author: LUDGATE, J,

text:
    Commonwealth v. Lopez

      C. Edward Browne, assistant district attorney, for Commonwealth.

      Roarke T. Aston, for defendant.
    December 15, 2009—
   LUDGATE, J,

I. PROCEDURAL HISTORY

On September 29, 2009, following a non-jury trial, Francisco Lopez, defendant, was found guilty of aggravated assault, 18 Pa.C.S. §2702(a)(l), accidents involving death or personal injury while not properly licensed, 75 Pa.C.S. §3742.1(a), accidents involving death or personal injury, 75 Pa.C.S. §3742(a), simple assault, 18 Pa.C.S. §2701(a)(l), recklessly endangering another person, 18 Pa.C.S. §2705 and a summary traffic offense. The same day, the defendant was sentenced to a total of 60 months to 22 years incarceration in a state facility. The defendant was represented by Attorney William C. Bispels at trial and sentencing. Attorney Bispels filed post-sentence motions on October 9, 2009 which were denied October 14, 2009.

On November 4,2009, Attorney Bispels was granted withdrawal as counsel and the appearance of the Berks County Public Defender’s office was entered. On November 10,2009, Attorney Roarke T. Aston filed a notice of appeal to the Superior Court. On November 17,2009, this court ordered defense counsel to file a concise statement of errors complained of on appeal within 21 days. On December 4, 2009, counsel timely filed the concise statement.

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

II. FACTUAL HISTORY

At the bench trial, the court heard the testimony of Michael Pappas. On September 25, 2008, at approximately 2 p.m., Pappas was in the intersection of Oley and Moss streets, doing pavement work for the City of Reading Streets Department. (N.T., bench trial, 9/29/2009, pp. 14-15.) At that time, Pappas observed a Jeep Cherokee drive “right through the job that we had just finished, not speeding, just cruising right through where I had everything all coned off and just proceeded to keep going.” (N.T. p. 15.) Pappas yelled to the driver of the Jeep Cherokee but the driver kept going. Id. The intersection was closed to traffic; cones were placed to indicate the closure. (N.T. p. 16.) The Jeep Cherokee was traveling on Moss Street, which is a one-way street. (N.T. p. 17.) After the Jeep drove by, Pappas heard a woman screaming; Pappas looked down Moss Street and saw a woman in the middle of the street, who was yelling and bleeding from her mouth. (N.T. pp. 17-18.) Pappas saw tire marks on the woman’s face and lower part of her body. (N.T. p. 18.) Pappas provided police with the license plate number of the Jeep. (N.T. p. 19.) Pappas could not tell who was driving the Jeep and had never met the woman lying in the street. (N.T. p. 20.) The driver of the Jeep was not speeding but “drove right through the stop sign there without stopping.” Id.

The court next heard from Adela Dominguez-Gonzalez. Dominguez-Gonzalez met the defendant at work and had known him for two and a half years; the defendant was her boyfriend. (N.T. pp. 23, 27.) Dominguez-Gonzalez identified the defendant. Id. On September 25, 2008, Dominguez-Gonzalez got out of work at 1:30 p.m. then went to the home of a friend on Moss Street in Reading. (N.T. p. 24.) The defendant was outside of his truck when Dominguez-Gonzalez arrived; the defendant got into his truck and sat in the driver’s seat. (N.T. p. 25.) The defendant had said he was going to Mexico; Dominguez-Gonzalez asked him why he was going to Mexico. Id. Dominguez-Gonzalez held on to the “handle bar” of the truck; the defendant refused to get out of the truck and did not say anything. Id. The defendant started putting the windows up and down by pressing buttons, including the window next to where Dominguez-Gonzalez was standing. (N.T. p. 26.) Eventually, the door opened; the defendant “pulled away very fast.” (N.T. pp. 26,28.) Dominguez-Gonzalez held onto the door, yelled at the defendant to stop and fell facedown underneath the Jeep. (N.T. pp. 27-28.) Dominguez-Gonzalez was then run over by the Jeep. (N.T. p. 26.)

Counsel stipulated to Dominguez-Gonalez’s injuries and treatment:

“On September 25,2008, Adela Dominguez-Gonzalez was taken to St. Joseph’s Hospital and then air-lifted to Reading Hospital for injuries sustained earlier that day in the city of Reading. At Reading Hospital, she was admitted and treated for serious injuries to her peritoneum, lungs, liver, adrenal gland, internal carotid artery, external jugular vein, and other multiple intra-abdominal organs. She was also treated for a fractured vertebra, fractured jaw, closed fracture to eight ribs, broken bone in her foot, and a broken tooth. She required a blood transfusion or one unit of blood and her jaw was surgically wired shut on October 9,2008. She was discharged from Reading Hospital on October 11, 2008.” N.T. p. 76.

III. ISSUES RAISED BY THE DEFENDANT

The defendant raises the following issues in his 1925(b) statement:

“(1) The trial court erred in finding that there was sufficient evidence presented at trial to prove beyond a reasonable doubt that defendant committed aggravated assault, recklessly endangering another person and simple assault in that the victim’s injuries were a result of her own acts and the Commonwealth failed to prove that the defendant had the requisite mens rea to be convicted of these crimes.
“(2) The trial court abused its discretion in not granting defendant a new trial with regard to the charges of aggravated assault, recklessly endangering another person and simple assault as the verdict was against the weight of the evidence in that the victim’s testimony was not credible and biased.
“(3) The trial court abused its discretion in fashioning a total sentence of five to 22 years in a state correctional facility as the factors enumerated in the Sentencing Code do not militate in favor of the sentence imposed in this case.”

IV. ANALYSIS

1) Sufficiency of the Evidence

When determining sufficiency of the evidence claims, the court must determine whether the evidence and all reasonable inferences therefrom, drawn in the light most favorable to the verdict winner, was sufficient to enable the fact-finder to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Sullivan, 864 A.2d 1246, 1249 (Pa. Super. 2004). The Commonwealth’s burden may be established through wholly circumstantial evidence. Id. The fact-finder is free to believe all, part, or none of the evidence presented. Id. “Although a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.” Commonwealth v. McFadden, 850 A.2d 1290, 1293 (Pa. Super. 2004).

In order to obtain a conviction for aggravated assault, 18 Pa.C.S. §2702(a)(l), the Commonwealth must establish the defendant attempted to cause serious bodily injury to another, or caused such injury under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. §2702(a)(l); Commonwealth v. Patrick, 933 A.2d 1043 (Pa. Super. 2007). Serious bodily injury is injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). Where the victim suffers serious bodily injury, the Commonwealth is not required to prove specific intent; rather, the Commonwealth need only prove the defendant acted recklessly under the circumstances manifesting extreme indifference to the value of human life. Patrick, 933 A.2d at 1045-46.

In order to obtain a conviction for recklessly endangering another person, 18 Pa.C.S. §2705, the Commonwealth must establish the defendant engaged in reckless conduct which placed another person in danger of bodily injury or death. 18 Pa.C.S. §2705. The Commonwealth must prove the defendant had the actual present ability to inflict harm rather than the apparent ability to do so. Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000).

In order to obtain a conviction for simple assault, the Commonwealth must establish the defendant attempted to cause or intentionally, knowingly or recklessly caused bodily injury to another. 18 Pa.C.S. §2701(a)(1).

In this case, the convictions are supported by the evidence. The evidence, in light most favorable to the Commonwealth as verdict winner, establishes that the defendant quickly drove off at a time when the victim was attempting to get into the vehicle and holding onto the door handle. The victim screamed at the defendant to stop, then fell to the street. The defendant’s vehicle then ran over the victim, but the defendant failed to stop. Rather, he continued driving and drove through a stop sign and the section of road around which Pappas had placed road cones. As previously stated in greater detail, the victim suffered multiple broken bones, serious injuries to various internal organs and was hospitalized in excess of two weeks.

The defendant specifically avers a lack of evidence as to his mental state. However, the court, as finder of fact, inferred the defendant possessed the required mental state of recklessness due to his knowledge of where the victim was standing at the time he drove off and his action of continuing to drive after running over the victim. See Commonwealth v. Hinds, 244 Pa. Super. 182, 189-90, 366 A.2d 1252, 1256 (1976) (holding because there is seldom direct evidence of mental state, it is within the province of the finder of fact to infer mental state from circumstances). In its verdict, the court, as finder of fact, rejected the idea that the defendant could run over a human being and not know it.

2) Weight of the Evidence

The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). “A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to support the verdict, but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). Whether a new trial should be granted on grounds that it is against the weight of the evidence is addressed to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Id. In determining whether the verdict is against the weight of the evidence, the role of the trial court is to determine whether “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000). (citations omitted) Stated more concisely, the verdict should not be disturbed unless it is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Miller, 555 Pa. 354, 367, 724 A.2d 895, 901 (1999).

In the instant case, the court finds the verdict was not so contrary to the evidence as to shock its sense of justice.

3) Sentencing

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Burkholder, 719 A.2d 346 (Pa. Super. 1998). “An appellate court will not disturb the lower court’s judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). (citation and internal quotations omitted)

The defendant does not allege the sentence imposed exceeds statutory limits. Rather, the defendant argues the factors contained in the Sentencing Code do not militate in favor of the sentence imposed.

In imposing sentence, the court gave consideration to numerous factors:

“The Court: The court here today has considered the age of this defendant, the court has considered the nature of the offense. The court has considered the testimony presented here today at the bench trial, and the court has considered the guideline ranges. The court has considered that the defendant has adopted the written presentence investigation report prepared and which he reviewed and adopted today. The court has considered that this was a serious case to the victim, that the defendant acted at least recklessly in his actions. He ran over the victim and kept on going and went through a red light and he kept on going. At no point did he stop. This court does not find credible that he would have not known he ran over a body be it a dog or a person when he did it. The court considers that all he had to do was stop. It is not relevant to the finding as to whether it was a sensible thing for this woman to do, but nonetheless, she was yelling at him. The court found believable that he was playing with the buttons on the car and the windows were going up and down, and he knew that was a risk and he didn’t care. The court finds, and understanding the defense argument with regard to the detainer that was lodged against him by ICE, and for all those reasons the court will enter the following order.” N.T., sentencing hearing, 9/29/2009, pp. 8-9.

In light of this court’s meaningful consideration of numerous factors when deciding the sentence imposed in this case, the sentence does not constitute an abuse of discretion.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied.

      . Ms. Dominguez-Gonzalez testimony was translated from Spanish into English by an official court-interpreter.

      . 18 Pa.C.S. §2702.

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §2701.

      . 18 Pa.C.S. §2702.

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §2701.


source: Caselaw Access Project

author: RUEST, J,

license: Public Domain

text:
    First Commonwealth Bank v. Federated Home & Mortgage Co. Inc.

      Steven S. Hurvitz, for plaintiff.

      Desiree F. Fralick, for defendant.

      Kathryn L. Simpson, for intervenor Charlestown Partners.

      January 18, 2010
   RUEST, J,

Presently before the court is plaintiff First Commonwealth Bank’s motion to amend order to certify order for interlocutory appeal and to correct typographical errors. The court hereby grants plaintiff’s motion. Pursuant to 42 Pa.C.S. §702(b) and at the request of plaintiff, the court certifies the following relative to its opinion and order dated December 11, 2009: “the court is of the opinion that the instant order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the matter.” Furthermore, the court’s opinion and order dated December 11, 2009 is modified to correct certain typographical errors relative to case numbers.

Accordingly, the following is entered:

ORDER

And now, January 18,2010, the following is ordered: Plaintiff First Commonwealth Bank’s motion to amend order to certify order for interlocutory appeal and to correct typographical errors is granted. The text of the corrected opinion and order is appended below.

OPINION AND ORDER

RUEST, J, December 11,2009 — Presently before the court is defendant Federated Home & Mortgage Co. Inc.’s petition to strike and/or open confessed judgment. All parties submitted briefs. Oral argument was held on October 21,2009. Upon consideration of the briefs, argumerits, and relevant case law, the court determines defendant’s petition to strike and/or open confessed judgment is granted.

BACKGROUND

Defendant Federated Fióme & Mortgage Co. Inc. and First Commonwealth Bank executed and entered into a promissory note and credit agreement on July 5, 2004, providing for a non-revolving line of credit not to exceed $2,000,000. On that same date, Federated and Bank executed and entered into a promissory note and term loan agreement for a loan to Federated in the principal amount of $2,400,000 (term loan) (collectively, loans). Via letter dated July 15, 2009, Barrie notified Federated and Charlestown Partners of payment defaults under the loans. On July 16, 2009, pursuant to the confession of judgment clauses in the promissory notes, Bank confessed judgment against Federated in the amounts of $2,418,519.74 (case no. 2009-3331) and $1,683,067.96 (case no. 2009-3334). On July 21,2009, Federated filed a petition to strike and/or open confessed judgment with respect to both matters. On August 5,2009, Charlestown filed a petition to intervene based on the rights Charles-town has under the loan documents. Bank filed answers to the petitions on August 12, 2009. At the argument on October 21,2009, the court granted Charlestown’s petition to intervene.

DISCUSSION

Confessions of judgment are disfavored in Pennsylvania and are to be strictly construed. United States Fi delity and Guaranty Company v. Quinn, 223 Pa. Super. 285, 299 A.2d 338 (1972). “The validity of a confession of judgment requires strict compliance with the Rules of Civil Procedure as well as ‘rigid adherence to the provisions of the warrant of attorney.’” First Union National Bank v. Portside Refrigerated Services Inc., 827 A.2d 1224, 1231 (Pa. Super. 2003), quoting Citizens National Bank v. Rose Hill Cemetery Association, 218 Pa. Super. 366, 368, 281 A.2d 73, 74 (1971). A confessed judgment will be stricken if there is a fatal defect on the face of the record. C-Rich Co. v. Davis, 383 Pa. Super. 31, 41 n.4, 556 A.2d 413, 418 n.4 (1989). A petition to strike a judgment entered by confession operates as a demurrer to the record and must be granted when a fatal defect appears. PNC Bank v. Bolus, 440 Pa. Super. 372, 376-77, 655 A.2d 997, 999 (1995).

The confession of judgment clauses in the notes are conditioned upon the default of Federated. Article 7 of the credit agreement and the term loan agreement define an event of default, which includes non-payment of the obligations on the due date within three days of the failure to make such payment. Section 7.1 a. Section 7.3 sets forth additional cure periods. Specifically, it provides:

“Notwithstanding anything in this article 7 to the contrary, upon written notice by the Bank to Charlestown Partners of an event of default... Charlestown Partners shall have 30 days to cure such event of default; provided, however, that during such cure period the Bank shall have no further obligation to make any additional advances hereunder or under the line of credit.” Section 7.3b.

It is clear that section 7.3b intended to create a cure period beyond that established under section 7.1. When documents provide for a period to cure a default, remedies available under the agreement cannot be exercised until such period expires. See Penn Mutual Life Insurance Co. v. Bank of New England Corp., 756 F. Supp. 856, 863 (E.D. Pa. 1991). Examining the correspondence with Charlestown and Federated, it is also clear it was Bank’s own understanding of the loan documents that a 30-day cure period was required before judgment could be confessed against Federated.

The record shows that while a payment default occurred, Bank did not allow for the cure period that the loan documents required before confessing judgment. Bank provided notice of the default to Charlestown and Federated by letter dated July 15, 2009. This letter specifically mentioned the 30-day cure period. Nonetheless, Bank proceeded to confess judgment against Federated on July 16, 2009.

Accordingly, the following is entered:

ORDER

And now, December 11, 2009, the following is ordered: Defendant Federated Home & Mortgage Co. Inc. ’s petition to strike and/or open confessed judgment is granted. The judgments entered by confession under case nos. 2009-3331 and 2009-3334 are hereby stricken.


author: CAMPBELL, J,

text:
    Valeriano v. Krasowski-Gegenheimer

      Lawrence J. Valeriano, Jr., for plaintiff.

      Alan B. Ziegler, for defendant.
    January 5, 2010—
   CAMPBELL, J,

I. BRIEF BACKGROUND

The two parties lived together and had a child together, Paul J. Valeriano III, born on February 28,2000. Since that time, the parties have had an on-again, off-again relationship with numerous troubles including two protection from abuse orders and a number of custody actions culminating in this action wherein appellee, Paul Valeriano (Father) filed for partial custody time with the child. Since 2006, the child has spent partial custody time with Father via court order. This case has involved a great deal of legal action with a large amount of pleadings, hearings, and appeals, all leading to the multi-day .custody trial near the end of 2008.

At that 2008 trial, the sole matter at issue was whether the court should, per appellant’s (Mother’s) request, impose a supervised-only restriction on the child’s custody time with Father. This court concluded that such a restriction was not in the child’s best interests. This court ordered continued child-father counseling, and, as an extra precaution in response to appellant’s repeated arguments that Father was psychologically unfit, this court ordered a psychological expert to evaluate Father for custody purposes. After that expert information was presented, this court entered a final custody order; and, appellant appealed that final order as well as earlier rulings.

At the time of filing the notice of appeal, appellant did not immediately serve a notice of appeal and concise statement on this court. But, this court was not inconvenienced by the minor delay. On the other hand, appellant also did not file any transcript requests for three weeks after filing the notice of appeal, which delay did cause a problem in preparing the file for transmittal, and which resulted in the Superior Court querying appellant’s counsel as to why the transcripts had not been ordered.

Regarding the letter appellant’s counsel sent to the Superior Court of Pennsylvania to explain why counsel took several weeks and prompting from the Superior Court before ordering transcripts within which letter counsel characterized this judge’s administrative assistant as unhelpful, this court asserts that counsel’s characterization is grossly inaccurate and unfortunately made. Obviously, appellant’s counsel was present on every day of testimony and, doubtless, had in his professional file the exact days and hours, especially in his billing, and also could access the official file in prothonotary as easily as this court’s staff. This court does not have information regarding court reporters going back over a year in chambers, but the court reporters are happy to provide that information. This court’s administrative assistant did offer all the information she could access in chambers but suggested counsel cross-check the official file for accuracy and check with the court reporters’ office for reporter names. The delay in ordering any transcripts was certainly not this court’s staff’s fault.

There was some ongoing court reporter confusion regarding one short but important transcript as amid all of the testimony requested there was, it turned out, one lunchtime session when one court reporter filled in for another and this fact was not recorded in any log. But, contrary to the letter characterizing this court’s staff as unhelpful, this court’s staff strove to be as helpful as possible at all times; and, ultimately, this court’s staff solved the mystery of why the lunchtime transcript was not in the log of the court reporter assigned for that day.

Currently, given the time when the transcripts were ordered, and one of the court reporters having pre-set Christmas vacation plans, not all of the transcripts have been produced. This court shall proceed with finishing its memorandum opinion without access to some of the transcripts, so that the record can be transmitted as quickly as possible when all of the transcripts are produced.

II. FIRST TWO ISSUES COMPLAINED OF UPON APPEAL

In his first two issues complained of on appeal appellant takes exception to an evidentiary ruling of this court during a September 13, 2006 hearing on a motion for special relief. While this court fervently believes appellant should have his day in Superior Court, there is a question as to whether this issue is now moot. Appellant complains that she was not allowed to present certain historical claims of abuse at the special relief hearing. However, the final custody order which appellant is currently appealing was entered by this court after a later multi-day custody trial and a subsequent psychological evaluation hearing. At trial, appellant presented extensive testimony including the historical abuse allegations which she was not allowed to present at the special relief hearing. This court considered that testimony when crafting its final custody order; thus, this court is uncertain about the relevance of challenging the prior evidentiary ruling.

A. Error 1: Assuming Appellant’s 2006 Evidentiary Issue Is Not Moot, This Court Explains Its Reasoning in Limiting the Evidence Presented at That Hearing

The Superior Court has repeatedly held that a lower court’s decision as to the admission or exclusion of evidence is within the lower court’s discretion, and the lower court’s evidentiary decision will only be overturned where there is a clear abuse of that discretion. E.g, Concorde Investments Inc. v. Gallagher, 345 Pa. Super. 49, 497 A.2d 637 (1985). Pa.R.E. 402 sets forth that “[evidence that is not relevant is not admissible.” Pa.R.E. 403 sets forth that even relevant evidence may be excluded if its probative value is outweighed by any of a number of factors including “by considerations of undue delay, waste of time ....”

In this case, the appellant alleged three factual bases for her requested relief in his motion for special relief. Her first allegation was that “[o]n or about August 1, 2004, respondent bit the child in the butt for discipline purposes.” The other allegations were that defendant (appellee) verbally abused the child, and that defendant “pushed Mother into child, knocking child down ...” and “flicked the child, slapped the child, and push (sic) the child down.” These August 2006 allegations were alleged to have occurred before appellant’s July 2006 protection from abuse hearing. The appellee’s counsel objected at the special relief hearing to any evidence which occurred prior to the protection from abuse two months earlier as appellant had agreed to a custody provision in that agreed-upon order two months earlier; thus, appearing to, at least temporarily, resolve these issues until a custody trial. This court found appellee counsel’s objection persuasive.

As established at the special relief hearing, at appellant’s protection from abuse hearing on July 31, 2006, wherein appellant sought a P.F.A. order against the appellee, appellant appeared with counsel. Entering the hearing, appellant and the parties’ child were on the temporary protection from abuse order as protected parties. On the date scheduled for the protection from abuse hearing, after extended discussions with the other side, appellant entered into an agreed-upon protection from abuse order with appellee that included a temporary custody provision allowing the child continued periods of partial custody with appellee. By agreement, appellant dropped her request that the child be a protected party in the final protection from abuse order.

This court’s highest priority is and was the best interest of the child. Nonetheless, with no recent or new allegations to show danger to the child, this court was not inclined to allow the plaintiff’s new counsel to present plaintiff’s full custody case under the auspices of a special relief hearing. Some of plaintiff’s allegations had already been heard and addressed at previous hearings in the past. All the allegations were part of the recent protection from abuse matter, appellant/Mother entered into an agreed-upon custody order as part of a protection from abuse order on July 31, 2006. On August 8, 2006, appellee/Father filed a custody complaint. Then, appellant/Mother engaged a new attorney and filed her motion for special relief on August 14, 2006. The special relief motion was filed on August 14, 2006; the hearing took place on September 13, 2006.

This court found that allowing testimony based on events that occurred before appellant entered into the agreed-upon custody provision two months previously would have been duplicative and not relevant to whether the child’s partial custody time with his father should currently be restricted for emergency safety reasons pending trial. The appellant, Mother, under the same set of facts, had recently agreed to let the child spend unsupervised partial custody time with appellee, Father. Now, appellant was again raising the same allegations though there were no allegations that Father had endangered the child during his periods of custody since the agreed-upon order.

The parties were in the midst of an in-depth custody process including an imminent custody conference before a custody officer where they could each present all their custody testimony and arguments as far back in time as they desired. Additionally, the parties had the right to a full custody trial where this court would allow all custody evidence and arguments to be presented. While appellant had the right to seek special relief under Pa.R.C.P. 1915.13, this court believed this special relief hearing was not the appropriate place for the appellant to present these issues as the basis for special interim relief not only because they went back quite a time period, but this court had heard these specific issues and/ or extremely similar variations during previous petition for special relief and protection from abuse hearings. Based upon this context, this court believed the child was in no danger, and, at this special relief hearing, this court was looking for any recent evidence to the contrary.

B. Complaint 2: Appellant’s Offer of Proof Complaint Regarding the Excluded Evidence

“Pa.R.E. 103 Rulings on evidence” states that an “[ejrror may not be predicated upon a ruling that admits or excludes evidence unless... (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or by motion in limine or was apparent from the context within which the evidence was offered.” Pa.R.E. 103(a).

In this case, the evidence that appellant wished to present was abundantly clear to the trial court and the opposing counsel. The two opposing attorneys had stated on the record what evidence each understood appellant wished to present, a repeat of appellant’s allegations in her pleadings. This court believed the evidence was obvious from the context. This court notes that appellant did later testify as to her allegations during the contempt portion of this consolidated hearing. Notes of testimony, September 13, 2006, 35-39. And, as noted earlier, appellant later testified at length regarding all her allegations at the custody trial.

C. A Stricken Section of the Transcript

Asa record-keeping matter, this court would like to draw the Superior Court’s attention to the fact that at the end of the October 24, 2006 hearing, this court agreed to strike the portion of the September 13, 2006 hearing transcript wherein this court explained the court’s normal protection for abuse procedures. This section would be on page 8, lines 4-8 of the September 13, 2006 transcript.

III. COMPLAINT 3: THIS COURT’S CREDIBILITY FINDING AND THE CUSTODY EVALUATOR

Appellant challenges this fact-finder’s credibility characterization of the custody evaluator, Andrea Sledge.

Credibility determinations and the weight to give testimony, including expert testimony, are the sole province of the fact-finder. Potochnick v. Perry, 861 A.2d 277, 286 (Pa. Super. 2004), citing Gaydos v. Gaydos, 693 A.2d 1368 (Pa. Super. 1997); see also, Lou Botti Construction v. Harbulak, 760 A.2d 896, 898 (Pa. Super. 2000) (“In a non-jury trial, the trial judge sits as the finder of fact. The weight to be assigned the testimony of the witnesses is within the exclusive province of the fact-finder. Malag Inc. v. Climax Molybdenum Co., 431 Pa. Super. 569, 572, 637 A.2d 322, 324 (1994). The trial court, as sole assessor of credibility, may believe all, part or none of the evidence presented. Id. Absent an abuse of discretion we will not disturb a trial court’s findings of fact if they are supported by the record. Commonwealth v. Blystone, 421 Pa. Super. 167, 172, 617 A.2d 778, 780 (1992).”).

This court respectfully directs the Superior Court to this court’s “opinion and order” filed December 10,2008 in the record, specifically part “IV The expert opinions: the custody evaluator and the parenting counselor” beginning on page 7. In summary, this court had concerns regarding the custody evaluator’s neutrality because her tone and body language while testifying displayed an emotional bias against Father. Father presented as an uncouth, rough-around-the-edges, individual, and, both the evaluator’s testimony and her report showed how Father personally offended her in her interactions with him. The evaluator’s response to that personal offense included a bias in her expert opinion evident during her testimony and, to a degree, in her report as well. That is not to say that the evaluator did not produce some valuable observations.

This court notes that the custody evaluator had a very difficult job to perform as the parties chose her to conduct a custody evaluation, but really the only issue in this trial was Father’s personality and whether the child should have unsupervised custody time with his father. This narrow issue placed the custody evaluator who is trained as a social worker, not a psychologist, in a difficult position. Not only was Father rude to Ms. Sledge during their brief time together, creating personal friction, but Ms. Sledge was continually being asked to offer an assessment about Father’s character and personality and how it could affect the child’s mental health. Therefore, she was in the difficult position of having to put aside her personal feelings after being insulted and to render psychological opinions near or outside her expert qualifications. Additionally, this court outlined in its December 10,2008 opinion how Ms. Weller presented as a more neutral expert witness than Ms. Sledge.

Lastly, on the issue of credibility, this court responds to appellant’s first accusation of judicial prejudice by stating the obvious which is that this court has had, and continues to have, the child’s best interest in mind. This court has no preconceived notions or mindsets regarding ordering supervised visitation where the facts demonstrate that restriction is appropriate in light of the applicable case law.

IV. COMPLAINT NUMBER 4: REGARDING THIS COURT’S ORDER FOR PARTIAL CUSTODY AND COUNSELING FOR FATHER AND SON VERSUS APPELLANT’S REQUEST THAT APPELLEE “BE PLACED UNDER SUPERVISED VISITATION WITH HIS SON”

This complaint is the heart of the custody matter. The only issue at the custody trial and subsequent hearings was whether the child should spend unsupervised partial custody time with his father.

Regarding restrictions such as supervised visits or limiting overnight visits, the Superior Court of Pennsylvania stated in Fatemi v. Fatemi, 339 Pa. Super. 590, 596-97, 489 A.2d 798, 801-802 (1985):

“We begin by noting that usually an award of partial custody will not contain any restriction. A restriction will be imposed if the parties have agreed to a restriction or if the party requesting a restriction shows that without it, partial custody will have a detrimental impact on the child.
“It is important for courts to impose restrictions sparingly. See Ferencak v. Moore, 300 Pa. Super. 28, 445 A.2d 1282 (1982). Courts ought not to impose restrictions which unnecessarily shield children from the true nature of their parents unless it can be shown that some detrimental impact will flow from the specific behavior of the parent. The process of children’s maturation requires that they view and evaluate their parents in the bright light of reality. Children who learn their parents’ weaknesses and strengths may be able better to shape lifelong relationships with them.
“Once a court concludes that the imposition of a restriction is necessary, it must phrase the restriction in the least intrusive language reasonably needed to safeguard the child. Somers v. Somers, 326 Pa. Super. 556, 474 A.2d 630 (1984); Dile v. Dile, 294 Pa. Super. 459, 426 A.2d 137 (1981); Morris v. Morris, 271 Pa. Super. 19, 412 A.2d 139 (1979).... This principle underscores the policy that it is preferable for parent-child relationships to be defined by, and developed according to, the personalities and character of the child and parent, unhampered, to the extent possible, by restrictions imposed by the court.”

In our case, appellee (Father) is not a perfect parent; indeed, he’s a flawed individual with a crude sense of humor. In 2004, Father bit the child on the bottom as part of poorly conceived parental discipline. Also, several years ago, Father momentarily turned the lights off on his son in the basement as a bad practical joke; and, on another occasion flicked the child with his finger. Father was not, of course, portrayed as all bad at trial even by appellant who testified that Father could be fun and pleasant and liked to work in the garden. (Transcript of appellant’s testimony is currently unavailable for a page citation.)

Although these specific incidents were proven to have occurred, over a period of years, it was not shown at the time of the custody trial that Father currently posed any danger to the child’s safety or that having partial custody time with Father was a detriment to the child; and, therefore, it was not demonstrated that the restriction of supervised visitation only should be imposed upon the child-father relationship. At the time of trial, Father had recently completed a dozen parental training sessions with a trained professional and the child.

This court again respectfully refers the Superior Court to this court’s December 10,2008 opinion 13-15. In brief, the parenting counselor found Father to be a flawed individual but with some redeeming attributes, and the counselor’s reports were generally positive about the child-father interactions. The point of friction during son and father time with the counselor were when Mother (appellant) was discussed. At the sessions, Father learned more appropriate parenting techniques and communication skills and made some progress on improving the child-father relationship.

The child testified and, contrary to allegations made by Mother, and Ms. Sledge via Mother, the child demonstrated no fear of Father. On the contrary, the child expressed that he generally liked spending time with, and playing with, Father. (Transcript of child’s testimony is currently unavailable.)

As Father did not pose a current danger to the child, nor was he causing a clear detriment, this court did not impose appellant’s restrictive custody request. As the Fatemi court indicated, a child is bom with certain parents, and those are the only parents he has; shielding a child from a parent’s true character undercuts a child’s chance to have a strong relationship with that parent. Id. This court ordered that the child’s periods of partial custody with Father should continue as should the father-son counseling.

This court intended to enter a final custody order, but since appellant’s counsel made numerous mental health arguments versus Father in counsePs closing, and as the custody evaluator, albeit without psychological credentials, had raised psychological concerns, this court, out of an abundance of caution, ordered that Father be evaluated by a psychologist and that the case reconvene in the future.

After that evaluation was conducted and a final hearing held, this court still lacked grounds to impose the supervised-only restriction for child-father time. This court did add a personal counseling requirement for Father to the order as well as the continued requirement of father-son counseling.

In his issues complained of, appellant specifically states that “overwhelmingly testimony and expert testimony” demonstrated that Father had “significant psychological problems” and, therefore, “should be placed under supervised visitation with his son.”

First, the only expert psychological testimony was that of Dr. Hill. Throughout the case, appellant’s counsel has relied on Ms. Sledge’s “pyschodiagnostic interpretation” but Ms. Sledge has a master’s degree in social work, not in psychology, only spent three hours with Father, administered no psychological tests, and is not qualified to offer psychological diagnoses. Appellant made it difficult to gather information to insure the safety of the child by objecting to testimony by Ms. Weller, the parenting counselor, objecting to a psychological evaluation being ordered with a psychologist, and, later, seeking to limit the testimony of the psychologist. Indeed, even while appellant seeks to rely upon Dr. Hill’s diagnosis of Father having “some significant psychological issues,” appellee continues to complain in his appeal about an evaluation being ordered, about time being extended to make it happen, about how it was paid for, and to complain that the psychologist’s testimony should have been severely limited.

Regarding the psychological expert testimony, Dr. Hill explained that though Father tested within the valid range on the two psychological tests, the MMPI-2, and the MCM-III, Father has a number of major character flaws. Overall, Dr. Hill painted a portrait of Father as a self-centered, not too bright, moody, theatrical, immature man. Dr. Hill recommended more counseling for the child and Father, and individual psychotherapy for Father. This court followed Dr. Hill’s recommendations.

Appellant’s request that the child only be allowed to spend time with his father under supervised visitation conditions was not supported by Dr. Hill’s report and testimony. This court agrees that Father is a flawed individual with character problems. But, he is the child’s father. The Pennsylvania case law is clear, when possible, children should be allowed to develop a relationship with their parents and that restrictions should be the least intrusive possible under the circumstances. See Fatemi; also, Pamela J. K. v. Roger D. J., 277 Pa. Super. 579, 593, 419 A.2d 1301, 1309 (1980) (“[ejvery parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.”).

After listening to all of the evidence and weighing credibility, this court found that a supervised visitation restriction was not necessary in this situation. The child spends a small minority of his regular custody time in his father’s custody which includes eveiy other weekend, and one evening, not overnight, every week. This court ordered the father-son counseling to continue, and ordered psychotherapy for Father per Dr. Hill’s recommendations.

If this court had ordered that the child would not spend unsupervised time with Father until all of Father’s character issues are fixed, then the child would probably never spend unsupervised time with Father. Father’s core personality includes some major character flaws. Although Father has improved some of his parental behaviors through child-parent counseling, it was clear at trial that radically transforming Father’s personality was not a short-term project. But, the evidence showed that the child was safe spending partial custody time with Father, and, overall, the child reaped more benefit than detriment in having a substantive relationship with his father so that it was in the child’s best interest to be allowed to continue to have unsupervised partial custody time with his father.

V. REGARDING APPELLANT’S ACCUSATION OF BIAS IN COMPLAINT NUMBER 5

This court is charged with safeguarding the best interests of the child. After the custody trial, this court was satisfied that the child was best served by being in Mother’s primary custody and spending partial custody time with Father. Nonetheless, as Father’s character was shown to be flawed, and as Mother’s attorney had made repeated dire arguments regarding Father’s mental health, out of an abundance of caution, this court ordered a psychological evaluation ofFather. Per Pa.R.C.P. 1915.8, this court is authorized to order parties to submit to such expert evaluations. This court was seeking to gather as much information as possible to aid the child. This court is only “biased” in favor of the child; this court took action to ensure the child’s best interests were served.

In this fifth complaint, appellant is referring to matters outside the record; and, therefore, this court is forced to respond in kind. In this court’s 2008 custody order, Father was to undergo a psychological evaluation by a licensed psychologist. The evaluation was to take place within 45 days of the order, and a report was to be submitted by April 2008. When the deadline came without a report, this court’s staff made contact with Father’s attorney. Immediately thereafter, not seeking to have any ex-parte communications, this court talked to both attorneys at once on the telephone.

Subsequently, this court ordered that a status conference was to be held with both attorneys present and clients available by telephone. Furthermore, Father’s attorney was to gather information from his client before the status. At the status, it became apparent that Father had mismanaged the evaluation because of insurance problems, money problems, and confusion regarding who qualified as a psychologist. Father had attempted to secure an evaluation but had not hired a psychologist. Counsel also shared the news that Mother was allowing Father to spend time at her house including some overnights, and Father’s counsel indicated that this change might undermine the urgency of securing an evaluation.

Based upon this court’s experience of Father’s limited intellectual abilities, this court believed his attorney’s representations that Father had made a good faith effort but had not understood the difference between the various counselors who advertise their evaluation services and a psychologist. No motion for a hearing was ever filed. This court desired a psychological evaluation of Father to ensure that the best interests of the child were being served.

Father paid for the evaluation with a psychologist. But this court requested that the psychologist testify, not just produce a report, so when Father’s limited financial resources caused more delay, this court ordered that Berks County Court Administration pay for the expert’s testimony fees out of the court administration’s miscellaneous budget. First, this decision was made to move the case along and gather information for the best interests of the child. Custody cases are to be concluded as expeditiously as possible, and this court did not want this case lingering in limbo. Second, as appellant was in no manner injured by the court’s decision to pay for the expert’s testimony, this court does not believe appellant has grounds to complain. Third, the evaluation was ordered partly in response to appellant’s psychological worries regarding Father, so appellant was served by the psychologist appearing to answer appellant’s questions. Indeed, most of the psychologist’s testimony is in response to appellant’s counsel’s questions.

VI. APPELLANT’S COMPLAINTS 6 AND 7 REGARDING DR. HILL’S REPORT AND TESTIMONY

This court was satisfied after the extended custody trial that the child should have continued partial custody time with his father. This court ordered continued son-father counseling to help continue to improve the Father’s parenting and the son-father relationship. This court ordered a psychological evaluation out of an abundance of caution in response to appellant’s arguments that Father was so psychologically ill that it was not safe for the child to have unsupervised custody time with his father. Appellant had not proven her allegations at trial, but this court proceeded cautiously by ordering an expert evaluation, so that the court would be informed as to Father’s psychological health and could judge how it impacted the custody arrangement for the child.

Dr. Hill’s report and testimony reinforced this court’s opinion that Father has a flawed character, but nothing in Dr. Hill’s report or testimony indicated that Father’s mental health dictated a change in the custody arrangement. Appellant appears to misunderstand the situation. Although appellant, through her attorney, made arguments that Father’s psychological health was sufficient cause to place restrictions on the child’s custody time with Father, appellant now argues that a report on Father’s psychological health should not be applied to the custody situation. This court sought Dr. Hill’s expert opinion on Father’s mental health for the sole reason of adding that information to all the custody factors and determining if the custody arrangement should be modified. As to appellant’s claim that “Dr. Hill expressed concern about the boy being exposed to his father, the appellee,” Dr. Hill had reservations about the Father’s character, and concerns about his being a good role model for his son because of his flaws. Transcript, September 22, 2009, 11-12, 24. Dr. Hill’s expert psychological recommendation for a person of Father’s personality in this situation was for counseling to help insure a positive father-child relationship. Dr. Hill recommended father-son counseling, individual counseling, and family counseling. Dr. Hill did not recommend that the child not be allowed unsupervised time with his father.

As to appellant’s complaint, number 7, that “[t]he lower court erred in permitting Dr. Hill to offer opinions outside the area of a psychological evaluation which Dr. Hill was directed to perform?” this court finds this complaint too vague for a specific response. Dr. Hill provided on-point expert psychological testimony which was relevant to the custody decision.

VII. APPELLANT’S RECUSAL ARGUMENT

This court is surprised at this complaint. Currently, this court does not recall appellant’s counsel making an oral motion for recusal during these custody proceedings. Counsel did not refer to any specific motion for recusal in his concise statement. It is possible counsel did at some time during the extended proceedings make a quick oral motion for recusal, but this court does not recall such a motion at this time. This court certainly does not remember recusal being an issue in this case as there was never any basis for a recusal.

The Pennsylvania Supreme Court has reviewed the recusal landscape:

“If a party questions the impartiality of a judge, the proper recourse is a motion for recusal, requesting that the judge make an independent, self-analysis of the ability to be impartial. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 370 (1995). If content with that inner examination, the judge must then decide ‘whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary.’ Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 534 (2003) (quoting [Commonwealth v.] Abu-Jamal, [553 Pa. 485, 720 A.2d 79] at 89). This assessment is a ‘personal and unreviewable decision that only the jurist can make.’ Id. ‘Once the decision is made, it is final. . . .’ Travaglia, at 370 (quoting Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291, 1300 (1985)).
“[3] [4] This court presumes judges of this Commonwealth are ‘honorable, fair and competent,’ and, when confronted with a recusal demand, have the ability to determine whether they can rule impartially and without prejudice. Commonwealth v. White, 551 Pa. 408, 734 A.2d 374, 384 (1999). The party who asserts atrial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal, and the ‘decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion.’ Commonwealth v. Darush, [501 Pa. 15, 21, 459 A.2d 727, 731 (1983)].” Commonwealth v. Druce, 577 Pa. 581, 588-89, 848 A.2d 104, 108 (2004).

This judge believes she has been fair, balanced, and impartial throughout this case. This court knows of no reason why she should have ever recused herself from this case. This court evaluated appellant’s (Mother’s) request that the child only have supervised visitation time with appellee (Father) in light of the applicable Pennsylvania custody law on imposing restrictions and in the context of the best interests of the child.

This court has literally no idea what appellant means to indicate with her accusation that this court “had formal fixed opinions which prevented her from ordering supervised visitation.” This court has ordered supervised visitation in other custody cases where the facts made supervision in the child’s best interest, has ordered supervised visitation in protection from abuse cases, and has ordered supervised visitation in dependency cases. In this case, this court closely evaluated appellant’s request in light of all of the established facts, testimony, and expert opinion and made a reasoned decision designed to serve the best interests of the child.

VIII. APPELLANT’S SECOND BIAS ACCUSATION IN COMPLAINT NUMBER 9

Again, appellant is appealing facts outside the record and, unfortunately, misconstruing them. As a matter of internal court business, this court requested that her custody cases be reassigned when this court took on intensive dependency court duties. However, this court kept custody cases which had outstanding issues, cases where for one reason or another, it did not make sense to transfer them at the time. This court did not “refuse” to reassign any case, but as a general practice kept cases which were not in the right mode for transfer to another judge. This court’s transfer of custody cases was done through the auspices of the president judge of the Berks County Court of Common Pleas.

In this particular case, at the time of transferring custody cases, this court had just finished a lengthy custody trial and was working to secure a psychological evaluation of Father, so that the court could enter a final custody order. It made no sense to transfer this custody case with this outstanding issue dangling, so this court delayed transferring this custody case until a final custody order could be entered. There was no bias involved whatsoever. On the contrary, this court wished to provide the best service possible to all parties, especially the child. This court delayed transferring a small number of other custody and divorce cases for similar reasons.

IX. APPELLANT’S RESERVATION OF ADDITIONAL ISSUES IN COMPLAINT NUMBER 10

To the best of this court’s knowledge, appellant does not have the right pursuant to Pa.R.A.P. 1925 to file additional issues complained of on appeal after the initial deadline. The Children’s Fast Track Appeal Rule, Pa.R.A.P. 1925(a)(2) requires the concise statement to be filed and served with the notice of appeal. Allowing the appellant the right to file additional issues a month or more after filing the notice of appeal would appear to breach the rule.

Conclusion

Appellant (Mother) had concerns about appellee’s parenting and wanted their son’s time with appellee (Father) to be supervised custody only. At the time of trial, the child had spent years of partial custody time with his father, and, although there was proof that appellee had many severe character flaws, this son-father time was beneficial for the child. This custody time allowed the child to have a relationship with both of his parents. The child, in general, enjoyed his time with his father. The child and Father had worked with a professional counselor to improve Father’s parenting and the child-parent relationship, and this son-father counseling was continuing. Appellant failed to prove under the applicable Pennsylvania case law that imposing the restriction of supervised-only custody time was in the best interest of the child. This court ordered continued son-father counseling to continue to improve further appellee’s parenting skills for the child’s sake and to give the child ongoing access to a neutral mental health professional.

This court ordered a psychological evaluation of appellee by a qualified expert. Thereafter, this court ordered appellee to participate in individual counseling to address his character shortcomings.

Given all the facts of this particular case, this court believed the partial custody requirements and safeguards put in place were appropriate and in the best interest of the child.

      . This same allegation had previously been made as part of an earlier petition for emergency relief filed by the appellant in 2005, which, after a hearing, was denied by this court. In this earlier incarnation of this custody case, the parties were the same, the child was the same, the allegation was the same, and this court did not find Mother credible at that time. This court, as part of the one judge/one family policy, has also had these parties before it in prior protection from abuse actions. Mother, when not reconciled with Father, has repeatedly, and unsuccessfully, tried to stop the child from having unsupervised custody time with Father.

      . Ms. Sledge’s quick negative interpretation of Ms. Weller’s testimony where Ms. Sledge appeared to dismiss the work Father had put in with Ms. Weller is one example of where she demonstrated bias. Again, it was Ms. Sledge’s tone and body language as well as her quick, off-hand verbal negative answers that undercut her credibility. September 10,2008 transcript 103-107.


author: OLSON, J.,

text:
    Commonwealth v. Turner

      Thomas Bianco, district attorney, for Commonwealth.

      Gary Knaresboro and Michael Marshall, for defendant.
    December 14, 2009
   OLSON, J.,

Before the court is the Commonwealth’s motion for pretrial relief regarding the determination of defendant’s alleged mental retardation per Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002). This motion asks the court to resolve the following issues pretrial: (1) Where a capital defendant properly raises a mental retardation claim, is this factual issue to be resolved by judge or jury; (2) How is the burden of proof on this issue to be allocated; and, (3) other than examination, is the Commonwealth entitled to mental retardation-related discovery from defendant?

FACTUAL AND PROCEDURAL HISTORY

The court develops this history from papers filed.

On October 27,2008, the mother of the victim, Leonard William Mclntrye, 19 months old, left the infant in the care of defendant, then 18 and born on November 23, 1989. The Commonwealth alleges that, while the baby was in his care, defendant hit, bit, strangled and otherwise injured the victim. After the victim died on November 1, 2008, allegedly as a result of injuries inflicted by the defendant, the Commonwealth charged the defendant with criminal homicide.

On August 12, 2009, pursuant to Pa.R.Crim.P. 802, the Commonwealth filed a notice of aggravating circumstances. Specifically, the Commonwealth declared it intended to seek the death penalty because of the presence of two aggravating circumstances enumerated at 42 Pa.C.S. §9711: (1) The victim was a child under the age of 12 years of age at the time of the killing; and (2) The Commonwealth alleged the offense was committed by means of torture.

On September 16, 2009, defendant filed a “notice of defense of insanity or mental infirmity and notice of expert evidence of mental condition,” which included a statement that, “defendant intends to introduce expert evidence ... on the issue of punishment in a capital case.”

On October 8,2009, defendant petitioned the court to set a pretrial hearing to determine whether he was mentally retarded within the meaning of Atkins. The court directed the defendant to file an amended motion setting forth evidence raising an Atkins claim. On November 3, 2009, defendant amended his motion to attach a report by Dr. R. William Tallichet Psy.D., licensed psychologist.

Dr. Tallichet opined defendant was mentally retarded within the meaning of Atkins. As bases for his opinion, Dr. Tallichet identified the results of a D.S.M.-IV-TR evaluation and WAIS-III tests he administered on defendant. These results, Dr. Tallichet wrote, revealed defendant had a full-scale IQ of 71 and exhibited deficits in self-care, social/interpersonal skills, self-direction, functional academic skills, work and safety. Finally, Dr. Tallichet concluded that, given defendant’s exam age of 19 years and 11 months, and “given his past deficits and academic functionings/cognitive abilities, along with the relative stability of intelligence,” his mental retardation predated his 18th birthday.

The court, by order of November 6,2009, determined that defendant’s Atkins mental retardation claim must be decided at trial by a fact-finder and therefore denied defendant’s motion for pretrial hearing.

On November 10, 2009, the Commonwealth filed several motions for pretrial relief regarding the determination of defendant’s alleged mental retardation. These motions included a request that the court declare that defendant has the burden to prove his Atkins mental retardation claim by the preponderance of the evidence, and a motion for discovery of materials utilized by Dr. Tallichet and any other defense insanity or mental infirmity experts.

Following argument, these issues are now before the court for disposition.

ATKINS/MILLER HOLDING

Any overview of the mental retardation/capital punishment issue must begin with Atkins, together with any implementing Pennsylvania authority.

Daryl Renard Atkins and a co-conspirator drove to a convenience store to rob a customer, Eric Nesbitt. They abducted him and drove to a nearby automated teller machine, where they forced him to withdraw two hundred dollars. Then they drove him to a deserted area and, ignoring his pleas, they ordered Nesbitt out of the vehicle and shot him eight times, killing him.

The Commonwealth of Virginia sought the death penalty. The jury convicted Atkins of first-degree murder. The jury then heard sentencing hearing testimony about Atkins’ mental condition. Specifically, the defense offered evidence that Atkins had a full-scale IQ of 59. Dr. Nelson, Atkins’ penalty phase expert, also testified that, in his opinion, Atkins’ limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 was not an “aberration, malingering result, or invalid test score.”

Atkins was sentenced to death. Because of trial error, the Virginia Supreme Court ordered a re-trial. Atkins again was sentenced to death. The Virginia Supreme Court affirmed. The United States Supreme Court reversed. In a 6-3 decision, the United States Supreme Court held that, under the Eighth Amendment to the United States Constitution, a mentally retarded offender could never be executed, regardless of crime or circumstance.

In footnote 3 of the majority opinion, the court appeared to embrace the functional definition of “mental retardation” adopted by The American Association on Mental Retardation (AAMR) as well as a similar definition the American Psychiatric Association (DSM-IV). These definitions articulate three concurrent criteria: (Criterion A) significantly sub-average general intellectual functioning; (Criterion B) significant limitation and adaptive functioning in at least two of the following skills areas, communication, self-care, home living, social/ interpersonal skills, use of common resources, self-direction, functional academic skills, work, leisure, health, and safety; and (Criterion C) onset before 18 years.

Beyond this definition, Atkins provides scant procedural guidance. Instead, the Supreme Court left to the states the task of developing appropriate ways to enforce the constitutional restriction upon the execution of the mentally retarded. Atkins, 536 U.S. at 317.

The Pennsylvania Supreme Court first visited this issue in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005). Miller was a PCRA proceeding where defendant, after a pre-Atkins conviction and sentence, raised Atkins as a basis for post-conviction relief. The Pennsylvania Supreme Court held the defendant asserting an Atkins claim may establish mental retardation as defined by either the American Association of Mental Retardation or diagnostic and statistical manual of mental disorders 4th ed. (DSM-IV). The court also held that, in a PCRA proceeding, the trial court must hold a hearing before it determines whether a defendant is mentally retarded within the meaning of Atkins.

Likq Atkins, Miller declined to lay out any procedural framework for a non-PCRA determination of Atkins issues. Specifically, in footnote 3, it reserved decision as to whether an. Atkins claim was to be resolved by a judge or jury at trial. Instead, in the spirit of Atkins, the Pennsylvania Supreme Court in Miller called upon the state legislature to develop a procedural framework for the determination of Atkins issues.

The Pennsylvania Legislature still has not acted to implement Atkins. But that inaction does not affect the outcome here because the substantive questions of who bears the burden of proof in an Atkins claim, or whether the claim is decided by a judge or jury, are controlled by constitutional principles no legislation can alter.

FACT-FINDING AND BURDEN OF PROOF ALLOCATION

Although the United States Supreme Court has determined that a mentally retarded person can never be executed, and the Pennsylvania Supreme Court has adopted a definition of mental retardation that trial courts are to apply in capital felony cases where mental retardation is at issue, the parties’ questions here — who decides an Atkins claim, and how is the burden of proof to be allocated are not directly addressed. In this case, the Commonwealth takes no position on whether a judge or jury makes this decision, but the Commonwealth contends the burden of proof falls on the defendant by a preponderance of evidence; while defendant argues an Atkins claim ultimately is a jury question and the burden of proof falls on the Commonwealth beyond a reasonable doubt.

Two United States Supreme Court decisions provide the constitutional framework for this court’s resolution of these issues.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (U.S. 2000), the Supreme Court dealt with the issue of whether the applicability of New Jersey’s hate-crime statute was to be made by judge or jury.

Charles C. Apprendi fired several shots into the home of an African-American family and made a statement (later retracted) that he did not want the family in his neighborhood because of their race.

The State of New Jersey charged Apprendi with second-degree possession of firearm for an unlawful purpose. This offense carried a prison term of five to 10 years. The court did not refer to New Jersey’s hate crime statute, which provided for an enhanced sentence if the defendant committed the crime with a purpose to intimidate a person or group because of certain factors including race.

Apprendi pled guilty to second-degree possession of a firearm. The prosecutor then filed a motion to enhance the sentence. Acting under New Jersey law, a trial judge decided, by a preponderance of the evidence, that Apprendi committed the crime with the purpose to intimidate a person or group because of race. The trial judge then sentenced Apprendi to a 12-year term (larger than the maximum sentence the enhanced sentence provided) on the firearms count.

Apprendi appealed, claiming that, because the hate crime finding exposed him to a longer maximum sentence, the due process clause required that such a finding be proved to a jury beyond a reasonable doubt. The New Jersey Supreme Court rejected this challenge and affirmed Apprendi’s sentence.

The United States Supreme Court reversed. The Supreme Court held that “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 489, 120 S.Ct. at 2362-63.

Although Apprendi was not a capital felony case, its holding carried implications for capital felony jurisprudence. If a penalty phase trial in a capital felony involved proof of facts not already resolved in the preceding guilt phase trial, is it constitutionally required that such matters be resolved by the jury on Commonwealth proof beyond a reasonable doubt? This was the matter before the United States Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).

A jury found Ring guilty of felony murder occurring in the course of armed robbery. Under Arizona law, Ring could not be sentenced to death unless further findings were made by a judge conducting a separate sentencing hearing. In accord with statutory requirements, the judge in Ring determined the existence or nonexistence of statutorily enumerated “aggravating circumstances” and any “mitigating circumstances”, then applied these findings to a statutory requirement that the death sentence may be imposed only if the judge finds at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. Finally, because the jury had convicted Ring of felony murder, not premeditated murder, so that Ring would be eligible for the death penalty only if he was the victim’s actual killer, the trial judge made a further factual finding that Ring killed the victim. The Arizona Supreme Court affirmed the sentence of death. The United States Supreme Court agreed to hear defendant’s appeal.

A concern before the United States Supreme Court in Ring was a prior decision it had rendered in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047 (U.S.1990). In that case, the Supreme Court had held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge were sentencing considerations, not elements of the offense of capital murder. The Supreme Court, recognizing that it had held in Apprendi that the Sixth Amendment does not permit a defendant to be exposed to a penalty exceeding the maximum he would receive according to the facts that reflected in the jury verdict alone, now needed to weigh that reasoning against the court’s holding in Walton.

The Supreme Court, in reversing Ring’s death sentence, held: “Apprendi s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendant, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at 588, 122 S.Ct. at 2432.

Arizona had argued Apprendi should not apply because the jury guilt phase verdict authorized the sentence options of life or death which a judge thus should be free to determine. In response, the Supreme Court majority stated: “This argument overlooks Apprendi’s instruction that ‘the relevant inquiry is not one of form, but of effect’ ... In effect ‘the required finding (of an aggravated circumstance) expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.’” Id. at 602, 122 S.Ct. at 2440. The court concluded: “if Arizona prevailed on its opening argument, Apprendi would be reduced to a ‘meaningless and formalistic’ rule of statutory drafting.” Id. at 604, 122 S.Ct. at 2440-41.

In a concurring opinion, Justice Scalia (Justice Thomas joining) observed the majority concept had a reach broader than aggravating factors:

“I believe that the fundamental meaning of the jury trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives — whether the statute calls them elements of the offense, sentencing factors, or Mary Jane — must be found by the jury beyond a reasonable doubt.” Id. at 610, 122 S.Ct. at 2444. (emphasis added)

This court draws on the holdings and rationales of Atkins; Apprendi and Ring to resolve the issues now before it.

Athreshold question commonto the judge versus jury and burden of proof issues is whether the possible mental retardation of the defendant is an element in a capital case penalty phase hearing.

The Commonwealth claims mental retardation is not an element and refers to it instead as a “super mitigating factor”. However, as Apprendi teaches, the test is effect, not label. Slapping a “super mitigating factor” label on an Atkins claim does not make it function or act like a mitigator.

An understanding of the functional difference between aggravators and mitigators may assist in understanding the function of a mental retardation claim in a capital case penalty phase hearing.

42 Pa.C.S. §9711 defines and describes aggravating and mitigating circumstances. In a Pennsylvania capital case penalty phase hearing, the Commonwealth presents evidence of aggravating circumstances, which it must prove beyond a reasonable doubt. The defense then may present evidence of mitigating circumstances. The defense has the burden of proving the existence of mitigating circumstances which it must prove by a preponderance of the evidence. A death sentence results only if the Commonwealth has proved the existence of any aggravating circumstance beyond a reasonable doubt and (1) the defense fails to meet its burden of proving the existence of a mitigating circumstance, or (2) the jury finds the aggravating circumstances outweigh the mitigating circumstances. Otherwise, the verdict must be life imprisonment.

Aggravating circumstances are elements of capital murder. As Ring notes, aggravators “operate as statutory elements of capital murder under Arizona law . . .Because in their absence the death sentence is unavailable.” Ring, 536 U.S. 584, 599, 122 S.Ct. 2428, 2438.

Not so with mitigators. The presence or absence of mitigators does not, in itself, determine the life versus death application. Therefore, unlike aggravating circumstances, there is no constitutional bar to placing on defendant the burden of proving mitigating circumstances.

So, where does an Atkins mental retardation claim fit? On the surface, it looks similar to two separate mitigating circumstances: “(2) The defendant was under the influence of extreme mental or emotional disturbance, and (3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” 42 Pa.C.S. §9711. But to determine effect, as opposed to label, the analysis must go deeper.

Apprendi holds that mentally retarded individuals cannot be executed. Not some, not even a few, but none. To paraphrase Justice Scalia’s concurring language in Ring, the absence of mental retardation where mental retardation is properly at issue is a fact essential to the imposition of the death penalty.

Now the answers to the issues before the court present themselves. Since Apprendi holds that any fact that increases a penalty for a crime beyond a prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, and Ring holds that this concept applies to any facts that must be established in a penalty phase hearing to make the death penalty available, it follows that, where the Atkins mental retardation issue is properly raised, the Commonwealth bears the burden in a penalty phase hearing to prove beyond a reasonable doubt to a jury that a defendant is not mentally retarded.

Admittedly, this court’s position takes a step beyond Ring. Ring involves a statutory aggravator, not a constitutionally-mandated precondition to the imposition of the death penalty. And Ring does not address burden of proof allocation; only Apprendi, anon-capital case, does. But the holdings and reasonings of these three cases, together, leave this court with the conviction that, if either the Pennsylvania or the United States Supreme Court were presented with this precise issue, this court’s result would follow. Atkins effectively makes a defendant’s mental retardation — or, more precisely, the absence of mental retardation — an element of a capital offense. Apprendi holds any element of an enhanced penalty that is not present in the underlying offense must be decided by a jury upon proof by the Commonwealth beyond a reasonable doubt. And Ring extends Apprendi’s concept to a capital crime penalty phase hearing.

In its brief, the Commonwealth makes two arguments against the finding this court has reached: (1) An Atkins mental retardation issue claim is analogous to insanity, which by statute (upheld by Pennsylvania’s appellate courts) places the burden of proving insanity upon the defendant by a preponderance of the evidence; and (2) Several Pennsylvania appellate courts deciding Atkins-related issues have placed the burden of proving an Atkins claim on the defendant by a preponderance of the evidence.

The insanity statute upon which the Commonwealth’s argument rests, 18 Pa.C.S. §315(a), provides: “Mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of the evidence that the actor was legally insane at the time of the commission of the offense.” The statute applies only to guilt, not punishment, while the constitutional prohibition of Atkins applies only to death penalty determinations. The analogy thus fails.

The Commonwealth also cites Miller, 585 Pa. 144, 888 A.2d 624 (2005); Commonwealth v. Crawley, 592 Pa. 222, 226, 924 A.2d 612, 614 (2007) and Common wealth v. Gibson, 592 Pa. 411, 415, 925 A.2d 167, 169 (2007), as authority for this court to place the burden on the defendant to prove mental retardation by a preponderance of the evidence. These cases are inapposite. All involved PCRA proceedings. By statute, a petitioner/ defendant must prove by a preponderance of the evidence his right to relief. 42 Pa.C.S. §9543(a). Because none of these cases involve an appeal from a burden of proof imposed in a capital case penalty phase hearing, they are distinguishable.

Although a jury decides whether a defendant is mentally retarded once that claim is properly put at issue, that does not mean the court lacks a practical role. The role the court continues to play in these claims is illustrated by Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170 (2009).

In Vandivner, a case that arose after Atkins was decided, defendant pretrial raised a claim of mental retardation. After hearing, the trial court found defendant could not proceed with a mental retardation claim in his capital crime penalty phase hearing, should such a hearing occur. Defendant was found guilty of first-degree murder and, following a penalty phase hearing, defendant was sentenced to death.

On review, the Supreme Court upheld the trial court’s decision not to permit defendant to advance an Atkins mental retardation defense.

The Commonwealth argues Vandivner places on the defendant the burden of proving, by a preponderance of the evidence, an Atkins mental retardation claim. Some language from the Supreme Court opinion might give comfort to that argument. From the actual Vandivner holding, however, together with previous constitutional analysis, this court finds Vandivner stands for something other than what the Commonwealth contends.

In Vandivner, the trial court heard evidence that defendant was in a special education class until 1964-1965, when he dropped out in the 10th grade. The experts agreed no objective pre-18 mental retardation testing existed, and special education placement could have occurred because of behavioral issues.

Although the case language broadly talked about failures of defense proof, the Vandivner outcome is absolutely consistent with standard pretrial court dispositions. The trial court in essence found the defendant could not proceed with his Atkins claim because the defendant had failed to meet a burden of production; the evidence defendant presented on Criterion C, pre-18 mental retardation onset, even when read in a light most favorable to defendant, was legally insufficient to raise a triable issue of fact. Because Criterion C under Miller is a necessary element of an Atkins claim, defendant’s failure to raise a triable issue of fact meant defendant, as a matter of law, could not proceed with his Atkins claim.

This ruling is no different from a trial court’s dispositive authority in matters such as criminal habeas corpus or sufficiency of the evidence motions. Because the court is not invading the province of the jury as fact-finder, the proper granting of a dispositive motion, that is, a declaration that a juiy will not hear an issue because, after reading the evidence presented, no triable issue of fact exists for a jury to decide, violates no Sixth Amendment considerations.

This discussion causes the court to reassess its blanket denial of a defense request for a pretrial Atkins review. Because the parties have not fully exchanged expert reports, it remains a possibility that, once the exchanges have happened, the defense may wish to seek pretrial dispositive relief. The court will modify its order accordingly.

Commonwealth’s Request for Discovery

Although the Commonwealth makes a single discovery motion, the court reads it as two distinct requests: (1) for an order requiring defense experts in their reports to sufficiently identify the bases for their opinions, particularly, any documents on which they relied to reach those opinions; and (2) for an order compelling defendant, or his experts, to produce these documents for the Commonwealth.

The Commonwealth’s right to discovery is set out by rule. Pa.R.Crim.P. 573(C) defines the limits of Commonwealth discovery. Rule 573(C)(2) provides: “If an expert whom the defendant intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare and the defendant disclose a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert’s opinions and the grounds for each opinion.”

The Commonwealth here seeks identification of any documents relied on by defendant’s mental health defendant intends to call at trial. The court finds the request falls within the disclosure language of the rule. The court also finds the request is reasonable. The Commonwealth’s mental health experts need to know the identity of records relied on by defense experts so the Commonwealth experts can examine the records themselves to test the bases of defense expert opinion. As such, the court will order the disclosure of the identity of records reviewed and relied on.

The court notes one defense expert has already submitted a report. Nonetheless, because the court finds this report does not meet the disclosure requirements of the rule, the court will order report amendment to conform it. To hold otherwise would lead to the absurd result that a report, even a grossly inadequate one, could escape the scrutiny of the rule.

The Commonwealth also requests defense production of the documents defense experts examined and relied upon. The rule does not provide for this, and the court does not find any right to Commonwealth discovery apart from the rule. Accordingly, the court denies this request. In doing so, the court notes no prejudice to the Commonwealth. It was noted at argument that the Comm on - wealth already possesses many of these documents and, following proper identification, it will be able to obtain any remaining ones.

The court’s order follows.

ORDER

And now, December 14, 2009 upon consideration of the Commonwealth’s motion in limine regarding burden of proof allocation of defendant’s capital felony mental retardation claim, and the Commonwealth’s requests for discovery involving this claim, the following order is entered:

(1) The court determines that, where a capital felony mental retardation claim is properly raised, the Commonwealth bears the burden of proving the absence of mental retardation to a jury on proof beyond a reasonable doubt.

(2) Per Pa.R.Crim.P. 573(C)(2), the court orders that defendant, within 30 days of the date of this order, supply to the Commonwealth an amended report from Dr. Tallichet that specifically identifies all materials relied upon by Dr. Tallichet in arriving at this opinion that defendant suffers from mental retardation.

(3) The Commonwealth’s request for production of documents apart from those permitted under Pa.R.Crim.P. 573(C)(1) is denied.

      . The parties agree that the Commonwealth is entitled to examine defendant to examine the issues raised by defendant’s mental retardation expert.


author: MOORE, J,

text:
    Delta Organization Inc. v. Salem Baptist Church of Jenkintown

      Edward Seglias, for plaintiff.

      Kenneth W. Taylor, for defendant.
    December 22, 2009—
   MOORE, J,

I. FACTS AND PROCEDURAL HISTORY

This appeal has been taken by the Salem Baptist Church of Jenkintown (petitioner) from this court’s order of September 29, 2009, denying the petitioner’s appeal of an arbitration award in favor of the Delta Organization Inc.

On July 28, 2004, the petitioner entered into a construction contract with Delta for the renovation of two buildings owned by the petitioner. Pursuant to the terms of this contract, both parties agreed to submit to the jurisdiction of the American ArbitrationAssociation (AAA) to resolve all disputes arising out of the agreement.

On June 27, 2007, the petitioner gave Delta a notice of contract termination as a result of Delta’s failure to pay subcontractors. (NT, 9/29/09, p. 4.) In accordance with the dispute resolution provision of the contract, Delta subsequently submitted a demand for an arbitration hearing, alleging that the project was terminated for petitioner’s breach of contract by non-payment. In response, the petitioner filed a counterclaim asserting that Delta failed to perform in accordance with its obligations under the contract, resulting in significant additional costs and delays. Accordingly, both parties submitted to the jurisdiction of the AAA over their claims.

On December 2, 2008, the appointed arbitrator held a scheduling conference with counsel for both parlies, at which time the arbitration hearing was scheduled to begin on February 2, 2009. (NT, 9/29/09, pp. 4-5.) On January 27,2009, the petitioner’s original counsel withdrew and the arbitrator initially postponed the arbitration hearing until February 4,2009. (NT, 9/29/09, p. 5.) Based on this unexpected withdrawal, the petitioner requested a six-month continuance for its new counsel to familiarize itself with the case. (NT, 9/29/09, p. 11.) The arbitrator ultimately granted a six-week continuance in order for the petitioner’s new counsel to prepare and a hearing date was scheduled for March 16, 2009. (NT, 9/29/09, P-11-)

The arbitration proceedings began March 16, 2009, and lasted approximately two weeks. (NT, 9/29/09, p. 9.) On May 19,2009, the arbitrator rendered his decision, in which Delta was awarded a portion of its damages and the petitioner did not recover on its counterclaims.

The petitioner subsequently appealed the arbitrator’s decision to this court on two grounds. First, the petitioner contended that they were prejudiced by denial of their request for a lengthier continuance to allow their new counsel to prepare for the arbitration hearing. Additionally, the petitioner argued that the arbitration award was tainted by the arbitrator’s bias and prejudice.

On September 29, 2009, this court issued an order denying the petitioner’s appeal and confirming the award by the AAA arbitrator. The petitioner now appeals this court’s order of September 29, 2009. This court’s determination to confirm the decision of the arbitrator was proper and should be affirmed.

II. DISCUSSION

An agreement to arbitrate a dispute that does not state that the Uniform Arbitration Act applies is conclusively presumed to be an agreement to common-law arbitration. See Borgia v. Prudential Insurance Co., 561 Pa. 434, 439, 750 A.2d 843, 846 (2000); see also Midomo Co. Inc. v. Presbyterian Housing Development Co., 739 A.2d 180, 183 (Pa. Super. 1999) (“an agreement to arbitrate in accordance with the rules of AAA is an agreement pursuant to common-law arbitration”). In the present case, the contract agreed to by the parties does not state that the arbitration would take place pursuant to the Uniform Arbitration Act. Therefore, the parties are subject to the rules of common-law arbitration.

Under Pennsylvania Statute, a common-law arbitration award is binding upon the parties and “may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” 42 Pa.C.S. §7341 (West 2007). The party seeking to vacate a common-law arbitration award bears the burden to establish both the underlying irregularity and the resulting inequity by “ ‘clear, precise, and indubitable’ evidence.” Chervenak, Keane & Co. Inc. v. Hotel Rittenhouse Assocociates Inc., 328 Pa. Super. 357, 361, 477 A.2d 482, 485 (1984). This court’s review of the findings by an arbitration panel is • extremely narrow as “arbitrators are the final judges of both law and fact, and an arbitration award is not subject to a reversal for a mistake of either.” Prudential Property and Casualty Insurance Co. v. Stein, 453 Pa. Super. 227, 230, 683 A.2d 683, 685 (1996); see also, Reinhart v. State Automobile Insurance Association, 242 Pa. Super. 18, 363 A.2d 1138 (1976) (every presumption is in favor of an arbitration award’s validity). Accordingly, a trial court order confirming a common-law arbitration award will be reversed only for an abuse of discretion or an error of law. Sage v. Greenspan, 765 A.2d 1139, 1142 (Pa. Super. 2000).

The petitioner’s claim that it was prejudiced by the arbitrator’s refusal to grant a continuance longer than six-weeks is not a sufficient legal basis to reverse the arbitrator’s decision. The petitioner cites no legal authority to vacate an arbitration award based on an arbitrator’s decision to grant or deny a continuance. The Superior Court has found irregularities in the arbitration process constituting reversible error where, for example, relevant witnesses were precluded from testifying, see e.g, Smaligo v. Fireman’s Fund Insurance Company, 432 Pa. 133, 247 A.2d 577 (1968), or where an improper relationship between a party and the arbitrator indicated a lack of impartiality in the proceeding, see e.g. Land v. State Farm Mutual Insurance Company, 410 Pa. Super. 579, 600 A.2d 605 (1991). No such irregularities are evident or alleged in the arbitration proceeding in the present case.

Moreover, the arbitrator’s decision to grant a six-week continuance does not amount to an irregularity. Following the six-week continuance, an arbitration hearing was held over the course of two weeks. The arbitrator ultimately decided to accept Delta’s claims and reject the petitioner’s in a detailed opinion supporting his findings. There is no evidence of record that serves as a legal basis to indicate any underlying irregularity or resulting inequity.

The only stated basis for the petitioner’s allegations of bias against the arbitrator stem from the arbitrator’s decision to continue the arbitration hearing for six-weeks after the petitioner’s former counsel withdrew from the case. Certainly, this allegation is legally insufficient to establish bias. Accordingly, this court did not abuse its discretion in confirming the arbitration award.

III. CONCLUSION

This court’s determination to confirm the arbitrator’s award was proper and should be affirmed.

      . The original arbitrator was conflicted out of the case and a new arbitrator was appointed on November 5, 2008.

      . The petitioner then petitioned the court to continue the arbitration for six months and remove the arbitrator for failure to remain impartial. See The Delta Organization Inc. v. Salem Baptist Church of Jenkintown, Montgomery County Court of Common Pleas, no. 2009-02744 (Feb. 2, 2009). After oral arguments, the court denied this petition by order of the Honorable Maurino J. Rossanese Jr., on February 3, 2009.