author: ASHWORTH, J,

text:
    Commonwealth v. Woomer

      Karen L. Mansfield, assistant district attorney, for Commonwealth.

      Christopher M. Patterson, for defendant.
    March 10, 2009
   ASHWORTH, J,

Presently before this court are defendant Joy M. O’Shea-Woomer’s petitions for writ of habeas corpus and for bail. For the reasons set forth below, this court must deny both petitions.

I. PROCEDURAL BACKGROUND

On October 8,2008, defendant was charged with one count of criminal homicide, 18Pa.C.S. §2501, one count of drug delivery resulting in death, 18 Pa.C.S. §2506, and one count of delivery of controlled substance, 35 P.S. §780-113(a)(30). The criminal complaint alleges that on September 27, 2002, defendant “did intentionally, knowingly, recklessly or negligently cause the death of another human being . . . [when defendant] did administer the drug morphine to victim Brent Weaver which resulted in his death while under her care. There was no prescription by a doctor for Brent Weaver to be given morphine and [defendant] was not authorized or permitted to administer the drug to the victim.” (emphasis in original)

Defendant was arrested and preliminarily arraigned on October 8, 2008. After her arraignment, defendant was remanded to the Lancaster County Prison without bail. The magisterial district judge did not set bail on the basis that the charge against O’Shea-Woomer was anon-bailable offense. A preliminary hearing was held before Magisterial District Judge David E. Brian on December 1, 2008. At the conclusion of the hearing, Judge Brian found that the Commonwealth had established a prima facie case as to all offenses and ordered defendant held for court.

On December 15,2008, defendant presented, in chambers, a petition to schedule a bail hearing. Pennsylvania Rule of Criminal Procedure 520(A) requires that bail before verdict shall be set in all cases as permitted by law. The comment to this rule references Article I, Section 14 of the Pennsylvania Constitution, as amended November 8, 1998, which provides that an accused is entitled to bail “except for capital offenses or for offenses for which the maximum sentence is life imprisonment ... when the proof is evident or presumption great.

The court heard oral argument on the bail petition at which time defense counsel claimed the Commonwealth failed to produce any evidence at the preliminary hearing that the alleged homicide was an intentional killing. Defense counsel argued that the evidence presented by the Commonwealth, viewed in the light most favorable to the Commonwealth, established murder in the third degree only. The Commonwealth claimed that the evidence against defendant could give rise to first- or second-degree murder.

Insofar as many of defense counsel’s arguments were tantamount to arguments presented in a habeas corpus petition, an order was entered on December 16, 2008, directing defendant to file a petition for writ of habeas corpus on or before December 24,2008, and scheduling a hearing on both petitions for February 11, 2009. The habeas corpus petition was timely filed by defendant and the Commonwealth filed a response.

When the hearing convened on February 11,2009, the Commonwealth asked the court to take judicial notice of the information contained in the affidavit of probable cause, as well as the testimony from the preliminary hearing. Additionally, the Commonwealth introduced the autopsy report of Wayne K. Ross M.D., Lancaster County’s forensic pathologist, and the expert report of Robert A. Middleberg Ph.D., vice president of quality assurance and laboratory director for National Medical Services. The court deferred its ruling, allowing the parties to file briefs in support of their positions. The briefs having been filed, this matter is now ripe for disposition.

II. DISCUSSION

A. Admissibility of the Expert Report of Dr. Middleberg

Initially, defendant objects to the admission of the hearsay report of forensic toxicologist, Dr. Middleberg, for purposes of establishing a prima facie case. When considering the use of hearsay evidence during a preliminary hearing, I must keep in mind the purpose of a preliminary hearing: credibility is not an issue at a preliminary hearing.” Commonwealth v. Fox, 422 Pa. Super. 224, 234, 619 A.2d 327, 332 (1993). See also, Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 264, 566 A.2d 246, 248 (1989) (magistrate is precluded from considering the credibility of a witness who is called upon to testify during the preliminary hearing); Commonwealth v. Tyler, 402 Pa. Super. 429, 434, 587 A.2d 326, 328 (1991) (credibility is not an issue at a preliminary hearing). A preliminary hearing is a much less searching exploration into the merits of the case. Fox, supra at 234, 619 A.2d at 332 (citing Barber v. Page, 390 U.S. 719, 725 (1968)). See also, Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004). When considering the limited function of a preliminary hearing and the fact that the magisterial district judge is precluded from making credibility determinations, it makes little sense to require the personal appearance of witnesses such as pathologists, chemists, doctors, firearms experts, etc., to reiterate orally their written findings.

“The preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual’s right against an unlawful arrest and detention. At this hearing, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. It is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt. In order to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. McBride, 528 Pa. 153, 157-58, 595 A.2d 589, 591 (1991). (citations omitted)
“Since the Commonwealth merely bears the burden of establishing a prima facie case against the defendant,

Accordingly, our appellate courts have long recognized and approved the use of hearsay evidence to establish a prima facie case at a preliminary hearing, especially where there is testimony that the source of the hearsay will be available to testify at trial. See Commonwealth v. Troop, 391 Pa. Super. 613, 622, 571 A.2d 1084, 1088-89 (1990); Commonwealth v. Davis, 308 Pa. Super. 204, 214, 454 A.2d 92, 97 (1982); Commonwealth v. Branch, 292 Pa. Super. 425, 428-29, 437 A.2d 748, 750 (1981); Commonwealth v. Rick, 244 Pa. Super. 33, 37, 366 A.2d 302, 304 (1976). In Troop, the court noted that “the difference in purpose between a preliminary hearing and a trial dictates a different enforcement of the rules of evidence.” Supra at 621, 571 A.2d at 1088-89.

Although the case law establishes that hearsay evidence may be admitted in a preliminary hearing, the law is equally clear that hearsay evidence alone may not be the basis for establishing a prima facie case in a preliminary hearing. See Jackson, supra at 1257; Tyler, supra at 433-34, 587 A.2d at 328 (citing Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 417, 581 A.2d 172, 173 (1990) (plurality opinion) (hearsay testimony, standing alone, may not constitute sufficient evidence to establish a prima facie case at a preliminary hearing))-

In the instant case, Dr. Middleberg’s hearsay report, proffered to establish the timing of the morphine administration to the victim, is not the sole evidence before this court, as was the case in Buchanan. There is the additional preliminary hearing testimony of Dr. Ross, Officer Jennifer Kulicki, Carol Weaver, Mark Weaver, Detective Joseph Geesey and Detective Paul Fitzsimmons, as well as the affidavit of probable cause and autopsy report which were introduced at the habeas corpus proceeding. Thus, this is not a case where the hearsay evidence alone is being offered to establish a prima facie case. Rather, the Commonwealth is seeking to enter the report as part of the totality of evidence submitted in order to establish a prima facie case to support the charges of criminal homicide, drug delivery resulting in death, and delivery of a controlled substance.

Next, defendant contends that the introduction of Dr. Middleberg’s expert report violates her right to confrontation. Defendant cites the plurality decision in Buchanan, supra at 419,581 A.2d at 175, for the proposition that “the rights to confrontation and cross-examination are applicable at a preliminary hearing.” (See defendant’s brief at 2.) However, the United States Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987), observed that the right to confrontation is a trial right. Our Superior Court has consistently relied upon Ritchie in finding that an accused’s right to confrontation is not violated by the admission of hearsay at the preliminary hearing stage of a criminal proceeding. See for example, Commonwealth v. Herrick, 442 Pa. Super. 412, 429, 660 A.2d 51, 60 (1995); Tyler, supra at 434, 587 A.2d at 328; Commonwealth v. Byuss, 372 Pa. Super. 395, 397, 539 A.2d 852, 854 (1988).

As noted by defendant, however, the Pennsylvania Supreme Court has not yet answered the question as to what extent the admission of hearsay violates a defendant’s right to confrontation at a preliminary hearing. Defendant cites to Crawford v. Washington, 541 U.S. 36 (2004), to support her argument that failure of Dr. Middleberg to testify at the habeas corpus hearing violates defendant’s right to confrontation. In Crawford, the United States Supreme Court held that the confrontation clause of the Sixth Amendment of the United States Constitution prohibits the use at trial of testimonial hearsay obtained by law enforcement officers against a criminal defendant, even if such hearsay is reliable, unless the defendant has the opportunity to cross-examine the out-of-court declarant. Id. at 53-54. The Pennsylvania cases that have analyzed the Crawford decision have consistently held that the Sixth Amendment right to confrontation is a trial right distinct from pretrial proceedings. See for example, Commonwealth v. King, 959 A.2d 405, 415-16 (Pa. Super. 2008) (“Under Crawford, no prior testimonial statement made by a declarant who does not testify at the trial may be admitted against a defendant unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination.” (emphasis added)); In re S.R., 920 A.2d 1262, 1265 (Pa. Super. 2007) (same). Defendant has yet to go to trial; as such, her Sixth Amendment right to confront adverse witnesses has not been triggered. Defendant may raise this issue again at the time of trial if the Commonwealth attempts to admit this hearsay report without calling Dr. Middleberg to testify.

Defendant next argues that use of hearsay evidence is prohibited when used to establish an element of a criminal prosecution. Specifically, defendant claims the Commonwealth has attempted to introduce Dr. Middleberg’s expert report to establish an intentional killing. (See defendant’s brief at 2.) It is well-settled that “[i]f [the evidence is] offered to prove an essential element of the crime or connect the defendant directly to the commission of the crime, then [the evidence] must be proved through persons having personal knowledge of the element or connection and such persons must be available to testify for cross-examination” or the confrontation clause is violated. Commonwealth v. McCloud, 457 Pa. 310, 314-15, 322 A.2d 653, 656 (1974) (quoting State v. Matousek, 287 Minn. 344, 350, 178 N.W.2d 604, 608 (1970)).This principle, however, is applicable at the trial stage, not at the preliminary hearing stage of the criminal proceedings.

Pursuant to McCloud, Dr. Middleberg’s hearsay report alone could not be used to establish an element of this criminal prosecution were this case to proceed to trial, absent a compelling necessity for his unavailability. However, at this stage in the proceedings, there is no violation of defendant’s right to confrontation.

Based upon the foregoing, I find that the expert report of Dr. Middleberg is admissible for purposes of establishing a prima facie case.

B. Petition for Writ of Habeas Corpus

In her habeas corpus petition, defendant seeks relief on two grounds. First, she claims that the evidence was insufficient to establish a prima facie case of murder of the first, second or third degree. Second, she claims that the Commonwealth failed to prove a prima facie case of drug delivery resulting in death or delivery of a controlled substance. (See defendant’s petition at ¶¶5, 6.) In her brief, however, defendant has limited her argument to the sole issue of whether the Commonwealth has met its burden of establishing a prima facie case of first-degree homicide based upon all evidence submitted in the instant case. (See defendant’s brief at 3.) I will, nonetheless, address all issues raised in defendant’s petition for writ of habeas corpus.

It is well-settled that the method for testing a pretrial finding of a prima facie case is by writ of habeas corpus. Commonwealth v. Carroll, 936 A.2d 1148, 1152 (Pa. Super. 2007).

“To demonstrate that a prima facie case exists, the Commonwealth must produce evidence of every material element of the charged offense(s) as well as the defendant’s complicity therein. In an effort to meet its burden, the Commonwealth may utilize the evidence presented at the preliminary hearing and also may submit additional proof. Proof beyond a reasonable doubt is not required at the habeas stage, but the Commonwealth’s evidence must be such that, if accepted as true, it would justify a trial court in submitting the case to a jury. Additionally, in the course of deciding a habeas petition, a court must view the evidence and its reasonable inferences in the light most favorable to the Commonwealth. Suspicion and conjecture, however, are unacceptable.” Id. (citations omitted)

Thus, my purpose is not to determine the accused’s guilt but to evaluate if sufficient probable cause exists to require the accused to stand trial.

Viewed most favorably to the Commonwealth, the evidence from the preliminary hearing and the habeas corpus hearing (including the affidavit of probable cause, the autopsy report and the Middleberg report) reveals the following facts. Brent Weaver suffered from cerebral palsy, a seizure disorder and spastic paraplegia. (Notes of testimony (N.T.), preliminary hearing at 25, 33.) He was unable to walk or talk, although he could verbalize sounds. (Id. at 25,33,34-35.) He had recently had surgery at duPont Hospital in Delaware to correct a curvature of his spine and he was showing signs of improvement with regard to his seizures. (Id.)

Brent required full-time care. (N.T., preliminary hearing at 25.) His mother, Carol Weaver, provided for Brent from after school until 12 a.m., at which time a nurse from Bayada Nurses Home Care Specialists would come to the home and stay until 8 a.m. (Id. at 26.) The Weavers had been using these nursing services since 2001. (Affidavit of probable cause at ¶8.)

Brent was fed through a “G-tube” or “feeding tube.” (N.T., preliminary hearing at 26.) His mother was the sole person responsible for his feedings. (Id.) These feedings generally occurred around the clock, with the feeding pump administering two to three ounces of food an hour. (Id. at 28.)

On September 26, 2002, Mrs. Weaver administered her son’s evening medications — which did not include morphine — at approximately 8:30 p.m. (N.T., preliminary hearing at 39; affidavit of probable cause at ¶13.) His twice daily medications were inserted directly into Brent’s feeding tube. (N.T., preliminary hearing at 40.) The feeding pump would be turned off and the food stopped while the medications were administered. (Id.) Turning the feeding pump off would deactivate the alarm and when the pump was turned on again, it would make a beep. (Id. at 40-41.)

Brent was put to bed by his mother at 9 p.m., at which time she hooked up the feeding tube. (N.T., preliminary hearing at 27, 36.) He was tired but otherwise “fine”— “laughing, happy and acting normal[ly].” (Id. at 28; affidavit of probable cause at ¶ 13.) He fell asleep that night without a problem. (Id.) Brent’s usual night nurse, Melissa Rice, was unavailable that evening and a substitute was sent in her place, Joy O’Shea-Woomer, a licensed practical nurse and the defendant in this case. (N.T., preliminary hearing at 28, 35.) Mrs. Weaver had met defendant approximately six months prior when defendant “shadowed” Brent’s regular nurse, Ms. Rice. (Id. at 35-36; see also, 53.)

Mrs. Weaver testified that the defendant arrived “between 10:30 and 11 p.m.,” (N.T., preliminary hearing at 29; affidavit of probable cause at ¶13.) Both she and her husband, and their other two children, then ages 7 and 9, were all asleep on the second floor of the house at that time. (Id. at 27,29-30.) Mrs. Weaver heard defendant enter the house so she went downstairs to meet her and noted she was carrying a “couple bags.” (Id. at 29, 39.) Mrs. Weaver explained to defendant that her son had had surgery three months prior and that he might be uncomfortable during the night. (Id. at 30.) However, Mrs. Weaver cautioned defendant that if she felt he needed any medication, even Tylenol, she was to call Mrs. Weaver first as Mrs. Weaver was the only person who administered medications to her son. (Id. at 30, 41.)

Brent’s bedroom was on the first floor and Mrs. Weaver showed defendant where he was and discussed with her his feeding pump but defendant “seemed to not be that interested.” (N.T., preliminary hearing at 30.) Defendant was supposed to sit in the family room during her shift, which allowed a view into Brent’s bedroom. There was also a baby monitor in the family room so the nurse could hear any noises in Brent’s bedroom. (Id. at 30, 37, 43.) After giving her instructions to defendant, Mrs. Weaver returned to bed and did not come back downstairs the rest of the night. (Id. at 30-31.)

At 6 a.m., the Weaver’s alarm went off and Mrs. Weaver stated that she remained in bed for two or three minutes. (N.T., preliminary hearing at 31.) She heard “shuffling” in Brent’s room through a baby monitor that she kept by her bed and then heard defendant come up the stairs and say repeatedly that Brent was “not responding.” (Id.) Mrs. Weaver ran downstairs and found her son “gray and lifeless” on the bed. (Id.) She placed Brent on the floor and asked defendant why she wasn’t doing CPR. (Id. at 31-32.) Defendant responded to the question by starting CPR. (Id. at 32.) Defendant did not have any answers to Mrs. Weaver’s questions about what had happened during the night. (Id. at 45; affidavit of probable cause at ¶13.) Mr. Weaver, who had followed his wife down the stairs, immediately called 911. (N.T., preliminary hearing at 32.)

Officer Jennifer M. Kulicki, with the East Hempfield Police Department, was the first to respond to the scene. (N.T., preliminary hearing at 20-21.) Officer Kulicki attached an automatic defibrillator, or AED, to the victim but it indicated that it did not pick up anything to shock. (Id. at 23.) The officer then assisted defendant with CPR. (Id.) When the ambulance personnel arrived, they inserted a breathing tube into Brent. (Id) Officer Kulicki did not observe the EMTs administer any other treatment. (Id.) Brent was ultimately transported to Lancaster General Hospital. (Id. at 11, 32, 55, 63, 73-74.)

Mrs. Weaver testified that she did not administer morphine to her son the night of September 26, 2002, her son was not prescribed morphine, and there was no morphine or codeine in the house. (N.T., preliminary hearing at 31, 32, 41.) Nor were there any syringes or needles in the house. (Id. at 41.) Mrs. Weaver explained that Brent was allergic to morphine and codeine. (Id. at 46.)

Mrs. Weaver further testified that she did not hear the alarm on the feeding pump during the night indicating an interruption and she did not hear a beep on the feeding pump indicating that it had been stopped and started again. (N.T., preliminary hearing at 37, 41.) Lastly, on cross-examination, Mrs. Weaver testified that the feeding bag with formula that Brent was taking the night he was killed were disposed of “right away.” (Id. at 44.) The G-tube was discarded “probably weeks after he died.” (Id.)

Mr. Mark Weaver, Brent’s dad, also testified at the preliminary hearing. (N.T., preliminary hearing at 50.) He stated that he went to bed at 10 p.m., and remained in bed asleep all night until he heard defendant shouting, “he’s not responding, he’s not responding.” (Id. at 51, 53.) He ran downstairs and called 911. (Id.) Mr. Weaver denied giving his son morphine the night of September 26,2002, denied having a morphine prescription for his son, and further denied having morphine in the house. (Id. at 52.) Both Mr. and Mrs. Weaver testified that their son was not suffering from a cold in the hours or days before his death. (Id. at 41, 52.)

Following the death of 11-year-old Brent Weaver, Dr. Ross, Lancaster County’s forensic pathologist, conducted an external examination of, and withdrew blood from, Brent Weaver. (N.T., preliminary hearing at 6,10-11.) The blood was transported to and tested by National Medical Services. (Affidavit of probable cause at ¶5.) On November 4,2002, the blood was examined by Forensic Toxicologist George F. Jackson Ph.D., at National Medical Services Laboratory. Morphine, in the amount of 230 nanog/mL, was found to be in the blood of Brent Weaver. This information was forwarded to Dr. Ross. (Id.)

On November 5,2002, Dr. Ross advised the police of the abnormal amount of morphine in the victim’s blood and requested the East Hempfield Police to conduct a further investigation as to who may have administered the morphine and why. (Affidavit of probable cause at ¶7.) Consequently, Detective Paul Fitzsimmons interviewed the victim’s parents on November 8, 2002. (Id. at ¶¶12, 13.) Detective Fitzsimmons also surveyed the layout of the Weaver home with Mr. and Mrs. Weaver. (Id. attl4.)

On November 8,2002, Detective Fitzsimmons, along with Detective Tammy Marsh, interviewed defendant. (Affidavit of probable cause at ¶15; see also, N.T., preliminary hearing at 79.) Defendant indicated that Bayada Nurses called her, on short notice, to fill in at the Weavers’ for their regular nurse. (Affidavit of probable cause at ¶15.) She reported that she arrived at the home at about 11 p.m. on September 26, 2002, and met Carol Weaver and received care instructions. Defendant noted that she and Mrs. Weaver went into Brent’s bedroom and Brent was moaning. Defendant stated that Carol Weaver showed her how to turn Brent to make him comfortable. Mrs. Weaver then went to bed and neither Carol Weaver nor her husband came downstairs all night. (Id.)

Defendant told Detective Fitzsimmons that she stayed on the couch in the living room for about 15 minutes before she had to go to Brent’s room because he was moaning. (Affidavit of probable cause at ¶16.) She said she had to reposition him three to four times throughout the night. Defendant indicated that she went into Brent’s room at 6 a.m. to administer his medications and turned on the light and saw that Brent was blue. She stated that she tried to arouse him, checked for a pulse and found none. She then said she went upstairs to call Mrs. Weaver and tell her Brent was not responsive and not breathing. (Id.) Defendant said she started CPR, and continued with the police until the paramedics arrived. (Id.; N.T., preliminary hearing at 21,23.) She denied falling asleep during the night. (Id.; N.T., preliminary hearing at 73.)

As a result of the initial investigation, Brent Weaver’s body was exhumed on November 12, 2002, and a complete autopsy was performed by Dr. Ross. (N.T., preliminary hearing at 11.) Tissue samples were taken and sent to National Medical Services for analysis. (Id. at 13.)

Following the exhumation and autopsy of Brent Weaver’s body, and while awaiting the results from National Medical Services, the East Hempfield Police continued their investigation into the death of Brent Weaver. OnNovember 13,2002, Detective Fitzsimmons spoke to Dr. Stephen Tifft and Dr. Michael Haught, from Roseville Pediatrics, and learned that they were in charge of Brent Weaver’s medical treatment plan, including the prescription of medications. (Affidavit of probable cause at ¶9.) Both Dr. Tifft and Dr. Haught indicated that they had not prescribed morphine for Brent. On November 13.2002, Detective Fitzsimmons reviewed the Roseville Pediatrics medical records of Brent Weaver which confirmed that Brent Weaver was not prescribed any narcotics, including morphine, at the time of this death. (Id.)

A further review of the medical records on November 13.2002, from Lancaster General Hospital and Susquehanna Valley Ambulance revealed that no morphine was administered to Brent at the hospital or by the ambulance crew as part of his care on September 27,2002. (Affidavit of probable cause at ¶¶8, 11; N.T., preliminary hearing at 73-74.)

Also on November 13,2002, Detective Fitzsimmons reviewed the medical records of Bayada Nurses Home Care Specialists. (Affidavit of probable cause at^[8,17.) The “specialist nurse’s note” report prepared and signed by defendant on September 26,2002 and September 27, 2002, indicated that at 12:30 a.m., 1:15 a.m., 1:30 a.m., and 2:45 a.m., Brent was restless or moaning and defendant entered his bedroom and repositioned him in his bed. (Id. at ¶17.) The report then indicates that defendant looked in on Brent between 2:45 a.m. and 6 a.m. and that he was sleeping soundly but that defendant did not physically enter the bedroom of Brent Weaver until 6 a.m., which is the time he was to receive his medication. (Id.)

An interview with Laura Rauth, supervising nurse at Bayada Nurses, took place on November 13,2002. (Affidavit of probable cause at ¶19.) Ms. Rauth indicated that defendant cared for two terminally ill Hospice patients and that she had administered morphine to these patients, which was prescribed for them. (Id.) Ms. Rauth further indicated that one of the patients passed away on August 4,2002, and that defendant had last worked with that patient on July 29,2002, and the other patient passed away on September 19,2002, and that defendant had last cared for that patient on July 15, 2002. (Id.; N.T., preliminary hearing at 65-66, 83-84.)

On April 25, 2003, Dr. Edward J. Barbieri Ph.D., forensic toxicologist with National Medical Services, filed a report indicating that 150 nanog/g of morphine was found in the liver of Brent Weaver. (Affidavit of probable cause at ¶18.) Based on the autopsy, the toxicology report, and a review of the medical history of Brent Weaver, Dr. Ross determined the cause of death to be acute morphine intoxication and manner of death to be homicide. (Id.; N.T., preliminary hearing at 5.)

Detective Fitzsimmons, along with Detective Joseph Geesey, a detective with the Lancaster County District Attorney’s Office, re-interviewed defendant on August 20,2003. (N.T., preliminary hearing at 57; affidavit of probable cause at ¶20.) Essentially, defendant said she arrived at the Weaver home, somewhat reluctantly, at approximately 11 p.m., received instructions from Mrs. Weaver, and checked on Brent approximately every 45 minutes until 2 a.m., after which she simply went to his bedroom door and looked in. (Id. at 57-58, 62-63.) At 6 a.m., defendant said she entered the bedroom because that was “when she was supposed to give him his medication” and she found the child “unresponsive.” (Id. at 58, 63; affidavit of probable cause at ¶¶16, 17.)

Of note, defendant cautioned the detectives that, while she made notes of her care of Brent, “they [the notes] won’t document everything I did that night because I didn’t do them [the Bayada specialist nurse’s notes] until that morning after he had been taken off in the ambulance. The father was in a hurry to leave the house.” (N.T., preliminary hearing at 69.) She again indicated that she did not fall asleep during the night and that Brent’s parents did not come downstairs during the night, “giving her sole and exclusive custody of Brent for the entire night.” (Id. at 73; affidavit of probable cause at ¶22.)

In response to the detectives’ questioning, defendant indicated that she had extensive knowledge of, and experience with, morphine from prior nursing jobs and that she is aware of the various methods of administration (intramuscular, buccal, sublingual, IV) and the effects of morphine. (N.T., preliminary hearing at 60, 61; affidavit of probable cause at ¶20.) Defendant also acknowledged that she had administered morphine to two Hospice patients within a month or two of Brent Weaver’s death. (Id. at 60, 64-66.) She further admitted that it was possible for a nurse to pilfer her patient’s morphine. (Id. at 60.)

This case remained dormant until August 20, 2008, when Detective Geesey and Detective Fitzsimmons went to National Medical Services and met with Robert A. Middleberg Ph.D., who is vice president of quality assurance and also the laboratory director. (N.T., preliminary hearing at 74, 82; affidavit of probable cause at ¶23.)

Dr. Middleberg stated there were several ways morphine could be administered into the body. (Affidavit of probable cause at ¶23.) He stated that the amount of morphine found in Brent Weaver’s blood if injected directly into the blood stream would have proved fatal very rapidly. Dr. Middleberg stated further that if that amount had been given orally, it could have taken longer for the body to absorb the drug, but certainly the victim would have been gradually put into a noticeably sedated and lethargic state. (Id.)

Dr. Middleberg reviewed the specialist nurse’s note report prepared and signed by defendant on September 27,2002. (Affidavit of probable cause a^23.) He stated that if the drug was given prior to defendant’s arrival, Brent Weaver would not have been restless and moaning as her report indicated. Instead, Dr. Middleberg indicated that Brent Weaver would have entered a more lethargic and sedated state, which is consistent with how the report written by defendant describes Brent after 3:30 a.m. Given these facts, it was Dr. Middleberg’s opinion the drug was administered to Brent after 11 p.m. on September 26, 2002, and prior to 6 a.m. on September 27, 2002. (Id.; N.T., preliminary hearing at 75-76.)

Lastly, on October 6, 2008, Detective Geesey spoke with Steve Knoub, the CEO of Hospice of Lancaster County. (Affidavit of probable cause at ¶21.) Mr. Knoub confirmed that it was possible in 2002 for a nurse working at the home of a patient who had been prescribed morphine to pilfer that morphine and convert it to his or her own use without the knowledge of the patient, the family, or attending medical personnel. (Id.)

Based on the aforementioned facts, on October 7, 2008, a criminal complaint was filed charging Joy O’Shea-Woomer with administering a lethal dose of morphine to Brent Weaver between the hours of 11 p.m. on September 26, 2002 and 6 a.m. on September 27, 2002, and causing his death based upon the following facts: (1) a large amount of morphine was administered to Brent and, in the professional opinions of Dr. Ross and Dr. Middleberg, it was a lethal dose; (2) defendant had sole and exclusive custody of Brent from 11 p.m. on September 26,2002, until 6 a.m. on September 27,2002; (3) prior to Brent Weaver going to bed, he was acting normally and was not lethargic; (4) defendant has been in the medical profession as a nurse for an extensive time period and she is familiar with morphine, what forms it comes in, how to administer it to patients, and she had the means and access to the drug through recent work experience with Hospice patients; (5) the medical records confirm that morphine was not given to Brent in his treatment on September 27,2002, by Susquehanna Valley Ambulance or Lancaster General Hospital medical personnel; and (6) Brent’s condition prior to 3:30 a.m. is inconsistent with having been administered the amount of morphine found in his blood but his condition after 3:30 a.m. is consistent with having been administered that amount of morphine after 11 p.m. on September 26, 2002. (Affidavit of probable cause at ¶24.) Specifically, defendant has been charged generally with criminal homicide, drug delivery resulting in death, and delivery of a controlled substance. I will examine the record to determine if a prima facie case exists for each of these charges.

C. Criminal Homicide

Defendant is charged with criminal homicide, generally, which includes murder of the first, second and third degree, as well as voluntary and involuntary manslaughter. To sustain a charge of murder in the first degree, the Commonwealth must show that a human being was unlawfully killed, the accused committed the killing, and the accused acted with a specific intent to kill. Commonwealth v. Diggs, 597 Pa. 28, 35, 949 A.2d 873, 877 (2008). See 18 Pa.C.S. §§2501, 2502(a). It is a specific intent to kill that distinguishes murder in the first degree from other lesser grades of murder. Commonwealth v. Fletcher, 580 Pa. 403, 419, 861 A.2d 898, 907 (2004). Apart from felony murder, or murder of the second degree, any murder committed with malice, but without specific intent, constitutes a third-degree murder. Commonwealth v. Taylor, 583 Pa. 170, 186, 876 A.2d 916, 926 (2005).

Defendant contends that the Commonwealth has failed to produce any evidence that the alleged homicide (1) was an intentional killing (first-degree murder), (2) occurred while defendant was engaged in a felony (second-degree murder), or (3) resulted from a conscious disregard of an unjustified and extremely high risk by defendant that her actions might cause death or serious bodily injury (third-degree murder). (See defendant’s habeas corpus petition at ¶5.) There is no suggestion that this killing was related to the commission of a felony so murder in the second degree is not relevant to our discussion, nor is the offense of voluntary manslaughter. See Commonwealth v. Patton, 936 A.2d 1170, 1178 (Pa. Super. 2007) (“Voluntary manslaughter is the intentional killing of another without malice but in a sudden heat of passion brought on by legal provocation.”). I will address only the three relevant classes of criminal homicide.

1. First-Degree Murder

Initially, the Commonwealth must provide sufficient evidence to indicate that a crime has been committed. The report of the autopsy conducted on the victim, Brent Weaver, containing the findings of the forensic pathologist, Wayne Ross, was admitted at the habeas corpus hearing without objection, as was his testimony at the preliminary hearing. (N.T., preliminary hearing at 4-5.) The report of Dr. Ross includes his findings that the death of the victim occurred as a result of acute morphine intoxication and indicates that the manner of death is homicide, i.e., that the administration of the morphine was not self-inflicted. I find this evidence sufficient to establish that a crime was committed, that is, that the victim, Brent Weaver, died as a result of an unlawful killing. Therefore, the next question I am faced with is whether the additional evidence presented at the preliminary hearing and habeas corpus hearing is sufficient to establish the probability that defendant can be connected with the crime, that is, does the additional evidence provide sufficient probable cause to warrant the belief that defendant was involved in the commission of the killing.

In the instant case, in attempting to establish a prima facie case, the Commonwealth relies upon the invocation of the “sole and exclusive custody” doctrine, which is well established in Pennsylvania law. See Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481 (1980); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Hart, 348 Pa. Super. 117, 122-23, 501 A.2d 675, 678 (1985). This doctrine provides that where, as here, an adult is given sole custody of a child of tender years for a period of time and, during that time, the child sustains injuries which unquestionably are neither self-inflicted nor accidental, the evidence is sufficient to allow the fact-finder to infer that the adult having custody inflicted the injuries. Paquette, supra at 255, 301 A.2d at 840. This rule, allowing an inference of guilt, has been applied where a child suffers a fatal injury while an adult has sole custody of the child. See Commonwealth v. Nissly, 379 Pa. Super. 86, 549 A.2d 918 (1988).

Thus, to invoke the sole and exclusive custody doctrine, the Commonwealth must show (1) serious injury or death, (2) that the injury was neither accidental nor self-inflicted, (3) that the injury was inflicted within a specific time period, and (4) that the defendant had exclusive custody of the victim during the time of the injury. Here, the record contains prima facie evidence of all four prongs of the sole and exclusive custody doctrine.

Initially, the testimony and autopsy report of Dr. Ross establish that Brent Weaver died from acute morphine intoxication and that his death was neither accidental nor self-inflicted. (N.T., preliminary hearing at 5; Commonwealth exhibit no. 4.) Next, the report of Dr. Middleberg establishes that the administration of the morphine occurred between 11 p.m. and 6 a.m. (Icl. at 75; Commonwealth exhibit no. 3.) Lastly, the evidence is undisputed that defendant had sole and exclusive custody of the victim during this time frame. (See N.T., preliminary hearing at 30-31, 51, 73; see also, affidavit of probable cause at ¶¶ 15, 22.) Consequently, the evidence is sufficient to allow the fact-finder to infer that defendant, who had sole and exclusive custody of the victim, inflicted the fatal injury to Brent Weaver.

To establish a prima facie case of murder in the first degree, the Commonwealth must also show that defendant acted with a specific intent to kill. Commonwealth v. Vandivner, 599 Pa. 617, 628, 962 A.2d 1170, 1176 (2009) (citing 18 Pa.C.S. §2502(d)). An intentional killing is a “[k] filing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” Commonwealth v. Wright, 599 Pa. 270, 291, 961 A.2d 119, 130 (2008) (quoting 18 Pa.C.S. §2502(d)). The mens rea required for first-degree murder, specific intent to kill, may be established solely from circumstantial evidence. Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008). “[T]he law permits the fact finder to infer that one intends the natural and probable consequences of his acts[.]”M (quoting Commonwealth v. Gease, 548 Pa. 165, 171, 696 A.2d 130, 133 (1997)).

In the instant case, there was uncontroverted evidence that the victim had not been prescribed morphine, that there was no morphine in the house, and that no morphine had been administered to him in his treatment on September 27,2002, by Susquehanna Valley Ambulance or Lancaster General Hospital medical personnel. Thus, the lethal dose of morphine, which was carried into the Weaver home, was intentionally and deliberately administered to the victim.

Moreover, specific intent to kill may be inferred from the fact that an accused used a deadly weapon on a vital part of the victim’s body. Vandivner, 599 Pa. at 627, 962 A.2d at 1176; Wright, 599 Pa. at 291, 961 A.2d at 130. The Crimes Code defines a “deadly weapon” as, inter alia, “any . . . instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” Commonwealth v. Pagan, 597 Pa. 69, 83, 950 A.2d 270, 279 (2008) (quoting 18 Pa.C.S. §2301); Commonwealth v. Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001).

Our appellate courts have never established an exact definition of a deadly weapon, because virtually anything may become deadly when offensively employed. “A weapon not ordinarily termed ‘deadly’ may become such when used in a killing. An ax, a baseball bat, an iron bar, a heavy cuspidor, and even a bedroom slipper have been held to constitute deadly weapons under varying circumstances.” Commonwealth v. Prenni, 357 Pa. 572, 575, 55 A.2d 532, 533 (1947). (citation omitted) Our Superior Court cautioned in Commonwealth v. Stancil, 233 Pa. Super. 15, 19, 334 A.2d 675, 677 (1975), that it is “virtually impossible to make a prophylactic rule to cover this problem” of what constitutes a dangerous weapon. “Some weapons are such as a matter of law, and others must be construed by a jury as a matter of fact, in accordance with the evidence and intent of the actor.” Commonwealth v. Taylor, 346 Pa. Super. 599, 620, 500 A.2d 110, 120-21 (1985).

Dr. Ross testified at the preliminary hearing in this matter that Brent Weaver died from acute morphine intoxication. He also concluded that the manner of death was homicide. Thus, I must review the facts and circumstances of the instant case to determine whether morphine, as allegedly used by defendant, is a deadly weapon.

For morphine to be classified as a deadly weapon, it must be an “instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” 18 Pa.C.S. §2301.1 am compelled to conclude that morphine can be such an instrumentality. In November 2007, in State of Texas v. Barbour, cause no. 21634 (Lamar Cty. TX), a jury found morphine to be a “deadly weapon” when administered by mouth to a child, resulting in the defendant’s conviction and a 20-year sentence for physical abuse of a child.

Our Superior Court recently concluded that commercial mouse poison, as used by the defendant, was a “deadly weapon” for purposes of the deadly weapons enhancement provision of the sentencing guidelines. See 204 Pa. Code §303.10(a)( 1 )(iii). The court explained:

“Mouse poison is clearly an instrumentality, the broad definition of which is a ‘thing used to achieve an end or purpose.’ Black’s Law Dictionary, 8th ed., 2004. Mouse poison is used to kill rodents. Instantly, it became a deadly weapon when appellee included it in the sandwich that she prepared for her husband to consume, in light of her admitted intent to poison him. See [Commonwealth v.] Scullin, [414 Pa. Super. 442,] 607 A.2d [750,] 753 [(1992)] (holding that the tire iron ‘became a deadly weapon at the moment [the defendant] threw it in the direction of the ultimate victim.’).
“That the amount of poison appellee added to the sandwich was apparently insufficient to actually cause serious bodily injury is irrelevant to our conclusion that mouse poison is a deadly weapon under the circumstances of this case. By design and normal usage, mouse poison kills rodents, and thus by its very nature it is toxic and dangerous.” Commonwealth v. Raybuck, 915 A.2d 125, 129 (Pa. Super. 2006).

Ultimately, in this case, the determination of whether morphine is, in fact, a deadly weapon from which specific intent to kill may be inferred is a factual issue for the jury. See Stancil, supra at 18, 334 A.2d at 677 (“whether the blow of a fist or the kick of a shoe was of such force as was likely to produce great bodily injury was a question for the jury”). However, for purposes of the petitions presently before the court, the Commonwealth has established a prima facie case of first-degree murder.

Additionally, an intentional killing is also defined as a “killing by means of poison.” 18 Pa.C.S. §2502(d). Defense counsel, himself, identified this case as one in which the Commonwealth is “trying to show that my client poisoned this boy with morphine.” (N.T., preliminary hearing at 70.) “Morphine sulfate” is identified in medical literature as a poisonous agent. Thus, the record evidence of “acute morphine intoxication” or morphine poisoning of this helpless victim could establish the element of specific intent to kill required for first-degree murder.

2. Third-Degree Murder

Third-degree murder is any murder other than one committed in the first or second degree. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008) (citing 18 Pa.C.S. §2502(c)). To prove an accused committed third-degree murder, the Commonwealth need not show he acted with the specific intent to kill another but merely that he acted with malice aforethought or wanton and reckless conduct that manifests extreme indifference to the value of human life. Id. at 823-24 (citing Commonwealth v. Santos, 583 Pa. 96, 102, 876 A.2d 360, 363 64 (2005)). Malice aforethought, the general intent prerequisite to a finding of murder in any degree, has been defined by the Pennsylvania Supreme Court as follows:

“[Mjalice aforethought requires a unique state or frame of mind characterized by wickedness, hardness, cruelty, recklessness, and disregard of social duty:
“ ‘Malice is a legal term, implying much more [than ill will, spite, or a grudge]. It comprehends not only a particular ill will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.’
“Malice has been characterized as exhibiting an 'extreme indifference to human life,’ and ‘may be found to exist not only in an intentional killing, but also in an unintentional homicide where the perpetrator “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.’”” Commonwealth v. Ludwig, 583 Pa. 6, 21-22, 874 A.2d 623, 632 (2005). (citations omitted) (emphasis in original)

I find that the evidence presented in the instant case establishes, at the very least, a prima facie showing of malice. As noted above, the Commonwealth’s evidence shows that the lethal dose of morphine, which was carried into the Weaver home, was intentionally and deliberately administered to the victim. Moreover, although a legal drug, morphine is an inherently dangerous drug of such toxicity that there exists a substantial and “extremely high risk” that a child who ingests morphine will suffer serious injury or death. Although there was no testimony at the preliminary and pretrial hearings as to the exact amount of morphine that was administered to the minor victim, Dr. Middle-berg’s report notes that “[tjypical peak blood concentrations of free morphine following therapeutic oral doses of the substance are generally less than 100 ng/mL.” (See Commonwealth exhibit no. 3 at 4.) The blood of the victim in this case contained 230 ng/mL — a lethal dose. (Id.)

Viewing this evidence in the light most favorable to the Commonwealth as I must when considering a petition for habeas corpus, the Commonwealth clearly presented sufficient evidence to support a prima facie finding that defendant, a licensed practical nurse, “exhibit[ed] an extreme indifference to human life” and “consciously disregarded an unjustified and extremely high risk that [her] actions might cause death or serious bodily harm” when she administered morphine, without a prescription, to an “opiate naive” and “opiate sensitive” 11-year-old child resulting in the victim’s death. Ludwig, supra. (See Commonwealth exhibit no. 3.)

3. Involuntary Manslaughter

A person is guilty of involuntary manslaughter when, “as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner ... he causes the death of another person.” Commonwealth v. Powell, 598 Pa. 224, 253, 956 A.2d 406, 423 (2008) (citing 18 Pa.C.S. §2504(a)). Like murder of the third degree, involuntary manslaughter is an unintentional killing. See Commonwealth v. Polimeni, 474 Pa. 430, 442, 378 A.2d 1189, 1195 (1977).

“What is more important for our present purposes is the fact that under the Crimes Code it is a killing which requires a state of mind which is in effect simply a gradation on the ascending scale of culpability culminating in malice. The state of mind which characterizes involuntary manslaughter is not malicious; it is referred to as ‘criminal negligence’ and is evidenced by acts, whether lawful or unlawful, done in a ‘reckless or grossly negligent’ manner as those terms are defined. . . . [Tjhis court stated that to constitute involuntary manslaughter ‘[t]he negligence must be such a departure from what would be the conduct of an ordinary prudent or careful man under the circumstances as to evidence a disregard of human life or an indifference to consequences.’” Id.

As involuntary manslaughter is a lesser included offense of third-degree murder, see Commonwealth v. Davis, 760 A.2d 406, 414 (Pa. Super. 2000) (citing Polimeni, supra), I need only cite to our determination above that the Commonwealth presented sufficient evidence to support a prima facie case of murder in the third degree to find a prima facie case for involuntary manslaughter as well.

Accordingly, I find that the Commonwealth, through the testimony at the preliminary hearing held on December 1, 2008, and the habeas corpus hearing held on February 11, 2009, has presented sufficient evidence to establish aprima facie case of criminal homicide against defendant.

D. Drug Delivery Resulting in Death

Section 2506 of the Crimes Code defines the crime of third-degree murder in the context where death results from certain conveyances of, inter alia, controlled substances in violation of the Controlled Substance, Drug, Device and Cosmetic Act:

“A person commits murder of the third degree who administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the Act of April 14,1972 (P.L. 233, no. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.” 18 Pa.C.S. §2506(a). (footnote omitted)

Our Supreme Court has determined that “malice is the requisite mens rea for a violation of section 2506.” Ludwig, supra at 20, 874 A.2d at 631.

The Commonwealth’s evidence shows that the lethal dose of morphine, which was carried into the Weaver home, was intentionally and deliberately administered to the victim between the hours of 11 p.m. and 6 a.m. Moreover, the evidence is sufficient to allow the fact-finder to infer that defendant, who had sole and exclusive custody of the victim during this time period, inflicted the fatal injury to Brent Weaver. Having further determined that there was sufficient evidence to establish the element of malice for third-degree murder generally, this court must likewise conclude that the Commonwealth has established a prima facie case of malice for drug delivery resulting in death.

Accordingly, defendant’s habeas corpus petition with regard to the charges of delivery of a controlled substance and drug delivery resulting in death must be denied.

E. Petition for Bail

Defendant, who is currently incarcerated in LCP as a result of the pending charges in the present case, requests that this court grant her bail. At issue is the interpretation of Article I, Section 14 of the Pennsylvania Constitution. In pertinent part, this section provides as follows:

“All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; . . .” Pennsylvania Constitution Article I, Sectionl4. See 42 Pa.C.S. §5701.

This section was made applicable “for offenses for which the maximum sentence is life imprisonment” by a constitutional amendment approved on November 3, 1998. By its plain language, section 14 requires the detention of any person charged with an offense for which the maximum sentence is life imprisonment when the trial court finds the proof evident or the presumption of guilt great. All other defendants, including those charged with first-degree murder where the proof is not evident and the presumption not great, are bailable on sufficient sureties.

In the instant case, defendant is charged with criminal homicide. It is beyond challenge that defendant will be sentenced to life imprisonment if convicted of first-degree murder. See 18 Pa.C.S. § 1102(a)(1). Defendant concedes as much but claims she is entitled to bail because the Commonwealth has failed to prove that the “proof is evident or presumption great” that she will be convicted of first-degree murder.

At a bail hearing, the prosecution has the burden of proving defendant should not be granted bail. Commonwealth v. Truesdale, 449 Pa. 325, 337-38, 296 A.2d 829, 836 (1972); Commonwealth v. Heiser, 330 Pa. Super. 70, 72, 478 A.2d 1355, 1356 (1984). Presently, it is the Commonwealth that must prove that the “proof is evident or presumption great” that defendant committed first-degree murder before defendant can be detained justifiably pending trial. It is the interpretation of this standard contained in Article I, Section 14 that is at issue here.

Those jurisdictions which have defined the phrase “proof is evident or the presumption is great” have given it various meanings. A survey of case law nationwide by the Supreme Court of the Virgin Islands in Browne v. People of Virgin Islands, no. 2008-022, 2008 WL 4132233 (V.I. August 29, 2008), demonstrates that there are three general approaches to defining the evident proof standard: “On the whole, states have defined the standard as requiring either probable cause, something akin to clear and convincing evidence, or evidence beyond a reasonable doubt....” Id. at *11. See also, Simpson v. Owens, 207 Ariz. 261, 271, 85 P.3d 478, 488 (2004) (in which the court of appeals found that the quantum of proof required by the states falls into three categories: those requiring some variation of probable cause or a fair likelihood; those requiring some variation of clear and convincing or clear and strong evidence; and those requiring some variation of evidence beyond a reasonable doubt).

As noted by the Supreme Court in Browne: “Although articulating the standard in various ways, the overwhelming majority of states require evidence that is greater than probable cause but less than beyond a reasonable doubt. ...” Browne, supra at *11.

“Such a position is consistent with the fact that ‘[t]he word “evident” is construed to mean manifest, plain, clear, obvious, apparent, and notorious, and unless it plainly, clearly, and obviously appears by the proof that the accused is guilty of a capital crime, bail should be allowed.’...

“Additionally a clear and convincing standard is appropriate because, if the term ‘proof is evident or the presumption is great’ is interpreted to require mere probable cause to believe that the defendant is guilty of first-degree murder, ‘the guarantee would add nothing to the accused’s rights, since a suspect may not be held without a showing of probable cause in any instance.’...

“A probable cause interpretation, adopted only by Maine, gives inadequate weight to a defendant’s fundamental right to liberty and to the vital presumption of innocence.... On the other hand, requiring proof beyond a reasonable doubt at the pretrial bail stage of a criminal proceeding would also be imprudent. As the Rhode Island Supreme Court succinctly explained:

“Not only is it highly improbable that the framers intended the bail hearing to determine the precise question to be answered at the trial itself, but such duplication obviously wastes judicial resources and might prejudice a defendant’s opportunity for a fair trial. If it becomes common practice to deny bail only after a judge has determined that the evidence produced at the bail hearing demonstrates guilt beyond a reasonable doubt, and the jury learns that a defendant has been denied bail, they may be highly predisposed to convict.
“Fontaine [v. Mullen, 117 R.I. 262,] 366 A.2d [1138,] 1142 [(R.I. 1976)" Browne, 2008 WL 4132233 at *11-12. (citations omitted; footnotes omitted)

Citing Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963), the Supreme Court of the Virgin Islands identified Pennsylvania as one of the states that has adopted the majority position that the evidentiary standard for Article I, Section 14 requires something more than probable cause but less than beyond a reasonable doubt. In. Alberti, the Pennsylvania Supreme Court interpreted the words “when the proof is evident or presumption great” to mean that in order for bail to be appropriately denied, the Commonwealth’s evidence presented at the bail hearing, together with all reasonable inferences therefrom, must be “sufficient in law to sustain a verdict of murder in the first degree.” Id. at 400-401, 195 A.2d at 98. The court added:

“The practice followed in the present case and in a number of lower court cases of deciding this very important question on the basis of the testimony presented at a coroner’s inquest is condemned and is no longer to be followed. In application for bail in a homicide case, a decision should be made on the basis of the testimony which is presented by the Commonwealth at that hearing, and, of course, under the pertinent tests hereinabove set forth.” Id. at 401, 195 A.2d at 98.

Thus, the court made a distinction between the Commonwealth’s burden of proof at a preliminary hearing and at a bail hearing.

Eight years later, however, in Commonwealth v. Farris, 443 Pa. 251, 253, 278 A.2d 906, 906 (1971), the Supreme Court held that since evidence offered at a preliminary hearing established a prima facie case of murder in the first degree, the court properly denied bail pending trial. Relying upon Farris, 13 years later, the Superior Court, in Commonwealth v. Heiser, 330 Pa. Super. 70, 72-73, 478 A.2d 1355, 1356 (1984), noted that the Commonwealth can satisfy its burden to prove that an accused is not entitled to bail by establishing a prima facie case of murder in the first degree. The Superior Court immediately followed this statement with a footnote which emphasized: “We caution that this statement should be considered limited to the facts of this case. .. .” Id. at 72 n.3, 478 A.2d at 1356 n.3.

More importantly, the court, immediately after citing to Farris, also cited to Alberti, preceded by the signal, “c£,” which “[laterally means ‘compare.’” The Bluebook: A Uniform System of Citation, §15.1.3 (Columbia Law Review Ass’n et al. eds., 17th ed. 2000). See Commonwealth v. Chacker, 320 Pa. Super. 402, 409 n.2, 467 A.2d 386, 390 n.2 (1983). “The citation’s relevance will usually be clear to the reader only if it is explained. Parenthetical explanations . . ., however brief, are therefore strongly recommended” with the use of the signal “cf.” The Bluebook, supra. The Heiser court, however, offered no explanation of the Alberti decision, nor did it analyze the “evident proof’ standard set forth in Article 1, Section 14.

This latter authority, without repudiating Alberti, suggests that once the Commonwealth has established a prima facie case of a non-bailable offense, sufficient “proof is evident” to trigger the prohibition of bail pursuant to Article I, Section 14.1 must, however, agree with my colleague, the Honorable Steve P. Leskinen, from Fayette County, who, when interpreting the “evident proof and presumption great” language noted that the prima facie standard identified in Farris and Reiser is lower than the one announced by the Supreme Court in Alberti. In Commonwealth v. Hamborsky, 75 D.&C.4th 505 (Fayette Cty. 2005), Judge Leskinen opined: to the United States Constitution requires that bail be based on the likelihood of conviction, and how that bears on the likelihood of flight.” Id. at 515-16.

“Under such a reading, the common pleas court would have no decision at all to make on bail. If a defendant was charged with first- or second-degree murder, and the district justice found sufficient evidence to bind the case for trial, bail would automatically be prohibited. Such an interpretation makes much of Article I, Section 14 mere surplusage.... A close reading of Alberti reveals, however, that the Supreme Court specifically made bail depend upon: ‘evidence which is presented at the bail hearing... .’ A separate bail hearing is necessary because potential defenses are not considered at a preliminary hearing. Preliminary hearings address the mere sufficiency of the Commonwealth’s evidence, while the Eighth Amendment

It appears that the appellate courts’ use of the words “prima facie” in Farris and Heiser has blurred the distinction between preliminary hearings and bail hearings. I must also agree with the reasoning found in Browne, Simpson, and a myriad of other court decisions from around the country that the language “proof is evident or the presumption great” means something more than prima facie evidence, for to read it in this manner would do nothing to advance the constitutional rights of the accused, since a suspect may not be held without a showing of prima facie evidence in any case. See Browne, 2008 WL 4132233 at * 11; Simpson, supra at 271-72, 85 P.3d at 488-89; Fontaine, supra, 366 A.2d at 1141.

Having determined, in accordance with Alberti, that the evidentiary standard is something more than a prima facie showing, I must analyze the precise meaning of the phrase, “proof is evident or presumption great.” First, it is clear under Pennsylvania law that courts must give the terms of a statute their “commonly accepted meaning.” 1 Pa.C.S. § 1903(a); see e.g., Commonwealth v. Cameron, 247 Pa. Super. 435, 440, 372 A.2d 904, 907 (1977) (quoting Commonwealth v. Bristow, 185 Pa. Super. 448, 138 A.2d 156 (1958)). Section 1903(a) unequivocally states that “[w]ords and phrases shall be construed... according to their common and approved usage.”

The word “evident” is defined by the Oxford English Dictionary (1989) as “[c]lear to the understanding or judgement; obvious, plain” and “[ijndubitable, certain, conclusive.” Id. at 470. Webster’s New Universal Unabridged Dictionary (2nd ed. 1983) defines “evident” as “visible, clear, out and plain; easy to see or perceive; apparent.”Id. at 634. Synonyms for “evident” are “plain, visible, conspicuous, manifest, obvious, clear, palpable, apparent, discernible.” Id.

Based upon the above, the plain language of the evident proof standard in Article I, Section 14 suggests a “clear and convincing” standard. This standard has been described as “an ‘intermediate’test, which is more exacting than a preponderance of the evidence test, but less exacting than proof beyond a reasonable doubt.” Commonwealth v. Meals, 590 Pa. 110, 120, 912 A.2d 213, 219 (2006). The “clear and convincing” standard requires evidence that is “so clear, direct, weighty, and convincing that the trier of fact could come to a clear conviction, without hesitating, concerning the facts at issue.” Commonwealth v. Feucht, 955 A.2d 377, 380 (Pa. Super. 2008). This heightened standard of proof provides significant protection to the accused before bail is denied. I must, therefore, make a determination of whether there is clear and convincing proof that defendant O’SheaWoomer committed first-degree murder.

In the present case, since poisoning by lethal dose of morphine can be an intentional killing, and specific intent can be inferred by the use of a deadly weapon on a vital part of the human body (i.e., a lethal dose of morphine), the Commonwealth has introduced substantial evidence as clear and convincing proof of specific intent, which could result in the jury finding defendant guilty of first-degree murder. This evidence, were it to be believed, establishes not only a prima facie case of first-degree murder for purposes of the habeas corpus petition, but also rises to the required level of clear and convincing proof for purposes of the analysis for the bail petition.

I hasten to note that while this “evident proof” standard is sufficient at this stage of the proceeding to deny defendant bail, it is not sufficient to convict her at trial. Thus, in making this decision, I am expressing no opinion on the outcome of this case, inasmuch as this standard will not apply at trial.

III. CONCLUSION

For the reasons stated above, the expert report of Dr. Middleberg will be admitted as evidence for purposes of the present petitions. The totality of the evidence presented at the preliminary hearing and the habeas corpus/ bail hearing established a prima facie case for the charges of criminal homicide, drug delivery resulting in death, and delivery of a controlled substance. Therefore, the habeas corpus petition will be denied.

For the reasons set forth above, the Commonwealth has established that the “proof is evident or presumption great” that defendant may be convicted of first-degree murder, which results in a maximum sentence of life imprisonment. Therefore, defendant’s petition for bail must be denied.

Accordingly, I enter the following:

ORDER

AND NOW, March 10, 2009, upon consideration of defendant’s petitions for writ of habeas corpus and for bail, the Commonwealth’s responses thereto, the briefs filed by the parties, and oral argument of counsel, it is hereby ordered that said petitions are denied.

      . The Commonwealth charged defendant with homicide generally pursuant to 18 Pa.C.S. §2501, rather than charging her with a particular degree of murder pursuant to 18 Pa.C.S. §2502.

      . Morphine is a schedule II substance under the Controlled Substance, Drug, Device, and Cosmetic Act of April 14, 1972 (P.L. 233, no. 64). (See notes of testimony (N.T.), preliminary hearing at 74.)

      . Upon this court’s request, a transcript of the preliminary hearing was provided by the Commonwealth prior to the oral argument on bail.

      . As a plurality decision, Buchanan lacks precedential value. See In the Interest of O.A., 552 Pa. 666, 676 n.4, 717 A.2d 490, 496 n.4 (1998) (legal conclusions or reasoning employed in plurality opinion are not binding authority). See also, Ramsay v. Pierre, 822 A.2d 85, 91 (Pa. Super. 2003); Commonwealth v. Hanawalt, 419 Pa. Super. 411, 419, 615 A.2d 432, 437 (1992).

      . As stated by Justice Cerillo in Fox, supra at 233-34, 619 A.2d at 332: “[W]hile the Buchanan plurality suggests a right to confront and cross-examine at a preliminary hearing, citing the United States and Pennsylvania constitutions in support thereof, the precise holding in Buchanan is that hearsay testimony alone (emphasis added) is insufficient to establish a prima facie case at a preliminary hearing. Hence, Fox’s reliance on Buchanan is misplaced.” See also, Commonwealth v. Nieves, 876 A.2d 423, 425 n.2 (Pa. Super. 2005).

      . The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Constitution Amendment VI.

      . In so doing, the court announced a new interpretation of the confrontation clause, overruling, in part, its earlier holding in Ohio v. Roberts, 448 U.S. 56 (1980), which held the admission of hearsay testimony made by an unavailable witness against a criminal defendant is admissible under the confrontation clause if the statement is surrounded by “adequate indicia of reliability,” that is, when it either fits within a “firmly rooted hearsay exception” or contains “particularized guarantees of trustworthiness.” Crawford, supra at 40 (quoting Roberts, supra at 66.)

      . The Commonwealth contends that Dr. Middleberg’s expert report is not being used to establish the intent element for first-degree murder. Rather, the hearsay evidence is allegedly being proffered, in conjunction with other testimony, to establish sole and exclusive custody by defendant at the time the morphine would have been administered, causing Brent Weaver’s death. (See Commonwealth brief at 2.)

      . In McCloud, the defendant was on trial for murder. The medical examiner who performed the autopsy on the victim was unavailable to testify because he was out of town at a medical conference. The trial court allowed the admission of the medical examiner’s report and its conclusion to establish the victim’s cause of death under the Uniform Business Records as Evidence Act exception to the hearsay rule. The Supreme Court found that the trial court erred in admitting the medical examiner’s conclusion as to cause of death because it established an element of the crime, thereby violating the confrontation clause. Supra at 315-16, 322 A.2d at 656-57. The court noted that the medical examiner’s absence because of his attendance at a medical conference did not constitute “compelling necessity to override the constitutional mandate.” Id. at 315 n.5, 322 A.2d at 656 n.5.

      . For this reason, the Florida case cited by defendant, Johnson v. State, 929 So.2d 4 (Fla. 2005), is inapposite because it dealt with the admission of a lab report at trial. (See defendant’s brief at 3.)

      . The regular nighl nurse worked from midnight to 8 a.m. (N.T., preliminary hearing at 26, 36.) Defendant had requested to come earlier and leave earlier because of child care issues in the morning. (Id. at 36.)

      . Brent was not prescribed any pain medication upon his release from the hospital following his back surgery. Mrs. Weaver was giving him only Motrin for pain. (N.T., preliminary hearing at 34.)

      . Brent had just recently had an allergic reaction to morphine when it was given to him at duPont Hospital following his back surgery. (N.T., preliminary hearing, at 48.) Two years earlier, Brent had been prescribed Tylenol with codeine following a broken leg and it caused his respiration to drop to such a point that an ambulance had to be called to “revive” him and he was hospitalized overnight. (Id. at 46, 49.)

      . The internal stomach tube or “PEG feeding tube” was removed from the victim by Dr. Ross during the autopsy and sent to National Medical Services in Willow Grove, Pennsylvania, for laboratory analysis. (N.T., preliminary hearing at 10.)

      . Affidavit of probable cause identifies the area beside the kitchen where the night nurse stayed as the “living room,” while Mrs. Weaver’s testimony at the preliminary hearing was that the room is referred to as their “family room.” (See N.T., preliminary hearing at 30, 42.)

      . The affidavit of probable cause lists the date as June 20, 2003, but Detective Geesey testified at the preliminary hearing that it was actually August 20, 2003. (N.T., preliminary hearing at 57, 65.)

      . Defendant told the detectives: “[S]he didn’t particularly want to be there that night. She needed the money, but she was — had a lot of things to do. She wasn’t feeling that well and that she didn’t really want to be there.” (N.T., preliminary hearing at 59.) The affidavit of probable cause prepared by Detective Fitzsimmons notes that during this interview, defendant stated: “[S]he worked at the Weaver’s that night but really didn’t want to be there. [Defendant] also said that she was ‘not into doing it,’ but needed the money, she was separated from her husband and times were hard.” (Affidavit of probable cause at 122.)

      . On two occasions, defendant stated during police interviews that she went into Brent’s bedroom at 6 a.m. to administer his morning medications. Mrs. Weaver testified that she explicitly warned defendant that she alone administered medications to her son. (N.T., preliminary hearing at 30, 41.) Mrs. Weaver had prepared her son’s morning medications the previous night before going to bed and had placed them in the refrigerator. (Id at 42.)

      . Mrs. Weaver testified that when Brent’s leg was broken and he was administered Tylenol with codeine, she called her doctor because Brent’s respirations were getting low and she was worried. The doctor advised her that she would know he was “having problems if he [became] lethargic.” (N.T., preliminary hearing at 48-49.) Brent did show signs of lethargy, an ambulance was called and he needed to be resuscitated and hospitalized. (Id. at 46.)

      . The Crimes Code provides:

        “(a) Offense defined. — Aperson is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

        “(b) Classification. — Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.” 18 Pa.C.S. §2501.

      . The Superior Court also found in this case that unidentified household chemicals were not to be considered a “deadly weapon” for purposes of the deadly weapons enhancement rule where the charge of aggravated assault stemmed from the defendant’s attempt to manufacture a poisonous gas by pouring household chemicals down the bathtub drain. The court noted that as there was no evidence offered as to the specific identity or nature of the chemicals the defendant used, the lower court did not err in declining to apply the deadly weapons enhancement. Raybuck, supra at 129-30.

      . In Commonwealth v. Bradfield, 352 Pa. Super. 466, 508 A.2d 568 (1986), the defendant was found guilty of first-degree murder where the victim’s cause of death was determined to be asphyxiation from an overdose of morphine, which was consistent with having been caused by criminal agency. See also, Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989).

      . See also, 18 Pa.C.S. §§302(b)(3) and 302(b)(4), where the Crimes Code defines reckless and negligent conduct.

      . The United States Supreme Court has held that the excessive bail clause of the Eighth Amendment to the United States Constitution does not guarantee a right to bail in all cases. See U.S. v. Salerno, 481 U.S. 739, 752-54 (1987). See also, Commonwealth v. Fowler, 451 Pa. 505, 509-10, 304 A.2d 124, 126 (1973).

      . The previous language of Section 14 was as follows: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great;....” Pennsylvania Constitution Article I, Section 14.

      . Noting that there is no common-law, statutory or constitutional right to a preliminary hearing, our Supreme Court held in Commonwealth ex rel. Walls v. Maroney, 416 Pa. 290, 205 A.2d 862 (1965), that a defendant is not denied any of his constitutional rights because of the absence of a preliminary hearing, where there has been a coroner’s inquest. Id. at 294, 205 A.2d at 864 (citing Commowealth ex rel. Bandi v. Ashe, 367 Pa. 234, 80 A.2d 62 (1951)). Thus, at the time of the Alberti decision, a coroner’s inquest was the functional equivalent to a preliminary hearing.

      . In a one-page opinion, the Supreme Court held that orders by the trial court denying a 14-year-old defendant’s motions requesting the court to quash the indictments and to return the case to the Family Court Division for disposition were interlocutory and unappealable. The appeal of the order denying bail was dispensed with by the court in just one sentence: “Since evidence offered at the preliminary hearing in the Family Court Division established a prima facie case of murder in the first degree, the court below did not err in refusing to release Farris on bail pending trial, and its order to this effect will be affirmed.” Farris, supra at 253, 278 A.2d at 907. The court made this pronouncement without any reference to, or analysis of, the prior Alberti decision.

      . Each of the cases referred to above considered the availability of bail to one accused of first-degree murder prior to the 1998 constitutional amendment to Article I, Section 14. Prior to the amendment, the Constitution limited its prohibition of bail to those charged with capital offenses. This distinction has no affect on the court’s interpretation of the language at issue.

      . The prima facie standard is sufficient to detain the accused yet consistent with the presumption of the accused’s innocence. McBride, supra at 157-58, 595 A.2d at 591.


source: Caselaw Access Project

author: MINORA, J,

license: Public Domain

text:
    Lancaster v. Petco Animal Supplies Inc.

      Todd A. Johns, for plaintiffs.

      Christopher A. Piazza, for defendant Petco Animal Supplies Inc.

      Marc B. Zingarini, for additional defendants Realty Income and JL Associates.
    April 28, 2009
   MINORA, J,

The dispositive issue before the court is additional defendants Really Income and JL Associates’ partial motion for summary judgment.

FACTUAL HISTORY

Plaintiff Gwendolyn Lancaster sustained injuries following a trip and fall at the Petco Animal Supplies Inc. store located on Route 6, Dickson City, Pennsylvania 18519, on May 1,2001. Plaintiff alleges she was injured after her unsuccessful attempt to step onto an unusually - high curb that improperly elevated the sidewalk from the parking lot at the Petco location. She further alleges improper placement of handicapped access ramps at that same site.

Plaintiff commenced this action by filing a praecipe for writ of summons in civil action, filed on April 28, 2003. Plaintiff then filed her complaint on March 31, 2005 naming Petco Animal Supplies Inc. as the sole defendant. Plaintiff’s complaint included the following claims against Petco:

“(6) That, the injuries suffered by the plaintiff, Gwendolyn Lancaster, were caused solely by the carelessness, recklessness, and negligence of the defendant, Petco, in the following respects and particulars:
“(a) Causing, allowing and permitting a dangerous condition to exist on said premises, which condition included, but was not limited to, an overly elevated curb/sidewalk situated at the parking lot and curb/sidewalk area separation five feet from the main entrance when the defendant, Petco, knew, or by the existence of reasonable care, should have known, of its existence and of the danger presented to persons lawfully traversing the overly elevated curb/sidewalk from the parking lot to the main entrance in their capacity as business invitees;
“(b) In failing to discover what a reasonable inspection of the said curb/sidewalk would have discovered, that, it was overly elevated in violation of Pennsylvania law, which caused a dangerous and unreasonably unsafe condition, which constituted a hazard to persons lawfully traversing from the parking lot to the main entrance;
“(c) In failing to comply with Pennsylvania law, the defendant, Petco, failed to provide for handicap parking spaces in the required proximity to a ramp entrance, rather than the said overly elevated curb/sidewalk, which caused a dangerous and unreasonably unsafe condition, which constituted a hazard to persons lawfully traversing from the parking lot to the main entrance;
“(d) Failing to warn the plaintiff, Gwendolyn Lancaster, of the dangerous and hazardous condition created by the overly elevated curb/sidewalk;
“(e) Failing to post or apply adequate warning signs, or other notice to advise persons lawfully traversing said curb/sidewalk of the existence of a dangerous condition;
“(f) In creating the dangerous condition by permitting a dangerous condition to exist when the defendant, Petco, knew, or should have known, that people would be traversing said curb/sidewalk to access the main entrance.” See plaintiff’s complaint at ¶6.

PROCEDURAL HISTORY

Defendant Petco filed a praecipe for writ to join additional defendants JL Associates and Realty Income t/d/b/a and/or successors in interest to JL Associates on April 19, 2005. Thereafter, on January 17, 2006, additional defendants Realty Income filed a motion to join additional defendants Murray Jay Miller and Palucci Engineering P.C. The parties elected to submit this matter for argument on brief. By order dated October 25, 2006, this court granted defendant Realty Income’s motion to join additional defendants Murray Jay Miller and Palucci Engineering.

On February 9, 2007, defendant Murray Jay Miller and defendant Palucci Engineering each filed a separate praecipe for entry of judgment non pros pursuant to Pa.R.C.P. 1042.6 against defendant Realty Income with the clerk of judicial records of Lackawanna County, asserting that defendant Realty Income failed to file a certificate of merit as to these defendants pursuant to Pa.R.C.P. 1042.3. Further, each defendant argued that defendant Realty Income also failed to seek a motion for an extension of time to file the certificate of merit. A notice pursuant to Pa.R.C.P. 236 was issued by the prothonotary in Lackawanna County on February 9, 2007 and judgment of non pros was entered against defendant Realty Income.

Thereafter, on February 20, 2007, defendant Realty Income filed a petition to strike/open judgment of non pros, which was denied by this court in an order dated September 6, 2007. Said order also denied defendant Realty Income’s motion to join additional defendant RW Piper Construction.

On November 13,2007 defendant Realty Income filed a motion for summary judgment. Defendant Petco responded to said motion on December 14, 2007 and plaintiff filed an answer on December 17, 2007. The matter was scheduled for oral argument on February 28, 2008, and the motion was denied from the bench that day.

On August 18,2008 additional defendants Realty Income filed a partial motion for summary judgment. On September 9,2008, defendant Petco filed a response to the partial motion for summary judgment, and brief in opposition on January 12,2009. On September 16,2008, plaintiff filed a response to partial motion for summary judgment adopting and incorporating defendant Petco’s response, and a brief in opposition on Januaiy 23,2009 adopting and incorporating defendant Petco’s brief in opposition. An oral argument for the matter was held on February 23,2009. This matter is now ripe for disposition.

STANDARD OF REVIEW

Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for summary judgment in whole or in part as a matter of law.
“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

As we know, summary judgment may be granted only if the record clearly shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, and the moving party has the burden of proving no genuine issues of fact exist. Abrams v. Pneumo Abex Corp., 939 A.2d 388, 390 (Pa. Super. 2007). A material fact is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). A proper grant of summary judgment depends upon an evidentiary record that either: (1) shows that the material facts are undisputed; or (2) contains insufficient facts to make out a prima facie cause of action or defense and therefore, there is no issue to submit to jury. Gateway Towers Condominium Association v. Krohn, 845 A.2d 855, 858 (Pa. Super. 2004); see also, Pa.R.C.P. 1035.2. For purposes of a summary judgment motion, a non-moving party may not rely merely upon allegations in pleadings, but must set forth specific facts by way of affidavit or in some other way to demonstrate that genuine issue of material fact exists. Banks v. Trustees of the University of Pennsylvania, 446 Pa. Super. 99, 666 A.2d 329 (1995); see also, Pa.R.C.P. 1035.3(a).

However, “summary judgment is to be entered only in the clearest of cases where there is not the slightest doubt as to the absence of a triable issue of material fact.” Northern Tier Solid Waste Authority v. Commonwealth, Department of Revenue, 860 A.2d 1173, 1182 (Pa. Commw. 2004). “In determining whether to grant summary judgment, the court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party.” Craig v. Amateur Softball Association of America, 951 A.2d 372, 375 (Pa. Super. 2008).

LEGAL ARGUMENTS OF THE PARTIES

Additional defendants assert that they cannot be liable to the plaintiff because plaintiff’s cause of action is barred by the statue of limitations. Additional defendants assert that the statue of limitations for an action to recover damages for personal injuries is two years from the date of the accident. 42 Pa.C.S. §5524(2). Plaintiff initiated suit against defendant Petco by writ of summons on April 28, 2003 and filed a complaint alleging negligence on March 31, 2005. Petco joined additional defendants by praecipe and writ of summons on April 19, 2005 and filed a joinder complaint against additional defendants on April 25,2007. Additional defendants therefore assert since plaintiff claims her injuries were sustained on or about May 1, 2001 and that since she is alleging negligence as her cause of action, the statute of limitations for plaintiff’s alleged accident expired on May 1,2003. Therefore, additional defendants assert that since they were not joined until April 19, 2005 plaintiff is barred from pursuing a direct claim against additional defendants.

Defendant Petco asserts that in an action to recover damages upon a written contract, including contract for construction of real estate, the statute of limitations is four years. 42 Pa.C.S. §5525. Defendant Petco asserts that prior to the plaintiff’s accident additional defendants entered into a contract/lease agreement with defendant Petco, which included an agreement to construct a retail store, and attach a sidewalk and parking lot. That plaintiff is a third party beneficiary to that contract and that since her injuries are a result of a breach of the contract, plaintiff can recover directly for the additional defendants and the proper statute of limitations is four years. In the instant matter the statute of limitations did not expire until May 1, 2005, and, that since additional defendant was joined on April 19,2005 they were brought in prior to the expiration of the statute of limitations. Defendant Petco also asserts that additional defendants failed to object to their joinder by filing preliminary objections as set forth in Pa.R.C.P. §2253.

LEGAL ANALYSIS

The issue presently before the court is one that is properly resolved by summary judgment. It is a legal analysis of the nature of plaintiff’s cause of action and the applicable statute of limitations, which does not involve issues of fact more suitable for juiy resolution. As such, this is an issue which need not be decided by a jury and can be properly disposed of via summary judgment. Devine v. Hutt, 863 A.2d 1160, 1167 (Pa. Super. 2004).

Further an affirmative defense of a statute of limitations is not properly raised in preliminary objections; it is properly raised in new matter. Id. As such, defendant Petco’s assertion that additional defendants should have raised this issue through preliminary objections to the joinder complaint is incorrect.

The applicable parts of 42 Pa.C.S. §5524 state:

“The following actions and proceedings must be commenced within two years:
“(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
“(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud.”

The applicable parts of 42 Pa.C.S. §5525 states:

“General rule. Except as provided for in subsection (b), the following actions and proceedings must be commenced within four years:
“(3) An action upon an express contract not founded upon an instrument in writing.
“(4) An action upon a contract implied in law, except an action subject to another limitation specified in this subchapter.
“(8) An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except an action subject to another limitation specified in this subchapter.”

Once the statute of limitations has run a cause of action may not be brought. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. Blaine v. York Financial Corp., 847 A.2d 727, 729 (Pa. Super. 2004). “It is well-established that where an original defendant wishes to join an additional defendant who is not already a defendant in the action on the ground that the additional defendant is solely liable on the plaintiff’s cause of action, the original defendant must act within the statute of limitations applicable to the plaintiff’s cause of action.” Hileman v. Morelli, 413 Pa. Super. 316, 326, 605 A.2d 377, 382 (1992). (emphasis in original) If a plaintiff has no cause of action against a person sought to be joined as an additional defendant, that person may not be brought in upon an allegation that the person is solely liable to the plaintiff. Standard Pennsylvania Practice 2d, SPP §14:229.

“[I]n Pennsylvania, the nature of the relief requested, rather than the form of the pleading, determines which statute of limitations controls a particular action.” Ritchey v. Pott, 431 Pa. Super. 219, 221, 636 A.2d 208, 210 (1994); Spack v. Apostolidis, 353 Pa. Super. 362, 365, 510 A.2d 352, 353 (1986); Murray v. University of Pennsylvania Hospital, 340 Pa. Super 401, 490 A.2d 839 (1985).

“Thus, to determine which statute of limitations is applicable, the trial court should look to the gravamen of the action, to the underlying wrong that the complaint alleges was done, not the label applied to it by the parties, and determine the nature of the damages sought to be recovered.

“The shorter statute of limitations applicable to causes of action for personal injuries cannot be avoided by the expedient of pleading in contract. Thus, where the damages sought to be recovered are for personal injuries, whether the cause of action is pleaded in contract or in tort, the two-year period of limitations for personal injuries is applicable. If, however, recovery is sought for the cost of completing performance of the contract or remedying defects in performance, the applicable statute of limitations is that for breach of contract.” Standard Pennsylvania Practice 2d, SPP §13:19.

The 42 Pa.C.S. §5524, two-year statute of limitations contains general language which does not distinguish between personal injuries resulting from negligence or contract breaches, but covers all claims for recovery of damages for personal injury. Murray, supra.

Even assuming that plaintiff is a third-party beneficiary to the contract between defendant Petco and additional defendants, in order for plaintiff to recover directly from the additional defendants, the suit must have been initiated against additional defendants within the applicable statute of limitations. In order to determine what statute of limitations applies, the two-year for negligence/personal injury or four-year for contract, an analysis of plaintiff’s claim and requested damages must be done.

In the case sub judice the plaintiff has plead that “carelessness, recklessness, and negligence of defendant Petco” cause her to suffer injuries which include “suffering great pain and agony; that prevented her from attending to usual daily activities, that required medical treatment; and that deprived her of the ordinary and usual enjoyment of her life, family, social, economic, and recreational activities because of the nature, extent, severity, and degree of her injuries.” Plaintif’s complaint at ¶10. Plaintiff also asserts a claim for severe emotional distress. Plaintif’s complaint at ¶13. The majority of damages plaintiff is seeking to recover are for physical/personal injuries and medical bills related to that treatment. Plaintiff’s complaint a^8; see also, plaintiff’s complaint at ¶6, supra pp. 2-3.

Black’s Law Dictionary defines personal injury as: Torts. (1) In a negligence action, any harm caused to a person, such as a broken bone, a cut, or a bruise; bodily injury. (2) Any invasion of a personal right, including mental suffering and false imprisonment. Black’s Law Dictionary (8th ed. 2004), injury. As plaintiff is seeking to only recover damages to her body, personal injuries, and not standard contract damages, the appropriate statute of limitations is two years per 42 Pa.C.S. §5524.

CONCLUSION

Because plaintiff’s cause of action is based on personal injuries the appropriate statute of limitations is two years. As such, additional defendants were not joined within the statute of limitations time period, and plaintiff cannot recover directly against additional defendants. Therefore, additional defendants’ partial motion for summary judgment is granted. However, this opinion does not affect defendant Petco’s claim of contribution or indemnification, as that claim has its own statute of limitation, and said issue is not currently before the court.

An appropriate order follows.

ORDER

And now, April 28, 2009, upon consideration of the pleadings and their supporting briefs, additional defendants Realty Income and JL Associates’ motion for partial summary judgment is granted, on the issue of direct liability to the plaintiff only.

      . This court has reiterated verbatim the “fact” section of our September 6, 2007 opinion pertaining to a different issue in this case.

      . Pa.R.C.P. 1035.2.

      . And plaintiff by adopting and incorporating Petco’s argument in their response and brief.

      . Where the original defendant wishes to join an additional defendant who is not already a defendant in the action on the ground that the additional defendant is liable to the original defendant for contribution or indemnity, the statute of limitations on the plaintiff’s cause of action is irrelevant. The claim of the original defendant for contribution or indemnity is the original defendant’s own separate cause of action which does not even arise until he has been held liable to plaintiff. Id.; see also, Carcaise v. Cemex Inc., 200 Fed.Appx. 116, 127 (C.A. 3 (Pa.) 2006).