent or Likely To Be Permanent

The board also erred when it concluded that Mr. Benn’s incapacity was not permanent and that he could return to work, as that conclusion is not supported by substantial evidence. The board relied solely on the testimony of Doctors Hanaway and Toborowsky, who concluded that Mr. Benn no longer suffered from post-traumatic stress disorder. Each doctor, however, conducted only one brief examination of Mr. Benn. The board discounted the expert opinions of Dr. Hartke, who has known Mr. Benn since 1994, and Dr. Bomffiend, who has been treating him since 1996. Both doctors familiar with Mr. Benn concluded that his PTSD was permanent or likely to be permanent.

Furthermore, the board erred when it failed to consider as evidence the findings by both the Workers’ Compensation Board and Social Security Administration that Mr. Benn was permanently disabled. Mr. Benn applied for and was granted disability by the Social Security Administration in June of 1999, retroactive to June of 1997, based on his continuing PTSD. (Record p. 635.) The workers’ compensation judge also found Mr. Bern’s disability to be permanent, or likely to be permanent, giving weight to the medical opinions of Drs. Hartke and Bomfriend. (Record pp. 404, 407.) In disregarding this evidence, the board asserted that there is a different standard for awarding workers’ compensation than for service-related disability pensions. However, none of the cases cited by the board in its conclusions of law in support of its decision discuss permanent incapacity. See DeBerry v. Board of Pensions & Retirement, 37 Pa. Commw. 235, 585 A.2d 616 (1991); Drennan v. City of Philadelphia, 106 Pa. Commw. 262, 525 A.2d 1265 (1987); Volkswagen of America v. W.C.A.B. (Russell), 143 Pa. Commw. 69, 598 A.2d 602 (1991). These cases point only to a difference between the standards of workers’ compensation and the Board of Pensions in granting claims for previously existing and employment aggravated conditions. Therefore, the board was incorrect in disregarding the conclusions of the Workers’ Compensation Board and the Social Security Administration as evidence of the permanent nature of Mr. Benn’s incapacity.

In light of the evidence presented by Drs. Hartke and Bornfriend, and the findings of the Workers’ Compensation Board and Social Security Administration, the opinions of Drs. Toborowsky and Hanaway were not substantial or credible evidence, and the board was incorrect in relying upon it in reaching their conclusion that Mr. Benn’s incapacity was not permanent.

CONCLUSION

■ For the aforementioned reasons, this court’s order of March 24, 2005 should be affirmed.

EXHIBIT “A”

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Where the Board of Pensions and Retirement concluded that employee failed to prove that he suffered an incapacity from the performance [sic] his employment with the City of Philadelphia solely related to his employment with the City, did not the court commit error by reversing the Decision of the Board of Pensions and Retirement where there [sic] record is devoid of any expression of opinion that such condition is permanent in nature, or likely to be permanent?

Where the Board of Pensions and Retirement concluded that employee failed to prove that he suffered an incapacity and where there is substantial competent evidence to support this conclusion, did not the court commit error by substituting its own determination for that of the Board of Pensions?

      . The board, in its findings of fact and conclusions of law, found that the Enforcement Unit was dissolved in August of 1996. However, this is contrary to all evidence presented which shows that the unit was in fact dissolved in October of 1996. See record, N.T., p. 78; see also, record, exhibit 1, p. 119.

      . Mr. Benn has seen a series of mental health professionals following his employment with the Enforcement Unit. Mr. Berm’s relationship with Dr. Hartke, however, began in 1994, when Mr. Benn began a course of study for his degree in forensic psychoanalysis. As part of his degree requirement, Mr. Benn was required to personally undergo 300 hours of psychoanalysis. Mr. Benn’s relationship with Dr. Hartke changed from student/teacher to patient/doctor on October 22, 1996, when Dr. Hartke diagnosed him with post-traumatic stress disorder. Following this diagnosis, Mr. Benn also saw: (1) Dr. Lynn Bomffiend, a practicing psychiatrist with the City Police and Fire Counseling Service, beginning November 6,1996. She also diagnosed him with post-traumatic stress disorder; (2) Dr. Anthony Arce, City Health Department psychiatrist, on March 12,1997. Dr. Arce corroborated Dr. Bornfriend’s diagnosis of PTSD; (3) Dr. Robert M. Toborowsky, psychiatrist and consultant to the Board of Pensions in this case, for one meeting on February 3,1998. Dr. Toborowsky found that Mr. Benn did not suffer from PTSD, and that he was not disabled from his job duties; (4) Dr. Andrea Hanaway, co-chair of the Medical Panel of the Board of Pensions, who referred Mr. Benn to Dr. Toborowsky, agreed with Dr. Toborowsky’s findings in a report dated March 10, 1998.

      . See attached exhibit “A” for appellant’s full statement of matters complained of on appeal.


source: Caselaw Access Project

author: BLACK, J,

license: Public Domain

text:
    Commonwealth v. Rivera

      C.P. of Lehigh County,
    no. 2004/4257.

      Maria Dantos, for Commonwealth.

      Glennis L. Clark, for defendant.
    May 17, 2005
   BLACK, J,

Defendant, Fernando Luis Rivera, is charged with two counts of criminal homicide in the shooting deaths of Bernardo Salcedo and Enrique Galoan-Rosas on Chew Street in Allentown, Pennsylvania, on October 26,2003. Defendant is also charged with two counts of robbery, one count of possessing an instrument of crime, and one count of criminal conspiracy arising from the same incident.

Before the court are defendant’s omnibus pretrial motions, which include (1) a motion for change of venue, (2) a motion for severance, (3) a motion to strike notice of intent to seek the death penalty, (4) a motion to suppress statements made by defendant to Allentown Police Detectives Thomas M. Fallstitch and Robert Palmer, (5) a motion to quash the information, (6) a motion to compel discovery, (7) a motion for the production of photographs in the Commonwealth’s possession, and (8) a motion for an extension of time for filing additional omnibus pretrial motions.

A hearing on these motions was held on February 22, 2005. At that time defendant withdrew the following motions as moot: (1) the motion to compel discovery, based on the Commonwealth’s representation that all discovery material had been provided; (2) the motion for photographs, since defendant had received them; and (3) the motion for severance, since the Commonwealth stated that defendant would be tried separately. In addition, the court allowed defendant an extension for the filing of additional omnibus motions, as requested. The remaining motions are discussed below.

I. MOTION FOR CHANGE OF VENUE

Defendant seeks a change of venue pursuant to Pa.R.Crim.P. 584, on the ground that the pretrial publicity given to this case in the news media prevents him from receiving a fair trial in Lehigh County. Rule 584 states the following:

“All motions for change of venue or for change of venire shall be made to the court in which the case is currently pending. Venue or venire may be changed by that court when it is determined after hearing that a fair and impartial trial cannot otherwise be had in the county where the case is currently pending.”

Such a motion is based on the guarantee of an impartial juiy provided in Article 1, Section 9, of the Pennsylvania Constitution and the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. See Commonwealth v. Stevens, 543 Pa. 204, 670 A.2d 623 (1996).

Whether to grant a change of venue lies within the discretion of the trial court. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992); Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989). Generally, a defendant seeking a change of venue on the basis of pretrial publicity must show actual prejudice in the impaneling of the jury. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978); See also, Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035 (1990). However, where the publicity has been so sustained, so pervasive, so inflammatory and so inculpatory that there is a substantial likelihood that defendant cannot receive a fair trial, then a change of venue will be appropriate, even without proof of actual jury prejudice. Casper, 481 Pa. at 151, 392 A.2d at 291.

In the instant case, defendant argues that articles published in The Morning Call, a newspaper of general circulation in Lehigh County, contained inflammatory and prejudicial information about the crimes at issue. After the omnibus pretrial hearing, defendant submitted copies of eight articles published in The Morning Call between October 27, 2003, and December 8, 2004. Defendant claims that, as a result of these articles, he is unable to get a fair and impartial trial in Lehigh County.

In determining whether pretrial publicity requires a change of venue, a court is to follow a three-step process. First, the court must analyze the pretrial publicity to determine whether the material circulated is inherently prejudicial. In doing so, the court is to consider: (1) whether the publicity was factually or objectively oriented, as opposed to being inflammatory or sensational, demanding a conviction; (2) whether the publicity revealed a prior criminal record on the part of defendant; (3) whether the publicity referred to confessions, admissions, or reenactments of the crime by defendant; and (4) whether the publicity indicated that the information revealed was from police or prosecutorial reports. Casper, 481 Pa. 152-53, 392 A.2d at 292; see also, Breakiron, 524 Pa. at 287, 571 A.2d at 1037.

If any one of these four elements appears in the pretrial publicity, the court must then proceed with a second step, which is to ascertain how extensive and sustained the publicity has been, focusing on the pervasiveness of the publicity as well as the size and area of the community involved. Casper, 481 Pa. at 153, 392 A.2d at 292. The purpose of such an analysis is to determine if the area from which the jury will be drawn has been saturated with this publicity. Id.

Finally, if the nature of the publicity is found to be inherently prejudicial and this publicity is found to have saturated the area from which the jury will be selected, the court must then follow a third step, which is to determine if “there was a sufficient proximity in time between the publicity and the selection of a jury such that the community from which the jury was drawn did not have the opportunity to ‘cool down’ from the effects of the publicity, thus making a fair trial in this community impossible.” Breakiron, 524 Pa. at 287, 571 A.2d at 1037.

After reviewing the articles submitted, we find that one of them was inherently prejudicial. The article published on December 8, 2004, reported on the preliminary hearing before District Justice David Leh and referred to testimony of police detectives about inculpatory statements by defendant. Police detectives are quoted in the article as testifying, “He said he didn’t mean to kill anyone, that it just happened.” Given the content of this article, we must presume that it was prejudicial to defendant. Commonwealth v. Karenbauer, 552 Pa. 420, 434, 715 A.2d 1086, 1092(1998).

We note, however, that the prejudicial statements were limited to the December 8, 2004 article. The remaining seven articles were factually oriented about the crime and did not make reference to defendant’s inculpatory statements. The tone of these other articles was not inflammatory. Some of the articles contained statements from defendant’s neighbors that violent activity had been increasing in their neighborhood, but none of the material came even close to implicating defendant or calling for or demanding a conviction. None of the articles referred to a prior criminal record.

Although the December 8,2004 article was inherently prejudicial, we find that the pretrial publicity in toto was not so sustained or pervasive as to have saturated the community. See Commonwealth v. Young, 561 Pa. 34, 66-67, 748 A.2d 166, 183 (1999). The Morning Call does have a substantial circulation in Lehigh County, but we do not believe that the eight articles published in this newspaper over a period of six months, none of which was inflammatory in tone and only one of which made reference to inculpatory statements, could conceivably have saturated the community with prejudicial material about this case. Hence we are unable to conclude that Lehigh County was saturated with prejudicial media coverage.

Finally, addressing the third step, we must consider whether there has been a considerable delay between the prejudicial media coverage and the trial itself. We conclude that there has been. All eight articles were published on or before December 8, 2004, almost nine months prior to the scheduled trial date of September 6, 2005. As a result, there has been a substantial cooling-off period, sufficient for any prejudicial effect of the media coverage to have dissipated. See Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981) (five- and-a-half-month cooling-off period sufficient); Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985) (six-month cooling-off period sufficient); Commonwealth v. Atkinson, 364 Pa. Super. 384, 528 A.2d 210 (1987) (five-month cooling-off period sufficient); see also, Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994) (denying change of venue motion even though some objectionable articles appeared two months prior to trial where the bulk of the sensational reports occurred approximately seven months prior to trial).

For the reasons stated, we do not believe that defendant has established a sufficient basis for a change of venue. We note that there have been prior Lehigh County cases that generated much greater publicity, and publicity that was much more inflammatory than anything in this case. Yet in none of these cases was actual prejudice found in the jury selection process. See e.g., Commonwealth v. Rorrer, C.C.P. Lehigh, no. 2176/1997 (defendant charged with kidnapping and killing former husband’s wife and her four-month-old child); Commonwealth v. Robinson, C.C.P. Lehigh, no. 55/1994 (alleged serial rapist and killer). Therefore, we do not anticipate that the pretrial publicity will present any difficulty in selecting a fair and impartial jury for this case. Defendant has not submitted any statistical survey information that would lead us to believe otherwise. Accordingly, defendant’s motion for change of venue is denied.

II. MOTION TO STRIKE NOTICE OF INTENT TO SEEK THE DEATH PENALTY

At the February 22, 2005 hearing, defendant’s counsel conceded that the Commonwealth’s notice to seek the death penalty meets the legal standards for seeking the death penalty under current appellate law in the Commonwealth. In light of this, defendant’s motion to strike the notice of intent to seek the death penalty is denied.

III. MOTION TO SUPPRESS STATEMENTS TO POLICE

Defendant contends that the statements he made to Allentown Police Detectives Thomas M. Fallstitch and Robert Palmer on February 5,2004, should be suppressed on two grounds — first, that the detectives continued questioning him after he had invoked his right to counsel and his right to remain silent; and, second, that he did not make a knowing, voluntary waiver of these rights. At the hearing on defendant’s motion to suppress, Detectives Fallstitch and Palmer both testified for the Commonwealth regarding their interrogation of defendant on this date. The Commonwealth also offered into evidence the rights and warning waiver form signed by defendant and the typed interview notes of Detective Palmer. Defendant did not offer any evidence at the hearing.

Based on the evidence presented, we find that the interrogation of defendant did continue after he had invoked his Miranda right to remain silent. Accordingly, his statements to Detectives Fallstitch and Palmer on February 5,2005, after he informed them he did not want to answer questions about the incident must be suppressed.

A. Findings of Fact

The following facts were established at the hearing: On February 5,2005, Allentown Police Detectives Thomas M. Fallstitch and Robert Palmer traveled to Manhattan, New York, for the purpose of interviewing defendant about the double homicide with which he had been charged. Defendant had been apprehended and was being held in custody by the New York Police Department on an outstanding fugitive warrant in connection with this charge. He was held in the central booking area known as the Tombs.

Initially, the detectives met with defendant briefly in a holding cell in the basement area of the Tombs. This cell was a large, empty room; only defendant and the two detectives were present. Detective Fallstitch introduced himself and Detective Palmer. He then told defendant that they had come from Allentown and wanted to speak to him regarding the double homicide for which he had been arrested. Defendant indicated that he had no problem talking with the detectives, but that there were some things he would not talk about. Detective Fallstitch told defendant that was fine. He said that the detectives would meet up with defendant later when they would have more time to talk. The meeting was then adjourned so that prison officials could complete defendant’s intake processing.

After the processing was finished, defendant met with Detectives Fallstitch and Palmer a second time later that day. The second meeting took place around midnight in an old holding cell that had been turned into a “break” room. The room was approximately 15 feet by 15 feet in size, and contained lockers, desks, chairs, refrigerator and a sofa. Defendant was not handcuffed. Only the two detectives were present with defendant in the room for most of the meeting, though there were occasional interruptions by others moving in and out of the room. A sergeant’s station was located outside the door of the room, within sight of defendant. The detectives were unarmed, their weapons having previously been secured in a locked facility. Prison officials did not permit the detectives to bring any recording devices with them to the meeting room.

At the start of this second interview Detective Fall-stitch again introduced himself and Detective Palmer. He indicated that they were there in reference to defendant’s arrest warrant on the charge of two counts of homicide arising from an incident on Chew Street in Allentown. Detective Fallstitch stated that he would like to speak with defendant regarding that incident and presented him with a Miranda rights and waiver form. Detective Fallstitch read this form to defendant and gave him an opportunity to review it himself. Defendant read the form and then signed it. He appeared to understand the form and had no questions about its content.

After signing the Miranda rights and waiver form, defendant stated to the detectives that he was aware of the charges and that “he did not want to talk specifically about the incident but would answer some of Fallstitch’s questions.” Detective Fallstitch then proceeded to ask defendant some questions about the incident. Detective Fallstitch said to defendant that he wanted to know “why this happened, how it happened, his side of the story.” In response defendant made the following statements:

• I feel sorry but I can’t change what happened, what I did.

• I was waiting for you to come. I’m glad it’s over.

• I know what I did.

The following colloquy ensued:

• Fallstitch: I have everything I need to go through with this.

• Rivera: I know you do. I know what I did and it was wrong.

• Fallstitch: The truth always sets you free.

• Rivera: I know, I know.

• Fallstitch: Why did this happen?

• Rivera: I don’t trust people because of my shoplifting case. People didn’t believe me.

• Rivera: I didn’t plan to kill anyone. It just happened.

• Fallstitch: I want to hear your side of the story.

• Rivera: I would love to tell you but I can’t until I see a lawyer.

At this point defendant declined to speak further with the detectives without first speaking with an attorney. The detectives then concluded the interview. It had lasted approximately 30 minutes.

During the interview Detective Fallstitch had asked all the questions. Detective Palmer had sat off to the side and made notes, which he later typed up. These typewritten notes were admitted into evidence as Commonwealth exhibit 2.

B. Discussion and Conclusions of Law

In Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court enunciated the following rule for police questioning of a person in custody:

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”

The court elaborated on this principle in Michigan v. Mosely, 423 U.S. 96, 103-104 (1975) as follows:

“Through the exercise of his option to terminate questioning he (the suspect) can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether the ‘right to cut off questioning’ was ‘scrupulously honored.’ ”

In U.S. v. Tyler, 164 F.3d 150 (3d Cir. 1998), cert. denied, 526 U.S. 1077 (1999), the Third Circuit reaffirmed the duty on the part of police to “scrupulously honor” a defendant’s right to remain silent. The court held that, once a defendant declares that he does not wish to make a statement, the police may not initiate or continue any further questioning of defendant. See also, Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (holding that restatement of rights and re-inititation of interrogation by police do not overcome defendant’s prior invocation of right to counsel); Commonwealth v. Zook, 520 Pa. 210, 553 A.2d 920 (1989) (holding that defendant’s request to call his mother to get an attorney was an invocation of Miranda rights, requiring that further questioning must end). In Commonwealth v. Peterson, C.C.P. Lehigh, no. 1999/3684 (April 13, 2000), our colleague, the Honorable Robert L. Steinberg, extensively summarized the case law on this topic.

In Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973), the defendant, who had been arrested for robbery and murder, invoked his right to counsel and refused to answer questions until counsel was provided. The police shortly afterwards read to the defendant a statement made by an accomplice, who implicated the defendant in the crime. This prompted the defendant to waive his right to counsel and confess. The court held that, despite the defendant’s waiver of his right to counsel, the confession was inadmissible because the reading of the accomplice’s statement, which prompted the waiver and confession, was tantamount to continued police interrogation. The court stated:

“[RJeading the statement after appellant had exercised his Miranda rights was totally impermissible. Interrogation should have ceased once the appellant exercised his constitutional rights, and, since we hold the reading of the statement of a third party to appellant was a form of interrogation, obviously interrogation did not cease. Hence, the police violated the mandate of Miranda.” Id. at 215, 302 A.2d at 340.

In the instant case, the detectives immediately stopped questioning defendant once he made a request for assistance of counsel. However, Detective Fallstitch did not “scrupulously honor” defendant’s right to remain silent. According to Detective Palmer’s written interview summary, after defendant signed the Miranda rights and waiver form, defendant stated that “he did not want to talk specifically about the incident but would answer some of Fallstitch’s questions.” At this point interrogation about “the incident” should have ceased. One would have to be very naive to interpret defendant’s reference to “the incident” as a reference to anything other than the double homicide on Chew Street in Allentown for which defendant had been arrested, and which the detectives had informed him was the reason for their visit.

In order to invoke the right to remain silent, a defendant must make some statement or gesture that can be reasonably construed as an expression of that right. Here defendant did so. Under the legal principles noted above, once defendant stated that he did not wish to talk “specifically about the incident,” interrogation designed to elicit information about that incident should have ceased.

The Commonwealth argues that, before making the inculpatory statements, defendant had indicated that he would answer some of Detective Fallstitch’s questions. However, defendant’s agreement to answer some questions was accompanied by his statement that he did not want to talk specifically about the incident. Any reasonable interpretation of defendant’s complete statement is that, while he would discuss some matters with the detectives, he was not willing to discuss the double homicide for which he had been taken into custody.

Detective Fallstitch did not “scrupulously honor” defendant’s invocation of his right to remain silent regarding the double homicide. Instead, the detective immediately proceeded to ask questions that were clearly intended to elicit information about this incident. In doing so, Detective Fallstitch violated defendant’s right to remain silent under the Fifth Amendment of the United States Constitution.

The Commonwealth relies on the case of Commonwealth v. Lark, 316 Pa. Super. 240, 462 A.2d 1329 (1983), but this reliance is misplaced. In Lark, the defendant stated to the police interrogators that he would not talk about the murder for which he had been arrested, but that he would talk about everything else. He then proceeded to confess to a robbery. Thus, Lark is the converse of this case. In Lark, the inculpatory statement from defendant related to an incident other than the murder that he had stated he would not discuss. Here defendant was interrogated about the very incident he said he did not wish to discuss. Such interrogation was clearly in violation of defendant’s constitutional rights.

For these reasons, the inculpatory statements made by defendant on February 22, 2005, in response to questions from Detective Fallstitch, after defendant had said he did not wish to talk specifically about the incident, are inadmissible at the trial of this case. Defendant’s motion to suppress these statements must therefore be granted.

IV. MOTION TO QUASH THE INFORMATION

Defendant claims that the evidence presented at the preliminary hearing held before District Justice David Leh on December 7, 2004, was insufficient to establish probable cause. He contends that there is no direct evidence against him.

However, the transcript of the preliminary hearing reveals that the alleged co-conspirator, Rienaldo Ortiz, testified very specifically about defendant’s role in the double homicide. Ortiz testified that, on the night of October 26, 2003, he, along with Luis Lugo, Miguel Morales and defendant, intended to steal cocaine from the victims, and that, during the transaction, defendant shot both of the victims. This testimony clearly implicates defendant in the crimes with which he has been charged.

Defendant argues that Ortiz was a co-conspirator. However, a criminal conviction may rest upon the uncorroborated testimony of a co-conspirator. Commonwealth v. Gordon, 254 Pa. Super. 267, 385 A.2d 1013 (1978). The credibility of Ortiz is for the fact-finder to determine. His testimony against defendant is sufficient to establish probable cause. Hence defendant’s motion to quash the information is denied.

ORDER

Now, May 17,2005, upon consideration of defendant’s omnibus pretrial motions filed January 21,2005, and after hearing thereon, for the reasons set forth in the accompanying opinion, it is ordered as follows:

(1) Defendant’s motion for change of venue is denied.

(2) Defendant’s motion for severance is withdrawn as moot.

(3) Defendant’s motion to strike notice of intent to seek death penalty is denied.

(4) Defendant’s motion to suppress statements made on February 5, 2005, to Allentown Police Detectives Thomas M. Fallstitch and Robert Palmer is granted, and the statements are suppressed.

(5) Defendant’s motion to quash the information is denied.

      . 18 Pa.C.S. §2501(a).

      . 18 Pa.C.S. §3701.

      . 18 Pa.C.S. §907.

      . 18 Pa.C.S. §903.

      . Pa.R.Crim.P. 584(A).

      . Stipulation filed March 17,2005.

      . The trial date has been twice postponed at defendant’s request to allow his counsel more time to prepare.

      . Commonwealth exhibit 1.

      . Commonwealth exhibit 2.

      . The recollections of Detectives Fallstitch and Palmer of their meetings with defendant differed in some respects. In this circumstance we have placed considerable reliance on the interview notes prepared contemporaneously by Detective Palmer.

      . Commonwealth exhibit 1.

      . Commonwealth exhibit 2.

      . Notes of testimony of hearing 2/22/05 at 21-22.

      . Commonwealth exhibit 2.

      . Id.

      . Commonwealth exhibit 3.

      . N.T. 12/7/04, 19.

      . N.T. 12/7/04, 21.


author: GRIM, P.J.,

text:
    Berta v. Michener
    C.R of Berks County,
    no. 04-10259.

      John A. Boccabella, for plaintiffs.

      Allan R. Kauffman, for defendants.

      April 26, 2005
   GRIM, P.J.,

— The matter before the court is plaintiffs’ complaint for partial custody. The following are the pertinent facts.

Plaintiff, Pamela Berta (Grandmother), is the maternal grandmother of the subject minor child, Andrew Jason Michener, bom May 31, 2000. Plaintiff, Dale Berta (Grandfather), is married to Grandmother and is the child’s stepgrandfather. Defendant, Jennifer Michener (Mother), is Grandmother’s oldest child and is the child’s mother. Defendant, Jason Michener (Father) is the child’s father and Mother’s ex-husband.

Mother and Father were not married prior to the child’s birth. When Mother was pregnant, Father decided to attend a technical school in Arizona. Mother accompanied him to Arizona where the child was bom. Father quit school and was unemployed. When the child was three weeks old Mother had to get a job to support the family. Mother became overwhelmed by the pressure of working, caring for a newborn infant, and Father’s lack of help. Mother was upset that Father did not even change the child’s diapers. They argued frequently. During one of their arguments, Father pushed Mother while she was holding the baby.

Mother asked Grandmother to pick up the child and her to return to Pennsylvania. Father threatened Mother that, if she left him, he would hunt her down and take the child. Nevertheless, Grandparents traveled to Arizona and brought Mother and the child back to Pennsylvania. Father eventually returned to Pennsylvania by himself.

The child was six weeks old when he and Mother went to live with Grandparents. They lived with Grandparents until September 2003, when Mother got her own apartment. Grandparents provided care for the child whenever Mother needed it during the period when Mother and Andrew lived with them. In October 2003, Father moved into Mother’s apartment. He continues to reside there.

After Mother moved out, she initially stayed in contact with Grandparents, and Grandparents continued to provide childcare for Andrew. Without notice to Grandparents, Parents stopped allowing Grandparents contact with the child in June 2004, after the child had stayed with them for a weekend. Grandmother had not perceived any problems in her relationship with Mother.

Grandparents clearly love and adore the child. Mother also testified that the child loves his grandparents and misses them.

Prior to June 2004, the child was having behavioral problems at his daycare. He had outbursts of temper and even threw a chair on one occasion. Grandmother encouraged Mother to make an appointment with the child’s pediatrician. Mother delayed in doing so. Grandmother offered to take the child herself but Mother declined her offer. Mother eventually took the child to his pediatrician in March or April 2004. The pediatrician recommended that the child be given more structure. He suggested that the child be placed on a schedule and that certain foods be limited. He also recommended that a strict adherence be paid to the child’s nap and bedtimes. The child adjusts better to a structured play rather than free time.

Mother communicated with Grandmother regarding the recommendations but did not give many details to her. Mother stressed to her that naps and bedtimes had to be enforced.

On the last weekend that Grandparents saw the child, Mother told them that the child must be in bed by 8 p.m. and take an afternoon nap. Grandmother read a story to the child and put him in bed at 8 p.m. The child was excited about visiting Grandparents and would not go to sleep. Grandmother tried several things to get him to go to sleep, including sleeping with him. The child finally fell asleep at 10 p.m.

Grandmother testified that she loves Andrew dearly and would never hurt him. She wants to have a relationship with him. Mother did not give Grandmother any reason for not allowing her to see Andrew.

Grandmother describes her relationship with Father as one of tolerance. She is civil to him and does not believe that she denigrated him in the child’s presence. Grandmother does not care for the way Father treated Mother in the past and she has told Mother she does not like him.

Mother and Father married in 2001 so Father could live in a house in Allentown that belonged to one of Mother’s relatives. They never lived together during their marriage. Grandmother helped to pay for Mother’s divorce in 2002.

Grandfather testified that Andrew has always been glad to see him. The child refers to him as “Pop-Pop.” Grandfather dearly loves the child. Grandfather does not care for Father due to the way he had treated Mother.

Mother testified that when she and Father had been living in Arizona their relationship had deteriorated. They had no money or friends. Mother had called Grandmother to rescue the child and her because she had been their only option. At that time Mother had been working as a waitress in a bar to support the whole family.

Mother believes that Grandmother is very controlling and wants to control her life. In the past Mother allowed Grandmother to be in control because she dislikes confrontations. She believes that her relationship with Grandmother was not a close relationship because she had always been fearful of the consequences in not agreeing with Grandmother.

In the beginning, when Mother and the child were living with Grandmother, Grandmother had asked for permission to do things with Andrew. However, the longer Mother had lived with her, the less Grandmother had requested permission and had just taken control.

Andrew had temper tantrums when Mother lived with Grandmother. Mother believes that Grandmother aggravated the child’s tantrums by condoning them; Grandmother allowed the child to do or get whatever he wanted.

Mother had trouble paying for the child’s daycare. To help out with the costs, Grandmother watched the child twice per week and during the weekend. During one week when Grandmother did not have contact with the child, Andrew behaved well at the daycare center. Mother believes that this was due to less interruption in the child’s routine.

Mother invited Father’s family and Grandparents to her residence for the child’s birthday in May 2004. Grandmother refused to come because she did not want to socialize with Father’s family. Grandmother threw her own party for Andrew.

Mother is disturbed that Grandmother makes negative comments to her about Father. Grandmother has referred to Father as, inter alia, an idiot and a sperm donor.

Mother believes that her relationship with Father is better than it has ever been. Grandmother’s opinions about Father and the custody proceeding have caused a lot of stress between Mother and Father. Most of their arguments are about the custody proceeding. Mother thinks that their relationship would likely become contentious if Andrew sees Grandmother in the future.

Mother and Father do not have much extra money. The custody proceeding exhausts their funds. Father has been unemployed since November 2004. Mother has a full-time job and a part-time job on weekends as a waitress.

Father criticizes Mother about her relationship with Grandmother. Fie believes that she has learned negative behavior from Grandmother and has low self-esteem and confidence.

Mother does not want Andrew to be under Grandmother’s control. She wants the child to develop confidence. Therefore, Mother does not want the child to have any contact with Grandmother. She admits, however, that Grandmother and the child established a bond when they were living together and that it continues between the two even after separation. Andrew sees his paternal grandmother and her boyfriend approximately once a month so he continues to have a relationship with a grandparent.

The child currently attends daycare during the week. It costs Mother $468.00 per month. Father watches the child on weekends.

The child suffers from asthma and is sensitive to cigarette smoke. Mother, Father, and the paternal Grandmother’s boyfriend smoke; however, no one smokes in the child’s presence. Andrew also has a reaction to animal dander. The parties agree that dogs affect him. Grandmother has cats and had them when the child resided with her. Mother contends that feline dander also harms the child; Grandmother maintains that it does not.

Father believes that the problem between Grandmother and him is that Mother chose him over Grandmother. Father thinks that Mother has stopped being a victim and blaming herself for everything. Mother and Father continually fought about Mother’s relationship with Grandmother. His relationship with Mother has definitely improved since Grandmother has ceased to be involved in their lives. Father does not want to repair his relationship with Grandparents.

Father testified that on one occasion Andrew had called him a derogatory name that he had heard from Grandmother. Mother, however, has never heard the child address Father by a derogatory appellation.

Father wants the child to attend daycare in order to maintain the child’s routine. Andrew enjoys his friends there. Father further believes that, since the child stopped having contact with Grandmother, he has become a lot less combative and complaining.

The assistant director of the child’s former daycare facility testified that the child and Grandmother had always been happy to be together and that she had never seen Grandmother do anything detrimental. The witness saw a dramatic difference in the child’s behavior when the child stopped seeing Grandmother. The child would not follow directions and was louder and more aggressive than before.

Gilbert M. Foley Ed.D. performed a psychological evaluation on the child to determine if visits with Grandparents are in his best interests. Dr. Foley met with just Andrew and his parents. Dr. Foley determined that the child has emotional ties to Grandparents. The child spontaneously brought up Grandmother and Grandfather in his conversations with Dr. Foley. Andrew misses them and would like to see them.

Dr. Foley testified that it would not be in the child’s best interests to sever his ties with Grandmother and that it would be in his best interests to see Grandparents. Dr. Foley does not know if the relationship between Parents and Grandparents can be repaired or if a reconciliation is possible. It is sufficient for the child’s sake if the parties just have a truce. Some degree of compromise is needed for the child’s emotional health. Andrew is in a conflict of loyalty and must be sprung from his position in the apex of a triangulation, which is the source of considerable anxiety, ambivalence, and anger for him. Dr. Foley believes that Andrew’s behavioral problems are related to the multiple changes and losses and conflict he has sustained.

When a child loses a figure with whom he has emotional ties, it sends a message to him that human relationships are likely to rupture. This prohibits a child from forming close ties in the future. Dr. Foley is very concerned about this situation occurring with Andrew.

In a grandparent custody/visitation case, the guiding polestar remains the child’s best interests. Johnson v. Diesinger, 404 Pa. Super. 41, 589 A.2d 1160 (1991). Grandparent visitation is preferred unless there are overriding factors. Bishop v. Piller, 399 Pa. Super. 52, 581 A.2d 670 (1990), affirmed, 536 Pa. 41, 637 A.2d 976 (1994).

In the case sub judice it is undisputed that the child loves Grandparents and Grandparents adore Andrew. Grandmother presents no danger to the health or safety of this young child. Mother and Father relied on Grandmother to care extensively for Andrew. They, in fact, actively encouraged the bond that developed between Grandmother and child.

The problem lies not in the relationship between Grandmother and Andrew, but the lack of a relationship between Grandmother and Father. There is no legal bond between the two; Mother divorced Father several years ago. Therefore, Grandmother does not legally owe Father any duties or obligations.

Father is disturbed that Grandmother does not like him. Needless to state, he does not like Grandmother. However, all parties and witnesses agree that, despite her feelings towards Father, Grandmother treated him civilly. She did not harass him or threaten him. The court cannot order parties to like each other. The most it can do is order parties to treat each other civilly; the parties are already doing so in the instant case.

Father contends that Grandmother makes derogatory remarks about him to the child or in the child’s presence. Grandmother denies doing so. Father bases his claim on the fact that once the child had called him a derogatory name that he had claimed he had learned from Grandmother. No one else has heard the child call Father a derogatory name. Neither does Father cite any other episodes.

If Grandmother denigrated Father in the child’s presence, it was wrong. A child deserves to love and respect both of his parents and the other important adults in his life. However, one occurrence or several incidents do not rise to the level of sanctioning a prohibition against contact. The court will order supervised visitation for the initial visits. If nothing untoward occurs, then unsupervised visitation will commence.

Mother and Father attempt to persuade the court that the child’s behavior improved when he was no longer in contact with Grandmother, and that the absence of such contact was the reason for the improvement. However, the parents have not presented any evidence that supports this assumption. Grandmother, on the other hand, presented an administrator from the child’s former daycare who testified that, after stopping the contact between Grandmother and child, Andrew’s behavior actually worsened.

Dr. Foley believes that Andrew’s behavioral problems are related to the multiple changes and losses and conflict that he has sustained. One of Andrew’s losses is Grandmother. Dr. Foley believes that, if the emotional damage is severe enough, it will affect the child’s future relationships. He thinks that it is in Andrew’s best interests to have visitation with Grandmother.

Mother and Father are unable to produce any concrete evidence that there would be any detriment to Andrew by spending time with Grandmother. Their concerns are not substantiated. Grandmother has never interfered with the parenting of Andrew. The child’s parents are his primary attachments.

For the above reasons, the court will award partial physical custody of Andrew to Grandparents.

Father believes that Grandmother is mad because Mother chose him. However, this is not a game, and Andrew is not the prize. The court will appoint a guardian ad litem for Andrew to oversee the situation. Andrew is not to be put in the middle by any party. The guardian ad litem will report to the court if the child is being put in the middle of the parties’ war.

The parties have raised issues about the child’s asthma. Therefore, the court order will provide that no one will smoke in the child’s presence and that Grandmother will remove her cats from the areas in which the child will come into contact.

In accordance with the foregoing opinion, the court enters the following order.

ORDER

And now, April 26,2005, it is hereby ordered and decreed as follows:

(1) Defendants shall have sole legal and primary physical custody of the minor child, Andrew, date of birth, May 31, 2000.

(2) Plaintiffs shall have partial physical custody of the minor child as follows:

(a) Plaintiffs shall have partial physical custody on alternate weekends from Friday after school or 4 p.m. until Saturday at 7 p.m.

(b) If Grandmother is able to provide childcare on a weekly basis on the same day, she may provide care for the child on that day. Since the child is already in daycare, defendants’ time with the child will not be affected. By choosing a designated day, the child will still have an established routine. Grandmother shall notify the guardian ad litem, designated below, of her selection if she desires to exercise her right under this provision.

(c) Plaintiffs shall have one week of uninterrupted vacation each summer with the minor child. Plaintiffs shall provide defendants with their selection under this paragraph by May 1 of each year except for the year 2005 when notice shall occur by June 3, 2005.

(d) At such other times as the parties may agree.

(e) Notwithstanding the foregoing, plaintiffs shall have custody for Grandparents’ Day each year from 9 a.m. to 7 p.m. If Grandparents’ Day is on the weekend of plaintiffs’ custodial period, then plaintiffs may retain custody of the child overnight on Saturday.

(f) In even-numbered calendar years, plaintiffs shall have partial physical custody from December 23 at 9 a.m. or after school until December 24 at 7 p.m. In odd-numbered calendar years, plaintiffs shall have partial physical custody of the child from December 26 at 9 a.m. until December 27 at 7 p.m.

(3) Jeffrey J. Howell, Esquire, is appointed guardian ad litem for the child. He is to resolve any conflicts which may arise between the parties concerning Andrew. His decision is final except that the parties shall always have recourse to petition the court to determine the child’s best interests in the event that they believe that the decision is clearly not in the child’s best interests. If the court finds that recourse to the court was unreasonable, then counsel fees shall be awarded against that party. Plaintiffs shall pay 50 percent and defendants shall pay 50 percent of Mr. Howell’s fees unless Mr. Howell believes that certain parties were unreasonable, in which case the court may assess the costs against the parties in a different proportion.

(4) The parties shall not disparage or denigrate the other parties in the presence of the child or permit others to do so.

(5) Before the implementation of paragraph 2 of this order, Grandparents’ partial physical custody periods shall be supervised by R.A.I.S.E. for two periods. The periods shall occur on alternate Saturdays for a period of no less than four hours and at a time to be mutually agreed upon by the supervisor and the parties. Failing agreement, the periods shall begin at 10 a.m. and end at 2 p.m. If two periods have already occurred pursuant to the order dated April 7,2005, then this provision is moot. The parties shall equally share the costs associated with the supervision.

(6) During Andrew’s custodial periods with them, Grandparents shall remove the cats from the areas with which Andrew will come into contact.

(7) No party shall smoke in the child’s presence or permit others to do so.


author: NANO VIC, RJ,

text:
    Callaghan v. PennDOT

      C.P. of Carbon County,
    no. 04-3254.

      Cynthia S. Ray, for appellant.

      Robert Kopacz, for appellee.
    April 21, 2005
   NANO VIC, RJ,

By order dated February 23, 2005, we denied appellant’s, Gerald T. Callaghan Jr.’s, statutory appeal from the one-year suspension of his operating privileges pursuant to section 1547(b)(1) of the Vehicle Code. Appellant has filed an appeal from this decision thereby requiring the preparation of this opinion in accordance with Pa.R. A.P. 1925(a).

FACTUAL AND PROCEDURAL BACKGROUND

On June 1,2004, at approximately 11:40 p.m., appellant was stopped by Officer David Mason of the Kidder Township Police Department for suspicious driving. Following this stop, Officer Mason requested Officer Austin Bott of the same police department to take over the investigation of appellant.

Officer Bott testified that both he and Officer Mason had arrived at the scene in separate cruisers to investigate a domestic dispute, that while leaving he observed appellant’s vehicle blocking the west-bound lane of traffic on Route 534 at which time Officer Mason activated the emergency lights of his patrol car, and that he observed appellant fumble through his wallet trying to locate his driving license, and also saw appellant stagger as he exited his vehicle. It was at this point that Officer Bott continued with the investigation begun by Officer Mason. (N.T., pp. 4-6.)

Officer Bott administered three sobriety tests to appellant — the horizontal gaze nystagmus test, walking a straight-line heel to toe, and the one-leg stand — all of which appellant failed. (N.T., pp. 7-10.) Appellant was then advised by Officer Bott that he was under arrest for driving under the influence, that a chemical test of his blood was requested and that, if he refused, his driving privileges would be suspended for a period of one year. (N.T., p. 10.) En route to the Hazelton General Hospital where the blood was to be withdrawn, appellant advised Officer Bott that he would not submit to a blood test but would agree to a breath test. Officer Bott then contacted the state police barracks in Lehighton, and, when advised that an operator was available to conduct a breathalyzer test, as an accommodation to appellant, changed route and drove the appellant to the Lehighton barracks.

At the barracks, appellant was sitting beside the breathalyzer test machine as the operator was readying the machine for testing. While the operator was in the process of setting up the machine, and before being requested to do so, appellant grabbed the mouthpiece, at which point the machine shut down before appellant provided, or even attempted to provide, any sample of his breath. (N.T., pp. 12-13, 16-19.) After this shutdown, the machine would not accept a breath sample. (N.T., p. 13.)

Because of this malfunction, Officer Bott advised appellant that a blood test would be required. (N.T. p. 14.) Appellant again advised Officer Bott that because of his fear of needles, he would not submit to a blood test. At 12:38 a.m. on June 2,2004, Officer Bott read PennDOT form DL-26 verbatim to appellant, the O ’Connell warnings. (N.T., pp. 13-15,17; Commonwealth exhibit no. 1, document 2, “Chemical testing warnings”.) Notwithstanding these warnings, appellant remained steadfast in his refusal to submit to a chemical test of his blood, which refusal forms the basis of the suspension of appellant’s operating privileges appealed by appellant.

DISCUSSION

On appeal, appellant argues that this case is controlled by Karabinos v. PennDOT, 739 A.2d 601 (Pa. Commw. 1999). In Karabinos the court recognized prior case law which held that the police have authority to request a driver to submit to a second chemical test when problems with the first test exist, or under other special circumstances which make the second request reasonable. “Reasonability is a question of law for the court to decide based upon the unique facts of each case.” PennDOT v. Harbaugh, 141 Pa. Commw. 288, 294-95 n.6, 595 A.2d 715, 718 n.6 (1991). As amatter of first impression, the court in Karabinos further held that when a driver is requested to take a different type of chemical test, other than the one originally chosen and previously administered, the driver must be advised of the reason for the second test “in order to dispel the licensee’s possible, and reasonable, subjective belief that he fulfilled his obligation under the Implied Consent Law by complying with an initial chemical test.” Id. at 604.

The facts in Karabinos are easily distinguishable from those in the present case. In Karabinos, a breathalyzer test was in fact conducted and two breath samples submitted, however, the results were determined by the breathalyzer operator to be invalid because the deviation in the readings between the two breath samples exceeded the statutory .020 deviation limit set forth in 67 Pa. Code §77.24(b)(2)(i). Karabinos’ subsequent refusal to submit to a chemical test of his blood was determined by the Commonwealth Court to be excusable since Karabinos, who had previously been administered a breathalyzer test, was not informed of the reason necessitating a second chemical test.

In contrast to Karabinos, in the present case, appellant was never fully administered a breathalyzer test. Prior to any breath samples being provided by the appellant, or appellant even being requested to provide a breath sample, appellant grabbed the mouthpiece and the machine shut down. Appellant was never requested to provide, and never did provide, a breath sample before the machine shut down. While the scientific basis or technical reason for why the machine shut down may well have required expert testimony, the fact that it shut down was an observation Officer Bott was capable of making and one which he in fact did make. (N.T., pp. 12-13.)

In this case, the malfunction which justified Officer Bolt’s request that appellant submit to blood testing was necessarily known to appellant. Moreover, before declining a subsequent request for a blood test, appellant never provided a breath sample capable of being tested, a fact of which appellant was unquestionably aware. For appellant to argue, on the basis of Karabinos, that he reasonably and subjectively believed that he fulfilled his obligation under the Implied Consent Law by agreeing to submit to a breath test for which no samples were taken, and for which the machine malfunctioned, is both implausible and incredulous.

Because a valid chemical test was never performed, Officer Bott’s subsequent request for appellant to submit to a blood test was clearly justified, and appellant’s failure to submit to this testing constituted a refusal. PennDOT v. McFarren, 514 Pa. 411, 417-18, 525 A.2d 1185, 1188 (1987). Because appellant was aware that a breath test — although earlier agreed to by Officer Bott and for which preparatory steps were begun — was never actually performed, the reasonableness of Officer Bott’s request was apparent and appellant’s refusal to submit to the blood test was not excusable. Karabinos, 739 A.2d at 603. We hold, therefore, that where a driver agrees to submit to one type of chemical test which is unable to be completed for reasons apparent to the driver, a police officer — who has, immediately preceding a request for a second chemical test, reminded the driver of the O ’Connell warning — is not required as a further precondition to the driver’s informed consent to additionally advise the driver of the reasons for requesting the second chemical test.

CONCLUSION

Under the facts of this case, appellant’s refusal to submit to a blood test cannot be excused on the basis of Karabinos and the suspension of his operating license by PennDOT was proper. Accordingly, we respectfully request that our order of February 24, 2005, denying appellant’s license suspension appeal be affirmed.

      . Pursuant to section 1547(b)(1) of the Vehicle Code, referred to as the Implied Consent Law, the Department of Transportation is required to suspend for one year the operating privilege of any individual whom a police officer has reported to have refused chemical testing.

      .67 Pa. Code §77.24(b)(l) provides in pertinent part that the procedure for alcohol breath testing shall include, at a minimum, two consecutive actual breath tests, without a required waiting period between the two tests.

      . In PennDOT v. Harbaugh, 141 Pa. Commw. 288, 595 A.2d 715 (1991), the Commonwealth Court stated:

        “In PennDOT v. McFarren, 514 Pa. 411, 417, 525 A.2d 1185, 1188 (1987), a plurality opinion, our Supreme Court stated the following regarding the propriety of administering a second chemical test: “In order to justify a second intrusion, the police officer must establish circumstances which support the reasonableness of a second search ... .A second test may be proper if the first test was inconclusive due to faulty equipment or faulty performance by the individual. (emphasis added)
      “Thus, when a motorist has already submitted to and performed a valid chemical test, his failure to perform a second chemical test is not a refusal to submit to chemical testing within the meaning of section 1547(b). PennDOT v. Fellmeth, 108 Pa. Commw. 172, 528 A.2d 1090 (1987).” Id. at 293-94, 595 A.2d at 717-18.

      . Appellant’s argument that the O 'Connell warnings provided to him by Officer Bott prior to his refusal of the blood test were in some manner defective was neither raised at the time of the hearing on appellant’s statutory appeal, nor in appellant’s brief in support of his license suspension appeal, and has been waived. Moreover, the undisputed testimony at the time of hearing was that Officer Bott read the O 'Connell warnings to appellant verbatim from form DL-26. (N.T., pp. 13-15; Commonwealth exhibit no. 1, document 2.)


author: HAZEL, J.,

text:
    Commonwealth v. O’Brien
    C.P. of Delaware County,
    no. 6454-04.

      William Davis, for the Commonwealth.

      W. Russell Carmichael, for defendant.
    April 13, 2005
   HAZEL, J.,

— Defendant in the above matter was arrested on September 21,2004, and charged with driving under the influence. Blood alcohol testing performed following his arrest revealed that defendant operated a motor vehicle while his blood alcohol content was .30. He pled guilty to the charge of driving under the influence, 75 Pa.C.S. §3802(c). OnFebruary 16, 2005, a sentence of 12 to 24 months was imposed. As a result of defendant’s prior record, this offense was graded a first-degree misdemeanor pursuant to 75 Pa.C.S. §3803(b). Section 3804 of the Motor Vehicle Code sets the mandatory minimum penalty for an individual who violates section 3802(c), Highest rate of alcohol, and sets forth increased sentences for offenders based on whether a “first,” “second,” or “third or subsequent” offense has been committed. In the instant case, defendant was sentenced for a third offense pursuant to section 3 804(c)(3). Defendant alleges that the court erroneously sentenced him as a third time offender. In the alternative, he alleges that newly enacted provisions of chapter 38 of the Motor Vehicle Code violate the protections against ex post facto laws contained in the United States and Pennsylvania constitutions, and that, in enacting this legislation, the Pennsylvania Legislature did not intend “retroactive” application of the provisions mandating increased sentences for repeat offenders. On these grounds, defendant appeals from judgment of sentence, necessitating this opinion.

The undisputed facts of record indicate that defendant pled guilty to driving under the influence, 75 Pa.C.S. §3731, on two prior occasions: first in July of 1996 and again in December of 1998. Section 3806 of the Motor Vehicle Code defines “prior offenses” as follows: “(a) General rule. Except as set forth in subsection (b), the term ‘prior offense’ as used in this chapter shall mean a conviction . . . before sentencing on the present violation for any of the following ... (2) an offense under former section 3731 . . . .” Subsection (b) Repeat offenses within 10 years, states in part: “The calculation of prior offenses for purposes of section[s]... 3804 (relating to penalties) shall include any conviction... within the 10 years before the present violation occurred for ... (2) an offense under former section 3731.” Former section 3731(e) set forth penalties for those convicted of driving under the influence and mandated a minimum sentence of 48 consecutive hours of imprisonment with increased penalties for each prior offense committed within the previous seven years. Defendant argues that by virtue of this earlier version of the Motor Vehicle Code he committed only one prior offense, in August of2003, when the incident that gave rise to the current charge occurred. In essence, defendant claims that once seven years from a conviction passed, pursuant to former section 3731, that prior conviction ceased to exist for purposes of any penalty imposed on a new conviction, including a conviction under the current law.

Defendant argues that, taken together, sections 3804(c) and 3806 of the Motor Vehicle Code violate the constitutional proscriptions against ex post facto laws and are therefore unconstitutional per se. In support he claims the “new” DUI legislation increases the penalty attached to a prior conviction that is between seven and 10 years old by including it within the category of prior offenses that will trigger increased punishment for a current conviction for driving under the influence. This argument must fail. In Commonwealth v. Grady, 337 Pa. Super. 174, 486 A.2d 962 (1984), the Superior Court considered whether the legislature’s addition of recidivist provisions to section 3731(e)(1) (ii) of the Motor Vehicle Code violated the ex post facto prohibitions found in our state and federal constitutions. Appellant Grady was convicted of driving under the influence, see 75 Pa.C.S. §3731, in 1983. He had a prior conviction for the same offense stemming from a 1976 conviction under the prior DUI law, 75 P.S. §1037. The court considered Gray’s claim that section 3731 (e)(ii) was constitutionally infirm as an ex post facto law:

“The constitutional provision prohibiting ex post facto laws serves as a limitation on the legislature. It is a proscription which attempts ‘to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.’ Commonwealth v. Hoetzel, 284 Pa. Super. 623, 630, 426 A.2d 669, 672 (1981). It has been said that a law will be found constitutionally infirm on grounds that it is an ex post facto law only where one of the following effects is present:
“(1) The law makes an act criminal which was not criminal when done;
“(2) The law aggravates a crime [ — ] one which makes it greater than it was when committed;
“(3) The law changes a punishment, and makes it greater than it was when a punishable act was committed;
“(4) The law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed in order to be convicted.
“Commonwealth v. Hoetzel, supra, 284 Pa. Super, at 630, 426 A.2d at 672, citing Commonwealth v. Riley, 253 Pa. Super. 260, 264, 384 A.2d 1333, 1335 (1978).
“The enactment of 75 Pa.C.S. §3731(e)(1) did not make criminal an act which had previously been lawful. Similarly, it did not alter the rules of evidence to require less or different testimony in order to convict.” 337 Pa. Super, at 177-78,486 A.2d at 964.

The Grady court posed the question: “Can it be said, then, that the amendment to the Vehicle Code aggravated the crime which appellant had committed in 1976 or enlarged the punishment therefor?” Id. at 178,486 A.2d at 964. Concluding that it could not, the court explained that Grady was sentenced in 1976 for his prior offense and section 3731(e)(1) authorized no increase in punishment for that offense. “When appellant committed a second offense on March 5, 1983, the punishment for that second offense had already been prescribed by statute. Appellant then knew or should have known the punishment which the legislature had mandated for a second offense. The statutory amendment, which provided a heavier sentence for a second offense, was not constitutionally infirm merely because it required a sentencing court to consider a conviction which had occurred before the new law went into effect.” Id. at 178, 486 A.2d at 964-65. This analysis has been repeatedly relied on by our appellate courts. See e.g., Commonwealth v. Kornicki, 357Pa. Super. 182, 515 A.2d 925 (1986); Commonwealth v. Kopycinski, 353 Pa. Super. 387, 510 A.2d 365 (1986); Commonwealth v. Hernandez, 339 Pa. Super. 32, 488 A.2d 293 (1985).

Turning to the newly enacted legislation, applicable in the case sub judice, it is likewise clear that defendant has suffered no increase in punishment for his 1996 conviction. In addition to increasing sentences based on the amount of alcohol present in blood, the legislature has determined that more severe sentences for those who have offended within the past 10 years will further its legislative goals. The legislation at issue in Grady imposed recidivist provisions that increased sentences based on prior convictions, where formerly there were no recidivist provisions. The current legislation expands the period within which a prior conviction will be considered from seven to 10 years. This is a difference without a distinction. In Commonwealth v. Godsey, 342 Pa. Super. 24, 492 A.2d 44 (1985), the Superior Court considered a similar ex post facto challenge to section 3731(e). In Godsey, however, the appellant’s claim was based on the fact that his prior 1981 DUI was disposed of through accelerated rehabilitative disposition (ARD) and did not culminate in a conviction. Then newly enacted section 3731(e)(2) provided that “Acceptance of accelerated rehabilitative disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.” Id. at 29,492 A.2d at 47. (emphasis in original) In rejecting the ex post facto challenge, the court explained that new legislation may properly include consideration of a conviction under a prior or comparable law in enhancing the sentence for a current offense. Further, the appellant could not reasonably have concluded by accepting ARD that he “forever bound the legislature against [enacting] further legislation it deemed necessary to deal with repeat offenses of the class which was [the] subject of the ARD.” Id. at 27,492 A.2d at 46.

In light of the foregoing, we conclude that defendant’s challenges to sections 3804(c) and 3806 as ex post facto in law, and as applied in this case, must fail.

Next, we consider defendant’s claim that, in enacting this legislation, the legislature did not intend that the current law be applied “retroactively.” At the outset we note, as our previous discussion indicates, only those offenders who commit violations after the effective date of this legislation are subject to its provisions. Common wealth v. Godsey, supra. An offender who drives under the influence after the effective date of the legislation does so with knowledge of the consequences, including the fact that he will be subject to an increased sentence due to his status as a repeat offender. Defendant claims that existing legislation entitled him to a “reduced” record of prior offenses. He argues, that under the earlier DUI law, with the passing of seven years time, his 1996 conviction no longer existed for sentencing purposes. In Godsey, supra, the court held that the then newly enacted section 3731(e)(2), which included a prior ARD disposition as a “first conviction” for purposes of computing sentence, was intended to and could only apply prospectively, i.e., to ARD cases which arose after the legislation’s effective date. Section 3731(e)(2) provided: “Acceptance of accelerated rehabilitative disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.” In drawing its conclusion, the Godsey court found the phrase “brought under this section” included in the foregoing significant. When read in pari materia with Rule 185 of the Rules of Criminal Procedure regarding “successful completion” of the ARD program, only an interpretation that section 3731(e)(2) applied prospectively would comply with due process. Rule 185 assured ARD participants discharge upon successful completion of the program. Before the enactment of section 3731(e) “[a]n ARD drunk driving discharge did not count as a first offense, but only a subsequent conviction so quali-fled because of the clear intent of the ARD program.” Id. at 30, 492 A.2d at 47. (emphasis in original)

Defendant’s reliance on Godsey is misplaced. Defendant here was convicted of driving under the influence in 1996. There is no legislative promise of dismissal or expungement in any previous version of the laws prohibiting driving under the influence. Although defendant claims otherwise, there is no statutory support for his argument. By its terms, section 3806(b) is unambiguous and its application does not run afoul of due process. As a general rule, penal statutes are strictly construed with all doubt resolved in favor of the accused. See e.g., Commonwealth v. Godsey, supra; Commonwealth v. Ashford, 263 Pa. Super. 100, 397 A.2d 420 (1979). Statutes are to be construed reasonably and statutory words and phrases are to be read in accordance with their plain meaning. See Commonwealth v. Nixon, 801 A.2d 1241 (Pa. Super. 2002). However, where the terms of the stature are “clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921. If, in enacting the former provision upon which defendant relies, 75 Pa.C.S. §3731, the legislature intended to vest an offender with the right to a reduced record after seven years for purposes of computing sentence, then it would have explicitly so provided in that legislation. It would be error to read this right into the prior law.

For the foregoing reasons it is respectfully submitted that defendant was sentenced appropriately as a third-time offender and judgment of sentence should be affirmed.

      . 75 Pa.C.S. §3802(c) Driving under the influence of alcohol or controlled substance, Highest rate ofalcohol, provides: “An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16 percent or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.”

      . 75 Pa.C.S. §3803(b)(4) provides: “An individual who violates section 3802(c) or (d) and who has one or more prior offense commits a misdemeanor of the first degree.”

      . Section 3804(c)(3) provides in pertinent part: “An individual who ... violates section 3802(c)... shall be sentenced as follows: (3) For a third or subsequent offense, to: (i) undergo imprisonment of not less than one year nor more than five years; (ii) pay a fine of not less than $2,500; and (iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.”

      . See Article 1, Section 10, United States Constitution and Article 1, Section 17, Pennsylvania Constitution.