author: HODGSON, P.J.,

text:
    Commonwealth v. Dabney

      C.P. of Montgomery County,
    No. 4242-2006.

      Christopher Maloney, for Commonwealth.

      Brian Zeiger, for defendant.
    August 15, 2011
   HODGSON, P.J.,

The appellant, McKay Dwayne Dabney, appeals from our final order of dismissal entered on July 11, 2011.

The court’s memorandum opinion dated July 11, 2011 sets forth the reasons for the court’s decision; therefore, we need not issue another full opinion in accordance with Rule of Appellate Procedure 1925(a).

In view of the foregoing, the final order of dismissal of this court dated July 11, 2011 should be affirmed.

FACTS AND PROCEDURAL HISTORY

The instant case arises from a series of events that occurred on May 28,2007. On that date, at approximately 4:02 a.m., a call was received by the Cheltenham Township Police Department reporting a rape. Upon arriving at the scene, police officers found a 26-year-old female lying on the floor of a neighboring residence. The female victim stated that she had been raped by a man whom she knew as “Ears,” at an apartment located at 7876 Spring Avenue. While outside securing the scene, Office Brian Hopkins and Officer John Barr of the Cheltenham Township Police Department, observed the petitioner, McKay Dwayne Dabney (“petitioner”), exit an apartment building located at 7876 Spring Avenue and walk in their direction.

Upon approaching the officers, petitioner stated that he was looking for his female friend who had been sleeping at his apartment. Before the officers responded, the petitioner stated, “That shit was consensual.” (N.T., February 26, 2008 at p. 62). He was alarmed because not only was the young woman missing, but there was also fresh blood on his sheets. The name of petitioner’s missing friend closely matched the name of the victim, who ultimately identified petitioner as the man who raped her. Petitioner was arrested on the scene and taken to the Cheltenham Township Police Department. While in transit to the station, petitioner admitted to having sex with the victim. He further disclosed to the officers that the blood on his sheets belonged to the victim who was a virgin.

Petitioner remained in a cell at the Cheltenham Township Police Station until 11:30 a.m. at which time he was brought out and asked to sign a Constitutional Rights Form, which he did. Thereafter, he gave a five page statement which also included a written version of his Miranda rights. After a thorough investigation, petitioner was ultimately charged with Rape, Aggravated Indecent Assault-Lack of Consent and Aggravated Indecent Assault-Forcible Compulsion.

On October 22, 2007, petitioner brought a motion to suppress his statement. On November 2, 2007, this court denied petitioner’s motion, finding that his statement had been knowingly, intelligently and voluntarily made, as it was neither a product of coercion nor inducement. Furthermore, this court found that the statement was not the product of an illegal delay between arrest and arraignment since the police were in the process of appropriate investigative procedures prior to the taking of the statement, the performance of which did not cause any undue delay. See Commonwealth v. Perez, 577 Pa. 360, 845 A.2d 779 (2004).

A four day jury trial commenced on February 26,2008. On February 29, 2008, the jury returned a guilty verdict on the charge of Aggravated Indecent Assault-Lack of Consent. Thereafter, on March 26, 2008, petitioner filed a Motion for Extraordinary Relief in the form of a New Trial, which this court subsequently denied on March 28, 2008. Sentencing commenced on August 25, 2008, at which point, petitioner was sentenced to undergo a term of imprisonment of ten to 23 months. The court further sentenced the petitioner to three years’ probation consecutive to the expiration of parole. On September 12, 2008, petitioner appealed to the Pennsylvania Superior Court from the judgment of sentence and filed a concise statement of matters complained of with this court on September 24, 2008 in accordance with Rule 1925 (b) of the Pennsylvania Rules of Appellate Procedure. On September 9, 2009, the Superior Court affirmed this court’s judgment on sentence. Thereafter, the Pennsylvania Supreme Court denied the petitioner’s petition for allowance of appeal on December 29, 2009. Petition filed a PCRA Petition on March 28, 2011. Pursuant to the court’s March 29, 2011 order, the court scheduled an evidentiary hearing for June 29, 2011. On June 7, 2011, the Commonwealth filed its answer to petitioner’s PCRA petitioner. The PCRA evidentiary hearing took place before the undersigned on June 28, 2011.

After careful review of both parties’ legal memoranda and an evidentiary hearing, we find petitioner’s PCRA Petition meritless. Accordingly, we dismiss.

LEGAL DISCUSSION

Appellant raises eight issues of ineffective assistance of counsel.

It is well-established that counsel is presumed effective and the defendant bears the burden of proving ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655, 664 (2007). To overcome this presumption, appellant must satisfy a three-pronged test and demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance. Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (2009) citing Commonwealth v. Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001). Prejudice in the context of an ineffectiveness claim means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceedings would have been different. Commonwealth v. Fletcher, 604 Pa. 493, 986 A.2d 759 (2009). A claim of ineffectiveness will be denied if the petitioner’s evidence fails to meet any of these prongs. Pierce, supra at 221 -222. In the case before this court, petitioner has failed to meet this burden.

In his PCRA petition, petitioner raises the following claims:

(1) Trial counsel was ineffective for failing to file a timely written motion to pierce the Rape Shield Law pursuant to 18 Pa.C.S.A. Section 3104.
(2) Trial counsel was ineffective because he did not argue that the door had been opened to impeachment evidence after the victim testified that they were just friends.
(3) Trial counsel was ineffective because he did not confront the victim with her prior inconsistent statement or other impeachment evidence.
(4) Trial counsel was ineffective because he failed to call key witnesses to corroborate the petitioner’s position.
(5) Trial counsel was ineffective for failing to call any character witnesses on behalf of the petitioner.
(6) Trial counsel was ineffective for declining to pursue a motion to suppress petitioner’s alleged oral statement to police officers.
(7) Trial counsel was ineffective for failing to object to Sergeant Schaffer’s identification of the substance on the victim’s pants as “consistent with blood.”
(8) Trial counsel was ineffective because he failed to make a hearsay objection to Officer Floirendo reading aloud portions of a police report during witness testimony.

First, petitioner argues that trial counsel was ineffective for failing to file a timely written motion to pierce the rape shield law and introduce evidence of an alleged sexual encounter with the victim that occurred two years prior to petitioner’s assault on the victim. We disagree. Trial counsel was not ineffective for failing to file a timely motion because the petitioner did not suffer any prejudice as a result of counsel’s mistake and the claim lacks any arguable merit. The petitioner did not suffer any prejudice for two reasons. First, the admission of such evidence would have been improper under the Pennsylvania Rules of Evidence. Generally, Pennsylvania’s Rape Shield Law precludes the admission of evidence of a victim’s past sexual conduct in the prosecution of sex offenses. The purpose of the Rape Shield Statute is “to prevent a trial from shifting its focus away from the culpability of the accused towards the virtue and chastity of the victim.” Commonwealth v. Guy, 686 A.2d 397, 400 (Pa. Super. 1996). Relevant evidence is limited to that which may tend to directly “exculpate the accused by showing, inter alia, bias, hostility, motive to lie or fabricate, evidence of a sexual encounter with another person on the date in question, or impeachment by use of a prior inconsistent statement.” Id.

In accordance with Pennsylvania Rule of Evidence 403, relevant evidence intended to exculpate the accused may still be excluded where its probative value is outweighed by the danger of unfair prejudice. Specifically, unfair prejudice exists when evidence of past sexual conduct is sought to be used to bolster a consent defense and prove that a victim acted in conformity with past behavior on the date in question. See Guy, 686 A.2d at 401. In Guy, the defendant attempted to use evidence that the victim had a past history of soliciting men to have intercourse with her in exchange for drugs. Id. at 400. This past sexual history would support the defendant’s defense that he had consensual sex with the victim in exchange for crack cocaine. Id. The Superior Court in Guy determined that such use of the evidence was prohibited under the Rape Shield Law. Id. According to the court, the evidence would unfairly prejudice and humiliate the victim by taking the focal point of the trial away from a determination of the events of the night in question to a determination of whether the victim had acted in conformity with past indiscretions. Id.

Here, like the defendant in Guy, the petitioner is attempting to use past sexual conduct of the victim to demonstrate that on the night in question the sex was consensual. As the petitioner’s counsel states in his supporting memorandum of Law, “If attorney English had filed a timely motion, he could have asked about their sexual history and Mr. Dabney could have testified to details corroborating his assertion that the contact in May 2006 was consensual.” Attorney English confirmed during testimony at the evidentiary hearing that the purpose of such evidence was to support the defense that the petitioner and victim engaged in consensual sex on the night in question. (N.T., June 28, 2011 at p. 17). Thus, just as the court stated in Guy, this use of a victim’s past sexual conduct is improper under the Rape Shield Statute and inadmissible. Additionally, this use of a past, singular sexual encounter to prove consent is prohibited by rule 404(b)(1) of the Pennsylvania Rules of Evidence, which prohibits use of a prior act to prove action in conformity therewith.

In any event, as the Superior Court noted in its September 9,2009 opinion, the petitioner was still able to testify during the trial about his past sexual history with the victim. (N.T., February 28, 2008 at p. 96). Although trial counsel failed to file a timely written motion, the jury still heard petitioner’s statement to police that the victim and he had engaged in oral sex on at least ten prior occasions. Given the Commonwealth’s failure to object to such testimony, the jury was able to take the evidence into consideration in reaching its verdict. Despite considering the testimony, the jury still rendered a verdict of guilty. Consequently, the petitioner suffered no prejudice.

Furthermore this defense lacks any arguable merit as the petitioner failed to present any evidence at the evidentiary hearing to substantiate the claim that he had a prior sexual encounter with the victim. The only testimony that the petitioner presented at the evidentiary hearing was the testimony of trial counsel. However, trial counsel did not have any personal knowledge of what previously occurred between the petitioner and the victim. The petitioner had the opportunity at the hearing to testify and present evidence of a prior sexual relationship between the petitioner and the victim but elected not to make use of this opportunity. Consequently, the Commonwealth was unable to inquire on cross-examination as to the relevance or admissibility of such evidence. The petitioner did not fulfill his burden of proving that this claim of ineffectiveness of counsel had any arguable merit. As such, this claim of ineffectiveness of counsel fails.

Concerning issues two and three, the court will address these issues together in the interests of clarity and judicial economy as the two issues raise similar claims. In issue two, the petitioner argues that trial counsel was ineffective because he did not argue that the door had been opened to impeachment evidence after the victim testified that they were just friends. In issue three, petitioner asserts trial counsel was ineffective because he did not confront the victim with her prior inconsistent statement or other impeachment evidence. Based on the petitioner’s testimony and the lack of an inconsistent statement by the victim, we find that both issues are without merit. In addition, trial counsel had a reasonable basis for not using the impeachment evidence against the victim. The petitioner maintains that the victim’s testimony could have been impeached by the use of a follow-up interview with police officers in which the victim stated that she and the petitioner may have kissed previously and engaged in oral sex. This claim fails as the alleged statements to police were never adopted by the victim.

It is well-settled that witnesses cannot be impeached with a prior inconsistent statement that is attributed to them by a third person and has not been adopted by the witness. See Commonwealth v. Woods, 710 A.2d 626, 630 (Pa. Super. 1998) (a summary of a witness’s statement cannot be used for impeachment purposes absent adoption of the statement by the witness as his or her own); Commonwealth v. Lively, 610 A.2d 7, 10 (Pa. Super. 1992) (prior inconsistent statements can only be used as substantive evidence when they have been adopted by the witness, or have been given under oath at a formal legal proceeding, or they are contemporaneous, verbatim recordings of the statements). In Woods, the appellant claimed that the trial court erred in failing to give a prior inconsistent statement charge to the jury. Id. at 629. The appellant introduced the issue of an inconsistent statement by a witness through officer testimony and an investigation form, which contained a summarization of the witness’s prior conflicting statement. Id. at 630. According to the court in Woods, the statement could not be used to impeach the witness’ credibility because the appellant did not first establish that the witness had in fact made the prior statement. Id. The witness did not admit to making the prior statement, and the appellant failed to produce the officer to whom the witness allegedly made the statement. Id. Instead, the appellant in Woods attempted to introduce the inconsistent statement through the presentation of an investigative report that summarized that statement. Id. This method was not sufficient to establish that the witness made the prior statement. Given the witness’s failure to adopt the conflicting statement, the statement could not be used for impeachment purposes. Id.

Here, like the appellant in Woods, the petitioner seeks to impeach a witness with an alleged prior inconsistent statement that was never adopted by the witness. Further, like appellant’s use of an investigative form in Woods, the petitioner seeks to impeach the victim through the use of a summary of the statement in a police report that was never adopted by the victim. As the Superior Court stated in its September 9, 2009 opinion, the “victim’s prior inconsistent statement, allegedly contained in a police report, meets none of the Lively requirements for admission.” See attached hereto. Thus, as was the case in Woods, trial counsel could not have impeached the victim through the use of the alleged prior inconsistent statement. What is more, the petitioner corroborated the victim’s characterization of the relationship by testifying that he did not consider the petitioner and victim to be in a romantic relationship. (N.T., February 28-29, 2008 at p. 18-19).

In addition to the lack of any arguable merit to issues two and three, trial counsel had a reasonable basis for not attempting to impeach the victim with her alleged prior statements to the police. The prior statements related to a prior sexual encounter between the victim and the petitioner. These statements constituted rape shield testimony that the trial court had prohibited prior to trial counsel’s cross-examination of the victim. In fact, the trial court had previously denied trial counsel’s two oral motions and written motion to admit the rape shield testimony. Thus, trial counsel decided not to attempt to use such evidence and risk being denied by the court for a fourth time in front of the jury. According to trial counsel’s testimony at the evidentiary hearing, a failed fourth attempt at using such evidence would result in a negative reaction by the jury, who would begin to question the credibility of trial counsel’s argument. (N.T., June 28, 2011 at p. 19-20) Thus, counsel made a rational, strategic decision not to attempt to use the impeachment evidence. Accordingly, trial counsel was not ineffective for declining to impeach the victim. Issues two and three fail as they are both without merit.

Concerning issue four, trial counsel was not ineffective for declining to call key witnesses to corroborate petitioner’s position as there was no reasonable probability that their testimony would have changed the outcome of the proceedings. To establish ineffectiveness for failing to call witnesses, the defendant must establish that: (1) the witnesses were available; (2) counsel knew or should have known of their existence; (3) the witnesses were prepared to testify for the defense; and (4) the testimony was necessary to avoid prejudice. Commonwealth v. Fink, 791 A.2d 1235, 1249 (Pa. Super. 2002), citing Commonwealth v. Priovolos, 552 Pa. 364, 368, 715 A.2d 420, 422 (1998). The petitioner contends that trial counsel was ineffective for failing to call David Williams or Larry McCloud.

According to the petitioner, David Williams would have testified that “no struggle or screaming was heard on the night in question by any of the neighbors.” However, Mr. Williams’ testimony as to what other neighbors may or may not have heard is pure speculation and inadmissible hearsay; thus, it would not have been admitted into evidence. The petitioner asserts that Mr. Williams recorded the neighbors’ statements in the regular course of business; thus, the recordings would have overcome any hearsay objections. We find this argument unpersuasive. Pursuant to Pennsylvania Rule of Evidence 803(6), reports and memoranda are admissible if they are kept in the course of a regularly conducted business activity and it was the regular practice of that business activity to conduct such a report. Regardless of what Mr. Williams may have testified to, the court finds it unreasonable to believe that Mr. Williams, as a building manager, regularly took on the role of police or criminal investigator whenever a crime occurred on the property. The interview of potential witnesses falls within the duties of a police officer and not a building manager. As such, we find that Mr. Williams’ recordings would have been inadmissible hearsay. Mr. Williams would not have been able to testify on the petitioner’s behalf. Thus, trial counsel was not ineffective for failing to call Mr. Williams as a witness.

Additionally, petitioner asserts that trial counsel was ineffective for his failure to call Lany McCloud to testify at trial. This witness told investigators that prior to the night in question he had previously seen the petitioner leaving the victim’s house in the early hours of the morning. According to the petitioner, Mr. McCloud’s testimony was vital to corroborating the type of prior relationship that the victim and petitioner had. The testimony that a neighbor may have seen the petitioner leaving the victim’s house late on some prior, unidentified night is irrelevant as to what happened on the night of May 28, 2007. At best, the evidence is speculative.

Assuming arguendo that the evidence was relevant, the petitioner was not prejudiced by the absence of this testimony. The victim had previously testified that the petitioner and victim were friends and that the petitioner had been to her home prior to the assault. (N.T., February 27,2008 at p. 5 8). Furthermore, the petitioner also testified that he had previously been to the victim’s residence. (N.T., February 27,2008 at p. 228). Consequently, the testimony from Mr. McCloud would have merely been cumulative of prior testimony and would not have changed the outcome of the proceedings. Thus, trial counsel was not ineffective for failing to call Mr. McCloud to testify.

In regard to issue five, the petitioner withdrew this challenge at the evidentiary hearing. (N.T., June 28, 2011 at p. 3-4). Thus, no further discussion is warranted.

Addressing issue six, trial counsel made a logical decision to not pursue suppressing a statement that did not harm the petitioner’s case. The petitioner contends that the oral statement made to police officers on the night in question should have been suppressed and not heard by the jury as it was prejudicial to the petitioner. We disagree for two reasons. First, trial counsel did in fact file an omnibus pre-trial motion moving to exclude all illegal written and oral statements. On this fact alone, petitioner’s claim fails. Second, the petitioner’s oral statement to police officers corroborated the petitioner’s defense; thus, the failure to take any further action to suppress the statement did not harm the petitioner. On the night in question, the petitioner approached the police officers and stated, “That shit was consensual.” The petitioner’s defense at trial was that the victim and the petitioner engaged in consensual sex. During trial counsel’s evidentiary hearing testimony, trial counsel explained that he considered pursuing his initial motion to suppress the statement but declined to do so because the statement corroborated his client’s defense. (N.T., June 28, 2011 at p. 9, 23). The petitioner was not prejudiced by counsel’s trial strategy; thus, this claim fails.

In regard to issue seven, trial counsel made a reasonable, strategic decision to not object to Sergeant Schaffer’s identification of substance on the victim’s pants as “consistent with blood.” The sergeant testified at trial that the stains on the victim’s pants were consistent with blood based on his experience and training. Petitioner argues that the phrase “experience and training” conveyed to the jury that he knew the stains were blood and that his statement was more than opinion. According to the petitioner, the sergeant’s statements were improper and prejudiced the petitioner’s case as a result. This claim is meritless. Although the sergeant’s opinion does not qualify as a conclusive, medical fact, he may testify that the stains appeared to be blood. See Commonwealth v. Schroth, 479 Pa. 485, 491, 388 A.2d 1034, 1038 (1978); see also Commonwealth v. Glover, 401 A.2d 779, 782 (Pa. Super. 1979) (“A lay witness may testify that a certain substance appeared to be blood without having to subject the substance to chemical analysis). The sergeant testifying to what he saw based on his eight years of experience did not prejudice the petitioner. Sergeant Schaffer’s opinion was not being offered as an expert witness; thus, trial counsel determined that no objection was necessary. (N.T., June 28, 2011 at p. 24).

Furthermore, trial counsel’s decision not to cross-examine the sergeant concerning the blood stains was a reasonable, strategic decision. Generally, “where matters of strategy and tactics are concerned, counsel’s assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client’s interests.” Commonwealth v. Colavita, 606 Pa. 1, 21, 993 A.2d 874, 887 (2010), quoting Commonwealth v. Howard, 553 Pa. 266, 274, 719 A.2d 233, 237 (1998). In the present matter, there was testimony from multiple witnesses concerning the victim’s bleeding on the night in question. In fact, the petitioner himself testified that there was blood on the mattress pad and that the victim was bleeding when she left his parents’ apartment. (N.T., February 28-29,2008 at p.14-16). Thus, trial counsel made a practical decision not to object to the sergeant’s testimony as the testimony was consistent with the petitioner’s own account of the events of that night. (N.T., June 28, 2011 at p. 24). According to trial counsel, objecting to the testimony would have been inconsistent with petitioner’s defense and would have created a problem with the jury. (N.T., June 28, 2011 at p. 25). Therefore, trial counsel made a reasonable and well-calculated decision to devote more of the defense’s time and resources to other areas of the defense rather than to an issue that was likely to draw disfavor with the jury. As such, this claim of ineffectiveness fails.

Lastly, trial counsel was not ineffective for his failure to object to Officer Floirendo’s reading aloud portions of a police report as the reading did not prejudice the petitioner. During direct examination, Officer Floirendo read from his report that the victim related to him that the petitioner said to the victim prior to the assault “I’m sorry this got to happen.” Petitioner maintains that this reading was triple hearsay and highly prejudicial to the petitioner’s case. We find this argument unpersuasive. Subsequent to the officer’s testimony, trial counsel was able to elicit from the victim during cross-examination that she “did not remember that statement,” which she allegedly made to Officer Floirendo. (N.T., June 28, 2011 at p. 14).

The victim’s failure to adopt the statement attributed to her benefited the defense as it raised a credibility issue concerning the police officer’s report. In addition, the absence of the victim’s adoption of the statement corroborated the petitioner’s claim that his inconsistent written statement to police was fabricated.

CONCLUSION

In sum, we conclude that petitioner’s PCRA petition is meritless. Accordingly, we enter the attached order.

      . A copy of the court’s July 11,2011 opinion is attached hereto.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Pringle v. Keymall, Inc.

      C.P. of Luzerne County,
    No. 7232-08.

      Thomas M. Holmes, for plaintiff.

      Joseph A. Murphy, for defendant.

      Thomas E. Brenner, for additional defendant.
    February 3, 2011
   NEALON, J.,

Additional defendant Friendship Flouse (“Friendship House”) has filed amotion for summary judgment with regard to the contractual indemnification claim which has been asserted against it by defendant Keymall, Incorporated (“Keymall”). The facts which are relevant to Friendship House’s motion for summary judgment are not in dispute. Plaintiff Kenneth J. Pringle (“Pringle”) contends that onMay 7,2002, he slipped and fell on an accumulation of water while descending a staircase at the Gordon Building, 431-433 Lackawanna Avenue, Scranton, during the course of his employment with Friendship House. At the time of Pringle’s fall, Friendship House leased the second floor of the Gordon Building from the owner/lessor, Keymall. (Keymall’s complaint against additional defendant, ¶¶1-4).

On February 24, 2004, Pringle filed suit against Keymall only, and on April 13, 2004, Keymall joined Friendship House as an additional defendant. In its additional defendant complaint, Keymall avers that “the Friendship House is required to contractually indemnify Keymall, Inc. for any and all sums of money that may be required to be paid to the plaintiff by Keymall, Inc. and which liability is specifically denied.” {Id., ¶6).

Keymall’s prayer for relief demands judgment against Friendship House for contractual indemnity and seeks declaratory relief pursuant to Pa. R.C.P. 1602 “that the Friendship House is required to contractually indemnify Keymall, Inc. pursuant to §12.05 of the lease agreement.” (Id., p. 2). Section 12.05 of the Keymall-Friendship House lease is entitled “indemnity” and states, in pertinent part, that:

Tenant hereby indemnifies and agrees to save harmless Landlord from and against any and all third party claims, suits, proceedings, actions, responsibilities, liabilities, demands, judgments and executions which arise from or are in connection with the tenant’s possession, use, occupancy or control of the demised premises or any portion thereof. Tenant shall defend any claims against landlord with respect to the foregoing. Tenant shall pay, satisfy and discharge any judgment, orders and decrees which may be recovered against landlord in connection with the foregoing. This obligation shall include reasonable legal fees and all other reasonable costs and expenses from the notice that any claim or demand has been made.

(Id., Exhibit A. p. 9).

On October 6, 2010, Friendship House filed a motion for summary judgment seeking the dismissal of Keymall’s additional defendant complaint on two bases. First, Friendship House argues that it had no responsibility for the site of the accident since Pringle’s fall “took place in a stairwell running from the ground floor of the building up to the second floor of the building” which “is not part of the ‘demised premises’” that it leased from Keymall. (Friendship House’s Motion for Summary Judgment, ¶12). Second, Friendship House asserts that “an indemnity agreement will not cover losses due to the indemnitee’s own negligence unless such an intent is expressed in clear and unequivocal language.” (Id., ¶19). According to Friendship House, “[t]he indemnification provision of the lease does not contain any language extending any indemnification provision to claims involving the negligence of Keymall,” which wording is allegedly necessary to support Keymall’s contractual indemnification claim. (Id. ¶¶ 18,20).

Keymall maintains that the deposition testimony of Friendship House’s own representatives confirms that Friendship House’s employees performed maintenance on the steps in question both before and after Pringle’s fall. (Keymall’s answer to motion for summary judgment, ¶¶7,12-14,21). Keymall submits that the parties’ course of conduct raises genuine issues of material fact as to whether the stairwell at issue was deemed to be part of the “demised premises” that were leased by Friendship House. (Id., ¶¶13-14). Additionally, Keymall posits that the language of §12.05 of the lease is sufficient to require indemnification by Friendship House inasmuch as “the sole basis for the joinder of the Friendship House was for contractual indemnity,” not due to negligence on the part of Friendship House. (Id., ¶20). Following the completion of oral argument on February 1,2011, Friendship House’s motion for summary judgment was submitted for a decision.

Summary judgment is appropriate only where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Barnish v. KWI Bldg., Co., 602 Pa. 402, 420, 980 A.2d 535, 546 (2009). The moving party bears the burden of proving the absence of a genuine issue of fact and its entitlement to judgment as a matter of law. Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 554, 981 A.2d 145, 154 (2009). When considering a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1175 n. 1 (Pa. 2010); Abrams v. Pneumo Abex Corp., 602 Pa. 627, 634-635, 981 A.2d 198, 203 (2009). “If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.” Mull v. Ickes, 994 A.2d 1137, 1139-40 (Pa. Super. 2010); Kurowski v. Burroughs, 994 A.2d 611, 616 (Pa. Super. 2010).

It is undisputed that Pringle was employed by Friendship House at the time of his alleged fall on May 7, 2002. The Workers’ Compensation Act obligates an employer like the Friendship House to provide workers’ compensation benefits to an injured employee regardless of the fault of the employer or employee. In exchange for this no-fault system of compensation, employers are vested with immunity from suit by an injured employee who has received workers’ compensation benefits. See Thompson v. WCAB (USF&G Company), 566 Pa. 420, 432, 7 81 A.2d 1146, 1153 (2001); Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114, 118 (Pa. Super. 2002), aff’d, 584 Pa. 297, 883 A.2d 511 (2005). Notwithstanding that tort immunity, an employer may enter into an indemnity contract with a third party in which the employer expressly assumes liability for the negligence of a third party that results in injury to the employer’s employee. Morgan v. Harnischfeger Corp., 791 A.2d 1273, 1278 (Pa. Cmwlth. 2002); Snare v. Ebensburg Power Company, 431 Pa. Super. 515, 520, 637 A.2d 296, 298 (1993). In that regard, Section 303(b) of the Workers’ Compensation Act provides in relevant part:

“In the event injury...to an employee is caused by a third party, then such employee...may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employees, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity...unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.”

77 P.S.§481(b).

Under this section of the act, a third party may not seek contribution or indemnity from an employer, even though the employer’s own negligence may have been the primary cause of the employee’s injury, absent an express provision for indemnity in a written contract. Integrated Project Services v. HMS Interiors, Inc., 931 A.2d 724, 737-738 (Pa. Super. 2007); Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 183-184, 619 A.2d 304, 306-307 (1993) (en banc), app. denied, 539 Pa. 641, 651 A.2d 530 (1994). Though specifically provided for in section 303(b) of the act, “indemnification contracts in this context are not favored in the law and every intendment must be construed against the party seeking protection from liability or indemnification from the employer.” Morgan, supra: Snare, 431 Pa. Super, at 521, 637 A.2d at 298. For that reason, “an asserted indemnification provision must be carefully scrutinized and strictly construed,” Shumosky v. Lutheran Welfare Services of Northeastern PA. Inc., 784 A.2d 196, 203 (Pa. Super. 2001), and general indemnity language such as “any or all” or “any nature whatsoever” is insufficient to strip an employer of its statutory immunity from injury claims by employees. Integrated Project Services, 931 A.2d at 738; Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 43 (Pa. Super. 1997); Parilla v. United States, 2007 WL 2032903 at * 2 (E.D. Pa. 2007). Rather, “the intent to indemnify against claims by employees of the alleged indemnitor...must clearly appear from the terms of the agreement.” Integrated Project Services, supra; Shumosky, supra: Bethlehem Steel Corp., supra; Bester, 422 Pa. Super. at 185, 619 A.2d at 307.

Since language in indemnity contracts “must be clear and unequivocal” in order to waive employer immunity under 77 P.S. §481(b), the parties to the contract must specifically provide that “a named employer agrees to indemnify a named third party from liability for that party’s negligence which causes harm to the named employer’s employees.” Morgan, supra; Snare, supra. Accord, Bester, 422 Pa. Super, at 186, 619 A.2d at 308 (...language which d[oes] not expressly say that employer agreed to forego its statutory protection and to assume unlimited liability for damages arising from harm suffered by its own employees result[s] in a finding of lack of loss of the statutory immunity by employer.”). Trial courts “will not materially rewrite the contract of the parties and insert terms which are not there in the absence of an explicit expression to waive the protection afforded by the Workers’] Compensation Act.” Integrated Project Services, supra; Bester, 422 Pa. Super, at 185, 619 A.2d at 307. Moreover, the burden of proving the applicability of an indemnification provision is on the party seeking relief from liability. Snare, 431 Pa. Super, at 521, 637 A.2d at 298-299.

The en banc holding in Bester is particularly instructive since it addressed an indemnity provision in the context of a lease agreement. Not unlike the case sub judice, the personal injury suit in Bester was filed against the lessor by an employee of the lessee, and the lessor sought indemnity from the lessee pursuant to an indemnification clause containing language comparable to the Keymall-Friendship House provision. In affirming the dismissal of the lessor’s indemnity claim against the lessee, the Superior Court concluded:

“We apply today the requirement in the law that in order for an employer to be held liable in indemnification for injuries to its own employees caused by the negligence of the indemnitee there must be an express provision for this contingency in the indemnification clause. The absence of a provision in the hold-harmless clause that lessee would indemnify lessor against the negligence of lessor in a claim by lessee’s employee requires the conclusion that the clause does not meet the requirements of the Workers’] Compensation Act concerning express waiver, 77 P. S. §481(b).
In order to avoid the ambiguities which grow out of the use of general language, contracting parties must specifically use language which demonstrates that a named employer agrees to indemnify a named third party from liability for acts of that third party’s own negligence which result in harm to the employees of the named employer. Absent this level of specificity in the language employed in the contract of indemnification, the Workers’] Compensation Act precludes any liability on the part of the employer.”

Bester, 422 Pa. Super. at 187, 619 A.2d at 308-309.

The indemnity language of §12.05 of the Keymall-Friendship House lease clearly does not contain the degree of specificity required by Bester and its progeny to waive employer immunity for inj ury claims by Friendship House’s employees. Section 12.05 merely references “any and all third party” claims, suits or actions and does not expressly mention claims by Friendship House’s employees. Nor does the indemnity clause reference Friendship House’s alleged waiver of its tort immunity provided by the Workers’ Compensation Act. Instead, §12.05 simply addresses “any and all third party” claims or suits, and such “[g]eneral indemnity language is insufficient to remove the bar to [tort] recovery by the exclusivity provision of the Act.” Shumosky, supra. Accord, Parilla, supra (“The Pennsylvania precedents are quite clear that a general or blanket indemnity or contribution provision in a written contract is not sufficient to remove the immunity protection for an employer.”).

Consequently, Section 12.05 oftheKeymall-Friendship House lease does not contain the level of specificity necessary for an employer/lessee to indemnify a lessor against an injury claim asserted by an employee of the lessee. As such, § 12.05 ofthe lease cannot serve as the basis for Keymall’s contractual indemnification claim against Friendship House. Even when the summary judgment record is viewed in the light most favorable to Keymall, it is clear and free from doubt that Friendship House is entitled to judgment as a matter of law with respect to Keymall’s additional defendant complaint. Accordingly, its motion for summary judgment will be granted.

And now, February 3, 2011, upon consideration of the motion for summary judgment of additional defendant, Friendship House, the exhibits and memoranda of law submitted by the parties and the oral argument of counsel on February 1, 2011, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. The motion for summary judgment of additional defendant, Friendship House, is granted; and

2. The Clerk of Judicial Records is directed to enter judgment in favor of additional defendant, Friendship House, and against defendant, Keymall Incorporated, with regard to the claims set forth in the additional defendant complaint.


author: MCMASTER, J.,

text:
    In re E.M.M

      C.P. of Bucks County,
    No. 2011-9034.

      Rhonda Sherrod, for mother.

      Francine Kaplan, for father.

      Brad Jackman, for CYS

      Christine McMonagle, guardian ad litem.
    July 12, 2011
   MCMASTER, J.,

C.C. (hereinafter referred to as “mother”) has appealed our May 20, 2011, Decree granting the petition of Bucks County children & Youth Social Service agency (hereinafter referred to as the “agency”) to terminate mother’s parental rights as to E.M.M., Jr., and A.R.M. (hereinafter referred to as “children”). Mother is the natural mother of both children. Both children were adjudicated dependent in Bucks County on February 8,2010. A lengthy evidentiary hearing regarding both children spanned two days and was held on May 12,2011, and May 13, 2011. On May 12,2011, prior to commencing the hearing regarding mother’s parental rights, children’s putative father, E.M.M., participating via telephone, voluntarily relinquished his parental rights as to children.

BACKGROUND

E.M.M., Jr., was bom to mother on June 24, 2003. A.R.M. was bom to mother approximately three years later on February 24, 2006. Children initially came into the care of the agency on February 8, 2010. However, in July 2008, children came into the care of their paternal aunt and uncle, Teresa and Gary Merrigan, and have been residing with that family ever since. Children have not resided with mother or E.M.M. since prior to July 10, 2008.

Mother, currently age 29, is a high school graduate with a further diploma from DBT Business School in web development, and she has some completed college credits. N.T. 5/12/2011, p.77; Ex. M-6. She is currently unemployed, but she does have work experience as a legal secretary. N.T. 5/12/2011, p.77; Ex. M-6. Mother has been independent since the age of 19 and has maintained her own household in some form or another since then, with a short stint in a homeless shelter at an unknown time. N.T. 5/12/2011, p.82. She currently resides in a studio apartment in Philadelphia, which she acknowledges would not be an appropriate arrangement for a mother with two children residing with her. N.T. 5/12/2011, pp.31 - 32. Mother’s current income consists of approximately $175 a week in unemployment compensation. N.T. 5/12/2011, p.32. Her current rent payment is $600 a month, and she receives assistance in the form of food stamps. N.T. 5/12/2011, p. 113. With her remaining funds every month, she spends approximately $50 maintaining a cell phone, $83 on a transit pass, and $15 every two weeks, on pay day, purchasing the illegal drug PCP. N.T. 5/12/2011, pp.113, 118. Mother acknowledges that PCP remains in her system for weeks at a time. N.T. 5/12/2011, p.104. Mother acquires her drugs in what appears to this court to be a drive-by drug deal in a gas station parking lot. N.T. 5/12/2011, p.106. Mother’s drug of choice has the street name “wet,” and she ingests it by smoking a cigarette dipped in PCP. N.T. 5/12/2011, p.106. Mother also realizes that she is ingesting a substance that consists at least partly of embalming fluid. N.T. 5/12/2011, p.107.

Mother’s PCP habit is the primary reason the children came into the care of Teresa and Gary Merrigan. Teresa Merrigan testified that she had concerns early on in her relationship with mother that mother was actively using drugs, and those concerns continued after both children were bom. N.T. 5/13/2011, pp.5-6. On July 10, 2008, the children began residing at the Merrigan residence. N.T. 5/13/2011, p.8. On July 16, 2008, mother and E.M.M. returned, ostensibly to pick their children up and prevent them from going on vacation with the Merrigans. N.T. 5/13/2011, p.8. However, though mother and E.M.M. were indicating that they wanted the children returned to them, mother simultaneously gave Ms. Merrigan the children’s birth certificates, Social Security cards, and insurance cards, and permitted them to go on vacation. N.T. 5/13/2011, pp.9-10. Ms. Merrigan then realized that both mother and E.M.M. were presently under the influence of some substance while this conversation was occurring. E.M.M. admitted he had used dmgs prior to arriving at the Merrigan home, and mother stated she only took what her doctor had given her. N.T. 5/13/2011, pp.9-10. Mother and E.M.M. later that day decided to give the Merrigans temporary guardianship of both children, and that decision is memorialized in Exhibit GAL-1. Their reasons for doing so are stated in GAL-1, and Ms. Merrigan indicated that she discussed with mother her reasons for granting guardianship to the Merrigans. “The meaning was that she would go into a rehab program and try to stay off of the dmgs that she was continually using.” N.T. 5/13/2011, p.19. Mother had also added that the Merrigans would have guardianship of the children until she was financially stable. Ex. GAL-1.

Mother has had an ongoing substance abuse problem since prior to when her children began living with the Merrigans and continuing until the present time. Ms. Merrigan testified that she had an inclination that mother and E.M.M. were both using drugs. On July 10, 2008, E.M.M. was admitted to the hospital after becoming unresponsive following his drug use. N.T. 5/13/2011, p.10. Mother spoke with Ms. Merrigan later that day, and mother admitted that she was also currently using drugs, but wanted to get help. Both mother and E.M.M. requested that Ms. Merrigan take the children to the Merrigan home while mother and E.M.M. dealt with their drug issues. N.T. 5/13/2011, p.12. As previously discussed, mother and E.M.M. arrived at the Merrigan residence six days later on July 16,2008, attempting to collect their children. Both parents were under the influence of some substance at that time. Since then, mother has been in and out of inpatient and outpatient rehabilitation programs, but she still is a regular user of PCP and has not indicated that this will change anytime in the near future.

Once the children began living with the Merrigans, mother would visit about once every two weeks. However, the Merrigans were forced to end mother’s visits in February 2009 due to mother’s inappropriate behavior around the children. N.T. 5/13/2011, p.20. On one occasion, mother improperly supervised A.R.M., the youngest brother, while putting him down for his nap. Mother fell asleep and allowed A.R.M. to roam the room alone, destroying various papers in the Merrigans’ home office and pouring water on the furniture. A.R.M. would have been about two or three years old at that time. When confronted, mother’s only explanation was “that she was tired.” N.T. 5/13/2011, p.21. At her last visit, mother demonstrated behaviors that suggested she was under the influence while visiting her children. “She would start talking about one thing and in midstream of a sentence change to another. Very agitated, very short with the children. It just - it wasn’t like her normal visits had been going.” N.T. 5/13/2011, p.22. After this visit, the Merrigans no longer welcomed her to their home to visit her children. Mother did not visit with her children until after the agency became involved, at least a year later.

After mother lost her privileges to visit the Merrigan home, her drug problem became more entrenched. In September 2009, she spent two weeks as an inpatient at Fairmount Behavioral Health, but left against medical advice. N.T. 5/12/2011, p.34. From October 2009 through December 2009, mother attended outpatient treatment at Self, Incorporated. After a short break from treatment, mother spent nearly a month as an inpatient at Kirkbride, from February 24, 2010 through March 18, 2010. Following her discharge from Kirkbride, she entered intensive outpatient treatment at The Wedge, attending treatment three times a week. N.T. 5/12/2011, pp.34-35. During her time in treatment, however, mother continued to regularly use drugs. During her 2010 treatment, mother tested positive for drug use numerous times. While at The Wedge, she had positive drug tests in April and May 2010. N.T. 5/12/2011, pp.36-37. Mother also admitted to the agency on four occasions in May and June 2010 that she was using PCP. N.T. 5/12/2011, pp.38-39. In June 2010, mother began attending Narcotics Anonymous at two locations: New Horizons and Freedom Through Recovery. N.T. 5/12/2011, pp.40-41. At the end of June, however, she was still using drugs, as she admitted to the agency on June 29 that she was doing so. N.T. 5/12/2011, p.41. Around the time of her June disclosure to the agency, she began attending outpatient treatment again at Self, Incorporated. Self, Incorporated performed drug tests there, and mother stated, “Every urine I gave there was positive for PCP.” N.T. 5/12/2011, pp.41-42. In July, mother admitted, during a hearing before the Dependency Court in Bucks County, that she was using drugs at that time.

Following her statement to the Dependency Court, mother continued attending treatment at self, incorporated. Between July 2010 and February 2011, she tested positive for drug use at least thirteen times. N.T. 5/12/2011, pp.43-44. On March 4, 2011, mother was accepted for inpatient treatment at Friends Hospital. She denied to this court that she denied treatment, but she did not actually receive treatment once she was accepted. N.T. 5/12/2011, p.45. By the end of March 2011, mother had stopped attending outpatient treatment at Self, Incorporated. N.T. 5/12/2011, p.45. She admitted to this court that she continues to use drugs, even while attending Narcotics Anonymous. She testified that she uses drugs when she is under stress, but that if she had her children back, she would not experience stress and so would not need the drugs anymore. N.T. 5/12/2011, p.47. She explained that though she’s unemployed, if her children were returned to her, she would not be under any stress to provide for them because her family would assist her. However, she provided no documentation or the testimony of her family members to support this claim. N.T. 5/12/2011, pp.47-49.

Mother’s supervised visits with the children have occurred about every two weeks since the children were adjudicated dependent and the agency became involved. Mother testified that she believes the visits have gone well. She testified that the children are happy when they are with her, and become sad when the visits are over. N.T. 5/12/2011, pp.54, 58, 75. Mother stated that the visits were representative of how she would normally act with the children, and that if the children were returned to her, the “only behavior that would change would be [her] substance abuse problem.” N.T. 5/12/2011, p.76. Christine Melton, the Bethanna visitation social worker, contradicted mother during her own testimony. Ms. Melton testified that the visits have not gone particularly, well, especially recently. She testified the children tend to ignore mother, and it is difficult for her to get them involved in an activity. N.T. 5/13/2011, p.73. Ms. Melton has discussed this with mother, but mother tends to redirect those discussions to other topics. N.T. 5/13/2011, p.75. According to Ms. Melton, the children tend to easily separate from mother and usually have to be prompted to hug her goodbye. N.T. 5/13/2011, pp.80, 82. Ms. Melton also reported that mother missed a visit on March 3,2011, with no reason given, and on at least one home visit with mother when the children were absent, mother exhibited behavior that suggested to Ms. Melton that mother was under the influence of some substance. N.T. 5/13/2011, pp. 114-115. Finally, Ms. Melton reported that mother consistently views her visits with the children differently than do third party observers. N.T. 5/13/2011, p.118.

Ms. Merrigan’s testimony threw more light on mother’s visits with the children. Ms. Merrigan testified that she encouraged the children to have positive visits with mother, but that she noticed behavior problems before and after visits. N.T. 5/13/2011, pp.27-29. In April 2010, prior to visits, E.M.M., Jr., was getting in trouble at school when he knew that visits would be occurring, and A.R.M. would get angry and violent. N.T. 5/13/2011, p.28. After visits, the children would be yelling in the car on the way home, and A.R.M. would hit E.M.M., Jr., while E.M.M., Jr., responded with insults directed to his brother. Ms. Merrigan testified that this behavior is not normal for the children. N.T. 5/13/2011, p.29. Since then, the children’s behavior has calmed, but E.M.M., Jr., still gets in trouble at school and experiences stomachaches at bedtime, while A.R.M. tends to be withdrawn prior to visits. N.T. 5/13/2011, p.30. Furthermore, neither of the children ask for mother or indicate that they miss her, and Ms. Merrigan testified to her opinion that neither child is bonded to mother. N.T. 5/13/2011, pp.31, 40. Ms. Merrigan also testified that she and Mr. Merrigan are prepared to adopt the children. N.T. 5/13/2011, p.35.

The agency, at this time, believes the termination of both parents’ rights in this case would be in the best interest of the children and would meet their needs and welfare. N.T. 5/13/2011, p.124. The agency also would be inclined to consent to the Merrigans’ adoption of the children. 5/13/2011, p.124. Hope Boyle, the agency caseworker, testified that the relationship between the children and the Merrigans is one of a close-knit family, where the children have integrated so seamlessly into the Merrigan family that an outside observer would not be able to tell that the children are not the Merrigans’ natural-bom children. N.T. 5/13/2011, p.122. Ms. Boyle also reported that the children are affectionate towards all members of the Merrigan family, and that affection is reciprocated. N.T. 5/13/2011, p.123. The guardian ad litem, Christine McMonagle, agreed with the agency in that the termination of mother’s parental rights would be appropriate in this case. N.T. 5/13/2011, p.135.

The agency filed its petition for Involuntary Termination of mother’s parental rights to both children on February 24, 2011, and a hearing was scheduled. The agency simultaneously filed for involuntary termination of the rights of the children’s father, E.M.M., however, E.M.M. voluntarily relinquished his parental rights to both children during the hearing on May 12, 2011. The agency sought termination under 23 Pa.C.S. §2511 (a)(2), (5) and (8). These subsections provide, in pertinent part:

(a) General rule. - The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

APPELLANT’S STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

Mother filed a notice of appeal on June 13, 2011. Her appeal was accompanied by a concise statement of matters complained of on appeal, as required by Pa.R. A.P. 1925(a)(2), which we have reproduced here, verbatim.

1. The trial court erroneously granted Bucks County Children & Youth’s (“BCC&Y”) petition to terminate the parental rights of natural mother as BCC&Y failed to prove incapacity, abuse, neglect, or refusal by natural mother caused the child to be without essential parental care, control or subsistence necessary for the child’s physical or mental well being as required under § 2511(a)(2).
2. The trial court erroneously granted BCC&Y’s petition to terminate the parental rights of natural mother as BCC&Y failed to prove that mother could not or would not remedy the conditions which led to the removal of the child as required under § 2511(a) (5).
3. The trial court erroneously granted BCC&Y’s petition to terminate the parental rights of natural mother under § 2511(a)(8) and [§] 2511(b) in that BCC&Y failed to prove that the involuntary termination of the natural mother’s termination of [sic] parental rights would best serve the needs and welfare of the child.

STANDARD OF REVIEW

Our duty, when considering a termination of parental rights petition, is twofold. We must determine whether the agency, the party bearing the evidentiary burden, has demonstrated that the statutoiy grounds for termination of parental rights have been met. Once we determine the agency has met that burden, we must decide whether the termination of parental rights meets the best interests of the child. 23 Pa.C.S. § 2511.

The agency’s evidentiary burden, as the petitioning party, was to demonstrate by clear and convincing evidence that grounds existed to terminate mother’s parental rights. In re Z.P., 994 A.2d 1108, 1116 (Pa. Super. 2010) (citing In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002)); see also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006). “The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” In re Z.P., 994 A.2d at 1116 (citing In re. J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002)).

Upon appeal, the appellate court’s “scope of review is broad and comprehensive, but [its] standard of review is narrow.” In re C.P., 901 A.2d at 520. The appellate court will only determine whether our findings, entitled to reasonable deference, are supported by competent evidence and whether we adequately considered the effect our decision would have upon the needs and welfare of the child. In re I.J., 972 A.2d 5, 8 (Pa. Super. 2009) (quoting In re S.D.T., Jr., 934 A.2d 703, 705-06 (Pa. Super. 2007)). The trial court, as the fact finder, determines witnesses’ credibility and is the “sole and final arbiter of all conflicts in the evidence.” Id. Absent an abuse of discretion, insufficient evidentiary support or an error of law, our decision must be upheld. In re Z.P., 994 A.2d at 1115. Our decision must be affirmed if our findings are supported by competent evidence, “even if the record could support an opposite result.” Id. at 1116.

DISCUSSION

By terminating a parent’s rights to her child, a court interferes with that parent’s basic constitutional right to raise her child in the manner in which she so chooses. In re J.W., 578 A.2d 952, 957 (Pa. Super. 1990) (“The custody, care, nurture, and instruction of children resides first in the children’s natural parents, as a constitutionally recognized fundamental right.”) A decision to terminate parental rights “is one of the most serious and severe steps a court can take, carrying with it great emotional impact for the parent and the child.” In re C.P., 901 A.2d at 520 (citing In re Bowman, 647 A.2d 217, 218-19 (Pa. Super. 1994)). A court’s intrusion into the family structure is only warranted in exceptional circumstances and only when it is clearly necessary to intrude. In re Matsock, 611 A.2d 737, 742 (Pa. Super. 1992) (quoting In re Adoption of Michael J.C., 473 A.2d 1021, 1026 (Pa. Super. 1984) and In Interest of C.M.E., 448 A.2d 59, 63 (Pa. Super. 1982)). However, once a parent has demonstrated a “failure to fulfill his or her parental duties,” the parent’s basic constitutional right to parent her own child converts “to the child’s right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment.” In re B.L.L., 702 A.2d 1007, 1013-14 (Pa. Super. 2001).

Our initial focus in a termination hearing is upon the conduct of the parent when we consider the various avenues for termination of parental rights listed in §2511 (a). Once we have determined that the parent’s conduct, or lack thereof, calls for termination of her parental rights under any of the §2511(a) subsections, we turn to “whether the termination will clearly promote the welfare of the child.” Id. at 1013. “Above all else in determining whether parental rights should be terminated, adequate consideration must be given to the needs and welfare of the child.” In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002). §2511(b) instructs us to consider the impact the termination of parental rights will have on the welfare and needs of the child. We are to consider a number of factors, including the “nature and status of the parent-child bond,” the “importance of continuity of relationships to the child,” “whether a natural parental bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.” In re I.J., 972 A.2d 5, 12 (Pa. Super. 2009) (citing In re K.Z.S., 946 A.2d 753, 760 (Pa. Super. 2008)). We are also to consider other intangible factors, “such as love, comfort, security, and stability.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005).

The agency filed for termination of mother’s parental rights under three subsections of 2511(a): 2511(a)(2), (5) and (8). Pet. p.2. Though the agency argued that termination was appropriate under all three subsections, mother’s parental rights could have been appropriately terminated if only one of those selected subsections was satisfied and we appropriately analyzed the 2511(b) considerations. In re Z.P., 994 A.2d at 1117. The agency was required to prove, by clear and convincing evidence, all of the elements outlined in a particular selected subsection, reproduced above. Mother argues in her appeal that the agency failed to prove selected elements of 2511(a)(2), (5) and (8), and thus that the agency failed to fully satisfy any of the subsections that would allow for termination of mother’s parental rights. We determined that agency met its burden under all three subsections, and that termination of mother’s parental rights was in the best interest of the children under §2511(b).

§2511 (a)(2) requires that the agency prove that mother’s repeated and continued incapacity, abuse, neglect or refusal to parent caused the children to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, etc., cannot or will not be remedied by the parent. The Superior Court has held that grounds for termination of a parent’s rights “’are not limited to affirmative misconduct.’” In re Z.P., 994 A.2d at 1117 (quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002)). §2511(a)(2) “emphasizes the child’s present and future need for essential parental care, control or subsistence necessary for his physical or mental well-being.” Id. (quoting In re E.A.P, 994 A.2d 79, 82 (Pa. Super. 2008)). Furthermore, this subsection has been read to assert “’that when a parent has demonstrated a continued inability to conduct his ... life in a fashion that would provide a safe environment for a child, whether that child is living with the parent or not, and the behavior of the parent is irremediable as supported by clear and convincing evidence, the termination of parental rights is justified.”’ In re Z.P., 994 A.2d at 1118 (quoting In re Adoption of Michael J.C., 486 A.2d 371, 375 (Pa. Super. 1984)).

The children in this case have officially been in the agency’s care since February 2010, but were voluntarily placed with the Merrigans in July 2008. From the testimony and evidence presented to this court, particularly GAL-1 and Ms. Merrigan’s identifying testimony, mother placed the children with the Merrigans because she realized that her substance abuse problem was creating an unsafe environment for her children. Mother was, by her own admission on GAL-1 and Ms. Merrigan’s testimony regarding the day GAL-1 was created, unsure about mother’s financial situation and understood that she needed to seek professional help to remove the drugs from her life. As of today, mother has refused to relinquish her PCP habit, and even acknowledges that her current housing arrangement, a studio apartment, is an unsuitable residence for a family of three. She has not demonstrated the ability or the motivation to live a life independent of illegal substances, and that concerns this court. Mother testified that she understood her reunification goals as laid out by the agency early on in this case. She testified that she understood that her sobriety and housing situation were the main issues preventing her reunification with the children. N.T. 5/12/2011, p.53. It is clear that mother understands that her reunification with her children was nearly entirely within her control. She chose to continue inviting PCP into her life, and she understood the consequences of that choice.

Though we are instructed to “examine the individual circumstances of each case and consider all explanations offered by the parent facing termination,” we are also to look at the evidence “in light of the totality of the circumstances” to determine if the evidence “clearly warrants the involuntary termination.” In re B., N.M, 856 A.2d 847, 855 (Pa. Super. 2004). While mother obviously cares greatly for the children, her recent history demonstrates an inability to provide for a child’s basic needs, including physical safety. A child requires “love, protection, guidance, and support” as well as stable, appropriate housing and the other physical necessities of life. It is a parent’s duty to provide these things, and they “cannot be met by a merely passive interest in the development of the child.” In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (quoting In re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977)). While mother has attended numerous treatment programs for her addiction, she continues to abuse substances though she realizes that her choices are preventing her from regaining custody of the children. She clearly understood in July 2008 that her drug abuse created an unsafe environment for the children and prevented her from providing the essential care that they needed, and she made a conscious decision to move them into the Merrigan home while she attempted to get help for her addiction. Since then, mother has refused to remove the one major thing from her life that is holding her back. The source of mother’s inability to appropriately parent the children is her substance abuse problem, and mother utterly refuses to remove that source from her life. This court found that the agency clearly met its burden under §2511 (a)(2). We also concluded that the agency met its burden under §2511 (a)(5) and (8), which we will now discuss.

The children had been in the care of the agency for approximately fifteen months at the time of the evidentiary hearing in May 2011. Clearly, the agency has met the time requirements of §2511 (a)(5) and (8). The issues that led to the agency’s involvement with mother’s private arrangement with the Merrigans are clearly still issues mother needs to deal with. Her drug addiction continues to be a regular feature in her life, and her housing situation leaves much to be desired as she has not indicated she has a plan to find more suitable housing arrangements. Mother has had a significant amount of time with which to deal with her substance abuse demons and overcome her drug addiction. Not only has she had the fifteen months during which the agency has been involved to attain and maintain sobriety, she had approximately eighteen months before that while her children were in the care of the Merrigans. The Merrigans even provided mother with the motivation to sober up when they ended her visits to their home. Mother has been provided with and has even sought out her own treatment programs during this time period totaling about thirty-three months, nearly three years. Unfortunately, none of these programs has made an impact. Mother has only been sober, by our calculations, for less than a month and that was while she was in inpatient treatment at Kirkbride from February to March 2010. Mother asserted that her substance abuse would cease once she regained custody of the children, but she has not demonstrated an ability to refrain from using drugs in order for this court to find that testimony credible. She was abusing substances while she had custody of the children prior to July 2008, and she has demonstrated nothing to suggest that she would suddenly stop using drugs once she regained custody. For the above reasons, we found that the agency met its burden under §2511 (a)(5) and (8).

As the agency clearly fulfilled the statutory requirements for termination of parental rights outlined under §2511(a) (2), (5) and (8), we next embarked on an analysis of whether termination of mother’s parental rights would best serve the needs and welfare of the children. We are instructed by the case law to consider “whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.” In re Z.P., 994 A.2d at 1121. We are not required to use expert testimony in this analysis, nor are we required to have a formal bonding evaluation completed. Id.

While it is obvious in this case that mother is bonded to both of her children, a “parent’s own feelings of love and affection for a child, alone, do not prevent termination of parental rights.” Id. (citing In re L.M., 923 A.2d 505, 512 (Pa. Super. 2007)). It is clear to this court that both children have bonded to the Merrigans and the Merrigans’ adult and minor children who also live in their household. Ms. Boyle’s testimony, as a representative of the agency, was particularly telling. Ms. Boyle described the Merrigan household as a cohesive family unit, where the children look to the Merrigans as their own parents. “If I didn’t know any better, I would have thought that they were their own children. The children go to the Merrigans for their every need.” N.T. 5/13/2011, p. 122. The children are affectionate toward the other members of the Merrigan family, and that affection is reciprocated. N.T. 5/13/2011, p.123. While the children’s visits with mother appear to operate smoothly, the children’s behavior before and after their visits is quite significant. The behavior of both becomes noticeably changed for the worse prior to visits and immediately following visits, when they experience anger issues and physically and verbally pick on each other. E.M.M., Jr., the oldest of the two, has on at least one occasion spent a visit repeatedly asking when the visit would be over. N.T. 5/13/2011, p.78. Both of the children separate easily from mother, even running to Ms. Merrigan’s car at the end of visits when Ms. Merrigan comes to collect them. N.T. 5/13/2011, p.82. Both Ms. Merrigan and Ms. Melton, the Bethanna social worker, reported that neither child has asked for mother in her absence or indicated that he might miss her. N.T. 5/13/2011, pp. 31, 83-84. While mother clearly loves the children, there does not appear to be an existing, reciprocal, necessary and beneficial relationship between mother and the children.

Additionally, the Merrigans provide both of the children with the stable home life that children need in order to thrive. In their present setting, the children are not exposed to regular, consistent drug use, nor are they subjected to a parent who manages her stress by ingesting illegal substances. The children have lived with the Merrigans for approximately three years now. The youngest child, A.R.M., has known the Merrigan home as his home for more than half of his young life. Both of these children turn to the Merrigans for love and comfort when they need it, just as they look to the other children in the home for emotional support and affection.

It is clear, based on the testimony of Ms. Merrigan and Ms. Boyle, as well as Ms. McMonagle’s report as the guardian ad litem, that our decision that this would best serve the children’s needs and welfare was the correct decision and would not sever an existing beneficial relationship or result in irreparable harm to the children. Therefore, the remaining elements of §2511(a)(5) and (8), as well as the entirety of §2511(b), have been proven by the agency.

Mother’s unchecked substance abuse problem led her to place the children with the Merrigans in July 2008, and drove the agency to take further action regarding the children in February 2010. Mother’s addiction continues to play a substantial role in her life, and she has not credibly indicated to this court that she is able or willing to end her relationship with PCP. All of mother’s attempts at substance abuse treatment have failed, and though she is active in Narcotics Anonymous, she continues to abuse illegal substances on a regularly scheduled basis. Mother has had nearly three years to fight her addiction; additional time to seek treatment will not have a sufficient effect on her situation. The children have been in the full care of the Merrigans since July 2008 and the agency since February 2010, and it is time that they be assured the stability that is essential to the healthy development of children. “The court cannot and will not subordinate indefinitely a child’s need for permanence and stability to a parent’s claims of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006). For all of the foregoing reasons, we granted the agency’s petition to terminate the parental rights of mother as to the children.