author: DOWLING, J.,

text:
    Kalenevitch v. Finger

      Joseph M. Melillo, for plaintiffs.

      Richard H. Wix, for defendant.
    July 19, 1990
   DOWLING, J.,

Plaintiffs, having received a verdict which they obviously feel is insufficient, but which they apparently realize is not so low as to shock the court’s conscience, asked for a new trial on damages, because of alleged error in permitting a witness to testify to statements máde by the injured plaintiff which contradict her allegations of continual pain.

Joyce Kalenevitch was referred by Dr. Arnold Sheinvold, a licensed psychologist, for stress/pain management, and her therapy was delegated to one Doris Fahs, a nurse with psychiatric training employed by Dr. Sheinvold. In the course of her therapeutic sessions, the plaintiff talked about her pain and accompanying stress, indicating that some days she .was free of pain, and that much of her stress was due to an unrelated situation. She told Ms. Fahs that she was much improved and that her neck was better, and made various other statements which minimized her damage claim. This was directly contrary to Mrs. Kalenevitch’s testimony that she had more or less continuous pain. Ms. Fahs, over objection, was permitted to testify to these highly relevant admissions.

It is plaintiffs position that the comments made by Mrs. Kalenevitch to Dr. Sheinvold’s nurse were privileged under the Act of July 9, 1976, P.L. 586, 42 Pa.C.S. §5944, which states:

“§5944. Confidential communications to licensed psychologists
“No person who has been licensed under the Act of March 23, 1972 (P.L. 136, no. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.”

At the time of trial, we ruled that the statute must be narrowly construed and applied to a licensed psychologist only, not to his agents or employees. Having now had the luxury of reflecting on the matter at leisure and researching it more fully, we find that we erred; and since the erroneously admitted testimony was, in our opinion, seriously detrimental to the plaintiffs injury claim, we must award a new trial.

As Wigmore has pointed out, the principle of privilege is an exception to the general rule that every person is responsible for giving testimony upon all relevant facts into which a court of law may inquire. He opines that the fundamental criteria for recognizing the shield of privilege should be that “the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.”

Were this the test, we would have no hesitance in upholding our trial decision', for we feel strongly that, in this case, the greater injury derived from keeping this vital evidence from the fact finders. But the legislature, in its infinite wisdom, has spoken, and our interpretation, or rather reinterpretation, of the statute now reveals that it applies not only to licensed psychologists, but to their assistants as well. Our research has disclosed that only one appellate decision is relevant. In Commonwealth v. Kyle, 367 Pa. Super. 484, 533 A.2d 120 (1987), the defendant, charged with rape and related offenses, sought access to a psychologists’s file, through pretrial discovery, for any information concerning treatment of the victim after the crime. It was held that this material was barfed by the psychologist-client privilege. The court spoke of the privilege as an absolute one, and held that the interests of the defendant in learning of testimony favorable to his case was not sufficient to overcome the desirability of maintaining confidentiality between a psychologist and his client. It is thus argued by plaintiffs, and with some logic, that the right of a criminal defendant to such psychological information was certainly as great, if not greater, than that of a personal injury defendant in a civil case.

The case at hand, of course, does not concern a licensed psychologist, but rather his agent and employee, to whom he delegated a portion of his therapeutic work, and thus the narrow issue is whether the legislature intended the statute to apply to psychologists’ agents. It would appear that the statute itself supplies the ' answer, since it equates the confidential relationship between a psychologist and his client with those between an attorney and a client. In decisions concerning the latter group, it seems clear that the privilege would extend to Ms. Fahs, for it has been held to include attorneys, law clerks, stenographers, and investigators. See Commonwealth v. Hutchinson, 290 Pa. Super. 284, 434 A.2d 740 (1981), as well as Miller v. Haulmark Transport Systems, 104 F.R.D. 442 (E.D. Pa. 1984); United States v. Calaria, 614 F.Supp. 187 (E.D. Pa. 1985); Davne v. Investment Corp. of America, 82 F.R.D. 484 (E.D. Pa. 1979). See also, Wigmore, section 2301. Defendant argues that “it is incredulous [sic] to assert that when the legislature enacted this psychologist-patient statute in 1976, that [sic] it intended the privilege to apply to agents of psychologists,” pointing out that when the psychologist-patient privilege was enacted, the attorney-client privilege did not apply to agents of attorneys. However, defendant overlooks the fact that this statute was amended in 1989 to include psychiatrists, as well as psychologists, and yet retained the same parallel reference to the attorney-client privilege. And, of course, the logic of such an extension is unassailable. If the purpose is to serve the privacy interests of the client so that the goal of effective treatment will not be impaired, it follows that it must include the psychologists’ agents.

Unfortunately, the statute does not embody Wig-more’s balancing test. While a trial should be a search for the truth, by legislative mandate, we must now sacrifice this tool of justice in situations involving certain professions. As Francis. Bacon noted in his famous essay on the judiciary:

“Let judges also remember, that Solomon’s throne was supported by lions on both sides;
“Let them be lions, but yet lions under the throne.”

Accordingly, we enter the following •

ORDER

And now, July 19, 1990, plaintiffs are granted a new trial limited to the issue of damages only.

      . A figure of $10,831 for soft-tissue injury to Mrs. Kalenevitch’s neck and back as the result of a rear-end collision.

      . The issue of liability has been withdrawn.

      . Wigmore on Evidence (McNaughton Revision) §2285.

      . Act of December 22, 1989, P.L. 722.


source: Caselaw Access Project

author: OTT, J.,

license: Public Domain

text:
    Commonwealth v. Burton

      Mark S. Miller, assistant district attorney, for the commonwealth.

      Linda DiCiccio, for defendant.
    June 12, 1990
   OTT, J.,

Defendant appeals from the imposition of a mandatory sentence following his conviction by a jury on charges of violating The Controlled Substance, Drug, Device and Cosmetic Act.

PROCEDURAL HISTORY

On December 20, 1989, defendant was convicted by a jury of violating section 13(a)(30) of the Drug Act, relating to the possession of cocaine with intent to deliver it. The charge originated on October 30, 1988, when Norristown Borough police officers obtained a valid search warrant for defendant’s automobile and recovered therefrom 103 plastic bags and 137 plastic vials containing in excess of 55 grams of cocaine. The admissibility of this evidence was established at a pretrial suppression hearing. Following the jury’s verdict, no post-trial motions were filed. Prior to sentencing, the commonwealth filed notice of its intention to proceed under the mandatory sentencing provisions set forth at 18 Pa.C.$. §7508(a)(3)(ii), regarding possession of between 10 and 100 grams of cocaine.

At the sentencing hearing held April 6, 1990, defendant challenged the propriety of imposing any mandatory sentence. He argued that the commonwealth, by adopting a temporary policy of pursuing mandatory penalties against defendants who proceeded to trial but not against those who tendered open guilty pleas, had engaged in an unconstitutional practice. Despite this assertion, defendant produced no evidence to establish either the existence of such a policy of its unconstitutionality under the circumstances of this case. Following argument, defendant was sentenced to serve a prison term of three to seven years and to pay a fine of $15,000 as mandated by the sentencing statute. Defendant filed a motion to reconsider the sentence which was denied without a hearing. He now appeals to Superior Court.

ISSUE

Defendant’s statement of matters complained of filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) raises a single issue. Did a temporary policy of the Montgomery County District Attorney, to forego pursuit of mandatory drug trafficking sentences against defendants proffering open guilty pleas, violate constitutional law? ■

DISCUSSION

During the argument phase of the sentencing hearing, defendant’s counsel suggested that to sentence defendant in accordance with the provisions of the mandatory sentencing statute would violate constitutional law. This argument was not related to any specific constitutional provision. Instead, counsel suggested, in general terms, that a temporary policy of the Montgomery County District Attorney’s Office imposing a moratorium on the commonwealth’s pursuit of mandatory sentences against drug traffickers who tendered open guilty pleas, created an issue of constitutional dimension as to those defendants who'elected to go to trial.

We are constrained to note initially that the issue has not been properly raised or preserved. The transcribed notes of testimony from the sentencing hearing do not include the arguments of counsel and hence, at present, the record is silent on the issue. This defect cannot be cured by transcribing the argument. A defendant who insists the government has engaged in a constitutionally infirm prosecution, such as purposeful discrimination or selective prosecution, bears the burden of proving such facts as would establish the defense. United States v. Schoolcraft, 879 F.2d 64 (3d Cir. 1989); United States v. Torquato, 602 F.2d 564 (3d Cir. 1979), cert. denied, 444 U.S. 941 (1979). Because of the failure to offer testimony on this issue, the very existence of the policy in question has not been established of record. Moreover, its application, or lack thereof, to the circumstances of this case was never explored. Inasmuch as appellate arguments must be raised and preserved at each critical stage of the proceedings, Commonwealth v. Reeves, 378 Pa. Super. 29, 548 A.2d 260 (1988), the failure to establish the necessary record bars appellate consideration.

The argument is no more persuasive on the merits. Because defendant did not specify the constitutional provision allegedly violated, we can only speculate in this regard. Nevertheless, the most likely constitutional argument would involve a claim of selective or vindictive prosecution. Although this defense is usually raised in the context of a government’s decision to commence prosecution, or bring the initial charges, Commonwealth v. Butler, 367 Pa. Super. 453, 533 A.2d 105 (1987), we suspect defendant would analogize and seek a similar review as regards the government’s decision to invoke or not to invoke a mandatory sentencing provision.

A thorough analysis of this area of constitutional law was undertake)^ by our Superior Court in Butler, supra at 460-2, 533 A.2d at 108-9. There, President Judge Cirillo explained:

“In our criminal justice system, prosecutors have broad discretion as to whom to prosecute. United States v. Goodwin, 457 U.S. 368, 380, 102 S.Ct. 2485, 2492, 73 L.Ed.2d 74 (1982); Goodman v. Kennedy, 459 Pa. 313, 329 A.2d 224 (1974).

“Though the government enjoys wide discretion in making its prosecutorial decisions, that authority is not unfettered. As the Supreme Court has stated: ‘Selectivity in the enforcement of criminal law is . . . subject to constitutional constraints.’ United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979).

“Under the equal protection clause of the Fourteenth Amendment of the United States Constitution, the government must afford similarly situated persons similar treatment. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). Thus, the government may not prosecute someone based upon race, religion or another unjustifiable classification. Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 672. Nor in retaliation for the exercise of protected statutory and constitutional rights. Goodwin, 457 U.S. at 372, 102 S.Ct. at 2488, other citations omitted.

“Because it is constitutionally repugnant, selective prosecution constitutes a valid defense to a criminal charge. In order to establish a case of prosecutorial vindictiveness, the defendant must prove that: (1) others who are similarly situated to the defendant are not generally prosecuted for similar conduct; and (2) the defendant has been intentionally and purposefully singled out for prosecution for an invidious reason. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985).”

Defendant apparently suggests that the commonwealth sought to chill his constitutional right to a trial by announcing its intention to invoke mandatory sentencing provisions if a conviction were obtained. Stated differently, defendant insists that the commonwealth afforded a potential break only to those defendants who were willing to plead guilty. This does not constitute vindictive prosecution. It should be noted that defendants pleading guilty under these circumstances do not necessarily receive less than the applicable mandatory minimum sentence. The actual sentence, pursuant to an open plea, could be less than, equal to, or greater than that mandated by the statute. More importantly, such an arrangement is hardly less coercive or vindictive than the historically approved process of plea bargaining whereby a defendant may appropriately be offered a lesser sentence in exchange for a plea of guilty. Commonwealth v. Riggins, 232 Pa. Super. 32, 332 A.2d 521 (1974); Commonwealth v. Staley, 229 Pa. Super. 322, 324 A.2d 393 (1974). Finally, we note that the constitutionality of mandatory sentencing legislation generally, is no longer at issue in this commonwealth. Commonwealth v. Ross, 391 Pa. Super. 32, 570 A.2d 86 (1990).

Defendant was fairly convicted by a jury of possessing approximately 55 grams of cocaine with the. intent to deliver it. This much defendant concedes through his election not to file post-trial motions. Consequently, the sentence imposed was mandated by law and cannot now be challenged. The appeal should be dismissed.

      . Act of April 14, 1972, P.L. 233, no. 64, as amended December 4,1980, P.L. 1093, no. 186, §1, 35 P.S. §780-101 et seq.

      . This temporary policy or moratorium resulted from the uncertainty surrounding the interpretation and application of the mandatory sentencing provisions as construed by several trial courts. See, e.g., Commonwealth v. Stidham, 124 Montg. L. Rep. 321 (1990); Commonwealth v. Brookins, 3 D.&C. 4th 648 (1989). This uncertainty was eliminated by Superior Court’s decision in Commonwealth v. Lisboy, 392 Pa. Super. 411, 573 A.2d 222 (1990).

      . 18 Pa.C.S. §7508(b) requires that “reasonable notice of the commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.” Thus, the commonwealth’s election not to provide the mandated notice is the equivalent of not invoking the mandatory sentencing legislation. Failing to provide the requisite notice thus affords the trial court greater discretion in determining the appropriate sentence to be imposed.


author: SUBERS, J.,

text:
    In re Condemnation of Olson Property

      J. Peirce Anderson, for Whitpain Township.

      Albert C. Oehrle, for Margaret L. Olsen.

      Jeffrey B. Albert, for Rouse/Chamberlain Inc.
    May 21, 1990
   SUBERS, J.,

This matter is appellants’ appeal from the court’s order dismissing their preliminary objections. Appellants are condemnee, Margaret L. Olson, the owner of real property at 1098 Skippack Pike, Blue Bell, Pennsylvania, and the equitable owner, Rouse/Chamberlain Inc. The appellee is Whitpain Township, a township of the second ciass situated in Montgomery County, Pa.

On September 5, 1985, the township filed a declaration of taking for the Olson property. On October 4, 1985, Olson’s preliminary objections to the declaration of taking were sustained. On May 26, 1988, the township’s Board of Supervisors enacted ordinance 181, which declared the intention to condemn 42.7 acres of the Olson property in order to expand public buildings and parks and to create open space and recreational facilities. On July 29, 1988, Olson entered into an agreement of sale with Rouse/Chamberlain for approximately 49.9 acres of land, which included the acres subject to ordinance 181. Under the agreement, the sale was conditioned upon a successful challenge to the condemnation of the property.

On October 3, 1988, the township filed a second declaration of taking of the Olson property. Preliminaiy objections were filed by the equitable owner on October 31, 1988 and by Mrs. Olson on November Í, 1988. A hearing was held before this court on June 5, 1989. On January 3, 1990, we dismissed the preliminary objections of appellants.

Appellants have filed their concise statements of matters complained of on appeal under Pennsylvania Rule of Appellate Procedure 1925(b), which provides as follows:

“Direction to file statement of matters complained of The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on (he trial judge a concise statement of the matters complained of in the appeal no later than 14 days after entry of such order.”

ISSUES

(1) Does the Second Class Township Code, 53 P.S. §6510Í, et seq., authorize the township to condemn land for recreational use?

(2) Did the municipality fail to establish a legal basis for taking 42.7 acres of the Olson property?

(3) Did the municipality fail to demonstrate a need to condemn property for recreational use?

(4) May a second class township condemn property for use as open space without showing how much land is needed?

DISCUSSION

Appellants contend that a township of the second class has no authority to condemn land for recreational purposes. We disagree.

The township’s municipal powers are set forth in the Second Class Township Code, 53 P.S. §65101 et seq. Title 53 P.S. §66901 provides a second class township with the following power:

“The supervisors of any township may by ordinance separately or jointly designate and set apart for use as parks, playgrounds, play fields, gymnasiums, public baths, swimming pools, or indoor recreation centers, hereinafter called public parks, recreational areas and facilities, any lands or buildings, owned by such township, and not dedicated or devoted to other public use. Such township may, in such manner as may be authorized or provided by law for the acquisition of lands or buildings for public purposes in such township, acquire lands or buildings therein for any of such purposes or construct and equip new facilities upon such lands. . .” (emphasis supplied)

The authority for the principle of law that second class townships have the authority to acquire land by condemnation is found in In re Condemnation by the Township of Heidelberg for Footpath, Alleyway and Bridge Purposes, 58 Pa. Commw. 321,428 A.2d 282 (1981). Therefore, as the acquisition of. land by condemnation is authorized by law, second class townships have the power to condemn land for recreational purposes.

Appellants’ second argument concerns the township’s exercise of its condemnation power. They specifically argue that the municipality (1) established no legal basis for taking 42.7 acres, (2) established no need for taking the property for recreational purposes, and (3) failéd to demonstrate the precise amount of land required for recreational purposes.

• Courts cannot interfere with the exercise of the power of eminent domain by an entity possessing such power, in the absence of proof of fraud, collusion, bad faith or arbitrary action equating abuse of discretion. Heidelberg, supra, 58 Pa. Commw. at 328, 428 A.2d at 286 (1981). The. burden is heavy upon one attempting to show bad faith or an abuse of discretion. Heidelberg, 58 Pa. Commw. at 329, 428 A.2d at 286. '

Appellants in the case at bar have not met their high burden. The township has established a need for additional recreational facilities. The township manager testified that the Township Planning Commission was advised by the Delaware Valley Regional Planning Commission and the Montgomery County Planning Commission that, considering the township’s size and projected growth, it should plan for recreational development. Requests for additional facilities by recreation associations and boards became more frequent after a township park was closed because of asbestos problems. The township also wanted to acquire land for municipal purposes. The Olson property was selected because it was located near the township building. The township’s idea was to provide a centralized government and recreational facility that all township residents would know was at the township building site. The township also received a four-year grant from the Montgomery County Planning Commission.

Appellants have not shown fraud, bad faith, collusion or abuse of discretion by the township. Therefore, we cannot interfere with the extent of the township’s condemnation.

CONCLUSION

The decision of this court was proper and it should, therefore, be affirmed.


author: STEINBERG, J.,

text:
    Commonwealth v. Hausman

      C.P. of Lehigh County,
    no. 2001/3672.

      Richard D. Director, senior deputy district attorney, for plaintiff.

      Brian J. Collins, for defendant.
    May 22, 2002
   STEINBERG, J.,

After being treated at the scene of a two-car accident in the City of Allentown, the defendant has been charged with driving under the influence of a controlled substance and possession of drug paraphernalia. The defendant motions to suppress the statements she made at the scene and the evidence recovered. The defense also challenges the Commonwealth’s prima facie case by petitioning for a writ of habeas corpus, and motions to preclude the Commonwealth’s expert from testifying to the degree of the defendant’s impairment due to her use of heroin.

At an evidentiary hearing on defendant’s motion, the Commonwealth presented the testimony of Michael Matchette, a seven-year member of the Allentown Emergency Medical Service, Dr. Dean Fritch, a forensic toxicologist, and Officer Michael Billera, a six-year member of the Allentown Police Department. Based on this testimony, the transcript of the preliminary hearing, and the legal arguments of the parties, we make the following findings of fact and conclusions of law.

On August 18, 2001, at approximately 10:23 p.m., Officers Kristopher Vogt and Michael Billera responded to the scene of a two vehicle accident at 40th and Tilghman Street in the City of Allentown. The defendant’s car had rear-ended another vehicle that was stopped at a red light. The defendant and her sister were trapped in their vehicle, which had sustained major front-end damage, and were being attended by paramedics. The defendant was in the front driver’s seat, and although she was covered in blood, she was conscious.

After Emergency Medical Technician Michael Matchette treated the defendant, stabilized her, and placed her in a cervical collar, he asked if she had consumed any alcohol. The defendant indicated that she had not been drinking, but said that she had used heroin, although she could not remember exactly how many hours earlier. The defendant was then removed from the vehicle, strapped to a backboard and treated in the ambulance, where Officer Billera asked her if she had consumed any alcohol or drugs. She repeated to Officer Billera that she had used heroin, and admitted that she had a syringe in her pants pocket. A pair of scissors was utilized to cut the defendant’s pants pocket, and a bank envelope wrapped around an uncapped syringe was recovered. The defendant was then transported to the hospital where she was treated and blood was drawn. The defendant’s blood tested positive for heroin, yielding a result of 325 nanograms per milliliter total morphine.

The defense motions to suppress the defendant’s admission that she used heroin on the night in question, arguing that she was not given Miranda warnings. The Fifth Amendment protection against self-incrimination guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is only triggered when an individual is subject to custodial interrogation. Commonwealth v. Thompson, 778 A.2d 1215, 1221 (Pa. Super. 2001). Officer Billera’s questioning of the defendant in the ambulance did not necessitate Miranda warnings, as the defendant was not in custody or subject to interrogation.

“[Pjolice 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 arrest.” Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999). The standard for determining whether a suspect has been subject to custodial detention or the functional equivalent of a formal arrest is an objective one based upon a totality of the circumstances. Commonwealth v. Gwynn, 555 Pa. 86, 98, 723 A.2d 143, 148 (1998). The Pennsylvania Superior Court has stated in Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001):

“The factors that the court considers to determine whether there has been a custodial interrogation include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.” 772 A.2d 970, 973 (Pa. Super. 2001).

Although the defendant was strapped to a backboard and suffering from accident-related injuries, she was not in custody when Officer Billera asked her if she had consumed any alcohol or drugs. In Commonwealth v. Perry, 710 A.2d 1183, 1186 (Pa. Super. 1998), the court found that questioning by a police officer of the defendant, who was intoxicated, injured and awaiting treatment in a hospital emergency room, was proper where the questioning was the result of proper police investigative procedure. The court held that the questioning was not lengthy and the defendant’s presence in an emergency room did not de facto place him in custody. Id.

In Commonwealth v. Fento, 363 Pa. Super. 488, 494, 526 A.2d 784, 787 (1987), the court also held that the defendant was not in custody during his interview with a police officer in his hospital room. The court focused on the fact that “the only restraints placed on appellee were created by his own medical condition as the result of the accident rather than any coercive action on the part of [the trooper]. Any restraint applied in this case was for medical purposes by medical personnel rather than investigative purposes by police officers.” Id. (emphasis added) As in Fento, she was not in custody, and Miranda, the defendant in the case sub judice could have expected her detention to last only as long as medically necessary, see id., and was restrained only by her medical condition. For those reasons, we find that she was not in custody and Miranda warnings were not necessary.

The defendant’s argument that the physical evidence was the fruit of an unlawful custodial interrogation fails in light of our determination that her statements are admissible and that she volunteered the information that she had a syringe in her pants pocket. Additionally, the defendant’s admission to heroin use defeats her argument that the police had no probable cause or reasonable suspicion to test her blood for controlled substances. Therefore, we are left to determine whether the Commonwealth has presented a prima facie case, and whether their expert, Dr. Fritch, can testify as to whether the defendant’s driving was impaired from her use of heroin.

At the pretrial motions hearing, the Commonwealth presented evidence that the defendant’s blood tested positive for heroin, yielding a result of 325 nanograms per milliliter total morphine. The defense motioned to preclude the Commonwealth’s witness, Dr. Dean ■ Fritch, a forensic toxicologist, from interpreting those results at trial, arguing that “[a]ny opinion which seeks to interpret and extrapolate a certain level of a controlled substance metabolite in the blood stream back to the time of operation of a vehicle to determine a level of impairment or intoxication to a degree rendering the driver incapable of safe driving does not meet the general acceptance standard (Frye test) for scientific evidence. . . .” Defense omnibus pretrial motion at ¶12. Although the defense cites the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a full Frye hearing was not requested in the motion or at the pretrial hearing.

We agree with the defense that there is no standard in Pennsylvania for the level of a controlled substance in the blood that would render a person incapable of safely operating her vehicle. While .10 percent blood alcohol concentration is the standard set in Pennsylvania for the amount of alcohol in the blood which would render a person incapable of safely driving their vehicle, see 75 Pa. C.S. §3731(a)(4)(i) (“A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances ... [wjhile the amount of alcohol by weight in the blood of an adult is 0.10 percent or greater”), no standard exists against which the defendant’s blood test result of 325 nanograms per milliliter of morphine can be measured. Therefore, we direct our inquiry to whether Dr. Fritch can generally testify as to the defendant’s driving impairment based on the level of morphine in her blood.

We note that the standard by which we are measuring the admissibility of this expert testimony is different at this preliminary proceeding than it will be at trial. At a preliminary hearing, the Commonwealth need not prove its case beyond a reasonable doubt, but must only present a prima facie case. Commonwealth v. Saunders, 456 Pa. Super. 741, 745, 691 A.2d 946, 948 (1997), appeal denied, 550 Pa. 703, 705 A.2d 1307 (1997). Therefore, at this stage the mere introduction of the blood test is enough to prove a prima facie case, see Commonwealth v. Rick, 244 Pa. Super. 33, 366 A.2d 302 (1976) (chemist’s report which would have been inadmissible on its own at trial was sufficient for a prima facie case at preliminary hearing), and the Commonwealth will face a heavier burden in terms of getting their expert testimony admitted at trial. See id. at 36-37, 366 A.2d at 303-304 (“the difference in purpose between a preliminary hearing and a trial dictates a different enforcement of the rules of evidence.”). Therefore, we do not preclude the Commonwealth from calling Dr. Fritch as an expert witness at trial to interpret the results of the morphine in the defendant’s blood to formulate a basis for a scientifically acceptable opinion on driving impairment. Whether this testimony may be admitted under the Frye standard as set forth in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), and its progeny is a question to be addressed at trial or a full Frye hearing. See Rick, supra. We do note, however, that the Commonwealth will have to introduce at a Frye hearing evidence of general acceptance of impairment levels pertaining to controlled substances, to wit, heroin, in the scientific disciplines. It will be incumbent upon the Commonwealth through the use of scientific texts, journals, or the testimony of experts to demonstrate that impairment is reached at the levels suggested by Dr. Fritch. The testimony introduced at the pretrial hearing does not provide sufficient scientifie support to allow this court to conclude that Dr. Fritch’s conclusions have been generally accepted in the relevant scientific community, or even supported by judicial authority. However, the Commonwealth is not required to do so until a full Frye hearing is held.

Therefore, for the foregoing reasons, the defendant’s omnibus pretrial motions must be denied.

ORDER

And now, May 22, 2002, upon consideration of the omnibus pretrial motion of defendant Christine Hausman, and after a hearing on the motion, for the reasons stated in the accompanying memorandum opinion;

It is hereby ordered that the motion to suppress statements is denied;

It is further ordered that the motion to suppress physical evidence is denied;

It is further ordered that the motion to preclude expert testimony is denied without prejudice subject to a full Frye hearing;

It is further ordered that the petition for writ of habeas corpus is denied.

      .75Pa.C.S. §3731(a)(2).

      .35 P.S. §780-113(a)(32).

      . Commonwealth’s exhibit 4.

      . Notes of testimony^ preliminary hearing, October 18,2001 (N.T.) at 3.

        . Id. at 30.

        . Id. at 3.

      . Id. at 15.

      . Id. at 15-16.

        . Id.

      . N.T. at 27.

      .74 at 17.

      .74 at 17-18.

      .74 at4,8.

      . We also note that the defendant’s initial admission to EMT Matchette that she had used heroin was not in response to a custodial interrogation. Spontaneous, volunteered statements which are not the result of custodial interrogation are not subject to suppression. Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116 (2001). “When a defendant gives a statement without police interrogation, we consider the statement to be ‘volunteered’ and not subject to suppression for lack of Miranda warnings. . . . Interrogation is police conduct ‘calculated to, expected to, or likely to evoke admission.’ ” Commonwealth v. Brown, 551 Pa. 465, 481, 711 A.2d 444, 451 (1998) (citations omitted). See also, Commonwealth v. Gibson, 553 Pa. 648, 720 A.2d 473 (1998), cert. denied, 528 U.S. 852, 120 S.Ct. 132, 145 L.Ed.2d 819 (2000); Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711 (1998), cert denied, 528 U.S. 827, 120 S.Ct. 78, 145 L.Ed.2d 66 (1998). The defendant initially told Mr. Matchette that she had used heroin in response to his question, “Have you consumed any alcohol?” She was neither in custody nor subject to interrogation, but rather volunteered the information.

      . We also find that the question asked of the defendant, “Have you had any drags or alcohol?” was not designed to elicit an incriminating remark, and therefore did not constitute interrogation. See Commonwealth v. Thompson, 778 A.2d 1215 (Pa. Super. 2001); Commonwealth v. Turner, 772 A.2d 970, 974 (Pa. Super. 2001); Commonwealth v. Whitehead, 427 Pa. Super. 362, 368, 629 A.2d 142 (1993). In order for Miranda warnings to be required in a custodial setting, the person detained must be subjected to questioning that is reasonably likely to elicit an incriminating response. Thompson, supra at 1221; Turner, supra at 974; Commonwealth v. Whitehead, 427 Pa. Super. 362, 368, 629 A.2d at 145. Specifically, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perception of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. ” Id. (emphasis added)
      When Officer Billera asked the defendant if she had consumed alcohol or drags, he was conducting an investigation, not interrogating the defendant with an eye towards charging her with a crime. Officer Billera was merely doing his job as a police officer investigating an accident scene. For that reason, Miranda warnings were not necessary.

      . Mat 4,8.

      . Nevada is the only state in this country that has adopted a standard for the level of a controlled substance in the blood which would render one incapable of safe driving. See Nev. Rev. Stat. 484.379(3):
      “It is unlawful for any person to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access with an amount of a prohibited substance in his blood or urine that is equal to or greater than:

        Prohibited substance Urine Blood

      Nanograms per Nanograms per milliliter milliliter
      (a) Amphetamine 500 100
      (b) Cocaine 150 50
      (c) Cocaine metabolite 150 50
      (d) Heroin 2,000 50
      (e) Heroin metabolite:
      (1) Morphine 2,000 50
      (2) 60 monoacetyl morphine 10 10
      (f) Lysergic acid diethylamide 25 ' 10
      (g) Marijuana 10 2
      (h) Marijuana metabolite 15 5
      (i) Methamphetamine 500 100
      (j) Phencyclidine 25 10”
      We must also note that this statute has been criticized because “the low drug thresholds included in the legislation would result in DUI convictions for people who were not impaired.” See Peter O’Connell, Impairment Statute Useless, Attorney Says, Las Vegas Review-Journal, October 19, 2000 available at http://www.lvrj.com/lvrj_home/2000/ Oct-19-Thu-2000/news/14639211.html. Additionally, in the Nevada case of Statev. Williams, 50P.3d1116(2002)thedefendantwas found guilty based on the level of marijuana found in her blood, which exceeded the limits set forth in the statute. However, the jury did not find that she was driving under the influence of drugs. See Peter O’Connell, Guilty on Eight Counts: Williams Verdict, Las Vegas Review-Journal, February 17,2001, available at http://www.lvrj.com/lvrj_home/2001/Feb-17Sat-2001/news/1547129.html.

      . See Commonwealth’s exhibit 2.

      . Dr. Fritch testified at the pretrial motions hearing that he based his expert opinion on several studies conducted in Belgium, Germany and Sweden. He also testified that based on his own familiarity with the drug, the defendant’s judgment would be impaired at 200 nanograms per milliliter. However, he also testified that heroin is rapidly broken down first into six monoacydl morphine (“six mam”) and then into morphine in a time period that can be as short as two hours, so he could not testify as to the level of morphine in the defendant’s blood at the time of the accident.

      . Pennsylvania Rule of Evidence 702 governs expert testimony on scientific matters and reads as follows:

        “Rule 702. Testimony by experts

      “If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Pa. R.E. 702.
      However, the “[a]doption of Pa. R.E. 702 did not alter Pennsylvania’s adoption of the standard in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which requires scientific evidence to have ‘general acceptance’ in the relevant scientific community.” Comment to Pa. R.E. 702. The test for the admissibility of expert opinions on scientific matters was originally set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and was adopted in Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). The court in Topa held that “[the admissibility of the [scientific] evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Id. at 231, 369 A.2d at 1281. The general consensus in Pennsylvania appellate case law is that the scientific methodology used and the conclusions reached by the expert must both be generally accepted in the scientific community. See Thomas v. West Bend Co., 760 A.2d 1174, 1179 (Pa. Super. 2000) (“Frye applies to scientific evidence itself, not merely to the methodology underlying such evidence.”); Commonwealths Blasioli, 552 Pa. 149, 153, 713 A.2d 1117, 1119 (1998)(“both the theory and technique underlying novel scientific evidence must be generally accepted.”); Blum v. Merrell Dow Pharmaceuticals Inc., 705 A.2d 1314, 1322 (Pa. Super. 1997) (Scientific methodology and conclusions must mutually be scrutinized by the court to ensure that what might appear to the jury to be science is not in fact speculation in disguise.). See also, Thomas v. West Bend, supra, 760 A.2d at 1179 n.3. But, see Trach v. Thrift Drug Inc., 46 D.&C.4th 231, 248 (2000) (holding that either the methods or conclusions reached by the expert must pass the Frye test).


author: SHEPPARD JR., J.,

text:
    Braun v. Wal-Mart Stores Inc.

      Kenneth J. Ignozzi, Michael D. Donovan and David A. Searles, for plaintiff.

      Morton F. Daller, for defendant.
    January 15, 2003
   SHEPPARD JR., J.,

Defendant, Wal-Mart Stores Inc. (Wal-Mart), has filed this motion for leave to interview and obtain affidavit testimony from putative class members. For the reasons discussed, the motion is denied. Defendant is ordered to comply with this court’s limitations on defendant’s ex parte communications with putative class members.

BACKGROUND

Wal-Mart owns and operates approximately 99 retail stores and employs approximately 31,000 employees in Pennsylvania. Compl. ¶6. Plaintiff, a former hourly wage employee of Wal-Mart, brings this action on behalf of herself and all similarly situated current and former hourly wage employees of Wal-Mart (the Class). Compl. ¶12. Plaintiff alleges that from March 19, 1998 until the present, Wal-Mart required employees to work “off-the-clock,” denied employees rest or meal breaks, and withheld overtime pay. Compl. ¶¶12-14. Plaintiff further alleges that Wal-Mart has engaged in a pattern of workplace abuses resulting in a failure to properly compensate hourly employees, and has threatened or intimidated employees if they refused to work “off-the-clock.” Compl. ¶16.

In this motion for leave to interview and obtain affidavit testimony from putative class members, Wal-Mart seeks to conduct ex parte interviews with putative class members in order to prepare its defense and challenge certification of the class. In response, plaintiff urges that such ex parte communications violate Pennsylvania’s Rules of Professional Conduct, and would improperly discourage class participation and intimidate putative class members.

DISCUSSION

This is an issue of first impression under Pennsylvania law, namely, whether defense counsel may interview current and former employees who are putative class members in a state class action. Under Pennsylvania law, this court, though not bound by such decisions, may look to federal court decisions for guidance. Hutchison v. Luddy, 763 A.2d 826, 837 (Pa. Super. 2000); see also, McMonagle v. Allstate, 460 Pa. 159, 167, 331 A.2d 467, 471-72 (1975). Moreover, this court is not bound by, nor need it consider persuasive, any federal or state court decisions that do not address Pennsylvania law. Hutchison, 763 A.2d at 837; see also, Commonwealth v. National Bank & Trust Co. of Central Pennsylvania, 469 Pa. 188, 194, 364 A.2d 1331, 1335 (1976).

Pursuant to Rule 4.2 of the Pennsylvania Rules of Professional Conduct, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Pa.R.P.C. 4.2. This fundamental tenet of professional conduct, when applied in the context of a class action, requires this court to determine whether putative class members should be afforded the same protections as other litigants. The Pennsylvania Supreme Court has long held that putative class members are “properly characterized as parties to the action.” Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 229, 348 A.2d 734, 736 (1975). In fact, the explanatory note to Rule 1701 of the Pennsylvania Rules of Civil Procedure, following the Supreme Court’s holding in Bell, defines a “class action” as “any action brought by or against parties as representatives until the court refuses to certify it as such or revokes a prior certification.” Pa.R.C.P. 1701 explanatory note 1977. (emphasis added) Our Superior Court has held that during the time between the filing of a class action and certification of the class, putative members have interests in the lawsuit. Miller v. Federal Kemper Insurance Co., 352 Pa. Super. 581, 590, 508 A.2d 1222, 1228 (1986). Therefore, in Pennsylvania, putative class members have legitimate interests in the lawsuit prior to class certification.

Following the rationale of Bell and Miller, the Eastern District Court of Pennsylvania held that “[t]he ‘truly representative’ nature of a class action suit affords its putative class members certain rights and protections including, we believe, the protections contained in Rule 4.2 of the Rules of Professional Conduct.” Dondore v. NGK Metals Corp., 152 F. Supp.2d 662, 666 (E.D. Pa. 2001). (citations omitted) Recognizing that it is impractical for a court to certify a class immediately upon the filing of the complaint, the court further held that protection should be afforded to putative class members during the interim period before certification. Id.

The principles embodied in case and statutory law require this court to find that the putative class members should be afforded protection from adverse counsel as mandated by Rule 4.2.

The nature of the action requires this court to consider the potential for abuse which may arise when unsophisticated putative class members are interviewed by counsel of their former or, in some cases, current employer. In Dondore v. NGK Metals Corp., the court held, in the context of former employee class members, that defense counsel’s unsupervised efforts could undermine the interests of putative class members and that “each potential witness needs to make an intelligent and voluntary decision, without any real or perceived pressure.” 2001 WL 516635 at *2 (E.D. Pa. May 16, 2001).

It goes without saying that in the case of current employees, the ability of defense counsel to exert undue influence on those putative class members is considerable. This court suggests that it would be hard to find a more challenging conflict for a current employee to be placed in than to be interviewed by counsel for their current employer concerning allegations about workplace abuses. By its very nature, a potentially adversarial interview process between an employee and an employer and its lawyer is fraught with pitfalls for the employee, most notably the implied threat of loss of employment. Furthermore, this court cannot see a justification for treating employee and non-employee putative class members differently. A person does not forego the protections of putative class membership simply because he or she is still employed by the defendant.

The purpose of Rule 4.2 is to protect uncounseled laypersons from lawyers who may take advantage of their position of power. Carter-Herman v. City of Philadelphia, 897 F. Supp. 899, 901 (E.D. Pa. 1995). These protections should indiscriminately apply to all putative class members. With that said, this court recognizes that Wal-Mart is free to manage contact with its current employees in accordance with applicable law. The only restriction this court is placing on Wal-Mart is that any discussion with current or former employees concerning the subject matter of this lawsuit should be done within the parameters of formal discovery. Should it choose to, Wal-Mart may subpoena and depose putative class members.

CONCLUSION

For the reasons stated, this court finds that under Pennsylvania law putative class members are parties to the action until the court declines to certify the action. Here, the putative class members should be afforded the protections of Rule 4.2 of the Rules of Professional Conduct. Accordingly, this court denies defendant’s motion for leave to interview and obtain affidavit testimony from putative class members. Defendant may depose putative class members should it wish to contact them regarding the subject of this lawsuit. The court will issue a contemporaneous order consistent with this opinion.

ORDER

And now, January 15, 2003, upon consideration of defendant, Wal-Mart Stores Inc.’s motion for leave to interview and obtain affidavit testimony from putative class members, plaintiff Michelle Braun’s response in opposition, the respective memoranda and all matters of record, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered that said motion is denied.

      . The parties do not dispute that Pennsylvania law governs this action.