author: SPRECHER, J.,

text:
    Commonwealth v. Williams

      Jonathan H. Kurland, for Commonwealth.

      Amy Shaffer, for defendant.
    January 16, 2008
   SPRECHER, J.,

On February 9, 2005, a complaint was filed charging the defendant, Wayne Patrick Williams, with criminal attempt to commit murder of the first degree, aggravated assault, arson, causing or risking catastrophe, possessing instruments of crime, recklessly endangering another person and terroristic threats. The defendant filed an omnibus pretrial motion seeking suppression of statements and habeas corpus relief. On May 1,2007, this court issued an order granting in part and denying in part Mr. Williams’ motion to suppress and granting his motion for habeas corpus. The Commonwealth appeals from this court’s order.

STATEMENT OF FACTS

On May 1,2007, this court issued the following findings of fact in disposition of Mr. Williams’ motion to suppress:

Findings of Fact

(1) On February 9, 2005, Ms. Crystal Green was admitted for treatment for severe bums at the emergency room of St. Joseph’s Hospital in the City of Reading, Berks County, Pennsylvania at 6:50 a.m. She told her treating physician that gasoline was thrown on her and was ignited.

(2) At approximately 6:56 a.m., a report came in to the dispatch center of the Reading Police Department from St. Joseph’s Hospital in the City of Reading, Berks County, Pennsylvania. The report indicated a female bum victim was receiving treatment in the emergency room and that there was an individual acting suspiciously outside the emergency room.

(3) Officer Suydam took the report and departed for St. Joseph’s Hospital in Reading arriving in his patrol car at approximately 7:20 a.m.

(4) A security guard directed the officer to go to the intersection of Twelfth and Walnut Streets in the City of Reading where another security guard advised that the person who was acting in a suspicious manner had walked into an adjacent city park and was wearing a black coat and a gray sweatshirt. The security guard, within eyesight of this person, pointed him out to Officer Suydam.

(5) Officer Suydam approached the person the security guard had identified (defendant). The defendant spoke first saying “I guess you are here for me.”

(6) During their conversation, the defendant indicated the bum victim was his girlfriend. Officer Suydam then asked the defendant how his girlfriend had been burned. The defendant stated that she was in the kitchen of the apartment building they shared at 1341 North Tenth Street in Reading and that she had gotten too close to the stove and that her clothes must have caught on fire. At this point, Officer Suydam had not spoken to any medical personnel or any other officers investigating the incident.

(7) Officer Suydam noticed bums on the defendant’s hands and that he was visibly upset. Based upon these observations, he advised the defendant that he was being taken into investigatory detention for the stated reasons that the officer was suspicious a crime may have occurred and had not yet spoken to the victim.

(8) Officer Suydam informed the defendant that he would be taken to city hall to speak with a detective. He was told that he was not under arrest and Miranda warnings were not read at this point. Officer Suydam informed him that only a patrol wagon was available to transport him and departmental policy dictated that he must be handcuffed and seat belted to be transported in the wagon. Officer Mosley transported the defendant to city hall in the patrol wagon at approximately 7:40 a.m. while Officer Suydam proceeded to the emergency room and began to speak with Ms. Green.

(9) Criminal Investigator Parker (C.I. Parker) of the Reading Police Department took over for Officer Suydam in speaking with Ms. Green at approximately 8 a.m. C.I. Parker observed that she was crying, shivering, cringing, and flinching as they spoke. She observed that Ms. Green appeared to be going into shock because her shivering became more frequent as they spoke. She told C.I. Parker she had been in an argument with the defendant at the apartment building where they both lived. The argument concerned the defendant getting another woman pregnant and Ms. Green telling the defendant that she wanted to end their relationship for that reason. Ms. Green told C.I. Parker that in response, the defendant told her that he was going to kill her so that no one would have her. According to Ms. Green, the defendant then poured gasoline on her and lit her on fire with a lighter.

(10) Officer Ziemba, an evidence technician with the Reading Police Department, arrived at the hospital to perform evidence collection duties at approximately 8 a.m. and received the clothes that Ms. Green had been wearing which were removed pursuant to her treatment. He testified that these clothes smelled of gasoline.

(11) Criminal Investigator Rambo (C.I. Rambo) of the Reading Police Department later took a statement from the defendant at city hall beginning at approximately 9 a.m. with Sergeant Solecki of the Reading Police Department also present. C.I. Rambo provided the defendant with Miranda warnings before taking his statement. The defendant told C.I. Rambo that he and Ms. Green had argued. He told C.I. Rambo that he then started to leave the premises when he saw a gas can in the public hall of the apartment building. The defendant stated that he took the gas can, doused Ms. Green with gasoline from it, and lit her on fire.

(12) Subsequently, Ms. Green died from unrelated causes.

ISSUES

The Commonwealth’s statement of matters complained of, filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), raises five issues:

(1) Whether this court erred and abused its discretion in finding that an excited utterance made by the victim was inadmissible hearsay.

(2) Whether this court erred in suppressing the defendant’s initial statement to Officer Suydam (“I guess you’re here for me”) when the statement was a spontaneous utterance during a mere encounter.

(3) Whether this court erred in suppressing the defendant’s subsequent statements to Officer Suydam.

(4) Whether this court erred in suppressing the defendant’s statements to Criminal Investigator Rambo.

(5) Whether, based, in part, on (sic) its accumulated legal errors, this court committed an abuse of discretion when it granted the defendant’s request for habeas corpus relief.

DISCUSSION

I. Ms. Green’s Statements to Officers at the Hospital.

The Commonwealth first alleges that this court erred and abused its discretion in finding that an excited utterance made by Ms. Green was inadmissible hearsay. The Commonwealth apparently refers to the statements made by Ms. Green at the hospital to Officer Suydam and Criminal Investigator (C.I.) Parker of the Reading Police indicating the defendant was culpable for her injuries. Ms. Green made these statements to the officers at the hospital at approximately 8 a.m. on February 9,2007. In her statements, Ms. Green said that the defendant had poured gasoline on her and ignited her with a lighter. Ms. Green made the statement in response to questioning by Officer Suydam and C.I. Parker.

Hearsay is in-court evidence of an out-of-court written or oral declaration that is offered to show the truth of the out-of-court assertion. Pa.R.E. 801(3); Woodard v. Chatterjee, 827 A.2d 433, 444 (Pa. Super. 2003). Hearsay is generally inadmissible at trial unless it falls within an exception to the rule prohibiting its admission. Pa.R.E. 802; Commonwealth v. Carter, 861 A.2d 957 (Pa. Super. 2004).

Ms. Green’s statement is hearsay because she made it out-of-court and the Commonwealth would proffer it to buttress its allegation that the defendant burned Ms. Green and is guilty of the charges filed against him. Thus the statement would be inadmissible unless an exception to the hearsay rule is applicable.

An excited utterance is an exception to the hearsay rule under the Pennsylvania Rules of Evidence. An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Pa.R.E. 803(2). The Pennsylvania Supreme Court has defined an excited utterance as

“[A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.” Commonwealth v. Stallworth, 566 Pa. 349, 366, 781 A.2d 110, 119-20 (2001) (quoting Commonwealth v. Stokes, 532 Pa. 242, 258, 615 A.2d 704, 712 (1992)).

There is no specific rule as to the length of time elapsed from the incident in which a statement can qualify as an excited utterance and the determination of excited utterances is a fact-specific and case-by-case determination. Commonwealth v. Boczkowski, 577 Pa. 421, 456, 846 A.2d 75, 95-96 (2004). (citation omitted)

This court concluded Ms. Green’s statement was an excited utterance. Although it was not spontaneous but instead in response to police questioning, the fact that Ms. Green made the statement while experiencing extreme shock as a result of her bums, as evidenced by her physical symptoms, weighed heavily in this court’s determination. Officer Suydam and C.I. Parker testified that, while they spoke to Ms. Green, she appeared to be in shock and was shaking, shivering, and wincing from the pain of her burns. Statements made while the declarant is still in pain from an incident are admissible as excited utterances because the declarant’s “attention [is] focused on [her] pain and not on the circumstances surrounding the accident,” so that the statement is not a product of the declarant’s reflective processes. Commonwealth v. Blackwell, 343 Pa. Super. 201, 214, 494 A.2d 426, 433 (1985) (quoting Thompson v. City of Philadelphia, 222 Pa. Super. 417, 420-21, 294 A.2d 826, 828 (1972)).

In Blackwell, the Pennsylvania Superior Court held that a victim’s statements to a police officer, made one-half hour to 45 minutes after he was kidnapped and robbed at gunpoint was an excited utterance because it was a spontaneous reaction to a startling event. Even though the statements were made in response to police questioning, the court held they were free of reflection and thus admissible as excited utterances. Blackwell, 343 Pa. Super, at 222, 494 A.2d at 437. Similarly, in Thompson, the Superior Court held that statements of an accident victim as to fault for his injuries made to a police officer while the victim was receiving treatment at the hospital one hour after the accident were admissible as excited utterances. According to the court “[i]f the decedent was so much in pain that his attention was focused on his pain and not on the circumstances surrounding the accident, this statement as to those circumstances cannot be said to be ‘shrewd and self-calculating.’” Blackwell, 343 Pa. Super. at 214, 494 A.2d at 433, quoting Thompson, 222 Pa. Super. at 420, 294 A.2d at 828. (emphasis in original)

Akin to Blackwell, the statements here were made in response to police questioning about one hour to one hour-and-fifteen minutes after a shocking event in which the declarant was the victim. This court concludes that Ms. Green’s statements were also free of reflection. Blackwell, 343 Pa. Super. at 222, 494 A.2d at 437. Ms. Green’s statements were made under similar circumstances to the victim in Thompson, because she made them in response to police questions while receiving treatment at the hospital about one hour after she was injured. Ms. Green was in such extreme pain at the time of her statement that she was focused on that pain instead of reflecting on her answers to police questions. Id. at 214, 494 A.2d at 433. Accordingly, the statement was an excited utterance.

However, having found the statements admissible as excited utterances, this court concluded that it was barred by the United States Constitution. Out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause of the Sixth Amendment of the United States Constitution, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36 (2004); Commonwealth v. Gray, 867A.2d 560,573-74 (Pa. Super. 2005). Statements that are the result of “formal, structured police interrogation” are testimonial. Gray, 867A.2d at 577. A statement may be both an excited utterance and a testimonial statement. Id. at 576.

Ms. Green’s statements to Officer Suydam and C.I. Parker, while admissible as excited utterances, are testimonial because they were the result of formal police questioning. Id. at 577. Ms. Green is deceased and thus unavailable and was never cross-examined regarding her testimonial statements to members of the Reading Police. Accordingly, these statements are barred by the Confrontation Clause. Crawford, supra; Gray, supra.

For these reasons this court did not err nor commit an abuse of discretion. Accordingly, the Commonwealth’s first claim must fail.

II. Defendant’s Initial Statement to Officer Suydam.

The Commonwealth’s second error complained of is that this court erred in suppressing the defendant’s initial statement to Officer Suydam (“I guess you’re here for me”) when the statement was a spontaneous utterance during a mere encounter.

This court did not expressly suppress this particular declaration. This court’s order of May 1,2007 stated that “Defendant’s motion to suppress his statement to Reading Police is granted.” This order addressed Count Two of defendant’s omnibus pretrial motion which referred only to the defendant’s statement to C.I. Rambo made at the police station two-and-a-half to three hours after the defendant was taken into custody.

Instead, this court concluded that this declaration, along with Officer Suydam’s observations of the defendant and the information then available to him, did not establish a crime had been committed or justify a reasonable suspicion that the defendant had committed a crime. (Findings of fact and conclusions of law, May 1, 2007, at 8, ¶18.) Moreover, they did not give Officer Suydam and the Reading Police probable cause to justify arresting the defendant, who was handcuffed and transported to the police station in a transport wagon that was summoned to the scene. (Findings of fact, at 8, ¶19.) Accordingly, this court did not err.

In the alternative, this court did not intend to suppress this declaration and agrees that this statement should not have been suppressed. This court concludes that its introduction does not affect its conclusion of law and order granting defendant’s petition for writ of habeas corpus.

III. Defendant’s Subsequent Statements to Officer Suydam.

The Commonwealth next complains that this court erred when it suppressed the defendant’s subsequent statements to Officer Suydam. Officer Suydam testified that after the defendant said “I guess you’re here for me,” Officer Suydam told the defendant he was there because he was told “there was a gentleman acting suspiciously.” (Notes of testimony, omnibus pretrial hearing, December 22,2006, at 12.) Officer Suydam testified that in response the defendant said that he “wasn’t acting suspicious (sic). He was upset because his girlfriend was just burned.” (N.T., omnibus pretrial hearing, at 12.) Officer Suydam then asked the defendant how his girlfriend was burned. (N.T., omnibus pretrial hearing, at 12.) Officer Suydam testified that the defendant answered that “she was in the kitchen, and that she had gotten too close to the stove and that her clothes must have caught on fire.” (N.T., omnibus pretrial hearing, at 13.) Officer Suydam also testified that the defendant said that the incident occurred at his apartment. (N.T., omnibus pretrial hearing, at 13.)

As with issue two, this court did not expressly suppress these statements. Instead this court concluded that these declarations did not establish a crime had been committed or give Officer Suydam reasonable suspicion that would justify an investigative detention nor probable cause that would justify an arrest. Thus this court did not commit an error as the Commonwealth claims.

In the alternative, this court did not intend to suppress these declarations and agrees that these declarations of the defendant to Officer Suydam should not have been suppressed. This court concludes that their introduction does not affect its conclusion of law and order granting defendant’s petition for writ of habeas corpus.

IV. Whether This Court Erred in Suppressing the Defendant’s Statements to C.I. Rambo.

The Commonwealth next claims that this court erred when it suppressed defendant’s statement to C.I. Rambo.

The Commonwealth characterized defendant’s custody as an investigative detention. An investigative detention, by implication, carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest. Since this interaction has elements of official compulsion, it requires reasonable suspicion of unlawful activity. Commonwealth v. Jones, 874 A.2d 108 (Pa. Super. 2005). The court found that Officer Suydam did not have reasonable suspicion to believe that any criminal activity was afoot. Officer Suydam had spoken only to a security guard. He had not spoken to any medical personnel or any other officers investigating the incident.

In the case sub judice, defendant was handcuffed and taken to the police station. Reading Police indicated it was departmental policy to handcuff all prisoners put in the transport wagon. Officer Suydam summoned the transport wagon to the scene. Police detentions become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of an arrest. Commonwealth v. Turner, 772 A. 2d 970 (Pa. Super. 2001). This was actually a custodial arrest that was initiated without probable cause and carried on while an investigation was proceeding.

Evidence obtained as a result of either an illegal arrest or serious abuse of one’s constitutional rights must be suppressed unless the Commonwealth can establish that the evidence is sufficiently purged of any taint from the illegal activity. Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544 (1990). The defendant’s confession was a direct result of the invalid seizure of his person. Therefore, defendant’s confession was properly suppressed.

V. Whether, Based, in Part, on Its Accumulated Legal Errors, This Court Committed an Abuse of Discretion When It Granted the Defendant’s Request for Habeas Corpus Relief.

As noted above, this court concludes it did not commit error and thus did not abuse its discretion. Accordingly, this claim fails.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the Commonwealth’s appeal be denied and this court’s order of May 1, 2007 be affirmed.

      . Apparently, this court’s use of the word “statement” was confusing or ambiguous to the Commonwealth. This court used the word “statement” in reference to a formal statement given at a police station. Defendant himself did not seek to suppress the “statements” to Officer Suydam. Instead, defendant sought to suppress the statement given by him at the police station. Accordingly, this court did not intend to suppress the statements to Officer Suydam. This court notes that the Commonwealth never answered the defendant’s motion to suppress.

      . Count Three of defendant’s omnibus pretrial motion, entitled “motion to suppress or preclude introduction of statement (corpus delecti)” asks to suppress “any statement made by petitioner.” This count repeatedly uses the singular “statement” instead of the plural “statements” so that this court interpreted defendant’s motion to suppress to refer to the statement defendant gave at the police station and not to any statements made to Officer Suydam. For these reasons, this court considered Count Three to be a continuation of Count Two and did not expressly rule upon it.


source: Caselaw Access Project

author: MILLER, J,

license: Public Domain

text:
    McClain v. Bureau of Driver Licensing

      Robert J. Kopacz, for Commonwealth.
    C. William Shilling, for defendant.
    July 25, 2008
   MILLER, J,

I. FINDINGS OF FACT

(1) The petitioner was charged with a violation of 75 Pa.C.S. §3802 or, driving under the influence, in February of 2007. He was admitted into the Accelerated Rehabilitative Disposition Program for this offense.

(2) On February 4, 2008, the defendant was charged with another driving under the influence offense and was asked to submit to a chemical test.

(3) Petitioner refused the chemical testing on two different occasions, including after he was given warnings that refusal could result in the loss of his license and other enhanced penalties.

(4) On April 4,2008, the Commonwealth of Pennsylvania Department of Transportation notified the petitioner that his commercial driving privileges would be suspended for life under 75 Pa.C.S. §1611(c).

II. DISCUSSION

Section 1611 of the Pennsylvania Motor Vehicle Code provides in pertinent part as follows:

“(a) Disqualification for first violation of certain offenses. Upon receipt of a report of conviction, the department shall, in addition to any other penalties imposed under this title, disqualify any person from driving a commercial motor vehicle or school vehicle for a period of one year for the first violation of:
“(1) section 3802 (relating to driving under influence of alcohol or controlled substance) or former section 3731, where the person was a commercial driver at the time the violation occurred;
“(c) Disqualification for two violations of certain offenses. The department shall disqualify for life any person convicted of two or more violations of any of the offenses specified in subsection (a), or the subject of two or more reports of test refusal as specified in section 1613, or any combination of those offenses and / or refusals, arising from two or more separate and distinct incidents.” 75 Pa.C.S. §1611.

The petitioner argues the department does not have the authority to disqualify him from operating a commercial vehicle for life because an ARD is not a “conviction” under the Vehicle Code.

This issue was recently addressed by our Commonwealth Court in Thorek v. PennDOT, 938 A.2d 505 (Pa. Commw. 2007) where the licensee made the same argument as our petitioner. The court held the definition of conviction from the Vehicle Code pertaining to registration and licensing of commercial drivers was the proper definition to apply to determine whether licensee’s acceptance into ARD following DUI charge constituted a conviction. 75 Pa.C.S. §1603 states:

“For the purposes of this chapter, a conviction includes a finding of guilty or the entering of a plea of guilty, nolo contendere or the unvacated forfeiture of bail or collateral deposited to secure a person’s appearance in court as determined by the law of the jurisdiction in which the prosecution was held. A payment of the fine for the violation by any person charged with a violation of this title is a plea of guilty. The term shall include the acceptance of accelerated rehabilitative disposition or other preadjudication disposition for an offense or an unvacated finding of guilt or determination of violation of the law or failure to comply with the law by an authorized administrative tribunal. The term does not include a conviction which has been overturned or for which an individual has been pardoned.” 75 Pa.C.S. § 1603. (emphasis added)

Our case is similar to the Thorek case in that petitioner’s first DUI offense for which he was granted ARD is a conviction pursuant to the definition in 75 Pa.C.S. §1603. Furthermore, defendant’s refusal to submit to chemical testing when he was arrested by Officer Mecca constitutes a refusal pursuant to 75 Pa.C.S. §1613 which states:

“(a) Implied consent. A person who drives a commercial motor vehicle in this Commonwealth is deemed to have given consent to take a test or tests of the person’s breath, blood or urine for the purpose of determining the person’s alcohol concentration or the presence of other controlled substances.”

III. CONCLUSION OF LAW

(1) Chapter 16 of the Vehicle Code expressly authorized the department to suspend petitioner’s commercial operating license for life after he was accepted into ARD for his first driving under the influence offense and his later refusal of a chemical test for his second driving under the influence offense.

ORDER

And now, July 25, 2008, petitioner’s appeal of the department of transportation’s notice of April 4,2008 is dismissed.


author: SPRECHER, J,

text:
    Luxor Homes Inc. v. Flanagan

      Eric C. Diggan, for plaintiff.

      Kurt B. Geishauser, for defendants.
    July 9, 2008
   SPRECHER, J,

On May 5, 2008, this court entered a verdict in favor of plaintiff for $36,804.90. Defendants appeal this order. This opinion is filed pursuant to Pa.R.A.P. 1925. Since defendant did not order a transcript of the second day of trial, this court cannot present a full recitation of the facts. The following are the pertinent facts from the first day of trial and those facts gleaned from the record.

FACTS

On July 22,2004, the parties entered into a residential construction agreement for plaintiff, Luxor Homes Inc., to do a custom renovation of an existing dwelling owned by defendants, Michael S. Flanagan and his wife, Megan C. Flanagan. Defendants gave plaintiff a $20,000 de-, posit for the work. Plaintiff was to act as a general contractor and was to receive a fee equal to 15 percent of the total costs, whether the subcontractors were obtained by it or by defendants. Plaintiff completed drawings and obtained various permits for costs of $3,000.

On August 22, 2004, defendants informed plaintiff that they no longer wished to proceed with the project, but had another project for plaintiff. The remaining $ 17,000 from the initial deposit was applied towards the new project.

Marc Geddio testified that he is the vice president of plaintiff which is a family-owned business that was incorporated in 1997. Plaintiff is a general contractor offering design/build services.

The new project consisted of real estate defendants purchased from a builder who had dissolved his business. This building was half finished, and the exterior materials were 85 percent complete. The interior needed framing and the mechanics, plumbing, electrical, and heating, were partially installed. No concrete was poured in the basement or garage. The property had been exposed to the elements for approximately six months. This exposure resulted in the delaminating of the floors, exposure of the interior wood to the weather conditions, and mold conditions. During telephone conversations that began on August 24,2004, and ended with a site visit on August 31, 2004, defendants agreed to the same 15 percent profit margin for plaintiff that had been used in the written contract.

Plaintiff could only start the job on September 3,2004, when settlement occurred. Plaintiff was unable to obtain a cost analysis from the blueprints because they were physically inaccurate. For that reason, the parties were operating under an oral agreement pursuant to the same terms of the earlier written agreement.

Mr. Geddio presented into evidence the invoices that were submitted to defendants. The fees based on these invoices were $36,804.90.

Defendants claim that they ordered plaintiff off the job because it was doing shoddy work. Plaintiff last worked on the project in December 2004. Defendants admitted in their answer that the parties were operating under an oral contract, but they never agreed that they would use the same terms that were in the written agreement. Defendants submitted in their pretrial memorandum that they were willing to pay plaintiff 15 percent for work completed by it before they terminated its services.

Based on the evidence, this court awarded plaintiff the sum of $36,804.90. Defendants appeal this award. Defendants raise the following issue in their concise statement of errors complained of on appeal.

ISSUE

Defendants’ statement of errors complained of, filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), raises a single issue.

(1) Whether this court erred in finding that a contract existed or that plaintiff was entitled to an award based on quantum meruit theory.

DISCUSSION

Whether particular conduct expresses an offer and acceptance must be determined on the basis of what a reasonable person, in the position of the parties, would be led to understand by such conduct under all of the surrounding circumstances. Temple University v. Healthcare Management, 764 A.2d 587 (Pa. Super. 2000). In the case sub judice, this court found that the parties, by their conduct and actions, entered into an oral contract that plaintiff would perform similar functions and be paid in the same manner as the written agreement had provided.

Defendants agreed to pay 15 percent for all completed work done under plaintiff’s leadership. The amounts that defendants dispute are for work that was not completed prior to plaintiff’s termination. Paragraph 23 of the agreement provides in pertinent part that all change orders and additional work not covered by the contract will be invoiced at cost plus 15 percent to the owner. (Plaintiff’s exhibit no. 1.) This provision allows plaintiff to collect fees for the services of subcontractors for work that is performed by them. Although plaintiff’s services may not have been utilized until the completion of the project, its efforts obtained the desired results. For that reason, it deserves compensation. To protect itself from a situation such as the instant one, this provision was made a part of plaintiff’s standard written contract. This court found that the parties orally agreed to perform under the terms and conditions of the written agreement until a new written contract was executed. Since no new contract was executed by the parties, the provision of 15 percent of the gross profits for all invoices received by plaintiff remained in effect as part of the oral contract. This court did not find that defendants could pick and choose what they wanted to pay to plaintiff. Therefore, this court awarded plaintiff the amount which he proved through his invoices.

For the forgoing reasons, this court submits that defendants’ appeal should be dismissed.


author: GOLDBERG, J.,

text:
    Commonwealth v. Lukyanchikov

      Michelle Henry, district attorney, for Commonwealth.

      Richard Fink, for defendant.
    August 25, 2008
   GOLDBERG, J.,

This case stems from incidents occurring in November 2005, wherein appellant confronted police officers with a shotgun and later head-butted an officer while in custody. Sergey Lukyanchikov (appellant) has appealed this court’s denial of his amended petition for post-conviction collateral relief. Appellant’s allegations of error generally revolve around ineffective assistance of counsel claims arising at his guilty plea hearing.

We file this opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

PROCEDURAL AND FACTUAL BACKGROUND

Procedural Background

Appellant was originally charged separately for the shotgun incident and head-butting incident, both discussed in detail below. After a preliminary hearing on both incidents, two criminal informations were generated. Criminal information no. 2005-7637, which pertained to the shotgun incident, charged three counts of aggravated assault, four counts of simple assault, four counts of recklessly endangering another person, three counts of harassment, one count of criminal mischief, one count of disorderly conduct, and one count of public drunkenness. Criminal information no. 2005-7896, which pertained to the head-butting incident, charged aggravated assault under section 2702(a)(6) and simple assault.

Appellant subsequently filed a writ of habeas corpus seeking to discharge the aggravated assault charge on the head-butting incident. There, he argued that the police officers preliminary hearing testimony failed to establish a prima facie case because it was not established that the officer was placed in fear of serious bodily injury. On January 19,2006, the Honorable Rea B. Boylan granted this motion and dismissed that charge. At that time, the Commonwealth informed appellant’s counsel that they intended to amend the charges to include an aggravated assault charge under a different section of section 2702. (N.T. 2/27/06, pp. 3-4.)

On February 27, 2006, the scheduled trial date, the Commonwealth moved to amend Information no. 2005-7896 to charge aggravated assault under section 2702(a) (3), defined as intentionally or knowingly causing bodily injury to an officer. Appellant’s counsel objected to this request, however, the Honorable John J. Rufe, the assigned trial judge, permitted the amendment, reasoning that appellant had been given notice of this proposed amendment over a month prior to the trial date. After allowing the amendment, Judge Rufe offered appellant a continuance, which appellant declined. Instead, appellant opted to proceed to a guilty plea hearing wherein he pled guilty to all counts under both informations. At the conclusion of the plea hearing, Judge Rufe sentenced appellant to 15 to 30 months incarceration on Information no. 2005-7896 (the head-butting incident) and a consecutive term of 30 months of probation on Information no. 2005-7637 (the shotgun incident). Judge Rufe’s sentence included the possibility that if the first six months of incarceration were acceptably completed, appellant could serve the remainder of his sentence on house arrest. (N.T. 2/27/06, pp. 12-13, 72-77.)

On March 30, 2006, the Commonwealth filed a petition to modify sentence, based on numerous alleged misconducts by appellant during his incarceration. This petition was denied on April 17, 2006.

On June 18,2006, an immigration detainer was lodged against appellant by United States Immigration and Customs Enforcement. This detainer prevented appellant from serving his sentence on house arrest and consequently, appellant filed a motion to restructure sentence on November 29,2006. This motion was denied by Judge Rufe on January 12, 2007. (N.T. 9/24/07, pp. 99-100.)

On February 26,2007, appellant filed a timely petition for post-conviction collateral relief (PCRA), and thereafter, filed an amended petition on June 20, 2007. The amended petition generally alleged that appellant’s guilty plea was unlawfully induced, he is innocent of the charges against him, and the facts presented at the plea indicated that defendant may have a defense. (Amended petition, ¶7.) The amended petition also alleged that appellant’s guilty plea was defective and that Michael Parlow, Esquire, his plea counsel, was ineffective in his representation. Appellant specifically claimed that Par-low was ineffective because: the plea was not knowing, voluntary and intelligent; Parlow did not adequately inform appellant of his options once Judge Rufe allowed the Commonwealth to amend the information; there was no factual basis to support the charges, the plea colloquy was generally deficient; and that appellant did not understand the consequences of the guilty plea due to his medical condition. At the subsequent PCRA hearing, appellant also complained that Parlow failed to fully discuss with him the immigration consequences of pleading guilty. (Amended petition for post-conviction collateral relief; ¶¶7-10, 13; N.T. 9/24/07, pp. 14-17, 160-62.)

Guilty Plea Hearing Record

The following information was covered at Appellant’s guilty plea hearing:

•Judge Rufe first reviewed all of the charges to which a plea of guilty would be entered. (N.T. 2/27/06, pp. 15-16);
•Judge Rufe inquired as to whether appellant had any medical conditions. Appellant responded that he was on medication for various conditions, but confirmed that he was alert and aware, and not confused, dazed or drowsy. (N.T. 2/27/06, pp. 17-18);
•Judge Rufe then carefully explained all of the various rights and presumptions appellant was entitled to, including: the presumption of innocence; that the burden of proof rested with the Commonwealth; the right to a jury trial and the jury selection process; and the trial process, including the right to cross-examine, to present evidence and testify, and the applicable burdens of proof. (N.T. 2/27/06, pp. 18-24);
•Judge Rufe then again reviewed the pending charges and the maximum sentences that appellant could face by pleading guilty, and noted that no agreement existed as to sentence. (N.T. 2/27/06, pp. 24-27);
•Appellant was advised that by pleading guilty, he was waiving his rights on appeal, except issues pertaining to sentencing, jurisdiction and the voluntariness of the plea. (N.T. 2/27/06, pp. 27-29); and
•Lastly, Judge Rufe confinned that he was satisfied with his counsel. (N.T. 2/27/06, p. 30.)

The facts presented by the Commonwealth in support of the charges were as follows:

On November 19, 2005, officers from the Northampton Police Department were dispatched to 506 Holly Knoll Drive, Churchville, Bucks County, PA, in response to a 9-1-1 call. Upon arrival, the officers noticed that appellant was highly intoxicated, and was threatening and taking an aggressive stance toward his brother. The officers separated appellant and his brother and attempted to usher his brother outside. Immediately thereafter, appellant was observed walking down the stairs with a shotgun, which he pointed at the officers and his brother. The officers and the brother then immediately retreated from the house and for several minutes, appellant refused to comply with commands from the officers to disarm. Appellant eventually complied and threw the shotgun onto a concrete patio. An AK-47 and ammunition were subsequently discovered inside the house.

After the above incident, appellant was taken into custody and transported to a district court for arraignment. There, and without any provocation, appellant head-butted Officer Hinde in the face, causing bleeding, swelling and damage to Hinde’s teeth. (N.T. 2/27/06, pp. 31-34.)

Officer Hinde and Northampton Officer LeCompte also testified at the plea hearing. LeCompte advised Judge Rufe that the situation outside appellant’s house became so tense and volatile that he believed he would have to shoot appellant. Both officers also recounted how this incident caused extreme stress to appellant’s neighbors, and how appellant’s conduct required a large expenditure of police resources, which included the response of several police departments. (N.T. 2/27/06, pp. 37, 42-45.)

Appellant agreed that the facts presented by the Commonwealth were substantially accurate, but claimed that he approached the officers with an unloaded shotgun. Appellant acknowledged that although the shotgun was not loaded, none of the officers were aware of this fact. He also advised Judge Rufe about a serious, possibly life-threatening health problem with his kidneys that, along with his intoxication, negatively impacted his mental state on the night in question. (N.T. 2/27/06, pp. 48-49, 53-54.)

PCRA Hearing Record

A PCRA hearing was held before this court on September 24, 2007, wherein the following was placed of record:

Appellant testified and claimed that he was innocent of the charges. He explained that on the night in question, he was going through a difficult time as a result of his lost employment and medical issues. Appellant acknowledged he had been drinking, and agreed that when the police arrived, they inquired if there were any weapons in the house. Appellant claimed that he responded to this inquiry by going upstairs to retrieve an unloaded, broken shotgun. He explained that he did not intend to scare or threaten anyone and was simply trying to turn over the weapon. (N.T. 9/24/07, pp. 22-27.)

Regarding the head-butting incident, appellant testified that he was shackled, without his glasses and with a hood over his head, and that he had no memory of striking Officer Hinde. Appellant explained that he had pled guilty only because his plea counsel advised him that if he did not plead he would spend 20 years in custody. (N.T. 9/24/07, pp. 33-34.)

Appellant also claimed that he and Parlow never discussed the immigration consequences of pleading guilty. Additionally, he contended that he and Parlow never discussed the possibility of going to trial and then appealing Judge Rufe’s granting the Commonwealth’s amendment to the information. Appellant also alleged that Parlow did not discuss with him, whether he had a defense to the recklessly endangering another person charges. Appellant insisted that had Parlow discussed these issues with him, he would not have pled guilty. Lastly, appellant explained that he had been in the hospital two weeks before the guilty plea because of kidney failure, and that a subsequent medication change affected him at the plea hearing, where he felt dizzy. (N.T. 9/24/07, pp. 38-39, 44-46.)

Michael Parlow, Esquire, appellant’s plea counsel, was called to testify by the Commonwealth. Parlow stated that he had discussed the Commonwealth’s proposed amendment to the information with appellant before the plea hearing, and that once the amendment was allowed, it was appellant’s decision to plead guilty. Parlow acknowledged that he and appellant had not discussed the option of going to trial and then appealing the information amendment. (N.T. 9/24/07, pp. 94-95.)

Parlow testified that generally, appellant’s central concern was to get home as quickly as possible due to his illness. Parlow explained that prior to the plea hearing, he had participated in a pretrial conference with Judge Rufe and the assistant district attorney wherein possible sentences, including house arrest, were discussed if appellant pled guilty. Parlow informed Judge Rufe that the medical treatment options available to appellant were superior if appellant was at home as opposed to in prison. Parlow emphasized that appellant never expressed to him that he did not understand their discussions, the consequences of pleading guilty, or what was happening during the guilty plea. (N.T. 9/24/07, pp. 90-93, 105-106, 108.)

Regarding the immigration issue, Parlow stated that he and appellant had discussed the immigration consequences of pleading guilty, and that an immigration lawyer was consulted. (N.T. 9/24/07, pp. 94-95, 99.)

Parlow did not recall appellant telling him that he was not getting his medication leading up to the plea, but Parlow indicated that appellant did not appear to be ill. (N.T. 9/24/07, pp. 106-107, 111.)

Parlow acknowledged that appellant told him that the shotgun was not loaded, and agreed that it technically was his obligation to point out that the recklessly endangering charges could not apply if the shotgun was unloaded. Parlow emphasized, however, that appellant’s primary concern was to get home as soon as possible for medical reasons, and the sentence he received by pleading guilty allowed him to do just that. (N.T. 9/24/07, pp. 115-19.)

In support of appellant’s complaint that his medical condition rendered the plea invalid, appellant’s brother, Nikolay Lukyanchikov, testified that he did not think that his brother looked himself at the guilty plea and that appellant complained of dizziness and nausea. Appellant also submitted medical records, including a Doylestown Hospital discharge summary and medical records from the Bucks County Prison, that generally indicated his poor physical condition and use of numerous medications, both prior to and after the guilty plea. (Exhibit P-1, P-2, N.T. 9/24/07, pp. 132-33, 158-59.)

After holding this matter under advisement, appellant’s PCRA petition was denied on October 15, 2007. On November 13, 2007, appellant filed a timely notice of appeal. In his concise statement of matters complained of on appeal, appellant raised the following claims:

(1) The petitioner’s guilty plea was unlawfully induced by ineffective assistance of counsel in that the alternative to the plea, i.e., an appeal of the allowance of the amendment of the information was not explained to him.

(2) Petitioner’s guilty plea was a result of a manifest injustice, and was not knowing, voluntary and intelligent, due to his medical state at the time of the plea.

(3) Counsel’s ineffective assistance in his failure to object to the deficient colloquy, and the deficient colloquy given to the petitioner, resulted in a manifest injustice by facilitating the entry of an unknown, involuntary, or unintelligent plea.

(4) Petitioner received ineffective assistance of counsel in that there was presented at the plea, and there exists no factual basis for the guilty plea as required by Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d 489 (2004) and furthermore, the facts presented at the plea indicated that the defendant had a defense to the charges, and the plea should not [sic] have been rejected by the court.

(5) Petitioner received ineffective assistance of counsel in that he did not understand the guilty plea’s consequences regarding his immigration status and therefore did not knowingly, intelligently and voluntarily enter the guilty plea.

LEGAL ANALYSIS

When analyzing claims of ineffective assistance of counsel, we begin with the presumption that counsel was effective. Commonwealth v. Pappas, 845 A.2d 829, 844 (Pa. Super. 2004). A defendant can only establish ineffective assistance of counsel when he demonstrates that: (1) the underlying claim is of arguable merit; (2) that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate the defendant’s interest; and (3) that counsel’s action or inaction was prejudicial to the client. Id. For an action or inaction by counsel to be considered prejudicial, there must be a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Johnson, 572 Pa. 283, 300, 815 A.2d 563, 573-74 (2002). All three prongs of the above test must be satisfied. If a defendant fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel. Pappas, 845 A.2d at 844.

Where an allegation of ineffective assistance of counsel is made in connection with the entry of a guilty plea, the complaint will only be a basis of relief if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Fluharty, 429 Pa. Super. 213, 217, 632 A.2d 312, 314 (1993). To succeed in showing prejudice, the defendant must show that but for trial counsel’s errors, he would not have pled guilty and would have insisted on going to trial. Commonwealth v. Mallory, 596 Pa. 172, 189, 941 A.2d 686, 703 (2008); Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

Plea Counsel Discussed With Appellant His Options Regarding the Amended Information, and Therefore Counsel Was Not Ineffective

Appellant first argues that trial counsel was ineffective for not explaining that he could have gone to trial and then appealed the amendment of the information, instead of pleading guilty. This claim was refuted by Parlow, who testified that he had anticipated the amendment issue prior to the plea hearing and that he and appellant had discussed a variety of different scenarios to resolve the case. (N.T. 9/24/07, p. 105.)

Moreover, Parlow emphasized that appellant’s central concern was to return home as soon as possible in order to receive the most effective medical treatment. (N.T. 9/24/07, pp. 105-106.) Pleading guilty as opposed to proceeding to trial and then appealing the amendment issue would have been contrary to addressing those concerns. This is especially the case after Parlow had discussed the possibility of house arrest with Judge Rufe and emphasized appellant’s medical condition. As Par-low’s actions were reasonably based on appellant’s best interests, he was not ineffective.

Finally, appellant has also not explained why going to trial and then appealing Judge Rufe’s amendment ruling would have any merit or how this decision caused any prejudice. Indeed, under Pa. R.Crim.P. 564, the amendment was properly allowed as the amended charges arose out of the same basic elements and facts as the crimes specified in the original information. Additionally, appellant had been notified of the proposed amendment change well in advance of trial. Judge Rufe, therefore, properly determined that appellant had been placed on notice and was not prejudiced by the amendment. See Commonwealth v. J.F., 800 A.2d 942, 945 (Pa. Super. 2002).

Appellant’s Guilty Plea Was Knowing, Voluntary and Intelligent

Appellant also claims that his guilty plea was not knowing, voluntary, and intelligent due to his medical state. This claim is directly refuted by the plea hearing record.

At the plea hearing, Judge Rufe questioned appellant about his medication and its effects as follows:

“The court: Does [the medication] have any effect [sic] on your memory or in your mind?
“The defendant: No. Absolutely not.
“The court: Are you at all confused or dazed or drowsy or in any way affected by the medication that you take?
“The defendant: Absolutely not.
“The court: Are you alert and aware and conscious of where you are and why you are here?
“The defendant: Yes, I do [sic].”

A criminal defendant who decides to plead guilty has a duty to answer questions truthfully. A defendant cannot postpone final disposition of his case by lying to the court. Commonwealth v. Cortino, 387 Pa. Super. 210, 216, 563 A.2d 1259, 1262 (1989) (citing Commonwealth v. Brown, 242 Pa. Super. 240, 247, 363 A.2d 1249, 1253 (1976). (N.T. 2/27/06, pp. 17-18.)

Although appellant did present certain evidence at the PCRA hearing that he was dizzy and lightheaded, his responses to Judge Rufe at the plea hearing clearly established his plea was knowing and intelligent. As stated in Cortino, appellant cannot now backtrack on the statements he made during the plea colloquy. Cortino, supra at 216, 563 A.2d at 1262. As appellant is to be taken at his original word as to his mental condition, this claim fails.

Trial Counsel Was Not Ineffective for Failing To Object to the Plea Colloquy

Appellant further claims that Parlow was ineffective for failing to object to a deficient colloquy given to the petitioner, resulting in a manifest injustice by facilitating the entry of an unknown, involuntary or unintelligent plea. (Concise statement of matters complained of on appeal, ¶3.) Appellant makes this claim without specifying how the colloquy was deficient, or why it rendered his plea involuntary or unintelligent.

It is presumed that once a defendant has entered a plea of guilty, he was aware of what he was doing, and the burden of proving involuntariness is upon him. Where the record clearly demonstrates that a guilty plea colloquy was conducted, and the defendant understood the nature of the charges against him, the voluntariness of the plea is established. Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007).

Determining whether a defendant understood the connotations of his plea and its consequences requires an examination of the totality of the circumstances surrounding the plea. Id. In order to determine the voluntariness of a guilty plea and whether a defendant acted knowingly and intelligently in entering the plea, the trial court must inquire as to (1) whether the defendant understands the nature of the charges to which the defendant is pleading guilty; (2) whether there is a factual basis for the plea; (3) whether the defendant understands that he has a right to a jury trial; (4) whether the defendant understands that he is presumed innocent; (5) whether the defendant is aware of the permissible ranges of sentences for the charged offenses; and (6) whether the defendant is aware that the judge is not bound by the terms of any plea agreement. Id.

As the guilty plea hearing record clearly establishes that Judge Rufe sufficiently addressed each of the above referenced issues (see pp. 156-57, supra), this claim is also without merit.

Trial Counsel Was Not Ineffective for Failing To Object to the Factual Basis for the Plea Nor Does the Fact That Appellant Had a Defense to the Charges Render the Plea Invalid

Appellant next contends that a factual basis was not adequately established and that counsel was ineffective for failing to object. Appellant generally cites Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d 489 (2004) to support his position, but it is unclear why appellant specifically believes the factual basis was deficient. Judge Rufe properly heard the facts supporting the charges, which appellant acknowledged had occurred. These facts detailed appellant’s violent and aggressive behavior, his pointing a shotgun at several officers and his brother, his refusal to disarm and his subsequent unprovoked assault on Officer Hinde. Appellant’s actions clearly made out elements of the charges for which he was convicted.

Appellant’s claim also fails under the second prong for ineffective assistance of counsel, which requires that he establish that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate his interests. Pappas, 845 A.2d at 844. As stated above, Parlow emphasized that appellant was most concerned with returning home in order to receive medical treatment. (N.T. 9/24/07, pp. 105-106.) As the sentence imposed by Judge Rufe accomplished that goal, appellant’s claim of ineffective assistance of counsel fails.

Although not specifically raised in his amended petition, at the PCRA hearing, appellant’s counsel questioned Parlow regarding the fact that there may not have been a sufficient factual basis for the reckless endangering charge. See Commonwealth v. Baker, 287 Pa. Super. 39, 41, 429 A.2d 709, 710 (1981) (holding that there was insufficient evidence to sustain a charge of recklessly endangering another person where defendant allegedly pointed an unloaded gun).

Even if there is an omission or defect in a plea colloquy, a guilty plea is not invalid if the circumstances indicate that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily entered into the plea. Commonwealth v. Fluharty, 429 Pa. Super. 213, 219, 632 A.2d 312, 315 (1993). This determination is to be made by examining the totality of the circumstances. Id. at 219, 632 A.2d at 314.

As stated above, a trial court must satisfy itself that there is a factual basis for the plea. However, the factual basis requirement does not mean that the defendant must admit to every element of the crime. Id. at 219, 632 A.2d at 315. The key inquiry is whether the defendant understands what he is doing based on a review of the colloquy. When a guilty plea is accompanied by the assertion of facts which make out a defense to the crimes charged, the plea may not be accepted unless the discrepancy is resolved. The defendant must be aware, and the record must show that he is aware, that his defense cannot be considered when he enters a guilty plea. Id. at 222, 632 A.2d at 316 (citing Commonwealth v. Rodgers, 465 Pa. 379, 383, 350 A.2d 815, 818 (1976)).

Here, Judge Rufe informed appellant that if he went to trial he would have an opportunity to present defenses on his own behalf, and that appellant was giving up that right by pleading guilty. Appellant stated that he understood this concept, and therefore, appellant’s guilty plea was valid. (N.T. 2/27/06, pp. 21-24.)

Finally, even if there is arguable merit to appellant’s claim that the plea should have been rejected because the elements for reckless endangering were not met, counsel was not ineffective for failing to object because Judge Rufe did not sentence appellant on this charge. Thus, because prejudice has not been proven, appellant’s claim of ineffective assistance of counsel must fail.

Trial Counsel Discussed Potential Immigration Consequences With Appellant, and Such Consequences Were Nonetheless Collateral

Appellant next complains that Parlow failed to adequately explain any potential immigration consequences to pleading guilty. However, Parlow testified that he had in fact discussed immigration consequences with appellant, and that he also consulted an immigration attorney regarding this matter. (N.T. 9/24/07, pp. 94-95, 99.) As this court credited Parlow’s testimony, this claim also fails.

Moreover, a defendant’s lack of knowledge of the collateral consequences of pleading guilty does not undermine the validity of his guilty plea. Commonwealth v. Frometa, 520 Pa. 552, 555, 555 A.2d 92, 93 (1989). In Commonwealth v. Diaz, 913 A.2d 871 (Pa. Super. 2006), a defendant alleged that his guilty plea was not knowing and voluntary because trial counsel incorrectly informed the defendant that he would not be deported if he pled guilty. Id. at 874. On review, the Superior Court specifically remanded the case to the PCRA court to determine whether counsel actually made those erroneous statements. Id. at n.3. In doing so, the Superior Court stated, there [is] no legal obligation to apprise appellant of the collateral consequence of deportation. Id.

Here, appellant does not claim that Parlow told him he would not be deported, but rather only claims that Parlow failed to discuss the immigration consequences with him. Because under Diaz, deportation is a collateral consequence, this court properly rejected appellant’s claim.

CONCLUSION

For the reasons set forth above, appellant’s amended petition for post-conviction collateral relief was properly denied.

      . Prior to the plea, the Commonwealth nol prossed two counts of simple assault, one count of recklessly endangering another person, and two counts of harassment on Information no. 2005-7637. (N.T. 2/27/06, p. 14.) Appellant pled guilty to the remaining charges.

      . Though not specifically addressed in his petition or at the PCRA hearing, this court notes that Judge Rufe accepted appellant’s plea before hearing the factual basis, however, this is of no consequence. See Commonwealth v. Nelson, 455 Pa. 461, 462, 317 A.2d 228, 229 (1974) (a valid factual basis established where the trial court accepted the defendant’s guilty plea before the factual basis was made a part of the record).

      . Although Judge Rufe did not specify the counts on which he sentenced appellant, appellant’s receipt of 15 to 30 months probation on Information no. 2005-7637 indicates that appellant was not sentenced on the recklessly endangering count as the maximum sentence for that crime is two years.


author: ZULICK, J.,

text:
    Swaby Law Firm v. James

      Lola M. Swaby, for plaintiff.

      Karen James, pro se.
    July 25, 2008
   ZULICK, J.,

This opinion addresses the petition to strike or open judgment filed by defendant Karen James. Plaintiff, The Swaby Law Firm filed a complaint for confession of judgment on March 7,2008, confessing judgment against James on a note James allegedly signed on January 15, 2008, in which James promised to pay Swaby $ 1,400. The prothonotary entered judgment on March 10,2008 against James in the amount of $1,544.50 based upon the complaint and confession of judgment filed by Swaby.

James filed a petition to strike or open the judgment on March 28,2008. James contended among other things, that she did not sign the note and the agreement which was the subject of the confessed judgment. A rule was issued on James’ petition and Swaby filed an answer to the rule. A hearing was held on the petition to strike or open on July 14, 2008.

James presented testimony at the hearing from herself and her husband to the effect that she did not sign the agreement and note which form the basis of the confession of judgment. James’ husband testified that he was at the Swaby office on the day James was alleged to have signed the documents and supported James’ version of events. James agreed that Swaby did lend her the sum of $1,400, but she denied signing the agreement, and disputed some of its terms. Under James’ version of events, she had until August 30, 2008 to repay the loan.

James has filed both a petition to strike and a petition to open. She makes no allegation that there is an obvious defect in the note authorizing the confession that can be determined as a matter of law from the face of the document. “If the alleged defect in the confessed judgment is based on a matter dehors the record, the proper approach is to petition the court to open the judgment. On the other hand, a motion to strike is proper only when the defect in the original judgment appears on the face of the record. Triangle Building Supplies and Lumber Co. v. Zerman, 242 Pa. Super. 315, 320, 363 A.2d 1287, 1289 (1976).” J. F. Realty Co. v. Yerkes, 263 Pa. Super. 436, 440, 398 A.2d 215, 217 (1979). (citations omitted)

James’ contention is that she did not sign these documents. Proof of that proposition requires consideration of evidence beyond an examination of the documents and pleadings of record. James’ motion to strike the judgment will therefore be denied.

James has also petitioned to open the judgment. A confessed judgment will be opened only when the petitioner “acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury.” First Seneca Bank & Trust Co. v. Laurel Mountain Development Corporation, 506 Pa. 439, 443, 485 A.2d 1086, 1088 (1984). In making this determination, the court employs the same standard as “that of the directed verdict—viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment.” Suburban Mechanical Contractors Inc. v. Leo, 348 Pa. Super. 324, 327, 502 A.2d 230, 232 (1985). Rule 2959(e) of the Pennsylvania Rules of Civil Procedure provides that “in a proceeding to open a confessed judgment, if evidence is produced which, in a jury trial, would require the issues to be submitted to the jury, the court shall open the judgment.” Pa. R.C.P. 2959(e) has been interpreted to require the judgment debtor to offer clear, direct, precise and “believable” evidence of its meritorious defense. Suburban, 348 Pa. Super. at 328, 502 A.2d at 232; First Pennsylvania Bank N.A. v. Lehr, 293 Pa. Super. 189, 201-202, 438 A.2d 600, 607 (1981); Iron Worker’s Savings and Loan Association v. IWS Inc., 424 Pa. Super. 255, 262, 622 A.2d 367, 370-71 (1993).

Here, James filed a timely petition to open. She has presented evidence, corroborated by her husband, that she did not sign the documents supporting the confession of judgment and that the loan she received from Swaby was obtained on terms different from those which appear in the alleged written agreement. Viewing only the evidence produced by the petitioner, Karen James, as the law requires the court to do, a meritorious defense has been raised and evidence has been produced in support of that defense. Swaby presented testimony and evidence at the hearing that the agreement and note were in fact signed by James. These disputed factual questions will be determined by the trier of fact.

The confessed judgment will be opened and defendant will be given leave to file an answer.

ORDER

And now, July 25, 2008, following a hearing on defendant Karen James’ petition to strike or open a confessed judgment, it is ordered as follows:

(1) The petition to strike the judgment is denied.
(2) The petition to open the judgment is granted and the judgment is opened.
(3) Defendant shall file an answer to the complaint within 20 days.
(4) The matter shall thereafter proceed to arbitration in accordance with the Rules of Civil Procedure.


author: FARINA, P.J.,

text:
    Commonwealth v. Celotto-Edwards

      Janie Swinehart, assistant district attorney, for Commonwealth.

      Christopher Lyden, for defendant.
    September 2, 2008
   FARINA, P.J.,

Before the court is defendant, Thomas Celotto-Edward’s amended petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46, filed January 25, 2008. Defendant filed a timely pro se PCRA petition on October 15,2007. Later, Christopher P. Lyden, Esquire was appointed as counsel and filed the instant petition. A hearing was held before this court on June 5, 2008.

On October 10,2006, defendant pleaded guilty to one count of aggravated assault and one count of firearms not to be carried without a license. That day, the Honorable Paul K. Allison sentenced defendant to five to 10 years on the aggravated assault charge, and one to two years on the firearms not to be carried without a license charge, plus fines, costs and restitution. Defendant is currently incarcerated at State Correctional Institution Forest. Defendant now requests this court to invalidate his guilty plea and grant him a new trial based on ineffective assistance of counsel.

Defendant’s charges arose out of an incident that occurred on November 16, 2005 in the 200 block of W. Vine Street, Lancaster, Pennsylvania. At roughly 7 a.m. defendant walked into an alley, approached the victim and solicited her services as a prostitute. Defendant did not want to pay for the victim’s services, so he brandished a loaded .38 caliber handgun. A struggle ensued between the victim and defendant, with the victim ultimately being shot in the leg. Defendant fled the scene without helping the wounded victim.

In his petition, defendant presents three grounds for relief. He contends that his counsel, Patricia K. Spotts, Esquire was ineffective by: (1) failing to object to a defective plea colloquy, resulting in defendant entering an unknowing, unintelligent and involuntary plea; (2) failing to withdraw his guilty plea despite the absence of a factual basis for it; and (3) failing to folly discuss with him his version of the incident and possible legal defenses to the charges.

To be eligible for relief under the PCRA, petitioner must plead and prove by a preponderance of the evidence the following: (1) that petitioner has been convicted of a crime under the laws of this Commonwealth and is, at the time relief is granted, currently serving a sentence of imprisonment, probation or parole for the crime; (2) that the conviction resulted from one or more of the errors enumerated in 42 Pa.C.S. §9543(a)(2); (3) that the allegation of error has not been previously litigated or waived; and (4) that the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel. 42 Pa.C.S. §9543.

To prevail on a claim alleging ineffective assistance of counsel, a defendant must prove the following: (1) that the underlying claim is of arguable merit, (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) that, but for the omission of counsel, there is a reasonable probability that the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). Failure to address any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258, 295 n.23, 744 A.2d 717, 738 n.23 (2000).

In the defendant’s first claim, he contends that Ms. Spotts was ineffective by not objecting to the alleged defective plea colloquy. Specifically, he asserts that the colloquy was defective because there was an insufficient factual basis for the plea, and that counsel’s failure to obj ect to it resulted in defendant entering an unknowing, unintelligent and involuntary plea.

A guilty plea may be challenged on three grounds: (1) the legality of the sentence; (2) the jurisdiction of the court; and (3) the voluntary, knowing and intelligent nature of the guilty plea itself. Commonwealth v. Alston, 387 Pa. Super. 393, 396, 564 A.2d 235, 237 (1989). A court must consider the totality of the circumstances in determining the validity of a plea. Commonwealth v. Allen, 557 Pa. 135, 146, 732 A.2d. 582, 588-89 (1999). The bottom line inquiry is whether the defendant understood what he was doing when he entered the guilty plea. Commonwealth v. Blackwell, 436 Pa. Super. 294, 308, 647 A.2d 915, 922 (1994).

Defendant’s first argument fails. First, there was a factual basis to support the charges against defendant and the guilty pleas thereto. The assistant district attorney enumerated the facts for the charges of aggravated assault and firearms not to be carried without a license, saying specifically, “he wanted her services rendered for free. She didn’t want to, and the gun came out, and she was shot one time in the leg.” (N.T. guilty plea p. 2.) Further, Public Defender Spotts testified that she believed defendant understood that “using a deadly weapon on a person and causing bodily injury or serious bodily injury is ... the definition of aggravated assault.” (N.T. PCRA pp. 53, 62.) Defendant testified at his PCRA hearing that “I [had] my weapon on,” and “the weapon went off and she was injured.” (N.T. PCRA pp. 6, 7.) He further testified that he did not have a license to carry this loaded weapon. (N.T. PCRAp. 14.)

Second, defendant’s guilty plea was knowing, intelligent, and voluntary. Before defendant pleaded guilty to the two charges against him, he was advised that he had an absolute right to a jury trial at which the Commonwealth would have to prove all the elements of the charges against him beyond a reasonable doubt, and that by pleading guilty, he waived these rights. Defendant stated that he understood these rights and was waiving them by pleading guilty. (N.T. guilty pleap. 3.) The court advised defendant of the maximum terms of confinement and the maximum sentence that could be imposed, as well as the maximum fines. Defendant stated that he understood. (N.T. guilty plea p. 4.) The court asked defendant whose decision it was to plead guilty to these charges, and defendant replied that it was his decision. (N.T. guilty plea p. 5.) The court inquired whether anyone had threatened defendant or had made promises to him to induce him to plead guilty, and defendant responded that no such threats or promises were made. (N.T. guilty pleap. 5.) Finally, the court asked defendant if he was pleading guilty to the factual scenario, and defendant replied that he was. (N.T. guilty plea p. 5.) Thus, counsel was not ineffective in failing to object to the valid plea colloquy, and counsel’s actions did not induce defendant to enter an involuntary plea.

In the defendant’s second claim, he contends that Ms. Spotts was ineffective by failing to file a motion to withdraw the plea after it was entered. The withdrawal of a guilty plea prior to sentencing should be freely permitted for any fair and just reason unless the withdrawal would substantially prejudice the Commonwealth. Commonwealth v. Jones, 389 Pa. Super. 159, 162, 566 A.2d 893, 894 (1989). However, the standard for withdrawing a guilty plea after sentencing is more stringent. Specifically, a showing of prejudice on the order of manifest injustice is required before withdrawal after sentencing is properly justified. Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982). Further, the Pennsylvania Supreme Court has stated that after a guilty plea is entered: “all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court____Thus allegations of ineffective assistance of counsel in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.” Commonwealth v. Williams, 496 Pa. 486, 488, 437 A.2d 1144, 1146 (1981). (internal citations omitted)

Here, the defendant was sentenced on the day he entered his guilty plea, October 10, 2006. Defendant has not set forth a sufficient argument that he suffered the “manifest injustice” that would have been required for counsel to successfully withdraw his guilty plea after sentencing. Further, Ms. Spotts testified that at no time during the guilty plea did the defendant ever tell her that he did not want to plead guilty, and that if he had, she would have pulled his guilty plea. (N.T. PCRApp. 63-64.) In addition, again, defendant’s guilty plea colloquy was valid and he entered a knowing and voluntary plea. Thus, defendant’s second argument for ineffective assistance of counsel fails.

In the defendant’s third claim, he contends that Ms. Spotts was ineffective in failing to discuss possible defenses with him. Specifically, he asserts that he did not know he could have claimed the shooting was an accident, and that he would have taken the case to trial rather than pleading guilty had he known of this possible defense.

Defendant’s third claim fails by his own admission. Namely, he testified at his PCRA hearing that Ms. Spotts discussed with him the possibility of using the defense of accident, but advised him it would be ill-liked by a jury. (N.T. PCRA p. 27.) In conformity with the defendant’s testimony, Ms. Spotts testified that she considered using the defense of accident but was concerned that a jury would not accept it considering that the defendant had a loaded gun out when approaching the victim and that a witness observed the defendant casually walking away from the victim after she was shot. (N.T. PCRAp. 45.) Ms. Spotts testified that she explained her concern to defendant, and that she mapped out what could happen to defendant if he pleaded guilty versus if he went to trial. (N.T. PCRApp. 47-48.) Ms. Spotts further testified that there was no question in her mind that defendant knew he was giving up the right to take the case to a jury and raise the accident of defense when he entered his guilty plea. (N.T. PCRA p. 62.) The court finds Ms. Spotts’ testimony credible.

Defendant has failed to establish that his counsel was ineffective. Accordingly, I enter the following:

ORDER

And now, September 2, 2008, upon consideration of petitioner Thomas Celotto-Edwards’ amended petition for post-conviction relief it is hereby ordered and decreed that the petition is denied.

      . 18 Pa.C.S. §2702(a)(l).

      . 18 Pa.C.S. §6106(a)(1).

      . Judge Allison is now on retired status and this case was reassigned.

      . Defendant told this version of the facts to a detective shortly after the incident, and defendant’s charges are based on these facts. However, defendant testified at his PCRA hearing that he had actually walked down the alley that morning to sell the victim drugs, and that the two struggled with the gun after the victim refused to pay for the drugs. The court does not find the second factual version credible.


text:
    U.S. Bank N.A. v. Hoyt

      Gregory Javardian, for plaintiff.

      Evan C. Pappas, Michael E. Rowan and James W Hennessey, for defendants.
    August 20, 2008
   FARINA, P.J.,

This appeal to the Superior Court involves the real estate issues of mortgage lien priority and lien divestiture by sheriff’s sale. In the order appealed from, I declared the lien of a mortgage held by appellants to have been divested by a sheriff’s sale on a simultaneously entered and recorded lien of a mortgage both of which by their express terms declared themselves to be purchase money mortgages on the same real estate. I so ruled because by statute 41 Pa.C.S. §8141, purchase money mortgages entered upon the same property, recorded at the same time, and which contain no terms as to which is to have priority, are of equal priority with one having no priority over the other. Therefore, a sheriff’s sale on one of them divests the other pursuant to the Lien Divestiture Law, 42 Pa.C.S. §8152, which provides that a sheriff’s sale on a lien divests all mortgages that are not prior to all other prior liens.

The lien foreclosed upon and the lien divested were created as a part of a somewhat complex real estate transaction. That transaction and the related facts that bring the issue to court follow.

On March 8, 2005, Michael J. Hoyt and Kandi M. Hoyt purchased 140 Ridge Avenue, Ephrata, Pennsylvania (the property) from Donald J. Nelson and Jacqueline B. Nelson. The purchase price of the property was $249,900, all of which was financed by bank loans. At the March 8, 2005 closing, the Hoyts executed two separate purchase money mortgages to Michigan Fidelity Acceptance Corporation in the amounts of $199,920 and $49,980 to secure the purchase money for the property. Both Michigan Fidelity purchase money mortgages contained language stating: “If any of the debt secured by this security instrument is lent to borrower to acquire title to the property, the security instrument shall be a purchase money mortgage.” Therefore, the two Michigan Fidelity mortgages are “purchase money mortgages,” not ordinary mortgages.

Both Michigan Fidelity purchase money mortgages were recorded on March 9,2005, simultaneously at 4:18 p.m. in the office of the Recorder of Deeds of Lancaster County.

At the March 8, 2005 closing, the Hoyts also executed another mortgage for the benefit of the Nelsons to secure the amount of $77,597 (Nelson mortgage). The Nelson mortgage was also recorded on March 9, 2005, at 4:18 p.m. in the office of the Recorder of Deeds of Lancaster County. The Nelson mortgage contains express language referring to the two Michigan Fidelity purchase money mortgages and subordinates itself to those purchase money mortgages.

However, neither of the two Michigan Fidelity purchase money mortgages ($199,920 and $49,980) contained a subordination clause nor any reference that either loan was intended to be a first or second mortgage. The Michigan Fidelity purchase money mortgages do not refer, in any way, to the relative lien priority that was to exist between them and make no reference in either Michigan Fidelity mortgage document that the other Michigan Fidelity mortgage even existed. Thus, based on the language contained in the Michigan Fidelity mortgages, no record notice was given to potential title searchers or subsequent purchasers about their relative lien priority.

Soon after the Michigan Fidelity purchase money mortgages were created, they were purchased by other mortgage companies who assumed all of the rights and remedies conveyed by them. On June 28, 2005, U.S. Bank became the mortgagee by assignment of the purchase money mortgage originally recorded in favor of Michigan Fidelity in the amount of $199,920 (the U.S. Bank mortgage). On December 15, 2006, EMC Mortgage Corporation, attorney-in-fact for Citibank N.A., as trustee for certificate holders of Saco I Inc., mortgage pass-through certificates; series 2005-5, became the mortgagee by assignment of the March 8,2005 purchase money mortgage originally recorded in favor of Michigan Fidelity in the amount of $49,980 (EMC’s mortgage).

At some point after the Hoyts executed the two Michigan Fidelity purchase money mortgages and the Nelson mortgage, their mortgage loans went into default. On September 1,2006, the Law Office of Gregory Javardian filed a complaint in mortgage foreclosure on behalf of EMC seeking to foreclose on EMC’s mortgage. As a result, a sheriff’s sale was held on April 25,2007, where the property was sold to Central Penn Properties for $38,500. All of the proceeds of this sheriff’s sale were distributed to EMC to satisfy its interest. Soon after purchasing the property at the April 25, 2007 sheriff’s sale, Central Penn Properties transferred its interest in the property to Parula Properties LLC.

On June 15,2007, Parula sold the property to intervenors Grzegorz Marzec and Lorena Marzec for $325,000. Pursuant to this June 15, 2007 sale of the property, intervenor AmTrust Bank N.A. loaned the Marzecs all of the purchase money for their purchase of the property. The Marzecs were not present at the sheriff’s sale and, therefore, had no notice that U.S. Bank considered their mortgage to still be a lien on the property. Furthermore, when purchasing the property, the Marzecs were not made aware by Parula that the property was allegedly subject to a mortgage.

On September 27,2006, shortly after EMC’s mortgage foreclosure was filed, the Law Office of Gregory Javardian filed a complaint in mortgage foreclosure on behalf of U.S. Bank seeking to foreclose on the U.S. Bank mortgage. As a result of this mortgage foreclosure action having been filed, an initial sheriff’s sale was scheduled to occur on June 27, 2007. This sheriff’s sale was most recently scheduled for July 30,2008, but was stayed by order of court dated June 26, 2008.

Appellant in its 1925 concise statement of matters complained of on appeal does not directly challenge my construction of the Michigan Fidelity purchase money mortgages and operation of the lien divestiture law. Appellant’s allegation of errors contends the court should have considered extrinsic evidence outside the four corners of the mortgages and determined that the $199,920 purchase money mortgage now held by it had priority over the $49,980 foreclosed-upon Michigan Fidelity purchase money mortgage acquired by EMC and was, therefore, not divested by the sheriff’s sale. So finding would result in appellant proceeding with the now stayed sheriff’s sale on its $ 199,920 mortgage against appellees Marzecs who were the ultimate purchasers of the property, then being held responsible for payment of the appellant’s mortgage which they believed was divested.

I will sequentially address each of the five issues raised by appellant and complained of on appeal. They are:

(I) “Whether the court of common pleas erred in failing to look to the intent of the original purchase money mortgagees and borrower to establish the priority of two purchase money mortgages where the purchase money mortgage instruments themselves are silent as to priority.”

If this were a contest between only the two holders of the purchase money mortgage who sought a declaration of lien priority between them, appellant might have a point. However, here appellants bring their claim against appellees who are strangers to the real estate transaction that created the purchase money mortgages and, as I see it, have a right to rely upon the terms of the recorded mortgage record. Those mortgages made, entered and recorded simultaneously, do not provide that one has priority over the other. Under these circumstances, extrinsic evidence of lien priority intent cannot affect the ultimate purchaser, i.e., appellee, who was not a party to that transaction.

(II) “Whether the court of common pleas failed to consider that if two purchase money mortgages are silent as to priority but the intent of the purchase money mortgagees and borrower was that one of the mortgages was to have priority over the other and, at the sheriff’s sale of the property pursuant to the foreclosure of the mortgage that was intended to be subordinate, the sheriff announces that the sheriff’s sale is subject to a mortgage, the purchaser of the property at the sheriff’s sale (who is put on actual notice) is estopped from asserting that the sheriff’s sale discharged both purchase money mortgages.”

The substance of appellant’s second issue is not altogether clear, but it appears that appellant attempts, for the first time, to raise estoppel as a basis for its assertion that the prior sheriff’s sale did not act to divest both mortgages. Appellant seems to claim that the purchaser of the foreclosed property at the sheriff’s sale who is put on actual notice by announcement that the sale is “subject to a mortgage” is estopped from asserting that the sheriff’s sale discharged both purchase money mortgages. The entity that purchased this property at the sheriff’s sale is Central Penn who is not a party to this action. The Marzecs, who purchased the property from Parula, who acquired it from Central Penn, were not parties to the sheriff’s sale and AmTrust Bank, who financed the purchase, did not lend money to the Marzecs until well after the sheriff’s sale had concluded. Subsequent transfers of the property cannot be estopped based upon an oral announcement unsupported by the recorded record.

(Ill) “Whether the court of common pleas should have ruled that at a sheriff’s sale where the foreclosing mortgagee and the purchaser at the sheriff’s sale each had notice and understanding] from the sheriff’s instructions and procedures that if (i) the sale of a property is made expressly subject to a prior mortgage (through communication between the foreclosing mortgagee and purchaser prior to the sale, advertisement of the sale, and an announcement at the sale); and (ii) preservation of the prior mortgage on the property is a condition of sale, then once the purchaser’s offer to purchase the property is accepted, (a) the purchaser takes the property subject to the conditions set forth in the notice of sale, (b) the sale of the property will not discharge the prior mortgage, and (c) the purchaser (and its successors in title) takes the property subject to the prior mortgage.”

Here, at the sheriff’s sale of the smaller of the $49,980 Michigan Fidelity purchase money mortgages, said sale was noticed to be “subject to mortgage,” without indicating which Michigan Fidelity mortgage the sale was subject to. This notice was imprecise and ineffective to put the immediate purchaser or subsequent purchasers on notice of what mortgage was still to be a lien on 140 Ridge Avenue. As was stipulated by the parties, the Nelsons also placed a mortgage on the property on the same date as the Michigan Fidelity purchase money mortgages were executed. Furthermore, all three mortgages were recorded on the same date and simultaneously. Finally, the sheriff’s deed, as written and recorded, fails to identify either of the Michigan Fidelity purchase money mortgages and is insufficient to put any subsequent purchasers on notice of such mortgages.

(IV) “Whether the court of common pleas erred in failing to determine that a sheriff’s sale is final disposition of a property where a purchaser of the property at a sheriff’s sale had actual notice that the property was being sold ‘subject to mortgage’ if, following the sheriff’s sale: (i) the purchaser fails to file a timely written exception to the sheriff’s distribution of proceeds pursuant to Rule 313(d) of the Pennsylvania Rules of Civil Procedure; and (ii) the sheriff executes and acknowledges before a prothonotary the deed poll to the subject property indicating that the property was sold ‘subject to mortgage.’”

In support of this issue, appellant cites several cases that outline the required procedure for filing exceptions to the distributions at a sheriff’s sale. Appellees have no objection to the distribution of the proceeds of the sheriff’s sale, and had no obligation to raise objections. To the contrary, U.S. Bank had every obligation to raise any objections to the distribution of proceeds or to raise their lien priority within the required time limits. Quite simply, the post-sale procedures outlined by appellant are not applicable in this case.

Also, the purchaser here, Central Penn Properties had no incentive to raise any exceptions to the sheriff’s sale. AmTrust Bank, whose interest could be substantially affected by any post sheriff’s sale determinations that could have been raised, had no present interest in the property and counsel have not raised any exceptions to such sale. Appellant’s position is not framed as one based in the post-procedure sheriff’s sale remedies, but rather is based in equitable principles and the recording statutes.

Furthermore, the sheriff’s deed that was issued following the sheriff’s sale, granting the property to Parula Properties LLC, was the only recorded document that could have placed AmTrust and the Marzecs on notice of the alleged continuing interest of U.S. Bank in this mortgage. Such sheriff’s deed was insufficient to put any subsequent purchasers on notice that the property was subject to the U.S. Bank mortgage.

(V) “Whether the court of common pleas failed to consider that where: (i) a property is sold at sheriff’s sale, (ii) the sheriff executes and acknowledges before the prothonotary a deed poll to the subject property conveying the property ‘subject to mortgage,’ and (iii) the deed poll is recorded in the recorder of deeds office and, therefore, made part of the public record, any successor in interest to the property subsequent to the recording of the deed poll has constructive notice of the mortgage lien against the property, is not a bona fide purchaser, and takes the property subject to the existing mortgage.”

The declaration at the sale that the sale was “subject to a mortgage” and the sheriff’s deed merely stating the same was inadequate to put any purchaser on notice of any priority of appellant’s lien. This is especially so where there were two other mortgages on record, the other Michigan Fidelity mortgage and the Nelson mortgage.

The mere declaration that the sale was subject to a mortgage without more was insufficient to overcome the recorded facts of the two Michigan Fidelity mortgages and the clear law applicable to those facts upon which a purchaser, at the sheriff’s sale and appellee as a subsequent purchaser, were entitled to rely. Those clear facts are that the Michigan Fidelity mortgages were purchase money mortgages simultaneously recorded without any statement of priority and therefore of equal priority, and that under the Lien Divestiture Law, a sheriff’s sale on one divested the other and the divested lien holder’s remedy was to bid to protect itself at the sale and to look to the proceeds of sale for satisfaction of the mortgage.

CONCLUSION

My order of June 16, 2008, appealed from was legally correct and should be affirmed.

      . See also, Ladner Pa. Real Estate Law, §23.03(b), Ronald M. Friedman (2006); citing Pease v. Hoag, 11 Phila. 549 (1875) and Klaus v. Majestic Apartment House Company, 250 Pa. 194, 95 A. 451 (1915), which states that “two ... mortgages are given simultaneously on the same property and both are recorded within the 10-day limit, although on different dates, neither is a prior to the other. To avoid this effect, if it is intended that one . . . mortgage should be subject to the other, the mortgage intended to be junior in lien should contain what is called a second mortgage clause, expressing such intent.”

      . A “subordination clause” is a covenant in a junior mortgage enabling the first lien to maintain its priority in case of renewal or refinancing. Black’s Law Dictionary, 1440 (Seventh ed. 1999).

      . Thereafter, on April 13, 2007, WCRSI, LLL became the mortgagee by assignment of the U.S. Bank Mortgage. (Stip. exhibit 3-5.) The underlying action is WCRSI’s attempt to foreclose upon the U.S. Bank mortgage and sell the property at sheriff’s sale.

      . There are three intervenors/appellees in this matter: Grzegorz Marzec, Lorena Marzec and AmTrust Bank. Although the Marzecs are a married couple and AmTrust Bank is a Federal Savings Bank, the interests of all intervenors are aligned for purposes of the issue before this court and the interests of all three intervenors are represented within this brief.

      . The purchaser at the sheriff’s sale on the $49,980 purchase money mortgage which I ruled divested the appellant’s mortgage in turn sold the property which was ultimately acquired by appellee Marzecs who financed this purchase with a $325,000 mortgage.