author: NANO VIC, P.J.,

text:
    Commonwealth v. Hicks

      James Lavelle, assistant district attorney, for Commonwealth.

      Paul Levy, for defendant.
    March 9, 2011
   NANO VIC, P.J.,

On June 11, 2010, the defendant, Tracey Hicks, was convicted of robbery, receiving stolen property, and conspiracy to receive stolen property. In her post-sentence motion, now before us, defendant seeks a new trial premised on prosecutorial misconduct: the prosecutor’s expression of personal beliefs and opinions during closing arguments concerning the testimony and evidence presented. Following our review of the record, we deny defendant’s motion.

FACTUAL AND PROCEDURAL BACKGROUND

On October 16, 2008, defendant drove her husband, Jack Ensel, to a small strip mall in Nesquehoning, Carbon County, Pennsylvania. At the western end of the mall is a CVS pharmacy. In order, proceeding eastward from the pharmacy, is a campus of the Lehigh Carbon Community College, a Chinese restaurant and an auto parts store. All four businesses share a common parking lot at the front of the mall.

Defendant arrived at the mall, with Ensel, shortly after 4:00 p.m., in broad daylight. Defendant parked her vehicle in the parking lot near the front of the Community College. The temperature was warm, approximately 75 degrees. Ensel exited the vehicle wearing a hooded flannel jacket with the hood pulled up, and headed toward the pharmacy. As he entered the pharmacy, Ensel pulled the hood further forward and masked his face with a bandanna, such that only his eyes were visible.

Ensel walked directly to the pharmacy counter near the rear of the store, stepped beyond a swinging gate which separated the pharmacy proper from the rest of the store and, with one hand in his pocket intimating he possessed a weapon, stated “give me the Oxycontin and no one will get hurt.” In response, the pharmacist on duty unlocked the narcotics safe, pulled out a tray filled with Oxycontin and Oxycodone bottles, and handed it to Ensel. The tray was white in color, approximately a foot and a half by a foot in size, and contained 26 bottles of Oxycontin and Oxycodone. The retail value of this medication was $11,982.50.

Upon receipt of this tray, Ensel returned to the front entrance and exited the pharmacy with his head and face still concealed by the hood and mask. (N.T., 6/10/10, p.32) As he exited the pharmacy, he walked west, in the opposite direction from which he had originally entered the pharmacy. Defendant, who was waiting in her vehicle watching for Ensel to exit, immediately drove in his direction, stopping several feet in front of where he was walking. Ensel first placed the tray with the Oxycontin and Oxycodone onto the rear passenger seat and then climbed into the back seat himself. As this was occurring, the store manager recorded the license plate number of defendant’s vehicle. This, together with the make and model of the vehicle, was directly reported to the 911 communications center.

Defendant and Ensel were apprehended by the police approximately five to 10 minutes later as they pulled up to their home in Lansford, Carbon County, Pennsylvania. At the time of their apprehension, defendant was in the driver’s seat and Ensel was in the rear passenger seat. The tray taken from the pharmacy was on the seat beside Ensel, however, some of the pill bottles were observed to be on the car seat and some on the rear floor. (N.T., 6/10/10, pp. 81-82) Also on the seat beside Ensel was his hooded jacket. A subsequent search of the vehicle located two bandannas on the rear floor behind the driver’s seat and an empty bottle of Oxycodone HCL in the front passenger seat with Ensel’s name on it. (N.T., 6/10/10, p. 164)

After their arrest, on the same day, both defendant and Ensel were taken to the Nesquehoning police station where they were separately questioned, after being Mirandized by officer Wuttlce of the Nesquehoning Police Department. Officer Wuttke first questioned Ensel. After next questioning defendant, he again questioned Ensel and then defendant again. A period of approximately 40 to 45 minutes separated Officer Wuttke’s first and second questioning of defendant.

When first questioned by Officer Wuttke about the events of that day, defendant stated that she awoke at approximately 2:30 p.m. when her daughter came home from school; that she went outside for a cigarette; that while outside she spoke with her husband who asked if she would go with him to the store; that at the store her husband asked her to wait outside in the parking lot and to pull up and pick him up when he exited; that this was often the case when she accompanied her husband to the store and that the manner in which she picked her husband up on this occasion was not out of the ordinary; that she wasn’t sure what her husband was carrying when he left the store; that it was something white, like a bag; that her husband got in the back seat, which he normally does; that she was then medicating with Oxycodone 30 but was being weaned from it and was experiencing withdrawal sickness; and that she believed her husband had taken the Oxycontin and Oxycodone because he was depressed over their financial circumstances because they had recently lost their home to foreclosure. Defendant denied that she knew her husband intended to rob the pharmacy at the time he went inside.

During the second interview with defendant on October 16, 2008, defendant told Officer Wuttke that her husband woke her up before they left for the store; that before leaving, her husband told her he was going to hit a pharmacy but that she believed this was idle talk and, after speaking with her husband, that he had no intent of following through; that her husband did not ask her to accompany him to the pharmacy; and that later, when they were at the pharmacy and she was waiting for her husband to return, she did not find it peculiar that the same day her husband said he intended to hit a pharmacy, they were at a pharmacy and she was waiting to pick him up as soon as he exited.

At trial, defendant testified that she first woke up at 5:30 a.m. on October 16, 2008, to get her children ready for school; that sometime between 5:30 a.m. and 7:00 a.m. her husband mentioned he planned to hit a pharmacy, but she spoke against it and thought that was the end of it; that she went back to bed; that she again woke up about 2:30 in the afternoon, and went outside for a cigarette; that her husband was not the one to wake her; that while outside her husband asked if she would go to the store with him for gas and cigarettes; that they drove to a gas station in Nesquehoning, rather than in Lansford, because the gas and cigarettes were cheaper there; that they were able to get gas but not cigarettes because the station was sold out of the brand of cigarettes they smoked; that while there she asked if they could go to the Chinese restaurant in town; that they did this, but once there she remembered she didn’t like the way this restaurant prepared what she intended to order; that they did not enter the restaurant; that before leaving her husband decided to enter the pharmacy to get cigarettes and told her to wait for him; that she did so and when she saw him leaving the pharmacy she drove over to pick him up; that when he exited the store, his face was not covered and his hood was not up; that she thought he was carrying a white bag; that he got in the back seat because the hinge for the front passenger door had broken off; that she never saw the tray or bottles of Oxycontin and Oxycodone after her husband entered the car and before they were stopped by the police; that her husband mentioned nothing about robbing the pharmacy as they drove home; that both she and her husband were using Oxycodone at the time but she was being weaned off of it; and that she first learned of the robbery when she and her husband were confronted by the police in front of their home.

In closing arguments, the assistant district attorney frequently used the first person in discussing the evidence and characterized parts of defendant’s testimony as being ridiculous, being incredible, and being a lie. Specifically, defendant takes issue with the following nine statements made by the assistant district attorney:

“One of the versions to you or Officer Wuttke was a lie. That is the only conclusion you can draw.” (N.T., 6/11/2010, p. 41)
“I think it is a ridiculous explanation. I don’t think that is any way that people normally act when they are going to the store with their spouse. I think inescapably what it points to is that she knew that he was going to be coming out of that store with Oxycontin. She was hoping he would do it. She was ready and there to assist him when he came out. Again that is proof of the agreement. That is the only logical explanation.” (N.T., 6/11/2010, p. 47)
“There’s no explanation for that. You cannot reconcile those two things.” (N.T., 6/11/2010, p. 50)
“I don’t think it is an amazing coincidence. I think it is part of her motive. I think she was addicted to Oxycontin. I think she was addicted to Oxycontin. I think she wanted to acquire some.” (N.T., 6/11/2010, p. 55)
“I know she testified she didn’t know the pills were there. But come on, how likely is that to be true?... It is a ridiculous notion.” (N.T., 6/11/2010, p. 58)
“How reasonable is it to believe that? It is not reasonable at all. I was struck yesterday at the racket these things make as well. I am not going to belabor it. They are in their evidence bags. But I can’t believe in a traveling car that you wouldn’t hear them a little bit, or a lot.... It is incredible to me that she would be able to remain ignorant.” (N.T., 6/11/2010, p.59)
“She was aware of them. She is lying to you when she said she wasn’t. Just like she is fooling around with the story that she gave to Officer Wuttke. She is changing her story. You cannot trust her. You cannot believe her. Look at her as a witness. She has incentive to lie to you.” (N.T., 6/11/2010, p. 59)
“She, again, stands to benefit if you believe her lies.” (N.T., 6/11/2010, p. 60)
“I think the story itself, just standing on its own, is a ridiculous one.... that stoiy is not something I believe. I would encourage you to disbelieve it as well, just on its face.” (N.T., 6/11/2010, p. 60)

At the close of the commonwealth’s argument, defense counsel objected to the assistant district attorney characterizing the defendant as a liar and asked for a mistrial. (N.T., 6/11/2010, p.39) In denying this request, the following exchange occurred at sidebar:

THE COURT: I am not aware of any case that I have read that says that the Commonwealth using the term liar to describe a witness’s testimony is inappropriate. Obviously, it is very strong language, but I am not sure if it is legally inappropriate and would justify a mistrial. So, I am going to deny the request.
I will be instructing the jury that they have to make their own determination of the facts and they have to determine whether a person is truthful or not truthful. It is not counsel’s determination, but it is their determination.
MR. LEVY: Understood.
THE COURT: So, I will make sure they are aware of that.
MR. LEVY: Judge, for the record, I understand that. I assume that would have been in your instructions. I just feel under the circumstances, it is a cautionary instruction that may not be — regardless of how many times you emphasize it — may not be sufficient. It may wind up doing the reverse, because it winds up almost emphasizing it. So, I am not asking you to point out he referred to her as a liar.
THE COURT: Quite honestly, generically, within my credibility instructions, that’s implicit in them. If you want me to specifically refer to the fact that counsel at times used strong language but ultimately they have to determine what the facts are, I can certainly do that.
MR. LEVY: Judge, if you can use what you just indicated, that counsel at times used strong language, that would cover it.
THE COURT: Okay. I will do so.
MR. LEVY: But again, because you are doing that, I am still not removing my objection.
THE COURT: I realize you are not waiving your objection.
MR. LEVY: Thank you. That is what I was looking for.
THE COURT: Thank you.
MR. LAVELLE: Thank you. (N.T., 6/10/2010, pp. 39-41).

In our general charge to the jury, we instructed the jury that the jurors are the sole judges of the facts and the credibility of the witnesses; and that the closing statements of counsel are not evidence, but that such arguments may be considered as a factor in deliberations. In addition, we stated the following:

Now, I also want to say that counsel in speaking to you at times can use extremely strong language. Counsel made comment on the testimony of witnesses and whether or not it 'should be believed or disbelieved. But I caution you, regardless of counsel’s opinions, regardless of how counsel described the testimony of witnesses and the credibility, it is you, and you alone, who make that decision as to which witnesses should be believed and which witnesses should not be believed. You, and you alone, make the decision as to what testimony you heard is the accurate testimony and what testimony is not accurate. It is not up to counsel to make that decision for you. You should consider, again, counsels’ positions in what they argue to you. You alone make the determinations of who to believe and not to believe. (N.T., 6/11/2010, pp. 83-84).

At the conclusion of our charge, on specific inquiry by the court, neither counsel had any further comment on this issue or the court’s cautionary instructions. (N.T., 6/11/2010, p. 87)

DISCUSSION

As a general rule,

a prosecutor is free to argue the reasonable inferences supported by the record. A prosecutor may not, however, interject his personal opinion regarding the credibility of any witness, including the accused, nor may he argue facts which may be within his personal knowledge but which are not of record. Although the prosecutor may not assert his personal belief as to the guilt or innocence of the accused, the prosecutor may argue that the evidence proves the defendant guilty as charged. Commonwealth v. Gunderman, 407 A.2d 870, 873 (Pa.Super. 1979). (internal citations omitted).

Consequently, while “a prosecutor must limit his statements to the facts introduced at trial and the legitimate inferences therefrom, and may not inject his personal opinion of a defendant’s credibility into evidence,” he “is free to argue that the evidence leads to guilt, and is permitted to suggest all favorable and reasonable inferences that arise from the evidence.” Commonwealth v. Stafford, 749 A.2d 489, 499 (Pa. Super. 2000) (citations and quotation marks omitted). “[Pjrosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.” Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (citation and quotation marks omitted).

“[A] prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence.” Judy, 978 A.2d at 1020 (citation and quotation marks omitted). Further,

[i]n determining whether the prosecutor engaged in misconduct, we must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel’s conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing.... If defense counsel has attacked the credibility of witnesses in closing, the prosecutor may present argument addressing the witnesses’ credibility. Id.
In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Generally, comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006) (citation and quotation marks omitted), appeal denied, 907 A.2d 1102 (Pa. 2006).

“Prosecutorial misconduct is evaluated under a harmless error standard.” Judy, 978 A.2d at 1020 (citation and quotation marks omitted). Ultimately, “an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial.” Id. at 1019.

In examining the statements made by the assistant district attorney which the defendant questions, we must distinguish between those statements which permissibly comment on the evidence, albeit in the first person, and those which impermissibly communicate the prosecuting attorney’s personal opinion of defendant’s credibility. This latter bar does not prohibit the prosecutor from questioning the credibility of a witness provided his comments are tied to the evidence. Judy, 978 A.2d at 1020. (citation omitted) Moreover, “[i]f defense counsel has attacked the credibility of witnesses in closing, the prosecutor may present argument addressing the witnesses’ credibility.” Id. (citation and quotation marks omitted)

The prosecuting attorney is entitled to argue issues of credibility and in doing so may “urge the jury to malee a fair inference from the facts adduced at trial.” Stafford, 749 A.2d at 499. (citation and quotation marks omitted) The Commonwealth is not prohibited from arguing inconsistencies in the evidence, improbabilities, or implausible explanations. Nor is the Commonwealth prohibited from questioning the defendant’s motives or incentive to lie when on the witness stand. The fact that the Commonwealth uses the first person in making such arguments does not undermine their propriety or validity if grounded in the evidence rather than as an expression of counsel’s personal belief or opinion as to the truth or falsity of such testimony. See Gunderman, 407 A.2d at 873 (“Though the prosecutor used the first person [i.e., T think’] in this part of his argument, the inferences he was urging were to be based strictly upon the evidence.”).

On the other hand, “a prosecutor cannot intrude upon the exclusive function of the jury to evaluate the credibility of witnesses by broadly [and indiscriminately] characterizing the testimony of a witness as a ‘big lie’”). Judy, 978 A.2d at 1023 (citation and quotation marks omitted); Commonwealth v. Kuebler, 399 A.2d 116, 119 (Pa. 1979); see also Commonwealth v. Cherry, 378 A.2d 800, 804 (Pa. 1977) (stating that improper statements by a prosecutor during argument are of special concern because of the effect such statements may have on the jury due to the prestige associated with his position and because of the assumed fact-finding facilities available to a prosecutor). However, “a prosecutor’s assertion that a witness had lied does not warrant a new trial when the statement was a fair inference from irrefutable evidence rather than a broad characterization.” Judy, 978 A.2d at 1023-24. (citation and quotation marks omitted); see also Commonwealth v. Johnson, 588 A.2d 1303, 1305 (Pa. 1991) (holding that a prosecutor’s comments stating that a defendant had lied were neither unfair nor prejudicial when given in response to the comments of defense counsel in relation to the credibility of witnesses, and when they were supported by the evidence). Further, “[a] prosecutor’s contention that a defendant lied is neither unfair nor prejudicial when the outcome of the case is controlled by credibility, the accounts of the victim and the defendant conflict, and defense counsel suggests that the victim is fabricating.” Judy, 978 A.2d at 1024.

In all but one instance, we find the prosecutor’s comments to be arguments based on the evidence and not on his personal opinion. The first statement was directed at the inconsistencies in the two statements defendant gave Officer Wuttke following her arrest and those made at trial regarding when she got up on October 16, 2008 and who got her up. The next statement evaluated the likelihood that the reason defendant pulled up when her husband left the pharmacy was because this is what she always does in contrast to the inference that such conduct indicated she knew what her husband was doing in the pharmacy and she was there to pick him up to assist in his getaway. The third comment concerns the implausibility of defendant waiting and watching for her husband to leave the pharmacy, being able to clearly identify him when he did so, and yet not noticing that he was carrying a tray one and a half by one foot in size filled with bottles of medication.

In the fourth comment, the assistant district attorney noted that it was not mere coincidence that defendant was taking Oxycodone herself, and being weaned from it at the time of the robbery, that her addiction supplied a motive for her to assist her husband in obtaining Oxycontin from the pharmacy. The next two comments are in reference to defendant’s disclaimer that she was unaware that her husband was carrying a tray full of medication when he entered her car. During trial, when the assistant district attorney picked up and carried the medication it rattled. Given this noise, the number of bottles, and the shape and size of the tray, the assistant district attorney legitimately questioned how defendant could not know what her husband had taken from the pharmacy. In this same context, the assistant district attorney in his seventh comment claimed, in effect, that defendant must be either deaf, dumb and blind or must be lying when she denied being aware of the pills before reaching Lansford, an inference supported by the record. In addition, in the seventh and eighth comments, the assistant district attorney appropriately commented on why defendant would change her stories and deny any knowledge of what her husband had done: she had a motive to lie, to save herself. Such comments were not intended to inflame, distract or mislead the jury.

The ninth and final comment which the defendant questions is the assistant district attorney’s characterization of defendant’s explanation for being at the shopping mall — that she was there to get Chinese food which she later decided not to get because, once there, she realized she did not like their food, rather than that she was there to help her husband escape — as ridiculous and a story which he did not believe. The characterization of defendant’s story as ridiculous was fair comment given the contradiction inherent in defendant’s desire to get Chinese food from a restaurant whose food she did not like, an explanation not previously disclosed to Officer Wuttke on October 16, 2008, when she was asked why she and her husband were at this pharmacy on the same day her husband had threatened to hit a pharmacy. Cf. Gunderman, 407 A.2d at 873 (holding that a prosecutor’s comment that “I think you should find [defense witnesses’ story] absolutely incredible” did no more than argue an inference based upon the evidence before the jury). This comment was also in response to defense counsel’s argument that if defendant was lying, “I am sure” she could have come up with a better lie. (N.T., 6/11/10, pp. 37-38) At most, this was oratorical flair.

, However, the final aspect of this comment, that the assistant district attorney did not believe her story and encouraged the jury to likewise disbelieve her, overreached the bounds of permissible argument. In this comment, the assistant district attorney was clearly expressing his personal opinion of the believability of defendant’s story, not simply arguing inconsistencies and implausibilities. While we cannot condone this statement, neither do we find it “... so persuasive or deliberate so that the unavoidable effect thereof was to prejudice the jury to the point that they could not fairly weigh the evidence.” Sampson, 900 A.2d at 891 (citation and quotation marks omitted).

In acting on a request for mistrial, we “must discern whether misconduct or prejudicial error actually occurred, and if so,... assess the degree of any resulting prejudice.” Judy, 978 A.2d at 1019.

Not all inappropriate comments by the Commonwealth merit a new trial. “[C]omments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and a hostility toward the defendant such that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Speight, 544 Pa. 451, 677 A.2d 317, 324 (1996). Even if the prosecutor makes improper remarks, the action to be taken is within the discretion of the trial court because it has the opportunity to see the atmosphere and context in which the comments were made. See Commonwealth v. Silvis, 445 Pa. 235, 284 A.2d 740, 741 (1971). Stafford, 749 A.2d at 498 (Pa.Super. 2000).

In denying defendant’s motion for a mistrial we note first that the assistant district attorney’s personal opinion of defendant’s credibility was immediately juxtaposed with his comment that defendant’s story was ridiculous, a permissible inference. Moreover, in the same breath, the assistant district attorney urged the jury to exercise its independent judgment in assessing the explanation defendant offered for being at the pharmacy, and to disbelieve it. Second, the assistant district attorney was responding, at least in part, to defense counsel himself having personally, and impermissibly, vouched for the defendant’s credibility. Finally, we do not find the assistant district attorney’s remarks to have been so intrusive of the jury’s exclusive function of evaluating the credibility of witnesses and so inflammatory as to be incapable of being cured by our cautionary instructions. When the prosecution’s remarks are viewed in the context of the argument then being made and our instructions to the jury concerning the opinions of counsel and who determines credibility, the assistant district attorney’s words were not so prejudicial that the jury became incapable of exercising its independent judgment and rendering a true verdict. See also Commonwealth v. Chmiel, 585 Pa. 547, 603, 617-21, 889 A.2d at 501, 534, 543-45 (Pa. 2005) (finding prosecutor’s comments to be permissible when defense counsel repeatedly called the prosecution’s witnesses liars and had vouched for the credibility of the defense’s witnesses; also noting the presumption that juries follow instructions given by the trial court).

CONCLUSION

Legally and substantively a distinction exists between a prosecutor who tells the jury what he thinks about a witness’s testimony and one who tells the jury what he thinks the evidence shows. The first is prohibited by law as usurping the function of the jury. The second, while often frowned upon and sometimes misleading, is allowed provided the distinction between personal opinion and arguing the evidence is maintained.

In the case at bar, while the assistant district attorney frequently couched his closing arguments in the first person, the context in which these comments were given, together with the evidence used to support them, demonstrates the assistant district attorney’s intent not to divert the jury from the evidence, but instead to urge the jury to make credibility determinations based upon the evidence. In doing so, the assistant district attorney argued not that the jury should disbelieve the defendant because he disbelieved her; rather, he argued that defendant should be disbelieved because the evidence supported this inference. This is within the bounds of proper argument.

In one instance, however, we find the assistant district attorney exceeded what is allowable. In arguing that defendant’s explanation for being at the pharmacy is a story he did not believe, the assistant district attorney went beyond the evidence to a pure statement of personal belief. While improper, we have concluded that the context in which this belief was expressed, tempered by our cautionaiy instructions, prevented this isolated comment from uncorrectably prejudicing the jury against defendant, causing the jury to abandon its responsibility to weigh the evidence objectively and to be unable to arrive at a true verdict. Ultimately, we do not find that defendant was unfairly prejudiced by the assistant district attorney’s comments or that defendant was denied a fair trial.

      . 18 Pa.C.S.A. §§ 3701 (a) (1) (iv), 3925 (a) and 903, respectively. Defendant was acquitted on the charge of conspiracy to commit robbery (threat or fear of imminent bodily injury). 18 Pa.C.S.A. § 903.

      . Strictly speaking, defendant’s objection at trial and in her post-sentence motion is limited to being called a liar. Not until defendant filed a brief in support of her post-sentence motion did defendant question the propriety of the other comments previously quoted in the text. Consequently, while we believe these other grounds for a mistrial have been waived, we have elected nevertheless to review their merits. Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super. 2010) (finding waiver on failure to object to particular statement made in closing argument).
      We also note that the basis of defendant’s grounds for a mistrial was not waived by defendant waiting until the close of the Commonwealth’s argument before making her objection. On this point, the Pennsylvania superior court in Commonwealth v. Judy stated:
      We note that issues relating to the objection and request for mistrial on the ground of prosecutorial misconduct are properly preserved notwithstanding the fact that counsel waited until the end of the assistant district attorney’s closing to lodge the objection and move for a mistrial. Commonwealth v. Rose, 960 A.2d 149, 154-155 (Pa. Super.2008). While the lack of a request for a contemporaneous curative instruction constitutes a waiver of any claim of error based upon the failure to give such curative instruction, the objection coupled with the request for the remedy of a mistrial preserves denial of the mistrial for appellate review. Commonwealth v. Robinson, 543 Pa. 190, 670 A.2d 616, 622 n. 9 (1995). 978 A.2d 1015, 1018 (Pa. Super. 2009).

      . In the original transcript of the proceedings this word appeared as “may” rather than “made.” In the preparation of this opinion, this portion of the transcript, as well as the tape of the trial, was reviewed with the stenographer, and corrected to reflect the actual word used.

      . Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

        Commonwealth v. Chmiel, 585 Pa. 547, 581, 889 A.2d 501, 521 (Pa. 2005) (citation and quotation marks omitted). “The burden of establishing that the error was harmless rests upon the Commonwealth.” Id. at 594, 889 A.2d at 528.

      . This follows from the standard of review for the denial of a motion for mistrial: “A motion for a mistrial is addressed to the discretion of the court. It is primarily within the trial court’s discretion to determine whether defendant was prejudiced by the misconduct. On appeal, [the appellate court’s] standard of review is whether the trial court abused that discretion.” Commonwealth v. Stafford, 749 A.2d 489, 500 (Pa. Super. 2000) (citation and quotation marks omitted).

      . This occurred twice during defense counsel’s closing arguments: first when counsel corroborated defendant’s testimony that gas prices are cheaper in Nesquehoning than in Lansford, thus supporting defendant’s reason for being in Nesquehoning, and next when counsel stated that defendant’s testimony was the truth. (N.T., 6/11/10, pp. 32, 38)


source: Caselaw Access Project

author: KENNEY, J.,

license: Public Domain

text:
    Food Choice, Inc. v. Mut. Benefit Ins. Co.

      Howard G. Silverman, for plaintiff.

      Jacob C. Cohn, for defendant.
    March 18, 2011
   KENNEY, J.,

In the present insurance coverage dispute, both plaintiffs and defendant have moved for partial summary judgment, each motion turning upon the legal definition of a “fixture.” Following a through review of the record, the defendant’s motion for partial summary judgment, the response and cross-motion for summary judgment of plaintiff, and defendant’s reply brief thereto, this court now grants defendant’s motion entering partial summary judgment in its favor.

FACTUAL BACKGROUND

The instant litigation stems from an insurance coverage dispute. Plaintiffs leased a supermarket facility, where a lightning strike damaged the supermarket’s refrigeration system. Plaintiffs submitted a claim to its insurer, defendant, wherein defendant denied coverage maintaining the refrigeration system constitutes a fixture, and thus, not covered under the contract. The relevant undisputed facts of this matter are as follows.

Spring Hill Realty Co., PA, L.P. (“Spring Hill”) entered into a lease, of certain commercial real estate located in Upland, Pa, with J.J.E. Upland Food Corp. (“JJE”) on April 26, 2004. See, “defendant’s motion for partial summary judgment,” “exhibit 1” at “exhibit A.” The lease entitled Spring Hill to take possession of the premises, improvements, fixtures and JJE’s personal property in the event JJE defaulted on the lease terms. See, id. at art. 24.1 (C). After execution ofthe lease, JJE converted the premises into a grocery store (the “supermarket”). JJE’s conversion of the supermarket included the installation of a refrigeration system. See, id. at ¶ 6. The refrigeration system was substantial in nature, consisting of two refrigeration racks, roof mounted condensers, and coolers and freezers installed throughout the supermarket. See, id., “exhibit 2” at ¶ 5-7. The refrigeration system included plumbing throughout the supermarket and its roof, and the electrical system was hardwired into the supermarket’s electrical system. See, id.

Thereafter, JJE entered into an agreement with Bozzuto’s, Inc. to stock the supermarket with goods. Said agreement with Bozzuto’s, Inc. was secured by a series of chattel mortgage security agreements, secured by JJE’s personal property, which was filed with the Pennsylvania Department of State. See, id., “exhibit 3.” Bozzuto’s, Inc. retained the right, in the event of JJE defaulting, to enter the supermarket and run the business. See, id., “exhibit 4.” In addition, Bozzuto’s, Inc., in the event JJE defaulted on its agreement, held the right to enter the supermarket and take possession of JJE’s personal property, provided fifteen (15) days notice was given to Spring Hill. See, id. at ¶ 4-5.

JJE subsequently defaulted on its lease with Spring Hill, and the lease was terminated via a confession of judgment and stipulation. See, id., “exhibit 5.” JJE also defaulted on its agreement with Bozzuto’s, Inc. Notably, neither Spring Hill nor Bozzuto’s, Inc. sought to remove any of the fixtures within the supermarket. Moreover, the record lacks any evidence tending to show that Bozzuto’s, Inc. served notice on Spring Hill of its intent to remove any of JJE’s personal property or fixtures within the supermarket.

Subsequently, Mohamad Mustafa, d/b/a Food Choice, entered into a lease, dated September 25,2006, with Spring Hill for the Supermarket. See, id., “exhibit 1” at “exhibit C.” The lease between Spring Hill and Food Choice did not convey any legal title or interest in the refrigeration system, nor any fixture or furnishing, within the supermarket to Food Choice. See, id. Food Choice became concerned a third party may attempt to claim ownership over, and attempt to remove, the fixtures, furnishings and equipment, installed by JJE, within the supermarket. See, id., “exhibit 1” at ¶ 16; “exhibit 6” at 12-13. At the behest of Food Choice, Spring Hill signed an October 18, 2006 letter prepared by Food Choice’s attorney, which indicated that Spring Hill, while not waiving any rights afforded to it in the September 25, 2006 lease, was not asserting an ownership interest in the fixtures, furnishings and equipment within the supermarket. See, id., “exhibit 1” at ¶ 17; “exhibit 6” at 22. The letter of October 18,2006 was not intended to, nor did it, convey any ownership in the fixtures, furnishings and equipment to Food Choice from Spring Hill. See, id., “exhibit 1” at ¶ 18; “exhibit 6” at 27; “exhibit 10” at 227.

Pursuant to the terms of the September 25, 2006 lease, Food Choice was required to obtain an insurance policy to cover the “contents, improvements, betterments (contained within the lease structure) as well as the tenant’s own financial loss, etc.” See, id., “exhibit 1” at “exhibit C”, art. 13.1. Spring Hill would insure the building itself with its own policy. See, id. Food Choice procured an insurance policy from Mutual Benefit Insurance Company (“Mutual Benefit”), which covered business personal property, business income and liability. See, id., “exhibit 7.” Food Choice did not, however, obtain optional “building” coverage, which included “fixtures.” See, id. Spring Hill, meanwhile, maintained a policy through Ohio Casualty Insurance Company (“Ohio Casualty”) to cover the building and all fixtures to the realty.

A lightning strike occurred on or near the supermarket on June 11,2007, which damaged the refrigeration system. Food Choice retained Young Adjustment Company, Inc. as a public adjuster and immediately notified Mutual Benefit of the claim. Mutual Benefit responded via letter on July 27,2007 acknowledging that a claim was reported by Food Choice for the lightning strike. See, id., “exhibit 9.” The July 27, 2007 letter from Mutual Benefit indicated that the $500,000.00 “Business Personal Property” coverage would apply to food spoilage damages, if determined “the damage to the food was caused by or resulting from any covered cause of loss to the compressors [of the refrigeration system].” See, id. Mutual Benefit also indicated its intention to issue an advance of $15,000.00 to Food Choice, in addition to the $10,000.00 advanced to Food Choice in June 2007 to help Food Choice but not to waive its investigation. See, id. In total, Mutual Benefit paid Food Choice $110,000.00 on its claim. Of the $110,000.00 Mutual Benefit paid to Food Choice on its claim, approximately $20,000.00 was used for personal expenses, including personal mortgage payments, by Food Choice’s principal, Mohamad Mustafa.

Following a through investigation, Mutual Benefit concluded that the refrigeration system, specifically the refrigeration racks, constituted fixtures to the real property and thus, not insured under Food Choice’s policy. However, in October 27, 2007, Spring Hill submitted a claim to its insurer, Ohio Casualty, for the damage to the refrigeration system. See, id., “exhibit 14.” Ohio Casualty eventually paid $78,160.25 on Spring Hill’s claim and Spring Hill caused the refrigeration system to be repaired. See, id., “exhibit 15”; “exhibit 1” at ¶ 25. By the time the refrigeration system was repaired, Food Choice had since vacated the supermarket, and Spring Hill was involved in litigation against Food Choice for past-due rent, among other damages. See, id., “exhibit 11.”

STANDARD FOR SUMMARY JUDGMENT

The Pennsylvania Rules of Civil Procedure provide that an entry of summary judgment is proper if “there is no genuine issue of any material fact as to a necessary element of the...defense which could be established by additional discovery.” Pa.R.C.P. 1035.2(1). In an insurance coverage dispute, the interpretation of the scope of coverage of an insurance contract is properly decided by the court as a question of law. Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 304-5, 469 A.2d 563, 566 (Pa. 1983).

Regarding an insurance coverage dispute, our supreme court previously held in Erie Ins. Exchange v. Transamerican Ins. Co.:

In Warner v. Employers’ L. Assur. Corp. [citation omitted], we said: “while policies of insurance will be construed most strongly against [the] insurer (citation omitted) it is a necessary prerequisite to recovery upon a policy for the insured to show a claim within the coverage provided by the policy.” (Citation omitted.) In Armon v. Aetna Casualty and Surety Co., [citation omitted], we held: “A defense based on an exception or exclusion in a policy is an affirmative one, and the burden is cast upon the defendant to establish it.” (Citation omitted.) Erie Ins. Exchange v. Transamerican Ins. Co., 533 A.2d 1363, 1366 (Pa. 1987); see also, Scottsdale Ins. Co. v. City of Easton, 379 F. app’x 139, 143 (3d Cir. 2010)

(It is the burden of the insured to make a prima facie showing that the claim falls under the coverage provisions of the policy). However, where the operative provisions of an insurance policy are clear and unambiguous, a court is required to give effect to that language. Standard Venetian Blind Co., at 304-5, 469 A.2d at 566.

DISCUSSION

Food Choice initiated the present litigation against mutual benefit alleging breach of contract for failure to pay Food Choice’s claim on the damaged refrigeration system, as well allegations of bad faith. Mutual Benefit now moves for partial summary judgment as to the breach of contract claim. Mutual Benefit’s instant motion turns on two issues — first, the property classification of the refrigeration system, including the refrigeration racks, and secondly, whether that property classification is covered under Food Choice’s insurance policy through Mutual Benefit.

Property Classification of the Refrigeration System

Turning first to the property classification of the refrigeration system, the facts of record establish that the refrigeration system is a fixture. The laws of this commonwealth treat chattels, used in connection with real estate, as “fixtures” and “personalty.” Lehmann v. Keller, 684 A.2d 618, 621 (Pa. Super. 1996), citing, Clayton v. Lienhard, 312 Pa. 433, 435, 167 A. 321, 322 (Pa. 1933). “[Cjhattels that are not physically attached to realty are always personalty.” Id. Conversely, a “fixture” is described as a chattel which is “annexed to realty in such a manner that [it] cannot be removed without materially damaging either the realty or the chattel.” Id; see also, Black’s Law Dictionary 652 (7th ed. 1999) (defining “fixture” as “personal property that is attached to land or a building and that is regarded as an irremovable part of the real property”).

A third category also exists, consisting of “those chattels that are physically connepted to the real estate but can be removed without material injury to either the land or the chattels.” Id. Where the third category applies, three considerations must be made to determine a chattel’s status as a fixture or personalty. Shenandoah Mobile Company v. Dauphin County Board of Assessment Appeals, 869 A.2d 562, 567 (Pa. Cmwlth. 2005), citing, Appeal of Sheetz, Inc., 657 A.2d 1011, 1012-13 (Pa. Cmwlth. 1995). The three considerations include: (1) the manner in which the chattel is physically attached or installed; (2) the extent to which the chattel is essential to the permanent use of the building or other improvement; and (3) the intention of the parties who attached or installed the chattel. Id., citing, Appeal of Sheetz, Inc., 657 A.2d at 1013. The intent of the parties is evidenced by the proven facts and surrounding circumstances entered into evidence. Lehmann, 684 A.2d at 621, citing, Noll v. Harrisburg Area YMCA, 643 A.2d 81, 88 (Pa. 1994).

In this case, the refrigeration system at issue falls within the third category as described above. The refrigeration system is physically attached to the supermarket, thus it is not clearly personalty. And although the refrigeration system is physically attached to the supermarket, the refrigeration system conceivably could be moved without materially damaging the supermarket, thus not classifying the system as clearly a fixture. Therefore, the analysis of the third category must be employed to ascertain whether the refrigeration system constitutes a fixture or personalty.

As to the first consideration, the refrigeration system at issue is extensively attached to the supermarket. The system consists of two refrigeration racks, roof-mounted condensers and several freezers and coolers containing evaporator coils. See, “defendant’s motion for partial summary judgment,” “exhibit 2” at ¶ 5. The refrigeration racks are hardwired into the supermarket’s electrical system and supplied with a 120 volt circuit to power the controls and a 480 volt circuit to power the compressors. See, id. at ¶ 6. Each refrigeration rack is connected to the supermarket’s coolers and condensers on the roof by copper piping. See, id. at ¶ 7. Additionally, each refrigeration rack contains more than 584 pounds of refrigerant. See, id. at ¶ 8. Given the immense size of the refrigeration system, it would take a number of technicians, working eight plus hours, with heavy machinery including a forklift, to remove the system from the supermarket. See, id. at ¶ 9-13. Moreover, federal regulations may necessitate replacing a number of components of the supermarket, including piping and roof condensers, if the refrigeration racks were to be replaced. See, id. at ¶ 14. Upon review of the foregoing, the refrigeration system is substantially affixed to the supermarket.

As to the second element of consideration, the refrigeration system is essential to the use of the building as a supermarket. Supermarkets are purveyors of a number of chilled and frozen food items. As common sense dictates, keeping these food items chilled and frozen is vital to the general public being able to purchase items that are safe and healthy. Therefore, the refrigeration system at issue is essential to the use of the building as a supermarket.

Lastly, as to the third consideration, the intent of the parties supports the conclusion that the refrigeration system is a fixture. The intention of the parties is determined by evaluating the sound evidence- of record. See, Lehmann, 684 A.2d at 621 (citation omitted). Similar to Appeal ofSheetz, Inc., the record in this matter is devoid of any showing of intention by any party to remove the refrigeration system should the property cease to be used as a supermarket. See, Appeal of Sheetz, Inc., 657 A.2d at 1014. In fact, the record shows that JJE installed the refrigeration system in the supermarket with the intention to use the facility as a supermarket. The lease between JJE and Spring Hill provided that “all alterations, additions, improvements and fixtures (other than unattached movable trade fixtures) which may be made or installed by either party hereto upon the [supermarket] shall remain upon and'be surrendered with the [supermarket] and become the property of [Spring Hill] at the termination of this lease....” See, “defendant’s motion for partial summary judgment,” “exhibit 1” at “exhibit A”, art. 18.2. The JJE-Spring Hill lease also vested Spring Hill with the authority to “re-enter the [supermarket] with due process of law, take possession of all buildings, improvements, additions, alterations, equipment and fixtures thereon...” upon the default of JJE. See, id. at art. 24.1(C). The language of the JJE-Spring Hill lease clearly spelled out that the refrigeration system would remain in place at the natural termination of the lease, or in the event the lease is terminated due to JJE’s default. Thus, as the lease between JJE and Spring Hill is the best evidence of JJE’s and Spring Hill’s intention, it is clear that both JJE and Spring Hill intended the refrigeration system to remain in place as part of the premises, see, Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 497, 854 A.2d 425, 436 (Pa. 2004) (citation omitted).

Evaluating the three factors above, the evidence of record establishes that the refrigeration system is a fixture. The refrigeration system is extensively affixed to the Supermarket structure itself. Second, the refrigeration system is critical to the effective use of the premises as a supermarket. And lastly, the evidence clearly establishes that the intent of JJE, the party who installed the refrigeration system, was for the refrigeration system to remain in place. Therefore, the refrigeration system is properly classified as a fixture.

While the refrigeration system is properly classified as a fixture, the plaintiff proffers the argument that the refrigeration system at issue is a trade fixture. Plaintiff’s argument, however, contradicts well settled Pennsylvania law. To constitute a trade fixture, the chattel must have been erected for business purposes by the tenant claiming the chattel to be a trade fixture. See, Berry, et al. v. Heinel Motors. Inc., 56 A.2d 374, 375 (Pa. Super. 1948) (“articles which are erected for business purposes by a tenant upon the leased premises are trade fixtures and constitute personal property even though physically annexed to the ground.” (citation omitted) (emphasis added)); see also, Cattie, et al. v. Joseph P. Cattie & Brothers, Inc., 403 Pa. 161, 165, 168 A.2d 313, 315 (Pa. 1961) (“as between landlord and tenant the rule is well settled in Pennsylvania that where a tenant attaches to real estate fixtures and equipment necessary for the operation of its business, such items become ‘trade fixtures’, and a presumption arises that the tenant is entitled to remove them during or at the termination of its lease.” (citations omitted) (emphasis added)) In this case, the plaintiff’s argument that the refrigeration system constitutes its trade fixture must fail, as it was JJE, and not Food Choice, who attached the refrigeration system to the supermarket.

Plaintiff additionally argues that the specific damaged components of the refrigeration system constitute personal property, because the components are easily removable from the refrigeration system. This argument is nothing more than a red herring. The damaged electrical components of the refrigeration system, though they may be easily removable from the system, are part and parcel of the refrigeration system as a whole. The fact that the damaged electrical components may be easily removable does not convert them into personalty. See, Rogers, et al. v. Gillinger, et al., 30 Pa. 185, 1858 WL 7809, *3 (Pa. 1858); see also, Morris’s Appeal, 88 Pa. 368, 1879 WL 11368, *14 (Pa. 1879). The components, as part and parcel of the entire refrigeration system, remain part of the fixture. See, id.

Evaluating the evidence of record, the facts establish the refrigeration system to be a fixture. The refrigeration system does not constitute Food Choice’s trade fixture, and Food Choice cannot separate out specific components of the refrigeration system into personalty and fixtures. Therefore, the refrigeration system is properly classified as a fixture.

Covered Items Under the Insurance Contract

As the refrigeration system is determined to be a fixture, the issue becomes whether such fixtures are insurable under Food Choice’s insurance contract through Mutual Benefit. The provisions of an insurance contract are properly interpreted by a court as a matter of law. See, Standard Venetian Blind Co., 469 A.2d at 566. While the provisions of coverage of an insurance contract will be most strongly construed in favor of the insured, it is the burden of the insured to establish that the claim falls under the coverage provisions of the insurance policy. See, Erie Ins. Exchange, 533 A.2d at 1366; see also, Scottsdale Ins. Co., 379 F. app’x at 143. In interpreting the coverage provisions of the policy, a court is required to give effect to the contractual language where the operative provisions are clear and unambiguous. See, Standard Venetian Blind Co., 469 A.2d at 566.

In the instant case, Food Choice secured “Business Personal Property” coverage in its policy through Mutual Benefit. See, “defendant’s motion for partial summary judgment”, “exhibit 7.” “Business Personal Property” coverage included: “Tenant’s improvements and betterments. Improvements and betterments are fixtures, alterations, installations or additions: (a) made a part of the building or structure you occupy but do not own; and (b) you acquired or made at your expense but cannot legally remove.” See, id. Food Choice contends that the refrigeration system would be covered under this section of the “Business Personal Property” coverage. See, “plaintiff’s response to defendant’s motion for partial summary judgment and cross motion for summary judgment on breach of contract claim” at ¶ 16.

Interpreting the aforementioned coverage provision in the light most favorable to Food Choice, the refrigeration system is not covered under this section. True, the refrigeration system is made a part of the supermarket, which Food Choice does not own. However, Food Choice never acquired the refrigeration system, nor did it make it at its own expense. The record clearly establishes that Food Choice never obtained any ownership interest in the refrigeration system, see, “defendant’s motion for partial summary judgment,” “exhibit 1” at^ 18; “exhibit 6” at 27; “exhibit 10” at 227. Moreover, the record fails to establish any evidence that Food Choice made the refrigeration system at its own expense. Thus, Food Choice’s claim for the refrigeration system does not fall within the purview of coverage provided by section 3 of the “Business Personal Property” coverage.

Food Choice’s “Business Personal Property” coverage also includes coverage for: “(1) property you own that is used in your business; (2) property of others that is in your care, custody or control, except as otherwise provided in loss payment property loss condition paragraph E.6.d(3) (b);.” See, “defendant’s motion for partial summary judgment,” “exhibit 7.” Again, however, interpreting these provisions in the light most favorable to Food Choice, neither section provides coverage for a claim on the refrigeration system. Paragraph (1) of the aforementioned section does not apply, as Food Choice did not own the refrigeration system, see, “defendant’s motion for partial summary judgment,” “exhibit 1” at ¶ 18; “exhibit 6” at 27; “exhibit 10” at 227. Additionally, paragraph (2) of the aforementioned section does not apply as “property of others” constitutes personalty, and as analyzed above, the refrigeration system constitutes a fixture and thus a part of the realty. Therefore, Food Choice’s claim for the refrigeration system does not fall within the coverage provided by the “Business Personal Property” coverage.

While a claim for the refrigeration system is not covered under the “Business Personal Property” coverage purchased by Food Choice, such a claim would be covered under the provisions of the “building” coverage, which Food Choice neglected to procure. “Building” coverage provides coverage for, among other things, “(2) fixtures, including outdoor fixtures.” See, “defendant’s motion for partial summary judgment,” “exhibit 7.” As has been established, the refrigeration system constitutes a fixture. Thus, interpreting the plain language of the insurance contract, a fixture, such as the refrigeration system, would be covered under the aforementioned provision of “Building” coverage.

The language “Businessowners Coverage Form” of Mutual Benefit is clear and unambiguous, and thus the plain language must be given effect. See, Standard VenetianBlind Co., 469 A.2d at 566. The insurance coverage provisions provide that a claim for the refrigeration system would be covered under “building” coverage and not “Business Personal Property” coverage. Thus, as Food Choice only secured “Business Personal Property” coverage, and not “Building” coverage as was its option, the claim for the refrigeration system was not covered under Food Choice’s policy through Mutual Benefit. Food Choice neglected to exercise its option to purchase “Building” coverage. Although hindsight is 20/20, the law will not now remedy Food Choice’s failure to purchase “Building” coverage.

CONCLUSION

The evidence of record establishes the refrigeration system to be a fixture. Interpreting Food Choice’s insurance policy in the light most favorable to it, the insurance provisions clearly and unambiguously do not provide coverage for the claim for the refrigeration system. As there exists no genuine issue of material fact, partial summary judgment in favor of Mutual Benefit, as to Food Choice’s claim for coverage to the damaged refrigeration system, is proper at this juncture.

ORDER

And now, March 18, 2011, upon consideration of defendant’s motion for partial summary judgment, plaintiffs response in opposition and cross-motion for partial summary judgment, and defendant’s sur-reply, it is hereby ordered and decreed that said motion is granted. Plaintiff’s claim for coverage for the damage to the refrigeration system, as set forth in plaintiff’s complaint at paragraphs 17 through 24, inclusive, and paragraphs 31 (d)-(f), are hereby dismissed with prejudice.

It is further ordered and decreed that plaintiff’s cross-motion for partial summary judgment is hereby denied.

      . As evidenced by each party’s memorandum of law in support of their respective positions on the instant motions, the parties agree to the following facts: (1) JJE defaulted on its agreement with Bozzuto’s, Inc. and (2) neither Spring Hill nor Bozzuto’s, Inc. removed any fixtures or any property from the supermarket following JJE’s defaulting on both agreements. See, “Memorandum of Law in Support of Defendant’s Motion for Partial Summary Judgment” at 5; “Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Partial Summary Judgment and in Support of Cross Motion for Summary Judgment” at 3.

      . Food Choice’s policy through Mutual Benefit Insurance Company w.as issued in the name of “Upland Quality Foods,” the registered fictitious name for Food Choice. See, “Memorandum of Law in Support of Defendant’s Motion for Partial Summary Judgment” at “Exhibit 7.”

      . See, “Defendant’s Memorandum of Law in Further Support of its Motion for Partial Summary...and in Opposition to Plaintiff’s Motion for Summary Judgment on ‘Breach of Contract’ Claim,” “Exhibit 18” at 143-44.

      . See, id. at 144.

      . The term “refrigeration racks,” as used in this matter, can best be described as the engine that drives the refrigeration system.

      . By order dated June 7, 2010, Food Choice’s claim for breach of contract was severed and ordered to be tried first to its conclusion.

      . The conclusion that the refrigeration system is substantially affixed to the supermarket is all the more evidenced by the various photographs of the system, included with the engineering report submitted by the defendant along with its motion for partial summary judgment. See, “Defendant’s Motion for Partial Summary Judgment,” “Exhibit 2” at “Exhibit A”-”ExhibitD.”

      . The conclusion that refrigeration system was not Food Choice’s trade fixture is further supported by the fact that JJE, who installed the system, failed to remove the refrigeration system when JJE vacated the supermarket. As JJE failed to remove the refrigeration system, a presumption arose that JJE intended to “gift” the refrigeration system to its landlord, Spring Hill. See, Berry, et al., 56 A.2d at 375 (“The presumption of the law, being in favor of trade, is that a tenant does not intend to make his trade fixtures part of the realty for the permanent benefit of his landlord, but will remove them before the end of his term; and it is only when he leaves, without removing them, during the term, that an intention of making a gift of them to the landlord is to be imputed to him.” (citations omitted)).

      . The coverage provisions at issue in this case, cited under “Exhibit 7” to “defendant’s motion for partial summary judgment,” are detailed in the section “Businessowners Coverage Form,” Section 1(A)(1)(a),(b). See Also, “Defendant’s Motion for Partial Summary Judgment,” “Exhibit 8”.

      . Food Choice does contend that it “expended substantial sums of money to make the refrigeration system operational before opening the store.” See, “Plaintiff’s Response to Defendant’s Motion for Partial Summary Judgment and Cross Motion for Summary Judgment on Breach of Contract Claim” at ¶ 16. However, by Food Choice’s own testimony, through its principal Mohamad Mustafa, the “$20,000.00” allegedly spent to make the refrigeration system operational was “pretty much” a guess and any records that would support such an allegation were abandoned in the supermarket. See, “Defendant’s Memorandum of Law in Further Support of its Motion for Partial Summary Judgment,” “Exhibit 18” at 55.

      . “Business Personal Property” coverage also includes coverage for “leased personal property” and “exterior building glass,” however neither section is applicable to the refrigeration system at issue.

      . It must be noted that Food Choice is essentially seeking a windfall on its claim for the damaged refrigeration system. Spring Hill’s insurer, Ohio Casualty, paid Spring Hill’s claim for the damaged system and the system was repaired accordingly. Mutual Benefit paid Food Choice $110,000.00 on its claim for business interruption, and instead of Food Choice applying at least some of those payments towards its delinquent rent, $20,000.00 was used for the personal benefit of Food Choice’s principal, Mohamad Mustafa.


author: MOTTO, P.J.,

text:
    Commonwealth v. Murdock

      Luanne Parkonen, assistant district attorney, for Commonwealth.

      William M. Panella, for defendant.
    March 30, 2011
   MOTTO, P.J.,

Before the court for disposition is the petition for writ of habeas corpus filed on behalf of the defendant Emily Murdock, which asserts that the Commonwealth has failed to establish a prima facie case that defendant’s conduct of permitting her daughter to receive a series of rabies shots knowing that the animal that bit her daughter was not a stray and was up to date with necessary shots and vaccines constituted a violation of 18 Pa.C.S.A. §4304, Endangering the Welfare of Children.

On September 12, 2010, Officer James Heaney of the New Castle Police Department was dispatched to Jameson Memorial Hospital Emergency Room in reference to a dog bite victim. Upon arrival, Officer Heaney was met by the mother of the victim, defendant Emily Murdock, who stated that her five-year-old daughter, E.M., had been at Cascade Park in New Castle with her other children playing when a stray dog wandered near the children. Defendant described the dog as a black Shepard-husky mix. As the children were petting the dog, defendant turned away and heard growling, followed by E.M. screaming. She looked back to see her daughter on the ground with the dog on top of her. Defendant ran over to the dog and started to kick it until it ran away. Defendant then picked up her daughter and brought her to the emergency room. While at the emergency room, Officer Heaney was informed by a nurse that the victim would be taken to Children’s Hospital in Pittsburgh. The victim received over 150 stitches to her face plus rabies shots from the attack.

Officer Heaney went to Cascade Park in an attempt to locate the dog involved in the attack. While there, he spoke with several people who all stated that they had not seen an animal running loose that fit the description of the dog. After searching Cascade Park, Officer Heaney spoke with the victim’s father, George Murdock, who informed him of a previous incident involving E.M. and the dog, Max, owned by her mother’s boyfriend, David Walters. Mr. Murdock stated that in December 2009, E.M. was treated for a dog bite to the face and neck where she received treatment at Jameson Hospital.

On September 16, 2010, Officer Heaney spoke with Animal Control Officer Wharry about this incident. Officer Wharry told him that on September 15,2010, while he was in Cascade Park searching for the dog he was informed by a person in the park that the dog that bit E.M. was owned by the victim’s family and that it did not happen in the park. Officer Whariy then contacted defendant to speak with her concerning the rumor that he heard and during their conversation defendant admitted that it was in fact Max, her boyfriend’s dog, who bit her daughter and it happened at her boyfriend’s residence and not at Cascade Park. She stated that she did not want her ex-husband or Officer Heaney to find out that she lied.

Officer Heaney went to defendant’s residence to speak with her about what happened to her daughter. Defendant admitted that it was her boyfriend’s dog and not a stray dog that had bitten her daughter and the same dog had bitten her daughter in the past. She admitted that her daughter was bitten while she was at her boyfriend’s house and not in Cascade Park. Additionally, defendant told officer Heaney that she is afraid of her boyfriend and that it was his idea to give the stray dog story at hospital. She stated that she was not truthful about how the dog bite occurred because she feared her kids would be taken away from her.

As a result, defendant was charged with endangering the welfare of children, in violation of 18 Pa.C.S.A. §43 04(a)(1), and false swearing- mislead public servant, in violation of 18 Pa.C.S.A. §4903(a)(2). On December 20,2010, the defendant filed this omnibus pretrial motion seeking dismissal of the charge of endangering the welfare of children.

Filing a petition for a writ of habeas corpus is the appropriate method by which a defendant may challenge a pre-trial finding that the Commonwealth has presented sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 674 A.2d 249 (Pa. Super. 1996); see also Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1995); Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002). In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. Comm v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). The Commonwealth must satisfy this evidentiary burden by presenting evidence that established a crime was committed and that there is a probability that the defendant committed the crime. Commonwealth v. Fox, 619 A.2d 327 (Pa. Super. 1993). The Commonwealth establishes aprima facie case by offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 580 A.2d 412 (Pa. Super. 1990). The Commonwealth is not required to prove this by the “beyond a reasonable doubt” standard; however, the Commonwealth must satisfy a standard of “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994).

The Commonwealth meets the burden of establishing a prima facie case when it submits evidence that, if accepted as true, would warrant a trial judge to allow the case to go to ajrny. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). Evidence must be presented concerning each element of the crime charged. Id. Such evidence must be viewed in the light most favorable to the Commonwealth. Id. Furthermore, the Commonwealth is entitled to all reasonable inferences that can be drawn from the evidence presented. Id. The weight or credibility of the evidence is not at issue during the preliminary hearing. Id.

The defendant contends that the Commonwealth has failed to establish a prima face case that defendant’s conduct of lying to police about the details of the animal that bit her daughter and permitting her daughter to receive a series of rabies shots knowing the animal that bit her daughter was not a stray and was up to date with necessary shots and vaccines constituted a violation of 18 Pa.C.S.A. §4304, endangering the welfare of children.

18 Pa.C.S.A. §4304(a)(l) states, “Aparent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” In order to establish that the defendant violated 18 Pa.C.S.A. §4304, the Commonwealth must prove the following elements:

1)the accused is aware of his or her duty to protect the child;
2)the accused is aware that the child is in circumstances that could threaten the child’s physical or psychological welfare; and
3)the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare. Commonwealth v. Wallace, 817 A.2d 485, 490-491 (Pa. Super. 2002) (quoting Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997); Commonwealth v. Cardwell, 515 A.2d 311, 314 (Pa. Super. 1986)).

The law imposes an affirmative duty on parents to avert the untimely death or risk of bodily harm to their children. Commonwealth v. Foster, 764 A.2d 1076, 1082-1083 (Pa. Super. 2000) (citing Commonwealth v. Nixon, 718 A.2d 311 (Pa. Super. 1998)). Moreover, endangering the welfare of children is a specific intent crime that requires the defendant knowingly violates the duty of care, which can be violated through acts or omissions. Commonwealth v. Cardwell, supra, 515 A.2d at 313. This means that a parent’s duty to protect his or her child requires affirmative performance to prevent harm and that failure to act may mean that the parent knowingly endangers the welfare of the child. Id., 515 A.2d at 315. This does not mean that the child is actually harmed, but whether the defendant exposed the child to the risk of harm. Commonwealth v. Winger, 957 A.2d 325, 331 (Pa.Super. 2008) (citation omitted). The Commonwealth may prove the elements of Endangering the welfare of children through circumstantial evidence. Commonwealth v. Moore, 395 A.2d 1328, 1332 (Pa. Super. 1978) (citations omitted).

In Pahel, supra., the appellant was convicted of endangering welfare of children regarding an incident in which she delayed obtaining medical treatment for her five-year-old son for several days, even though there were signs of significant facial injuries that included swelling on the nasal bridge and discoloration of the nose and eyes. The Commonwealth presented the testimony of the treating physician, who stated that the child’s injuries required urgent medical attention at the emergency room or a doctor’s office because the amount of trauma needed to inflict the nasal fracture could have caused an injury to the brain. The doctor also opined that the child’s welfare was potentially endangered because of the facial injuries that could have let to serious medical problems. The jury found the appellant guilty and the appellant filed an appeal raising several issues, which included questioning the sufficiency of the Commonwealth’s evidence regarding whether the appellant knowingly violated 18 Pa.C.S.A. §4304.

The Pahel court noted that the burden is on the Commonwealth to establish every element for the charge of endangering welfare of children in order to sustain the appellant’s conviction. Pahel, 689 A.2d at 964 (citing Commonwealth v. Miller, 600 A.2d 988, 990 (Pa. Super. 1992)). The court stated:

Utilizing a common sense of the community approach to interpret the specific intent element of the statue, we find an implicit recognition that parents at times can make mistakes in judgment and that their children may be harmed as a result. However, for such mistakes to rise to the level of criminal culpability, parents must knowingly allow their children to be at risk with awareness of the potential consequences of their actions or of their failure to act. Id. 456 Pa. Super, at 163, 689 A.2d at 965 (Citing Commonwealth v. Miller, 411 Pa.Super. 33, 41, 600 A.2d 988, 991-992 (1992)).

The Pahel court also noted that the Commonwealth’s expert testified that the treatment for the child would not have changed if the appellant sought medical attention for the victim when the injuries actually occurred. Id., 689 A.2d at 966. Moreover, the doctor’s report and the Children and Youth Services case worker who interviewed the appellant stated that the appellant was unaware of the injuries that occurred to her son and she did not know how the child hurt his nose. Id. The court concluded that it is impracticable to place the burden on every parent to seek medical attention for every childhood injury to dispel the mere potential threat to the child’s welfare. Id., 689 A.2d at 967. Additionally, the Pahel court explained, we must not rush to judgment any time and every time a minor suffers an injury that is not medically attended to immediately. Ideally, each and every injury of a minor-child should not go unattended, but the alacrity with which one acts to seek medical intervention, diagnosis or abatement of an injury is in the first instance for the parent to decide, allowing for review by the courts when a parent is found guilty of violating Section 4304. Id., 689 A.2d at 966. Therefore, the Pahel court reversed the judgment of sentence and overturned the appellant’s conviction for endangering welfare of children. Id.

In the current case, the Commonwealth has based the charge of endangering welfare of children on the defendant’s act of permitting her daughter to receive a series of rabies shots knowing the animal that bit her daughter was not a stray and was up to date with necessary shots and vaccines. Defendant does not dispute that, as a mother, she had a duty to protect her child. Rather, she argues that the evidence fails to establish: 1) that she knowingly placed the child in circumstances which could threaten the child’s physical or psychological welfare; and 2) that her actions were so lacking that they could not be reasonably expected to protect the welfare of her child. Defendant contends that while she allowed her daughter to receive a series of rabies shots knowing that the dog that bit her was up to date with its shots, she did not knowingly place her daughter in a situation that would threaten the child’s physical or psychological welfare. Moreover, defendant argues that allowing her daughter to receive unnecessary rabies shots did not endanger the welfare of her child. The record reflects that E.M. received a series of four shots for rabies and it was only after the first two in the series that defendant came forward and admitted that the dog that bit her daughter belonged to her boyfriend and was up to date on his shots. While the last two shots were administered with the knowledge that E.M. could not possibly have contracted the disease, defendant knowingly allowed her daughter to be given the first two shots in the series. Although defendant allowed her daughter to receive a series of shots to protect her against a disease she was aware her daughter could not have contracted from the dog bite, that act alone was not so lacking as to threaten the child’s physical or psychological welfare. This court notes that while the pain and discomfort associated with receiving rabies shots is not to be underestimated, it does not rise to the level of criminal culpability. Even though defendant was surely aware of the pain and discomfort associated with rabies shots, the act of allowing E.M. to receive the shots unnecessarily did not endanger the child’s welfare.

In Commonwealth v. Ogin, 540 A.2d 549 (Pa. Super. 1998), the defendants/parents were convicted of, inter alia, endangering the welfare of their 17-month-old daughter by dragging and throwing the child against the wall of a building, twice striking the minor with a backhand and pushing hot food in the child’s face. On appeal, the defendants alleged that the evidence was insufficient to establish that they knowingly endangered the welfare of their child. The court found such argument to meritless. Under Ogin, to come within the scope of Section 4304, a parent may engage in extreme acts or grave omissions which adversely affect a child, or despite not sustaining serious injury, the parent knew that the conduct in question posed a threat to a child’s welfare. See Commonwealth v. Pahel, supra., 456 Pa.Super. at 165, 689 A.2d at 966.

In the case before this court, although there is evidence that defendant allowed her daughter to receive a series of painful shots when she knew that they were not necessary, there is no evidence that that act was so extreme as to pose a threat to the child’s welfare. While the court does not condone a parent allowing a child to undergo painful, unnecessary medical treatment, there is not enough evidence to charge endangering the welfare of a child based on causing a child to receive rabies shots alone. There must be some additional evidence of an extreme act that threatens the child’s physical and psychological welfare. Therefore, the Commonwealth has failed to present evidence that the defendant placed her daughter in a situation which could threaten her psychological or physical welfare. Thus, the charge of endangering welfare of children is dismissed.

For the reasons set forth in this opinion, the defendant’s petition for writ of habeas corpus is granted and the charge of endangering the welfare of children is dismissed.

ORDER OF COURT

And now, March 30, 2011, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that defendant’s petition for writ of habeas corpus is granted as to the charge of endanger welfare of children as parent and such charge is dismissed.


author: PICCIONE, J.,

text:
    Commonwealth v. Stevenson

      Kristine M. Ricketts, deputy attorney general, for Commonwealth.

      Dennis A. Elíseo, Lawrence Keith, and Darrell Haeberle, for defendant.

      March 28, 2011
   PICCIONE, J.,

This opinion is issued pursuant to Pa.R.A.P. 1925(a) in support of the order of court dated August 31, 2010, sentencing defendant Zaamar Stevenson (hereinafter, “defendant”) to a term of incarceration of not less than four (4) years nor more than seventeen (17) years state incarceration. Defendant was sentenced following his convictions on April 19, 2010 on two counts of possession of a controlled substance, two counts of possession with intent to deliver a controlled substance, two counts of delivery of a controlled substance, and one count of criminal use of a communication cacility.

This matter arises out of two controlled drug purchases that took place on December 22, 2008 and December 31, 2008. On December 22,2008, agent Jason Hammerman of the Office of the Attorney General directed a confidential informant to call defendant for the purpose of purchasing crack cocaine. As a result of the telephone call, a drug purchase was organized where the confidential informant would purchase half an ounce of crack cocaine from defendant for $600.00 at the McDonald’s and Pilot Gas Station on Route 422 in Butler County. The confidential informant would pay $300.00 for the crack cocaine and an additional $300.00 for a debt the confidential informant owed to defendant. The confidential informant and Agent Hammerman drove to the agreed-upon location and, upon arrival, the confidential informant was searched and found to be free of drugs, money, and contraband. The confidential informant then received a call from the same number used to organize the drug transaction, and the confidential informant indicated that he was to meet defendant in the McDonald’s bathroom. The confidential informant entered the McDonald’s followed shortly thereafter by a black male identified as defendant. Agent Benjamin Waugaman was present in the McDonald’s bathroom when defendant met with the confidential informant and positively identified defendant as the individual who sold the crack cocaine. After the confidential informant exited the bathroom, he returned to Agent Hammerman’s vehicle and produced the crack cocaine. On December 31, 2008, the confidential informant was again directed by Agent Hammerman to call defendant to set up a drug deal. The second controlled drug purchase proceeded in a similar manner to the December 22, 2008 purchase.

Defendant was arrested shortly after the second controlled drug purchase. A jury trial was held in April of 2010 during which defendant asserted the defense of entrapment. The jury rejected the defense and convicted defendant of the offenses listed above on April 19, 2010. He was sentenced to a term of incarceration of four to 17 years on August 31, 2010. Following sentencing, defendant filed a post-sentence motion for judgment of acquittal, which was denied by operation of law on January 13,2011.

Initially, the court notes that two appeals were filed in this matter. On February 7, 2011, defendant filed a pro se appeal of the January 13, 2011 order denying by operation of law his post-sentence motion for judgment of acquittal. Defendant also indicates that his pro se appeal applies to an order entered on September 15, 2010. The two docket entries for September 15,2010 are defendant’s post-sentence motion for judgment of acquittal and an order of court scheduling oral argument or on at motion. In addition to defendant’s pro se appeal, an appeal of the August 31,2010 sentencing order was filed on January 31, 2011 by defendant’s counsel, the Lawrence County Office of the Public Defender. Defendant and his counsel filed separate Pa.R.A.P. 1925(b) statements. Both statements allege errors committed during defendant’s trial.

The Supreme Court of Pennsylvania has held that appellants in criminal cases possess no constitutional right to hybrid representation. Commonwealth v. Ellis, 534 Pa. 176, 180, 626 A.2d 1137, 1139 (Pa. 1993).

A represented appellant may petition to terminate his representation; he may, acting pursuant to the rules of criminal procedure, proceed on his own behalf. Conversely, he may elect to allow counsel to take his appeal, but, should counsel not prevail, assert counsel’s ineffectiveness at a later time and, thus indirectly, assert the claims he would have made on direct appeal. The only thing he may not do is confuse and overburden the court by his own pro se filings of briefs at the same time his counsel is filing briefs on his behalf. Id. at 1140.

When an appellant represented by counsel files a pro se petition, brief, or motion, appellate court s typically forward the document to the appellant’s counsel. Commonwealth v. Battle, 883 A.2d 641, 644 (Pa. Super. 2005) (citing 210 Pa.Code § 65.24). Similarly, the pro se Rule 1925(b) statement of an appellant represented by counsel is considered a nullity. Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d 282, 293 (Pa. 2010).

Because defendant is represented by an attorney that filed a 1925(b) statement on defendant’s behalf, defendant’s pro se 1925(b) statement must be regarded as a nullity. The fact that defendant and his counsel are purportedly appealing different orders is of no consequence. Both 1925(b) statements allege errors that occurred during defendant’s trial. The pro se statement does not even mention the denial of his post-sentence motion for judgment of acquittal. As a result, the court will disregard the pro se 1925(b) statement and address the issues raised by defendant’s counsel.

In'his first issue on appeal, defendant claims that the court erred when it denied his motion for judgment of acquittal when the evidence presented was sufficient as a matter of law to support the defendant’s entrapment defense. Defendant does not specify which notion for judgment of acquittal was improperly decided. With respect to defendant’s post-sentence motion for judgment of acquittal, the court submits that the motion was untimely. Rule 720 of the Pennsylvania Rules of Criminal Procedure states that “a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.” Pa.R.Crim.P.720(a)(l). Defendant was sentenced on August 31, 2010, and his motion was filed on September 15,2010, well after the 10-day deadline.

With respect to defendant’s oral motion for judgment of acquittal made during trial at the conclusion of the commonwealth’s case, defendant’s motion was also without merit, as the evidence presented was insufficient as a matter of law to establish the defendant’s entrapment defense. The Crimes Code defines entrapment in relevant part as follows:

(a) General rule.- A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it. 18 Pa.C.S.A. § 313.

In determining whether an entrapment was perpetrated in a particular case, the inquiry should focus on the conduct of the police and not on the defendant’s prior criminal activity or other indicia of a predisposition to commit crime. Commonwealth v. Weiskerger, 520 Pa. 305, 311, 554 A.2d 10, 13 (Pa. 1989); Commonwealth v. Lucci, 662 A.2d 1, 3 (Pa. Super. 1995). “In their zeal to enforce the law, government agents may not originate a criminal design, implant in an innocent person’s mind the disposition of a criminal act and then induce commission of the crime so that the government may prosecute.” Commonwealth v. Borgella, 531 Pa. 139, 143, 611 A.2d 699, 701 (Pa. 1992). However, “[wjhere police ‘do no more than afford [a defendant] an opportunity’ to commit an illegal act, their actions are not considered sufficiently outrageous police conduct to support an entrapment defense.” Commonwealth v. Marion, 981 A.2d 230, 239 (Pa. Super. 2009) (citing Commonwealth v. Morrow, 650 A.2d 907, 913 (Pa. Super. 1994).

The determination of whether police conduct constitutes entrapment is for the jury, unless the evidence of police conduct clearly establishes entrapment as a matter of law and there is no dispute as to the operative facts relating to the defense. Marion, 981 A.2d at 239 (citing Lucci, 662 A.2d at 3). Operative facts are those facts that are necessaiy to prove the defense of entrapment. Marion, 981 A.2d at 239 (citing Lucci, 662 A.2d at 4). “Under the objective test for entrapment, these would be facts that go to the course of conduct of a government officer or agent that would fall below the standards to which common feelings respond, for the proper use of government power.” Id.

In support of his oral motion for judgment of acquittal, defendant argued that the confidential informant and agents induced him to commit the crimes with which he was charged. According to defense counsel, the confidential informant testified that defendant initially refused to sell crack cocaine to the confidential informant. Defense counsel characterized the confidential informant’s testimony as follows: “[defendant] said he wasn’t going to do it and didn’t want to do it[.]” N.T., 4/19/10, at 53. Defendant was allegedly convinced by the Pennsylvania attorney general’s office to sell the confidential informant crack cocaine. For example, defense counsel claimed that the attorney general’s office “used the fact that the confidential informant owed [defendant] money, it was around Christmas [and defendant needed money to buy his children toys and a Christmas tree.]” Id. The court concluded that portions of the testimony elicited were inconsistent with defendant’s claims of inducement and persuasion. For example, Agent Hammerman testified that the Attorney General’s office generally does not consider the personal life of the subject of an investigation. N.T., 4/15/10, at 61. In addition, the confidential informant was hesitant to testify that defendant was “getting out of dealing drugs.” N.T., 4/19/10, at 17, 18. Furthermore, the confidential informant indicated that defendant called him prior to the drug transactions at issue and asked the confidential informant to sell crack cocaine for defendant in Butler County. Id. at 38, 39. As a result, there was a dispute regarding whether the attorney general’s office induced or encouraged defendant to sell the confidential informant crack cocaine. Because an operative fact was in dispute at the time defendant’s motion was made, the court properly denied defendant’s motion. Whether the conduct of the attorney general’s office constituted entrapment was a question for the jury to decide.

Defendant’s next claim is that the court erred as a matter of law when it instructed the jury with respect to credibility of the undercover agents. After reviewing the trial transcript, the court could not identify which portion of the jury instruction that defendant is challenging. For further clarification on the issue, the court reviewed defendant’s post-sentence motion for judgment of acquittal, which states that the court erred “because it informed the jury, through the metaphor of who was standing trial, that the jury was not to be too much concerned about the credibility of the undercover agents.” Defendant may be referring to the following portion of the instruction:

You should not disbelieve the defendant’s testimony merely because he is the defendant. In weighing his testimony, however, you may consider the fact that he has a vital interest in the outcome of this trial. You may take the defendant’s interest into account, just as you would the interest of any other witness, along with all other facts and circumstances bearing on credibility in making up your mind what weight his testimony deserves. Id. at 46.

Although this instruction does not explicitly refer to undercover agents, “it adequately conveys the concept that the personal interest of a witness may have an impact upon his testimony and should be taken into account in making credibility determinations.” Commonwealth v. Gibson, 553 Pa. 648, 666, 720 A.2d 473, 481 (Pa. 1998). Therefore, the court properly and accurately informed the jury of the law. Id. Additionally, the court notes that defendant failed to make a timely objection to the jury instruction. N.T., 4/19/10, at 70. “A specific and timely objection must be made to preserve a challenge to a particular jury instruction.” Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010). As a result, this issue is waived. Id.

Defendant’s next claim is that the court erred in permitting the confidential informant to testify concerning an unrelated instance of prior bad acts. The court assumes that defendant is referencing testimony regarding telephone conversations between defendant and the confidential informant that took place several weeks prior to the drug transactions at issue. According to the confidential informant’s testimony, defendant offered to sell the confidential informant crack cocaine. N.T., 4/19/10, at 36-39. “Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity.” Commonwealth v. Sherwood, 603 Pa. 92, 114, 982 A.2d 483, 497 (Pa. 2009) (citing Pa.R.E. 404(b)). “However, evidence of prior bad acts may be permissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.” Id. The Commonwealth did not elicit the testimony from the confidential informant to show that defendant acted in conformity with the past act or to show criminal propensity. Instead, the Commonwealth was attempting to demonstrate that defendant initiated contact with the confidential informant and thereby rebut allegations of entrapment. The testimony tended to show that defendant was not induced to sell drugs. Therefore, the testimony was properly admitted. Furthermore, defendant failed to make a specific objection to the testimony of prior bad acts, and as a result, the objection is waived.

Defendant’s next claim is that the court erred by failing to properly instruct the jury as to the burden of the Commonwealth with respect to the defense of entrapment. The statute governing the entrapment defense states that “a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment.” 18 Pa.C.S.A. § 313(b).

Prior to 1972, when the new crimes code was enacted, the law employed a “subjective test to determine whether a defendant had been entrapped. The focus was on the defendant’s predisposition to committing the crime, rather than the conduct of law enforcement. As such, the burden fell on the Commonwealth to disprove entrapment (or lack of intent) beyond areasonable doubt. However, upon the enactment of 18 Pa.C.S.A. § 313 as part of the 1972 Crimes Code, the burden, along with the nature of the test to determine entrapment shifted. The focus of the fact-finder’s inquiry became the conduct of the police and the burden shifted to defendants to prove by a preponderance of the evidence, that they had been entrapped. Commonwealth v. Willis, 990 A.2d 773, 775 (Pa. Super. 2010) (citations omitted).

The court instructed the jury on the defendant’s burden, stating that “defendant has the burden of proving an entrapment by a preponderance of the evidence^]” N.T., 4/19/10, at 40-41. The court did not reference any burden of the Commonwealth with respect to the defense of entrapment. In light of the above-cited case law, the court concludes that it provided the jury with a proper and accurate instruction.

Defendant’s final claim is that the court erred by allowing the Commonwealth to introduce evidence that defendant violated his parole by using a cell phone. The court submits that defendant initially raised the issue of his parole violation on cross examination. N.T., 4/19/10, at 76. The Commonwealth did not introduce evidence of the parole violation. The Commonwealth merely cross-examined defendant on his testimony. Id. at 98-99. In addition, defendant failed to object to the questioning. Id. Therefore, this issue is also waived.

ORDER OF COURT

And now, March 28, 2011, the court having received defendant’s concise statement of matters complained of on appeal pursuant to Pa.R.A.R 1925(b) with Deputy Attorney General Kristine M. Ricketts, Esquire, representing the Commonwealth, and Assistant Public Defenders Dennis A. Elisco, Esquire, Lawrence Keith, Esquire, and Darrell Haeberle, Esquire, representing the defendant, the court hereby orders and decrees as follows:

1. The court issues the attached supplemental opinion pursuant to Pa.R.A.P. 1925(a).

2. The clerk of court s shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.