text:
    Panosian v. Hampton

      Steven M. Mezrow, for plaintiffs.

      Patrick J. Gibbons, for defendants.

      Jill R. Snyder, for additional defendant.

      October 7, 2005
   LASH, J.,

The matter before this court is the petition of plaintiffs, Tamara Panosian and Ara Panosian, husband and wife, to strike non pros and/ or reinstate the action to active status. Upon consideration of the petition, briefs filed by the parties and after argument held on October 5,2005, this court denies plaintiffs’ petition.

This matter was commenced by writ of summons issued on June 1, 2000. Subsequently, plaintiffs, on September 7, 2000, filed a complaint against defendants, Betty Hampton and Eugene Llampton Used Cars, alleging that on May 31,1998, plaintiffs were involved in an automobile accident when defendant, Betty Hampton, operating a motor vehicle owned by defendant, Eugene Llampton Used Cars, ignored a red traffic light, traveled into an intersection and struck the vehicle operated by plaintiff, Ara Panosian. The complaint claims that plaintiff, Tamara Panosian, a passenger in the Panosian vehicle, was injured as a result of the accident. Plaintiff, Ara Panosian, seeks damages for loss of consortium. Defendants answered the complaint and filed new matter, which, inter alia, joined plaintiff, Ara Panosian, as an additional defendant, pursuant to Pa.R.C.P. 2252(d).

On August 25, 2003, this matter was terminated for inactivity, under B.R.J.A. 1901. The termination process was commenced by the prothonotary of Berks County on June 23,2003, by issuing a notice to the parties, projecting a termination date for August 22,2003, there being no docket activity since August 21,2001. The notice set forth, inter alia, that the case would be terminated if no docket activity occurred within 60 days of service of the notice, or if no party files a motion to allow the case to remain active and request a hearing thereon.

According to the record, the notice was sent to all counsel by ordinary mail, including plaintiffs’ counsel, Michael O. Pansini, Esquire, at his last known address, 1528 Walnut Street, Suite 1401, Philadelphia, PA 19102. However, the letter to Attorney Pansini was returned to the prothonotary’s office on June 30, 2003, with a notation from the postal authorities stating: “Not Deliverable As Addressed — -Unable To Forward — Return To Sender.” According to the record, the prothonotary then sent another notice to Attorney Pansini on July 1, 2003, to 1525 Locust Street, Fifteenth Floor, Philadelphia, PA 19102. Further, the original notice was also sent to plaintiff, Ara Panosian, at the address of602 Thornhill Drive, Lafayette Hill, PA 19444. Neither plaintiffs, nor their counsel, responded and the case was terminated.

On August 11, 2005, plaintiffs filed the within petition to reinstate the action to active status. In their petition, plaintiffs claim that neither plaintiffs, nor their counsel, received the notice of proposed termination, were not advised of the procedure to avoid termination, and never received the order terminating the case. Plaintiffs allege that plaintiffs’ counsel remained unaware of the termination until July 15, 2005, when they requested a copy of the docket entries. As a possible explanation, plaintiffs’ counsel advised that they relocated their offices in December of 2001 from the Walnut Street address to the Locust Street address. Counsel also represent that, at the time of relocation, they sent notices to all courts, including Berks County, of the change of address.

In their claim for reinstatement, plaintiffs argue that the case should be reinstated because they were unable to respond to the termination proceeding because they never received notice, that if they had received notice, they would have promptly responded, that the case has merit, that the case has continued to remain active, although the activities engaged in did not appear on the court docket, and that defendants would not be prejudiced as a result of any delay.

The procedure for termination of inactive cases is now governed by Pa.R.C.P. 230.2, which became effective July 1,2003, during the pendency of the within termination proceedings. Under this rule, the court may initiate proceedings to terminate a case in which there has been no activity of record for two years or more by serving a notice of the proposed dismissal. The notice must be sent to counsel of record 60 days prior to the date of the proposed termination. The notice shall contain the date of the proposed termination and the procedure to avoid termination. The notice may be sent by ordinary mail pursuant to Pa.R.C.P. 440, which provides that service is complete upon mailing. If the mailed notice is returned, as in this case, the notice shall be served by publication, although a comment to the rule notes that the prothonotary should first check a legal directory or contact the Administrative Office of Pennsylvania Courts for a current address, and upon failure to obtain one, then publication is required.

Rule 230.2 also provides a simple method for parties to avoid termination through the filing of a “Statement of intention to proceed.” The notice of proposed termination, with directions concerning filing the statement of intention to proceed, appears in Pa.R.C.P. 230.2 (e) and (f).

If no statement of intention to proceed or other docket activity has been filed, the prothonotary shall enter an order terminating the matter, with prejudice, for failure to prosecute. However, an aggrieved party may petition the court to reinstate the action. If, as in this case, the petition is filed more than 30 days after the entry of the order of termination, the court, under Pa.R.C.P. 230.2 (d)(3), shall grant the petition and reinstate the action upon a showing that:

“(i) the petition was timely filed following the entry of the order for termination and
“(ii) there is a reasonable explanation or a legitimate excuse for the failure to file both
“(A) the statement of intention to proceed prior to the entry of the order of termination on the docket and,
“(B) the petition to reinstate the action within 30 days after the entry of the order of termination on the docket.”

Plaintiffs’ explanation for failing to file both the statement of intention to proceed and the petition to reinstate the action within 30 days was the claimed failure to receive any notice from the prothonotary of the proposed or actual termination. However, the evidence supports a finding of proper service. Although the original notice was returned to the prothonotary, ostensibly because counsel had moved their offices, the prothonotary did, in due course, obtain the correct address and promptly sent out a new notice. Under Rule 440, service is complete when mailed.

We also note that the notice sent by the prothonotary was crafted pursuant to the procedures in place before the adoption of Pa.R.C.P. 230. The notice therefore did not set forth the new procedure, including the right to maintain the proceeding by filing a notice of intention to proceed. This was not error, however, as the former procedure was still in effect at the time the notice was sent. Further, plaintiffs did not argue that the content of the notice is a basis for reinstatement of the ease. If they had, this court would have rejected such an argument because (1) plaintiffs’ issue is the lack of any notice, not that the notice was defective, (2) the notice that was sent did warn of termination, if there was no response by August 22, 2003, and (3) plaintiffs could nevertheless have responded in the manner set forth in the notice or in accordance with Pa.R.C.P. 230.2.

Even assuming, arguendo, that the plaintiffs meet the test under Pa.R.C.P. 230.2(d)(3)(h), plaintiffs nevertheless cannot obtain the sought relief because they failed to comply with Pa.R.C.P. 230.2(d)(3)(i), requiring the timely filing of the petition to reinstate following the entry of the termination order. By their own admission, plaintiffs’ counsel was unaware of the termination from the date of termination, August 25, 2003, until they obtained docket entries on July 15, 2005. Thus, subsequent to the two-year period of docket inactivity, resulting in the termination, there was an additional period of nearly 23 months when there was absolutely no activity conducted in this case. To require timeliness means to require diligence. Here, the case has been inactive for an unreasonable amount of time. It would be unjust to require defendants to reconvene 23 months after the case was put to rest. To hold otherwise would mean cases could remain dormant but active indefinitely, merely because a plaintiff was not notified of the original termination.

Plaintiffs’ counsel’s only explanation for the delay is that plaintiff, Tamara Panosian, is continuing to treat for her injuries, an explanation which does not address the issue. Plaintiffs have failed to meet their burden required by Pa.R.C.P. 230.2(d)(3), and the petition to reinstate, therefore, must be denied.

One other issue must be addressed. In the explanatory comment to Rule 230.2, this paragraph appears: “This rule was promulgated in response to the decision of the Supreme Court in Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998), in which the court held that ‘prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901.’ ”

As the comment sets forth, the Supreme Court in Shops squarely holds that a case cannot be terminated for inactivity unless there is a showing of actual prejudice to the defendant. However, Pa.R.C.P. 230.2 makes no mention of prejudice as an element in determining the issue of termination. The question, therefore, is whether this court, under Pa.R.C.P. 230.2, must nevertheless make a finding of actual prejudice, as a requisite to denying plaintiffs’ petition.

It appears that the proper interpretation of Pa.R.C.P. 230.2 is that the requirement of a showing of actual prejudice has been eliminated by the rule. Rule 230.2 was a response to Shops v. Eagle, specifically regarding the element of prejudice to the defendant. There is nothing in Rule 230.2 requiring a showing of prejudice before termination. The explanatory comment also states that 230.2 provides a “complete procedure and a uniform statewide practice, preempting local rules.” It appears that the only reasonable interpretation of the explanatory comment is that the Supreme Court intended to promulgate Pa.R.C.P. 230.2 as comprehensive, eliminating any considerations not specifically incorporated within the rule, including the element of actual prejudice to a defendant. Accordingly, we make no determination regarding whether defendants would be prejudiced by the reinstatement of the case. We enter the following order:

ORDER

And now, October 7, 2005, upon consideration of the petition of plaintiffs, Tamara Panosian and Ara Panosian, husband and wife, to strike non pros and/or reinstate the action to active status, response thereto, briefs filed by the parties, and after argument held, plaintiffs’ petition is denied.


source: Caselaw Access Project

author: ABRAMSON, J.

license: Public Domain

text:
    Triad ML Marketing Inc. v. Clark & Trevithick P.C.

      James C. Crumlish III, for plaintiffs until August 9, 2005.

      F. James Gallo and Craig Hudson, for defendants.

      Lisa Stern, pro se.

      Steven Richey, pro se.

      Allen Stern, pro se.
    September 1, 2005
   ABRAMSON, J.

Before the court are the preliminary objections of defendant Clark & Trevithick (C&T) in the form of a motion to dismiss for lack of personal jurisdiction. For the reasons fully set forth below, said preliminary objections are sustained.

BACKGROUND

According to the complaint, defendant Fineman, Krekstein & Harris P.C. (Fineman), a Pennsylvania law firm, was hired by plaintiffs to represent their interests in litigation pending in California (the California litigation). C&T, a California law firm, was hired to serve as local counsel and the agreement was memorialized in an engagement letter which required plaintiffs to cooperate with C&T. Pl. resp. exhibit B. Thereafter, a dispute arose among the parties in connection with said representation. In December 2004, Fineman brought an action against plaintiffs for the collection of outstanding legal fees in the matter styled Fineman, Krekstein & Harris P.C. v. Triad ML Marketing Inc., December term 2004, no. 1233 (Phila. C.C.P.) (the collection action). In February 2005, plaintiffs brought the instant action against both C&T and Fineman asserting claims for negligence, breach of fiduciary duty and breach of contract (the legal malpractice action). In March 2005, plaintiffs filed a motion to consolidate the legal malpractice action with the collection action, which was unopposed. The cases were subsequently consolidated by the court.

DISCUSSION

C&T has filed the instant preliminary objections claiming that this court lacks personal jurisdiction over it. The court agrees.

I. This Court Lacks General Personal Jurisdiction Over C& T

Pennsylvania courts may exercise general personal jurisdiction over a corporate defendant when the corporation carries on “a continuous and systematic part ofits general business within” Pennsylvania. 42 Pa.C.S. §5301 (a)(2)(iii). “Since there is no established legal test to determine whether a corporation’s activities are sufficiently continuous and systematic to warrant the exercise of general jurisdiction, a court engages in a factual analysis that focuses on the overall nature of the activity, rather than its quantitative character.” Bizarre Foods Inc. v. Premium Foods Inc., 2003 U.S. Dist. Lexis 8166 (E.D. Pa. May 16, 2003).

Triad does not allege that C&T is incorporated in Pennsylvania, maintains offices in Pennsylvania, has agents or employees in Pennsylvania, pays taxes in Pennsylvania, is registered with the Commonwealth to conduct business in Pennsylvania, and/or owns or leases property in Pennsylvania, which are the traditional bases for finding general jurisdiction. See Efford v. Jockey Club, 796 A.2d 370, 375 (Pa. Super. 2002). Instead, plaintiffs allege that C&T placed dozens of phone calls, sent approximately 100 e-mail messages and dozens of pieces of correspondence, including invoices, to plaintiffs in Pennsylvania. Compl. ¶¶9-13. Plaintiffs also contend that both Fineman and C&T were part of a group of lawyers/ law firms that referred cases to each other.

However, the court finds these contacts with Pennsylvania are not systematic and continuous enough to subject C&T to general personal jurisdiction in Pennsylvania. See McCall v. Formu-3 International Inc., 437 Pa. Super. 575, 581, 650 A.2d 903, 906 (1994) (no general jurisdiction over defendant who entered into joint venture unrelated to cause of action with Pennsylvania company and “engaged in a series of ongoing contacts, meetings, and opportunities to exchange information with several Pennsylvania companies.”); Derman v. Wilair Services Inc., 404 Pa. Super. 136, 150, 590 A.2d 317, 324 (1991) (no general jurisdiction over defendant that “does a small portion of its total business — approximately 1.5 percent — with residents of Pennsylvania”); Crown Cork & Seal Co. v. Montgomery, 2004 Phila. C.C.P. Lexis 22 (Phila. 2004) (out-of-state law firm which served as local counsel to Pennsylvania firm not subject to general or specific jurisdiction based on insufficient contacts); Alti Inc. v. Dallas European, 2002 Phila. C.C.P. Lexis 97 (Phila. 2002) (defendant not subject to general jurisdiction were “Pennsylvania customers represented less than one percent of defendant’s revenues”).

II. This Court Lacks Specific Personal Jurisdiction Over C&T

Pennsylvania may exercise specific personal jurisdiction over C&T “to the fullest extent allowed under the Constitution of the United States ... based on the most minimum contact with this Commonwealth allowed.” 42 Pa.C.S. §5322(b).

“In order to subject [C&T] to in personam jurisdiction there must be some act by which [C&T] purposely avails itself of the privilege of conducting activities within [Pennsylvania], thus invoking its benefits and protections of its laws ... such that [C&T] could reasonably anticipate being haled into court [here].” Grimes v. Wetzler, 749 A.2d 535, 539 (Pa. Super. 2000). (citations omitted)

The court does not find that plaintiffs have satisfied their burden of proving specific jurisdiction. By plaintiffs’ own admission, C&T was hired to serve as local counsel in connection with litigation pending in California. C&T’s activities in connection with the California litigation “did not target this Commonwealth through [its] conduct” and should not be subject to jurisdiction in Pennsylvania. Id. at 541. Phone calls and/or letters into the forum are not sufficient to establish minimum contacts for jurisdictional purposes where, as here, the focus of the dispute is outside the forum, which is where the California litigation took place. See Thomas v. Clark, 8 D.&C.3d 630, 634 (Phila. Cty. 1978) (“the foreign attorney really has no contacts with Pennsylvania other than those required by representation of a Pennsylvania resident in a non-Pennsylvania cause of action, with a Pennsylvania attorney as co-counsel”); Lynch v. New Jersey Automobile Full Insurance Underwriting Assoc., 762 F. Supp. 101, 104 (E.D. Pa. 1991) (“[t]he placing of telephone calls or the sending of letters into the forum by a party to a contract is not sufficient.”).

Furthermore, California has a far greater interest than Pennsylvania in the California litigation, which is the subject matter of the claims against C&T. See Kubik v. Letteri, 532 Pa. 10, 21, 614 A.2d 1110, 1116 (1992) (“[tjhere is no question that Pennsylvania has a strong interest in adjudicating a dispute involving real estate located in Pennsylvania.”). As such, plaintiffs’ claims against C&T for legal malpractice in connection with the California litigation must be dismissed for lack of jurisdiction.

CONCLUSION

For the reasons fully set forth above, the preliminary objections of defendant Clark & Trevithick for lack of personal jurisdiction are sustained. Plaintiffs’ complaint is dismissed in its entirety as to Clark & Trevithick for lack of jurisdiction.

ORDER

And now, September 1, 2005, upon consideration of the preliminary objections of defendant Clark & Trevithick, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the memorandum opinion being filed contemporaneously with this order, it hereby is ordered and decreed that said preliminary objections are sustained and that plaintiffs’ complaint is dismissed as to Clark & Trevithick for lack of personal jurisdiction.

      . Plaintiffs also argue that C&T somehow consented to jurisdiction by failing to oppose plaintiffs’ motion to consolidate the legal malpractice action with the collection action. However, the court finds this fact to be of no consequence and certainly does not serve to establish personal jurisdiction over C&T in Pennsylvania.


author: NICKLEACH, P.J.,

text:
    Progressive Northern Company v. Toy

      Jeffrey A. Ramaley, for plaintiff.

      Daniel F. Cusick, for defendant.
    August 24, 2005
   NICKLEACH, P.J.,

Presently before the court are the parties’ cross-motions for summary judgment.

FACTS

On April 10,1999, defendant was traveling as a guest passenger in a vehicle owned by his mother, Nancy Vasbinder. This vehicle was struck by another vehicle operated by Jennifer McAuley. Defendant suffered injuries as a result of the collision. McAuley was insured by Travelers Insurance Company for up to $100,000 in liability coverage, and Vasbinder was insured by State Farm for up to $60,000 (stacked) in underinsured motorist coverage.

Defendant ultimately settled for $95,000 with Travelers, and $55,000 with State Farm.

Defendant presently seeks to recover from his wife, Michele Toy’s insurance policy under that policy’s underinsured motorist provision.

Plaintiff commenced this suit by filing a complaint for declaratory judgment on September 24, 2004.

STANDARD OF REVIEW

Pa.R.C.P. 1035.2 provides that a party may move for summary judgment when there is no genuine issue of material fact as to a necessary element of the cause of action or defense. The court will review the entire record in the light most favorable to the non-moving party and resolve all genuine issues of material fact against the moving party. Basile v. H & R Block Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000).

ISSUES

(1) Whether the household exclusion is applicable, and thereby precludes defendant from receiving benefits under the underinsured provision of the policy.

(2) Whether defendant exhausted coverage under the State Farm policy as required under the Progressive policy.

DISCUSSION

The policy sets forth the following:

“EXCLUSIONS — READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE WILL NOT BE AFFORDED UNDER THIS PART III
“(1) Coverage under this Part HI is not provided

for bodily injury sustained by any person while using or occupying:

“(d) a vehicle owned by you or a relative, other than a covered vehicle.” (Exhibit A, p. 20.) (emphasis added)

It is undisputed that Ms. Vasbinder’s vehicle, in which defendant was a guest passenger, is not a covered vehicle. What remains at issue is whether defendant was occupying a vehicle owned by a “relative”. The policy’s definition of relative is as follows:

“(12) ‘Relative ’ means:
“(a) a person residing in the same household as you who is related to you by blood, marriage, or adoption, including a ward, stepchild, or foster child; and
“(b) a minor in the legal custody of the named insured, or in the custody of a person residing in your household who is related to you.
“Unmarried dependant children temporarily away from home will be considered residents if:
“(a) they are under the age of 25 years; and
“(b) they intend to continue to reside in your household.” (Exhibit A, pp. 4-5.) (emphasis added)

Michele Toy, the policyholder, is the daughter-in-law of Ms. Vasbinder. The crux of the issue is whether Ms. Toy actually resided with her mother-in-law at the time of the accident.

Defendant and his family were unable to move into their home until certain work could be completed. While waiting to move, the family stayed across the street with Ms. Vasbinder. This living arrangement lasted approximately six to eight months. It was during this time that the accident occurred.

In order to determine whether Ms. Toy is considered a “relative” of Ms. Vasbinder as stated in the language of the policy, the court must first address the issue of residency.

In Pennsylvania, “domicile and residence are not convertible terms.”DuPuy Estate, 373 Pa. 423, 427, 96 A.2d 318, 319 (1953). Residence is a physicalfact, while domicile is a matter of intention. See Greenwood v. Hildebrand, 357 Pa. Super. 253, 259, 515 A.2d 963, 965 (1986). (emphasis added) This is illustrated in Lesker Case, 377 Pa. 411, 416, 105 A.2d 376, 379 (1954) in which the Pennsylvania Supreme Court held that a person could have many residencies, but he may have only one domicile.

For these reasons, the court finds that intentions are irrelevant. The issue is not domicile, but rather residence. It is undisputed that at the time of the accident, both Ms. Toy and defendant physically occupied Ms. Vasbinder’s home. (Def.’s exhibit A pp. 5-7.) Other than receiving mail at the property across the street, defendant carried on all other daily living activities at his mother’s for six to eight months. The policy specifically states that a relative is one who is “residing” in the same household. The court finds that Ms. Toy and defendant were indeed residing in Ms. Vasbinder’s home when the accident occurred. In so doing, she is considered a relative under the policy’s plain meaning. Defendant’s injuries resulted from an accident that occurred while occupying a vehicle not covered by the policy and which was owned by a relative. Therefore, the household exclusion is applicable and defendant is not entitled to recover underinsured benefits from the plaintiff.

Because defendant is barred from recovery under the household exclusion provision of the policy, the court need not address the issue of exhaustion.

An appropriate order will be entered.

ORDER

And now, to wit, August 24, 2005, having heard oral argument on the matter, it is hereby ordered, adjudged and decreed that plaintiff’s motion for summary judgment and plaintiff’s supplement to motion for summary judgment are hereby granted. It is declared that plaintiff, Progressive Northern Insurance Company, is not obligated to pay defendant, Raymond Toy, underinsured motorist coverage for the April 10, 1999 accident.

Defendant’s cross-motion for summary judgment is denied.


author: MOTTO, P.J.,

text:
    Commonwealth v. Shaw

      Diane Shaffer, assistant district attorney, for Commonwealth.

      Kenneth A. Kasenter, assistant public defender, for defendant.
    July 14, 2005
   MOTTO, P.J.,

The defendant is seeking to suppress evidence found on his person when he was searched as the result of an arrest made of the defendant. The contention is that the evidence retrieved from the defendant’s person must be suppressed because there was no probable cause to effectuate an arrest of the defendant.

On March 16, 2005, New Castle Police Officer Robert Salem was conducting surveillance in the area of 1108 Pin Oak Drive in the City of New Castle, which is an area that is a known high drug traffic area. The police officer viewed a red Chevrolet Berretta with two white male occupants pull up in front of 1108 Pin Oak Drive. A black male, not the defendant, approached the vehicle and the officer viewed a transaction between the driver of the vehicle and the black male. The defendant, wearing blue jeans and a yellow jacket, was standing near the black male during the transaction, but did not engage in the transaction. When the vehicle left the area, the police officer effectuated a traffic stop. The driver of the vehicle consented to a search of the vehicle and a unit of suspected crack cocaine was found therein. The driver then gave the officer a statement stating that he purchased the crack cocaine from the black male, not the defendant, for $20. Thereafter, several New Castle police officers, including Officer Salem, went to the area of 1108 Pin Oak Drive to locate the black male who engaged in the drug transaction and the defendant who had been standing nearby. These individuals were located, wearing the same clothes and standing in front of 1108 Pin Oak Drive. The officers approached and ordered the defendant and the other black male to the ground. The black male who had been involved directly in the transaction ran away but was apprehended and placed in custody. New Castle Police Officer Lucian Paglia detained the defendant at the scene, and when asked his name, the defendant gave the name of “Kevin Hamilton” and indicated that he was from Detroit, Michigan. The defendant was transported to the New Castle Police Department where he was searched. Pound in the defendant’s inside jacket pocket were two plastic baggies containing approximately 35 individually wrapped packets of cocaine weighing approximately eight grams and $800 in United States currency was found in the defendant’s left front pocket. The defendant then gave the police officers his correct name of James Shaw Jr. The defendant was charged with possession with intent to deliver and possession of a controlled substance.

Based upon these facts, the issue is whether or not the police officers had probable cause to arrest the defendant. The police officer did testify that it has become a common practice for drug dealers to utilize juveniles to effectuate the drug transaction instead of themselves because juveniles are likely to receive less severe punishment in the juvenile system. The Commonwealth relies upon the fact that this was a high crime area and the defendant was standing in close proximity to the black male juvenile who effectuated the drug transaction.

In order for a warrantless arrest to be constitutionally valid, it must be supported by probable cause. Commonwealth v. Evans, 546 Pa. 417, 685 A.2d 535 (1996). In addition, the totality of the circumstances must be considered when determining probable cause in a warrant-less arrest. Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995). In order to determine if probable cause existed, the standard of review must be determined and applied to this set of facts.

“Probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203, 206 (1994). “[Vjiewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training.” Commonwealth v. Norwood, 456 Pa. 330, 334, 319 A.2d 908, 910 (1974).

The Pennsylvania Supreme Court has stated the mere fact that appellant, who was present near the scene of the crime, had a record of prior arrests known to the arresting officer would not, standing alone, furnish probable cause to arrest. Commonwealth v. Goslee, 427 Pa. 403, 407, 234 A.2d 849, 851 (1967).

Applying the facts to this case the court must determine if the actions of the defendant were significant enough to reach the level of probable cause. In order to decide this issue the court must look at the totality of the circumstances. In this case the defendant was observed at the scene of a drug deal. He was standing next to the vehicle in which the transaction took place; however, the defendant did not participate in the drug transaction. The prosecution uses the fact that the area is a known drug trafficking area and the close proximity of the defendant to the crime that was taking place to argue probable cause.

The police officer witnessed the drug transaction. He testified that the defendant was standing next to the car and was not involved directly with the transaction between the black male and the driver. The prosecution insists that juveniles are used to sell drugs in the place of adults because the punishment may be less severe. This may be the method used in most situations, but, in this particular case, there was no evidence at the time of arrest to justify probable cause that the defendant was involved in the crime. The evidence does not indicate any sort of transaction between the defendant and the black male or the driver of the vehicle.

The court in this case is not persuaded that probable cause exists in this circumstance. The court in Goslee clearly stated that presence at the scene of the crime is not enough by itself to constitute probable cause. Since the defendant’s activities were limited to standing beside the vehicle and not being a party to the drug transaction, his actions fall short of creating probable cause. Although the court does not deny the prudent and insightful work of the police officer in arresting the two suspects, there was no evidence of illegal activities conducted by the defendant to justify probable cause and a warrantless search.

Since mere presence at the scene of a crime is not enough to make a warrantless arrest, the officer lacked probable cause to detain the defendant. Therefore, the court must grant the defendant’s motion to suppress evidence found after he was arrested.

ORDER

And now, July 14, 2005, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that defendant’s omnibus pretrial motion in the nature of a motion to suppress evidence is granted and all evidence seized from the defendant’s person is suppressed and cannot be used against defendant at any proceeding in this case.


author: SHEERER, Member,

text:
    In re Stapleton

      Disciplinary Board Docket no. 47 D.B. 1993.
    April 13, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SHEERER, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Larrick B. Stapleton filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania on February 5, 2004. Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania dated July 1, 1993.

A reinstatement hearing was held on July 27, 2004, before Hearing Committee 1.16 comprised of Chair James D. Golkow, Esquire, and Members Theresa M. Italiano, Esquire and George D. DiPilato, Esquire. Petitioner was represented by William J. Honig, Esquire. Petitioner presented the testimony of 10 witnesses and testified on his own behalf.

The committee filed a report on January 21,2005, finding that petitioner met his burden of proof as to the requirements for reinstatement and recommending that the petition for reinstatement be granted.

This matter was adj udicated by the Disciplinary Board at the meeting of March 16,2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Larrick B. Stapleton. He was born in 1936 and was admitted to the practice of law in Pennsylvania in 1963. His address is 812 Wickfield Road, Wynnewood, PA 19096.

(2) Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania dated July 1, 1993.

(3) In 1991 petitioner was named co-executor of the estate of Thomas J. Bushyager. Petitioner acted as both executor and estate attorney as the other co-executor was not actively involved.

(4) Petitioner set up an estate account and failed to properly deposit checks of approximately $335,000 in that account, instead depositing the checks into his personal account.

(5) Approximately $200,000 of the funds was distributed to the appropriate heirs by petitioner.

(6) At this time petitioner held a power of attorney for Mary Poole and handled her financial affairs.

(7) Petitioner converted funds from Mary Poole by drawing checks to himself or to cash.

(8) Petitioner removed more than $100,000 from the Poole account over a period of two years.

(9) During the time frame in question, petitioner’s secretary, Chantal St. Phard, embezzled approximately $400,000 from petitioner. This included amounts deposited by petitioner into his own accounts which were Bushyager estate funds.

(10) Ms. St. Phard was prosecuted, convicted and sentenced to a period of seven years of probation. Petitioner advised the police of her crimes even though he knew it would reveal his own crimes. Petitioner cooperated with police in the prosecution of his secretary.

(11) Petitioner admitted that his neglect and mismanagement allowed his secretary to act without proper supervision.

(12) The total amount of loss was approximately $110,000 for the Poole account and $160,000 for the Bushyager estate.

(13) The Bushyager estate was made whole by settlement through petitioner’s malpractice carrier.

(14) Criminal charges were brought against petitioner and he ultimately pleaded guilty on February 20, 1997, to one count of mail fraud and one count of interstate transportation of stolen securities.

(15) Petitioner was sentenced to 18 months incarceration and restitution of $10,000 to the Mary Poole estate and $10,000 to the Client Security Fund.

(16) Petitioner served approximately eight months at Fort Dix, where he performed volunteer work, including teaching English to fellow prisoners who were illiterate. Fie also taught courses in drug and alcohol addiction and helped organize and run Alcoholics Anonymous meetings for prisoners.

(17) Petitioner served the remaining portion of his sentence at the federal medical center in Rochester, Minnesota, where he had to undergo medical treatment.

(18) Petitioner was placed in a half way house in Philadelphia in 2000.

(19) Petitioner reimbursed the Pennsylvania Lawyers Fund for Client Security in full, with interest.

(20) All restitution, fines and costs were paid to the United States District Court for the Eastern District of Pennsylvania, as well as all other persons who suffered loss as a result of petitioner’s misconduct.

(21) Petitioner successfully completed his probation in 2002.

(22) Petitioner admits that he took client funds without permission or justification.

(23) Petitioner is a recovering alcoholic, having been sober for the past 10 years.

(24) Dr. Richard Limoges testified at the hearing that petitioner has been sober for more than 10 years and that, after such long-term sustained remission, he would not likely suffer a relapse of active drinking.

(25) Subsequent to his release from prison, petitioner became involved with the Lawyers Concerned for Lawyers Sobriety Monitor program. Walter Bartholomew, Esquire, is his monitor.

(26) Subsequent to his release from prison, petitioner became a member of the Quakers and has been active in that group on drug concerns.

(27) Petitioner is an active member of Alcoholics Anonymous and has presented seminars on addiction and recovery at Temple Law School.

(28) Petitioner works as a law clerk for the Law Offices of Anna Durbin. He has been employed in that capacity since 2000 and works approximately 20 hours per week.

(29) Ms. Durbin testified at the hearing and attested to petitioner’s excellent legal abilities.

(30) If readmitted, petitioner plans to remain with Attorney Durbin.

(31) Eight other character witnesses testified on petitioner’s behalf.

(32) These witnesses all described petitioner’s reputation in the community as good for truthfulness and honesty. These witnesses support petitioner’s readmission.

(33) Petitioner fulfilled all of his Continuing Legal Education requirements for readmission.

(34) Petitioner expressed sincere remorse for his crimes and did not make excuses for his actions. He suffered humiliation and shame as the result of his actions.

III. CONCLUSIONS OF LAW

(1) The misconduct for which petitioner was disbarred is not so egregious as to preclude immediate consideration of his petition for reinstatement.

(2) Petitioner has demonstrated by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania.

(3) Petitioner has demonstrated that his resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or administration of justice nor subversive of the public interest.

IV. DISCUSSION

This matter comes before the Disciplinary Board on a petition for reinstatement filed by Larrick B. Stapleton. Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania dated July 1, 1993. Petitioner bears the burden of proof by clear and convincing evidence that he is qualified for readmission. Pa.R.D.E. 218(c)(3)(i).

Petitioner’s request for reinstatement following disbarment is initially governed by the standard set forth by the Supreme Court in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). As athreshold matter, the board must determine whether petitioner has demonstrated that his breach of trust was not so egregious that it precludes him from reinstatement.

Petitioner improperly withdrew funds from two estates to cover personal expenses as well as to mitigate shortfalls made by the actions of his secretary, who was embezzling large amounts of funds at that time. Petitioner entered a plea of guilty to one count of mail fraud and one count of interstate transportation of a stolen security.

These are serious acts, as misappropriation of entrusted funds strikes at the heart of a lawyer’s professional obligations. Petitioner’s actions not only brought embarrassment and shame to himself and his family, as he testified, but also damaged the reputation of the legal profession and, most grievously, took advantage of those who gave petitioner the funds for safekeeping. Despite the gravity of this misconduct, the court has permitted attorneys who have committed similar acts of misconduct to be reinstated. Office of Disciplinary Counsel v. Costigan, 541 Pa. 459, 664 A.2d 518 (1995).

Having concluded that petitioner’s misconduct is not so egregious as to preclude reinstatement, the board must now determine whether petitioner has met his burden of proving by clear and convincing evidence that his resumption of the practice of law at this time would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest, and that he has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania. Pa.R.D.E. 218(c)(3)(i). In order to make this determination, the board must consider the amount of time that has passed since petitioner was disbarred, as well as his efforts at rehabilitation. In re Verlin, 557 Pa. 47, 731 A.2d 600 (1999).

Petitioner has been without a license to practice law for nearly 10 years. Evaluation of petitioner’s disbarment period suggests that it was a time of successful qualitative rehabilitation, sufficient to dissipate the taint of his misconduct. During that time he served his criminal sentence and probation and made full restitution. Petitioner overcame an alcohol addiction and has worked to maintain sobriety for 10 years. He is very involved with Alcoholics Anonymous and other addiction programs, including teaching a course on addiction at Temple Law School.

Petitioner has worked as a paralegal since 1999, and currently works for Anna M. Durbin, Esquire. He has done very well in that capacity and intends to continue working for Ms. Durbin if reinstated. Petitioner kept current on the law due to his legal employment, and fulfilled his required Continuing Legal Education credits for reinstatement.

Petitioner expressed sincere remorse for his misconduct. Numerous witnesses attested that respondent’s reputation is excellent and he would be an asset to the legal community if reinstated.

Considering all of the above facts, the board is persuaded that petitioner has engaged in a qualitative period of rehabilitation during his disbarment. Petitioner has met his burden of proving that he has the moral qualifications, learning in the law and competency to practice law, and his resumption of the practice of law will not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Larrick B. Stapleton, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Curran did not participate in the matter.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 16, 2005 adjudication.

ORDER

And now, July 12, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated April 13, 2005, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.

      . This was later adjusted for payments which were received by Ms. Poole, and restitution was approximately $45,000.


author: RUFE, J., J.,

text:
    Fusco v. Harleysville Insurance Company

      Michael T. Sellers, for plaintiffs.

      Francis J. Deasey, for defendant.
    December 7, 2005
   RUFE, J., J.,

This opinion stems from the appeal by plaintiffs, Theodore and Rita Fusco, from our decision to grant defendant Harleysville Insurance Company’s motion for summaiy judgment. The only question presented on appeal is whether the Fuscos’ bad faith claim against Harleysville Insurance Company was barred pursuant to the statute of limitations, as established in Ash v. Continental Insurance Co., 861 A.2d 979 (Pa. Super. 2004). The relevant histoiy of the case is as follows.

This matter is the result of litigation relating to an automobile accident that occurred in January of 1990. In that accident, Theodore Fusco, insured by Harleysville, suffered serious bodily injuiy. The original action was filed in 1991 and tried in 1995 in favor of the Fuscos. Following the conclusion of that original action, plaintiffs initiated an underinsured motorist claim against Harleysville, which was arbitrated in November of 1995. The arbitration resulted in a finding in favor of the Fuscos and against Harleysville.

The Fuscos subsequently filed the instant lawsuit against Harleysville on June 10, 1998. The Fuscos alleged that defendant acted in bad faith by refusing to make a good faith settlement offer regarding the underinsured motorist claim. On August 3, 1998, Harleysville filed its answer and new matter to the complaint, alleging, inter alia, that the bad faith claim was barred by the statute of limitations. On July 14, 2005, Harleysville filed a motion for summary judgment. The motion argued that a recent decision of the Superior Court has prescribed a two-year statute of limitations for the Fuscos’ bad faith claim, and thus, the suit was barred and summary judgment should be granted.

In reviewing a motion for summary judgment, the record and all issues of genuine fact must be resolved in favor of the non-moving party. Commonwealth ex rel. Fisher v. Tiger Schulmann’s Karate Centers, 571 Pa. 413, 812 A.2d 614 (2002). A motion for summary judgment “is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Resolution Trust Corp. v. Urban Redevelopment Authority, 536 Pa. 219, 638 A.2d 972 (1994). Summary judgment is appropriate if a plaintiff’s cause of action is barred by the statute of limitations. Moyer v. Ru-bright, 438 Pa. Super. 154, 158, 651 A.2d 1139, 1141 (1994).

Section 8371 (Recovery for bad faith) provides:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.” 42 Pa.C.S. §8371.

The courts of the Commonwealth have applied a variety of different statutes of limitations to bad faith actions, including two, four and six years. See Mantia v. Northern Insurance Co. of New York, 39 D.&C.4th 71 (1998) (six-year statute of limitations applied); Trujillo v. State Farm Mutual Automobile Insurance Co., 2002 Pa. Lexis 3705 (Pa. Super. 2002) (two-year statute of limitations applied). In the recent case of Ash v. Conti nental Insurance Co., 861 A.2d 979 (Pa. Super. 2004), however, our Superior Court considered all of these arguments and concluded that section 8371 is a statutorily created tort action subject to a two-year statute of limitations.

In the instant matter, the only issue presented is whether the Fuscos’ suit is barred by the statute of limitations. The Fuscos’ arbitration hearing was in November 1995, at which time they were awarded $500,000. Therefore, at the very latest, the statute of limitations began to run in November of 1995 and expired in November of 1997. Notwithstanding, the Fuscos’ bad faith claim against Harleysville was not filed until June 10, 1998, approximately seven months after the expiration of the statute of limitations.

In their response to Harleysville’s motion for summary judgment, and at oral argument, the Fuscos concede the bad faith claim is barred if the statute of limitations in this action is a two-year period. Instead, the Fuscos maintain that the rule set forth in Ash is not controlling because in that case a petition for allocatur has been granted by the Supreme Court. As such, the Fuscos contend the Ash decision is not binding because the Supreme Court has decided to hear the appeal. Despite the Fuscos’ unsupported assertion, our Superior Court has expressly stated, “[a]s long as [a] decision has not been overturned by our Supreme Court, it remains binding precedent.” Sorber v. American Motorists Insurance Company, 451 Pa. Super. 507, 510, 680 A.2d 881, 882 (1996). Accordingly, regardless of the granted appeal to the Supreme Court, this court is bound by the Ash decision and, accordingly, we granted Harleysville’s motion for summary judgment.


author: VALASEK, J.,

text:
    Commonwealth v. Holizna

      George R. Kepple, for plaintiff.

      Joseph F. Caruso, for defendant.
    October 28, 2005
   VALASEK, J.,

Before the court for disposition is defendant’s petition for Post Conviction Collateral Relief (PCCR), which was timely filed on April 18, 2005 by defendant acting pro se. Counsel has been appointed to represent defendant with respect to this petition.

The background of this case is as follows. On September 5,2003, defendant pled guilty to charges of statutory sexual assault and indecent assault. On September 20,2003, the defendant having been convicted of a sexually violent offense as specified in 42 Pa.C.S. §9795.1, specifically 18 Pa.C.S. §3126(a)(7), pertaining to indecent assault upon a complainant less than 13 years of age, the court ordered that the Sexual Offenders Assessment Board (SOAB) perform an assessment to determine whether defendant met the criteria to be adjudicated a sexually violent predator pursuant to Pennsylvania’s Megan’s Law, 42 Pa.C.S. §9795.1 et seq.

Defendant was interviewed by the SOAB assessor, who subsequently prepared a written assessment of defendant. Copies of the assessment were given to both the Commonwealth and the defendant prior to defendant’s SVP hearing on February 25, 2004. At the hearing, the SOAB assessor reviewed her findings for the court and stated that in her expert opinion, defendant met the criteria set forth in section 9795.4 and should be adjudicated a sexually violent predator. Although defendant had the right to hire his own expert and to present that expert’s findings at the hearing pursuant to 42 Pa.C.S. §9795.4(e)(2), he did not do so. On March 23,2004, this court ruled that defendant was a sexually violent predator. Petitioner was thereafter sentenced to a term of imprisonment of no less than six nor more than 12 years. No direct appeal was taken from the SVP determination or judgment of sentence.

Defendant’s PCCR petition alleges, among other things, that defendant’s privately-employed trial counsel was ineffective because he did not inform defendant that he could petition the court to hire an independent expert assessor at public expense if defendant could not afford to hire one. The court conducted an evidentiary hearing solely for the purpose of developing a record on this issue on August 19, 2005.

At the hearing, defendant testified that he had received a copy of the SOAB assessor’s report prior to the SVP determination hearing and that he did discuss the report’s findings with his attorney, Clifford Early. Flowever, defendant said Early never informed him that he could hire his own expert to counter the SOAB’s assessment. Defendant further testified that at this point, he had no income or assets with which to pay for his own expert.

Early disagreed with defendant’s testimony. Early testified that he and defendant had in fact reviewed and discussed both the written SOAB assessment and this court’s order of September 30, 2003. The order outlined in detail the procedure for determining whether defendant was an S VP, and specifically referred to defendant’s right to hire his own expert. Early said they then talked specifically about this possibility and Early asked defendant how he wished to proceed. According to Early, defendant replied that he could not afford to hire his own expert and also indicated to Early that he did not see how it would benefit him to hire one. Early did admit that he had never considered the possibility of petitioning the court to approve the hiring of an expert at county expense, and that he never discussed this option with defendant.

The court accepts as true counsel’s testimony that he and defendant together reviewed the September 30,2003 scheduling order which included defendant’s right to hire an independent expert, and that they also together reviewed the assessor’s findings and recommendations regarding the issue of whether or not defendant should be adjudicated to be a sexually violent predator. The court further finds credible counsel’s testimony that he and defendant discussed the possibility of hiring an independent expert and that defendant rejected that possibility on the basis that he could not afford to hire one, and also did not see how it would help his case.

The court also finds that defendant was at that time indigent and could not afford to hire his own expert to rebut the Commonwealth’s report at the SVP hearing, and that defendant’s counsel never presented defendant with the option of seeking the court’s permission to hire an expert at public expense.

The Superior Court recently decided in Commonwealth v. Curnutte, 871 A.2d 839, 841 (Pa. Super. 2005), that a defendant is entitled to the assistance of a court-appointed psychological expert at an SVP proceeding when he is unable to procure one on his own. The court explained, “[T]he need for expert assistance is . . . compelling in Megan’s Law proceedings, where a defendant’s mental condition and likelihood of future dangerousness are the central issues.” Id. at 843.

The Superior Court then held that the trial court had erred when it denied the indigent defendant’s request for a court-appointed mental health expert, stating, “[Procedural due process guarantees that a defendant has the right to present competent evidence in his defense, and the state must ensure that an indigent defendant has a fair opportunity to present his defense.” Id. at 842. On that basis, the Superior Court vacated the trial court’s SVP determination and remanded the case for the appointment of an expert and a new SVP hearing. Id. at 841.

Defendant claims that his trial counsel was ineffective in failing to advise defendant of his right to apply for a court-appointed expert, and in failing to seek the appointment of same. When a defendant raises an ineffectiveness of counsel claim in a PCCR petition, the defendant must show: (1) that the underlying claim of error is of arguable merit, (2) that counsel had no reasonable basis for the action or omission in question, and (3) that counsel’s action or omission caused prejudice to his client, such that the outcome of the proceedings would have been different. Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-76 (1987).

Applying the three-prong Pierce test to the facts of this case, the court will first address the question of whether defendant’s counsel acted reasonably despite the fact that he failed to inform defendant that he could seek to have the court appoint an independent expert. The court notes that defendant’s SVP hearing was held on February 25,2004, while Curnutte was not decided until March 22, 2005, more than a year later.

In Curnutte, the Superior Court specifically stated that it was addressing “an issue of first impression: whether under the statutory scheme in Pennsylvania a defendant is entitled to the assistance of a court-appointed psychological expert at an SVP proceeding when he is unable to procure one on his own.” Id. at 841. From this, it is clear that the issue had never been addressed in the context of Pennsylvania’s Megan’s Law.

In addition, the plain language of the statute provided that a defendant “shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one.” 42 Pa.C.S. §9795.4(e)(2). By contrast, the statute stated that a defendant had the right to request an expert assessment other than that conducted by the SOAB, but did not state that the court would appoint this expert at public expense if defendant could not afford to hire one. See 42 Pa.C.S. §9795.4(e)(2).

Furthermore, the Supreme Court had just determined that Megan’s Law proceedings were non-punitive in nature and that the constitutional safeguards required in connection with a criminal trial were not necessarily required in order to make an SVP determination. See Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003). The Supreme Court has held numerous times that “counsel cannot be ineffective for failing to predict changes in the law.” Commonwealth v. Tilley, 566 Pa. 312, 318-19, 780 A.2d 649, 653 (2001), citing Commonwealth v. Fowler, 550 Pa. 152, 156, 703 A.2d 1027, 1029 (1997). Accord, Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977). Under the circumstances recited above, it was entirely reasonable for defendant’s trial counsel to believe that the court was not required to appoint an independent assessor at public expense.

Moreover, defendant’s trial counsel testified that defendant “thought that another expert would not persuade the court if Ms. Manno made that [SVP] determination,” Transcript of 8/19/05 hearing at 12, that defendant believed the court would not find him to be a SVP because the assessor’s report did not state that defendant was violent, id. at 10, and that counsel believed he could advance defendant’s case through effective cross-examination of the assessor. Id. For all the above reasons, the court finds that defendant’s trial counsel did not provide ineffective assistance by failing to advise defendant that he could seek to have an expert assessor appointed at public expense.

Although this opinion disposes of the expert assessor issue, there are several issues which still must be resolved. Some of these involve claims of ineffective assistance of counsel, and some deal with the sufficiency of the evidence. The court notes that a challenge to the sufficiency of the evidence is not cognizable in a PCRA petition, since such a challenge is properly made by direct appeal. Commonwealth v. Price, 876 A.2d 988, 993-94 (Pa. Super. 2005). However, defendant claims that his right of direct appeal was improperly obstructed by government officials. If the court finds that defendant’s right to file a direct appeal was improperly obstructed, the proper remedy would be to allow him to file a direct appeal nunc pro tunc. Therefore, the court will order an evidentiary hearing to be held on that issue forthwith.

An appropriate order will follow.

ORDER

And now, October 28, 2005, having considered defendant’s Post-Conviction Relief Act petition claim that he received ineffective assistance of counsel because he was not advised prior to his sexually violent predator hearing that he could seek to have an expert assessor appointed at public expense, and having held an evidentiary hearing solely on that issue, the court finds that defendant has failed to show by a preponderance of the evidence that he received ineffective assistance of counsel in that regard. Therefore, it is ordered, adjudged and decreed that defendant’s petition for PCRA relief be and is hereby denied with respect to that issue. It is further ordered, adjudged and decreed that an evidentiary hearing on the issue of whether defendant’s right to a direct appeal was improperly obstructed be held on March 6, 2006, at 2:30 p.m. in courtroom no. 2 of the Armstrong County Courthouse, Kittanning, Pennsylvania so that the court may determine forthwith if defendant should be granted a direct appeal nunc pro tunc.

      . Defendant testified that he was last employed in July 2001, at which time he was seriously injured in an automobile accident and could no longer work. Defendant testified that he subsequently filed suit and received $40,000 for his injuries, which he spent on bail and attorney’s fees in the instant case.


author: STEINBERG, J.,

text:
    Commonwealth v. Kerrigan

      Matthew Falk, deputy district attorney, for Commonwealth.

      Norris Gelman, for defendant.

      November 17, 2005
   STEINBERG, J.,

On December 9, 2004, the defendant, Daniel Kerrigan, was found guilty after a juiy trial of rape of a child, rape of a child (serious bodily injury), involuntary deviate sexual intercourse, involuntary deviate sexual intercourse (serious bodily injury), aggravated indecent assault (2 counts), indecent assault, and corruption of minors. The defendant was convicted of sexually abusing A.R. in a variety of ways. The sexual abuse began when she was 7, and continued until she was 10, when it was discovered that she had genital warts.

A presentence report was completed as well as a sex offender evaluation by the Sexual Offenders Assessment Board. However, sentencing was delayed due to the entry of appearance of appellate counsel, Norris Gelman, and the withdrawal of the appearance of trial counsel, Brett Riegel.

On July 13,2005, the defense conceded that the Commonwealth could demonstrate by clear and convincing evidence that the defendant was a sexually violent predator, and an order to that effect was entered. Not only did the sex offender evaluation conclude that the defendant met the diagnostic criteria for pedophilia, but his prior convictions were for sexual assault (aggravated) and related offenses involving his stepdaughter. He was sentenced to 14 years imprisonment in New Jersey in 1991, and was paroled in 1994. The evaluator’s analysis of the defendant was that his “long-term abuse of the current victim and past history of conviction and accusations of abuse reveal the presence of patterned sexual deviance. ... He committed an escalated pattern of sexual assault that included penetration of the child vaginally and anally in a four-year time period.”

On July 13, 2005, following review of the pre-sentence report, the sentencing guidelines and a sentencing hearing, a total sentence of not less than 25 years nor more than 50 years in a state correctional institution was imposed. Thereafter, counsel filed “post-sentencing motions,” and a hearing on those motions was held on October 10,2005.

The defendant sexually abused A.R. while she resided in the Whittier Apartments in Catasauqua, Lehigh County, Pennsylvania. Earlier abuse had also taken place in New Jersey, where the defendant met the victim’s mother, Donna Rutkowski.

Ms. Rutkowski met the defendant in approximately 1994, and the two began dating in 1996. They began living together in 1999, and moved to Catasauqua in 2001. The victim, who referred to the defendant as “Dad,” although he is not her biological parent, also was a member of the household.

During their residence at the Whittier Apartments, A.R. made her first accusations of sexual abuse against the defendant. Following a discussion between all three, in which the defendant denied the accusation, Donna Rutkowski chose not to believe her daughter. A.R. made additional accusations of sexual abuse against the defendant, and each time the defendant denied it, and no further action was taken. Finally, following a physical inspection of her daughter’s genital area, Donna Rutkowski made an appointment with a physician, and genital warts were discovered.

Doctor John Van Brakle, Chairman of Pediatrics at Lehigh Valley Hospital, was qualified as an expert in pediatric medicine and examination and treatment of child sexual assault injuries. Doctor Van Brakle examined A.R. and discovered “a series of dark lesions, spots, that were in the area around her anus, and then more anteriorally to the area surrounding her vaginal area.” The genital warts had previously been removed by Dr. John Scaffidi, whose testimony was presented by stipulation. Doctor Scaffidi saw A.R., who was 10 at that time, and discovered that she had HPV (Human Papillomavirus) “or genital warts around her vagina and anus. On that date he used a laser to vaporize all of her external genital warts around her vagina and anus.”

It was explained by Doctor Van Brakle that genital warts are transmitted primarily, although not exclusively, by “genital to genital contact.” HPV is the most common sexually transmitted disease amongst adolescents in the United States. This virus is associated with a variety of genital cancers, including cervical cancer. In fact, A.R. is at a higher risk of developing cervical cancer or cancer of the rectum because she is HPV positive. “It’s thought that, at least 80 percent. .. perhaps 90 percent of cervical cancer is a result of previous HPV infection.” Finally, Doctor Van Brakle rendered the opinion that evidence of sexual abuse was present.

A.R. disclosed that the defendant began touching her when she lived in New Jersey. Following their arrival at the Whittier Apartments, the abuse continued and escalated to vaginal and anal intercourse. The repeated incidents of sexual abuse took place in various rooms within the home while her mother was either not home or sleeping. They also increased as she got older with the most frequency at their last residence in Catasauqua.

The defendant, during an interview with Marlene Dal Maso, a child protective services worker, told her that he had a genital wart outbreak about 20 years earlier. He also offered the possibility that he may have given A.R. her genital warts by accidentally touching her after he masturbated.

The defendant denied sexually abusing A.R., and claimed that he had a crown wart removed from his penis in 1982. He admitted making statements to Ms. Dal Maso about warts and how they may have been transmitted to A.R. A stipulation was also introduced that the defendant was tested in prison and no genital herpes or warts were discovered. However, Doctor Van Brakle pointed out that HPV has a “very variable course. The HP V can be active with lesions, meaning that there are— the virus is present and you have — -and warts are present. It can be active, in the sense that virus can be shed from the individual, and there are no warts present. . . . It’s also possible that the virus can be latent for a period of time, so that you can — we can do our best, in terms of trying to determine the virus, we can find no traces of the virus, and then subsequently, the individual can develop clinical — a recurrence of clinical infection.”

Various claims are raised in the post-sentence motions, including the allegation that the Commonwealth did not establish jurisdiction. Specifically, it is alleged that because the victim was sexually abused in New Jersey and Pennsylvania, the failure to properly instruct the jury that their decision related to incidents in Lehigh County may have resulted in the jury finding him guilty for acts in New Jersey.

This claim is directly contradicted by the opening and closing instructions provided to the jury. During the opening instructions, the jury was told that the Commonwealth was alleging that “on or between July of2001 and March of 2003, in various locations, including the Whittier Apartments located at 811 Poplar Street, Catasauqua, Lehigh County, Pennsylvania,” the defendant committed the identified offenses. They were even told not to visit the Whittier Apartments. Prior to the defendant’s testimony, all parties recognized that “obviously the jury is deciding whether sexual conduct took place in the County of Lehigh.” The following discussion then took place with counsel:

“The Court: It is relevant that the parties lived together in New Jersey, and it began in New Jersey, but if the jury — and I don’t see this happening — but if the jury concluded, listen, we only think it happened in New Jersey, they would be obliged to conclude the defendant is not guilty of these charges, because it requires these charges to have occurred in the County of Lehigh.
“Now, in my instructions I’m going to tell them one of the things that they’re going to have to decide is, what did actually happen in Catasauqua, County of Lehigh, between the defendant and [A.R.]?
“And, I don’t know if they’re going to come back with a question concerning that, or not.
“Do either counsel have any other way to deal with that issue?
“Mr. Falk: Judge, I think that’s fine.
“Mr. Riegel: I would wait for the question, I agree.
“The Court: Okay. You’re satisfied with that?
“Mr. Riegel: Yes.”

Pursuant to that discussion, the following closing instruction was provided:

“The Court: What did actually happen in-Catasauqua, Lehigh County, between [A.R.] and Daniel Kerrigan, if anything.”

Additionally, the defense conceded A.R. was sexually abused, but claimed the defendant was not responsible for that abuse. The defendant, in his own testimony, agreed that A.R. was sexually abused but testified he did not do so. Therefore, jurisdiction would only have been of concern if the defense had made the questionable strategic decision to allege that the defendant abused A.R. in New Jersey, but not Pennsylvania. No confusion existed on the part of the jury. The instructions focused the jury on Lehigh County by location and date (2001-2003), counsel agreed on the instructions, and the defense contested the perpetrator not the jurisdiction.

In Commonwealth v. Duden, 326 Pa. Super. 73, 86, 473 A.2d 614, 621 (1984), it was also alleged that the trial court “erred in failing to specifically instruct the jury on the law concerning jurisdiction.” Id.; see also, Commonwealth v. Passmore, 857 A.2d 697, 709 (Pa. Super. 2004). However, it is well settled that “[j]urisdiction is a legal issue and therefore is not normally a concern for the jury.” Duden, 326 Pa. Super, at 86, 473 A.2d at 621. “Where the facts underlying jurisdiction are not in dispute, the rule is as follows:

“There is no duty on a trial judge to charge a jury upon law which has no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at the trial: Commonwealth v. Coleman, 402 Pa. 238, 166 A.2d 525 (1961).” Id. (quoting Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963)).

Here, the defendant received a jurisdiction instruction even though it was never integral to the defense. There was no real issue as to jurisdiction until this retrospective analysis attempted to reframe the defense.

The defendant also claims that counsel was ineffective in failing to object to our instructions concerning reasonable doubt and credibility. It would appear appellate counsel suggests that in some manner the use of a credibility instruction “imposed a burden of believability on the defendant.” The record refutes this claim.

The following instruction on reasonable doubt and presumption of innocence was presented to the jury:

“A fundamental principle of our system of criminal law is that the defendant is presumed to be innocent.
“The mere fact that he is arrested, and is accused of a crime, is not any evidence against him. Furthermore, the defendant is presumed innocent throughout the trial and unless and until you conclude, based upon impartial consideration of the evidence, that the Commonwealth has proven him guilty beyond a reasonable doubt.
“It’s not the defendant’s burden to prove that he is not guilty. It is the Commonwealth that always has the burden of proving each and every element of each crime charged and that the defendant is guilty of those crimes beyond a reasonable doubt.
“If the Commonwealth’s evidence fails to meet its burden with respect to any of those offenses, then your verdict must be not guilty with respect to those offenses the Commonwealth has not proven beyond a reasonable doubt.
“On the other hand, if the Commonwealth’s evidence does prove, beyond a reasonable doubt, that the defendant is guilty of any of these offenses, then your verdict should be guilty with respect to those offenses they have proven beyond a reasonable doubt.
“Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt, or to a mathematical certainty, because there are a few things in life that we can be absolutely certain about.
“Nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his own affairs.
“A reasonable doubt must fairly arise out of the evidence that was presented, or out of the lack of evidence presented, with respect to some element of the crime.
“A reasonable doubt must be a real doubt. It may not be an imagined one, nor may it be manufactured to avoid carrying out an unpleasant duty.
“So, to summarize, you may not find the defendant guilty based on mere suspicion of guilt. The Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt. If it meets that burden, then the defendant is no longer presumed innocent, and you should find him guilty.
“On the other hand, if the Commonwealth has not met its burden, then you must find him not guilty.”

This instruction is in accord with the requirements of Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1984). See also, Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 92 (2004); Commonwealth v. Murphy, 559 Pa. 71, 739 A.2d 141, 146-48 (1999). “The Constitution does not dictate that any particular form of words be used in advising the jury of the government’s burden of proof, so long as taken as a whole, the instructions correctly convey the concept of reasonable doubt.” Victor, 511 U.S. at 1, 5, 114 S.Ct. at 1241, 1243.

A full instruction on credibility was also provided to the jury. Credibility was an issue in this case and the jury needed tools to understand how to resolve that dilemma. No burden shifting was created, either real or imagined, by providing guidance on this issue. “Questions of credibility must always be put before the jury as the fact-finder and the judge must instruct the jury as to credibility considerations applicable to the case.” Commonwealth v. Snoke, 525 Pa. 295, 580 A.2d 295, 298 (1990). (citations omitted) It appears that appellate counsel is complaining about the placement of the credibility instruction rather than its content. Additionally, attempting to focus on one or two words or paragraphs taken out of context, as counsel is well aware, will not be subject to review. Murphy, 739 A.2d at 146. “When evaluating the adequacy of jury instructions, the charge must be read in its entirety, (citation omitted) Error cannot be predicated on isolated excerpts of the charge; it is the general effect that controls.” (citation omitted) Id.; see also, Commonwealth v. Cox, 581 Pa. 107, 129, 863 A.2d 536, 549 (2004).

The defendant’s citations to Victor v. Nebraska, supra and Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) do not lead to a different conclusion. In Cage, the Supreme Court concluded that the “reasonable doubt instruction” violated the Due Process Clause because the words used, “substantial” and “grave,” suggested a higher degree of doubt. Likewise, Humanik v. Beyer, 871 F.2d 432 (1989), pertains to the burden of proof when establishing a diminished capacity defense, and has no applicability.

A review of the complete charge discloses that credibility and reasonable doubt were clearly explained to the jury, and counsel was not ineffective by not objecting to those instructions. The requirements appellate counsel would impose on structuring a credibility instruction would create a conundrum impossible to solve.

The defendant also contends that Doctor Van Brakle improperly bolstered A.R.’s testimony when he relied, in part, on her history in rendering his opinion that she was a victim of sexual abuse. Doctor Van Brakle was not bolstering the victim’s testimony, but merely relying upon it to reach his opinion. He also relied upon the presence of an HP V infection, and the physical examination, which included evidence of anal trauma. His testimony did not bolster the victim nor implicate the defendant, but merely supported an opinion of genital to genital contact with an adult male, a fact to which everyone agreed. See Commonwealth v. Fink, 791 A.2d 1235, 1247 (Pa. Super. 2002) (A physician is permitted to testify that his or her findings following examination are consistent with a victim’s allegations of abuse); see also, Commonwealth v. Hernandez, 420 Pa. Super. 1, 13-14, 615 A.2d 1337, 1343 (1992).

It is also alleged that a mistrial should have been granted when Marlene Dal Maso, the child protective service worker, inadvertently mentioned the following:

“He indicated that he tested negative for genital warts, that he had an outbreak about 20 years earlier. That during a stay of prison in New Jersey he had test....”

Counsel immediately objected, and the objection was sustained. He then requested a mistrial, which was denied. This court offered to provide a cautionary instruction, which after consultation with his client, counsel rejected. The witness was instructed not to repeat that reference to his incarceration, and there was no further problem.

“Not all references which may indicate prior criminal activity require reversal. Mere passing references to criminal activity will not require reversal unless the record indicates that prejudice resulted from the reference.” Commonwealth v. Guilford, 861 A.2d 365, 370 (Pa. Super. 2004) (quoting Commonwealth v. Blystone, 555 Pa. 565, 580, 725 A.2d 1197, 1204-1205 (1999)). Here, the reference was not intentionally elicited nor was it exploited, both of which are factors to evaluate in deciding this claim. Furthermore, the decision of the defendant not to request a cautionary instruction constitutes a waiver of this issue. Commonwealth v. Bryant, 579 Pa. 119, 141, 855 A.2d 726, 739 (2004); Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989). In Wallace, a witness testified that he met the defendant in the “West Virginia Penitentiary.” A motion for mistrial was made, and when denied, an offer by the trial judge to give a cautionary instruction was refused. The failure to accept the cautionary instruction nor object when one was not given constitutes a waiver of the argument. Id. at 307, 561 A.2d at 724. See also, Blystone, 725 A.2d at 1205 (counsel was not ineffective in not requesting a cautionary instruction where it might highlight statements).

The court in denying the request for a new trial also reiterated that there is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity. In this case, the testimony did not relate to any specific past criminal act and while the testimony might have inferentially exposed a prior conviction, the jury had no direct knowledge of the basis of that conviction. Wallace, 522 Pa. at 308, 561 A.2d at 724-25.

The defendant also alleges counsel was ineffective in not pursuing a motion to dismiss pursuant to Pa.R.Crim.P. 600. However, a review of the relevant time period discloses that Rule 600 had not expired. The defendant originally entered guilty pleas to some of the charges on January 20, 2004. Thereafter, he was permitted to withdraw his guilty plea on May 10, 2004. On that date, it was decided that a taint hearing had to be scheduled, and it was agreed it would be held on July 13, 2004. Thereafter, trial counsel requested and was granted a continuance of that hearing date, due to a trial conflict. The date of September 30, 2004, was then selected, and the taint hearing was held on that date. Trial was then scheduled and commenced on December 7, 2004.

Pa.R.Crim.P. 600(D)(1) states the following:

“(D)(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within 120 days after the date of the order granting a new trial, if the defendant is incarcerated on that case. If the defendant has been released on bail, trial shall commence within 365 days of the trial court’s order.”

The Comment to Rule 600 explains that “[t]he withdrawal of... a guilty plea should be considered the granting of a new trial for purposes of this rule.” See Commonwealth v. Bowes, 839 A.2d 422, 426 (Pa. Super. 2003) (The new period began to run when [the defendant] withdrew his guilty plea). The defendant tendered his plea on January 20, 2004, and that tolled the running of Rule 600. Id. at 425. It was not until he withdrew his plea on May 10, 2004, that the 120-day time period commenced. Thereafter, delays in commencing trial were due to defense counsel’s continuance and the need to resolve the taint hearing requested by the defense. See Pa.R.Crim.P. 600(C)(3), which excludes from the commencement period: “such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant’s attorney; (b) any continuance granted at the request of the defendant or the defendant’s attorney.” See also, Commonwealth v. Hill, 558 Pa. 238, 736 A.2d 578 (1999) (Time between filing and resolution of defendant’s pretrial motions is excludable from the speedy trial period if the motion delayed trial and thus made the defendant unavailable). As a result of trial counsel’s continuance, and the need to decide the taint hearing, only 68 days of non-excludable time expired when trial commenced.

The defendant also alleges that HPV does not constitute serious bodily injury. Both rape of a child (serious bodily injuiy) and involuntary deviate sexual intercourse (serious bodily injuiy) add the additional requirement of proving that the complainant “suffers serious bodily injury in the course.of the offense” 18 Pa.C.S. §§3121(d), 3123(c). “Serious bodily injury is bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. §2301. The defendant’s long-standing sexual abuse of A.R. caused HPV, a sexually transmitted disease. A disease of that nature, warts and all, constitutes bodily injury. See People v. Calvo, 628 N.E.2d 856 (Ill. App. 1993) (chlamydia constitutes bodily harm). The serious bodily injury component is the link between HPV and cervical cancer.

“The association between HPV and cervical cancer was first suggested in the 1970s. Numerous epidemiologic and molecular studies performed since then have provided virtually irrefutable evidence for the role of HPV as an etiologic agent in cervical cancer and other anal and genital tract cancers as well. Cervical cancer is the second most common cancer in women throughout the world . . . cervical cancer is associated with high mortality.” Worldwide, cervical cancer is the second-leading cause of cancer death in women. In the United States, approximately 10,000 women will develop cervical cancer each year, resulting in almost 3,000 deaths.

It is an understatement to suggest that A.R. does not have an increased risk of cervical cancer. Further evidence of that fact can be found by virtue of HPVDNA being detected in adequate specimens of cervical cancer in 90-100 percent of cases. Therefore, the defendant’s sexual contact is directly linked to a life-threatening sexually transmitted disease. He compromised and impaired the victim’s immune system. See Commonwealth v. Alston, 748 A.2d 677 (Pa. Super. 2000) (Various communicable diseases likely to produce serious bodily injury); United States v. James, 957 F.2d 679 (1992) (9-year-old girl infected with genital herpes as the result of repeated sexual assaults has suffered permanent bodily injury); United States v. Reister, 40 M.J. 666 (1994) (Genital herpes is a virus which recurs at any time . . . the recurring nature of the disease, along with associated medical problems it can cause, permits it to be considered a means likely to produce grievous bodily harm). In James, 957 F.2d at 681 it was explained as follows:

“Herpes is a highly contagious disease transmitted through sexual activity. The disease has obvious and detrimental impacts on a person’s life-style and relationships. Because of the danger of transmittal of the disease during child birth, medical literature recommends a caesarean alternative. Beyond the physical dimension, the district judge noted the unique emotional and psychological impairments resulting from this assault. '[W]e must appreciate in this case the fact that the disease is permanent, is recurring. And while someone may overcome the psychological trauma of sexual abuse, it’s also clear that by virtue of the recurring nature of this particular disease, that it would be [a] constant and recurring reminder of the abusive act itself, or acts in this case.’ ”

The remaining claims are without merit and will be addressed briefly and in seriatim fashion. It is alleged that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), affects the testimony of Detective Rentko and Doctor Van Brakle even though the victim testified at trial. Counsel recognizes that Crawford has no applicability if the witness testifies, but suggests that her testimony was “the functional equivalent of her not having testified.”

The Supreme Court in Crawford left no doubt that when a declarant appears for cross-examination at trial, the confrontation clause places no constraints at all on the use of her prior out-of-court testimonial statements. Specifically, the Supreme Court stated the following:

“Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162 [, 90 S.Ct. 1930, 26 L.Ed.2d 489] (1970). It is therefore irrelevant that the reliability of some out-of-court statements ‘cannot be replicated, even if the declarant testifies to the same matters in court.’ Post, at 74 (quoting United States v. Inadi, 475 U.S. 387, 390 [, 106 S.Ct. 1121, 89 L.Ed.2d 390] (1986)). The clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)).”

Counsel is now attempting to interpret the phrase “no constraints” in a manner which will limit the scope of Detective Rentko’s and Doctor Van Brakle’s testimony. Their testimony was authorized by statute without restraint. See 42 Pa.C.S. §5985.1; see also, State v. King, 2005 WL 1492001 (Ala. Crim. App.) (Counsel’s attempt to limit the testimony of child-advocacy workers which exceeded the testimony of the victim was rejected). Defense counsel cannot be deemed ineffective for failing to raise a Crawford challenge to the testimony of other witnesses, when the victim’s testimony was challenged by the “crucible of cross-examination.” Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199.

Finally, it is alleged that the Commonwealth failed to establish “proof of penetration of A.R. in any manner in Lehigh County.”

A claim challenging the sufficiency of the evidence asserts that there is insufficient evidence to support at least one material element of the crime for which the defendant was convicted. Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). In Commonwealth v. Taylor, 831 A.2d 661 (Pa. Super. 2003), the standard for reviewing sufficiency challenges was explained in the following manner:

“The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Taylor, 831 A.2d at 663 (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)).

See also, Commonwealth v. Trimble, 419 Pa. Super. 108, 615 A.2d 48 (1992). Thus, viewing the evidence in the light most favorable to the Commonwealth, it must be determined whether the jury properly concluded that the element of penetration in Lehigh County was established beyond a reasonable doubt.

This claim seems to focus on the location of the penetration rather than the penetration itself. Flowever, in an effort to avoid any confusion, it is important to recognize that the requirement for sexual intercourse is “penetration however slight.” 18 Pa.C.S. §3101. “It is clearly established that there is no requirement that penetration reach the vagina.” Trimble, supra at 112, 615 A.2d at 50. Furthermore, a victim’s childlike statements are sufficient to establish penetration. In re A.D., 771 A.2d 45, 49 (Pa. Super. 2001) (The statements of the victim, which included words such as pee-pee sufficiently established penetration).

The medical testimony alone, which included evidence of genital warts and anal trauma, provided proof of penetration. Additionally, the victim and the corroborating witnesses established penetration beyond a reasonable doubt. “He had put his private inside where she pees and poops.” The location of the penetration is a variation of the jurisdiction claim, and equally unavailing to the defendant. The testimony revealed that the defendant groomed the victim in New Jersey by touching her, and then escalated his sexual abuse when they moved to Pennsylvania. The abuse “increased as she got older. With each move [it] increased. There wasn’t as much when they lived in New Jersey. Then when they moved to Whittier it increased. And then to... I believe it’s Poplar Street, it again increased and continued.” This evidence satisfies any requirement that the Commonwealth demonstrated that penetration occurred in Lehigh County.

ORDER

And now, November 17,2005, the defendant’s “post-sentencing motions” are hereby denied and dismissed.

      . 18 Pa.C.S. §3121(c).

      . 18 Pa.C.S. §3121(d).

      . 18 Pa.C.S. §3123(b).

      . 18 Pa.C.S. §3123(c).

      . 18 Pa.C.S. §3125(a)(1), (b).

      . 18 Pa.C.S. §3126(a)(7).

      . 18 Pa.C.S. §6301(a)(1).

      . A sexual arousal to prepubescent children.

      . Sex offender evaluation, p. 4.

      . A sentence of 10 to 20 years was imposed on the rape of a child offenses and a consecutive 10- to 20-year sentence was imposed on the involuntary deviate sexual intercourse charges. Those sentences were ordered to run consecutively with a five- to 10-year sentence on the aggravated indecent assault charges. The remaining offenses were imposed concurrently.

      . Notes of Testimony, trial, volume II, p. 116 (N.T.T. vol. II).

      . N.T.T. vol. II, pp. 111-12.

      . N.T.T. vol. II, p. 112.

      . N.T.T. vol. II, p. 120.

      . N.T.T. vol. II, p. 126.

      . N.T.T.vol. II, pp. 258-65.

      . N.T.T. vol. II, p. 264.

      . N.T.T.vol. II, p. 208.

      . N.T.T.vol. II, p. 250.

      . Notes of Testimony, trial, volume III, pp. 20, 28 (N.T.T. vol. III).

      . N.T.T. vol. III, pp. 27, 29-30.

      . N.T.T. vol. II, pp. 121-22.

      . Post-sentence motions, pp. 7-22.

      . N.T.T. vol. II, p. 32.

      . N.T.T. vol. II, p. 50.

      . N.T.T. vol. III, p. 7.

      . N.T.T. vol. III, pp. 7-8

      . N.T.T. vol. III, p. 86.

      . N.T.T. vol. III, p. 35.

      . N.T.T. vol. II, p. 160. Donna Rutkowski testified that they moved to Catasauqua in 2001.

      . Post-sentence motions, pp. 3-7.

      . N.T.T. vol. III, pp. 108-10.

      . N.T.T. vol. III, pp. 88-94.

      . N.T.T. vol. II, p. 208.

      . N.T.T. vol. II, p. 212.

      . He was not permitted to withdraw his guilty plea to the charge of failure to register (Megan’s Law), 42 Pa.C.S. §9795.2(b). On September 30, 2004, he was sentenced to 36 months to 72 months in a state correctional institution on that charge. No appeals are pending in that matter.

      . Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003).

      . All of the time from July 13, 2004 to September 30, 2004 is excludable. The only period that is not excludable would be September 30, 2004 to December 7, 2004 (68 days).

      . Laura Koutsky Ph.D., Epidemiology of Genital Human Papillomavirus Infection, Department of Epidemiology, University of Washington, HPV Research Group, Seattle, Washington, 1997; see also, National Institute of Health. Consensus Development Statement on Cervical Cancer, Bethesda, Maryland, April 1-3, 1996.

      . National Cancer Institute, U.S. National Institutes of Health, What You Need To Know About Cancer of the Cervix, http:// www.nci.nih.gov/cancertopics/wyntk/cervix/page 7, posted 3/18/05.

      . Bosch F.X., Lorinez A. MunozN., et al. 2002, The Casual relation between human papillomavirus and cervical cancer. J. Clin Pathol 55: 244-65.

      . Post-sentence motions, p. 25.

      . A full hearing was held, as required by the statute, and this testimony was admitted under the tender years exception to the hearsay rule.

      . Post-sentence motions, p. 22.

      . N.T.T. vol. II, pp. 75, 258, 261-65.

      . N.T.T. vol. II, p. 261.

      . N.T.T. vol. II, p. 264.

      . The defendant also contends that trial counsel was ineffective in not requesting a cautionary jury instruction pertaining to the sexual abuse in New Jersey. In light of the defendant’s denial that he committed any of the acts in either jurisdiction, the failure to request that type of an instruction did not prejudice the defendant. Appellate counsel’s hindsight evaluation would require trial counsel to deny the sexual abuse, but claim if abuse happened, it only occurred in New Jersey. This court is not prepared to require such an impractical strategic decision. In order to prevail on this issue, the defendant must demonstrate that, had a cautionary instruction been given, “there is a reasonable probability that the outcome of his trial would have been different.” Commonwealth v. Battle, 883 A.2d 641, 649 (Pa. Super. 2005); Commonwealth v. Potts, 388 Pa. Super. 593, 609, 566 A.2d 287, 295 (1989) (Failure of trial counsel to request a cautionary instruction pertaining to prior bad acts did not prejudice the defendant because, even if the trial judge had provided that instruction, the jury would have convicted). Trial counsel’s decision was rooted in the strategic decisions associated with the defense, and this issue is meritless.