author: MOTTO, P.J.,

text:
    Commonwealth v. Hill

      C.P. of Lawrence County,
    no. 90 of 2010, CR.

      William J. Flannery, assistant district attorney, for Commonwealth.

      Bradley G. Olson Jr., for defendant Hill.

      Michael A. Frisk Jr., for defendant Adam Pounds.

      Jonathan R. Miller, for defendant Melissa Pounds.
    October 29, 2010
   MOTTO, P.J.,

Before the court for disposition are the petitions for a writ of habeas corpus filed on behalf of each of the defendants which contend that the commonwealth failed to establish a prima facie case that the defendants committed any of the offenses with which they were charged. The cases were consolidated for purposes of trial as they all arise out of the same incident and involve the same witnesses and victims.

The defendants and the commonwealth agreed that the issues could be resolved by review of the transcript of the preliminary hearing, from which the court finds the following: On the evening of October 19, 2009, officer Michael McBride and Officer Chris Hardie of the Ellwood City Police Department were dispatched to the area of 13th Street and Beaver Avenue in Ellwood City for a report of a male being assaulted. Upon arrival, the officers spoke with a female at 1224 Beaver Avenue who advised them that a white male had just knocked at her door and asked her to call the police because his friend was being assaulted in the residence across the street. The officers went to the residence across the street and knocked on the door and there was no answer. The officers checked the surrounding area to see if they could locate any victims and viewed a gold Dodge Dakota occupied by Melinda Pounds, John Borkovich Jr., and a 14-year-old female juvenile. Officer McBride spoke to them briefly and asked them if they saw an assault or commotion in the area and they advised him they saw nothing and drove off. Officer McBride proceeded to drive around the area, and, upon turning onto Volps Way, saw a black male lying in the shrubs along the side of the alleyway wearing only underwear and a sock. Upon approaching the man, Officer McBride viewed cuts and bruising all over his body including his face, arms, back, chest and legs. The victim, who was later identified as Gary Brooks II, was unable to get up on his own, was screaming in pain and was unable to tell the officer what had occurred. As Officer McBride was waiting for the ambulance to arrive to take the victim to the hospital he advised other units to be on the look-out for the gold Dodge Dakota.

The vehicle was found and the occupants were brought to the police station for questioning. Melinda Pounds gave a statement that as she was leaving her house at 104 13th Street her brothers, Adam and Justin Pounds, were in the residence with some black males and they were fighting. Officer McBride proceeded to the hospital to try and interview the victim, Mr. Brooks, who was very confused and disoriented. Officer McBride was told by Mr. Brooks’ wife that he was shot in the head a few years ago and is now mentally challenged and that he and his friend Steven Plum would come to the police station to speak with them tomorrow. Officer McBride was informed that Mr. Brooks was with Mr. Plum at the 13th Street residence when they both were assaulted and it was Mr. Plum who ran from the residence and solicited the neighbors to call the police.

The next morning Mr. Brooks and Mr. Plum went to the police station to be interviewed by Lieutenant Dave Kingston. Mr. Plum explained the events that transpired the night before. Mr. Plum stated that about 4:00 p.m. Mr. Brooks called Melinda Pounds. She invited him over to her house to hangout with her and a few friends. Because of Mr. Brooks’ limited mental capacity, Mr. Plum decided to go with him to this house. When they arrived at the residence they were met by Melinda Pounds and another female who walked them into the residence and then down into the basement. The basement was dark and Melinda Pounds lead then into a back room and asked Mr. Plum for his cell phone. When he refused to give her his cell phone, she turned the lights on and there were numerous men, some with masks on, standing around the room. Mr. Plum estimated that there were between nine to ten men standing in the room and one man sitting on the bed. Several of the men had weapons including a hammer, pipe, broomstick, a bottle of Mean Green spray and a piece of gas-line with bolts in it. The men standing around the room told Mr. Plum and Mr. Brooks that they were being robbed and that they were leaving there naked. Mr. Plum said that the men took his cell phone and ball cap and he was struck several times all over his body resulting in physical injury. Mr. Plum tried to grab Mr. Brooks and run upstairs but the men in the room had surrounded Mr. Brooks, so Mr. Plum proceeded to run upstairs and out of the residence and over to the neighbors house to call for help.

Although Mr. Brooks was unable to speak to the police because of his mental condition, the police were advised that while he was at the 13th Street residence he was robbed of his black Dickies coat, black Nike shoes, a black hat, his blue jeans, his prescription Hydrocodone and his gold wedding band.

On November 29, 2009, Mr. Plum went back to the police station where Officer McBride and Lt. Kingston conducted two photo arrays. The first photo array contained 40 photos of white males. Mr. Plum positively identified Michael Viccari and a 17-year-old male juvenile as two of the men who participated in assaulting and robbing him and Mr. Brooks that night at Melinda Pounds’ residence. The second photo array contained 16 photos of black males and Mr. Plum was able to positively identify James Hill III as another actor.

As a result of information received through interviews and Mr. Plum’s identification of the actors involved in the assault and robbery, defendants Melinda Pounds, Adam Pounds and James Hill III were arrested. James Hill III and Adam Pounds were charged with criminal conspiracy to commit robbery, criminal conspiracy to commit robbery - inflict threat of imminent bodily injury, criminal conspiracy to commit simple assault, criminal conspiracy - aiding in simple assault.criminal conspiracy to commit theft by unlawful taking, criminal conspiracy - aiding in theft by unlawful taking, two counts of robbery, two counts of simple assault, and two counts of theft by unlawful taking at case numbers 90 of 2010 and 91 of 2010 respectively. In addition, Melinda Pounds was' charged with two counts of criminal conspiracy to commit robbery and two counts of criminal conspiracy to commit theft by unlawful taking at case number 92 of 2010. A preliminary hearing was held on January 28, 2010, before Magisterial District Judge Jennifer Nicholson. Mr. Plum testified against the defendants. Mr. Plum identified Melinda Pounds as the female who invited him and Mr. Brooks into the house and escorted them into the basement where they were robbed and attacked by group of males. Mr. Plum positively identified James Hill, III as one of the black men who attacked him in the basement and struck him with a broom stick. Mr. Plum was not able to positively identify Adam Pounds as one of the males who attacked him. Magisterial District Judge Nicholson bound all the charges against James Hill, III and Melinda Pounds and the conspiracy charges against Adam Pounds over to this court. The defendants filed a petition for writ of habeas corpus, which contends the commonwealth failed to establish a prima facie case that the defendants committed any of the offenses with which they were charged.

Filing a petition for a writ of habeas corpus is the appropriate method by which a defendant may challenge a pre-trial finding that the commonwealth has presented sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 674 A.2d 249 (Pa. Super. 1996); see also Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1995); Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002). However, in a habeas corpus proceeding, the commonwealth may present evidence, additional to what was presented at the preliminary hearing, in order to establish that the defendant has committed the elements of the offense as charged. Karlson, 674 A.2d 249.

In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). The commonwealth must satisfy this evidentiary burden by presenting evidence that established a crime was committed and that there is a probability that the defendant committed the crime. Commonwealth v. Fox, 619 A.2d 327 (Pa. Super. 1993). The commonwealth establishes a prima facie case by offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, Pa. 580 A.2d 412 (Pa. Super. 1990). The commonwealth is not required to prove this by the “beyond a reasonable doubt” standard; however, the commonwealth must satisfy a standard of “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994).

The commonwealth meets the burden of establishing a prima facie case when it submits evidence that, if accepted as true, would warrant a trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). Evidence must be presented concerning each element of the crime charged. Id. Such evidence must be viewed in the light most favorable to the commonwealth. Id. Furthermore, the commonwealth is entitled to all reasonable inferences that can be drawn from the evidence presented. Id. The weight or credibility of the evidence is not at issue during the preliminary hearing. Id.

In each of the cases before this court the defendants are charged with two counts of criminal conspiracy to commit robbery and two counts of criminal conspiracy to commit theft by unlawful taking, one count on the theory of an agreement between defendants whereby they would engage in conduct which would constitute robbery and theft by unlawful taking and a separate count on the theory that defendants agreed to aid each other in the planning or commission of the crimes of robbery and theft by unlawful taking. In addition, defendants James Hill III and Adam Pounds are also charged with two counts of criminal conspiracy to commit simple assault, one count on the theory of an agreement between defendants whereby they would engage in conduct which would constitute simple assault and a separate count on the theory that defendants agreed to aid each other in the planning or commission of the crime of simple assault.

Criminal conspiracy is defined by statue as follows:

Criminal Conspiracy, 18 Pa.C.S.A. §903
(a) Definition of conspiracy. - A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Conspiracy is the agreement of two or more persons to act in concert for a criminal purpose. The commonwealth must prove that (1) defendant entered an agreement to commit or aid in an unlawful act with another person or persons; (2) with a shared criminal intent; and that (3) an overt act was done in furtherance of the conspiracy. Commonwealth v. Johnson, 920 A.2d 873 (Pa. Super. 2007); Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025, 1030 (1996), cert. denied, 520 U.S. 1231, 117 S.Ct. 1825 (1997).

The essence of a criminal conspiracy is the common understanding that a particular criminal objective is to be accomplished. Commonwealth v. Keefer, 338 Pa. Super. 184, 487 A.2d 915, 918 (1985). Mere association with the perpetrators, mere presence as the scene, or mere knowledge of the crime is insufficient. Id. Rather, the commonwealth must prove that the defendant shared the criminal intent, i.e., that the defendant was an active participant in the criminal enterprise and that he had knowledge of the conspiratorial agreement. Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000). The defendant does not need to commit the overt act; a co-conspirator may commit the overt act. Commonwealth v. Johnson, 719 A.2d 778,784 (pa. Super. 1998) (en banc), appeal denied, 559 Pa. 689, 739 A.2d 1056 (1999).

A conspiracy is almost always proved through circumstantial evidence. Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super 1994). The conduct of the parties and the circumstances surrounding their conduct may create ‘a web of evidence’ linking the accused to the alleged conspiracy beyond a reasonable doubt. Johnson, 719 A.2d at 785. The evidence must, however, rise above mere suspicion or possibility of guilty collusion. Swerdlow, 636 A.2d at 1177. In Swerdlow, the court established criteria to follow when determining the existence of a criminal conspiracy:

Among the circumstances that are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish ‘a web of evidence’ linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Id. at 1177.

Once there is evidence of the presence of a conspiracy, conspirators are liable for acts of co-conspirators committed in furtherance of the conspiracy. Commonwealth v. Stocker, 622 A.2d 333,342 (Pa. Super 1993). Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators taken in furtherance of the conspiracy. Commonwealth v. Soto, 693 A.2d 226,229-30 (Pa. Super. 1997), appeal denied, 550 Pa. 704, 705 A.2d 1308 (1997).

In the cases sub judice, Mr. Plum testified that Melinda Pounds had a phone conversation with Mr. Brooks in which she invited him to her house to hang-out for the evening. She gave them directions and met them at the Dollar General store and walked them the rest of the way over to her house and down into the basement. The basement was dark and Melinda Pounds lead then into a back room and asked Mr. Plum for his cell phone. When he refused to give her his cell phone, she turned the lights on and there were nine to ten men, some with masks on, standing around the room with weapons including a hammer, pipe, broomstick, a bottle of Mean Green spray and a piece of gas-line with bolts in it. The men stated to Mr. Plum and Mr. Brooks that they were being robbed and that they were leaving there naked. Mr. Plum said that the men took his cell phone and ball cap and he was struck several times all over his body resulting in physical injury. Mr. Plum unequivocally identifies Melinda Pounds as the woman who invited him into her home lead him down into the basement and into a dark room in the back where men were waiting to rob him and Mr. Brooks of their personal possessions and James Hill III as the one hitting him with the broom-stick and taking his cell phone. If Mr. Plum’s testimony is accepted as true, for the purposes of evaluating the defendant’s motion for writ of habeas corpus, then the commonwealth has established a prima facie case as to the conspiracy to charges against Melinda Pounds and James Hill III.

Defendant Melinda Pounds argues that the commonwealth has failed to present any evidence that she entered into an agreement with any of the co-defendants to promote or facilitate the crime of robbery or theft. Robbery and theft by unlawful taking are defined as follows:

Robbery, 18Pa.C.S.A. §3701.
(a)(1) Offense defined. - A person is guilty of robbery if, in the course of committing a theft, he:
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;
Theft By Unlawful Taking, 18 Pa.C.S.A. §3921.
(a) Movable property. - A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

The conduct of Melinda Pounds and James Hill III supports the finding that they entered into an agreement whereby they would commit the offenses of robbery and theft upon the victims and they agreed to aid each other in the commission of the offenses of robbery and theft. Melinda Pounds contends that the only testimony presented was that Mr. Plum and Mr. Brooks went to her residence to hang out with her and another girl and that they entered the basement where the assault and robbery allegedly occurred. Melinda Pounds further argues that the fact that Mr. Plum and Mr. Brooks were assaulted and robbed in the basement allegedly by the co-defendants and unnamed other males is, in and of itself, insufficient to establish that an agreement existed between her and these individuals. This court disagrees.

Melinda Pounds invited the victims over to her house and escorted them into a dark basement where James Hill III and a number of other men were waiting with masks and weapons to rob them. As Ms. Pounds was escorting them downstairs she tried to take Mr. Plum’s cell phone from him. After she brought them into the back room, one of the men in the basement stated to the victims that they were being robbed and they were leaving there naked. It can be inferred that an agreement existed between Melinda Pounds and the other individuals present in the basement that she would invite the victims to the residence, escort them into the back room of the basement in the dark and turn the light on as her co-conspirators were waiting with masks and weapons to rob the victims. In his testimony, Mr. Plum set forth an account of the events that transpired leading up to, during, and after he and Mr. Brooks were escorted into Ms. Pounds’ basement where he and Mr. Brooks were assaulted and robbed. In his recollection, he stated that once he and Mr. Brooks were in the house Melinda Pounds took them directly down into a back room of the basement, and, after trying to take his cell phone, she turned the lights on, exposing nine or ten men standing around the room, one of them James Hill III, telling them they we being robbed and they were leaving the house naked. One of the males wearing a mask and holding a hammer and told him to “empty his pockets, we’re taking everything.”. Mr. Plum’s testimony, when reviewed in a light most favorable to the commonwealth, provides sufficient evidence that Melinda Pounds and James Hill III conspired to commit robbery and theft.

In the case against Adam Pounds, Mr. Plum was unable to identify Mr. Pounds as one of the perpetrators in the house when he and Mr. Brooks were robbed and assaulted. When officer McBride testified, he stated that in his initial interview with Melinda Pounds she stated that her brothers Adam and Justin Pounds were home earlier in the day wrestling around in the kitchen, but she did not say that Adam Pounds was in the basement at any time. The only person mentioning Adam Pounds was Melinda Pounds in her statement to Officer McBride on the night of the attack when she stated that her brother, Adam Pounds, and another brother, were fighting in the residence with black males. The statement made at the preliminary hearing by Officer McBride is hearsay and inadmissible against the co-defendant Adam Pounds, and even if admissible, does not implicate Adam Pounds in a conspiracy, or in any of the crimes with which he is charged. Because Mr. Plum is not able to identify Adam Pounds as being present in the basement and there is no other evidence implicating him in the conspiracy, the commonwealth cannot present a prima facie case that Adam Pounds was associated with the co-conspirators, that he had knowledge of the commission of the crimes or that he was part of a conspiracy to commit robbery and theft upon the victims. Therefore, the conspiracy to commit robbery and the conspiracy to commit theft charges against him must be dismissed.

Additionally, defendants James Hill and Adam Pounds were charged with conspiracy to commit simple assault. Simple assault is defined as follows:

Simple Assault. 18 Pa.C.S.A. § 2701.
(a) offense defined. - A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(3) attempts by physical menace to put another in fear of imminent serious bodily injuiy;

This court has already reviewed the evidence as it relates to the charge of conspiracy. The charge of simple assault requires that one cause or attempt to cause bodily injury to another. In his testimony, Mr. Plum stated that when the lights were turned on in the basement the men standing around him stated “this is a robbery and you are leaving here naked.” Mr. Plum said some of the men were holding weapons and he felt threatened and was in fear of bodily injury. Mr. Plum testified he was hit multiple times and sustained bodily injuries. He stated that while he was in the basement he was struck with a broomstick by defendant James Hill III nd as a result he suffered injuries to his body. Additionally, Officer McBride testified that when he found Mr. Brooks laying on the side of the road he was wearing only underwear and a sock and he had cuts and bruising all over his body including his face, arms, back, chest and legs. Officer McBride stated Mr. Brooks was unable to get up on his own and was screaming in pain. Accordingly, the commonwealth has presented a prima facie case that defendant James Hill III conspired to cause bodily injury to Mr. Plum and Mr. Brooks.

With regard to defendant Adam Pounds, because Mr. Plum was unable to identify Adam Pounds as being present in the basement and there is no other evidence implicating him in the conspiracy, the commonwealth cannot present a prima facie of conspiracy to commit simple assault with respect to this defendant. Thus, the charges of conspiracy to commit simple assault are dismissed.

Finally, defendant James Hill III is also charged with two counts each of robbery, theft by unlawful taking and simple assault, with one count relating to victim Steven Plum and the other count to victim Gary Brooks II. In his testimony, Mr. Plum set forth an account of the events that transpired leading up to, during, and after the assault and robbery in the basement. In this recollection, he identified James Hill III as one of the perpetrators who assaulted him with a broomstick and took his cell phone. Additionally, Mr. Plum testified that as a result of the assault he sustained bodily injury. It is apparent that this testimony, if it is believed, would warrant this court to allow this case to be determined by a jury. This court is precluded from passing judgment on the credibility and weight of the evidence presented at the preliminary hearing because weight and creditability are issues reserved for a jury to decide at a later date. This testimony, when reviewed in a light most favorable to the commonwealth, provides sufficient evidence that defendant James Hill III committed robbery, theft by unlawful taking and simple assault with regard to Mr. Plum.

As for the charges of robbery, theft by unlawful taking and simple assault filed against defendant James Hill III as they relate to victim Gary Brooks II, this court finds that the commonwealth has established a prima facie case. Although there is no direct testimony that Hill himself assaulted or committed a theft against Brooks, Hill was one of the group of men lying in wait in the basement for the purpose of beating and robbing Brooks and Plum. The commonwealth set forth evidence that Mr. Brooks was found on the side of the road assaulted and without his clothes and personal belongings. It is inferable from the evidence that the group of men in the basement of the home collectively had an agreement to act in concert with one another to beat and rob Brooks. Hill was identified as one of those men and therefore an accomplice in the commission of these crimes. In Commonwealth v. Darden, 457 A.2d 549 (Pa. Super 1983), the Superior Court held that where the evidence was sufficient to show that defendant was part of a criminal conspiracy in the robbery of a bank and an accomplice in the robbery, he was vicariously liable for the criminal acts of his co-conspirators in furtherance of the common design. Here, since Hill was part of the conspiracy to beat and rob Brooks and Plum, he is liable for all of the acts of his co-conspirators and accomplices in carrying out the agreed upon objective.

For all the foregoing reasons in this opinion, defendant Adam Pounds’ petition for writ of habeas corpus is granted and all the charges are dismissed. The court finds that the commonwealth has met its burden to prove a prima facie case as to all the charges against defendants Melinda Pounds and James Hill, III, therefore, their petitions for a writ of habeas corpus are each denied.

ORDER OF COURT

And now, October 29, 2010, after hearing on the petition for writ of habeas corpus filed by each of the above defendants, and in accordance with the accompanying opinion of even date herewith, it is ordered, adjudged and decreed as follows:

1. The petition for writ of habeas corpus of defendant James William Hill, III is denied.

2. The petition for writ of habeas corpus of defendant Adam Matthew Pounds is granted and all charges against Adam Matthew Pounds at the above term and number are dismissed.

3. The petition for writ of habeas corpus of defendant Melinda Pounds is denied.

4. The court notes that the above captioned cases of defendant Hill and Melinda Pounds are currently on the November 2010 trial list.

      . 18 Pa.C.S.A. §903(a)(1).

      . 18 Pa.C.S.A. §903(a)(2).

      . 18 Pa.C.S.A. §903(a)(l).

      . 18 Pa.C.S.A. §903(a)(2).

      . 18 Pa.C.S.A. §903(a)(l).

      . 18 Pa.C.S.A. §903(a)(2).

      . 18 Pa.C.S.A. §3701(a)(l)(iv).

      . 18 Pa.C.S.A. §2701(a)(l) and (4).

      . 18 Pa.C.S.A. §3921(a).

      . 18 Pa.C.S.A. §903(a)(l).

      . 18 Pa.C.S.A. §903(a)(l).


source: Caselaw Access Project

author: ALBRIGHT, J.,

license: Public Domain

text:
    Mullin v. Kline

      C.P. of Montgomery County,
    no. 03-13840.

      Theodore J. Caldwell, Jr., for plaintiff.

      Paul P. Gaffney, John P. Shea, Dominique N. Ryan and James C. Stroud, for defendant.
    November 17, 2010
   ALBRIGHT, J.,

The plaintiff, Colleen Mullin, appeals from this court’s order, dated May 25,2010, granting the defendant, Matthew T. Kline, M.D.’s motion for summary judgment and entering judgment in favor of the moving defendant, and against the plaintiff, Colleen Mullin. For the reasons that follow, the undersigned believes that the order, dated May 25, 2010, should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On January 4, 2000, Ms. Mullin underwent a quasi-surgical procedure know as intradiscal electrothermy (IDET) for an L5-S1 intervertebral disc disruption. Matthew T. Kline, M.D. performed the IDET procedure, which allegedly resulted in injuries to Ms. Mullin. Consequently, the plaintiff commenced this medical malpractice action against the defendants on January 2, 2002 in the Philadelphia Court of Common Pleas (No. 04102). On March 11, 2002, Ms. Mullin filed her complaint, asserting negligence and lack of informed consent claims against Dr. Kline. By order, dated April 4, 2003, the trial court in Philadelphia transferred the action to the Montgomery County Court of Common Pleas.

On March 20, 2009, the defendant, Matthew T. Kline, M.D., filed a motion for summary judgment, asserting that no genuine issues of material fact remained and that he was entitled to judgment as a matter of law based on the plaintiff’s failure to establish a prima facie case of lack of informed consent. After argument and, upon consideration of the motion, the parties’ memoranda of law and their post-argument letter submissions, the undersigned, by order, dated May 25,2010, granted the moving defendant, Dr. Kline’s motion for summary judgment and entered judgment in favor of Dr. Kline and against the plaintiff. The order provided the following:

The matter before the court concerns the defendant, Matthew T. Kline, M.D.’s second Motion for Summary Judgment, filed on March 20, 2009, which raises, in particular, one issue not specifically identified, addressed or presented for the court’s consideration of the defendant’s first request for the entry of summary judgment which resulted in the entry of the order of July 27, 2007. That order effectively dismissed all claims of negligence asserted against Dr. Kline and left open the possibility that the plaintiff might still prevail against the defendant based upon the physician’s alleged failure to secure the plaintiff’s informed consent prior to the surgical procedures which Ms. Mullin subsequently experienced.
Though the issue now raised by the defendant Kline is not a particularly new or novel one, it does, nevertheless, go to the heart of the plaintiff’s informed consent claim and her intended reliance upon the defendant physician’s testimony needed to provide her with the expertise required to establish and identify the risks of the procedure involved, as well as the likelihood of those risks occurring. The undersigned has been unable to find any reliable support for the plaintiff’s position, since both the MCare Act, 40 Pa. Cons. Stat. § 1303.101 et seq., and current case law support the opposite view which is now espoused by the defendant and upon which his current motion is based. Without the expert testimony which the plaintiff is required to produce and needs to provide, independent of any other evidentiary support gathered from any source, including the defendant physician, Ms. Muhin’s negligence and informed consent claims cannot and should not be permitted to go forward against Dr. Kline at trial.

[Tr. Ct. Order, 5/25/10] (emphasis added).

Dissatisfied with the undersigned’s dismissal of her lack of informed consent claim, the plaintiff, on June 25, 2010, filed a notice of appeal of the trial court’s order to the Superior Court of Pennsylvania. Thereafter, on July 27, 2010, Ms. Mullin timely filed and served upon the undersigned her statement of matters complained of on appeal (Pa. R.A.P. “1925(b) Statement”), which states:

1. Plaintiff contends this court erred in granting the Motion for Summary Judgment of defendant, Matthew T. Kline, M.D. and, specifically, contends the court erred in its determination that plaintiff could not present sufficient evidence at trial to require her informed consent claims to be decided by a jury. Specifically, plaintiff contends the court erred in accepting moving defendant’s argument that plaintiff had not produced sufficient evidence to establish a prima facie case of lack of informed consent. Plaintiff contends the court failed to consider the admissions from defendant’s own deposition testimony which would have been presented at trial concerning the nature and extent of the risks of the procedure performed on Ms. Mullin. The court further ignored Ms. Mullin’s testimony that she was only ever informed of one of those risks (infection). Contrary to moving defendant’s argument and this court’s ruling, defendant’s testimony concerning the nature and extent of the risks of the procedure taken in combination with plaintiff’s testimony that those risks were not disclosed to her is sufficient to establish a prima facie case of lack of informed consent.
2. Plaintiff contends this court erred in accepting moving defendant’s argument that plaintiff had produced insufficient pre-trial expert testimony to establish a prima facie case of lack of informed consent. Specifically, plaintiff contends this court’s implicit determination that plaintiff would be unable to elicit evidence at trial from moving defendant, an acknowledged expert, sufficient to meet her burden of proof was in error. The case cited by and relied upon by defendant, Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229 (2008), implicitly establishes that evidence sufficient to meet a plaintiff’s burden of proof in an informed consent claim can be elicited from the defendant-physician at trial. In granting summary judgment and denying plaintiff the opportunity to meet her burden of proof at trial in light of the clear testimony from plaintiff establishing that acknowledged risks were not disclosed to her was in error.
3. Plaintiff contends this court erred in reversing its previous denial of summary judgment on the informed consent claim. In response to defendant’s initial motion for summary judgment, this court ruled that plaintiff had presented sufficient evidence to meet her burden of proof on her lack of informed consent claim and to require that her claim be submitted to the jury. The court’s reversal of that ruling in the face of a second Motion for Summary Judgment with no new facts and no change in applicable Pennsylvania law was in error.

DISCUSSION

Pennsylvania law provides that summary judgment is appropriate when the plaintiff, “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.” Pa. R.C.P. 1035.2. In considering the merits of a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party where the moving party has the burden of proving that no genuine issue of material fact exists. Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). Once on appeal, the Superior Court will reverse the trial court’s entry of judgment only if the latter has either committed an error of law or abused its discretion. Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002). .

“To prove lack of informed consent...expert testimony is required...to establish the nature of the risks of the procedure, and their likelihood.” McSorley v. Deger, 905 A.2d 524,532 (Pa. Super. 2006) (citing Moure v. Raeuchle, 604 A.2d 1003, 1008 (Pa. 1992)) (emphasis added). “In order for consent to be considered informed, it must be shown that ‘the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s, would deem significant in making a decision to undergo the recommended treatment... The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment.’” Nogowski v. Alemo-Hammad, M.D., 691 A.2d 950, 957 (Pa. Super. 1997).

In this case, the plaintiff asserts that she could have obtained the requisite expert testimony needed to support her lack of informed consent claim against Dr. Kline by relying solely upon his deposition testimony. (Appendix A-Dr. Kline’s Deposition). While the plaintiff may have been able to carry her burden of establishing or identifying, through expert testimony, the known risks involved in the IDET procedure by relying solely upon Dr. Kline’s deposition testimony, there is noticeably absent from the record any evidence of that which is required to establish the probability of any of those risks occurring. (See Kline’s Dep. at Ex. C. of Def.’s Mot., filed /20/09). Nevertheless, Ms. Mullin “disagrees that such expert testimony is an absolutely required element of informed consent. Plaintiff submits that the sheer magnitude of the potential injury posed by a particular risk can bye [sic] sufficient to allow a jury to determine ‘materiality.’” Pi’s Mem. in Supp. of Ans. to Def.’s Summ. J. Mot., filed 4/14/09, at 2). Contrary to that which the plaintiff asserts, the controlling precedent in Pennsylvania establishes that a jury is only properly equipped to determine the materiality of the risks posed to a particular plaintiff-patient when that jury is supplied with expert testimony on both the “nature of the harm attendant to the procedure, and the probability of that harm occurring.” Nogowski v. Alemo-Hammad, 691 A.2d 950, 957 (quoting Moure, 604 A.2d at 1008).

Furthermore, with regard to the plaintiff’s third and final contention, the trial court does not subscribe to the theory advanced by Ms. Mullin that the “law of the case” doctrine precludes its consideration of the defendant Kline’s second motion for summary judgment. In support of dismissal of Ms. Mullin’s informed consent claim, the moving defendant’s initial motion for summary judgment merely stated, in a conclusory manner that, “plaintiff has likewise failed to produce expert evidence to demonstrate that Dr. Kline failed to obtain plaintiff’s informed consent.” (Def.’s Summ. J. Mot., filed 12/7/06, at 3). At that time, the plaintiff specifically denied Dr. Kline’s assertions and stated that the “medical evidence and admissions by defendant [were] sufficient to establish Dr. Kline’s...failure to obtain plaintiff’s informed consent.” (Pl.’s Ans. to def.’s Summ. J. Mot., filed 1/8/07, at ¶4, 6).

Moreover, in his first motion for summary judgment, the moving defendant did not specifically address the plaintiff’s failure to produce evidence of the “likelihood” of certain risks occurring, nor did the plaintiff volunteer any information that she had, in fact, secured or produced the requisite expert testimony regarding “likelihood.” It was not until the moving defendant, through his second motion for summary judgment, provided the trial court with the relevant case law and argument, missing from his first summary judgment request, that the issue of the plaintiff’s critical omission of the expert evidence of the likelihood of the occurrence of the risks involved in her procedure, was properly identified and presented for the trial court’s consideration.

What, in fact, led the parties to this very critical juncture, resulting in the dismissal of the plaintiff’s lawsuit, was the plaintiff’s apparent inability to both abide by the previously agreed upon discovery deadlines established by court order, and produce the evidence needed to move her lawsuit forward by setting forth a prima facie case as to her lack of informed consent claim and the evidence integral to proof of the same. Consequently, with those deadlines having long since expired and the element of the “likelihood” of the occurrence of the identified surgical risks still unproven, Ms. Mullin’s lack of informed consent claim and any cause of action seeking recovery on that basis could not survive the appropriate and crucial analysis warranted in this case.

Contrary to the plaintiff’s assertion, the court in McSorely, as previously discussed, held that, in the context of informed consent claims, expert testimony is required to establish not only the particular risks inherent in a procedure but also their likelihood. McSorley, 905 A.2d at 532. What is noticeably absent in this case is any expert evidence of the likelihood of the risks of the IDET procedure occurring, as a result of which and pursuant to Pa. R.C.P. 1035.2, summaiy judgment is appropriate since the plaintiff “has failed to produce evidence of facts essential to the cause of action... which in a jury trial would require the issues to be submitted to a jury.”

CONCLUSION

Based upon the foregoing, the trial court respectfully submits that the order, dated May 25, 2010, granting Matthew T. Kline, M.D.’s motion for summary judgment and entering judgment in favor of the moving defendant and against the plaintiff, Colleen Mullin, should be affirmed.

      . The undersigned’s order, dated May 25, 2010, was docketed May 27, 2010.

      . The IDET procedure involved the insertion of a catheter into spinal disc space and the heating of the catheter.

      . Dr. Kline had previously moved for summary judgment on December 7, 2006, which precipitated the undersigned’s dismissal, by order dated July 27,2007, of the plaintiff’s negligence claim against Dr. Kline.

      . By order, dated October 10, 2006, the undersigned directed that all expert discovery be closed on December 1, 2006.

      . The undersigned’s order, dated October 10, 2006, was docketed October 18,2006.


author: HODGE, J.,

text:
    In re Interest of McClain

      157
    C.P. of Lawrence County,
    no. 99 of 2010, JUV.

      Luanne Parkonen, assistant district attorney, for Commonwealth.

      Kenneth A. Kasenter, for minor child.
    October 29, 2010
   HODGE, J.,

Before the court is a motion to suppress filed on behalf of the minor, Nigel C. McClain (hereinafter referred to as “the juvenile”), in which counsel for the juvenile contends that after an initial observation, Ellwood City Police Officer, Brian Damon, Sr., conducted an unwarranted search of the juvenile and seizure from his person.

The juvenile is charged with one count of possession of a small amount of marijuana (35 Pa.C.S.A. 780-113(31)) and one count of public drunkenness (18 Pa.C.S.A. 5505). The factual background of this case can be properly summarized as follows:

On June 9, 2010, Officer Damon responded to a police call made by Cindy Smith of 503 Beaver Avenue. Ms. Smith contacted the police because people were currently hanging out between the buildings of Oliver’s Pub without permission. Her concerns were based on the fact that the pub had recently been experiencing damage to its property as a result of this type of behavior. When Officer Damon arrived at this location and while he was still seated in his police car, he shined his flashlight down the alleyway between the buildings of Oliver’s Pub. In doing so, Officer Damon observed the juvenile, Nigel C. McClain, making out with another individual on the fire escape of the building. Officer Damon then exited his vehicle to approach the individuals. As he walked up to them, he detected a strong odor of marijuana in the air. Officer Damon questioned the individuals about the smell of marijuana, and both replied that neither of them was smoking. Officer Damon proceeded to check the front pocket of the juvenile’s jeans and discovered a small amount of marijuana. Officer Damon then transported both individuals to the Ellwood City Police Department, where he contacted their parents.

Defense counsel now motions this court to suppress all evidence seized from the juvenile’s person and argues that Officer Damon lacked any reasonable suspicion that criminal activity was occurring, and that Officer Damon was, therefore, unjustified in searching the juvenile’s person.

Before disposing of defense counsel’s motion, this court must first discuss the interaction occurring between the officer and the juvenile prior to the search and seizure taking place. Fourth Amendment jurisprudence has led to three categories of interactions between police officers and private citizens being identified by the Pennsylvania Supreme Court: 1) a mere encounter, which need not be supported by any level of suspicion; 2) an investigative detention, which must be supported by reasonable suspicion, as it subjects an individual to a stop and brief detentions, but does not function as the equivalent of an arrest; and 3) a custodial detention, which requires probable cause. Commonwealth v. Pakacki, 901 A.2d 983, 987 (Pa. 2006) (citing Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995).

Interactions that result in a seizure taking place are classified as an investigative detention or a custodial detention. Commonwealth v. Strickler, 757 A.2d 884, 899 (Pa. 2000). The main difference between the two interactions is that an investigatory detention merely subjects a citizen to stop and undergo a brief period of detention, when such a detention is supported by a reasonable suspicion that criminal activity is afoot. A custodial detention, however, is the functional equivalent of an arrest, and therefore, requires Miranda warnings. Id., Pakacki, 901 A.2d at 987.

In the case sub judice, the detention to which the juvenile was subjected was not so invasive as to constitute a reasonable belief that his freedom of action or movement was restricted, and therefore cannot be categorized as a custodial detention. Commonwealth v. Ellis, 662 A.2d 1043,1047 (Pa. 1993). Upon arrival, Officer Damon fact observed two individuals in the alleyway. This was the very purpose for which he responded to the area, and accordingly, his belief that the situation required further investigation was reasonable. As Officer Damon approached the two juveniles, he detected a strong odor of marijuana in the air and questioned the juveniles about the smell. This interaction clearly constitutes an investigatory detention, and is the very type of detention previously justified by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The court’s decision in Terry resulted in such a detention becoming commonly known as a Terry stop. During a Terry stop, an officer possesses a reasonable suspicion that criminal activity is afoot, and is thereby justified in briefly detaining a suspect so that he may further inquire as to the situation. Commonwealth v. EM., 735 A.2d 654, 659 (Pa. 1990).

During this type of brief detention, an officer “may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984). An individual has no obligation to respond, and if the individual’s answers do not give the officer probable cause for arrest, the individual must be released. Id.

Here, Officer Damon did question the two juveniles about the blatant odor of marijuana in the air. However, the juveniles informed Officer Damon that they were not smoking. Regardless of their negative response to his question, Officer Damon proceeded to check their pockets. Considering that the juvenile responded to the Officer’s Damon negatively, his reaction to subsequently search the juvenile’s pocket was unwarranted.

Furthermore, Officer Damon failed to state in his investigation report that such a search was necessary for his safety or that he even believed that the juveniles were armed and dangerous. If an officer observes conduct which causes him to believe that the individual may be armed and dangerous, he may pat down the detainee’s outer garments for weapons, but such a search cannot be initiated without such belief. Commonwealth v. E.M., 735 A.2d at 659. The commonwealth did not offer the testimony of Officer Damon at the suppression hearing, and the court is unable to otherwise conclude that Officer Damon believed the juveniles to be armed or dangerous.

Even if Officer Damon took the necessary procedural precautions prior to searching the juvenile, the court believes Officer Damon clearly exceeded the limitations of the plain feel doctrine by checking inside the juvenile’s pocket instead of initially conducting a pat down or frisk of his exterior clothing. As adopted by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366 (1993), the plain feel doctrine provides that a police officer may seize a non-threatening contraband, detected through the officer’s sense of touch during a Terry frisk if the officer is lawfully in a position to detect the presence of contraband. Officer Damon’s decision to check the juvenile’s jean pockets without initially conducting a pat down or even inform the juvenile it was necessary for him to frisk the juvenile for safety precautions clearly violated the safeguards previously established by Fourth Amendment jurisprudence.

For the above stated reasons and after considering the totality of the situation, this court finds that these circumstances established an insufficient basis for Officer Damon to search the juvenile’s pockets. The evidence seized from the juvenile’s person must therefore be suppressed. Accordingly the court will enter the following order:

ORDER

And now, October 29, 2010 this case being before the court on October 27, 2010 on a motion to suppress filed on behalf of Nigel C. McClain, and for the reasons set forth in the accompanying opinion, it is ordered and decreed that the juvenile’s motion to suppress is granted and all evidence obtained by the commonwealth and seized as a result of the detention is suppressed and shall not be used against the juvenile in any proceedings in this case.

The office of the prothonotary shall serve copies of this order upon counsel of record and the Juvenile Probation Office of Lawrence County.


author: ROGERS, J.,

text:
    Commonwealth v. Arnold
    C.P. of Montgomery County,
    nos. 8422-08, 8423-08, 1729-09, 4753-09, and 4754-09.

      Robert F. Falin, deputy district attorney, for Commonwealth.

      Timothy Peter Wile, for defendant.

      November 18, 2010
   ROGERS, J.,

I. INTRODUCTION

This is an appeal from the judgment of sentence of a period of twenty to forty years of imprisonment upon appellant Shawn Paul Arnold (“appellant”) on December 2, 2009 as a result of appellant’s guilty plea to five armed robberies. On 8422-08, appellant was sentenced to a period of imprisonment of ten to twenty years. On 8423-OS, appellant was sentenced to a period of imprisonment of ten to twenty years to run consecutive to 8422-08. On 1729-09, appellant was sentenced to a period of imprisonment of ten to twenty years to run concurrent with the sentence imposed at 8423-08. On 4753-09, appellant was sentenced to a period of imprisonment of ten to twenty years to run concurrent with the sentence imposed at 1729-09, and on 4754-09, appellant was sentenced to a period of imprisonment of ten to twenty years to run concurrent with the sentence imposed at 4753-09. In all, appellant was sentenced to two ten to twenty year consecutive sentences for a total of twenty to forty years followed by three ten to twenty year concurrent sentences.

II. FACTS AND PROCEDURAL HISTORY

A. Bill of Information 8422-08

On Wednesday, October 15, 2008, at approximately 12:57 p.m., members of the Plymouth Township Police Department responded to a call from Citizen’s Bank in the Conshohocken section of Plymouth Township for a reported bank robbery. The suspect fled the bank by way of the front door before the arrival of the police officers. The individual was described as a white male in his 30’s, with facial hair, and weighing approximately 160 pounds, (affidavit of probable cause, p. 5). Citizens Bank’s fraud investigator provided the police access to their video surveillance system and still photographs of the suspect. A demand note was recovered which read: “Have gun quiet! Just empty drawer.” Id.

Officers from Plymouth Township and Whitemarsh Township conducted a joint investigation, which led them to the rear of Plymouth Square Shopping Center where two witnesses saw a subject stop his car and discard a plastic bag in the trees. Officers recovered the bag containing a replica 9mm Glock 17, semi-automatic handgun, a blue baseball cap with a Dodge logo on the front, aviator style sunglasses and a Walmart receipt. Id. The Walmart receipt listed a number of purchases made with a credit card, which ultimately led to the identification and arrest of appellant. Id.

The officers spoke with the teller at Citizen’s Bank who told them that the suspect entered the bank through the front door. He walked around for a few minutes and then came up to her with a checking/money market withdrawal ticket, which said to the best of her recollection “give her (sic) everything you have, I have a gun.” Id. During this time, the suspect kept telling the teller to be quiet and kept repeating her name. Id. The teller did as the suspect requested. She gave him the money and also handed him the bait money. Id. The suspect told her to put it back. Id. “I don’t want a dye back (sic).” He then leaned over the counter to watch what the teller was doing. Id. The teller said that the suspect told her to put all the money into an envelope which she did because she assumed that he had a gun and she was frightened by his actions. A later bank audit showed the actual loss to the bank was $1,631.00. Id. After the police investigation linked the credit card to appellant, a photo array was shown to the bank teller who positively indentified appellant as the bank robber. Id.

B. Bill of Information 8423-08

On October 2, 2008, members of the Whitpain Township Police Department responded to a 7-Eleven convenience store located at 1710 Swede Street for an armed robbery. (N.T. sentencing hearing, December 2, 2009, p. 22) The victim indicated that the individual responsible for the robbery entered the store, told the victim that he had a gun, showed the gun in his waistband, and then ordered the victim to give him the money. Id. The victim estimated that approximately $100 was taken in the robbery. Id. The suspect was described as a white male, medium build, wearing a blue “hoodie” (hooded sweatshirt), and a black mask covering his face and brandishing a black semi-automatic handgun, (affidavit of probable cause, p.5)

On October 9, 2008, Upper Merion Township Police Department responded to a panic alarm from a Shell gas station. (N.T. Sentencing Hearing, December 2, 2009, p. 22) The victim was inside the store with a friend when the suspect entered and brandished a black semi-automatic handgun. The suspect pointed the gun at the victim and said, “give me the money.” (affidavit of probable cause, p. 5) The victim removed the drawer from the register and the suspect removed approximately $500 - $600 in currency from the drawer. Id. The suspect took the store phone and the victim’s cell phone. When the suspect left the store, he discarded the phones nearby. Id. The victim gave a description of the suspect that was similar to prior descriptions. (N.T. sentencing hearing, December 2, 2009, p. 23) The suspect was described as a white male, blue eyes, slight blonde facial hair on his cheek area, and wearing a black hooded Adidas sweatshirt, turned inside out, with the hood over his head, a black cloth mask and grey shorts with a black handgun. (Affidavit of Probable Cause, p. 5).

On October 13, 2008, at approximately 1:11 a.m., Plymouth Township Police Department responded to a call from a Lukoil gas station/convenience store on the report of an armed robbery. Id. The victim reported a white male entered the store while the victim was in the back of the store. Id. When the victim came to the front of the store, he was confronted by a white male wearing a dark colored hooded sweatshirt with a zipper, a dark colored ski mask with the eyes showing only, faded blue jeans, dark colored gloves and brandishing a black semi-automatic handgun. Id. The suspect pointed the gun in the direction of the victim and ushered him to the register and ordered him to open it. Id. The suspect fled from the store with $438.06. Id.

Appellant participated also in several out of county offenses as indicated below.

C. Bill of Information 1729-09

On October 14, 2008, an employee at the Wayne Sunoco station located in Tredyffrin Township reported that a white man came into the station wearing a homemade ski mask and displayed a black semi-automatic handgun. (N.T. sentencing hearing, December 2, 2009, pp. 23, 24) The masked man demanded money from the register. (N.T. sentencing hearing, December 2, 2009, p. 24) The victim, fearing for his life, gave the robber the $243.00 in cash that was in the register. Id. The suspect fled the scene. Id. The victim reported that the gun was so close to him that he thought he could see orange at the tip of the gun. Id. The victim reported that he thought at first that the gun may be fake but he did not want to take a chance that it was real. Id. The suspect said that the robbery scared him and he was visibly shaken by the incident, (affidavit of probable cause, p. 6).

D. Bill of Information 4753-09

On October 12,2008, members of the Radnor Township Police Department responded to the Sunoco gas station located at 302 East Lancaster Avenue. (N.T. sentencing, December 2, 2009, p. 24) The store employee reported that a white male, 5 foot, 5 inches to 5 foot, 6 inches, average/stocky build, brown eyes, wearing a black ski mask, blue sweatshirt, blue jeans and white sneakers robbed the gas station, (affidavit of probable cause, p. 5). The victim was confronted by the suspect in the office and was told to back away unless he wanted to be shot. Id. The victim stepped away, fearing for his life, and the suspect removed $119.00 from the register and ran out the open service/garage door area. Id.

E. Bill of Information 4754-09

On September 28, 2008, members of the Radnor Township Police Department responded to the call from the Sunoco A-Plus store located at 301 East Lancaster Avenue, Wayne, Pennsylvania. (N.T. sentencing hearing, December 2, 2009, p. 25) The store employee said that a white male entered the store, pointed a black handgun and demanded money from the register, (affidavit of probable cause, p. 6) The male was described as between 30-40 years old, approximately six feet tall, wearing blue pants, black hooded Adidas jacket with white stripes down the sleeves and Adidas printed on the front, wearing a black ski mask, black gloves and black shoes. Id. The suspect demanded the clerk open the register, at which time the suspect removed $417.00. Id. He then demanded that the clerk open the second register and safe but was unsuccessful. Id. The suspect fled the scene with the money. Id. The victim stated that he was in fear for his safety. Id.

On October 16, 2008, appellant was interviewed by Plymouth Township Police Department regarding his involvement in the above robberies. Appellant gave a statement admitting his guilt to these armed robberies, (bill of information 8423-08, affidavit of probable cause, p. 5); (N.T. sentencing hearing, December 2, 2009, p. 9).

Appellant filed his petition for reconsideration of the court’s December 2, 2009 sentence on December 8, 2009. An order denying appellant’s petition for reconsideration of sentence was docketed on January 28, 2010. On April 27, 2010, the Montgomery County Public Defender’s Office filed a motion for leave to file notice of appeal nunc pro tunc. The motion alleged that on Monday, April 26, 2010, appellant sent a letter to the chief of the appellate division of the public defender’s office inquiring as to the status of his appeal in the Superior Court. Appellant indicated that he had been informed in writing that the appellate division would be contacting him regarding his case from this point forward.

The appellate division of the public defender’s office indicated that it had no knowledge of appellant’s desire to appeal the judgment of the sentence imposed, and the denial of the reconsideration of sentence. The appellate division of the public defender’s office averred that appellant’s letter of April 21, 2010 was the first indication that appellant desired to take a direct appeal from his judgment of sentence.

The trial court entered an order dated May 5, 2010 entering a rule return date of May 19, 2010 upon the Commonwealth to show cause as to why appellant’s motion should not be granted. The Commonwealth responded by letter dated May 10, 2010 indicating it did not oppose appellant’s request to have his direct appeal rights reinstated nunc pro tunc. The trial court entered an order dated May 19, 2010 granting appellant’s request to file a notice of appeal nunc pro tunc contingent upon said notice being filed with thirty days of the date of the order.

On June 11, 2010, appellant filed a notice of appeal nunc pro tunc accompanied by an order authorizing appellant to proceed on an in forma pauperis status pursuant to Pa. R.A.P. 552(d). By order dated June 16, 2010, the undersigned directed appellant to file a concise statement of errors complained of on appeal (“concise statement”) with the court, pursuant to Pa. R.A.P. 1925(b) (1). Appellant’s concise statement was timely filed on June 29, 2010.

III. ISSUES

Appellant presented the following issues in his concise statement:

1. The learned trial court manifestly abused its discretion when it directed the ten (10) to twenty (20) year sentence of imprisonment imposed with respect to appellant Arnold’s conviction for the offense of robbery to run consecutively with a previously imposed sentence of ten (10) to twenty (20) years imprisonment at Bill Numbers 8422-08, 1729-09, 4573-09, and 4574-09 for a total aggregate sentence of twenty (20) to forty (40) years in prison in that:
a. The trial court was well aware of appellant’s long standing struggle with illicit drugs as set forth in the report of the Malvern Institute (PPI);
b. Appellant’s documented issues with illicit drugs began when appellant was only twelve (12) years of age with the casual consumption of alcohol and cocaine and progressed to the point where, at age fourteen (14) years, appellant was using such substances on a daily basis, which use continued until appellant was twenty (20) years of age; and
c. Following treatment, appellant Arnold was able to remain drug-free and alcohol-free for approximate three (3) years, from ages twenty (20) years to twenty-three (23) years;
d.During appellant Arnold’s last period of incarceration, he was confined at the State Correctional Institution at Chester (SCI Chester), which is a facility operated by the Pennsylvania Department of Corrections that is geared to combat drug and alcohol addictions and appellant Arnold successfully completed several drug treatment programmes (sic) while he was confined there.
e. The learned trial court should consider and give significant weight to the clinical impressions provided by Geri A.K. Tomasco, M.A. in that:
i. Appellant Arnold readily accepts responsibility for his actions;
ii. Appellant Arnold recognizes the relationship between addiction and involvement with the law:
iii. Appellant Arnold does not attempt to rationalise, (sic) minimalise (sic) or shift blame for his conduct or behaviour (sic);
iv. Appellant Arnold has demonstrated both internal and external motivation for treatment for his drug and alcohol addition (sic) problems.
f. Appellant Arnold has also actively sought out and attended treatment for his drug and alcohol addiction problems.

IV. DISCUSSION

The Supreme Court of Pennsylvania has stated that the proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893, 895 (1996) (“Imposition of a sentence is vested in the discretion of the sentencing court and will not be disturbed absent a manifest abuse of discretion.”). An abuse of discretion is more than just an error in judgment. Thus, a sentencing court will not have abused its discretion unless “the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.” Id. In more expansive terms, “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Commonwealth v. Walls, 592 Pa.557, 926 A.2d 957, 961 (Pa. 2007) quoting (Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (2003)). The appellate court must give great weight to the sentencing judge’s discretion, as he or she is in the best position to measure various factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997).

Appellant raises essentially one issue on appeal with multiple subparts challenging the discretionary aspects of his sentence. Issues challenging the discretionary aspects of sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. “Absent such efforts, an objection to a discretionary aspect of a sentence is waived.” Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004) (citation omitted), appeal denied 580 Pa. 695, 860 A.2d 122 (2004). In the present case, appellant timely filed a motion for reconsideration of sentence on December 8, 2009 in which he argued that the sentence he received was harsh and excessive. As such, appellant’s motion for reconsideration of sentence preserved the claims he now raised on appeal. See McAfee, 849 A.2d at 275.

We note, however, that the right to appeal the discretionary aspects of a sentence is not absolute. Commonwealth v. Pollard, 832 A.2d 517, 525 (Pa. Super. 2003). When an appellant challenges the discretionary aspects of the sentence imposed, he must present a substantial question as to the appropriateness of the sentence. Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003). An appellant must, pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), articulate “the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process....” Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002). Only if an appellant’s Rule 2119(f) statement meets these prerequisites can a determination be made whether a substantial question exists. Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied 563 Pa. 672, 759 A.2d 920 (2000).

Appellant’s contention herein addresses the claims regarding his aggregate sentence. Long standing precedent recognizes that 42 Pa.C.S.A. Section 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences previously imposed. Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995). Any challenge to the exercise of this discretion ordinarily does not raise a substantial question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa. Super. 2005); see also Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214 (Pa. Super. 1995) (explaining that a defendant is not entitled to a “volume discount” for his or her crimes).

A decision by the Superior Court in Commonwealth v. Dodge, 859 A.2d 771 (Pa. Super. 2004), does not alter this conclusion. In fact, the panel in Dodge noted the limitations of its holding. See id. at 782 n. 13 (explaining that its decision “is not to be read as announcing a rule that a challenge to the consecutive nature of sentences always raises a substantial question or constitutes an abuse of discretion. We all are cognizant that sentencing can encompass a wide variation of factual scenarios. Thus, we make clear again that these issues must be examined and determined on a case-by-case basis.”)

In Dodge, the court imposed consecutive, standard range sentences on all thirty-seven counts of theft-related offenses for an aggregate sentence of 58 1/2 to 124 years of imprisonment. Thus, the key to resolving the preliminary substantial question is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.

While in extreme cases, such as those found in Dodge, this exercise of discretion could be viewed as raising a substantial question. Here, however, in the instant matter, the facts simply do not inure to such a finding. Appellant took part in what could be described as a “crime spree” which involved five robberies. In all, numerous individuals were terrorized during this spree and numerous lives endangered. In fashioning appellant’s sentences, the undersigned noted appellant’s extensive criminal history, including prior armed robbery convictions in which appellant received a 5 to 10 year sentence of imprisonment and was on parole at the time of the instant offenses, and further made observations regarding the dangerous consequences of appellant’s conduct. The undersigned also emphasized the need to protect the community from appellant’s actions. Hence, the court found that the instant facts do not raise a substantial question.

At sentencing, the undersigned had the benefit of a presentence investigation report and PPI report as well. (N.T. sentencing hearing, December 2, 2009, p. 3) As such, the undersigned “was aware of the relevant information regarding defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). The undersigned further placed the reasons for the sentence on the record listing seriatim the five bills of information that involve eight different offenses. In constructing the sentence, the court considered the presentence investigation report along with the addictions involved, appellant’s prior record, his prior conduct, as well as the fact that this sentence would likely be increased by the Pennsylvania Board of Probation and Parole as a result of appellant’s violation of his supervision. (N.T. sentencing hearing, December 2, 2009, pp. 35, 36)

Appellant makes no claim that the sentence imposed was outside of the statutory limits or outside of the sentencing guidelines.

V. CONCLUSION

Accordingly, for all of the foregoing reasons, we respectfully request that the judgment of sentence imposed on appellant on December 2, 2009 should be affirmed.

      . 18 Pa. C.S.A. §3701 (a)

      . We note that while a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his or her sentence other than to argue that the sentence is illegal or that the sentencing court did not have jurisdiction, open plea agreements are an exception in which a defendant will not be precluded from appealing the discretionary aspects of the sentence. See Commonwealth v. Guth, 735 A.2d 709, 711 n. 3 (Pa.Super. 1999), appeal denied 560 Pa. 699, 743 A.2d 915 (1999); Commonwealth v. Dalberto, 436 Pa.Super. 391, 648 A.2d 16,21 (1994) (when the plea agreement is open, containing no bargain for a specific or stated term of sentence, the defendant will not be precluded from appealing the discretionary aspects of his sentence), appeal denied 540 Pa. 594, 655 A.2d 983 (1995), cert. denied 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995).