author: FRIEDMAN, J,

text:
    Moats v. Grossman

      C.P. of Allegheny County,
    no. GD 07-7380.

      Robert B. Woomer, for plaintiffs.

      James F. Israel and Jennifer L. McPeak, for defendants.
    June 10, 2010
   FRIEDMAN, J,

Defendants have filed four motions for summary judgment directed at four of the plaintiffs, Donna D. Miller, Rachel E. Miller, Jean F. Scott, and Dawn M. Stroncek, which are all based on the bar of the statute of limitations. Those plaintiffs responded that the discovery rule delayed the start date for the limitations period, and, after oral argument, the court permitted further briefing on the issue of whether plaintiffs had raised the discovery rule in their reply to defendants’ new matter. A few days later, plaintiffs’ attorney asked it, in lieu of briefing, they could present a petition to amend the complaint to expand on the factual basis for the applicability of the discovery rule. Because he had discussed this with counsel for the other side who did not object to the undersigned, rather than the calendar control judge, hearing the petition, we agreed and directed them to follow the same schedule as had been set for the briefing of the summary judgment motions.

In retrospect, we should not have agreed to this approach. An amendment to a complaint is not the way to address the statute of limitations issue, which is properly raised in new matter and countered by a reply to new matter. That has already been done here. The issue is whether or not the claim of the four plaintiffs named above are barred has been joined and can be dealt with. We therefore deny the petition for leave of court to file amended complaint.

In connection with the petition for leave to amend, it appears that both sides have already adequately briefed the issues related to the discovery rule and the facts each contends are material to that issue, so we will not require further briefs. However, before we issue our ruling on the four motions for summary judgment we will permit counsel to file any supplemental briefs no later than June 23, 2010. Both briefs are due at the same time and no further briefing will be permitted unless specifically requested by the court.

See order filed herewith.

ORDER

And now, June 10, 2010, it appearing that there is no need to amend the complaint, for the reasons set forth in the attached memorandum in support of order, it is ordered that the plaintiffs’ petition for leave to amend complaint is hereby denied. It is further ordered that the parties shall adhere to the limited supplemental briefing schedule set forth in the memorandum and shall promptly advise the court if they do not wish to file any supplemental brief. A ruling on the pending motions for summary judgment against Donna D. Miller, Rachel E. Miller, Jean F. Scott, and Dawn M. Stroncek will be issued once the date for filing supplemental briefs has expired.


source: Caselaw Access Project

author: PICCIONE, J,

license: Public Domain

text:
    PennDOT v. Youschak

      C.P. of Lawrence County,
    no. 70099 of 2009, M.D.

      William A. Kuhar Jr., for Commonwealth.

      Carl A. Parise, for defendant.
    May 17, 2010
   PICCIONE, J,

Before this court for disposition is the defendant’s appeal from the order of the secretary of transportation suspending defendant’s operator’s license. On September 25,2001, Brian Charles Youschak was admitted into the accelerated rehabilitative disposition (ARD) program as a result of a January 14, 2001 incident where defendant was cited for driving under the influence of alcohol. In accordance with former Pennsylvania statute 75 Pa.C.S. §3731(e)(6)(h), defendant’s driving privilege was suspended for a 30-day period. On June 29,2008, Defendant was again cited for driving under the influence of alcohol and was convicted of that offense in the Municipal Court of Portage County in Ravena, Ohio on May 27, 2009. The Ohio Department of Public Safety’s Bureau of Motor Vehicles subsequently reported defendant’s conviction to the PennDOT.

On August 7, 2009, PennDOT mailed defendant an official notice of the suspension of his driving privilege for a period of one year. The notice indicated that defendant’s license was suspended because of “a violation on 6/29/08 of A08 of the AAMVA code dictionary, DUI w/ BAC = or > .08 that is similar to violating section 3802A2 of the Pennsylvania Vehicle Code.” PennDOT’s exhibit 1. On September 1, 2009, defendant filed a petition for appeal, arguing that PennDOT’s suspension of his operator’s license was unlawful. Defendant was granted a hearing de novo to determine whether defendant is subject to suspension of his operator’s license. The hearing was held on March 31, 2010 before this court. During the hearing, defendant objected to the admission of the official notice of the suspension, the report of out-of-state convictions, and defendant’s certified driving history. Therefore, the court must address defendant’s objections before determining whether PennDOT’s suspension of defendant’s license was proper.

Initially, defendant argues that there is no reference to the American Association of Motor Vehicle Administrators’ (AAMVA) code dictionary or section A0 8 in any Pennsylvania legislation. As a result, defendant objects to the admission of any documentation citing those provisions, including the official notice of the suspension, the report of out-of-state convictions, and defendant’s certified driving history. Defendant also argues that the references to AO 8 of the AAMVA code dictionary provide insufficient notice of the offense that defendant violated.

PennDOT’s reference to the AAMVA code dictionary and section A08 was not improper. The Commonwealth Court of Pennsylvania has stated:

“The AAMVA code dictionary is used by many states to determine the comparability of out-of-state offenses with in-state offenses, and its primary function is to enable the commercial drivers’ license information system (CDLIS) to exchange convictions and withdrawals. It is an interpretative tool for states involved in the Driver License Compact of 1961, 75 Pa.C.S. §1581, to ‘translate’ the nature of a conviction reported by a sister state. Because its origin and purpose make it the type of document of which judicial notice can be taken as it is ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned,’ it was properly admitted.” Hyer v. PennDOT, 957 A.2d 807, 810 (Pa. Commw. 2008). In several other cases, references to the AAMVA code dictionary did not render notices of suspension and reports of out-of-state convictions inadmissible. Shewack v. PennDOT, 2010 WL 1463027 (Pa. Commw. 2010); Taddei v. PennDOT, 982 A.2d 1249, 1252 (Pa. Commw. 2009).

Further, defendant was provided with sufficient notice of the offense resulting it his suspension. In addition to listing a violation of section A08, the certified driving history and official notice of the suspension referenced section 3802(a)(2) of the Pennsylvania Vehicle Code, and the report of out-of-state convictions references “Ovi-Alcohol &/ or Drug,” a violation of section 4511.19 of the Ohio Revised Code PennDOT’s exhibits 1,2, and 6. Therefore, PennDOT’s use of the AAMVA code dictionary did not render its exhibits inadmissible or defendant’s suspension improper.

Defendant’s other objections concern only the report of out-of-state convictions. Defendant argues that the report sent by Ohio, a signatory of the driver’s license compact of 1961, failed to comply with article III of the compact article III states:

“The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered or the conviction was a result of the forfeiture of bail, bond, or other security and shall include any special findings made in connection therewith. 75 Pa.C.S. §1581.

Defendant argues that the report was sent by the Ohio Department of Public Safety rather than the bureau of motor vehicles, the licensing authority of Ohio. Defendant also argues that the report fails to specify the section of the statute violated.

An inspection of the report of out-of-state convictions reveals that it was sent to PennDOT by the Ohio Department of Public Safety Bureau of Motor Vehicles and that it contains a description of the Ohio statute that was violated. Because the report describes defendant’s violation and was sent by the licensing authority of Ohio, the report complies with article III of the compact. Even if the alleged defects caused the report to run afoul of article III, the report would still be admissible. The compact is to be liberally construed so as to effectuate its purposes. Siekierda v. PennDOT, 580 Pa. 259, 269, 860 A.2d 76, 82 (2004). A perceived defect in the origin of a conviction report is immaterial to Pennsylvania’s power to issue a driver’s license suspension. Id. at 77. “The omission from any report received by the department from a party state of any information required by article III of the compact shall not excuse or prevent the department from complying with its duties under articles IV and V of the compact.” 75 Pa.C.S. §1584. Because the court finds defendant’s objections to be without merit, the official notice of the suspension the report of out-of-state convictions, and defendant’s certified driving history as well as PennDOT’s other exhibits are admissible and shall be considered in determining whether defendant’s operating privilege was properly suspended.

In a license suspension case, “PennDOT bears the initial burden to establish a prima facie case that a record of conviction supports a suspension.” Glidden v. PennDOT, 962 A.2d 9, 12 (PaCommw. 2008). PennDOT must also demonstrate that it acted in accordance with applicable law. Id. 75 Pa.C.S. §3804 states:

“(1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual’s conviction of or an adjudication of delinquency for:...

“(ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under article III in section 1581 (relating to driver’s license compact).” 75 Pa.C.S. §3804(e)(l)(ii).

“In calculating the term of a suspension for an offense that is substantially similar to an offense enumerated in section 3802, the department shall presume that if the conduct reported had occurred in this Commonwealth then the person would have been convicted under section 3802(a)(2).” 75 Pa.C.S. §3804(e)(2)(iv)(B).

Paragraph (2) of section 3804(e) provides for a 12-month suspension of a driver’s license for an ungraded misdemeanor or misdemeanor of the second degree except where an individual is convicted of an ungraded misdemeanor, is subject to the penalties provided in section 3804(a), and has no prior offense. 75 Pa.C.S. §3804(e)(2)(i) and (iii). The term “prior offense” includes acceptance into ARD for ar offense under former statute 75 Pa.C.S. §3731. 75 Pa.C.S. §3806(a)(2). Such a prior offense can be considered in determining whether a present violation constitutes a repeat offense within 10 years. 75 Pa.C.S. §3806(b)(2).

Following the January 14,2001 incident where defendant was cited for driving under the influence of alcohol, defendant was admitted into ARD. On June 29, 2008 defendant was again cited for driving under the influence and was convicted of that offense on May 27, 2009. Because defendant’s second offense occurred within 10 years of his first, defendant had a prior offense for purposes of the suspension when he was convicted on May 27, 2009. Therefore, PennDOT’s 12-month suspension was proper as long as defendant was convicted of “an offense which is substantially similar to an offense enumerated in section 3802.” 75 Pa.C.S. §3804(e)(l)(ii).

Under article IV of the driver’s license compact, the licensing authority of the home state is to give the same effect to a conviction in another party state as it would a conviction in the home state if the conviction is for “driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle.” 75 Pa.C.S. §1581. The compact further states that:

“The department shall, for purposes of imposing a suspension or revocation under article IV of the compact, treat reports of convictions received from party states that relate to driving ... a vehicle while impaired or under the influence of alcohol... as being substantially similar to section 3802 .... The fact that the offense reported to the department by a party state may require a different degree of impairment of a person’s ability to operate, drive or control a vehicle than that required to support a conviction for a violation of section 3802 shall not be a basis for determining that the party state’s offense is not substantially similar to section 3802 for purposes of article IV of the compact.” 75 Pa.C.S. §1586.

“Our supreme court has stated that section 1586 clearly broadens the scope of offenses that Pennsylvania would consider substantially similar to the offenses in article IV(a)(2); in fact, the court has stated that, under section 1586 an out-of-state conviction for any level of impaired driving is punishable in Pennsylvania.” Roselle v. PennDOT, 865 A.2d 308, 312 (Pa. Commw. 2005) (citing Wroblewski v. PennDOT, 570 Pa. 249, 809 A.2d 247 (2002)). In Taddei, for example, the Commonwealth Court determined that a one-year suspension of a Pennsylvania driver’s license was appropriate where the driver entered ARD for a first offense of driving under the influence in Pennsylvania and was later convicted in New Jersey for a repeat offense under A20 of the AAM-VA code dictionary, an offense of “driving under the influence of alcohol or drugs.” Taddei, supra, 982 A.2d at 1252.

In the case sub judice, defendant was convicted in Ohio of operating a vehicle while under the influence of alcohol or drugs. In the report of out-of-state convictions, Ohio’s Bureau of Motor Vehicles indicated that defendant violater section A08 of the AAMVA code dictionary, an offense of “driving under the influence of alcohol with BAC at or over .08.” The official notice of the suspension stated that defendant’s violation of section A08 is similar to a violation of 75 Pa.C.S. §3802(a)(2). Section 3802(a) (2) states:

“An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is at least 0.08 percent but less than 0.10 percent within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §3802(a)(2).

Because defendant’s Ohio offense is substantially similar to a Pennsylvania offense enumerated in section 3802, PennDOT established a prima facie case that defendant’s record of conviction supports a one-year suspension and demonstrated that the suspension is in accordance with applicable law. Defendant failed to present clear and convincing evidence that he was not convicted of the Ohio offense. Roselle, supra, 865 A.2d at 313. Therefore, the one-year suspension of defendant’s operating privilege was proper, and defendant’s driver’s license appeal is dismissed.

ORDER

And now, May 17,2010, the court having held a hearing on March 31, 2010 regarding defendant’s driver’s license suspension appeal, with William A. Kuhar Jr., Esquire, appearing and representing PennDOT, and Carl A. Parise, Esquire, appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

(1) The defendant’s driver’s license suspension appeal is dismissed pursuant to the attached opinion.

(2) The action of the PennDOT in suspending the defendant’s privilege to operate a motor vehicle for a period of one year is affirmed, and said suspension is hereby reinstated.

(3) The clerk of courts shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: COX, J.,

text:
    Grell v. Pulaski Township Municipal Authority

      C.P. of Lawrence County,
    no. 70050 of 2009.

      Carmen F. Lamancusa, for plaintiffs.

      John K. Seltzer, for defendant.
    May 26, 2010
   COX, J.,

Before the court for disposition is the preliminary objection to the amended complaint filed on behalf of the defendant, the Pulaski Township Municipal Authority which asserts that the plaintiffs’ amended complaint lacks specificity because the plaintiffs Lewis Grell and Pamela Grell have failed to aver that the Municipal Authority had a specific duty which was required by law and that it failed to perform that duty. More specifically, mandamus cannot be used to interfere with acts within the Municipal Authority’s control or discretion and the plaintiffs’ amended complaint fails to set forth that they were legally entitled to have their properties connected to the Pulaski Sewer System.

The facts as set forth in the complaint are as follows: The Municipal Authority, which was established by the Township of Pulaski on August 6,2001, was responsible for administering Pulaski Township Official Act 537 Sewage Facilities Plan, which proposed the construction of three sewage treatment plants in New Bedford, Pulaski and Frizzleburg, Lawrence County, Pennsylvania. On October 27 1999, Pulaski Township received approval from the Pennsylvania Department of Environmental Protection for a plan titled “Act 537 Sewage Facilities Plan Update — Phase II,” which required that sewage generated from the Pine Glenn, Lawrence County, Pennsylvania, service area be conveyed through a pump station and force main to the New Bedford sewage treatment plant. The purpose of this plan was to provide for the best long-term solution for eliminating malfunctioning on-lot disposal systems. On November 22,2002, Governor Mark Schweiker announced that the Pennsylvania Infrastructure Investment Authority provided Pulaski Township with a loan for $8,325,303 and a $1,000,000 grant to construct approximately 23 miles of wastewater collection lines, a pump station and two treatment facilities to serve four areas of the township where the on-lot septic systems were malfunctioning and wildcat sewers were discharging waste into publicly accessible areas.

The plaintiffs, who reside at 1229 State Route 208, Pulaski, Lawrence County, Pennsylvania, and own nearby property at 1215 State Route 208, received two applications from the Municipal Authority for sanitary sewer service connection. On December 16, 2005, the plaintiffs signed the two applications and paid $2,300 for each property for the tap-in fees through two separate checks made payable to the Municipal Authority; however, the tap-in fees were $2,350 each, so the plaintiffs furnished another check for $100 on January 5,2006, to pay the remaining balance. It must be noted that on December 16, 2005, Janet Kapraly, the secretary for the Municipal Authority, approved the plaintiffs’ application for sewer tap-ins. Additionally, Robert Zedaker, a member of the Municipal Authority, informed the plaintiffs that their application was approved. The plaintiffs subsequently received a telephone call from William Taylor, another member of the Municipal Authority, stating that their residence was not on the list for sewer installation and their payment would be returned to them. In March of2006, the former and current boards of the Municipal Authority began discussing the application approvals and whether the approval of the plaintiffs’ application created a contract because the plaintiffs were initially on the list for sewer installations. Subsequently, on July 15, 2008, the Municipal Authority unanimously agreed to invite the plaintiffs into the sewer district under a developers’ agreement as covered by the township ordinance, as long as the Municipal Authority was not required to make expenditures. The plaintiffs filed suit claiming that the Municipal Authority did not have the authority to rescind its acceptance of the plaintiffs’ application after the tap-in fees were paid, approval was provided by Janet Kapraly and Robert Zedaker and plaintiffs were initially on the installation list.

When rendering a decision on a preliminary objection claiming that the complaint lacks specificity, the court must determine “whether the complaint is sufficiently clear to enable the defendant to prepare [a] defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006) (quoting Ammlung v. City of Chester, 224 Pa. Super. 47, 302 A.2d 491, 498 n.36 (1973)). In other words, the court must examine “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Id. The court must also read all of the averments of the complaint and consider the nature of the case to determine if the complaint lacks specificity. Hock v. L.B. Smith Inc., 69 D.&C.2d 420, 423 (Columbia Cty.,1974) (citing Roberts v. Peoples Cab Company, 7 D.&C.2d 632 (Allegheny Cty. (1955)). “It is enough that, considering the complaint as a whole, it contains sufficient material facts to show the existence of a cause of action.” Id. “[I] n determining whether a particular paragraph in a complaint is stated with the necessary specificity, such paragraph must be read in context with all the allegations in the complaint. Only then can a court determine whether the defendant is put on adequate notice of the claim against which it must defend.” Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission (PGC) 950 A.2d 1120, 1134-35 (Pa. Commw. 2008) (citing Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579 (Pa. Super. 2002)).

Mandamus is an extraordinary remedy utilized to compel official performance of a ministerial act or mandatory duty where the plaintiff maintains a clear legal right in the corresponding duty from the defendant. Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 20, 493 A.2d 1351, 1355 (1985) (citing Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621 (1973); Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972)). A complaint in mandamus must set forth the following:

“(1) the name and description of the plaintiff and defendant;

“(2) the facts upon which plaintiff relies for the relief sought;

“(3) the act or duty the defendant is required to perform and the refusal to perform it;

“(4) the interest of the plaintiff in the result;

“(5) the damages, if any;

“(6) the want of any other adequate remedy at law;

“(7) a prayer for the entry of a judgment against the defendant commanding that the defendant perform the act or duty required to be performed and for damages, if any, and costs.” Pa.R.C.P. No. 1095.

However, mandamus is not designed to compel a discretionary act. County of Allegheny v. Commonwealth, 507 Pa. 360, 373, 490 A.2d 402, 409 (1985) (citing Citizens Committee to Recall Rizzo v. Board of Elections, 470 Pa. 1, 367 A.2d 232 (1976); Kremer v. Shoyer, 453 Pa. 22, 311 A.2d 600 (1973); Porter, supra.). A complaint that sets forth an action in mandamus must clearly define the issues, and every act or performance essential to that issue. Dial v. Pennsylvania Board of Probation and Parole, 706 A.2d 901, 902 (Pa Commw. 1998) (citing Hawks by Hawks v. Livermore, 157 Pa. Commw. 243, 629 A.2d 270 (1993); Erie County League of Women Voters v. Department of Environmental Resources, Bureau of State Parks, 106 Pa. Commw. 369, 525 A.2d 1290 (1987)).

“The facts on which the right is made to depend must be stated with a precision sufficient to express the right of one and the duty of the other, in such a manner that the ordinary mind, disregarding technicality of pleading, may easily comprehend them.” Hazelton Retail Merchants ’Council v. Beisel, 18 D.&C. 693, 694 (1932). The plaintiff must clearly state the act or duty that the defendant was required to perform and the defendant’s refusal to do so and where pertinent the complaint should refer to the law or ordinance that imposed the duty. Pa.R.C.P. No. 1095; Smith v. Commonwealth ex rel. Dillon, 41 Pa. 335 (1861). “An action filed in mandamus must define the issues, and every act or performance essential to that act must be set forth in the complaint.” Nickson v. Commonwealth Board of Probation and Parole, 880 A.2d 21, 23 (Pa. Commw. 2005) (citing Pa.R.C.P. No. 1019; Byrd v. Pennsylvania Board of Probation And Parole, 826 A.2d 65 (Pa. Commw. 2003)).

In the case sub judice, the plaintiffs have set forth specific facts to establish their claim for mandamus. Although Act 537 permits the Municipal Authority to alter its original plan, the plaintiffs assert that their property was entitled to be included in the sewage system because they filed the appropriate applications and those applications were accepted by Janet Kapraly. Additionally, the plaintiffs indicated that the Municipal Authority accepted the payments made by the plaintiffs, which is evidenced by the checks attached to the amended complaint. Furthermore, the Municipal Authority informed the plaintiffs that they did not pay the correct amount and the plaintiffs provided the Municipal Authority with another check for $100, which was also accepted. The plaintiffs were also informed by Robert Zedaker, a member of the Municipal Authority, that their applications were approved. However, the plaintiffs were subsequently informed that they were not on the list for sewer installation and the Municipal Authority refunded their money. In March of 2006, the Municipal Authority discussed whether the approval of the plaintiffs’ application created a contract because the plaintiffs were initially on the list for sewer installation. On July 15,2008, the Municipal Authority invited the plaintiffs into the sewer district under a developers’ agreement as covered by the township ordinance, as long as the Municipal Authority was not required to make expenditures.

The plaintiffs filed suit and now assert that a binding contract was created through the Municipal Authority’s approval of their application and its acceptance of the tap-in fees. The plaintiff further contends that the contract was breached when they were informed that they would not receive sewer installation and their payment for the tap-in fees was returned to them. Paragraph 21 of the plaintiffs’ amended complaint states, “The Pulaski Township Municipal Authority did not have authority to rescind the acceptance of the applications of plaintiffs, Lewis and Pamela Grell, after the monies for the tap-in sewer connection was given and approval accepted by Janet Kapraly since plaintiffs were on an installation list given to her.” Moreover, paragraph 22 of the amended complaint avers, “The Pulaski Township Municipal Authority did have a duty to provide a sanitary sewer connection to the plaintiffs’ property with the objective of achieving the best practicable long-term plan for the elimination of existing malfunctioning on-lot disposal systems in accordance with the Pulaski Township Official Act 537 Sewage Facilities Plan, as amended.” Those paragraphs read in conjunction with the entire amended complaint set forth a claim that the plaintiffs are legally entitled to sewer installation because the Municipal Authority breached a valid agreement that was created when the Municipal Authority approved the plaintiffs’ applications and accepted payment for the tap-in fees. The court finds that the amended complaint does not lack specificity and adequately annunciates the claims being asserted by the plaintiffs.

For the reasons set forth in this opinion, the defendant’s preliminary objection to amended complaint is overruled.

ORDER

Now this May 26, 2010, this case being before the court on April 26, 2010, for oral argument on the preliminary obj ection to the amended complaint filed by the defendant, with both parties appearing through their counsel, the plaintiffs, Lewis Grell and Pamela Grell, represented through counsel, Carmen F. Lamancusa, Esquire and the defendant, The Pulaski Township Municipal Authority, represented through counsel, John R. Seltzer, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) The court notes that the preliminary objection to amended complaint filed by the defendant raises the issue of insufficient specificity of the amended complaint.

(2) In accordance with the attached opinion, the preliminary objection to the amended complaint is hereby overuled.

(3) Defendant shall file an answer within 20 days after receipt of this order of court.

(4) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Carmen F. Lamancusa, Esquire and John R. Seltzer, Esquire.


author: PARISI, J,

text:
    Commonwealth v. Torres

      C.P. of Berks County,
    no. CP-06-CR-1407/08, 3089/08.

      Adrian S. Shchuka, for Commonwealth.

      Roarke T. Aston, for defendant.
    May 5, 2010
   PARISI, J,

In the present appeal, the defendant contends this court erred in failing to grant his pre-sentence and post-sentence motions to withdraw guilty pleas in these dockets referenced above. The defendant’s jury trial was scheduled for May 19, 2009. Prior to the parties selecting a jury, the defendant pled guilty to two counts of aggravated indecent assault in docket 3089/08 and two counts of statutory sexual assault in docket 1407/08. The court was required to schedule sentencing at a later date in order for the defendant to undergo a Megan’s Law evaluation. On August 31, 2009, the defendant appeared at a Megan’s Law status hearing and moved to withdraw his guilty pleas in each docket. On September 17,2009, a hearing was held on the defendant’s pre-sentence motions to withdraw his guilty pleas. On October 22,2009, this court denied the defendant’s pre-sentence motions.

On December 12, 2009, the defendant was sentenced to an aggregate term of incarceration of not less than five years nor more than 20 years. In Ddcket 1407/08, the defendant was sentenced to two consecutive terms of incarceration of not less than two and a half years nor more than 10 years. In docket 3089/08, the defendant was sentenced to two concurrent terms of incarceration of not less than five years nor more than 10 years with both sentences to run concurrent with the sentence imposed at count one of docket 1407/08. On December 23, 2009, the defendant filed post-sentence motions to withdraw his guilty pleas in each docket. On February 22, 2010, the court held a hearing on the defendant’s post-sentence motions. On March 2, 2010, the court denied the defendant’s post-sentence motions to withdraw his guilty pleas. On March 18, 2010, the defendant filed a notice of appeal in each docket asserting the following grounds on appeal:

“(1) The court abused its discretion in denying the defendant’s pre-sentence motion to withdraw guilty plea as the defendant made a clear, uncompromised assertion of innocence.

“(2) The court abused its discretion in denying the defendant’s post-sentence motion to withdraw guilty plea as the evidence before the court demonstrated that the defendant’s guilty plea was not knowing, voluntary, or intelligent.” Defendant’s concise statement of errors complained of on appeal, April 1, 2010.

While employed as a custodian at the Gateway School for the Arts in the City of Reading, the defendant admitted having sexual intercourse with a 13 year-old female student on two separate occasions in the girls restroom between late January and early February of 2008. The defendant further admitted to touching his former girlfriend’s 8 year-old daughter’s genitals several times while he was alone with the girl in her mother’s apartment between April 19,2008 and May 23,2008. Despite these admissions, at the Megan’s Law status hearing and the hearings on his motions to withdraw, the defendant asserted he did not engage in the conduct underlying his guilty pleas.

The defendant’s first claim on appeal is that this court abused its discretion in denying the defendant’s presentence motions to withdraw his guilty pleas. The defendant contends his assertions of innocence were sufficient to permit the withdrawals under Pennsylvania law.

There is no absolute right to withdraw a guilty plea prior to sentencing and the decision to grant such a request rests within the discretion of the trial court. Commonwealth v. Hutchins, 453 Pa. Super. 209, 212, 683 A.2d 674, 675 (1996). To withdraw a guilty plea presentence, the defendant must show (1) a fair and just reason for the withdrawal, and (2) the Commonwealth will not be substantially prejudiced by its reliance on the plea. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). An assertion of innocence constitutes a fair and just reason for withdrawal of a guilty plea in the absence of substantial prejudice to the Commonwealth. Id. However, even when the defendant asserts a viable reason for withdrawal, withdrawal is not permitted if the Commonwealth would suffer substantial prejudice should the case be reinstated and set for trial. Commonwealth v. Dickter, 318 Pa. Super. 372, 375, 465 A.2d 1, 2 (1983).

Our Superior Court has consistently recognized that substantial prejudice to the Commonwealth results when defendants plead guilty to sexual offenses against young children and subsequently move to withdraw their pleas prior to sentencing, as these crimes often occur outside of the presence of other witness. The decisions acknowledge the fragile nature of the young victims and their inability to accurately recall important facts due to delays caused by the defendants significantly hinder the Commonwealth’s ability to prosecute their offenders.

In Dickter, the defendant pled guilty to sexually assaulting two boys, ages 9 and 13. The defendant absconded before sentencing. When the defendant was finally re-arrested, he moved to withdraw his guilty plea more than four years after entering it. In affirming the lower court’s denial of the defendant’s request, the Superior Court reasoned that because these crimes were committed against such young boys, it “may assume” their ability to testify accurately would be “substantially diminished” given their young age and the lengthy delay. Id. at 375, 465 A.2d at 2.

Similarly, in Commonwealth v. Carr, after pleading guilty to sexually assaulting his 5-year-old grandson, the defendant moved to withdraw his plea prior to sentencing. 375 Pa. Super. 168, 171, 43 A.2d 1232, 1233(1988). The Superior Court affirmed the lower court’s denial of the motion stating the Commonwealth suffered substantial prejudice, in part, because the “eight-month delay [between the guilty plea and the motion to withdraw] would undoubtedly have dulled the 5-year-old child victim’s recall of events.” Id. at 172, 543 a.2d at 1234.

In Commonwealth v. Hutchins, the Superior Court again found the Commonwealth was substantially prejudiced in its reliance on the defendant’s plea due to the inability of its main witness, an adult victim of a brutal stabbing attack, to accurately recall significant facts. 453 Pa. Super. 209, 213, 683 A.2d 674, 676 (1996). After reviewing the testimony of the victim’s psychologist, the Superior Court concluded the victim’s memory had worsened due to the delay caused by the motion to withdraw. It further noted that subsequently testifying in court after the delay would be “very damaging” to the victim given the post-traumatic stress she suffered as a result of the incident. Id. Although Hutchins involved an adult victim, the Superior Court’s reasoning indicates that courts must consider the nature of the particular charges involved and the emotional state of the witnesses when determining whether a key witness’ inability to accurately recall events substantially prejudices the Commonwealth.

Courts in other jurisdictions have also recognized the adverse effects of protracted criminal proceedings on the memories of young sexual assault victims when considering whether granting a motion to withdraw would substantially prejudice the prosecution. The Wisconsin Supreme Court, in State v. Bollig, found substantial prejudice existed stating it was reasonable to conclude the delays caused by the defendant’s motion to withdraw nearly two years after incident occurred hampered the child victim’s ability to recall pertinent events. 605 N.W.2d 199, 208 (2000). Additionally, in State v. O’Neill, the Ohio Court of Appeals (Seventh District) acknowledged that granting the defendant’s motion would prejudice the state’s case as the memory of the 10-year-old child victim was more likely to dim during the delay than the typical adult witness’ memory. 2004 WL 2913923.

In the present case, the defendant offered a “fair and just” reason to withdraw his guilty plea prior to sentencing when he asserted his innocence at the original sentencing hearing.

This court did not abuse its discretion in denying the defendant’s pre-sentence motion for withdrawal, as the Commonwealth would have suffered substantial prejudice had the defendant’s request been granted. The defendant pled guilty more than one year after most of the incidents with the two victims occurred. Jury selection was about to begin. When the defendant first moved to withdraw his pleas an additional three months had passed. As in Dickter and Carr, given the victims’ ages and the nature of the charges involved in this case, the delay resulting from the defendant’s motion to withdraw would “substantially diminish” their ability to recall important facts at a subsequent trial. As the Superior Court cases point out, these significant delays undoubtedly dull the memories of children victims of sexual assault and severely limit the Commonwealth’s ability to prosecute their offenders.

The defendant was facing immediate trial when he decided to enter his pleas. The panel for voir dire was in the court facilities and ready to be brought up to the courtroom. The Commonwealth had presumably prepared for trial, including preparing the victim witnesses for testimony. There is trauma to victims in pretrial preparation, particularly in cases of sexual assault. This was not a situation where the defendant had proffered a plea days or weeks before trial. Under these circumstances, the risk of the victims suffering additional trauma is a further prejudice to the Commonwealth. Where there are victims who are minors, as in these cases, that is sufficient cause for denying a request to withdraw a plea. This prejudice is multiplied as there are multiple victims in these matters.

Moreover, by scheduling the Megan’s Law proceedings prior to the defendant’s original sentencing hearing, the imposition of his sentence was delayed in excess of three months from the date of his pleas. This afforded the defendant ample time to file pre-sentence motions to withdraw prior to his original sentencing hearing and thereby mitigate the impact of any delay on the victims’ memories. Despite this gap, the defendant did not request to withdraw his plea until the time of sentencing. As discussed above, this delay aggravated the prejudice to the Commonwealth as it increased the likelihood that the child victims would be unable to accurately remember important facts. Therefore, this court did not abuse its discretion in denying the defendant’s pre-sentence motions to withdraw his guilty pleas, as the delay caused by the defendant substantially prejudiced the Commonwealth.

The defendant’s next claim on appeal is that the court erred in denying his post-sentence motions to withdraw his guilty pleas as the defendant’s pleas were not knowing, voluntary, and intelligent.

There remains no absolute right to withdraw a guilty plea once sentence has been imposed. Comparable to a pre-sentence request to withdraw a guilty plea, the decision to allow a defendant to withdraw their plea post-sentence is a matter which rests within the sound discretion of the trial court. Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super. 2002). Furthermore, post-sentence motions for withdrawal are subjected to higher scrutiny “since courts strive to discourage entry of guilty pleas as sentence-testing devices.” Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002). Therefore, to withdraw a guilty plea after the imposition of sentence, a defendant must make a showing of prejudice which resulted in a “manifest injustice.” Id. at 623. A defendant will meet this burden only if they demonstrate their guilty plea was entered involuntarily, unknowingly, or unintelligently. Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999). Whether a defendant entered into their plea knowingly, voluntarily, and intelligently requires a totality of the circumstances analysis, but the court must, at a minimum, make the following inquires:

“(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

“(2) Is there a factual basis for the plea?

“(3) Does the defendant understand that he has a right to trial by jury?

“(4) Does the defendant understand that he is presumed innocent until he is found guilty?

“(5) Is the defendant aware of the permissible ranges of sentences and/or fines for the offenses charged? [and,]

“(6) Is the defendant aware that the sentencing judge is not bound by the terms of any plea agreement tendered, unless he accepts the agreement?” Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007).

Moreover, once a defendant enters a plea of guilty, it is presumed that he was aware of what he was doing. Stork, 737 A.2d at 790. Consequently, defendants are bound by statements they make at their guilty plea colloquy and may not successfully assert any claims that contradict those statements. Muhammad, 794 A.2d at 3 84. Therefore, when the record establishes a guilty plea colloquy was conducted during which the defendant states he understands the nature of the charges against him, the voluntariness of the plea is established and the burden of proving involuntariness rests upon the defendant. Stork, 737 A.2d at 790. Additionally, since the law does not require that the defendant be pleased with the outcome of his guilty plea, the defendant’s mere disappointment in the sentence actually imposed does not represent a manifest injustice. Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa. Super. 2003).

The record in this case reflects the defendant knowingly, intelligently, and voluntarily entered his guilty plea. The defendant participated in a complete and thorough guilty plea colloquy where the court made specific inquiries into each of the relevant areas bearing on the validity of the defendant’s guilty plea. After the court went over each required area of inquiry and asked the defendant if he understood, the defendant stated that he did.

At the defendant’s post-sentence hearing on his motions to withdraw the guilty pleas, the defendant alleged he entered his pleas as a result of his depression, anxiety, and family pressure. However, these assertions are clearly contrary to the statements made by the defendant at his guilty plea colloquy. At the guilty plea colloquy, this court and defense counsel addressed these issues on the record. The defendant expressly stated that it was his decision to plead guilty and that neither any medication he had previously taken nor his underlying diagnosis affected his decision to plead guilty in any way. (Notes of testimony of post-sentence hearing, pp. 12-13.) Because the defendant is bound by statements he makes at the plea colloquy, a contrary assertion made subsequent to his guilty plea is not proper grounds for granting a request to withdraw his plea. Muhammad, 794 A.2d at 378. Moreover, the fact that the defendant may have been “under pressure” from family members to plead guilty does not invalidate his pleas absent additional evidence of incompetence. See Commonwealth v. Myers, 434 Pa. Super. 221, 229, 642 A.2d 1103, 1107 (1994).

Under the totality of the circumstances, the defendant’s guilty pleas were entered into knowingly, voluntarily, and intelligently. The pleas did not result in a manifest injustice. Therefore, the court did not abuse its discretion by denying the defendant’s post-sentence motions to withdraw his pleas.

For the forgoing reasons, this court respectfully requests that the defendant’s appeal be denied.

      .18 Pa.C.S. §3125(a)(1) and (a)(7).

      . 18Pa.C.S. §3122.1.

      . The sexual offender assessment board opined the defendant did not meet the criteria for a sexually violent predator.


author: RUEST, J,

text:
    Commonwealth v. Mueller

      C.P. of Centre County,
    nos. CP-14-CR-0736-2008 and CP-14-CR-2096-2008.

      Nathan L. Boob and Yvette L. Willson, for Commonwealth.

      David Crowley, for defendant.
    January 13, 2010
   RUEST, J,

Before the court are petitioner Robert N. Mueller Jr.’s amended petitions for post-conviction relief (PCRA) filed September 3, 2009 in case number CP-14-CR-2096-2008, and on October 9,2009 in case number CP-14-CR-0736-2008. Ahearing was held on November 24, 2009. Petitioner filed a memorandum in support addressing both petitions, and the Commonwealth filed a brief addressing case number 2096. After a thorough review of the record, the court determines defendant’s petition for post-conviction relief is denied in part and granted in part.

DISCUSSION

To be eligible for relief on a claim of ineffective assistance of counsel under the Post Conviction Relief Act, the petitioner must show, by a preponderance of the evidence, “(1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.” Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). Failure to satisfy any prong of the effectiveness test requires rejection of the claim. Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12 (2007).

Petitioner raised two issues in his PCRA filed in case number CP-14-CR-0736-2008, in which he pled no contest to one count of stalking, a misdemeanor in the first degree. Petitioner alleges trial counsel was ineffective for failing to file a direct appeal and for failing to investigate the facts of the case, and that as a result of this ineffectiveness, petitioner’s guilty plea was not voluntarily, knowingly, and intelligently entered.

Petitioner raises two issues in his PCRA filed in case number CP-14-CR-2096-2008, in which he pled guilty to manufacturing marijuana, a felony. Petitioner alleges trial counsel was ineffective for failing to file a direct appeal and for failing to uncover and discuss with petitioner that there was a viable suppression issue.

Petitioner alleges trial counsel was ineffective for failing to file a direct appeal on both cases. The Pennsylvania Constitution guarantees a direct appeal as of right. See Pennsylvania Constitution, Article V, Section 9. As such the “failure to file or perfect such an appeal results in a denial so fundamental as to constitute prejudice per se.” Commonwealth v. Lantzy, 558 Pa. 214, 225, 736 A.2d 564, 571 (1999). Where counsel has failed to file a direct appeal and “where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal.” Id. at 227, 736 A.2d at 572.

In both of these cases, petitioner alleges that after receiving his sentence he specifically requested that his attorney file a direct appeal. While it is apparent petitioner vacillated over whether to file his appeals, he ultimately instructed his attorney to do so in each case within the 30-day appeal period. As his attorney failed to file the appeals, he was per se ineffective. Therefore, the court finds petitioner is entitled to reinstatement of his appellate rights in both cases nunc pro tunc.

Petitioner also alleges trial counsel was ineffective for failing to investigate the facts of the stalking case. Petitioner avers such an investigation would have revealed information relative to the complaining witness in this case, including that petitioner was friends with her and had loaned her money, that she was in violation of her parole conditions at the time of the alleged stalking, and that the witness was under the influence of heroin when she accused petitioner of stalking her.

Petitioner’s claim is of arguable merit. A thorough investigation of the facts of a case is fundamental to defending against a criminal charge. Trial counsel may have had a strategic basis for not bringing these allegations to light, however, in that he was negotiating a plea agreement on behalf of petitioner and he may have viewed any such facts as extraneous to this effort. Finally, it is unclear whether the discovery of these alleged facts would have resulted in a different outcome. Therefore, the court determines petitioner’s claim for ineffectiveness based on a failure to investigate does not meet the second or third prongs of Kimball.

Petitioner also alleges trial counsel was ineffective for failing to investigate possible suppression issues. Specifically, petitioner alleges trial counsel did not notice that the search conducted on petitioner’s residence in the marijuana case was not conducted pursuant to the search warrant. Absent some exigency or other recognized exception a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause. Commonwealth v. Blasioli, 454 Pa. Super. 207, 217, 685 A.2d 151, 156 (1996); Commonwealth v. Edwards, 735 A.2d 723, 725 (Pa. Super. 1999). Trial counsel conceded that there was evidence on the face of the warrant issued in the marijuana case that raises a viable suppression issue under the Federal and Pennsylvania Constitutions. Trial counsel admitted petitioner specifically asked him if there was any basis to suppress the evidence. Trial counsel advised his client not to pursue a motion to suppress and advised him that if they did pursue such a motion the Commonwealth would seek a mandatory minimum sentence of five years incarceration based on the presence of a firearm in conjunction with the marijuana. Petitioner, with trial counsel’s assistance, bargained for and received a lesser sentence, to be served in county rather than state prison.

Petitioner’s claim is of arguable merit. As to the search warrant, trial counsel had a reasonable basis for not pursuing suppression, however, in doing so would prompt the Commonwealth to break off plea negotiations and pursue a mandatory minimum state prison sentence. Finally, it is unclear whether the outcome of the case would have been different, and whether the evidence would have been suppressed, or allowed, in under some exception. Therefore, the court determines petitioner’s claim for ineffectiveness based on a failure to file a motion to suppress does not meet the second or third prongs of Kimball.

Accordingly, the following is entered:

ORDER

And now, January 13, 2010, the following is hereby ordered:

(1) Petitioner Robert Mueller Jr. ’s claim for ineffective assistance of trial counsel in case number 736 relative to failure to investigate is denied.

(2) Petitioner Robert Mueller Jr. ’s claim for ineffective assistance of trial counsel in case number 736 relative to failure to file an appeal is granted.

(3) Petitioner Robert Mueller Jr. ’s claim for ineffective assistance of trial counsel in case number 2096 relative to failure to investigate is denied.

(4) Petitioner Robert Mueller Jr. ’s claim for ineffective assistance of trial counsel in case number 2096 relative to failure to file an appeal is granted.

(5) Petitioner’s appeal rights to the Pennsylvania Superior Court are reinstated. Petitioner may proceed with his appeals nunc pro tunc, starting from the date of this order.


author: CAMPBELL, J,

text:
    Citibank (South Dakota) N.A. v. Ambrose

      C.P. of Adams County,
    no. 10-S-574.

      Neil Sarker, for plaintiff.

      John L. Perry, for defendant.
    June 8, 2010
   CAMPBELL, J,

Plaintiff filed a complaint on April 6, 2010, alleging that plaintiff furnished consumer credit to defendant by means of a credit card. Plaintiff further alleges that plaintiff kept accurate running records of all debits and credits to the account and that plaintiff mailed monthly statements on the account to defendant, including the statement attached as exhibit Ato the complaint. Additionally, the monthly statements accurately stated the previous balance, debits and credits to the account for the prior billing period. Plaintiff asserts that prior to mailing exhibit A, defendant had made payments on the account for many months, or retained the statement without payment. Plaintiff claims relief based upon an account stated theory of recovery for the sum of $7,746.02, the amount listed on exhibit A that defendant has allegedly failed to pay.

Defendant filed preliminary objections to plaintiff’s complaint and a brief in support of defendant’s preliminary obj ections to plaintiff’s complaint on April 27,2010. Defendant argues that the amended complaint fails to conform to law or rule of court and is deficient for several reasons. First, defendant argues based on the amount allegedly due, $7,746.02, that the initial credit card would have been furnished pursuant to a written agreement. However, plaintiff failed to attach the original application or agreement between the parties, and failed to explain its absence as required by Pa.R.C.P. 1019(h) and (i). Moreover, defendant argues that plaintiff failed to attach any writing containing the terms and conditions that the credit card was allegedly subject to, and failed to explain the absence of such a writing in violation of Pa.R.C.P. 1019(h) and (i). Defendant also argues the complaint is deficient because it does not contain allegations of sufficient specificity to meet the requirements of Pa.R.C.P. 1019(a) and (f). and thus defendant cannot formulate a response. Finally, defendant argues that even if plaintiff is setting forth an account stated basis of recovery, plaintiff has failed to attach an “account in writing” sufficient to create an account stated in violation of Pa.R.C.P. 1019(h), (i), and relevant case law. For the reasons stated below, defendant’s preliminary objections are overruled.

An account stated is an “account in writing, examined and accepted by both parties, which acceptance need not be expressly so, but may be implied from the circumstances.” Robbins v. Weinstein, 143 Pa. Super. 307, 17 A.2d 629, 634 (1941). To plead a cause of action for an account stated, plaintiff must sufficiently plead the following elements: (1) there has been a running account, (2) a balance remains due, (3) the account has been rendered upon the defendant, and (4) the defendant has assented to the account. Rush’s Service Center Inc. v. Genareo, 10 D.&C.4th 445, (Lawrence Cty. 1991). Retention without objection by one party for an unreasonably long time of a statement of account rendered by the other party is a manifestation of assent to the amount shown as an accurate computation of the amount due. Donahue v. City of Philadelphia, 157 Pa. Super. 124, 41 A.2d 879 (1945). A copy of the current statement must be attached to the complaint showing a balance remains due, and the complaint must state that the plaintiff mailed monthly statements to the defendant setting forth the details of the defendant’s account. Citibank (S.D.) N.A. v. King, No. 2007-3412, 2007 WL 4967502 (C.P. Cent. Nov. 9, 2007).

In the present case, defendant’s argument would be persuasive had plaintiff pled a cause of action based on breach of contract. However, plaintiff has set forth a cause of action based on an account stated theory of recovery, and has pled the required elements of an account stated. Plaintiff states in its complaint that it furnished consumer credit to defendant, that it kept accurate records of the account, and that it mailed monthly statements to defendant. Moreover, plaintiff alleges that defendant made payments on the account in the past or retained the statement without payment. Plaintiff has attached a copy of a recent statement to complaint as exhibit A, and thus, this court finds that plaintiff has sufficiently pled a cause of action for an account stated.

For the reasons stated herein, defendant’s preliminary objections are overruled.

ORDER

And now, June 8,2010, defendant’s preliminary objections are overruled. Defendant shall file an answer to the complaint within 20 days of the date of this order.


text:
    Commonwealth v. Sunday

      C.P. of Lawrence County,
    no. 1208 of 2009.

      Kathleen Fee-Baird, assistant district attorney, for Commonwealth.

      David H. Acker, for defendant.
    June 21, 2010
   COX, J.,

Before the court for disposition is the omnibus pretrial motion filed on behalf of the defendant Joshua Scott Sunday, in which he argues the Commonwealth failed to establish a prima facie case that the defendant committed criminal attempt to commit involuntary deviate sexual intercourse, criminal attempt to commit sexual assault, unlawful contact with a minor, criminal attempt to commit indecent assault, indecent assault, harassment and corruption of minors.

On October 23, 2009, the victim, A.M., was babysitting for her brother at his home when she met the defendant, who lived near her brother’s residence. A.M. was bom on March 27, 1996, and at the time of these incidents she was 13 years old. The defendant was 26 years old at that time. The defendant entered the residence while the victim’s brother was still present. The victim initially met the defendant while she was using her brother’s computer and she had a picture of her friend on the screen. The defendant indicated that he wanted to “get together” with the victim’s friend and offered to drive the victim to her friend’s residence. It must be noted that the defendant was informed of the victim’s age when they first met.

Although it is unclear as to the sequence of events, it appears that the interactions between the victim and the defendant are as follows: At the preliminary hearing, A.M. explained that the defendant made her feel uncomfortable on several occasions. During the first occurrence, the defendant asked A.M. three times, twice as he was leaving the residence, if she wanted to play a game called “just the tip.” A.M was unaware of what that phrase meant at the time the defendant made the request. She subsequently discovered that it meant he wanted to place his penis in her mouth. On another occasion, while sitting together on the front porch of A.M.’s brother’s residence, the defendant placed A.M.’s leg on his chest, pulled up her pant leg and ran his hand across her bare leg. A.M. also testified that the defendant stated, you shaved, you’re a proper woman or proper girl. Additionally, the defendant removed A.M. ’s sock and told her that he had a foot fetish. In response, A.M. immediately pulled her foot away from the defendant and she walked into the house. A.M. also recalled that the defendant pulled up her pant leg and asked if he could have a taste, which indicated that he wanted to perform oral sex on her. It was not fully developed at the preliminary hearing whether these incidents occurred on the same day. However, A.M. testified at the preliminary hearing that the defendant did not try to physically force her to engage in sexual activity.

The defendant was subsequently charged with criminal attempt to commit involuntary deviate sexual intercourse with a person less than 16 years of age, criminal attempt to commit sexual assault, corruption of minors, unlawful contact with a minor, criminal attempt to commit indecent assault-person less than 16 years of age, indecent assault-person less than 16 years of age and harassment. OnNovember 12,2009, a preliminary hearing was held before Magisterial District Judge Melissa A. Amodie. The charges were bound over to this court and the defendant now contends that the Commonwealth failed to establish a prima facie case for each count on the information.

Where a criminal defendant seeks to challenge the sufficiency of the evidence presented at his preliminary hearing, he may do so by filing a writ of habeas corpus. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1991). “The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime.” Commonwealth v. Fox, 422 Pa. Super. 224, 234, 619 A.2d 327, 332 (1993) (quoting Commonwealth v. Tyler, 402 Pa. Super. 429, 433, 587 A.2d 326, 328 (1991)).

In evaluating an accused’s entitlement to pretrial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). In a pretrial habeas corpus proceeding, as in a preliminary hearing, the Commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412 (1990). This doesnotmean that the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 331 Pa. Super. 51, 479 A.2d 1073 (1984). The standard in determining whether a defendant is properly held for court is: (a) that the record reveals a prima facie showing that a crime or crimes have been committed; and (b) that the defendant was in some way legally responsible. Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246 (1989). Aprima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Commonwealth v. Fountain, 811 A.2d 24 (Pa. Super. 2002).

The Commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). The weight and credibility of the evidence is not a factor at this stage, the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Id. As a result of the Commonwealth bearing the minor burden of establishing a prima facie case, a witness’ credibility is not an issue at a preliminary hearing. Commonwealth v. Fox, 422 Pa. Super. 225, 619 A.2d 327 (1993). The committing magistrate is precluded from considering the credibility of a witness who is called upon to testify during the preliminary hearing. Liciaga, supra. Neither is it for the court ruling on the motion for writ of habeas corpus to assess the credibility of the witnesses presented at the preliminary hearing. Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002).

The defendant is charged with several counts of criminal attempt, which is defined by 18 Pa.C.S. §901. That statute states:

“(a) Definition of attempt — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.”

The test to determine what constitutes a substantial step broadens the scope of attempt liability by concentrating on the acts of the defendant and not the acts remaining to be completed before the actual commission of the crime. Commonwealth v. Gilliam, 273 Pa. Super. 586, 589-90, 417 A.2d 1203, 1205 (1980) (citing Commonwealth v. Howard, 248 Pa. Super. 246, 375 A.2d 79 (1977)).

The first charge of criminal attempt is involuntary deviate sexual intercourse, which is defined as:

“(a) Offense defined. — A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant:...

“(7) who is less than 16 years of age and the person is 4 or more years old.” 18 Pa.C.S. §3123(a)(7).

Deviate sexual intercourse means, “Sexual intercourse per os or per anus between human beings and any form of sexual intercourse with an animal. The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures.” 18 Pa.C.S. §3101.

In Commonwealth v. Jacob, 867 A.2d 614 (Pa. Super. 2005), the appellant was charged with criminal attempt to commit involuntary deviate sexual intercourse arising from sexually explicit internet communications with a purported 12-year-old girl. In that case, a county detective posed as the 12-year-old girl on an internet chat room for the Philadelphia area, in which she met the appellant. He soon asked if the girl would like to cuddle and kiss to which she replied that she never kissed a boy. The appellant asked to be her first. The next conversation consisted of the appellant asking whether the girl was upset that he was not a virgin. He also stated that he could teach her that one day and they planned a meeting at his residence. The following day, the appellant inquired as to whether the girl wanted him to teach her “how to go down on a guy.” Additionally, he described cunnilingus to the girl and stated that he could teach her that as well. The appellant subsequently organized a meeting with the girl at a local mall and he gave an accurate description of himself. Police officers obtained a search warrant, seized the appellant’s computer and found remnants of the conversations. They also searched the appellant’s vehicle and discovered computer-generated directions from the appellant’s place of employment to the mall, three condoms, a roll of duct tape and a bag of candy. The appellant was arrested and charged with several offenses, including criminal attempt to commit involuntary deviate sexual intercourse. He was convicted of attempted involuntary deviate sexual intercourse and filed a timely appeal challenging the sufficiency of the Commonwealth’s evidence.

The appellant claimed he did not take a substantial step toward the commission of his attempt-related crimes. The Jacob court noted that the more clearly the intent to commit the offense is proven the less proximate the acts need to be to the actual completion of the crime. Id., 867 A.2d at 618 (citing Hatch v. [Superior Court] People, 80 Cal.App.4th 170, 187-88, 94 Cal. Rptr.2d 453 (2000)). Additionally, the court explained, “child molesting is a sufficiently serious crime to justify drawing a fairly early line to identify and sanction behavior as an attempt.” Id., 867 A.2d at 618 (quoting Ward v. State, 528 N.E.2d 52, 54 (Ind. 1988)). The Jacob court reasoned that the appellant introduced sexually explicit topics, including fellatio, cunnilingus and sexual intercourse, to a purported 12-year-old girl and he arranged a meeting with the girl. Id., 867 A.2d at 619. The appellant obtained directions to the mall and appeared at the location on time. Id. The court held that the appellant performed a substantial step towards completing the offenses charged and the Commonwealth presented sufficient evidence to support a conviction for criminal attempt to commit involuntary deviate sexual intercourse. Id., 867 A.2d at 619.

Next, the defendant is charged with criminal attempt to commit sexual assault. The crime of sexual assault has been defined as, “Except as provided in section 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual intercourse), a person commits a felony of the second degree when that person engages in sexual intercourse or deviate sexual intercourse with a complainant without the complainant’s consent.” 18 Pa.C.S. §3124.1.

In Commonwealth v. Spetzer, 722 A.2d 702 (Pa. Super. 1998), rev’d on other grounds, 572 Pa. 17, 813 A.2d 707 (2002), the appellant was convicted of criminal attempt to commit sexual assault because he made arrangements to have sexual intercourse with his stepdaughters, which included procuring a hotel room and a box of condoms. The appellant argued that there was insufficient evidence to establish that he performed a substantial step in committing sexual assault. The Spetzer court reasoned, “Appellant believed the planned sexual encounter was underway, made efforts to facilitate the encounter, and went as far as to rent a hotel room and wait with a box of condoms.” Id., 722 A.2d at 715. The court considered that to be a substantial step toward the commission of the crime. Id. Additionally, the Commonwealth presented intercepted telephone calls which indicated that the appellant intended to engage in statutory sexual assault of his stepdaughters. Id., 722 A.2d at 716. Therefore, the Spetzer court held that the Commonwealth presented sufficient evidence to establish the charge of criminal attempt to commit sexual assault. Id.

The defendant is also charged with criminal attempt to commit indecent assault and indecent assault. The crime of indecent assault is defined as:

“(a) Offense defined. — A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:

“(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.” 18 Pa.C.S. §3126(a)(8).

Indecent contact is, “Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S. §3101.

In Commonwealth v. White, 232 Pa. Super. 176, 335 A.2d 436 (1975), the appellant approached the victim, an 8-year-old girl, while she was playing outside of her house and shone a flashlight in her face. He also placed his hand over her mouth and carried her back to an abandoned house located on the same block as the victim’s residence. The appellant held the victim against a wall by her shoulders and proceeded to pull her skirt up approximately six inches. The victim saw a neighbor walking near the abandoned house and she screamed for his help. When the neighbor approached the house, the appellant immediately fled. The appellant was convicted of attempted indecent assault and he filed an appeal, in which he argued that the evidence was insufficient to constitute that crime. The Pennsylvania Superior Court affirmed the conviction and reasoned:

“[T]he appellant’s act of carrying the complainant to the back of an abandoned house; holding her shoulders, threatening to grab her, and lifting her skirt up approximately six inches, all of which occurred against the complainant’s will, demonstrates that the appellant had the requisite intent to commit, at the minimum, an indecent assault and, furthermore, had taken substantial steps towards the completion of the reprehensible act.” Id., 232 Pa. Super, at 181, 335 A.2d at 438.

In the case sub judice, A.M., who was a 13-year-old female at the time of the incidents, was baby-sitting for her brother when she met the defendant, who was 26 years old. While A.M. was using her brother’s computer, the defendant approached her and noticed a picture of her friend on the computer screen. He indicated that he wanted to “get together” with A.M.’s friend and he offered to drive A.M. to the friend’s residence. On several other occasions, the defendant made A.M. uncomfortable as well. First, he asked A.M. three times, twice as he was leaving the victim’s brother’s residence, if she wanted to play a game called “just the tip.” A.M. subsequently discovered that it meant he wanted to place his penis in her mouth. On another occasion, the defendant and A.M. were seated on the front porch and the defendant placed A.M.’s leg on his chest. He then pulled up her pant leg and ran his hand across her leg. A.M. testified at the preliminary hearing that the defendant stated, you shaved, you’re a proper woman or proper girl. The defendant also removed A.M.’s sock and told her that he had a foot fetish. In response, A.M. immediately pulled her foot away from the defendant and she walked into the residence. A.M. also recalled that the defendant pulled up her pant leg and asked if he could have a taste, which indicated that he wanted to perform oral sex on her.

In regards to the charge of criminal attempt to commit involuntary deviate sexual intercourse, it appears the Commonwealth presented sufficient evidence that the defendant performed a substantial step to perpetrate that offense. The defendant clearly introduced sexually explicit topics, which included fellatio, cunnilingus and his apparent foot fetish. He also indicated his desire to perform sexual acts on A.M., which is similar to the Jacob case. Moreover, the defendant was in the victim’s brother’s residence with A.M. and there were no other adults present when the aforementioned incidents occurred. Additionally, the Jacob court explained that child molesting is a serious offense and the line to identify and sanction conduct occurs very early on in an encounter, such as the incidents in the current matter. The defendant’s attempts to convince A.M. to have sexual contact with him were sufficient to establish a prima facie case for attempted involuntary deviate sexual intercourse in accordance with the court’s decision in Jacob.

Also, the defendant is charged with criminal attempt to commit sexual assault. The defendant made several attempts to convince A.M. to have sexual contact with him. The encounters occurred at the victim’s brother’s residence where A.M. was alone with the defendant while she was baby-sitting. The defendant tried to take advantage of that situation to coax A.M. into having sexual relations with him. His attempts included asking A.M. to play “just the tip”, he also pulled up her pant leg, he touched her bare leg and noticed that she shaved her legs. Moreover, the defendant pulled up A.M.’s pant leg and asked if he could have a taste indicating that he wanted to perform oral sex on her. As in the Spetzer case, the defendant had the opportunity to convince A.M. to have sexual contact with him and he attempted to capitalize on that opportunity, but was unsuccessful. Also, the defendant made several comments indicating that he wanted to have sexual contact with A.M., similar to the telephone conversations in Spetzer. Therefore, the Commonwealth has established a prima facie case to support the charge of criminal attempt to commit sexual assault in accordance with the court’s ruling in Spetzer.

The defendant is charged with criminal attempt to commit indecent assault as well. On several occasions, the defendant pulled up A.M.’s pants to touch her bare leg. He also removed A.M.’s sock and informed her that he had a foot fetish. Moreover, he pulled up her pant leg and asked if he could have a taste, which indicated that he wanted to perform oral sex on A.M. Again, it must be noted that the defendant and A.M. were left alone in the residence when these incidents occurred. In White, the appellant moved the victim to an abandoned house and pulled up her skirt approximately six inches. In the current matter, the defendant and A.M. were already alone in the residence and the defendant moved and manipulated A.M.’s clothing to entice her to engage in sexual contact with him. As a result, the Commonwealth has presented sufficient evidence to establish a prima facie case that the defendant committed attempted indecent assault.

The defendant is charged with unlawful contact with a minor as well. Unlawful contact with a minor is set forth in 18 Pa.C.S. §6318, which states:

“(a) Offense defined. — A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

“(1) Any of the offenses enumerated in chapter 31 (relating to sexual offenses).”

In Commonwealth v. Oliver, 946 A.2d 1111 (Pa. Super. 2008), the appellant was convicted by a jury of two counts of involuntary deviate sexual intercourse and four counts of unlawful contact with a minor arising out of several incidents involving his girlfriend’s daughters. The appellant resided with his girlfriend, and her daughters also resided with appellant and their mother during the summer months. One of the daughters, who was 11 or 12 years old, entered her mother’s bedroom to watch television while her mother was sleeping. The appellant was reclining on the bed at that time. The child sat at the end of the bed and the appellant nudged her back with his foot and pulled the blankets below his bellybutton. The appellant also pointed toward his penis and raised his eyebrows. The child looked away and continued to watch television. The appellant nudged her again with his foot and the child left the bedroom. On another occasion, the child asked the appellant for a dollar and he replied that she could have had more if she “would have did [sic] this for me ... You know what I mean, or am I too big for you?” On appeal the appellant argued that the evidence adduced at trial was insufficient to sustain a conviction for unlawful contact with a minor.

The Oliver court explained that the child was clearly a minor as she was under the age of 18 and the appellant clearly contacted her through his words and gestures. Id. 946 A.2d at 1114. The court also concluded that the contact was undertaken for the purpose of engaging in prohibited activity as the appellant nudged the child with his foot, pulled the blankets below his bellybutton and pointed toward his penis. Id. The appellant also informed the child that she could have received $40 “‘if [she] would have did [sic] this for [him],’ adding, ‘Or am I too big for you?”’ Id. Thus, the Oliver court held that the evidence was sufficient to support a conviction for unlawful contact with a minor because the appellant made gestures and statements for the sole purpose of getting the child to perform oral sex. Id.

In the case currently before the court, the defendant made contact with A.M. in furtherance of his desire to have sexual contact with her. First, the defendant asked A.M. if she wanted to play “just the tip”, which was a way of asking her if she wanted to perform oral sex on the defendant. Additionally, the defendant pulled up A.M.’s pants and touched her leg, which led to the defendant telling A.M. that she is a proper woman or proper girl because she shaves her legs. On a separate occasion, the defendant pulled up A.M.’s pant leg and asked her if he “could have a taste,” which indicated that he wanted to perform oral sex on her. According to the Oliver decision, an adult making sexual comments and gestures to solicit sexual contact from a child is sufficient to support the charge of unlawful contact with a minor. In Oliver, the appellant nudged the victim with his foot and made gestures, which included pulling the blankets down below his bellybutton and pointing toward his penis. Similarly, the defendant made physical contact with A.M. to gain her attention and he made comments indicating that he wanted to have sexual contact with her. Thus, the Commonwealth has presented sufficient evidence to establish that the defendant had unlawful contact with a minor.

Next, the defendant is charged with the crime of harassment. “A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures.” 18 Pa.C.S. §2709(a) (4).

In Commonwealth v. Duncan, 239 Pa. Super. 539, 363 A.2d 803 (1976), the appellant approached the victim as she was lying on a couch in the lounge area of a dormitory. While in close proximity to the victim, the appellant made repeated requests that the victim permit him to engage in an illegal sexual act. The victim asked him to leave on several occasions, but he persisted. After being asked to leave three or four times, the appellant finally stopped making the requests. It must be noted that the victim made it obvious from the beginning that she wanted the appellant to leave her alone. The Duncan court explained that “a defendant’s intent to commit a criminal act may be inferred from his words or actions when viewed in the light of all the attendant circumstances.” Id., 239 Pa. Super, at 543-44, 363 A.2d at 806 (citing Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1971); Commonwealth v. Tyrell, 405 Pa. 210, 174 A.2d 852 (1961); and Commonwealth v. White, 229 Pa. Super. 280, 323 A.2d 757 (1974)). The court held that an examination of the circumstances revealed the appellant’s repeated requests and rebuttals demonstrated that the appellant committed the crime of harassment. Id., 239 Pa. Super, at 544, 363 A.2d at 806.

Also in Commonwealth v. Evans, 299 Pa. Super. 529, 445 A.2d 1255 (1982), the victim, who ran a social services program, met the appellant while he was attending the program. Late in the evening, the victim’s doorbell rang and the victim answered it by using an intercom system. The appellant identified himself and began saying some offensive things, which included that the victim was having a sexual relationship with one of the clients. The victim called the police immediately and the appellant was arrested. Additionally, the victim received numerous notes and letters containing appellant’s signature and telephone number that were offensive as well.

The Evans court stated that the Commonwealth proved, beyond a reasonable doubt, the existence of the necessary elements of harassment, which are as follows:

“(1) intent to harass, annoy or alarm another person; (2) conduct which has ‘no legitimate purpose’; and (3) conduct which alarms or seriously annoys the average person.” Id., 299 Pa. Super, at 535, 445 A.2d at 1258. Therefore, the trier of fact could reasonably find that the appellant’s activities were intended to harass the victim without any legitimate purpose. Id.

In the current case, the defendant repeatedly made sexual advances towards A.M similar to the appellant in Duncan. Likewise, A.M. attempted to discourage the defendant by repeatedly rejecting his advances. When the defendant removed A.M.’s sock and informed her that he had a foot fetish, A.M. immediately pulled her foot away and went back into the residence. According to her testimony at the preliminary hearing, A.M. felt very uncomfortable because of the defendant’s comments and actions. The Duncan case indicates that the criminal intent necessary to support the charge of harassment may be inferred from the words and actions of the defendant. Clearly, the defendant’s repeated comments towards A.M. did not serve a legitimate purpose and communicated lewd, lascivious and obscene words. Therefore, the Commonwealth has presented sufficient evidence to establish that the defendant committed the crime of harassment.

Finally, the defendant is charged with corruption of minors, which is defined as “(1) Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age...” 18 Pa.C.S. §6301(a)(l). The court in Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001), held that the Commonwealth presented sufficient evidence to support a conviction for corruption of minors where the appellant was over the age of 18 and he requested that the victim, who was under the age of 18, take photographs of herself nude and masturbating. The appellant also encouraged the victim to engage in a sexual relationship with him. The court determined that the acts of the appellant were clearly sufficient to establish that he committed the offense of corruption of minors. Id., 771 A.2d at 834-35. It must be noted that it is not required that the victim actually suffer an injury to establish that the defendant committed corruption of minors. Commonwealth v. Berry, 355 Pa. Super. 243, 249, 513 A.2d 410, 413 (1986). Additionally, consent is not an element to this offense and whether the victim provided consent is not a consideration in determining if the defendant corrupted a minor. Commonwealth v. Decker, 698 A.2d 99, 100 (Pa. Super. 1997) (citing Commonwealth v. Miller, 441 Pa. Super. 320, 657 A.2d 946 (1995)).

Similar to the appellant’s actions and requests in Proetto, the defendant in the current case asked A.M. several times to engage in sexual activities with him. First, the defendant asked A.M. to play the game “just the tip”, which A.M. subsequently discovered meant that the defendant wanted her to perform oral sex. Additionally, the defendant pulled up A.M.’s pant leg and asked her if he could have a taste. This was the defendant’s way of asking A.M. if he could perform oral sex on her. Clearly, the defendant made comments, requests and actions that tend to corrupt the morals of a minor; therefore the Commonwealth has presented sufficient evidence to establish that the defendant committed the offense of corruption of minors.

For the reasons set forth in this opinion, the defendant’s omnibus pretrial motion is denied.

ORDER

Now June 21, 2010, this case being before the court on March 3 2010, for a hearing on the omnibus pretrial motion filed by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Kathleen Fee-Baird, Esquire, assistant district attorney for the County of Lawrence and the defendant, Joshua Scott Sunday, represented by counsel, David H. Acker, Esquire and after a hearing held, and then both counsel requesting and being given the opportunity to submit briefs, and after a consideration of the testimony and briefs presented and submitted; by counsel, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the omnibus pretrial motion filed by the defendant is hereby denied.

(2) The defendant shall be listed for the August 2010 criminal jury trial term.

(3) The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Kathleen Fee-Baird, Esquire and David H. Acker, Esquire.

      . The victim’s brother’s identity was omitted to protect the victim’s identity.

      . 18 Pa.C.S. §901(a).

      . 18 Pa.C.S. §901(a).

      . 18 Pa.C.S. §6301(a)(l).

      . 18 Pa.C.S. §6318(a)(1).

      . 18 Pa.C.S. §901(a).

      . 18 Pa.C.S. §3126(a)(8).

      . 18 Pa.C.S. §2709(a)(4).