author: ASHWORTH, J.,

text:
    Commonwealth v. Fuentes-Flores

      Craig W Stedman, district attorney, for Commonwealth.

      MaryJean Glick, senior assistant public defender, for defendant.
    November 24, 2008
   ASHWORTH, J.,

Pedro Fuentes-Flores has filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence imposed on September 19,2008. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

I. BACKGROUND

On May 23,2007, at 12:27 a.m., Officer Lisa Gehr of the East Lampeter Township Police Department was dispatched to the 400 block of Greenland Drive, East Lampeter Township, for a reported hit-and-run accident. (Notes of Testimony, Trial (N.T.T.), vol. II at 308-309.) There she met with a witness who described a red Jeep Cherokee as being the vehicle involved in the accident. The witness stated he recognized the Jeep as belonging to a neighbor and directed Officer Gehr to a male subject walking in front of 413 Greenland Drive as one of the people associated with the Jeep. (Id. at 311-12, 380-83.)

Officer Gehr approached the subject and identified him as the appellant, Pedro Fuentes-Flores. (N.T.T., vol. II at 315-16.) Officer Gehr was familiar with appellant from previous encounters involving him and Karen Crowley. (Id. at 314-15.) Appellant Fuentes-Flores was observed talking on a cellular telephone, which he closed upon Officer Gehr’s approach. (Id. at 316, 324-25, 333-34.) Officer Gehr asked appellant if she could speak with him. (Id.) Appellant responded, “My friend died.” (Id. at 316, 328, 334.) Officer Gehr asked appellant if they could go inside to talk. (Id. at 316, 317, 335.) Appellant proceeded into the residence at 413 Greenland Drive, followed by Officer Gehr. (Id. at 317-18.)

Officer Gehr asked appellant whether “Karen” was home, to which appellant responded, “she’s here.” (N.T.T., vol. II at 318.) As Officer Gehr reached the top of the steps, she observed the victim, Karen Crowley, lying naked on the floor of the apartment. (Id.) The officer observed a pool of blood to the left side of the victim’s head and what appeared to be a purple/black bruise on the left side of her ribs. (Id. at 327.) Ms. Crowley’s skin was pale, gray and waxy. The victim was unresponsive and did not appear to be breathing. (Id. at 318-19.) Officer Gehr found no respirations or pulse. (Id. at 322.) Officer Gehr also observed an empty clear glass bottle positioned upright between the victim’s upper legs. (Id. at 318-19.)

Detective Scott Eelman of the East Lampeter Township Police Department, and a member of the County Forensic Investigation Unit, arrived at the scene and examined the victim. (N.T.T., vol. III at 501-502, 513-14.) He noted bum marks on the victim’s body and the carpet beneath her, specifically, the carpet between the left upper arm and the left side of Ms. Crowley’s chest. (Id. at 528, 532.) There was soot transfer and discoloration of the skin consistent with a bum on the left side of Ms. Crowley’s chest. (N.T.T., vol. IV at 734.) The victim also had several bums in the inner aspect of her left upper arm. Finally, he observed a bottle labeled “Olive Oil” between the victim’s legs and a second bottle labeled “Lemon Oil” near the victim’s head. (N.T.T., vol. Ill at 528-29.) A strong odor of lemon emanated from Ms. Crowley’s body. (N.T.T., vol. IV at 716.) There were obvious stab wounds to the victim’s chest. (N.T.T., vol. III at 527.)

Detective Eelman further detected a strong odor of natural gas or propane in the apartment and discovered that the controls for the four surface burners of the stove and the oven were in the “on” position and that a hissing sound was coming from the range. (N.T.T., vol. III at 514-16.) There was no pilot light in the stove or oven. (Id. at 516.)

On May 23, 2007, appellant Fuentes-Flores gave a statement to the police in which he admitted stabbing the victim in the chest with a knife multiple times. (N.T.T., vol. IV at 784, 796.) He also admitted to pouring a liquid on her in order to accelerate a fire, which he started, after turning on the gas at the stove in an attempt to ignite afire.

The victim’s residence, 413 Greenland Drive, is located inside an apartment complex. (N.T.T., vol. II at 403; vol. IV at 665.) The apartment is on the second floor of a two-story building. (N.T.T., vol. Ill at 515.) There are eight apartments located in the same building as 413 Greenland Drive. The apartments below and next to 413 Greenland Drive exhibited signs of habitation on May 23,2007, and a police canvas revealed that several apartments were occupied on the night in question. (N.T.T., vol. II at 392-95, 399, 404.)

On May 24,2007, Trooper Brian J. Herr, the Pennsylvania State Police Fire Marshal, examined the victim’s body and her residence and concluded that the fire was intentionally ignited and, therefore, considered an incendiary or arson fire. (N.T.T., vol. IV at 660-61, 665, 670.) On May 24, 2007, the Lancaster County Forensic Pathologist, Wayne Ross M.D., conducted an autopsy on Karen Crowley and concluded that she was murdered and that her death was caused by stab wounds to her chest. (N.T.T., vol. III at 604.)

As a result of the investigation, appellant was arrested and charged with criminal homicide in the stabbing death of Karen Crowley. He was also charged with arson and creating a risk of catastrophe for intentionally starting a fire in the apartment by placing oil on the victim and turning on the gas burners and the gas oven and extinguishing the pilot light before igniting a fire.

Pursuant to Pa.R.Crim.P. 802, the Commonwealth filed a notice of intent to seek a sentence of death on July 19, 2007. Specifically, the Commonwealth believed it could prove two statutory aggravating circumstances: (1) the creation of a grave risk of death to another person in addition to the victim of the offense, 42 Pa.C.S. §9711(d)(7); and (2) a killing while in the perpetration of a felony, 42 Pa.C.S. §9711(d)(6).

On December 27, 2007, appellant filed a motion to quash those aggravating circumstances on the ground that no evidence existed to support them. Specifically, he asserted that the Commonwealth would not be able to offer prima facie evidence that the victim was alive at the time that appellant committed the offense of arson, the activity relied upon by the Commonwealth to support both aggravating circumstances. On January 18, 2008, the Commonwealth filed an answer to appellant’s motion conceding the inapplicability of the aggravating circumstance set forth at section 9711(d)(6), but contesting appellant’s motion with respect to the applicability of the (d)(7) aggravator.

On February 15, 2008, the court entered an order granting appellant’s motion in part and denying the motion in part. Specifically, the motion was granted as to the aggravating circumstance set forth at section 9711 (d) (6), but denied with respect to the applicability of the (d) (7) “grave risk of death” aggravator.

On March 4,2008, appellant filed a motion for reconsideration of the court’s order of February 15,2008, and requested oral argument. Appellant’s request was granted and oral argument was heard in chambers on April 3, 2008, and again on May 5,2008. Following the filing of supplemental briefs by the parties, an opinion and order were entered on May 21, 2008, quashing notice of the (d)(7) “grave risk of death” aggravating circumstance and barring the imposition of a sentence of death in this case.

On June 2,2008, appellant filed a supplemental motion to suppress evidence in which he argued that a violation of his consular rights as a Mexican citizen under the Vienna Convention on Consular Relations in this case warranted the suppression of his statement. A hearing was held on this motion, as well as appellant’s original January 2,2008 omnibus pretrial motion, on June 4 and 5, 2008. Findings of fact were issued on June 10, 2008, which addressed the arrest of appellant, the statements made by him during his custodial interrogation, the search of appellant’s residence, the search of appellant’s person following his arrest, the search of his behavioral file at Lancaster County Prison, the seizure of blood from appellant, and his consular rights under the Vienna Convention on Consular Rights. Based upon these findings, appellant’s two pretrial motions were denied.

On June 24,2008, the Commonwealth filed a motion in limine seeking to introduce various photographs relative to all charges, including photographs depicting the decedent as found inside her home, as well as various injuries as photographed at the time of the autopsy. Appellant filed a response to this motion on June 27,2008. The court met with counsel in chambers, on several occasions, to review the photographs and to discuss redacting and modifying them for trial. (N.T.T., vol. II at 268-71.) Immediately prior to the start of trial, the court reviewed the limited number of redacted and modified photographs to be offered by the Commonwealth from the hundreds in the file and determined that with respect to those select few photographs, “the probative value outweigh[ed] the prejudicial effect, given the burden of proof that the Commonwealth ha[d] and the issues in this case.” (Id. at 271.)

The case ultimately proceeded to a jury trial on July 9,2008, at the conclusion of which appellant was found guilty of first-degree murder, arson and risking a catastrophe. A pre-sentence investigation report was ordered.

At the sentencing hearing on September 19,2008, the court first imposed the mandatory sentence of life without parole on the first-degree murder conviction. With respect to the arson conviction, the court considered the pre-sentence investigation report before imposing a consecutive sentence of three to 10 years’ incarceration. This sentence was in the standard range of the Pennsylvania Sentencing Guidelines. The offense of risking catastrophe merged for sentencing purposes with the arson conviction. Appellant was also required to pay restitution in the amount of $10,943.65, plus costs. No post-sentence motions were filed. Appellant was represented at his trial and sentencing hearing by the office of the public defender, specifically, Douglas A. Conrad, Esquire.

On October 17, 2008, appellant filed a timely appeal to the Superior Court of Pennsylvania from the judgment of sentence imposed on September 19, 2008. Counsel was directed to identify the matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On November 10,2008, counsel filed a Rule 1925(b) statement claiming trial court error with regard to the admission of certain photographs of the victim, Karen Crowley. The Commonwealth filed a response to appellant’s statement on November 19, 2008.

II. DISCUSSION

Appellant asserts generally, without specifying a certain photograph or photographs, that the court erred by admitting inflammatory and prejudicial color photographs of the murder victim, Karen Crowley. In support of his position, appellant argues that “[a]s the manner of Ms. Crowley’s death was not contested, these photographs were of minimal relevance.” (See statement of errors at ¶1.)

Our Supreme Court has held that “[t]he admissibility of photos of the corpse in a homicide case is a matter within the discretion of the trial court, and only an abuse of discretion will constitute reversible error.” Commonwealth v. Robinson, 581 Pa. 154, 224, 864 A.2d 460, 502 (2004) (quoting Commonwealth v. Rush, 538 Pa. 104, 111, 646 A.2d 557, 560 (1994)). See also, Commonwealth v. Brown, 551 Pa. 465, 484, 711 A.2d 444, 453 (1998). “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill will, or such lack of support so as to be clearly erroneous.” Commonwealth v. Dengler, 586 Pa. 54, 65, 890 A.2d 372, 379 (2005). Evidence is relevant, and therefore admissible, if it logically tends to establish a material fact in the case, or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Robinson, 554 Pa. 293, 305, 721 A.2d 344, 350 (1998).

It is well settled that photographs of the victim of a homicide are not per se inadmissible. Robinson, 581 Pa. at 223, 864 A.2d at 501. In Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203 (1997), the Supreme Court promulgated a two-step test to determine the admissibility of photographs of a murder victim, which by their very nature can be unpleasant, disturbing, and even brutal:

“First, a court must determine whether the photograph is inflammatory. If not, it may be admitted if it has relevance and can assist the jury’s understanding of the facts. If the photograph is inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. If an inflammatory photograph is merely cumulative of other evidence, it will not be deemed admissible.” Id. at 321, 690 A.2d at 216 (citing Commonwealth v. Chester, 526 Pa. 578, 591-92, 587 A.2d 1367, 1373-74 (1991)).

Appellant argues that the photographs admitted by the Commonwealth in the instant matter served only to inflame the passions of the jury, that the prejudicial effect of the photographs far outweighed their evidentiary value, and that the depiction was needlessly cumulative. The murder of Karen Crowley was truly a horrific crime. Yet, that is the crime for which appellant was on trial, and it is the crime for which appellant was convicted. The bloody photographs of Karen Crowley are indeed distasteful, as one would expect in a brutal murder. However, these photographs were highly probative concerning the element of specific intent to kill.

Our Supreme Court has repeatedly recognized that photographic images of a homicide victim are often relevant to the intent element of the crime of first-degree murder. Commonwealth v. Pruitt, 597 Pa. 307, 327, 951 A.2d 307, 319 (2008) (citing Commonwealth v. Solano, 588 Pa. 716, 735, 906 A.2d 1180, 1191 (2006) and Commonwealth v. Tharp, 574 Pa. 202, 222, 830 A.2d 519, 531 (2003)). “In some cases, the condition of the victim’s body may be the only evidence of the defendant’s intent.” Id. (citing Commonwealth v. McCutchen, 499 Pa. 597, 603, 454 A.2d 547, 549 (1982) (emphasis in original) (depiction of the victim’s deep and gaping injuries “was essential as evidence of intent beyond mere infliction of bodily injury.”)). A trial court may not sanitize the evidence and, thus, deprive the Commonwealth of the opportunity to prove intent to kill beyond a reasonable doubt. See id. Thus, the photographs were relevant evidence as to appellant’s intent, an element that was very much in contention at trial.

Moreover, the photographs in the instant case were relevant to proving the facts and elements of the arson offense. The defense contested the arson, and the photographs clearly showed the extent of the bums, the spread of the fire, as well as other evidence related to the burning. Additionally, they showed the area in which appellant committed the murder and they corroborated Dr. Ross’ testimony and assisted him in conveying the results of the autopsies. (N.T.T., vol. III at 584-89.) The fact that a forensic pathologist has conveyed to the jury, in appropriate clinical language, the nature of the victim’s injuries and the cause of death does not render photographic evidence merely cumulative, as suggested by appellant. See Pruitt, 951 A.2d at 319 (citing McCutchen, 499 Pa. at 603, 454 A.2d at 550). “The meaning of words, particularly the clinical words employed by a pathologist, can be properly and usefully illustrated and explained to a lay jury via photographic images.” Id. Thus, appellant’s argument that the photographs were merely cumulative of the testimony of the pathologist is meritless.

There was no abuse of discretion in this court’s analysis of, and decision regarding, the photographs. The photographs of the victim were necessary to portray accurately the crime scene, and the nature and extent of the victim’s injuries. They were also necessary to aid the jury in determining the manner of death and whether the killing was intentional. Additionally, the photographs were culled so as to not be cumulative and were relevant to proving the facts and elements of the arson offense.

As the Supreme Court explained in Rush, supra:

“A criminal homicide trial is, by its very nature, unpleasant, and the photographic images of the injuries inflicted are merely consonant with the brutality of the subject of inquiry. To permit the disturbing nature of the images of the victim to rule the question of admissibility would result in exclusion of all photographs of the homicide victim, and would defeat one of the essential functions of a criminal trial, inquiry into the intent of the actor. There is no need to so overextend an attempt to sanitize the evidence of the condition of the body as to deprive the Commonwealth of opportunities of proof in support of the onerous burden of proof beyond a reasonable doubt. Further, the condition of the victim’s body provides evidence of the assailant’s intent, and, even where the body’s condition can be described through testimony from a medical examiner, such testimony does not obviate the admissibility of photographs.” Robinson, 581 Pa. at 224, 864 A.2d at 502 (quoting Rush, 538 Pa. at 111, 646 A.2d at 560).

After viewing the photographs in camera, I held that they were each admissible. (N.T.T., vol. II at 270-71.) While I acknowledged that some of the photographs were graphic and could be disturbing (see for example, id. at 271), I nonetheless held that they were admissible because they were probative of the vicious nature of the killing and the arson charge. The probative value outweighed any prejudicial effect they may have had on the jury. (Id.) Without these photographs, it would have been impossible for a reasonable jury to fully grasp the severity of the wounds inflicted upon this victim, and the evidence surrounding the arson offense.

Accordingly, there was no abuse of discretion in the admission of the contested exhibits and appellant is entitled to no relief.

III. CONCLUSION

For the reasons set forth above, appellant’s judgment of sentence should be affirmed and his appeal dismissed.

Accordingly, we enter the following:

ORDER

And now, November 24, 2008, the court hereby submits the foregoing opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

      . 18 Pa.C.S. §2502(a).

      . 18 Pa.C.S. §3301(a)(1)(I) and 18 Pa.C.S. §3302(b), respectively.

      . Section 9711 of the Crimes Code provides in relevant part:

        “(d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following:...

        “(6) The defendant committed a killing while in the perpetration of a felony.
      “(7) In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.” 42 Pa.C.S. §9711(d)(6) and (7).

      . The Commonwealth conceded that Pennsylvania case law has never defined the language “in perpetration of” found in section 9711 (d) (6) to include activity that occurs following the killing. It further acknowledged that Pennsylvania’s death penalty statute is to be strictly construed. See Commonwealth v. Stallworth, 566 Pa. 349, 373, 781 A.2d 110, 124 (2001) (“[I]n the context of a statute defining a category of persons against whom it is permissible to impose a sentence of death, such strict construction should militate in favor of the least inclusive interpretation.”) (citing Zant v. Stephens, 462 U.S. 862, 877 (1983) (stating that aggravating factors must “genuinely narrow the class of death-eligible persons” in a way that reasonably “justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder”)). Accordingly, given the fact that the Commonwealth conceded that the felony followed the killing, it was not “in perpetration of” the killing and this aggravator was not applicable in the instant case.

      . Appellant argued that no evidence existed to support the (d)(7) aggravator, that is, that “in the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim ofthe offense.” 42 Pa.C.S. §9711(d)(7). (emphasis added) According to this statutory language, the grave risk of death to the other people in the multi-unit apartment building must have occurred “in the commission” of Karen Crowley’s murder. The Commonwealth made the following three acknowledgments relative to the commission of the murder: (1) the victim died from the multiple stab wounds to her chest; (2) appellant could not have believed the victim was alive after the stabbings that he inflicted upon her; and (3) appellant’s attempt to set a fire inside the apartment of the victim was intended “to conceal his crime” of murder. (See Commonwealth’s memorandum of law in opposition to appellant’s motion for reconsideration at 4,5.) Given this posture of the case, we concluded that the activity that arguably endangered other persons occurred only after the commission of the murder. Hence, the arson did not occur “in the commission of the offense,” i.e., during Ms. Crowley’s murder. The grave risk of harm to persons other than the intended victim was substantially removed in time from the commission of the murder. See Commonwealth v. Paolello, 542 Pa. 47, 80, 665 A.2d 439, 456 (1995) ((d)(7) aggravator is applicable only in those instances where “other persons are ‘in close proximity’ to the defendant ‘at the time’ of the murder, and due to that proximity are in jeopardy of suffering real harm.”). See also, Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178 (2006); Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277 (2005); Commonwealth v. DeJesus, 584 Pa. 29, 880 A.2d 608 (2005); Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d 26 (2005); Commonwealth v. Bolden, 562 Pa. 94, 753 A.2d 793 (2000).

      . Although appellate counsel has not seen the actual photographs admitted into evidence at the trial in this matter, she is “objecting to all photographs of the victim which were admitted into evidence.” (See statement of errors at ¶1, n. 1.)

      . Dr. Ross, the forensic pathologist, testified that Karen Crowley was stabbed 11 times with multiple weapons. (N.T.T., vol. III at 586-87, 614.)

      . In both the opening and closing statements, after acknowledging that appellant killed Karen Crowley, defense counsel argued strenuously that appellant did not have the specific intent to kill and should, accordingly, be acquitted of first-degree murder. (N.T.T., vol. II at 306-307; vol. IV at 808-10, 814-15.)


source: Caselaw Access Project

author: RUEST, J.,

license: Public Domain

text:
    Crestani v. Walters

      Alexander F. Barth, for plaintiff.

      James N. Bryant, for defendants.
    January 23, 2009
   RUEST, J.,

Before the court are defendants Thomas L. Walters and Tina M. Lyons’ motion for summary judgment, filed on October 28, 2008. A hearing on the motion was held on January 8, 2009. Both parties submitted briefs. The court determines defendants’ motion for summary judgment is denied.

BACKGROUND

The matter arises out of a property dispute between plaintiff and defendants regarding a tract of land located in Boggs Township, Centre County, Pennsylvania (the property). Plaintiff seeks to use his property for commercial development, a use for which it is zoned. The property is landlocked by properties owned by defendants. An easement exists across defendants’ land, giving plaintiff a 20-foot right of way. Plaintiff seeks to expand the easement to give him a 60-foot right of way.

PROCEDURAL HISTORY

The parties were involved in previous litigation regarding this same tract of land. Defendants had sought to prevent plaintiff from grading and paving the existing cartway. Upon agreement, President Judge Charles C. Brown Jr. entered an order on July 3, 2003, confirming the original metes and bounds of the easements, and confirming plaintiff’s right to maintain the cartway. The present matter was commenced by the filing of a complaint on June 13, 2008. Defendants filed preliminary objections on July 9,2008. The court denied defendants’ preliminary objections by order dated October 1, 2008, and directed defendants to file an answer to plaintiff’s complaint. Defendants filed an answer and new matter and the present motion for summary judgment on October 28, 2008.

DISCUSSION

In Pennsylvania, motions for summary judgment are governed by the well-established standard set forth below:

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Barnish v. KWI Building Co., 916 A.2d 642, 645 (Pa. Super. 2007).

Defendants raise three grounds for summary judgment: statute of limitations, res judicata, and failure to state a claim upon which relief may be granted.

I. Statute of Limitations

Defendants allege plaintiff’s claim is barred by an unspecified statute of limitations. Two possible statutes of limitation apply, either 20 or 21 years. The 20-year statute of limitations controls actions related to documents executed under seal. 42 Pa.C.S. §5529. 42 Pa.C.S. §5529(b)(1) provides, “[njotwithstanding section 5525(7) (relating to four-year limitations), an action upon an instrument in writing under seal must be commenced within 20 years.” The deed transferring the property to plaintiff, which identifies plaintiff’s rights in the easements, was executed under seal on September 17,1999. The statute of limitations on plaintiff’s claim will not expire until 2019.

The court determines plaintiff’s claim is not barred by any statute of limitations.

II. Res Judicata

Defendants argue that the doctrine of res judicata applies to bar plaintiff’s claims. For res judicata to apply, four “identities” between the prior and present litigation must exist: “the identity of the thing sued upon... must be the same in both cases; the identity of the parties must be the same; the capacity of the parties to sue or be sued must be the same; and the causes of action in each case must be the same.” Miller v. Commonwealth Board of Property, 111 Pa. Commw. 240, 243, 533 A.2d 819, 820 (1987). In the prior action, defendants sought a declaratory judgment “restricting [Mr. Crestani] from doing anything but maintaining the right-of-way in a mud-free, passable condition.”

In the case at bar, plaintiff seeks to widen the existing easements so that he can use the property in accordance with its commercial zoning. His complaint sets forth three causes of action that seek to widen the access and utility easements across defendants’ properties. Counts I and II seek declaratory relief and Count III sounds in quiet title. None of these actions were asserted by plaintiff in the prior action, and they were not litigated at that time. The prior action merely confirmed the metes and bounds of the existing easements as recorded with the recorder of deeds and did not address a claim to expand the easements.

Plaintiff’s right to expand the easements has not yet been litigated, considered, or ruled upon by the court. The court determines the doctrine of res judicata does not bar plaintiff from seeking to expand the easements. Res judicata does, however, bar plaintiff from attempting to relitigate the metes and bounds of the existing easements.

III. Demurrer

Defendants argue that plaintiff is attempting to invoke the use of a quiet title action to compel the grant of an enlarged easement. This argument was previously rejected by the court in denying defendants’ preliminary objections to plaintiff’s complaint. In an opinion and order entered October 1, 2008, the court stated:

“Pursuant to Pa.R.C.P. 1061 (b), an action to quiet title may be brought ‘where an action of ejectment will not lie, to determine any right, lien, title or interest in the land or to determine the validity or discharge of any document, obligation or deed affecting any right, lien, title or interest in land.’ An action to quiet title is the proper avenue for plaintiff to assert his right to the use and enjoyment of the easements.”

An easement is an “interest in land” within the meaning of Pa.R.C.P. 1061(b). See also, Versailles Township Authority of Allegheny County v. City of McKeesport, 171 Pa. Super. 377, 382, 90 A.2d 581, 584 (1952). Plaintiff has properly pled a cause of action in quiet title to assert his right to the use and enjoyment of the easements.

Accordingly, the following is entered:

ORDER

And now, January 23, 2009, upon consideration of defendants’ motion for summary judgment, defendants’ motion is denied.


text:
    Commonwealth v. Gordon

      Joseph P. McMahon, assistant district attorney, for Commonwealth.

      Peter A. Kinsley, assistant public defender, for defendant.
    December 15, 2008
   ASHWORTH, J.,

This matter comes before the court on a motion to dismiss on behalf of defendant William Henry Gordon. The Pennsylvania State Police have charged defendant with violating 18 Pa.C.S. §4915(a)(1), the verification of residence provisions of the Registration of Sexual Offenders statute, commonly referred to as Megan’s Law. See 42 Pa.C.S. §§9791-9799.9. Defendant contends that this statute, by its terms, does not apply to individuals currently residing in this Commonwealth who have been convicted of offenses similar to the crimes listed in 42 Pa.C.S. §9795.1(b)(2) under the laws of another state. For the reasons set forth below, the motion is denied.

I. BACKGROUND

On September 12, 1997, defendant, having pleaded guilty to the felony charge of unlawful sexual penetration 3, registered as a lifetime registrant with the New Castle County, Delaware Sex Offender Registry. On July 7, 1998, a Sex Offender Registration form was docketed in the Superior Court ofNew Castle County, Delaware. On August 11,1999, defendant was discharged from probation in New Castle County, and his case was closed.

From January 14, 2007 until February 16, 2007, defendant was incarcerated in Lancaster County Prison as a fugitive from justice, based on a warrant out of Delaware. Defendant was not returned to Delaware. On February 20, 2007, defendant registered with the Pennsylvania State Police Megan’s Law Unit at Troop “J,” Lancaster, Pennsylvania. On March 21,2007, a Delaware warrant was issued charging defendant with knowingly or recklessly failing to register or re-register as a sexual offender or otherwise comply with the provisions of sexual registration. On July 25, 2007, the Pennsylvania State Police apprehended defendant on the outstanding warrant from Delaware.

During an interview with defendant on July 25,2007, it was revealed that defendant had moved from his registered address of 220 Stone Mill Road, Lancaster, to 236 North Mulberry Street, Lancaster City, on May 7, 2007. Additionally, the State Police learned that defendant had been temporarily employed at Holiday Inn Express for approximately three months in the spring of 2007. Based upon this information, on August 6, 2007, Trooper Phillip G. Strosser of the Pennsylvania State Police charged defendant with three counts of failure to comply with registration of sexual offender requirements. Count One alleges that defendant failed to report an address change within 48 hours with the Pennsylvania State Police, as required by law. Count Two avers that he failed to notify the State Police of new employment within 48 hours. Count Three asserts that defendant failed to advise the State Police of his employment termination within 48 hours.

A preliminary hearing was held before Magisterial District Justice Bruce Roth on August 23, 2007. MDJ Roth concluded that the Commonwealth had established aprima facie case as to the offenses charged and returned the case to the Lancaster County Court of Common Pleas. On September 17,2007, the above captioned Information was filed against defendant.

On September 19, 2008, defendant filed this motion to dismiss challenging the applicability of 18 Pa.C.S. §4915(a)(1). The Commonwealth filed a timely response. After oral argument by counsel, the court granted defendant 10 days to file an amended motion and brief in support thereof. Upon request of counsel, on October 2, 2008, defendant was granted an additional 20 days within which to obtain additional information from the State of Delaware to be used in his modified motion to dismiss. Defendant’s motion and brief were filed on October 20, 2008. A reply was filed by the Commonwealth on October 28,2008. This matter is now ripe for disposition.

II. DISCUSSION

Defendant is charged with failure of registration of sexual offenders requirement pursuant to 18 Pa.C.S. §4915 (a)(1) which states, in pertinent part:

“(a) Offense defined. — An individual who is subject to registration under 42 Pa.C.S. §9795.1(a) ... or an individual who is subj ect to registration under 42 Pa.C.S. §9795.1(b)(1), (2) or (3) commits an offense ifhe knowingly fails to:
“(1) register with the Pennsylvania State Police as required under 42 Pa.C.S. §9795.2 (relating to registration procedures and applicability);
“(2) verify his address or be photographed as required under 42 Pa.C.S. §9796 (relating to verification of residence); or
“(3) provide accurate information when registering under 42 Pa.C.S. §9795.2 or verifying an address under 42 Pa.C.S. §9796.” 18 Pa.C.S. §4915(a)(1).

This statute has two basic components. First, an individual must be subject to registration based upon terms set forth in another title and section, 42 Pa.C.S. §9795.1 (specifying only individuals convicted of certain offenses). If the first requirement is met, that the individual is subject to registration as in 42 Pa.C.S. §9795.1(a) or 9795.1(b)(1), (2), or (3), then the next step is to look at subparts 18 Pa.C.S. §4915(a)(1), (2), or (3), to determine if the individual that is subject to registration failed to complete some level of registration required by 18 Pa.C.S. §4915(a)(1), (2), (3).

Defendant contends that this statute cannot apply to him by its written and explicit terms because defendant is not an “individual who is subject to registration under 42 Pa.C.S. §9795.1(a)... or an individual who is subject to registration under 42 Pa.C.S. §9795.1(b)(1),(2), or (3).” The Commonwealth concedes that these statutory provisions do not apply to the facts of this case. And, after a thorough review of these specific provisions, it is clear that neither section 9795.1 (a) nor section 9795.1 (b) (1), (b)(2) or (b)(3) can be the basis for prosecution of this defendant under 18 Pa.C.S. §4915(a). However, that does not conclude our analysis of whether defendant can be charged with violating the verification of residence provisions of Megan’s Law.

It is undisputed that defendant is an individual subject to lifetime registration with the Pennsylvania State Police under 42 Pa.C.S. §9795.1(b)(4). Pursuant to section 9795.1(b)(4), lifetime registration is required for

“[individuals currently residing in this Commonwealth who have been convicted of offenses similar to the crimes cited in [section 9795.1(b)(2)] under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.” 42 Pa.C.S. §9795.1(b)(4).

Defendant’s sole argument is that individuals subject to registration under section 9795.1(b)(4) are not included under 18 Pa.C.S. §4915(a)(1) because subsection (b)(4) is not specifically listed. In determining whether section 4915(a) includes those criminal defendants subject to registration under section 9795.1(b)(4), we are guided by the Statutory Construction Act of 1972. 1 Pa.C.S. §1921 et seq.

The object of all interpretation and construction of statutes is to ascertain and effectuate legislative intent. 1 Pa.C.S. §1921(a); see also, Commonwealth v. King, 595 Pa. 685, 689, 939 A.2d 877, 880 (2007). In pursuing that end, we are mindful that the statute’s plain language generally provides the best indication of legislative intent. See Commonwealth v. Conklin, 587 Pa. 140, 152, 897 A.2d 1168, 1175 (2006). Since 18 Pa.C.S. §4915(a)(1) is a penal statute, we are required to strictly construe the language contained therein. 1 Pa.C.S. §1928(b)(1); Commonwealth v. McClintic, 589 Pa. 465, 472, 909 A.2d 1241, 1245-46 (2006). “However, strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the legislature’s evident intent be disregarded.” Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa. Super. 1998) (quoting Commonwealth v. Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986)).

Again, it is defendant’s contention that individuals subject to registration under 42 Pa.C.S. §9795.1(b)(4) are not included under 18 Pa.C.S. §4915(a)(1) because subsection (b)(4) is not specifically listed. It is the Commonwealth’s position that subsection (b)(4) is included because to not include those with a lifetime registration for a crime committed outside the Commonwealth while including those who committed a crime outside the Commonwealth requiring only a 10-year registration would be an absurd result. The Commonwealth contends that because defendant is subject to a lifetime registration under section 9795.1(b)(4), he is necessarily subject to the lesser 10-year registration under section 9795.1(a) (3). Section 4915(a)(1) includes individuals subject to registration under section 9795.1(a) which includes subsection (a)(3).

This court agrees that defendant’s reading of the statute leads to an absurd, unreasonable result. Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa.C.S. §1922(1), states that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” In Diakatos, supra, pur Superior Court recognized the legal concept that “[wjhen interpreting a statute it is presumed that the legislature did not intend an absurd or unreasonable result....In this regard, ‘ [the court is] permitted to examine the practical consequences of a particular interpretation. ’ ” 708 A.2d at 512. (citations omitted)

In this case, we are presented with an out-of-state sex offender who, according to Pennsylvania statute, is subject to lifetime registration in this Commonwealth. Under defendant’s reading of section 4915(a), we would reach the absurd result where, in such a situation, a convicted sex offender from outside the Commonwealth can move into this jurisdiction, refuse to submit himself to the lifetime registration requirements and escape all liability, while those subject to the lesser 10-year registration requirement are subject to prosecution.

Contrary to defendant’s assertion, interpreting section 4915(a) to include lifetime registrants identified in section 9795.1(b)(4) does not “violatef] the common law, constitutional, and statutory rule that a penal statute may not be broadened to achieve a certain outcome or construction.” (See defendant’s October 20,2008 motion at 8.) This court’s interpretation does not broaden the scope of the statute at issue in this case. Rather, it recognizes that a lifetime registration requirement necessarily subsumes the 10-year registration requirement. A criminal defendant subject to lifetime registration is subject to the lesser 10-year registration and, therefore, is “an individual who is subject to registration under 42 Pa.C.S. §9795.1(a)” pursuant to 18 Pa.C.S. §4915(a)(1).

“Strict construction is a means of assuring fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be.” Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa. Super. 2004) (quoting Commonwealth v. Cluck, 252 Pa. Super. 228, 238, 381 A.2d 472, 477 (1977)). Clearly, defendant knew and understood that if the Megan’s Law statute penalized 10-year registrants for failing to register, it would most assuredly penalize lifetime registrants who failed to follow the registration requirements for sexual offenders. There was clear and fair warning to defendant that any failure to register could result in prosecution. For the declared policy of the General Assembly with respect to Megan’s Law is “to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to . . . authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection ...42 Pa.C.S. §9791(b). See also, Commonwealth v. Mullins, 905 A.2d 1009, 1016-17 (Pa. Super. 2006), appeal denied, 594 Pa. 712, 937 A.2d 444 (2007).

This legislative policy flows directly from the following legislative findings of the General Assembly:

“(1) If the public is provided adequate notice and information about sexually violent predators and certain other offenders, the community can develop constructive plans to prepare themselves and their children for the offender’s release. This allows communities to meet with law enforcement to prepare and obtain information about the rights and responsibilities of the community and to provide education and counseling to their children.
“(2) These sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments and that protection of the public from this type of offender is a paramount governmental interest.
“(3) The penal and mental health components of our justice system are largely hidden from public view and lack of information from either may result in failure of both systems to meet this paramount concern of public safety.
“(4) Overly restrictive confidentiality and liability laws governing the release of information about sexually violent predators have reduced the willingness to release information that could be appropriately released under the public disclosure laws and have increased risks to public safety.
“(5) Persons found to have committed such an offense have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government.
“(6) Release of information about sexually violent predators to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.” 42 Pa.C.S. §9791(a).

As noted in Diakatos, supra, this court is permitted to examine the practical consequences of a particular statutory interpretation. 708 A.2d at 512. The practical consequences of interpreting section 4915 as defendant suggests is to produce the absurd result that individuals convicted in jurisdictions outside the Commonwealth of Pennsylvania subject to 10-year registration would be included in the criminal statute while those subject to lifetime registration would not. Such a consequence is contrary to the legislature’s clear intent.

III. CONCLUSION

For the reasons set forth above, defendant’s motion to dismiss must be denied. Accordingly, we enter the following:

ORDER

And now, December 15, 2008, upon consideration of defendant’s motion to dismiss, the Commonwealth’s response thereto, and the briefs filed by the parties, it is hereby ordered that said motion is denied.

      . Pennsylvania first adopted Megan’s Law, 42 Pa.C.S. §§9791 - 9799.6, on October 24, 1995 (Megan’s Law I). This statute was to a significant extent ruled unconstitutional by the Pennsylvania Supreme Court in Commonwealth v. Donald Williams, 557 Pa. 285, 733 A.2d 593 (1999). Subsequently, on May 10, 2000, the General Assembly enacted Megan’s Law II, the constitutionality of which the Supreme Court substantially upheld in Commonwealth v. Gomer Williams, 574 Pa. 487, 832 A.2d 962 (2003), with the exception that it found invalid the penalty provisions that attached to sexually violent predators (S VP) who failed to comply with the registration and other requirements of the act. In the wake of this invalidation in G. Williams of the penalty provisions that attach to noncompliant SVPs, the General Assembly once again amended Megan’s Law in the Act of November 24, 2004 (Megan’s Law III). In the Act of November 29,2006 (effective January 1,2007), the legislature further amended the statute, principally to shorten from 10 days to 48 hours the time period within which an offender, SVP or non-SVP, must notify state police of any change, inter alia, to the offender’s residence, employment, or student status pursuant to 42 Pa.C.S. §§9795.2(a)(2), (a)(2.1), (b)(4), (b)(5).

      . 18 Pa.C.S. §4915(a)(1).

      . Defendant and the Commonwealth are stipulating that defendant’s previous conviction from Delaware amounts to a sexual assault under Pennsylvania’s Crimes Code.

      . An amendment to this statute was approved on October 9,2008, to also include convictions for offenses similar to crimes “under a former law of this Commonwealth.” See Act no. 2008-98 (H.B. 301).

      . Given our conclusion regarding the intended purpose of this legislation, this court can only conclude that it was a legislative drafting error and not a deliberate omission of section 9795.1(b)(4) from the verification of residence provisions of the Registration of Sexual Offenders statute. Any conclusion to the contraiy would be counter to the declared policy and legislative findings of the General Assembly.


author: LUDGATE, J.,

text:
    Commonwealth v. Pulanco

      Jonathan H. Kurland, assistant district attorney, and Kelly Kline, assistant district attorney, for Commonwealth.

      Michael Dautrich, for defendant.
    January 28, 2009
   LUDGATE, J.,

The defendant appeals from this court’s disposition of the defendant’s petition pursuant to the Post Conviction Relief Act, “PCRA.” This court adopts and incorporates its PCRA opinion dated December 3, 2008.

CONSOLIDATED PROCEDURAL AND FACTUAL HISTORY

(1) On November 12, 2003, Henry Pulanco, the defendant, was charged in a Bill of Information with: one count of possession of a controlled substance, 35 P.S. §780-113(a)(16); one count of possession with intent to deliver a controlled substance, 35 P.S. §780-113(a)(30); one count of possession of drug paraphernalia, 35 P.S. §780-113(a)(32); one count ofreceiving stolen property, 18 Pa.C.S. §3925(a); one count of conspiracy to commit, possession of a controlled substance, 18 Pa.C.S. §903(a)(1)(2); one count of conspiracy to commit possession with intent to deliver a controlled substance, 18 Pa.C.S. §903(a)(1)(2); one count of conspiracy to commit possession of drug paraphernalia, 18 Pa.C.S. §903(a)(1)(2); and, one count of conspiracy to commit receiving stolen property, 18 Pa.C.S. §903(a)(1)(2).

(2) Attorney Kurt B. Geishauser represented the defendant at a bench trial held on July 30, 2004, wherein the defendant was found guilty of all counts except receiving stolen property and conspiracy to commit receiving stolen property.

(3) The defendant was sentenced on August 16,2004 to a period of 10 to 20 years incarceration by the bureau of corrections in a state correctional facility.

(4) The defendant, through Attorney Geishauser, filed his notice of appeal on September 10, 2004 and filed a concise statement on September 27,2004, raising insufficiency of the evidence and generally claiming error in the denial of the defendant’s pretrial suppression motion.

(5) On October 12, 2004, this court issued a memorandum opinion in response to the defendant’s concise statement of matters complained of on appeal.

(6) On November 17, 2004, Mr. Geishauser was replaced as counsel by Michael Cammarano, Esquire. On September 16, 2004, Attorney Cammarano filed a brief in support of the 1925(b) statement on behalf of the defendant, raising five more specific suppression issues and theories.

(7) The Superior Court affirmed this court’s judgment of sentence in an unpublished opinion dated February 3, 2006. In the opinion, the Superior Court considered the merits of the insufficient evidence claim and the suppression issue “[wjhether a warrant issued for the second floor rear apartment authorized the search of an adjacent apartment accessible only through a closet?” Commonwealth v. Pulanco, 897 A.2d 521 (Pa. Super. 2006) (unpublished memorandum). The Pennsylvania Superior Court deemed four of the five suppression issues raised by Mr. Cammarano to be waived for inability to reconcile the issues contained in the defendant’s 1925(b) statement and the brief in support. Id.

(8) On September 21, 2006, the defendant filed his first pro se “motion for post-conviction collateral relief,” pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq. (PCRA). On November 2,2006, the court appointed Michael Dautrich, Esquire to represent the defendant in the disposition of his PCRA petition.

(9) On May 4, 2007, Michael Dautrich, Esquire filed an “amended motion under the Post Conviction Relief Act.” A PCRA hearing was to occur on July 24, 2007. On that date, by agreement of counsel, the court entered an order allowing the defendant to file an amended 1925(b) statement within seven days from the date of the hearing. On July 31, 2007, the defendant filed his timely “nunc pro tunc concise statement of errors complained of on appeal pursuant to order of court on July 24, 2007.”

(10) On July 23, 2008, the Superior Court issued a published opinion which vacated this court’s order of July 24, 2007 (which permitted the defendant to file an amended 1925(b) statement nunc pro tunc) and remanded the case to this court with instructions to conduct a PCRA analysis as to the merits of the defendant’s PCRA petition. Commonwealth v. Pulanco, 954 A.2d 639 (Pa. Super. 2008). Specifically, the Superior Court instructed “in the case sub judice, appellant has had appellate review of some, albeit not all, of his issues. There is no right to the reinstatement of appellate rights nunc pro tunc in this instance.” Id. at 642. (citations omitted) Further, “[A] PCRA petitioner is entitled to an appeal nunc pro tunc where prior counsel’s actions, in effect, entirely denied his right to a direct appeal, as opposed to a PCRA petitioner whose prior counsel’s ineffectiveness may have waived one or more, but not all, issues on direct appeal.” Id. (citations omitted) (emphasis in original)

(11) On October 7, 2008, a PCRA hearing was held for purposes of complying with the Superior Court’s remand. On December 3, 2008, this court issued an opinion dismissing the defendant’s amended PCRA petition, denying the defendant’s requested relief.

(12) The defendant, through his counsel, filed a timely notice of appeal on December 23,2008. This court ordered the defendant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); the defendant’s 1925(b) statement was timely filed on January 20, 2009.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the instant appeal be denied.

ISSUES RAISED ON APPEAL

The defendant raises two issues for review:

“(1) Trial counsel was ineffective failing to file a detailed concise statement preserving all the following issues for appeal:
“Whether the affidavit filed in support of the search warrant application stated sufficient probable cause; Whether the warrant issued for 109 South 5th Street, Reading PA authorized to search 111 South 5th Street, Reading PA; Whether the warrant issued for the second floor rear apartment authorized to search of an apartment accessible only through a closet; Whether the search of an apartment was authorized as a protective sweep; and whether a protective sweep would [sic] authorized the search of object incapable of being concealed on a person.
“(2) Appeal counsel provided ineffective assistance of counsel due to the fact that the underlying suppression appeal claims had arguable merit, there was no reasonable basis for trial counsel to fail to fail [sic] a more specific concise statement and/or request an extension of time to do so, and petitioner was prejudiced by counsel’s act or omissions in this regard due to the fact that the issues providing for the suppression of evidence were deemed waived by the Superior Court of Pennsylvania in Pulanco’s initial direct appeal despite the fact that appeal counsel attempted to raise those issues on appeal.”

DISCUSSION

Ineffective Assistance of Trial and Appellate Counsel

In cases where counsel fails to file a 1925(b) statement when ordered to do so by the court, counsel is per se ineffective as prejudice to the defendant is presumed. See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008). Nunc pro tunc appeal is the proper remedy when counsel’s actions entirely denied a defendant direct appellate review. Commonwealth v. Hernandez, 755 A.2d 1, 9 n.4 (Pa. Super. 2000). However, in instances where counsel’s acts or omissions caused waiver of one or more, but not all, issues on direct appeal, the defendant must establish that counsel’s ineffectiveness so undermined the truth-determining process so as to render unreliable the adjudication of guilt or innocence. Id.; see also, Commonwealth v. Halley, 582 Pa. 164, 172, 870 A.2d 795, 801 (2005).

The standard by which a defendant may prove ineffective assistance of counsel (outside of the narrow circumstance when the per se ineffectiveness standard applies) is well established. First, counsel is presumed to be effective. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790 (2007). In order to overcome the presumption of effectiveness and obtain relief on a claim of ineffective assistance of appellate counsel, a defendant must plead and prove (1) the underlying claim was of arguable merit; (2) that counsel had no reasonable basis for the action or inaction; and (3) the defendant was prejudiced by counsel’s acts or omissions. Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (1994). Failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067 (2006). Prejudice is established when a defendant has sufficiently shown that “but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.” Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). (emphasis added) Counsel cannot be deemed ineffective for failure to raise a merit-less claim. Commonwealth v. Nolan, 579 Pa. 300, 855 A.2d 834 (2004).

In accordance with the Superior Court’s instructions upon remand in this case, the per se standard is inapplicable to the instant analysis pursuant to Halley and Hernandez because Mr. Geishauser did file a 1925(b) statement of errors complained of on appeal; the defendant did obtain direct review of four of his six issues. Accordingly, the three-prong Pierce test of ineffective assistance governs this case.

Mr. Geishauser’s actions do not meet the Pierce test. Although the more specific claims of error which Mr. Geishauser failed to raise on appeal were of arguable merit and failure to raise them lacked a reasonable basis, Mr. Geishauser’s acts or omissions do not meet the remaining prong of ineffective assistance. There is no reasonable probability that the outcome of the appeal would have been different had Mr. Geishauser successfully preserved and raised the five suppression issues, as each issue lacks merit. For the same reason, the defendant was not rendered ineffective assistance by Mr. Cammarano. Because this conclusion is based upon evaluation of the merits of the suppression issues which were deemed waived, the court will now address the merits of the issues.

The first issue which was not preserved for direct appeal challenges the probable cause upon which the search warrant was issued. Pennsylvania courts employ a “totality of the circumstances” test, as enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for determining the existence of probable cause of the issuance of a search warrant. See Commonwealth v. Singleton, 412 Pa. Super. 550, 551, 603 A.2d 1072, 1072 (1992) citing Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The United States Supreme Court has held that the magistrate’s determination that probable cause existed must be given deference. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Singleton, 412 Pa. Super. 550, 552, 603 A.2d 1072, 1073 (1992), citing Commonwealth v. Miller, 334 Pa. Super. 374, 382, 483 A.2d 498, 501-502 (1984).

In the present case, the warrant’s underlying affidavit of probable cause contains averments that allege, inter alia, that the affiant, Trooper Teresa Cloman, a trooper with the Pennsylvania State Police, was assigned to the Reading Vice Unit. The affidavit avers that the affiant had received special training in the area of drug law enforcement/investigation from the Pennsylvania Office of the Attorney General, the Pennsylvania State Police Academy, United States Department of Justice Drug Enforcement Agency, and the Pennsylvania National Guard Northeast Counterdrug Training Center. Additionally, the affidavit avers that the affiant had received numerous trainings and certifications, specifically in the area of illegal trafficking of controlled substances. (See Commonwealth’s bench trial exhibit no. 1, page 2.)

The affidavit of probable cause goes on to state that “[tjhrough a combination of training, education and experience, your affiant has become familiar with the manner and methods of operations of persons involved in the distribution and use of controlled substances and based on that training, education and experience, your affiant knows that: (1) drug traffickers commonly have in their possession, and/or conceal on their persons, controlled substances, drug related paraphernalia, weapons, and/or other equipment or items utilized in the distribution of controlled substances; (2) that drug traffickers maintain books, records, receipts, notes, ledgers and other papers pertaining to the transportation, sale, and distribution of controlled substances and that the aforementioned items are maintained where traffickers have ready access to them; (3) that drug traffickers commonly maintain address and telephone records which reflect the names, addresses, and/or telephone numbers of their associates in the trafficking organization; (4) that persons involved in drug trafficking maintain, on hand, large amounts of cash in order to finance and facilitate their ongoing drug business; (5) that drug traffickers take or cause to be taken photographs of themselves, their associates, their property and their product and usually maintain those photographs in their possession; (6) that drug traffickers are frequently present for the purpose of purchasing or using controlled substances. I know that these individuals, if present, will commonly make attempts to conceal on their person, orto destroy any evidence.” (See Commonwealth’s bench trial exhibit no. 1, page 2.)

Next, the affidavit of probable cause describes occurrences that happened while the affiant was working in an undercover capacity. The affidavit avers that on September 3, 2003 and on September 16, 2003, the affiant purchased heroin from a female named “India” and an unknown Hispanic male in the area between 107 and 109 South 5th Street in Reading City, Berks County, Pennsylvania. On both occasions, the affidavit states that the affiant saw two additional unidentified Hispanic males. Both times, the affiant transported the evidence back to the Reading State Police barracks and field tested the substance. A positive reaction for the presence of heroin was indicated both times. (See Commonwealth’s bench trial exhibit no. 1, page 3.)

Finally, the affidavit of probable cause states, inter alia, that the affiant contacted the Reading City Vice Unit and was informed by Criminal Investigator Pat Leporace of ongoing drug activity in this location. The affidavit goes on to state that during this investigation, the affiant and other members of the Pennsylvania State Police Vice Unit had observed numerous drive-up and on-foot “buyers” at the rear lot of 107 and 109 South 5th Street. The affiant states in the affidavit that she believes that apartment number 5, at 109 South 5th Street is the main source of the supply of the heroin, which is being distributed through the lower level drug dealers in the area, and that the unknown Hispanic males control the distribution of the heroin and utilize the apartment as a means of concealing the “stash” of heroin. (See Commonwealth’s bench trial exhibit no. 1, page 4.)

In considering the “totality of the circumstances” of this case and viewing the affidavit from a commonsense, non-technical perspective, the affidavit contains sufficient facts to determine that there was probable cause that there were drugs at the premises. See Commonwealth v. Baker, 532 Pa. 121, 127, 615 A.2d 23, 25 (1992) (sufficient information existed for magistrate to make a neutral and detached decision whether there was a fair probability that contraband or evidence of a crime existed in a particular place based on hearsay information corroborated by officer’s drug purchase). Therefore, the claim is meritless and failure to preserve or raise the issue did not result in prejudice to the defendant.

The second issue which was not preserved for direct appeal is whether a warrant issued for 109 South 5th Street, Reading, PA, authorized the search of 111 South 5th Street, Reading, PA. Article I, Section 8 of the Pennsylvania Constitution, like its federal counterpart, secures the right to be free from unreasonable searches and states, “no warrant to search any place or seize any person or thing shall issue without describing them as nearly as may be —” Pa. Const. Art. I, Section 8; Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d 896 (1989). Further:

“A search warrant directed against an apartment house, or other multiple-occupancy structure will be held invalid for lack of specificity if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units. Commonwealth v. Carlisle, 517 Pa. 36, 40, 534 A.2d 469, 471 (1987). (citations omitted) Where the description provided is precise enough to enable the officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity. In re Search Warrant B-21778, 341 Pa. Super. 350, 359, 491 A.2d 851, 856 (1985).” Commonwealth v. Wilks, 418 Pa. Super. 73, 78, 613 A.2d 577, 579 (1992).

In the present case, the application for the search warrant clearly denoted a specific apartment to be searched. Namely, the description of the premises states:

“The dwelling located at 109 South 5th Street, Reading City, Berks County, Pennsylvania is described as a three-story row apartment building. Specifically, the rear 2nd floor apartment display[ing] the number ‘5’ on the exterior white door. Two Hispanic males and any other persons in the aforementioned apartment to prevent the destruction and removal of evidence.” (See Commonwealth’s bench trial exhibit no. 1, page 1.)

However, the warrant was for 109 South 5th Street while the apartment’s actual address was 111 South 5th Street. The Superior Court has held that Pennsylvania Rule of Criminal Procedure 206 is not so technical as to require a search to be found unconstitutional if there is a mistake regarding the address of the building to be searched; a mistake as to the actual number of the apartment to be searched will not render the search unconstitutional, so long as, there is sufficient evidence that the police knew which residence it was that they intended to search and there was no question that probable cause for the search existed. Commonwealth v. Washington, 858 A.2d 1255, 1257 (Pa. Super. 2004), quoting Commonwealth v. Belenky, 777 A.2d 483 (Pa. Super. 2001).

In Belenky, a confidential informant had advised the police that the defendant was selling drugs from an apartment located at 4252 Salem Street in Philadelphia, Pennsylvania. Commonwealth v. Belenky, 777 A.2d 483, 485 (Pa. Super. 2001). After the police went to what they believed was this address and did a controlled buy, they sought and obtained a search warrant for the premises. While in the process of executing the search warrant three days later, it became apparent that the actual address of the building was 4251 Frankford Avenue. The court, finding that there was no ambiguity about the location where the criminal activity occurred and no question that probable cause for the search existed at the location that was searched, held the search to be constitutional. Id. at 487.

In the instant case, prior to execution of the search warrant, the police had made several controlled buys from the residence that was searched. Each buy had occurred from the back of the building, which was located next to 107 South 5th Street. The officer who applied for the warrant was unfamiliar with the area and assumed that the building next to 107 South 5th Street would be 109, when in fact it was 111 South 5th Street. (Omnibus pretrial hearing N.T. 3/18/04, p. 118.) It is clear from the testimony presented at the pretrial hearing that 111 South 5th Street was indeed the residence that the police intended to search. Therefore, the mistake as to number of the apartment did not render the search unconstitutional. Failure of counsel to raise or preserve this issue did not result in prejudice to the defendant as the issue is without merit.

The third suppression issue raised in the defendant’s 1925(b) statement is whether a warrant issued for the second floor rear apartment authorized the search of an adjacent apartment accessible only though a closet. This issue was not waived for direct appeal and was previously addressed on its merits in the Superior Court’s unpublished opinion of February 3, 2006. Petition for allowance of appeal was denied by the Pennsylvania Supreme Court on July 26,2006. Accordingly, the issue should be dismissed as previously litigated. 42 Pa.C.S. §9544(a)(2); Commonwealth v. Buehl, 540 Pa. 493, 500, 658 A.2d 771, 775 (1995) (“[T]he purpose of the PCRA is not to provide a defendant with a means of relitigating the merits of issues long since decided on direct appeal.”).

The fourth and fifth issues not preserved for appeal are whether the search of an adjacent apartment was authorized as a protective sweep and whether a protective sweep authorized the search of objects incapable of concealing a person. Under emergent circumstances, protective sweeps are a well-recognized exception to the warrant requirement. A protective sweep is “a quick and limited search of [the] premises, incident to an arrest and conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). There are two levels of protective sweeps: (1) officers can, without probable cause or reasonable suspicion, look in closets and other spaces close to the place of arrest from which an attack could be launched and (2) officers can search for attackers further away from the place of arrest if they can sufficiently articulate specific facts that justify a reasonable fear for the safety of officers on the premises. See Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261, 1267 (2001). Under the state constitution, protective sweeps for persons are permissible; however, they must be swift and target only those areas where a person could reasonably be expected to hide; protective sweeps cannot be used as pretext for evidentiary search. Const. Art. I, Section 8.

The defendant’s reliance on a theory that police exceeded the permissible scope of the protective sweep exception to the warrant requirement is misplaced. Here, the officers did not enter the adjacent apartment with the intent to effectuate a protective sweep. Instead, the officers entered the adjacent apartment in reliance on a valid search warrant for apartment number five. The officers walked through a closet into the adjacent apartment under a reasonable but mistaken belief that the adjacent room was an extension of apartment number five. The officers who executed the search warrant did not search the adjacent room pursuant to the protective sweep exception to the warrant requirement. Issues four and five are meritless and counsel cannot be found ineffective for failure to raise such issues on appeal or preserve the same.

The actions or inactions of Attorneys Geishauser and Cammarano only caused waiver of claims which are meritless or have been previously litigated. The defendant has therefore failed to show how he suffered prejudice due to the actions of his attorneys for failure to meet the burden of showing reasonable probability that the outcome of the direct appeal would have been different. The court requests the instant appeal be denied.