author: JENKINS, J.,

text:
    Commonwealth v. McEneaney

      William R. Toal, for the Commonwealth.

      Patrick J. Connors, for defendant McEneaney.

      Robert Datner, for defendant Mark.
    December 27, 2007
   JENKINS, J.,

On March 24, 2006, Christopher McEneaney, at the time less than 18 years of age, and Andre Mark brutally beat a homeless man to death for the perverse thrill of taking an innocent person’s life. The court recommends that McEneaney’s judgment of sentence for first-degree murder and Mark’s judgment of sentence for third-degree murder be affirmed.

I. PROCEDURAL HISTORY

On November 1, 2006, the court held a hearing on McEneaney’s petition to transfer his case to juvenile court. At the conclusion of the hearing, the court ruled from the bench that McEneaney should stand trial as an adult.

Trial commenced on March 20, 2007. On March 23, 2007, the jury found McEneaney guilty of first-degree murder and Mark guilty of third-degree murder. On May 29,2007, the court sentenced McEneaney to life imprisonment and Mark to 20-40 years imprisonment for third-degree murder.

On June 5, 2007, McEneaney filed a timely notice of appeal.. On June 5, 2007, the court ordered McEneaney to file a concise statement of matters complained of on appeal within seven days. Subsequently, the court granted McEneaney an extension until July 8, 2007 within which to file his concise statement. McEneaney timely filed his concise statement on July 2, 2007.

Meanwhile, on June 8, 2007, Mark filed timely post-sentence motions. On June 25, 2007, the court denied Mark’s post-sentence motions, prompting him to file a timely notice of appeal on July 25, 2007. On August 2, 2007, the court signed a scheduling order directing Mark to file his concise statement within 21 days. The docket reflects that on August 8, 2007, the Office of Judicial Support (OJS) served the scheduling order on Mark’s counsel. Thus, the deadline for Mark’s concise statement was August 29, 2007. Mark’s counsel did not file the concise statement until September 11, 2007, 13 days late.

On September 12,2007, the court wrote to counsel for Mark that the second issue in his concise statement alleging “improper remarks” by the prosecutor was indecipherable because counsel failed to specify the remarks in question. On September 17,2007, Mark’s counsel filed an amended concise statement that identified the allegedly inappropriate remarks, viz., the prosecutor’s reference in his opening statement that Mark and McEneaney stalked the victim “like hunters . . . stalking their prey.”

II. FACTUAL HISTORY

At 8 p.m. on March 24, 2006, a Friday evening, several teenagers observed Martin Malone, a homeless man, carrying a shovel through a parking lot in Upper Darby near a Modell’s store and St. Eugene’s Field. N.T., 3/21/07, pp. 6, 9, 11, 45-46, 60, 84. The teenagers then witnessed Mark and McEneaney walking after Malone while taunting him and yelling insults and curses. N.T., 3/21/07, pp. 9-12, 64, 86. Mark and McEneaney then threw rocks at Malone that they procured from a construction site in the parking lot. N.T., 3/21/07,pp. 17-19, 50,85,90. Malone hid behind a nearby dumpster to avoid being hit by the rocks. N.T., 3/21/07, pp. 12-14, 89. The teenagers noticed that McEneaney had a shiny object in his hand. N.T., 3/21/07, pp. 65, 88-89. The object was a knife. N.T., 3/21/07, pp. 88-89.

As the teenage witnesses drove away, the two assailants began running after Malone. N.T., 3/21/07, p. 67. McEneaney motioned with the knife, taunting Malone with it. N.T., 3/21/07, pp. 106-107. Mark and McEneaney yelled at Malone to put down the shovel and fight. N.T., 3/21/07, p. 113.

After driving a few blocks away, the teenagers returned to the Bishop Hill Apartments and saw Malone lying on a field. N.T., 3/21/07, pp. 17, 69. The boys called the police. N.T., 3/21/07, p. 69. Malone had shovel marks on his face and was bleeding and badly injured. N.T., 3/21/07, pp. 141-43. Malone died from injuries suffered in the attack. The medical examiner concluded that the manner of death was homicide caused by multiple stab wounds. N.T., 3/22/07, pp. 125-36.

On March 26, 2006, Mark admitted to Upper Darby police that he and “another guy” (McEneaney) threatened Malone after they saw him “going through” a dumpster. Exhibit C-40, p. 1. The confrontation began with words and escalated to rock throwing after Malone “mooned” Mark and the other person. Exhibit C-40, p. 3. Mark claimed that Malone swung a shovel at him, but that he and the “other person” quickly got the upper hand. Mark admitted punching Malone in the jaw, “and we just beat the guy.” Exhibit C-40, p. 1. Mark claimed that McEneaney struck Malone with the shovel. Exhibit C-40, p. 1.

McEneaney also gave a statement to police in which he admitted yelling at Malone and throwing rocks at him with Mark. Exhibit C-39, p. 1. McEneaney claimed that he stabbed Malone only after Malone hit him with the shovel. Exhibit C-39, pp. 1-2. McEneaney also admitted hitting Malone on the head with a shovel. Exhibit C-39, p. 2.

III. ALL OF MARK’S ARGUMENTS ON APPEAL ARE WAIVED DUE TO MARK’S UNTIMELY FILING OF HIS CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL; MOREOVER, NONE OF HIS ARGUMENTS HAVE MERIT

A. Mark’s Arguments Are Waived Under Pa.RA.P. 1925

Under the old version of Pa.R.A.P. 1925, an appellant’s failure to file a timely concise statement resulted in waiver of all issues raised in the untimely statement. Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (2005). Is the same penalty required under the new version of Rule 1925, which became effective several weeks before Mark’s appeal? The court finds that it is.

The old version of Rule 1925(b) provided:

“The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.”

The new version of Rule 1925(b) became effective on July 9,2007, 18 days before Mark’s appeal. It prescribes in relevant part:

“If the judge entering the order giving rise to the notice of appeal (judge) desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal....
(2) Time forfiling and service. — The judge shall allow the appellant at least 21 days from the date ofthe order’s entry on the docketfor the filing and service of the statement. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental statement to be filed. In extraordinary circumstances, the judge may allow for the filing ofa statement or amended or supplemental statement nunc pro tunc.
(3) Contents of order. — The judge’s order directing the filing and service of a statement shall specify:
“(i) the number of days after the date of entry of the judge’s order within which the appellant must file and serve the statement;
“(ii) that the statement shall be filed of record;
“(iii) that the statement shall be served on the judge pursuant to paragraph (b)(1);
“(iv) that any issue not properly included in the statement timely filed and served pursuant to subdivision (b) shall be deemed waived.” (emphasis added)

Although new Rule 1925(b) is not as explicit with regard to untimely concise statements as old Rule 1925(b), new Rule 1925(b)(2) makes clear that an appellant’s failure to file a timely concise statement constitutes a waiver of all issues raised in the untimely statement. The last two sentences of Rule 1925(b)(2) state that (1) the deadline for filing concise statements can only be extended upon application of the appellant and for good cause, and (2) if the appellant fails to apply for an extension before the deadline, he cannot file a late petition unless he can demonstrate “extraordinary circumstances.” By including these provisions, the Supreme Court signaled its intent that Pennsylvania courts strictly enforce the time limitations in the new rule.

Mark’s concise statement clearly is untimely under new Rule 1925(b). Incompliance with Rule 1925(b)(3), the court’s scheduling order specifies the number of days that Mark had to file a concise statement (21), directs him to file the concise statement of record and to serve a copy on the judge, and warns him that all issues not included in the concise statement will be waived. Moreover, the docket establishes that OJS served the scheduling order on Mark’s counsel via first-class mail on August 8,2007, thereby eliminating any doubt that the deadline for filing the concise statement was August 29, 2007. Given these facts, Mark’s counsel waived all of Mark’s arguments on appeal by failing to file the concise statement until September 11, 2007 and neglecting to demonstrate “extraordinary circumstances” for the untimely filing.

B. Assuming Arguendo That Mark Did Not Waive All Issues on Appeal, the Evidence Was Sufficient To Support Mark’s Conviction for Third-Degree Murder As an Accomplice to McEneaney

Mark contends that the evidence did not support his conviction for third-degree murder under a theory of accomplice liability. The court disagrees.

When reviewing a challenge to the sufficiency of the evidence, Pennsylvania appellate courts must view all the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, the verdict winner. Commonwealth v. Widmer, 560 Pa.308, 319, 744 A.2d 745, 751 (2000). The evidence is sufficient to support the verdict when it establishes each material element of the crime charged against the defendant beyond a reasonable doubt. Id.

1. Standards Defining Accomplice Liability for Third-Degree Murder

Third-degree murder constitutes all forms of homicide other than (a) an intentional killing or (b) a killing committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa.C.S. §2502(c). A person may be convicted of third-degree murder “where the murder is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought. Malice consists of a ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.’” Commonwealth v. Gooding, 818 A.2d 546, 550 (Pa. Super. 2003) (citing Commonwealth v. Pigg, 391 Pa. Super. 418, 425, 571 A.2d 438, 441 (1990)). Further, “malice may be inferred from the use of a deadly weapon on a vital part of the victim’s body.” Id. (citing Commonwealth v. Gonzales, 415 Pa. Super. 564, 568, 609 A.2d 1368, 1369 (1992)).

A conviction for third-degree murder can rest upon a theory of accomplice liability. Id.; see also, Commonwealth v. Flanagan, 578 Pa. 587, 601, 854 A.2d 489, 501 (2004); Commonwealth v. Kimbrough, 872 A.2d 1244, 1251-55 (Pa. Super. 2005). The Crimes Code defines accomplice liability as follows:

“(a) General rule — A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
“(b) Conduct of another — A person is legally accountable for the conduct of another when:...
“(3) he is an accomplice of such other person in the commission of the offense.
“(c) Accomplice defined — A person is an accomplice of another person in the commission of an offense if:
“(1) with intent of promoting or facilitating the commission of the offense, he:
“(i) solicits such other person to commit it; or
“(ii) aids or agrees or attempts to aid such other person in planning or committing it.
“(d) Culpability of accomplice — When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.” 18 Pa.C.S. §306.

Our Supreme Court has provided the following succinct explanation of accomplice liability under section 306:

“It is well-established . .. that a defendant, who was not a principal actor in committing the crime, may nevertheless be liable for the crime if he was an accomplice of a principal actor . .. [T]wo prongs must be satisfied for a defendant to be found guilty as an ‘accomplice.’ See Commonwealth v. Woodward, 418 Pa. Super. 218, 614 A.2d 239, 242 (1992). First, there must be evidence that the defendant intended to aid or promote the underlying offense. See id. Second, there must be evidence that the defendant actively participated in the crime by soliciting, aiding, or agreeing to aid the principal. See id. While these two requirements may be established by circumstantial evidence, a defendant cannot be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene. See Commonwealth v. Wagaman, 426 Pa. Super. 396, 407, 627 A.2d 735, 740 (1993). There must be some additional evidence that the defendant intended to aid in the commission of the underlying crime, and then did or attempted to do so. See id. With regard to the amount of aid, it need not be substantial so long as it was offered to the principal to assist him in committing or attempting to commit the crime. See Commonwealth v. Cox, 546 Pa. 515, 529, 686 A.2d 1279, 1286 (1997).” Commonwealth v. Murphy, 577 Pa. 275, 286, 844 A.2d 1228, 1234 (2004) (emphasis added); see also, Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981) (only the least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice); Commonwealth v. Graves, 316 Pa. Super. 484, 489, 463 A.2d 467, 470 (1983) (no agreement is required, only aid).

Several other important points bear mention. Under section 306(c), “to promote” an offense means “to contribute to [its] progress or growth.” Commonwealth v. Kimbrough, 872 A.2d 1244,1252 (Pa. Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005), denial of post-conviction relief affirmed in part, vacated in part, 938 A.2d 447 (Pa. Super. 2007) (citing Webster’s II New College Dictionary 885 (1995)). Under the same subsection, “to facilitate” an offense means “to make the commission of a crime easier” or to make it easier for another person to commit a crime. Id. (citing Black’s Law Dictionary 610 (7th ed. 1999)).

Significantly, “to determine the kind of homicide of which the accomplice is guilty, it is necessary to look to his state of mind; the requisite mental state must be proved beyond a reasonable doubt to be one which the accomplice harbored and cannot depend upon proof of intent to kill only in the principal.” Commonwealth v. Bachert, 499 Pa. 398, 406, 453 A.2d 931, 935 (1982). Consequently, the state of mind of the accomplice “may [be] different from the state of mind of the principal and they thus may be guilty of different offenses. Thus, because first-degree murder requires a deliberate and premeditated killing, an accomplice is not guilty of this degree of murder unless he acted with premeditation and deliberation. And, because a killing in a heat of passion is manslaughter and not murder, an accomplice who aids while in such a state is guilty only of manslaughter even though the killer is himself guilty of murder. Likewise, it is equally possible that the killer is guilty only of manslaughter because of his heat of passion but that the accomplice, aiding in a state of cool blood, is guilty of murder.” LaFave, 2 Substantive Criminal Law, § 13.2(c). (footnotes omitted) (emphasis added)

Thus, as in this case, an accomplice can be convicted for third-degree murder even though the principal is convicted of first-degree murder. This has occurred in at least two reported decisions. Kimbrough, supra (principal convicted of first-degree murder while accomplice was convicted of third-degree murder; evidence was sufficient to show that defendant aided principal in acquisition of gun and set stage for shooting, so as to support defendant’s conviction for third-degree murder as an accomplice, where defendant had argument with one victim in bar, told co-defendant to take principal to apartment to retrieve loaded gun, obtained gun from principal, brandished gun, threatened bar patrons, and told victim’s brother that he was going to kill him, and defendant, when he left bar, held cocked gun on his person in such position that it was taken easily and without incident by principal, who then commenced shooting); Commonwealth v. Gooding, 818 A.2d 546 (Pa. Super. 2003) (evidence was sufficient to support conviction of defendant as accomplice to third-degree murder; defendant kidnapped victim along with principal and other men, defendant drove lead car to site of murder, while second car, carrying victim, followed defendant’s car, principal shot victim at murder site and left site in defendant’s car, and defendant told principal that they should not tell anyone about shooting).

2. Discussion

Construed in the light most favorable to the Commonwealth, the evidence clearly supports Mark’s third-degree murder conviction on a theory of accomplice liability.

With regard to the first prong of accomplice liability, the evidence shows that Mark intended to facilitate Malone’s murder. Acting in tandem with McEneaney, Mark took part in each stage of the deadly attack, first by taunting and jeering Malone, then throwing rocks at him, then running after him and cornering him on the field, then punching Malone repeatedly while McEneaney smashed Malone’s head with a shovel and stabbed him to death. Mark was not merely present at the scene of the crime; nor did he merely have knowledge about the crime. His own vicious conduct made it possible for McEneaney to administer the brutal and wicked coup de grace.

The same evidence satisfies the second prong of accomplice liability. Mark actively participated in the attack by aiding the principal, McEneaney, in murdering Malone. The evidence refutes Mark’s attempt to downplay his conduct and shift the blame entirely upon Mc-Eneaney’s shoulders.

Finally, Mark’s conduct epitomizes the “wickedness of disposition, hardness of heart, [and] cruelty” characteristic of malice, the requisite state of mind for third-degree murder. His acts of senseless violence are at least as wrongful as other acts deemed malicious by our appellate courts. Compare, e.g., Commonwealth v. Pigg, 391 Pa. Super. 418, 425, 571 A.2d 438, 441 (1990) (defendant’s conduct held malicious where he killed two people in head-on collision between his tractor-trailer and their vehicle on narrow road while he was intoxicated and after he ignored another driver’s request to stop driving).

Given the ample evidence that Mark acted with malice, the jury properly convicted Mark of third-degree murder despite also finding McEneaney guilty of first-degree murder. Bachert and LaFave’s treatise on criminal law make clear that an accomplice (Mark) may have a different state of mind than the principal (McEneaney), thereby making him guilty of a different offense.

C. Mark Waived His Claim of Prosecutorial Misconduct by Failing To Raise a Timely Objection During the Commonwealth’s Opening Statement; in any Event, the Claim of Misconduct Is Devoid of Merit

During his opening statement, the prosecutor stated: “McEneaney and Mark stalked Marty Malone on that evening like two hunters that were stalking their prey.” Although Mark did not object to this remark during trial, he now contends that this comment constituted prosecutorial misconduct which entitles him to a new trial.

Mark has waived this issue due to his failure to raise an objection at the time of the alleged misconduct and move for a mistrial. Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super. 2007) (citing Commonwealth v. Jones, 501 Pa. 162, 460 A.2d 739 (1983)) (claim of prosecutorial misconduct waived due to defendant’s failure to make contemporaneous objection and move for mistrial); Commonwealth v. Andrulewicz, 911 A.2d 162, 167-68 (Pa. Super. 2006) (defendant waived claim that Commonwealth counsel committed prosecutorial misconduct in closing argument of sexual assault trial by continuously vouching for credibility and veracity of Commonwealth’s witnesses, where defendant failed to object to alleged improper statements); Commonwealth v. Hassine, 340 Pa. Super. 318, 490 A.2d 438 (1985) (noting that the absence of an objection to alleged prejudicial remarks made during a prosecutorial summation renders the issue waived).

Moreover, the court agrees with the Commonwealth that the prosecutor’s statement was within the boundaries of oratorical flair. Our appellate courts have ruled that similar statements comparing criminals to hunters and victims as prey are permissible. Commonwealth v. Miller, 897 A.2d 1281, 1291 (Pa. Super. 2006) (Commonwealth’s opening and closing statements concerning use of noun “predator” and verb “preys” to describe defendant did not warrant new trial; defendant asked her victim for money and when refused, came back with hammer and knife and bludgeoned and stabbed her to death, slitting her throat, and in the days that followed, she returned to victim’s apartment and stole checks, credit cards, and victim’s car, each time walking past victim’s corpse sitting at kitchen table, such that defendant’s actions could reasonably be termed predatory); Commonwealth v. Miles, 545 Pa. 500, 511, 681 A.2d 1295, 1300 (1996), cert. denied, 520 U.S. 1187, 117 S.Ct. 1472, 137 L.Ed.2d 684 (1997) (concluding prosecutor’s comparison of defendant’s actions to the hunting style of “animals of prey” was not improper); Commonwealth v. Van Horn, 797 A.2d 983 (Pa. Super. 2002) (holding prosecutor’s characterization of victim as prey was within the limits of proper oratorical flair). Based on the evidence described above, the hunter-prey simile is as applicable here as it was in Miller; Miles and Van Horn.

D. Mark’s Sentence of20-40 Years Imprisonment Was Proper

The Commonwealth argues that Mark’s counsel waived this issue by failing to object to the discretionary aspects of his sentence during his sentencing hearing or in post-sentence motions. The court concludes that Mark’s counsel raised this issue during sentencing by requesting a mitigated range sentence. N.T., 5/29/07, pp. 23-28.

The court, however, finds that Mark’s sentence was appropriate. Mark has a prior record score of 5, and his offense gravity score is 14. The sentence of20-40 years imprisonment is within the standard range for this combination of factors. Moreover, this sentence is appropriate in light of his heinous crime and the pre-sentence investigation report’s conclusion of his inability to adjust to society’s requirements despite multiple juvenile rehabilitation programs. N.T., 5/29/07, pp. 28-30. (Court’s reasons for Mark’s sentence.)

IV. McENEANEY’S ARGUMENT ON APPEAL IS DEVOID OF SUBSTANCE BECAUSE THE COURT PROPERLY DIRECTED McENEANEY’S CASE TO PROCEED IN ADULT CRIMINAL COURT

McEneaney contends that he proved by a preponderance of the evidence that the charges against him should be transferred to juvenile court, and that the court denied his motion to transfer because it failed to consider the transfer criteria in the Juvenile Act, 42 Pa.C.S. §6301 et seq. The court concludes that McEneaney failed to meet his burden of proof, and that it properly considered the criteria in the Juvenile Act when denying his petition.

A. Standard of Review

When an individual under 18 years of age is charged with murder, criminal courts usually must adjudicate the matter instead of juvenile court. The Juvenile Act requires juvenile courts to handle “proceedings in which a child is alleged to be delinquent____” 42 Pa.C.S. §6303(a)(l). The Act, however, expressly excludes murder from the definition of “delinquent act.” 42 Pa.C.S. §6302.

The only time that the criminal court can transfer a homicide case to juvenile court is when the child demonstrates by a preponderance of the evidence that transfer to juvenile court will “serve the public interest.” 42 Pa.C.S. §6322(a). To determine whether transfer will serve the public interest, “the [criminal division] shall consider the factors contained in [42 Pa.C.S. §]6355(a) (4)(iii) (relating to transfer to criminal proceedings).”

Section 6355(a)(4)(iii) requires the criminal division to consider the following factors when deciding whether to transfer:

“(A) the impact of the offense on the victim or victims;
“(B) the impact of the offense on the community;
“(C) the threat to the safety of the public or any individual posed by the child;
“(D) the nature and circumstances of the offense allegedly committed by the child;
“(E) the degree of the child’s culpability;
“(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and
“(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:
“(I) age;
“(II) mental capacity;
“(III) maturity;
“(IV) the degree of criminal sophistication exhibited by the child;
“(V) previous records, if any;
“(VI) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;
“(VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;
“(VIII) probation or institutional reports, if any;
“(IX) any other relevant factors.”

Juveniles bear the burden of proving that transfer to the juvenile court is appropriate due to the legislative presumption that the criminal division is the proper forum for murder charges. Commonwealth v. Ramos, 920 A.2d 1253, 1258 (Pa. Super. 2007). To hold otherwise “ ‘would create the anomalous situation whereby the party in whose favor a legislative presumption has been created [the Commonwealth] is called upon to offer the evidence to support the presumption. Such a concept would be at variance with the well established principle of the law of evidence that a presumption shifts not only the burden of proof, but also shifts the burden of coming forward with the evidence to establish the fact in issue.’ Commonwealth v. Greiner, 479 Pa. 364, 370, 388 A.2d 698, 701-702 (1978) (holding that the burden of proof rests on the Commonwealth when it seeks to transfer an accused from juvenile court to criminal court). ‘The legislative determination to exclude [specified offenses] from the jurisdiction of the juvenile courts evidenced an assumption that the criminal justice system was the proper forum for the resolution of such matters unless the party seeking the juvenile court as a forum could establish reasons to the contrary.’ Id.” Ramos, supra, 920 A.2d at 1258-59.

“Decisions of whether to grant decertification will not be overturned absent a gross abuse of discretion. An abuse of discretion is not merely an error of judgment but involves the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment passed upon partiality, prejudice or ill will.” Id. at 1257 (citing Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003)).

B. Evidence Presented During the Decertification Hearing

The court carefully considered the testimony of Dr. Jerry Lazaroff, McEneaney’s expert witness in the field of adolescent and child psychology with an emphasis in the juvenile justice system. Competency hearing transcript (CUT), 11/1/06, pp. 9-52. Ultimately, the court found the testimony of the Commonwealth’s expert, William Russell, and its other witnesses far more convincing than Dr. Lazaroff’s testimony.

Dr. Lazaroff evaluated whether McEneaney was at risk for committing further aggressive acts or whether he was amenable to rehabilitation through the juvenile justice system. CHT, p. 10.

Dr. Lazaroff learned that McEneaney’s father worked as a roofer but fell from a roof and became partially paralyzed when McEneaney was 7. CHT, p. 11. Several years later, McEneaney’s father got into an automobile accident, which McEneaney witnessed, and both of his legs had to be amputated. CHT, p. 11. McEneaney’s father then began to abuse Oxycontin and heroin heavily. CHT, p. 11. Mc-Eneaney’s mother also abused Oxycontin, heroin, and alcohol and would often leave the house for several days, leaving McEneaney and his sisters to tend to his bedridden father. CHT, p. 11. His mother has been in rehabilitation several times and has also been incarcerated. CHT, p. 12. McEneaney’s father became sicker and died when Mc-Eneaney was 14. CHT, p. 11.

McEneaney’s educational record was also troubled. His IQ is 81, a score at the lower end of the low average range. CHT, p. 15. In the ninth grade, he was only performing at a fourth grade level, and he was constantly disrupting classes, getting into fights, and had incidents of insubordination, property destruction, insulting language and verbal or physical aggression. CHT, pp. 13-14, 35. He also seriously injured a peer on a school bus. CHT, p. 35.

McEneaney attended public school until September 2005, when he was transferred to the Wordsworth Academy, a special education school for children with emotional and behavioral difficulties. CHT, p. 13. After transferring to Wordsworth, however, he “was beginning to turn around his school situation” with good grades, perfect attendance and personable conduct toward staff and peers. CHT, p. 15; see also, CHT, pp. 24 (McEneaney was “excelling” at Wordsworth), 49 (McEneaney’s grades at Wordsworth). He also liked the counselor that he was seeing at Wordsworth and felt that she was helping him. CHT, p. 22.

McEneaney admitted to Dr. Lazaroff that he began smoking marijuana at age 13 and continued to smoke marijuana twice per month. CHT, p. 20. He claimed, however, that he was not high on the night of the incident. CHT, p. 20.

Dr. Lazaroff interviewed McEneaney in prison on June 16, 2006, less than two months after the attack. CHT, p. 16. McEneaney claimed that he and Mark were forced to defend themselves against Malone while they were walking home from McDonald’s. McEneaney claimed that he and Mark saw Malone rummaging through a dumpster and taunted him by saying “get out of the trash, you bum.” CHT, p. 17. Malone became angry, called Mark a “nigger,” and pulled down his pants and told Mark to “kiss his white ass.” CHT, p. 17. Mark and McEneaney continued to taunt Malone, who looked like he was “high on something because he couldn’t even stand up straight.” CHT, p. 17. Malone, McEneaney continued, obtained a shovel from his truck and approached McEneaney, who threw a rock that hit Malone in the chest. CHT, p. 18. Mark and McEneaney began to walk home, but Malone followed them until Mark and McEneaney stopped and asked Malone what he wanted. CHT, p. 18. Malone then knocked McEneaney down with the shovel and attempted repeatedly to hit Mc-Eneaney on the ground until Mark punched him in the face. CHT, p. 18. McEneaney stood up, removed a Swiss Army style knife from his pocket, and held it in front of him hoping that Malone would leave when he saw it. CHT, p. 18. Malone, however, “came toward [Mc-Eneaney] and [the knife] went into his chest.” CHT, p. 18. Malone continued to fight, but as McEneaney tried to tackle him, Mark stabbed him in the side. CHT, p. 19. Malone fell to the ground but kept trying to hit Mc-Eneaney with the shovel. CHT, p. 19. Mark tried to grab the shovel, but Malone would not let go, so McEneaney “poked” Malone “in the side again with the knife.” CHT, p. 19. Malone let go of the shovel, and McEneaney hit Malone twice with the shovel and threw it away. CHT, p. 19. Mark then picked up the shovel and hit Malone with the shovel. CHT, p. 19. Mark threw the shovel in the bushes, and he and McEneaney walked home. CHT, p. 19.

Notably, Dr. Lazaroff admitted that McEneaney did not mention in his statement to police that Malone came after him and Mark. CHT, p. 39. Dr. Lazaroff further admitted that McEneaney might have minimized the number of times he stabbed Malone during his interview. CHT, p. 40.

According to Dr. Lazaroff, McEneaney “was very apologetic and remorseful about what had happened” and said that “I can’t believe I did something like that; I’m really sorry that I killed somebody.” CHT, p. 16. McEneaney “realize[d] that he used exceedingly poor judgment during this incident and wishes he would have had the foresight to simply walk away before the altercation turned violent.” CHT, p. 23.

Dr. Lazaroff administered the Carlson Psychological Inventory, a procedure given to people charged with crimes and involved in correctional systems. CHT, p. 21. In his opinion, McEneaney did not appear seriously emotionally disturbed, but he will often display poor judgment and act impulsively. CHT, p. 21. Nevertheless, he did not appear to be aggressive or predatory, CHT, pp. 23-24, and he admitted that he needed counseling to bring his temper under control. CHT, p. 25. Moreover, he did not have any prior contacts with the juvenile or criminal justice system. CHT, p. 25. Accordingly, Dr. Lazaroff believed that he would do well in a juvenile court setting; that with counseling and education, he would eventually assume a productive role in society; and that juvenile systems provided more appropriate means of rehabilitation than the adult criminal system. CHT, p. 26. Dr. Lazaroff opined: “He is still 16 1/2 years of age. He has until the age of 21. And I believe that’s sufficient time for him to be rehabilitated and receive the services he needs.” CHT, p. 26.

On cross-examination, Dr. Lazaroff admitted that McEneaney had suicidal thoughts and had cut his wrists prior to the altercation with Malone. CHT, p. 46. Moreover, McEneaney did not mention his suicidal thoughts during his interview with Dr. Lazaroff. CHT, p. 46. Dr. Lazaroff only learned about them later while interviewing McEneaney’s sister. CHT, p. 46.

The Commonwealth’s forensic psychologist, William Russell, testified that he performed an evaluation on McEneaney on September 12, 2006. Russell observed that while McEneaney was in middle school, he had a lengthy history of anger problems, oppositional defiant behavior and aggressive behavior. CHT, p. 55. These problems did not disappear when he moved from his parents into his aunt’s home, because he rebelled against her more structured environment. CHT, p. 57. Russell found it “naive” to think that his problems would resolve simply by placing him in a special educational environment such as Wordsworth or a juvenile facility. CHT, pp. 57-58. Indeed, the fact that only two weeks passed between his suicide attempt and the attack on Malone demonstrates that his violent tendencies did not “magically disappearf]” when he transferred to Wordsworth. CHT, p. 66.

Russell testified that McEneaney gave an honest account of the attack on Malone until he described the stabbing. CHT, pp. 59-60. Russell found credible Mc-Eneaney’s admission that he and Mark were harassing Malone, but Russell did not believe McEneaney’s claim that he only stabbed Malone twice or that Malone escalated the incident by picking up a shovel. CHT, pp. 59-60. McEneaney did not cry or show sadness while recounting these events, and his presentation was generally flat throughout the interview. CHT, pp. 60-61.

Russell concluded that McEneaney was not amenable to juvenile court treatment, because he could not be rehabilitated between his present age (17) until he was 21. CHT, pp. 61-63. McEneaney’s offense had a “tremendous impact on both the victim and the victim’s family.” CHT, p. 61. McEneaney posed a serious threat to the community without appropriate controls, given the violence of his attack (multiple stab wounds) and the fact that he could have broken off the attack at any number of points during the incident. CHT, pp. 61-62. Moreover, McEneaney has had a “lengthy period of developmental disturbance ... if we look at the early exposure to violence, with difficulty in functioning with rules, the academic problems, the school behavior problems, the limited social interactivity, [and his] only friends [being] delinquents ... When you put all these together, we have a very serious problem to address.” CHT, p. 62. A youth development center would not address these problems, because they do not have intensive treatment, and McEneaney needed a much longer period than four years to develop the controls that he needed to function in the community. CHT, pp. 62-63.

Peter Pitts, a Delaware County probation officer, corroborated Russell’s negative opinion about McEneaney even though McEneaney’s attorney called him as a witness. Pitts testified that he did not interview McEneaney because he “felt in looking at the affidavit [of probable cause] and what the juvenile admitted to doing ... he was not [an] appropriate juvenile to . . . come back to juvenile court. Even looking at the best case scenario and being impressed in the interview... the charges are so serious that that kind of case is not brought back to juvenile court.” CHT, p. 80.

Lastly, Isabelle Malone, Malone’s oldest sister, testified that his death has caused considerable grief to her entire family. CHT, pp. 93-97.

C. Analysis

Based on this evidence, the court correctly concluded that this case belongs in adult criminal court, since none of the criteria within 42 Pa.C.S. §6355(a)(4)(iii) weigh in McEneaney’s favor.

The court will examine each factor seriatim:

Impact on the victim’s family. Isabella Malone’s testimony demonstrates that Malone’s death caused his family to suffer extreme grief.

Impact on the community. This incident involved the tragic and senseless death of a member of Upper Darby’s community. Crimes of violence, particularly crimes that cause death, wound the fabric of the community more than any other offense.

Threat to the safety of the public or any individual posed by the child. The court credited the testimony of the Commonwealth’s forensic psychologist, William Russell, that McEneaney poses a serious threat to the public. McEneaney participated in the brutal assault that cost Malone his life. He has shown serious developmental issues and a marked propensity for aggressiveness throughout his middle school years and during his stay at Wordsworth Academy. Moreover, he has exhibited suicidal tendencies.

Nature and circumstances of the offense allegedly committed by the child. The prosecutor aptly described McEneaney’s offense as “brutal and depraved ...

“[McEneaney] took the shovel from Mr. Malone, who . . . was protecting himself from these two individuals who had chased him into a field. He beats him over the head with a shovel . . . [T]here was extreme bruising from the shovel on the victim’s head. And then he was stabbed eight times. He was stabbed three times in the buttocks. He was stabbed three times in the upper back. He was stabbed in the front of his body, once in the chest and a long slash wound that was so deep from this knife . . . [that] it went four inches into his body and cut his heart, causing him to die.”

This factor, perhaps more than any other, made this case inappropriate for juvenile court.

Degree of the child’s culpability. The evidence presented at the decertification hearing (and at trial) demonstrates that McEneaney was an enthusiastic participant — indeed, the principal participant — in a dreadful crime.

Adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system. The juvenile court system is not an adequate alternative in these circumstances. The court agrees with Russell’s opinion that it is “naive” to think that McEneaney’s problems would evaporate simply by placing him in a special educational environment such as Wordsworth or a juvenile facility. Moreover, as Russell stated, McEneaney needs a much longer period than four and a half years (the maximum time that McEneaney could spend in the juvenile system) to develop the controls that he needed to function in the community.

Whether the child is amenable to treatment, supervision or rehabilitation as a juvenile. Upon review of the criteria in section 6355(a)(4)(iii)(G), the court finds that McEneaney is not amenable to treatment, supervision or rehabilitation as a juvenile. The court acknowledges that a major cause of McEneaney’s troubles is his chaotic and unstructured upbringing. His father, who died several years ago, was an invalid due to a work-related accident, and was also a drug abuser. His mother abused Oxycontin, heroin, and alcohol and frequently left the house for days at a time, leaving McEneaney and his sister to fend for themselves. It is not surprising that the absence of parental guidance has led McEneaney into dire straits.

Nevertheless, as discussed above, there is too little time for him to develop the controls in the juvenile system that he needs to function as a responsible citizen in the community. His tendencies towards impulsive behavior, anger, aggression and suicide make him a very poor candidate for juvenile court treatment. Lastly, the horrific nature of his offense makes juvenile court an inappropriate setting for this case.

To summarize, McEneaney has failed to prove by a preponderance of the evidence that he is suitable for juvenile rehabilitation. The factors listed within section 6355(a)(4)(iii) overwhelmingly mandate that this case belongs in adult criminal court.

For all of the foregoing reasons, the court respectfully recommends that Mark’s and McEneaney’s judgments of sentence be affirmed.

      . OJS’s diligence in listing the time and method of service is critical to the resolution of the timeliness issue. Had OJS failed to include this information on the docket, there would have been no way to identify the deadline for filing the concise statement. See Common

        wealth v. Hess, 570 Pa. 610, 617-18, 810 A.2d 1249, 1254 (2002) (concise statement held not untimely because, inter alia, docket did not state the time and method of service of the Rule 1925 order).

      . Although the Superior Court ordered further PCRA proceedings in this case on December 3,2007, the remaining issues do not concern the sufficiency of the evidence underlying Kimbrough’s third-degree murder conviction.

      . The principal was convicted of first-degree murder and sentenced to death. The Supreme Court upheld his judgment of sentence on direct appeal. See Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767 (2004) (affirming judgment of sentence).

      . In practice, our appellate courts are extremely reluctant to overturn a trial court’s refusal to transfer a case to juvenile court. Earlier this year, the Superior Court affirmed a decision not to transfer a case to juvenile court even though the juvenile was only 14 years old. See Commonwealth v. Saez, 925 A.2d 776, 779-81 (Pa. Super. 2007) (juvenile court acted within its discretion in certifying 14-year-old juvenile to stand trial as an adult on charges of attempted murder, aggravated assault, terroristic threats, and other offenses, even though probation officer believed that juvenile was amenable to treatment in juvenile system; probation officer did not consider impact of offenses on victim and was unaware of details of offenses, juvenile court considered juvenile’s background and concluded that no alternative treatment facilities would be sufficient, and facts present in case included juvenile’s use of a gun, lack of empathy for victim, and accumulation of 104 unexcused absences from school during prior year).

      . On cross-examination, Dr. Lazaroff admitted that McEneaney is now 17. CHT, p. 44.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. McCoy

      Vram Nedurian Jr., for the Commonwealth.

      Patrick J. Connors, for defendant.
    January 15, 2008
   JENKINS, J.,

On March 25,2007, Reginald McCoy was charged with various assault offenses against his wife, Angela. On September 6, 2007, the Commonwealth filed informations charging him with simple assault, terroristic threats, reckless endangerment, endangering the welfare of children and resisting arrest. OnNovember 5,2007, McCoy entered a negotiated plea in which he pled guilty to simple assault in exchange for a sentence of 9-23 months in county prison with eligibility for immediate work release. N.T., 11/5/07, p. 13. In the course of this hearing, he reviewed and signed a comprehensive guilty plea statement that defined the rights he was waiving by pleading guilty. N.T., 11/5/07, p. 10. The court incorporated the signed guilty plea statement into the record. N.T., 11/5/07, p. 10.

On December 5,2007, McCoy filed a timely notice of appeal. On the same date, the court ordered him to file a concise statement of matters complained of on appeal within 21 days. On December 26, 2007, he filed a timely concise statement in which he raised one issue: “The guilty plea... was not knowingly, voluntarily and intelligently entered, since it was never adequately explained to [him] that he had a right to confront his accuser at trial.” The court finds this issue meritless and recommends that its judgment of sentence be affirmed.

In order to withdraw a guilty plea after sentencing, the defendant must show that the court, by denying withdrawal, would be permitting a manifest injustice. Commonwealth v. Gunter, 565 Pa. 79, 84, 771 A.2d 767, 771 (2001). Such a manifest injustice occurs when the defendant does not tender his plea knowingly, intelligently, voluntarily, and understandingly. Id. To determine the voluntariness of the plea and whether the defendant acted knowingly and intelligently, the trial court must, at a minimum, inquire into the following six areas:

“(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
“(2) Is there a factual basis for the plea?
“(3) Does the defendant understand that he has a right to trial by jury?
“(4) Does the defendant understand that he is presumed innocent until he is found guilty?
“(5) Is the defendant aware of the permissible ranges of sentences and/or fines for the offenses charged?
“(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?” Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). (citation omitted)

The court may conduct this examination, or it may permit defense counsel or the attorney for the Commonwealth to do so. Id.; Pa.R.Crim.P. 590(b)(2) and comment. Importantly, the examination does not have to be solely oral. It is permissible to use a written colloquy that the defendant reads, completes, and signs and that is also incoiporated into the record and supplemented by some on-the-record oral examination. McCauley, supra, 797 A.2d at 922.

McCoy’s attack upon his guilty plea hearing fails for two reasons. First, the issue that McCoy claims should have been addressed during his hearing — his right to confront his accuser(s) at trial — is not one of the six subjects deemed essential for a valid plea. McCauley. Second, assuming that this issue was essential for a valid plea, it was covered in paragraph 8 of his written guilty plea statement, which states: “I understand and my lawyer has explained to me that if I plead not guilty and have a trial. . . [t]he Commonwealth must present evidence and witnesses who testify under oath and I or my lawyers can cross-examine or ask questions of these witnesses.” The content of this paragraph adequately informed McCoy of his right of confrontation. Moreover, he clearly understood this provision, since (a) he read and initialed it and signed the guilty plea statement at the end, (b) the guilty plea statement was incorporated into the record, N.T., 11/5/07, p. 10, and (c) the guilty plea statement was supplemented by on-the-record oral examination, N.T., 11/5/07, pp 5-12. See also, McCauley, supra, 797 A.2d at 922 (permitting use of written colloquies that supplement on-the-record oral examination).

For these reasons, McCoy has failed to demonstrate that his guilty plea and sentence is the product of manifest injustice. To the contrary, he knowingly, voluntarily and intelligently waived his right to confront his accuser(s) at trial. His judgment of sentence should be affirmed.


author:
BROWN JR., S.J.,
     BROWN JR., S.J.,

text:
    Commonwealth v. Grosso

      Mark S. Smith, for Commonwealth.

      Richard Grosso, pro se.
    January 30, 2008
   BROWN JR., S.J.,

Before the court is defendant Richard Grosso’s PCRA petition, in the form of a petition to correct an illegal sentence, filed on October 5,2007. After a thorough review of the record, the court determines defendant’s petition is dismissed.

The instant petition must be treated as a petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546, as amended by Act 1995-32.

The PCRA is the sole means by which a defendant may obtain collateral relief. 42 Pa.C.S. §9542. The Superior Court adopted this same procedure in Commonwealth v. Hockenberry, 455 Pa. Super. 626, 689 A.2d 283 (1997), appeal denied, 548 Pa. 645, 695 A.2d 784 (1997), reasoning that since a motion to modify sentence must be filed within 10 days of the imposition of sentence, and a direct appeal from judgment of sentence must be filed within 30 days, the PCRA is the only vehicle for addressing legality of sentence beyond those time limits. Even within the PCRA, the time limits described in 42 Pa.C.S. §9545 have been held to apply to questions raising the legality of sentence. In Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999), our Supreme Court stated, “Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA’s time limits or one of the exceptions thereto.”

In order to be timely filed, a PCRA petition must be made within one year of the sentence becoming final. Petitioner’s sentence became final upon denial of his petition for allowance of appeal by the Pennsylvania Supreme Court on August 25, 1999. Furthermore, petitioner already had a PCRA petition before the court at the time he filed the present petition. Said PCRA petition has since been dismissed by order of this court on January 30, 2008.

Even if petitioner’s petition to correct an illegal sentence were timely, it would be dismissed for failure to raise an issue not previously raised or waived. 42 Pa.C.S. §9545(a)(3). In petitioner’s first PCRA petition, he raised the issue of an illegal sentence. This court denied that petition and that decision was subsequently upheld by the Superior Court.

If petitioner’s claim of an illegal sentence were not previously raised or waived, it would remain meritless. Petitioner alleges his sentence on May 17, 1993 was incorrectly calculated with regards to the previous record score applied to his sentences for kidnapping, aggravated assault, and robbery. The sentence for these offenses was calculated under the December 20,1991 first revision to the third edition of the Pennsylvania Sentencing Guidelines, 204 Pa. Code §§303.6-303.8, and was calculated for convictions arising out of separate transactions. 204 Pa. Code §303.6(b). The court determined, at the time of sentencing, that such a calculation was correct, and the court will not revisit that determination now. Furthermore, petitioner cited in his motion to a version of the sentencing guidelines, the fourth edition, which did not take effect until August 12, 1994, more than a year after his sentencing.

As there remains no issue to be decided by this court, petitioner’s motion for a writ of habeas corpus ad testificandum is denied as moot.

Accordingly, the following is entered:

ORDER

And now, January 30, 2008, it is hereby ordered that defendant/petitioner Richard Grosso’s “motion to correct illegal sentence” is dismissed. Petitioner’s motion, which he filed pro se, is for all intents and purposes an attempt to petition the court for post-conviction collateral relief pursuant to 42 Pa.C.S. §§9541-9546.

In addition to procedural defects, the motion is untimely as post-conviction collateral proceedings must be initiated by filing such petitions within one year of the date judgment becomes final. 42 Pa.C.S. §9545. Moreover, petitioner’s filing does not fall within any of the enumerated exceptions under 42 Pa.C.S. §9545(b) (i-iii).

Petitioner’s motion for a writ of habeas corpus ad testificandum is denied as moot.

Petitioner Richard Grosso has the right to appeal from this order within 30 days from entry of this order.

The prothonotary is directed to submit a copy of this order to petitioner Richard Grosso by certified mail, return receipt requested, pursuant to Pennsylvania Rule of Criminal Procedure 907(4).

BROWN JR., S.J.,

January 30, 2008 — Before the court is petitioner Richard Grosso’s post conviction collateral relief petition. After a thorough review of the record and review of Attorney Ronald McGlaughlin’s Turner/Finley withdrawal letter, the court is satisfied there are no genuine issues concerning any material fact.

By order dated January 24, 2006, the court informed petitioner of its intent to dismiss his petition without a hearing, pursuant to Pa. R.Crim.P. 907. Petitioner filed a pro se appeal to the Pennsylvania Superior Court on February 8, 2006. On August 29, 2006, petitioner’s appeal was quashed by order of the Superior Court for having been taken from an interlocutory (non-appealable) order. The 20-day notice period required by Pa. R.Crim.P. 907 having passed, the court will now proceed with its dismissal of petitioner’s PCRA petition.

DISCUSSION

In the above-captioned case of 1991-0536, petitioner raises the issues of ineffective assistance of counsel, prosecutorial misconduct, trial court error, illegal sentence, and a proceeding in a tribunal without jurisdiction. In the above-captioned case of 1991-0537, petitioner raises the issue of proceeding in a tribunal without jurisdiction.

Petitioner is required to file a petition for post-conviction collateral relief within one year from the date the judgment of sentence becomes final, or, otherwise, must invoke one of three exceptions. 42 Pa.C.S. §9545(b). The Pennsylvania Superior Court denied petitioner’s first PCRA petition by order on February 1,1999. Apetition for allowance of appeal of this order was filed and denied by the Pennsylvania Supreme Court on August 25, 1999.

Any PCRA petition must be filed within one year of the date the judgment becomes final, unless petitioner alleges and proves one of the three exceptions provided in 42 Pa.C.S. §9545(b)(l). It is the petitioner’s burden to plead and prove one of the exceptions apply. Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258 (1999). PCRA timeliness requirements are jurisdictional, and, therefore, a PCRA court cannot hear an untimely petition. Commonwealth v. Rienzi, 573 Pa. 503, 827 A.2d 369 (2003).

Petitioner filed his first PCRA petition on November 29,1994, combining challenges to separate convictions from two criminal episodes into one single petition. Petitioner’s PCRA petition was denied by the Superior Court on February 1, 1999. In case no. 1991-536, petitioner filed a PCRA petition on October 20,2004. In case no. 1991-537, petitioner filed a PCRA petition on April 19,2005. These petitions are well beyond the requirement to file within one year of the date the judgment becomes final. Consequently, petitioner’s petitions are untimely under 42 Pa.C.S. §9545(b)(l).

Petitioner alleges one of the three exceptions provided in 42 Pa.C.S. §9545(b)(l). Petitioner claims his failure to timely raise the claims contained in the PCRA petition was due to interference by government officials with the presentation of the claim in violation of the constitutional laws of this Commonwealth, or the constitutional laws of the United States. 42 Pa.C.S. §9545(b) (l)(i). As set forth in the 1991-536 petition, petitioner maintains that during his transfer to the restrictive housing unit at SCI-Greene, the department of corrections lost certain materials belonging to petitioner which prevented him from filing a timely PCRA petition.

On December 28,2001, petitioner was escorted to the restrictive housing unit and placed on administrative custody status. Petitioner alleges that at this time his property was not given to him and was, in fact, lost. However, as previously stated, the Superior Court denied petitioner’s PCRA petition on February 1, 1999. The materials were not misplaced until after the one-year period in which petitioner had to file a PCRA petition. Therefore, the misplacement of the materials in December 2001, is irrelevant.

Petitioner further seeks to raise the issue of “tribunal without jurisdiction.” Petitioner argues the opinion filed by the Superior Court on February 1,1999, affirming the trial court’s denial of his PCRA petition, was issued by the Western District of the Superior Court of Pennsylvania. He further argues it was to be issued by the Middle District of Pennsylvania. The division of the state into districts is merely for the convenient transaction of business. Commonwealth ex rel. Middleton v. The Commissioners of Allegheny County, 37 Pa. 237 (1860). Therefore, the decision of the Superior Court was properly issued.

The remaining issues petitioner raises in his second PCRA petition are all the same issues he raised in his first PCRA petition, which was denied by this court. That decision was affirmed by the Superior Court. To be eligible for relief under the PCRA the issue raised must be one that was not previously raised or waived. 42 Pa.C.S. §9545(a)(3).

Accordingly, the following is entered:

ORDER

And now, January 30, 2008, the following is hereby ordered:

Upon consideration of petitioner Richard Grosso’s second petition for post-conviction collateral relief in 1991-0536 and after a thorough review of the record in the above-captioned case, the court determines there are no genuine issues concerning any material facts. Therefore, said petition is dismissed.

Upon consideration of petitioner Richard Grosso’s second petition for post-conviction collateral relief in 1991-0537 and after a thorough review of the record in the above-captioned case, the court determines there are no genuine issues concerning any material facts. Therefore, said petition is dismissed.

Petitioner Richard Grosso has the right to appeal from this order within 30 days of entry of this order.

The prothonotary is directed to submit a copy of this order to petitioner Richard Grosso by certified mail, return receipt requested, pursuant to Pennsylvania Rule of Criminal Procedure 907(4).


author: MELLON, J.,

text:
    Lucciotti v. American Management Advisors Inc.

      Peter Heilman, for plaintiff.

      AdamShapiro, for defendant.
    November 6, 2007
   MELLON, J.,

FINDINGS OF FACT

(1) Plaintiff Robert Lucciotti was director of underwriting for defendant American Management Advisors Inc. (AMA) pursuant to a series of contracts between 1993 and 2004.

(2) At all times relevant, AMA was involved in the acquisition, underwriting and servicing of intercollegiate sports insurance policies.

(3) As director of underwriting plaintiff’s duties included: “underwriting for applications on the behalf of various insurance companies, for college sports insurance, college accident and sickness insurance, college major medical insurance, special sports and activities insurance, [and] student accident insurance (grades K-12).”

(4) Plaintiff’s underwriting efforts took place from January to August of each year.

(5) Pursuant to the agreement between plaintiff and AMA, and inherent in the collegiate insurance industry, there was a delay between when policies were placed and the payment of premium income to AMA.

(6) Plaintiff placed policies with colleges, and income attributable to those policies was paid over the course of the school year. As a result, AMA’s internal accounting was done on an accrual basis; from September to August.

(7) Plaintiff drafted proposals and submitted them for approval by insurance companies. Once approved, the colleges incorporated the cost of the policies into tuition. Then, as students paid their tuition in August and December, the colleges would remit payment for the policies to AMA.

(8) Pursuant to their agreement, plaintiff and AMA customarily met each September to tabulate plaintiff’s final compensation based on collected income attributable to the prior school year’s underwriting effort.

(9) Plaintiff surrendered his insurance license on May 21, 2001 following convictions for crimes in violation of the Violent Crimes Control and Law Enforcement Act of 1994.

(10) Pursuant to the terms and conditions of a consent order issued under the authority of the Insurance Commissioner of the Commonwealth of Pennsylvania plaintiff’s ability to work in the insurance industry was limited.

(11) Violation of the consent order, either by plaintiff or AMA, carried financial penalties and possibly imprisonment.

(12) Pursuant to the contract between plaintiff and AMA dated May 25, 2001 (2001 contract), plaintiff’s duties were modified to permit him to continue in his capacity as director of underwriting without violating the consent order.

(13) The 2001 contract remained in effect until December 31, 2003.

(14) Plaintiff and AMA executed a contract (2004 contract), effective as of January 1,2004, wherein plaintiff’s compensation was to be calculated over a calendar year.

(15) The 2004 contract purported to expire on January 1, 2005.

(16) AMA terminated its relationship with plaintiff on August 9, 2004.

2001 Contract

(17) The 2001 contract provides a formula for the calculation of plaintiff’s compensation and bonus:

“Compensation shall be net profits (earned and received by AMA which are directly attributable to [plaintiff’s] efforts) less related expenses.” (emphasis added)

(18) The expense allocations prepared by AMA’s bookkeeper and audited by an outside certified public accountant that AMA used to calculate plaintiff’s compensation for the 2002-2003 school year are accurate.

(19) The expense allocations AMA applied against plaintiff’s compensation for the 2002-2003 and 2003-2004 school years are accurate.

(20) The reason that expense allocations increased was because AMA undertook an increased role in the maintenance and service of plaintiff’s accounts in conformity with the consent order.

(21) Plaintiff accepted and retained a check dated September 9, 2003 for $87,010 from AMA reflecting in its memo line: “Final 0203 YR”.

(22) From at least 1999 until 2003, pursuant to the terms of the effective contract and the accepted practice of the parties, plaintiff’s bonus was calculated on an accrual basis, beginning in September 1 and concluding on August 31.

(23) Plaintiff’s underwriting efforts for the 2003-2004 school year occurred between January and June of2003. Plaintiff’s 2003 underwriting efforts produced income for AMA between September 2003 and June 2004.

(24) AMA collected income from plaintiff’s 2003 underwriting efforts between September 2003 and June 2004. AMA did not, however, credit income received thereafter toward plaintiff’s bonus.

(25) Plaintiff received a $24,000 advance on his bonus through April of 2004, and a weekly draw totaling $126,000.

(26) AMA income for the 2003-2004 school year was $977,798.

(27) In the absence of documented expense allocations, $295,613 is an acceptable estimated expense allocation for plaintiff’s underwriting efforts for the 2003-2004 school year.

(28) Pursuant to the 2001 contract plaintiff is entitled to a $121,912 bonus for his underwriting efforts in the 2003-2004 school year.

2004 Contract

(29) On August 27,2003, Janet Hogeland sent plaintiff a letter advising him that the 2001 contract was not going to be renewed, but that AMA intended to renegotiate his contract.

(30) Plaintiff was under no pressure other than the impending threat of unemployment to execute the 2004 contract.

(31) Plaintiff read the terms of the 2004 contract and understood that executing it would likely decrease his future compensation.

(32) The 2004 contract provided a formula for the calculation of plaintiff’s compensation and bonus:

“AMA shall pay [plaintiff] an annual bonus no later than January 31 of each year for his performance in the preceding calendar year. The bonus shall be equal to 40 percent of AMA’s net profits from underwriting.
“Net profits from underwriting shall be determined by the following formula: Net profits from underwriting = Total revenue from [plaintiff’s] underwriting activities minus the sum of (i) direct costs, (ii) selling expenses, (iii) claim services fees, (iv) general administrative expenses multiplied by the expense ratio.”

(33) Janet Hogeland’s compilation of income and expenses attributable to plaintiff’s underwriting efforts for the 2004 calendar year based on a schedule of expenses prepared by an outside certified public accountant is accurate.

(34) Plaintiff’s underwriting efforts for calendar year 2004 resulted in a financial loss for AMA.

(35) The 2004 contract provides that deducted expenses would include both direct costs and a percentage of all general administrative expenses. AMA has presented a list of general administrative expenses prepared by its outside CPA, and plaintiff has offered no credible testimony that the audited figures are incorrect. The court finds that the expenses used in determining plaintiff’s eligibility for a bonus for his 2004 underwriting efforts to be accurate.

(36) AMA correctly attributed all income received through December 31, 2004 to plaintiff. After applying expenses and plaintiff’s draw of $95,538.70 for seven months work, in addition to $24,000 advance already paid to plaintiff, against the income received by AMA for all of 2004, no additional bonus was due plaintiff.

(37) The 2004 contract provides:

Weekly draw. As compensation for [plaintiff]’s performance of the [underwriting] services, AMA shall pay [plaintiff] a weekly draw of $2,307.70 for each week during the term of this agreement. [Plaintiff]’s weekly draw shall be applied against his bonus and if the amount of the bonus is less than the draw which was paid, no additional payment shall be due; however, [plaintiff] shall not be liable to reimburse AMA for any such excess payment.”

(38) Pursuant to the 2004 contract, plaintiff is entitled to no further compensation for his underwriting efforts in the 2004 calendar year.

(39) AMA’s January 28, 2005 letter to plaintiff is accurate.

Restrictive Covenant

(40)The 2004 contract contains a restrictive covenant that provides:

“that for so long as [plaintiff] is an advisor or contractor to AMA and for two years thereafter (the restricted period), [plaintiff] will not directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as a partner, principal agent, representative, [plaintiff] or otherwise with or use or permit [plaintiff]’s name to be used in connection with, any business or enterprise engaged directly or indirectly in competition with the business of providing insurance, underwriting, MGA, TPA, or brokerage services to schools, colleges, universities, educational institutions, public bodies or entities, or local governments (the business) at any time during such period within any portion of the United States (and any other geographic area AMA expands into).”

(41) Before working as director of underwriting for AMA, plaintiff maintained clients, accounts, and contacts nationally which he brought with him to AMA.

(42) Plaintiff testified credibly that as of January 2005, he had several employment leads in the insurance industry, which were withdrawn when AMA notified the third parties of its intention to enforce the restrictive covenant.

(43) Plaintiff testified credibly that the Huffaker Agency and The Riley Group had “expressed interest in working with [him]”, and that Vonda White “wanted [him] to do underwriting for her.”

(44) Plaintiff’s claims for damages relating to AMA’s enforcement of the restrictive covenant are unsupported by the record.

CONCLUSIONS OF LAW

(1) When interpreting the language of a contract, the intention of the parties is a paramount consideration.

2001 Contract

(2) This court finds that plaintiff’s dispute over the expense allocation for the 2002-2003 school year was discharged under the doctrine of accord and satisfaction when plaintiff accepted and retained a check from AMA that stated: “Final 0203 YR”.

(3) This court finds that plaintiff failed to meet his burden in asserting that the expense allocation for the 2003-2004 school year is any other than that produced by AMA. Accordingly, the court accepts that expenses attributable to plaintiff’s underwriting efforts for the 2003-2004 school year totaled $295,613.

(4) This court finds that AMA materially breached the 2001 contract by failing to compensate plaintiff for the income AMA received after January 1,2004 attributable to his 2003 underwriting efforts

(5) This court finds that the language “earned and received” relating to the calculation of plaintiff’s compensation in the 2001 contract is ambiguous.

(6) This court finds that the intention of the parties, as evinced by their established practice, was to recognize income as “earned” upon the acceptance by the colleges of plaintiff’s underwriting proposals.

(7) This court finds that the intention of the parties, as evinced by their established practice, was to recognize income as “received” upon payment to AMA.

(8) This court finds that plaintiff became entitled to compensation when income was “earned”. AMA became bound to compensate plaintiff under the terms of the 2001 contract for his underwriting efforts once income was “received”.

(9) This court finds that plaintiff’s 2003 underwriting efforts entitle him to a bonus in accordance with the terms of the 2001 contract for the income that was paid to AMA after December 31, 2003.

2004 Contract

(10) This court finds that AMA did not materially breach the 2004 contract.

(11) This court finds that plaintiff was not under duress when he executed the 2004 contract.

(12) This court finds that plaintiff consented to the tabulation of his compensation in accordance with the terms of the 2004 contract.

Restrictive Covenant

(13) This court finds that the restrictive covenant provided by the 2004 contract is invalid and unenforceable.

(14) This court finds that the restrictive covenant was not accompanied by a corresponding benefit to the plaintiff, nor supported by other contemporaneous consideration.

(15) This court finds that the damages claimed by plaintiff for AMA’s wrongful enforcement of the restrictive covenant sustained when the Huffaker Agency, and The Riley Group withdrew their “expressed interest” and Vonda White withdrew her desire to do business with plaintiff are too speculative to be recoverable.

DISCUSSION

A. This Court Finds That AMA Breached the 2001 Contract

When interpreting the language of a contract, the intention of the parties is a paramount consideration. In determining the intent of the parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language of the contract was chosen carelessly. On the contrary, the terms of a contract are ambiguous if the terms are reasonably or fairly susceptible of different constructions and are capable of being understood in more than one sense. Where the agreement is ambiguous, parol evidence is admissible to ascertain the intent of the parties. In addition, the parol evidence rule does not apply in its ordinary strictness where the existence of a custom or usage to explain the meaning of words in a writing is concerned.

This court is charged to ascertain the intent of the parties under the 2001 contract as it relates to plaintiff’s compensation. Therefore, the court first examines the language of the 2001 contract. The 2001 contract provides: “Compensation shall be net profits (earned and received by AMA which are directly attributable to [plaintiff’s] efforts) less related expenses.” (emphasis added)

This court deems the language “earned and received” ambiguous because it is reasonably susceptible of different interpretations. AMA asserts that “earned and received” are two necessary elements and plaintiff’s entitlement only vests when both elements coalesce during the effective term of the 2001 contract. Not surprisingly, plaintiff maintains a different interpretation of “earned and received”. Plaintiff contends that income is “earned” upon the acceptance by the college of the underwriting proposal. According to plaintiff, when the proposal is accepted it was the intent of the parties to acknowledge his future entitlement to compensation for income that would eventually flow from that accepted proposal. Plaintiff concedes, however, that AMA’s duty to compensate him for that income exists only once AMA actually “receives” the income. Plaintiff’s interpretation of “earned and received” essentially amounts to accrual-based compensation.

The evidence supports plaintiff’s construction of “earned and received”. Since the language is ambiguous, it is appropriate for this court to examine the accepted practices of the parties to ascertain their intentions. First, the parties concede that there was a delay between when policies were effective and the payment of premium income to AMA. As a result, AMA’s internal accounting was done on an accrual basis; from September to August. Following the collection of all premium income by AMA for the preceding school year, it was the custom of the parties to convene each September to tabulate plaintiff’s final compensation. Accordingly, the intent of the parties was to compensate plaintiff for the performance of his 2003 underwriting services upon AMA’s receipt of income attributable to that performance pursuant to the 2001 contract, even if the 2001 contract had expired.

In determining whether a failure of performance is material, consideration is properly given to the following factors: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for that part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or offer to perform comports with standards of good faith and fair dealing.

AMA materially breached the 2001 contract by withholding compensation that plaintiff was entitled to under the 2001 contract. Arguably, the sole incentive for plaintiff’s execution of the 2001 contract was financial gain. Moreover, AMA’s failure to perform is not justified by any evidence of record. In determining that AMA’s failure to compensate plaintiff constitutes a material breach, the court considered that: (a) plaintiff reasonably expected to be compensated for his services rendered; (b) plaintiff can be adequately compensated for his 2003 underwriting efforts; (c) AMA will not suffer forfeiture by compensating plaintiff; (d) AMA’s assertion that plaintiff is entitled to no further compensation for his 2003 underwriting efforts suggests that plaintiff will likely not receive the compensation to which he is entitled without the court’s intervention; (e) AMA’s conduct does not comport with standards of good faith and fair dealing. Upon consideration of the foregoing factors, this court finds that AMA materially breached the 2001 contract.

The intention of plaintiff and AMA in executing the 2001 contract, as demonstrated by their accepted practices, was to compensate plaintiff for his performance on an accrual basis. AMA’s failure to compensate plaintiff for income it received after December 31, 2003 attributable to his 2003 underwriting efforts runs contrary to that intention. Therefore, AMA’s failure to compensate plaintiff $121,912, to which he is entitled under the 2001 contract, constitutes a material breach of the 2001 contract.

B. This Court Finds That AMA Did Not Breach the 2004 Contract

Pursuant to the rule stated in section A, supra, AMA did not breach the 2004 contract. The dispute arises from plaintiff’s contention that he is entitled to further compensation under the 2004 contract for his performance in 2004 calendar year. The 2004 contract provides:

Weekly draw. As compensation for [plaintiff]’s performance of the [underwriting] services, AMA shall pay [plaintiff] a weekly draw of $2,307.70 for each week during the term of this agreement. [Plaintiff]’s weekly draw shall be applied against his bonus and if the amount of the bonus is less than the draw which was paid, no additional payment shall be due; however, [plaintiff] shall not be liable to reimburse AMA for any such excess payment.”

Plaintiff asserts that AMA assigned excessive expense allocations to his accounts, and that his accounts produced income for AMA for which he is entitled to a bonus. AMA contends that it correctly attributed all income received through December 31, 2004 to plaintiff. This court agrees with AMA. Plaintiff has proffered insufficient evidence to support the contention that he is entitled to additional compensation. After applying expenses and plaintiff’s draw of $95,538.70 for seven months work, in addition to $24,000 advance already paid to plaintiff, against the income received by AMA for all of 2004, AMA was correct in calculating that no additional bonus was due plaintiff.

The plaintiff was not under duress when he executed the 2004 contract. Duress has been defined as that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness. The record is devoid of any evidence that suggests plaintiff was restrained or apprehended any degree of danger rising beyond the threat of pecuniary injury. Plaintiff admits that he was under no pressure other than the impending threat of unemployment to execute the 2004 contract. Therefore, plaintiff was not under duress when he executed the 2004 contract.

Plaintiff has failed to prove that the 2004 contract was executed under duress, or support his mere assertions of AMA’s excessive charges with credible evidence. Therefore, plaintiff has failed to prove that AMA breached the 2004 contract.

C. This Court Finds That the Restrictive Covenant in the 2004 Contract Is Invalid and Unenforceable, But Plaintiff’s Damages Are Too Speculative To Be Recoverable

In order to be enforceable, restrictive covenants must satisfy three requirements: (1) the covenant must relate to either a contract for the sale of good will or other subject property or to a contract of employment; (2) the covenant must be supported by adequate consideration; and (3) the application of the covenant must be reasonably limited in both time and territory.

Where a restrictive covenant is executed subsequent to the initial employment, its performance will not be enforced unless the employee who restricts himself receives a corresponding benefit or change in status. The mere continuation of employment does not constitute adequate consideration for a restrictive covenant.

The restrictive covenant at issue is invalid and unenforceable for want of adequate consideration. Since the restrictive covenant was executed subsequent to plaintiff’s initial employment, adequate consideration could have been constituted by plaintiff’s enjoyment of a corresponding benefit. The evidence and the 2004 contract clearly indicate, however, that if execution of the 2004 contract was designed to change plaintiff’s status at all, it served to diminish it. The compensation formula in the 2004 contract recites an expense ratio absent in plaintiff’s preceding contracts that apportions a higher cost to plaintiff for daily operations. Since neither plaintiff’s continuation of employment nor his diminished status constitutes adequate consideration for the subject restrictive covenant, the subject covenant is unenforceable.

Geographically unlimited restrictive covenants militate against enforcement because they indicate an intent to oppress the employee and/or to foster a monopoly, either of which is an illegitimate purpose. Our law permits equitable enforcement of restrictive covenants only so far as reasonably necessary for the protection of the employer.

Finally, the third element of an enforceable restrictive covenant, reasonableness of time and territory is absent in the subject covenant. Reasonableness in the instant case depends on whether the covenant was aimed at protecting of AMA’s legitimate business interests. Execution of the restrictive covenant purports to limit plaintiff during his relationship with AMA and for two years thereafter “within any portion of the United States (and any other geographic area AMA expands into).” Such a broad territorial constraint was unnecessary for the protection of AMA’s legitimate business interests because plaintiff brought many accounts, clients, and contacts from across the country with him when he began working for AMA.

The breach of restrictive covenants necessarily involves damages which are difficult to calculate with absolute precision. However, a mere possibility that the plaintiff might have made a profit if the defendant had kept his contract will not justify damages based on the assumption that a profit would have been made. What the law does require in cases of this character is that the evidence shall with a fair degree of probability establish a basis for the assessment of damages.

Plaintiff claims he sustained $149,000 in economic losses when prospective clients withdrew their “expressed interest” in working with him upon their receipt of AMA’s letter informing them of the pending restrictive covenant. Such a contention, without further evidentiaiy support, does not with a fair degree of probability establish a sufficient basis for the assessment of damages.

Accordingly, this court finds that the restrictive covenant imposed upon plaintiff by execution of the 2004 contract is invalid and unenforceable because it lacks adequate consideration and is unreasonable in territorial scope. However, plaintiff has failed to submit evidence on which to establish a sufficient basis for the assessment of damages, and therefore is not entitled to recovery.

Wherefore, it is the verdict of this court that judgment is entered in favor of the plaintiff and against the defendant in the amount of $121,912.

      . See pl.’s exhibit no. 3. May 15, 2001 agreement between AMA and Robert Lucciotti.

      . CT 1 p. 13 lines 1-3.

      . CT 1 p. 12 lines 18-25; p. 13 lines 1-7.

      . CT 1 p. 13 lines 10-24; p. 20 lines 16-25.

      . CT 1 p. 12 lines 18-25; p. 13 lines 1-23.

      . CT 1 p. 20 lines 22-25; p. 21 lines 1-2.

      . CT 1 p. 78 lines 15-18; see deft’s exhibit no. 3. Consent order; 18 U.S.C. § 1033(e)(1)(b) (2000).

      . See deft’s exhibit no. 3.

      . CT2 p. 63 line 25; p. 64 lines 1-15.

      . See deft’s exhibit no. 4. Consulting agreement between AMA and Robert Lucciotti.

      . id.

      . CT 1 p. 14 lines 22-24.

      . See pl.’s exhibit no. 3. May 15, 2001 agreement between AMA and Robert Lucciotti.

      . See deft’s exhibits nos. 18 and 19.

      . CT2 p. 37 line 19 — p. 50 line 22.

      . CT2 p. 64 lines 20-25; p. 65 lines 1-14.

      . See CT 1 p. 93 lines 1-16; see deft.'s exhibit no. 2. Photocopy of check payable to Robert Lucciotti.

      . CT 2 p. 19 lines 12-24; p. 20 lines 1-2.

      . CT 2 p. 24 lines 24-25; p. 25 lines 1-2.

      . CT 2 p. 26 lines 5-25.

      .CTlp.43 lines 12-23.

      . CT 1 p. 44 lines 12-13; see pl.’s exhibit no. 15.

      . See pl.’s exhibit no. 15.

      . CT 1 p. 35 lines 8-24.

      . CT 1 p. 45 lines 1-4; seepl.’s exhibit no. 15.

      . See deft’s exhibit no. 1.

      . CT 1 p. 57 lines 24-25; p. 58 lines 1-2.

      . CT 1 p. 59 lines 2-7.

      . See deft’s exhibit no. 4 at ¶2(6).

      . See deft’s exhibit nos. 17 and 18.

      . See deft’s exhibit no. 17.

      . See deft’s exhibit nos. 17 and 18.

      . See deft.’s exhibit no. 4 at |2(a).

      . See deft.’s exhibit no. 5. January 28, 2005 letter from AMA to Robert Lucciotti.

      . See deft’s exhibit no. 4 a^5(a). Restrictive covenant.

      . CT 1 p. 6 lines 14-22.

      . CT 1 p. 52 line 12 — p. 56 line 25; see pl.’s exhibits nos. 8-10. Letters transmitted by AMA to prospective clients of plaintiff advising about.pending restrictive covenant.

      . CT 1 p. 53 lines 18-25; p. 54 lines 1-6.

      . CTlp. 53 lines 21-23.

      . Profit Wize Marketing v. Wiest, 812 A.2d 1270 at 1275 (Pa. Super. 2002).

      . Accord and satisfaction is constituted where there is: (1) a disputed amount; (2) a clear and unequivocal offer of payment in full satisfaction and; (3) acceptance and retention of payment by the offeree. Fleming v. CNA Ins. Co., 52 F. Supp.2d 499 at 502 (E.D. Pa. 1999) (applying Pennsylvania law).

      . Oak Ridge Construction Co. v. Tolley, 351 Pa. Super. 32 at 41, 504 A.2d 1343 at 1348 (1985) (adopting Restatement (Second) of Contracts §241).

      . Profit Wize Marketing v. Wiest, 812 A.2d 1270 at 1275 (Pa. Super. 2002).

      . In the absence of an express provision to the contrary, custom or usage, once established, is considered a part of a contract and binding on the parties though not mentioned therein, the presumption being that they know of and contracted with reference to it. Resolution Trust Corp. v. Urban Redevelopment Authority of Pittsburgh, 536 Pa. 219 at 226, 638 A.2d 972 at 976 (1994).

      . See n.42 and accompanying text.

      . Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 233 A.2d 519 (1967).

      . Maintenance Specialties Inc. v. Gottus, 455 Pa. 327 at 331, 314 A.2d 279 at 282 (1974).

      . Id. at 330, 314 A.2d at 281.

      . Aiken Industries Inc. v. Estate of Wilson, 477 Pa. 34 at 42, 383 A.2d 808 at 812 (1978).

      . Profit Wize Marketing v. Wiest, 812 A.2d 1270 at 1275 (Pa. Super. 2002).

        .Id.

      . Id.

      . Resolution Trust Corp. v. Urban Redevelopment Authority of Pittsburgh, 536 Pa. 219 at 225-26, 638 A.2d 972 at 975 (1994).

      . Id.

      . See pl.’s exhibit no. 3\

      . “Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred that fix the right to receive the income and the amount of the income can be determined with reasonable accuracy.” 26 Fed. Reg. §1.446-1.

      . CT 1 p. 12 lines 18-25; p. 13 lines 1-7.

      . CT 1 p. 13 lines 10-24; p. 20 lines 16-25.

      . CT 1 p. 20 lines 22-25; p. 21 lines 1-2.

      . Oak Ridge Construction Co. v. Tolley, 351 Pa. Super. 32 at 41, 504 A.2d 1343 at 1348 (1985) (adopting Restatement (Second) of Contracts §241).

      . See deft.’s exhibit no. 4 at ¶2(a).

      . See deft’s exhibit no. 5. January 28, 2005 letter from AMA to Robert Lucciotti.

      . Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 233 A.2d 519 (1967).

      . CT 1 p. 57 lines 24-25; p. 58 lines 1-2.

      . Maintenance Specialties Inc. v. Gottus, 455 Pa. 327, 331, 314 A.2d 279, 282 (1974); Hess v. Gebhard & Co. Inc., 570 Pa. 148, 808 A.2d 912 (2002).

      . Gottus, 455 Pa. at 330, 314 A.2d at 279.

      . George W. Kistler Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975) (rejecting lower court’s view that employment itself constituted consideration as past consideration); Arthur J. Gallagher & Co. v. Reisinger, 2007 WL 1877895 at 9 (W.D. Pa. 2007).

      . See deft.’s exhibit no. 4 at ¶2(c)(5).

      . Sidco Paper Company v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976).

      . Id.

      . See deft.’s exhibit no. 4 at ¶5(a). Restrictive covenant.

      . CT 1 p. 6 lines 14-22.

      . Aiken Industries Inc. v. Estate of Wilson, 477 Pa. 34 at 42, 383 A.2d 808 at 812 (1978).

      . Id.

        . See deft.’s exhibit no. 9. Damages of Robert Lucciotti.