author: BALDWIN, J.,

text:
    Thomas v. Aethos Construction Company

      C.P. of Allegheny County,
    no. GD 02-2629.

      Craig R. McKay, for plaintiff.

      James F. Rosenberg, for defendants Giant Eagle and Aethos Construction Company.

      George P. Kachulis, for additional defendant Miller Electric Company.
    March 22, 2004
   BALDWIN, J.,

— -Plaintiff Raymond Thomas appeals and defendant Aethos Construction Company (Aetos) cross-appeals the judgment entered in this negligence action in favor of Aetos.

On February 18, 2000, plaintiff Thomas was working on the night shift as an electrician at the West View Giant Eagle supermarket when he slipped and fell on a ramp while exiting the work site after a snow fall. At the time, Thomas was employed by Miller Electric Construction Company Inc., a subcontractor of defendant Aetos. As a consequence of the fall, Thomas suffered a fractured ankle and related injuries. Thereafter, Thomas filed this lawsuit, generally claiming that defendants were negligent in connection with the design, construction and maintenance of the ramp and in failing to warn and protect Thomas. This case was tried by jury as to defendant Aetos only. The jury found in favor of Thomas and against Aetos; however, after consideration of defendant’s post-trial motion, this court directed judgment in favor of Aetos based on Aetos’ argument that it was immune to tort liability in this case because it was a statutory employer of Thomas. This appeal followed.

In his statement of matters complained of on appeal, plaintiff argues that this court erred in granting defendant’s motion for post-trial relief based on the statutory employer defense. “A statutory employer is a master who is not a contractual or common-law one, but is made one by the [Workers’ Compensation Act, 77 P.S. §§1-2626].” O’Donnell v. R.M. Shoemaker & Co., 816 A.2d 1159, 1162 (Pa. Super. 2003). The following section of the Act sets forth the nature and liability of a statutory employer:

“Employers’ liability to employee of employee or contractor permitted to enter upon premises.

“An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.” 77 P.S. §52.

“Although not apparent from its express terms, the language from section [52] stating that the statutory employer shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee confers upon the statutory employer immunity from suit.” O’Donnell, 816 A.2d at 1162-63 (quoting Peck v. Delaware Co. Board of Prison Inspectors, 572 Pa. 249, 254, 814 A.2d 185, 188 (2002) (Newman, J., plurality)).

In construing this section, Pennsylvania courts have set forth the following elements that a general contractor must demonstrate to prove its status as a statutory employer:

“(1) An employer who is under contract with an owner or one in the position of an owner.

“(2) Premises occupied by or under the control of such employer.

“(3) A subcontract made by such employer.

“(4) Part of the employer’s regular business entrusted to such subcontractor.

“(5) An employee of such subcontractor.” Emery v. Leavesly McCollum, 725 A.2d 807, 810 (Pa. Super. 1999) (quoting McDonald v. Levinson Steel Co., 302 Pa. 287, 294, 153 A. 424, 426 (1930)).

“These criteria should be applied strictly ....” Cox v. Turner Construction Company, 373 Pa. Super. 214, 223, 540 A.2d 944, 948 (1988).

Plaintiff argues that defendant waived and/or abandoned the statutory employer defense. Although Aetos claimed its status as a general contractor and raised the statutory employer defense in its complaint, this court agrees that Aetos made no mention of this defense as the case progressed. Aetos did not raise the defense by way of a motion for summary judgment, Aetos did not mention this defense in pretrial conferences or even during its opening argument during the trial of the case. Instead, Aetos defended this case at trial by contesting plaintiff’s claim of negligence on the merits. For this reason, this court denied Aetos’ motion for a compulsory nonsuit at trial.

This issue was raised again by post-trial motion. At that time, a review of the transcript revealed that while Aetos for some reason never articulated to the court prior to moving for a compulsory nonsuit at trial that it was pursuing the statutory employer defense, Aetos in fact put forth sufficient evidence, as a matter of law, to prove that it was a statutory employer.

Aetos provided testimony that it was a general contractor and employer hired under contract with an owner, Giant Eagle, through the testimony of William Sommers, a field superintendent for Aetos. (Trial Transcript at 183.) Thomas testified that Aetos was the general contractor and in charge of the work site, that Aetos hired Miller to work as a subcontractor and that as far as he knew, Miller received work assignments from Aetos. (TT at 30, 51-53.) Sommers testified that Aetos had control of the work site, i.e., that Aetos decided the order and time of work and provided instruction to the subcontractors. (TT at 184.) There was testimony that Miller was hired to do the electrical work for the remodeling job which was part of the work that Aetos had contracted to do for Giant Eagle. (TT at 30, 52,177.) There was testimony that Thomas was an employee of Miller. (TT at 30.) Although the above testimony was conclusory, it was not challenged by plaintiff at trial. Thus, in light of this testimony, it was not an error for this court to rule as a matter of law on post-trial motions that judgment must be entered against plaintiff and in favor of Aetos due to Aetos’ status as a statutory employer.

By its appeal, Aetos argues that this court erred in failing to direct the entry of judgment in its favor based on the “hills and ridges” doctrine. The hills and ridges doctrine provides that an owner or occupier of land is not liable for general slippery conditions on one’s walks caused by ice and snow. Heasley v. Lumber, no. 183 WDA 2003, 2004 WL 351791 (Pa. Super. February 26, 2004); Wentz v. Pennswood Apartments, 359 Pa. Super. 1, 5, 518 A.2d 314, 316 (1986). Citing Biernacki v. Presque Isle Condominiums Unit Owners Ass’n Inc., 828 A.2d 1114 (Pa. Super. 2003), Aetos argued that it was not negligent under the hills and ridges doctrine because plaintiff failed to prove the following elements at trial: “(1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.” Id at 1117.

In Biemacki, the court affirmed a grant of summary judgment in favor of a landlord in a negligence suit brought by a tenant who slipped and fell at 7:45 a.m. in the parking lot of the condominium where the tenant lived due to snow that had fallen during the night. Applying the above test, the court in Biemacki held as a matter of law that “[i]t was not reasonable for the snow and ice in the parking lot, that had begun to fall sometime the night before, to be removed by 7:45 a.m. the following morning, particularly in light of the fact that Biemacki fell in snow that had accumulated between the parked cars.” Id

This court disagrees that the Biemacki decision requires a similar holding under the facts of this case. In this case, at issue is an artificial condition, a plywood ramp, that was constructed by Aetos and utilized by workers both day and night. Restatement (Second) of Torts §384 (liability of persons creating artificial conditions on land on behalf of possessor for physical harm caused while work remains in their charge) sets forth the standard to be applied in such circumstance:

“One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge.”

Section 343 of the Restatement (Second) of Torts (dangerous conditions known to or discoverable by possessor) defines the liability of a possessor of land:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

“(h) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

“(c) fails to exercise reasonable care to protect them against the danger.”

See Bitting v. Wolfe, 368 Pa. 167, 82 A.2d 21 (1951) (setting forth the standard owed by a contractor to a worker on the premises); Szumski v. Lehman Homes Inc., 267 Pa. Super. 478, 406 A.2d 1142 (1979) (applying sections 343 and 384 of the Restatement (Second) of Torts in evaluating the standard of care owed by a contractor who created a temporary platform on a constmction site).

The hills and ridges doctrine is not inconsistent with the above Restatement sections. See Wentz, 359 Pa. Super. at 5,518 A.2d at 316. Its purpose is simply to recognize that it would be an “impossible burden” to require that walkways always be free of ice and snow. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 458, 219 A.2d 676, 678 (1966). The cases cited by Aetos in support of the hills and ridges doctrine focus on whether climatic conditions made a sidewalk or parking lot dangerous. However, the doctrine is not applicable in this case because at issue is an artificial surface covered in snow and ice that was utilized day and night on a work site and not the sidewalks and parking lots that we all must encounter after a snowfall. The question at trial was whether the ramp as an artificial condition was constructed and maintained within the standard of care, in light of its purpose and use and its exposure to the elements. Contrast Szumski, supra, (holding that a contractor was not negligent as a matter of law for the construction of a platform when there was no advance notice that the platform would suddenly fail, when plaintiff did not contend that the platform was unnecessary or that it was not constructed in accordance with the standard practices of the industry). Thus, Aetos was not entitled to a specific jury charge on the hills and ridges doctrine.

Accordingly and for the reasons stated herein, the judgment against plaintiff and in favor of defendant should be affirmed.

      . Defendant spells its name as “Aetos” Construction Company.


source: Caselaw Access Project

author: MOTTO, J.,

license: Public Domain

text:
    French v. ITT Industries/Harrisburg Design Center

      C.P. of Lawrence County,
    no. 10401 of 2003, C.A.

      Daniel I. Herman, for plaintiff.

      Robert Hastings, for defendant ITT Industries.

      Thomas King, for defendant First Energy.
    February 16, 2004
   MOTTO, J.,

Before the court for disposition is the motion for protective order of defendant Goulds Pumps Inc., a wholly owned subsidiary of ITT Industries Inc., and the plaintiff’s petition for extension of time to file complaint and to strike/overrule motion for protective order. The disposition of both motions turns on whether the court will allow plaintiff to engage in pre-complaint discovery as to defendant ITT, and if so, what limitations should be imposed on pre-complaint discovery.

The plaintiff’s petition for extension of time and plaintiff’s brief in opposition to the defendant’s motion for protective order cites, as among the relevant facts known to the plaintiff, that plaintiff’s decedent died as a result of an industrial accident occurring on April 9,2001, during his employment at Orion Power Company; that Orion has been sold and resold since April 2000, with changes in personnel and counsel making it virtually impossible to obtain records and conduct exploratory interviews; that in January 2003 it was determined that the equipment involved in the accident was a Unit 5 Boiler Ashpit Rejection System Ash Hopper-Unit No. 5, installed in 1961 or 1962, and replaced in February 2002; that the manufacturer and supplier of the unit was United Conveyor Corporation, the consulting engineering firm was Commonwealth Associates, and that Babcock and Wilcox supplied the replacement unit; that a pump was utilized in the replacement unit which was manufactured by ITT and Goulds Pumps; that OSHA found decedent entered a permit-required confined space (slag removal tank) without proper recognition of procedures; that decedent was overcome by water when the pump supplying water through the system failed and the water back-filled into the tank; that the system appears not to have included safety devices, mechanisms, warnings to prevent what was clearly an anticipated injury as a result of the design of the machinery and equipment, including, but not limited to, the pump manufactured by the defendant, ITT, but that the plaintiff has been denied any access to information to make any such determinations (see plaintiff’s motion for extension of time to file complaint, paragraph 9 and plaintiff’s brief in opposition to defendant’s motion for protective order, pages 5, 6 and 7).

In McNeil v. Jordan, 814 A.2d 234 (Pa. Super. 2002), the Superior Court addressed the issue of pre-complaint discovery. The McNeil case has been cited by counsel for both parties and is the polestar case on this issue. In McNeil, the plaintiff sought discovery to obtain facts essential to his cause of action, mainly facts showing that his mother had intended to treat him equally concerning all aspects of her estate and marital trust. The trial court had upheld objections to the discovery, holding that pre-complaint discovery may not be used to determine whether a cause of action exists. The ruling of the trial court was affirmed by the Superior Court.

In McNeil, the Superior Court noted that Pennsylvania procedure permits the use of discovery to aid in the preparation of pleadings, citing Pa.R.C.P. 4001(c) and that appellate decisions have approved the use of pre-complaint discovery in order to aide in the drafting of the complaint, further citing Lapp v. Titus, 224 Pa. Super. 150, 302 A.2d 366 (1973). The McNeil decision however addressed the limits to be imposed upon pre-complaint discovery. After reviewing several common pleas court decisions on the issue, McNeil went on to hold precisely that pre-complaint discovery is permissible if it is shown that, one, the plaintiff has set forth a prima facie case, and, two, the plaintiff cannot prepare and file a complaint otherwise.

It is noteworthy that in the McNeil case, the trial court had originally allowed limited discovery, but that the plaintiff refused such limited discovery and maintained the right to general discovery in order to prepare the complaint. Thus, the Superior Court addressed the propriety of the trial court’s decision not to grant general discovery, and not whether the trial court acted appropriately in its initial decision to allow limited discovery.

Here, the court finds that plaintiff has set forth a prima facie case. The facts as alleged indicate an equipment failure was a contributing factor to the industrial accident that caused the decedent’s death.

However, requiring the plaintiff to prepare a complaint without the benefit of further facts would require speculation as to the cause of any equipment failure or as to the existence of any defects in its design or manufacture. Thus the court further finds that plaintiff cannot accurately prepare and file a complaint without pre-complaint discovery.

Although the court concludes that plaintiff should be allowed pretrial discovery, such discovery should be limited to facts necessary to prepare its complaint. In reviewing the interrogatories relative to which the defendant ITT seeks a protective order, the court finds that many of the interrogatories are beyond the limited scope of pre-complaint discovery that the court will allow.

The court finds that pretrial complaint discovery in this case as to the defendant ITT shall be limited to discovery of information within the possession or control of the defendant ITT that relates to the occurrence of the specific accident involving the decedent, the manufacture, design, maintenance, repair, servicing and chain of distribution of the specific equipment and its components that were involved in the accident and the identification of witnesses having information on such matters and the identification and production of records relating to such matters. Accordingly, the court has reviewed the interrogatories in question and will grant the defendant ITT’s motion for a protective order, in part, as to specific interrogatories which the court finds to be beyond the scope of pre-complaint discovery as authorized by this opinion and accompanying order of court and otherwise allow limited pre-complaint discovery as set forth above. Further, the court will extend the time for filing plaintiff’s complaint.

ORDER

And now, February 16, 2004, in accordance with the accompanying opinion of even date herewith, it is ordered, adjudged and decreed as follows:

(1) The plaintiff is granted the right to engage in pre-complaint discovery as to defendant Goulds Pumps Inc., a Delaware Corp., and a wholly owned subsidiary of ITT Industries Inc., an Indiana corporation come before itself and its wholly owned subsidiaries, Goulds Pumps (IPG) Inc. and Goulds Pumps (PA) Inc., hereinafter “ITT”, such pre-complaint discovery to be limited to discovery of information within the possession or control of the defendant ITT that relates to the occurrence of the specific accident involving the plaintiff’s decedent, the manufacture, design, maintenance, repair, servicing and chain of distribution of the specific equipment and its components that were involved in the accident, and the identification of witnesses having information on such matters and the identification and production of records relating to such matters. Such discovery shall be completed on or before May 17, 2004.

The motion for protective order of the defendant ITT is granted in part and the following specific interrogatories contained in the plaintiff’s first set of interrogatories to the defendant ITT are stricken as being beyond the scope of the limited discovery allowed by the terms of this order; interrogatory numbers 6,7, 8,9,10,11,12, 13, 20, 21, 32, 33, 34, 36, 37, 38, 41, 42, 46, 57, 58, 59, 60, 61, 68, 69, 70, 71. Furthermore, as to the remaining interrogatives, any references contained therein to “similar product” or “similar products” is stricken. The remaining interrogatories are found to be within the scope of the limited discovery and shall be answered by the defendant ITT within 30 days of the date that this order of court is docketed.

(2) The plaintiff’s petition for extension of time to file complaint and to s trilce/overrule motion for protective order is granted to the limited extent that the time for the filing of plaintiff’s complaint is hereby extended to June 15, 2004.


author: GEORGELIS, P.J.,

text:
    Commonwealth v. D’Orazio

      C.P. of Lancaster Comity,
    no. 4909-2002.

      Jeff Conrad, for the Commonwealth.

      Doug Conrad, for defendant.
    January 8, 2004
   GEORGELIS, P.J.,

— The defendant has filed a direct appeal to the Superior Court. He was directed to file a statement pursuant to Pa.R. A.P. 1925(b). He has done so, and the Commonwealth has filed its answer. This memorandum of opinion is issued to briefly address the grounds raised by the defendant.

This case arises out of an assault on Jose Rivera, which occurred on June 29, 2002, and which resulted in the defendant’s arrest for criminal attempt at criminal homicide and aggravated assault. On July 8, 2003, a jury found the defendant guilty of both crimes. On September 30, 2003,1 sentenced him to 20 to 40 years incarceration.

The defendant challenges my denial of his objection to the introduction of photographic images culled from surveillance equipment at the crime scene; my overruling his objection to testimony from the Commonwealth’s medical expert witness; and the duration of the sentence I imposed upon him.

The defendant first contends that I erred in denying his objection to the introduction of photographic images taken from surveillance equipment installed at the crime scene. He asserts that the Commonwealth failed to produce testimony which established the authenticity and relevancy of such photographs. The photographs at issue contained imprints of two separate and different dates and times. Imprints of date and time were located at the top and at the bottom of the photographs. At the suppression hearing, the Commonwealth presented testimony through Beth Detz, housing manager of the Lancaster City Housing Authority, who explained the type of surveillance equipment used by the Housing Authority, its placement throughout the building, when and by whom it was installed and its functionality. N.T.S.H. 41-42. She explained that the images were captured continuously and that the images presented to her accurately depicted the areas that were videoed. N.T.S.H. 41-45. She also testified that the equipment was new and working properly, but, at that time, two dates and times were listed on the images, one at the bottom and one at the top. N.T.S.H. 43-46. She testified, from her experience in working with the machine, that she knew the time at the bottom of the images was correct and the date at the top was correct. N.T.S.H. 46.

I found that the images, purported to reflect the crime scene at the time the crime was committed, were relevant to the Commonwealth’s assertion that the date and time of the images corresponded with the date and time the defendant committed the crime. The images were authenticated through the testimony of Beth Detz. She corroborated the Commonwealth’s assertion that the date and time of the commission of the crime corresponded to the time located at the bottom of the photographs and the date located at the top of the photographs. Thus, I ruled the images admissible. The weight of the disparity of the two different dates and times located on the photographs was a matter for the jury to consider.

The defendant next avers that I erred in overruling two of his objections to testimony from the Commonwealth’s medical expert witness, Dr. Michael J. Reihart. The defendant’s first objection was that Dr. Reihart’s answer to the Commonwealth’s question of what caused the victim to be so sick was non-responsive. N.T.T. 207. At the time of the objection, Dr. Reihart responded to the question by requesting permission to diagram his answer. N.T.T. 208.1 found that Dr. Reihart’s request to diagram his answer was responsive to aid his answer to the Commonwealth’s question. Thus, I overruled the defendant’s objection.

The defendant’s second objection was to Dr. Reihart’s testimony as to the manner in which some of the victim’s wounds were inflicted. N.T.T. 224-25. He claims that I overruled his objection without affording counsel the opportunity to identify the basis. During a side-bar, defendant’s counsel communicated his basis for the objection, after which I overruled it. Now, the defendant contends that the Commonwealth failed to give notice that Dr. Reihart was going to testify as an expert, identifying the manner in which certain wounds were inflicted, and he contends that the Commonwealth failed to establish that Dr. Reihart was qualified to render an opinion on the manner in which certain wounds were inflicted.

Dr. Reihart was asked if the wounds he viewed on the victim were slashing or full penetration stab wounds. N.T.T. 224-25. He answered that some were slashing and others were full penetration. N.T.T. 225. After qualifying Dr. Reihart, the Commonwealth offered him as an expert in the area of emergency medicine capable of rendering an expert opinion in the field of emergency medicine and trauma to the human body and the treatment of such trauma. N.T.T. 201-202. Defense counsel stated that he had no objections to Dr. Reihart being offered as an expert in the area of emergency medicine and trauma to the human body and treatment of such trauma. N.T.T. 202. Accordingly, I accepted him as an expert. N.T.T. 202. Clearly, the knowledge to distinguish the disparity between a slashing and penetrating knife wound is included in the field of trauma to the human body. Dr. Reihart was an expert in this field. I concluded that he was qualified to render an opinion on the manner in which the wounds were inflicted.

The defendant last contends that I abused my discretion by imposing a sentence of 20 to 40 years. Although the sentence I imposed is within the standard range of the sentencing guidelines, he asserts that this case involves circumstances where the application of the guidelines would be clearly unreasonable under 42 Pa.C.S. §9781(c)(2).

“To constitute a manifest abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. . . . The discretion of the sentencing judge must be accorded great weight because he is in the best position to weigh 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. Minott, 395 Pa. Super. 552, 555-56, 577 A.2d 928, 929 (1990). (citations omitted)

Furthermore, a trial court’s discretion in sentencing matters is constrained only by two tenets: (1) that the sentence must not exceed the statutory limits and (2) that the record must show that the court considered the sentencing guidelines and adhered to the general principle that the sentence imposed should be the minimum sentence consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. Id. at 558, 577 A.2d at 930.

The defendant recognizes in his Pa.R.A.P. 1925(b) statement that the sentence I imposed is within the standard range of the sentencing guidelines. However, he asserts that circumstances exist where the application of the guidelines would be unreasonable, but he cites no facts or circumstances that would make the application of the guidelines clearly unreasonable.

Prior to sentencing the defendant, I considered his age, educational background, prior offenses, work history, family history, medical history and character. N.T.S. 22-27.1 considered his statement before me at the sentencing, statements from his attorney and character witnesses, the entire pre-sentence investigation report, the mandatory minimum requested by the Commonwealth and the sentencing guidelines. N.T.S. 22-27.1 concluded that the appropriate sentence was 20 to 40 years in prison.

Accordingly, I conclude that all of the grounds asserted by the defendant are without merit.

      . 18 Pa.C.S. §901.

      . 18 Pa.C.S. §2702(a)(l), (4).


author: DONOHUE, Member,

text:
    In the Matter of Freedman

      Disciplinary Board Docket no. 103 D.B. 1992.
    January 31, 2003
   DONOHUE, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania hereby submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, Allan Hyman Freedman, filed a petition for reinstatement to the bar of Pennsylvania on July 20, 2001. Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania on November 19, 1992.

A reinstatement hearing was held on December 12, 2001, before Hearing Committee 2.03 comprised of Chair Steven E. Koffs, Esquire, Member Adam B. Krafczek Jr., Esquire, and Alternate Member Steven A. Bergstein, Esquire. James C. Schwartzman, Esquire, represented petitioner. Alan J. Davis represented Office of Disciplinary Counsel.

The committee filed a report on May 31, 2002, and recommended that the petition for reinstatement be granted.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of August 7, 2002.

H. FINDINGS OF FACT

This board makes the following findings of fact:

(1) Petitioner was bom in 1951 and was admitted to the practice of law in Pennsylvania in 1975. He resides at Sheldrake Arms Apartments, 517 E. Lancaster Ave., Apt. 308, St. Davids, PA 19087.

(2) Petitioner was disbarred on consent in 1992 after he pleaded guilty to one count of conspiracy to distribute cocaine and marijuana, one count of possession with intent to distribute marijuana, two counts of possession with intent to distribute cocaine, two counts of conducting a financial transaction to conceal drag proceeds, one count of conducting a financial transaction to promote drug dealing, and two counts of filing false federal individual income tax returns.

(3) In the mid-1980s petitioner was addicted to cocaine and became a participant in the drug operations of a former client. Initially, petitioner made the recommendation to the former client that he invest the proceeds of his drug operations. Petitioner ultimately stored drugs and cash generated from drug sales at his home; assisted in other money laundering activities; and stored a car that was used to transport drugs.

(4) Petitioner was sentenced to a term of imprisonment of five years, followed by five years of supervised release.

(5) While incarcerated, petitioner completed a 500-hour residential drug treatment program. In May of 1996, petitioner was released to a halfway house. In October of 1996, he returned to his residence with an electronic monitoring device. Petitioner’s formal sentence ended on November 18, 1996. His supervised release was terminated on May 1, 2000, approximately 19 months early.

(6) After his release to the halfway house, petitioner began working for the law firm of Briskin & Lewis, his former law firm. His work initially included legal research and writing as well as office administration. Since the amendment of Pa.R.D.E. 217 which was adopted in December of2000, petitioner’s responsibilities have been limited to office administration. He has no client contact.

(7) If reinstated, petitioner plans to practice medical malpractice law with Briskin & Lewis. Petitioner would like to develop a practice focusing in traffic law.

(8) After his indictment but prior to his incarceration, petitioner served as a volunteer at St. Christopher’s Hospital in the pediatric AIDS unit.

(9) Since June of 1997 and continuing to the present, petitioner has served as a volunteer with Reading for the Blind and Dyslexic. Petitioner volunteered 379 hours as of September 5, 2001.

(10) Petitioner has not used illegal drugs since September of 1988. Petitioner’s cessation of drug usage was achieved largely through his determination to put that part of his life behind him. This determination was reinforced by his participation in drug rehabilitation programs during his incarceration.

(11) Petitioner takes Ml responsibility for the choices he made in becoming involved with drugs and assisting in the drug conspiracy.

(12) Petitioner demonstrated sincere remorse for his misconduct.

(13) Petitioner demonstrated competence and learning in the law and has fulfilled the requirements for continuing legal education. While incarcerated, he read Pennsylvania advance sheets. Since his release, he has continued to read the advance sheets, as well as legal journals and newspapers.

(14) Petitioner presented six character witnesses, including four attorneys and two non-lawyer members of the community. These witnesses described petitioner as having a strong reputation as a truthful, honest, and law-abiding person, who did not attempt to blame others for his predicament, and who was forthcoming in explaining his situation to others.

III. CONCLUSIONS OF LAW

(1) The misconduct for which petitioner was disbarred is not so egregious as to preclude immediate consideration of his petition for reinstatement.

(2) Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competency and learning in the law necessary to practice law in Pennsylvania.

(3) Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

IV. DISCUSSION

Petitioner’s request for reinstatement to the bar after disbarment is, at the outset, governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). Keller sets forth a threshold that must be met before the requirements of Pa.R.D.E. 218(c)(3)(i) can be considered. This threshold inquiry is whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon the integrity and standing of the bar or the administration of justice nor be subversive of the public interest. Keller thus requires an examination of the underlying misconduct and a determination as to whether that conduct was so offensive as to preclude reinstatement. In re Verlin, 557 Pa. 47, 731 A.2d 600 (1999).

Petitioner’s conviction arose out of his involvement in a drug organization from which he received no financial payment. Instead, he was provided with a steady flow of cocaine, to which he was addicted. This addiction was a factor in his criminal behavior. Petitioner did not sell or distribute the drugs, but rather provided assistance in storing drugs and money and laundering the proceeds of illegal drug sales. There was no relationship between the illegal activities and petitioner’s practice of law.

Petitioner’s misconduct was very serious; however, it was not of such magnitude as to preclude petitioner’s reinstatement. Petitioner’s drug-related misconduct is similar to that of other attorneys who have sought and been granted reinstatement to the practice of law. In a similar matter, In re Anonymous No. 47 D.B. 83, 24 D.&C.4th 527 (1994), an attorney was disbarred after pleading guilty to charges of narcotics distribution and use of a telephone to facilitate the distribution. The attorney’s involvement was not for profit but to subsidize his drug habit. This attorney was incarcerated for five years, followed by probation. The Supreme Court reinstated this attorney. Other cases reinforce the conclusion that petitioner’s misconduct does not prevent his reinstatement. See In re Anonymous No. 72 D.B. 86, 33 D.&C.4th 567 (1996); In re Anonymous No. 36 D.B. 88, 24 D.&C.4th 519 (1994).

The board must next determine whether petitioner met his burden of proving by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania, and that his current resumption of the practice of law would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest. In order to make this determination, the board must consider the amount of time that has passed since petitioner was disbarred, as well as his efforts at rehabilitation.

Petitioner was disbarred in November of 1992. Nine years had elapsed by the time of the hearing. Petitioner presented uncontroverted evidence that he has rehabilitated himself during this time. He ended his drug use in 1988 and reinforced his commitment to sobriety through successful completion of a 500-hour drug treatment program while incarcerated. Petitioner has been candid with his former associates in the practice of law and friends and family concerning his drug addiction and involvement in drug-related crimes. He enjoys a stable home life and the support of family and friends. He has performed significant community service since his release from incarceration.

Petitioner became gainfully employed after his release to a halfway house and has maintained that employment for more than five years. He maintained his competency and learning in the law by reviewing advance sheets and other legal periodicals. He fulfilled his continuing legal education requirements. If reinstated, he plans to continue working at Briskin & Lewis as an attorney representing plaintiffs in medical malpractice matters.

Petitioner is deeply remorseful for his past use of drugs and his involvement in criminal activity and is committed to maintaining his reformed lifestyle. The testimony of the character witnesses supports the conclusion that petitioner has made drastic changes in his way of life.

Considering all of the foregoing facts, the board is persuaded that petitioner has demonstrated that he has engaged in a qualitative period of rehabilitation during his nine-year disbarment. He has met his burden of proof that he has the moral qualifications, learning in the law and competency to practice law and that his resumption of the practice of law would not have a detrimental impact on the integrity and standing of the bar, the administration of justice or the public interest. Petitioner has shown that he is ready to accept his obligation as a member of the bar in this Commonwealth.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that petitioner, Allan Hyman Freedman, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Members Stewart, Peck, Watkins and Saidis dissented and would recommend the reinstatement be denied.

ORDER

And now, April 29, 2003, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated January 31, 2003, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: RUDNITSKY, Member,

text:
    Office of Disciplinary Counsel v. Jurikson

      Disciplinary Board Docket no. 128 D.B. 2000.
    September 19, 2003
   RUDNITSKY, Member,

Pursuant to Rule 208(d) (2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On October 23, 2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against Mark Jurikson, respondent in these proceedings. The petition charged respondent with violation of the Rules of Professional Conduct and Rules of Disciplinary Enforcement as a result of his failure to appear before the Disciplinary Board for a private reprimand.

A disciplinary hearing was held on April 30, 2002, before Hearing Committee 2.10 comprised of Chair Steven H. Berkowitz, Esquire, Member Anna M. Durbin, Esquire, and Alternate Member Lindley M. Cowper-thwait Jr., Esquire. Respondent appeared pro se.

The committee filed a report on February 12, 2003, and recommended that respondent be suspended for a period of 13 months. Member Durbin filed a separate opinion on February 19,2003, wherein she recommended that a period of probation and a practice monitor be conditions to respondent’s reinstatement to the bar.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of May 14, 2003.

H. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg, PA 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rales.

(2) Respondent was bom in 1948 and was admitted to practice law in Pennsylvania in 1974. His registration address is 1537 Foxbury Road, Maple Glen, PA 19002.

(3) On October 4, 2000, the Disciplinary Board ordered respondent be subjected to a private reprimand for his violation of Rules of Professional Conduct 1.1, 1.3, 1.4(a) and (b), 3.2,5.5(b), 8.4(c) and (d) and Rule 217 of the Pennsylvania Rules of Disciplinary Enforcement for misconduct in his representation of Helen O’Neal. The O’Neal representation resulted in a judgment of non pros because respondent failed to comply with a discovery request on November 9, 1996, despite numerous court orders.

(4) On December 12, 2000, a notice scheduling the private reprimand for January 17, 2001, was mailed to, and received by, respondent.

(5) On January 16, 2001, respondent called Elaine Bixler, executive director and secretary to the board and requested a continuance for personal health reasons. This continuance request was granted.

(6) On April 26,2001, respondent received notice of a rescheduled private reprimand for May 23, 2001.

(7) Respondent did not appear for the private reprimand on May 23, 2001.

(8) On June 14,2001, Disciplinary Board Chair Angelo L. Scaricamazza Jr. directed respondent to provide good cause for his failure to appear.

(9) Respondent did not respond to this letter.

(10) Respondent was involved in an automobile accident in January 1992 in which he suffered an injury to his back, requiring conservative and then surgical intervention.

(11) Respondent has been determined “disabled” under the long-term disability policy of the Philadelphia Bar Association and has been paid monthly benefits since February 3, 1992.

(12) Respondent explained that on the day of the private reprimand, he was unable to get up and move and spent the day sleeping. He did not think of the private reprimand until the afternoon. Respondent stated that “it totally escaped me.”

(13) Respondent did not respond to letters and correspondence with petitioner because he wished that everything would go away..

(14) The record in this matter was kept open for the submission by respondent of a detailed doctor’s report. Respondent never submitted the report.

(15) By order dated July 16, 1996, respondent was placed on inactive status by the Supreme Court of Pennsylvania for failure to meet CLE requirements.

(16) Respondent has a prior record of discipline consisting of an informal admonition in 1997.

EL CONCLUSIONS OF LAW

By failing to appear for his private reprimand, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) Pa.R.D.E. 203(b)(2) — Willful failure to appear before the Disciplinary Board for a private reprimand is grounds for discipline.

(2) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

Respondent is conclusively deemed to have violated the following Rules of Professional Conduct in connection with the underlying acts of misconduct resulting in the imposition of the private reprimand:

(1) R.P.C. 1.1 — A lawyer shall provide competentrep-resentation to a client.

(2) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(3) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(4) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(5) R.P.C. 3.2 — A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

(6) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(7) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(8) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(9) Rule 217, Pa.R.D.E., in part, regarding formerly admitted attorneys and their obligation to notify all clients and other persons to whom a fiduciary duty is or may be owed after transfer to inactive status. Furthermore, formerly admitted attorneys have an obligation to file a statement of compliance with the office of secretary to the Disciplinary Board demonstrating such notification.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with misconduct due to his failure to appear before the board for a private reprimand. Respondent entered into a joint stipulation of fact and admitted his misconduct.

Respondent appeared at the hearing and testified on his behalf. He described his history of back pain due to an automobile accident in 1992. His stated reason for failing to appear before the board was that on the day in question he was in too much pain to move, and so slept through the day and did not recall that the reprimand was scheduled until that afternoon. He did not communicate with the board subsequent to his failure to appear. Respondent was given the opportunity to put on the record a detailed doctor’s report documenting his back pain. In fact, it was respondent’s suggestion that he be permitted to do so. A schedule was set regarding the submission of the doctor’s report; however, respondent failed to submit the report and the committee closed the record.

The history of this proceeding is a showcase for respondent’s lack of interest in his professional license. This matter commenced with respondent’s inaction on a client matter which resulted in the board determination that a private reprimand was warranted. A reprimand was scheduled for January 17,2001, and was rescheduled, at respondent’s request, for May 23, 2001. By failing to appear at the rescheduled private reprimand, this matter has burgeoned into a quite serious case. Respondent had opportunities to resolve this matter quickly and somewhat painlessly, and instead, by his inactivity, now faces loss of his license. Compounding respondent’s behavior is his inexplicable failure to submit his doctor’s report documenting his condition. The Hearing Committee attempted to assist respondent in mitigating his case, but respondent failed to grasp the opportunity.

The evidence of record clearly shows that respondent is not fit to practice law and is not able to fulfill his duties to the profession at this time. The record is devoid of any mitigating evidence to persuade the board that a sanction less than suspension is warranted. For these reasons, the board recommends that respondent be suspended for a period of one year and one day. This length of suspension will further ensure that respondent is physically fit to resume the practice of law, should he desire to do so.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Mark Jurikson, be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Members Cunningham and Stewart recuse themselves in this matter.

Board Member Sheerer did not participate in the May 14, 2003 adjudication.

ORDER

And now, December 9, 2003, upon consideration of the report and recommendations of the Disciplinary Board dated September 19, 2003, it is hereby ordered that Mark Jurikson be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: NANO VIC, J„

text:
    Commonwealth v. Cleland

      C.P. of Carbon County,
    nos. 208 CR 03, 209 CR 03.

      Michael S. Greek, assistant district attorney, for Commonwealth.

      Brian B. Gazo, for defendant Cleland.

      Stephen P. Vlossak Sr., for defendant Whah.
    April 29, 2004
   NANO VIC, J„

FACTUAL BACKGROUND

On February 25, 2003, at approximately 3:37 a.m., a surveillance camera at Boyer’s Supermarket in Lansford, Carbon County, Pennsylvania, recorded the theft of the store’s portable safe from the manager’s office near the front entrance of the store. A tall, thin, white male, between six foot one inch and six foot three inches in height, can be observed on the film entering the store, side-stepping an interior front floor mat, turning left, walking a short distance, and then passing through two separate spring-hinged half doors — the first leading to an express checkout counter and the second from the checkout counter into the manager’s office — removing the safe from beneath the office’s counter and then lifting the safe and running out the front door. This area near the front of the store has been described as an open booth divided into two sections: the front portion is the express checkout and service counter; the rear portion — separated from the front section by a swinging-gated half-door — is the manager’s office where the safe was located beneath the counter. (Preliminary hearing, pp. 7-9, 21, 36-37.)

At the time of the theft, the store was open to the public for business. The theft, however, was not immediately detected. By side-stepping the front mat, the intruder bypassed the activation of a buzzer which would otherwise signal the entrance of a customer into the store. When the theft was discovered several hours later, and the tape viewed by the police, the police also noted that the man who entered was wearing an undersized light-colored hooded sweatshirt, tight fitting blue jeans with a straight-leg cut, and cowboy boots. Additionally, based upon the person’s apparent knowledge of the store — as evidenced by the perpetrator’s avoiding detection in sidestepping the front mat and knowing the location of the safe, that it was portable and unsecured to the premises, and that it could be removed and carried by one person — the police suspected that the intruder was someone familiar with the store or knew someone familiar with the store. While interviewing store employees, the police learned that a former employee, Stacey Conrad, dated a person — now known as the defendant, John Cleland — fitting the general description of the person on the videotape. Police attempts to reach Ms. Conrad were unsuccessful and she could not be located.

That same day, the police began viewing store security tapes-from previous dates. One tape, that of February 10, 2003, depicted John Cleland in the store with Conrad at approximately 3 a.m. In this tape, Cleland fit the same description apparent from the tape of the crime: he was a white male of approximately six foot three inches in height, was of slender build, had long thin legs, and wore straight legged jeans and cowboy boots. In the tape of February 10, 2003, Conrad was wearing a gray hooded sweatshirt which was the same or similar to that worn by the intruder and which appeared too large for her.

On February 27, 2003, the police responded to a domestic disturbance at Conrad’s mother’s home in Lans-ford. Conrad, who was then unemployed and in the company of Cleland, had given her mother $200 in cash. Cleland’s dress again was the same as that of the person on the February 25 tape. Believing Cleland to be the person in that tape, the police arrested and charged Cleland with the theft from Boyer’s. A search incident to Cleland’s arrest revealed an additional $258 on his person. (Suppression hearing, p. 38.) Cleland told the police he had left home that evening with $1,000 in cash. Fie also claimed that the money came from the sale of his truck several days earlier; however, the buyer identified by Cleland denied having purchased the truck or giving him money. At this same time, Conrad was arrested for driving under the influence and placed in prison.

When later interviewed in prison, Conrad told the police that she was present during several conversations where Cleland and the defendant, Michael Whah, discussed stealing money from Boyer’s. At the time of the theft, Conrad was residing in Whah’s home in Drums, Pennsylvania, with Cleland; Whah was also living in the home with his girlfriend. Conrad also stated that on February 25, 2003, both defendants left Whah’s home together, at approximately 2:45 a.m. and returned at 5 a.m., and that Cleland was then wearing a gray hooded sweatshirt, blue jeans and brown boots. She further stated that while eating breakfast with the two following their return, Whah told Cleland that the money was in Whah’s room. During this same interview, Conrad identified the location within Whah’s home where the tools used to open the safe were kept.

Conrad also told the police that she had advised Cleland how to bypass the front alarm; that Whah had stated he needed money to pay for his home; and that earlier that day Whah and Cleland had discussed driving to Boyer’s to steal money. At some time later, Conrad admitted that she, in fact, was with the defendants when they drove from Drums to Boyer’s on February 25,2003; that Whah was the driver and parked his SUV in front of Boyer’s while Cleland entered the store; that Cleland exited the store with the safe and placed the safe in the back seat of the SUV; that the three returned to their home in Drums; that in the basement of the home Cleland and Whah used various tools to cut a hole in the bottom of the safe; that Conrad put her hand through the hole and withdrew approximately $13,000 in cash and checks from the safe; that the money was given to Cleland; and that Cleland subsequently hid the money in a location unknown to her.

Based on their own investigation, the information they first received from Conrad — before she acknowledged being part of the theft, and a conversation with a confidential informant who stated that he had been in the Whah residence and that Whah stored large amounts of drugs in his home, the police secured a search warrant from a local magistrate to search Whah’s home for purposes of obtaining evidence related to the theft, as well as evidence of drug trafficking by Whah. The search warrant was executed on March 6, 2003. No evidence of drugs or drug paraphernalia was found in the home and no evidence of the theft was found among Whah’s property. (Preliminary hearing, pp. 37-38.) The police, however, did discover keys to Boyer’s store in a black duffle bag located in the bedroom Cleland shared with Conrad; these keys were identified by a store manager as being kept in the safe that had been removed. Also located in Cleland’s bedroom was an extra large gray hooded sweatshirt.

Both Cleland and Whah have been charged with identical crimes: burglary, theft by unlawful taking, theft by receiving stolen property, criminal conspiracy, and criminal trespass. Both have also filed omnibus pretrial motions in the nature of a writ of habeas corpus with respect to the crimes of burglary and criminal trespass, claiming the necessary elements for each has not been met, and for the suppression of evidence, claiming that probable cause did not exist for the issuance of the search warrant and that the Rules of Criminal Procedure were not complied with.

DISCUSSION

Habeas Corpus

Defendants argue that because Boyer’s Supermarket was open to the public at the time the theft occurred, the statutory definitions of burglary and criminal trespass preclude a conviction of either. The Commonwealth retorts that Cleland’s entry into the store by subterfuge both permits and justifies the charges. The answer, not surprisingly, lies in the language of the Crimes Code.

Burglary is defined in section 3502(a) of the Code as follows:

“Section 3502. Burglary

“(a) Offense defined. — A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S. §3502(a).

The succeeding section of the Code, in language applicable to this case, defines criminal trespass in the following terms:

“Section 3503. Criminal trespass

“(a) Buildings and occupied structures.—

“(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:

“(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; . ...” 18 Pa.C.S. §3503(a)(l)(i).

The same section of the Code, under subsection c, provides:

“(c) Defenses. — It is a defense to prosecution under this section that:

“(2) the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; ....” 18 Pa.C.S. §3503(c).

Finally, the term “occupied structure” used in both section 3502 and section 3503 is defined as follows:

“ ‘Occupied structure.’ Any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.” 18 Pa.C.S. §3501.

At common law, burglary was the nighttime breaking and entering of the dwelling house of another with intent to commit a felony therein. According to the Superior Court, the reason for including the phrase “open to the public” in section 3502 of the Crimes Code was “to bring the law of burglary closer to its common-law ancestor which sought to protect private premises from crime.” Commonwealth v. Cost, 238 Pa. Super. 591, 601, 362 A.2d 1027, 1032 (1976). See also, Commonwealth v. Hagan, 539 Pa. 609, 615, 654 A.2d 541, 544 (1995) (“Under the common law, burglary was ‘a forcible invasion of the right of habitation.’ ”).

Under section 3502, one who enters premises held open to the public or to which he is permitted to enter is not a burglar. The burden is upon the Commonwealth to prove, as an element of the offense, that the premises were not open to the public at the time of entry, regardless of the actor’s intent at the time he entered the premises. Id. at 599, 362 A.2d at 1031.

In this case, the Commonwealth has stipulated that Boyer’s was open to the public at the time of entry. Therefore, regardless of any criminal intent Cleland may have harbored when he entered the front door, standing alone, Cleland’s entry into the store, even if duplicitous as suggested by the Commonwealth, is insufficient to sustain a conviction of burglary.

The more difficult question, one not answered by the court in Cost, is whether a thief’s entry into a business place during business hours bars a prosecution for burglary when the theft occurs from within a partially enclosed area of the business premises where business customers are not permitted — here the manager’s office. In Cost, the court expressly declined to decide whether the entry of defendant’s accomplice into the area behind the tavern’s bar and the taking of money from the cash register located behind this bar “could support a conviction of burglary on the grounds that there was an entry of a .. separately secured . . . portion . . . of the premises.” Commonwealth v. Cost, 238 Pa. Super, at 599 n.5, 362 A.2d at 1031 n.5.

On this issue we believe that the manager’s office— described as an open booth, with a swinging gate, and which bore no lock and required no breaking or forced entry for Cleland to pass through — was not separately secured. Cf. Commonwealth v. Cook, 377 Pa. Super. 356, 547 A.2d 406 (1988) (unauthorized entry by defendant into a store’s stockroom, open only to employees and not to members of the public, the door to which had been closed and secured by an unlocked padlock, in which defendant was discovered carrying a bag containing concealed clothing from both the store and the stockroom, held sufficient to sustain conviction for criminal trespass of a separately secured portion of the building under section 3503(a)(l)(i)). At the same time, we also conclude that the area bounded by the manager’s office was a separately occupied section of the store. As an area obviously reserved for and restricted to store employees, the booth was not an area held open to the public or to which Cleland was licensed or privileged to enter.

In explaining what is a separately secured or occupied portion of a building or occupied structure, the Superior Court has quoted with approval the following official commentary to section 221.1 of the Model Penal Code:

“The provision as to separately secured or occupied portions of buildings and structures takes care of the situation of apartment houses, office buildings, steamships with many private cabins, etc., where occupancy is by unit. It is the unit rather than the structure which must be safeguarded, even against the occupants of other units in the same structure.” Commonwealth v. White, 371 Pa. Super. 578, 581-82, 538 A.2d 887, 889 (1988), appeal denied, 519 Pa. 660, 546 A.2d 622 (1988) (ladies’ room of Society Hill Club entered by male intruder held to be a separately secured or occupied portion of the building within the meaning of section 3503(a)(l)(i)). In White, the court found the ladies’ room of the Society Hill Club to be a “separately secured or occupied” portion of the building “for precisely the same reason that an office in an office building is— it is reserved for the exclusive use of only a subset of the total population authorized to use the larger structure.” Id. at 582, 538 A.2d at 889.

That Boyer’s Supermarket was opened for business and, in this sense, open to the public at the time Cleland allegedly entered, is not in dispute. That the manager’s office at the front of the store was reserved for use by employees only and not open to the general public, appears clear from the evidence presented by the Commonwealth. Therefore, while Cleland’s entry into the store itself will not sustain a conviction for either burglary or criminal trespass, his entry into the manager’s office, if proven, will.

Suppression

Defendants next claim that the information upon which the magistrate relied in approving the issuance of a search warrant for Whah’s home was tainted by illegally obtained information and, therefore, any evidence obtained when the warrant was executed must be suppressed as the fruit of an unlawful search. More broadly stated, defendants claim that if only properly obtained and reliable information is considered, the affidavit does not provide a substantial basis for the magistrate to make a probable cause determination.

Defendants first argue that the similarity of Cleland’s general physical appearance and dress with that of the true thief, as described in the warrant’s affidavit and which appears in the testimony of record, is only superficial and was insufficient to establish probable cause for Cleland’s arrest. If defendants are correct, the cash seized incident to Cleland’s arrest and his statement as to the source of this cash — the alleged sale of his truck which was discredited by further investigation — was illegally obtained evidence and improperly considered by the magistrate in issuing the warrant. (Suppression hearing, pp. 38, 40.) We agree. In the Interest of: M.D., 781 A.2d 192, 198 (Pa. Super. 2001) (“Clearly, blue jeans and a gray hooded sweatshirt is not unusual attire, and the officer did not even indicate whether his suspect possessed any specific physical or racial characteristics which would assist in separating possible suspects from ordinary, law-abiding citizens.”). Such information must be suppressed under the fruit-of-the-poisonous-tree doctrine, the poisonous tree being the illegal arrest.

Defendants also challenge, as a basis for issuing the warrant, the assertions in the affidavit that Whah was involved in drug trafficking. The affidavit states that the police spoke with a confidential informant who had provided information to other law enforcement agencies, which resulted in the issuance of a search warrant and the arrest of various individuals allegedly involved in the sale of illicit narcotics supplied by Whah, and that this same informant advised the undersigned affiant that Whah conceals large amounts of drugs in a false wall in the basement of his home. The affidavit does not state the circumstances or number of times or when most recently the confidential informant was in Whah’s home and observed illicit drugs, and does not state any predictive behavior or corroborative evidence or any other information from which the police or magistrate in this case could independently evaluate the credibility of the confidential informant, the reliability of his information that large amounts of drugs had been concealed in Whah’s home, or the validity of the conclusion that evidence of drug trafficking was still present and was likely to be discovered in Whah’s home. Such information as is contained in the affidavit, defendants argue, was insufficient to permit the magistrate to independently assess the “veracity” and “basis of knowledge” of the confidential informant and whether the information received by the affiant was probably reliable. With this, we also agree. Without being provided such underlying information, the magistrate could not determine whether there existed a fair probability that contraband or evidence of a crime would be found in Whah’s home at the time of executing the warrant. Commonwealth v. Conner, 452 Pa. 333, 340, 305 A.2d 341, 345 (1973); Commonwealth v. Haggerty, 388 Pa. Super. 67, 564 A.2d 1269 (1989), appeal denied, 525 Pa. 577, 575 A.2d 109 (1990) (“The necessity to establish the time frame concerning which the search warrant is sought is to avoid staleness as a warrant can only issue upon probable cause that exists at the time of issuance.” Id. at 71-72, 564 A.2d at 1271.). The bootstrapping of one search warrant upon the strength of another cannot be mechanically condoned.

Although we agree with defendants that Cleland’s arrest, at the time made, was illegal, and that the magistrate’s consideration in issuing the warrant of any evidence obtained from this arrest, as well as consideration of possible drug trafficking by Whah, was improper, we do not believe that such consideration requires suppression of any evidence seized pursuant to the warrant. Defendants’ assumed premise, that the inclusion of illegally obtained evidence or evidence whose reliability is not established in a probable cause affidavit inextricably taints and precludes a finding of probable cause to support the issuance of a search warrant, is too broad. Expanding the cost to society already imposed by the exclusionary rule on the prosecution of criminal activity is not warranted where probable cause is evident in the affidavit based on information legally obtained from independent sources. When the affidavit contains a mixture of both lawfully and unlawfully obtained information, it is the responsibility of the court to independently review the affidavit and redact that which has been unlawfully obtained. If, in doing so, the information remaining establishes probable cause, the warrant should be upheld. United States v. Barajas-Ajalos, 359 F.3d 1204, 1216 (9th Cir. 2004) (“A reviewing court should excise the tainted evidence and determine whether the remaining, untainted evidence would provide a neutral magistrate with probable cause to issue a warrant.”). “[T]he inclusion of illegally obtained evidence will not invalidate a search warrant if the warrant is also based upon other sources which are valid and sufficient to constitute probable cause.” Commonwealth v. Cosby, 234 Pa. Super. 1, 5-6, 335 A.2d 531, 533 (1975) (quotation and citations omitted); see also, United States v. Herrold, 962 F.2d 1131, 1138 (3d Cir. 1992) (“[E]ven assuming that some factual averments in the affidavit are tainted, they do not vitiate a warrant which is otherwise validly issued upon probable cause reflected in the affidavit.”). The question we must therefore answer is whether, after redacting evidence derived from Cleland’s arrest and excising those averments in the affidavit alleging drag trafficking by Whah, the affidavit nonetheless establishes probable cause to support the warrant.

“The starting point in determining whether a search and seizure conducted pursuant to a search warrant was unreasonable is to question whether probable cause existed to issue the search warrant.” Commonwealth v. Clark, 412 Pa. Super. 92, 95, 602 A.2d 1323, 1325 (1992), appeal denied, 533 Pa. 606, 618 A.2d 398 (1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1846, 123 L.Ed.2d 470 (1993). Probable cause exists when the information presented, reviewed in a practical, non-technical manner, supports a fair probability that contraband or evidence of a crime will be found in a particular place. Such a probability must be “supported by less than prima facie proof but more than mere suspicion.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). It requires “only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 244 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

“The legal principles applicable to a review of the sufficiency of probable cause affidavits are well settled. Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. The standard for evaluating a search warrant is a ‘totality of the circumstances’ test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). A magistrate is to make a ‘practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ The information offered to establish probable cause must be viewed in a commonsense, non-technical manner. Probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and deference is to be accorded a magistrate’s finding of probable cause.” Commonwealth v. Ryerson, 817 A.2d 510, 513-14 (Pa. Super. 2003). The role of the reviewing court in determining whether probable cause exists to issue a search warrant is limited to “ensuring] that the magistrate had a ‘substantial basis for . . . concluding]’ that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332; Commonwealth v. Bonasorte, 337 Pa. Super. 332, 346, 486 A.2d 1361, 1369 (1984).

When the challenged information is severed from consideration, the affidavit nonetheless established probable cause to believe that evidence or the fruits of the theft would be located at Whah’s home. See also, Commonwealth v. Torres, 564 Pa. 86, 96, 97, 764 A.2d 532, 538 (2001) (reviewing court must accord deference to the issuing authority’s probable cause determination). After reciting the officer’s experience and familiarity with in-yestigating criminal activity, the affidavit sets forth the results of the officer’s immediate investigation of the scene: his review of the security tape and its depiction of the intruder, the reasons why the officer believes the intruder was familiar with the store and the safe, the officer’s viewing of a separate tape made several days prior to the theft in which Cleland is depicted with his girlfriend, Conrad, an employee of Boyer’s with knowledge of the store’s operation and use of the safe, and in which Cleland’s physical traits and dress and movements, as observed by the officer, strongly resemble those of the intruder. The af-fiant recites the statements obtained from Conrad in which she allegedly heard the defendants discussing their plans to rob Boyer’s; that she saw the defendants leave Whah’s home on February 25, 2002, at approximately 2:45 a.m. and return at approximately 5 a.m.; that Cleland’s dress at the time of departure matched that of the intruder depicted on the security tape; and that the same morning she heard Whah tell Cleland that some of the money would be in Whah’s bedroom. The affiant also reported that later, Cleland, who was unemployed, gave Conrad $200 in cash; that Cleland had been staying with Whah at Whah’s home for the past four months; and that Conrad provided information where, within the home, the tools used to open the safe were located and where, she believed, the safe was discarded.

CONCLUSION

In accordance with the foregoing, the charges of burglary and criminal trespass will remain. Defendants’ motion to suppress the information obtained from the search authorized by the warrant will be denied. However, defendants’ motion to suppress the information obtained from the search of Cleland incident to his arrest will be sustained.

ORDER

And now, April 29, 2004, upon consideration of the respective defendants’ omnibus pretrial motions and after hearing thereon and following review of the parties’ respective briefs, it is hereby ordered and decreed as follows:

(1) By agreement of the parties, the motion to suppress the results of the search of the residence at 38 Third Street, Kelayres, Schuylkill County, Pennsylvania, pursuant to the warrant bearing warrant control number 010-03, is granted without prejudice to the parties on any other pending motions to suppress.

(2) The motion to suppress the monies discovered on the person of John Cleland and his statement regarding the source of these monies following his arrest on February 27, 2003, is granted.

(3) The remaining motions of both defendants are denied.

      . An earlier search warrant, obtained for Cleland’s former residence in Kelayres, Pennsylvania, produced no evidence, Cleland having previously moved from that location. By agreement of the parties, defendants’ motion to suppress any evidence gathered from the execution for this warrant, there being none, was granted without prejudice to any other pending motions to suppress.

      . 18 Pa.C.S. §3502(a).

      . 18 Pa.C.S. §3921 (a).

      . 18 Pa.C.S. §3925(a).

      . 18 Pa.C.S. §903(a).

      . 18 Pa.C.S. §3503(a)(l)(i).

      . Whah has also argued that because the crime he is alleged to have conspired to commit is restricted to that of burglary, and because there is no evidence that he entered Boyer’s Supermarket or took any property from the building, the charges of criminal conspiracy and theft by unlawful taking must be dismissed. Whah’s argument ignores the accomplice theory of liability. 18 Pa.C.S. §306(v). Failure to charge or even an acquittal of conspiracy, does not preclude the possibility of guilt as an accomplice.
      “Rejection of a conspiracy theory does not eliminate the possibility of concerted action in the perpetration of a crime. A conspirator agrees with another to commit a crime and makes an overt act in furtherance thereof. The inchoate crime of conspiracy is thus committed regardless of whether the substantive crime occurs. An accomplice knowingly or voluntarily cooperates with or aids another in the commission of a crime. Commonwealth v. Manchas, 430 Pa. Super. 63, 81, 633 A.2d 618, 627 (1993), allocatur denied, 539 Pa. 647, 651 A.2d 535 (1994). The aid rendered makes that person guilty of the substantive offense.
      “Despite the similarities between conspiratorial culpability and accomplice liability, a jury verdict concluding that an individual is not a conspirator does not require a concomitant conclusion that the same individual is not an accomplice.” Commonwealth v. Tolbert, 448 Pa. Super. 189, 214-15, 670 A.2d 1172, 1185 (1995), appeal denied, 548 Pa. 613, 693 A.2d 588 (1997), cert. denied, 522 U.S. 891, 118 S.Ct. 230, 139 L.Ed.2d 162 (1997); see also, Commonwealth v. Allen, 425 Pa. Super. 615, 618-19, 625 A.2d 1266, 1268 (1993).

      . Burglary, as defined by section 3502, requires proof of the following three elements beyond a reasonable doubt: (1) entry of a building or occupied structure, or separately secured or occupied portion thereof, by the defendant; (2) with the contemporaneous intent on the part of the defendant of committing a crime therein; and (3) at a time when the premises are not open to the public and the defendant was not then licensed or privileged to enter. Commonwealth v. Franklin, 306 Pa. Super. 422, 427, 452 A.2d 797, 799 (1982). The purpose of the burglary statute is “to protect the sanctity of the building and the safety of the persons and contents within it.” Commonwealth v. Giddings, 454 Pa. Super. 524, 530, 686 A.2d 6, 9 (1996), appeal denied, 548 Pa. 643, 695 A.2d 784 (1997), overruled on other grounds by Commonwealth v. Clark, 746 A.2d 1128 (Pa. Super. 2000), appeal denied, 564 Pa. 700, 764 A.2d 1064 (2000). The purpose of the criminal trespass statute is “to prevent unlawful intrusion onto real property!.]” Commonwealth v. White, 342 Pa. Super. 1, 8, 492 A.2d 32, 36 (1985).

      . Notwithstanding the similarity in language, criminal trespass is not a lesser included offense of burglary. Commonwealth v. Carter,
        482 Pa. 274, 393 A.2d 660 (1978). The two are distinguished by the intention of the actor. Whether the defendant subjectively believed his presence in a building or occupied structure was privileged or licensed is irrelevant for burglary. The only question is whether the premises were in fact open to the public or whether the actor was licensed or privileged to enter. In contrast, since the defendant’s subjective belief is an element of criminal trespass, the defendant’s actual belief that he was privileged or licensed to enter can provide a basis for acquittal of this charge. Id. at 277, 393 A.2d at 661. Scienter is not an element of burglary. For purposes of sentencing, however, where the facts show that in practical effect the defendant committed a single criminal act, the two merge. Commonwealth v. Franklin, 306 Pa. Super, at 430, 452 A.2d at 801.

      . The fruit-of-the-poisonous-tree doctrine “requires the exclusion of tangible evidence seized during an unlawful search, and derivative evidence, both tangible and testimonial, acquired as a result of the unlawful search.” United States v. Herrold, 962 F.2d 1131, 1137 (3d Cir. 1992), cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992). “[E]vidence which is obtained as a direct result of an illegal search and seizure may not be used to establish probable cause for a subsequent search.” United States v. Barajas-Avalos, 359 F.3d 1204, 1212 (9th Cir. 2004).

      . “In determining whether the warrant is supported by probable cause, the magistrate may not consider any evidence outside the four-corners of the affidavit.” Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003). Unless the magistrate is provided sufficient information to independently determine the reliability of the information contained in the affidavit and the reliability of the sources of that information, the information provided will be insufficient to establish probable cause and to meet the specificity test relating to time, place and alleged criminal activity required to be contained within the four comers of the affidavit. Commonwealth v. Edmunds, 526 Pa. 374, 403 n.12, 586 A.2d 887, 902 n.12 (1991) (the information presented to the magistrate must be in writing; oral statements of the affiant to a magistrate, even if under oath, may not be considered in determining whether probable cause has been established); see also, Pa.R.Crim.P. 203(B) (“The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside of the affidavits.”).

      . “Where a search warrant authorizes seizure of some items for which there is probable cause and other items for which there is no probable cause, the warrant is not [fully] invalid. In such cases, suppression will be required only of the evidence which was seized without probable cause.” Commonwealth v. Bagley, 408 Pa. Super. 188, 215-16, 596 A.2d 811, 824 (1991), appeal denied, 531 Pa. 637, 611 A.2d 710 (1992), cert. denied, 506 U.S. 1002, 113 S.Ct. 606, 121 L.Ed.2d 541 (1992).

      . The independent source doctrine is a corollary to the exclusionary rule.
      “[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse position, that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” United States v. Herrold, 962 F.2d at 1139-40. (citations and quotations omitted)

      . The policy underlying the independent source doctrine is that the police not be placed in a worse position than they would have been in had they not engaged in illegal activity.
      “To promote this interest, the court’s use of ‘affect’ in Murray [Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)] must be understood to signify affect in a substantive manner. Thus, the fact that an application for a warrant contains information obtained through an unlawful entry does not per force indicate that the improper information ‘affected’ the justice’s decision to issue the warrant and thereby vitiate the applicability of the independent source doctrine. Rather, if the application contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry.” United States v. Herrold, 962 F.2d at 1141-42.
      In this opinion, the court later concluded:
      “Hence, we are satisfied that the district court focused on the wrong question when it held ‘[t]he government has not presented any evidence proving by a preponderance of the evidence that the Magistrate’s decision to grant the search warrant was entirely independent of the information discovered during the illegal warrantless entry.’ The government was not required to make such a showing which probably could have been made only by producing the justice as a witness so that he could be asked to reconstruct his state of mind when he issued the warrant. Rather, the government was required to establish that a neutral justice would have issued a warrant based on the untainted information in the affidavit which the police had acquired prior to their entry into [defendant’s] trailer.” Id. at 1143.

      . In attacking the validity of a search warrant at a suppression hearing, a defendant is entitled to go beyond the four comers of the search warrant and attack deliberate and material misstatements by the affiant. Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973). The reliability and credibility of the affiant, including the truthfulness of the recitals in the warrant alleging the informant’s previous reliability, are important factors to consider in determining whether the issuing magistrate’s substantial basis finding should be upheld. “Where a police officer makes a knowing misstatement of material fact in [an affidavit in support of an application for] a search warrant, the warrant is invalid and any evidence obtained pursuant to that warrant is inadmissible.” Commonwealth v. Bonasorte, 337 Pa. Super. 332, 346-47, 486 A.2d 1361, 1369 (1984).
      The information provided by Conrad tying defendants to the crime is substantial. It is also, according to defendants, unreliable. This, defendants claim, is illustrated by Conrad’s change in story: the basis of her knowledge shifting from that of an observer to that based on her actual involvement and participation in the theft. This change, coupled with factual inconsistencies, defendants contend, brands Conrad inherently suspect as a source of information and renders the information provided by her incapable of reasonably supporting a legitimate claim of probable cause. With this view, we disagree.
      “Misstatements of fact [by an affiant] will invalidate a search and require suppression only if they are deliberate and material.” Commonwealth v. Bonasorte, 337 Pa. Super, at 347, 486 A.2d at 1369. “A material fact is one without which probable cause [for] search would not exist.” Commonwealth v. Clark, 412 Pa. Super. 92, 96, 602 A.2d 1323, 1326 (1992). “In deciding whether a misstatement is material, the test is not whether the statement strengthens the application for the search warrant, but rather whether it is essential to it.” Commonwealth v. Cameron, 445 Pa. Super. 165, 171, 664 A.2d 1364, 1367 (1995), appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996).

        As an identified informant, Conrad’s shift in the basis of her knowledge from that of an observer to that of an accomplice, thereby subjecting herself to criminal responsibility, strengthens, not lessens, her veracity. Commonwealth v. Matthews, 446 Pa. 65, 70, 285 A.2d 510, 512 (1971) (reliability of identified informant established by declaration against penal interest). More importantly, this change does not constitute a deliberate or knowing misstatement of material fact: under either version, the time, place and defendants’ involvement in the criminal activity with which they’ve been charged has remained the same.
      Additionally, to the extent defendants challenge the truthfulness of the facts recited in the affidavit, defendants’ challenge is to that of the veracity of the informant — Conrad'—not that of the police officer affi-ant. Defendants correctly cite Commonwealth v. Clark, supra, as authority to support this challenge. Clark, however, is at odds with an earlier panel decision of the Superior Court holding that under both the federal and state constitutions a challenge to the information presented in a probable cause affidavit is restricted to a challenge to the veracity of the affiant. Commonwealth v. Bradshaw, 290 Pa. Super. 162, 434 A.2d 181 (1981) (credibility of affiant, not informant, is issue of probable cause hearing). With this statement we agree.
      A defendant is entitled — constitutionally, legally and historically— not to have his privacy invaded unreasonably by governmental agents in order to enforce the law. The vehicle to assure this protection is afforded is the standard of probable cause presented objectively, accurately and truthfully by the affiant and reviewed objectively, practically and fairly by a neutral and detached magistrate. The test of probable cause “is designed to protect us from unwarranted and even vindictive incursions upon our privacy.” Commonwealth v. Edmunds, 526 Pa. at 398, 586 A.2d at 899 (quoting Commonwealth v. Miller, 513 Pa. 118, 127, 518 A.2d 1187, 1191 (1986)).
      In Edmunds, the court upheld defendant’s challenge to a warrant which on its face failed to meet the test of probable cause: the warrant failed to support a time frame within which the magistrate could reasonably infer that the criminal conduct observed was recent and would most likely still be in progress at the time the warrant was requested. The court held, unlike the “good faith” exception to the exclusionary rule found by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), that the history and policy underlying Article I, Section 8 of the Pennsylvania Constitution precludes the introduction of evidence seized where probable cause is lacking on the face of the warrant.
      Neither the holding nor reasoning of Edmunds suggest that when probable cause appears on the face of the warrant and it is later determined that an informant, who the police legitimately and reasonably believed and found reliable, deliberately and knowingly provided misstatements of material fact, that the search and consequent invasion of privacy is constitutionally unsound and such as to require the suppression of evidence seized pursuant to the warrant. To invalidate the fruits of state action which reasonably, in good faith and in accordance with the law relies on information provided by a private party — later determined to be inaccurate — represents a fundamental and dramatic shift in what evidence must be suppressed and one which we believe should only be made by an express and unmistakable pronouncement of our Supreme Court. See Commonwealth v. Kean, 382 Pa. Super. 587, 596, 556 A.2d 374, 378 (1989), appeal denied, 525 Pa. 596, 575 A.2d 563 (1990) (“[B]oth state and federal constitutional limitations on ‘unreasonable searches and seizures’ apply exclusively to the conduct of persons who are acting as instruments or agents of the state.”). If, then, the police have a reasonable belief in the truthfulness of the information provided by the informant, and such information is factually sufficient to establish probable cause, the protections against unreasonable searches and seizures provided by both the Fourth Amendment and Article I, Section 8, of the Pennsylvania Constitution are not violated. In this respect we agree with the holding in Bradshaw and disagree with that in Clark. Parenthetically, we also note that Bradshaw was cited with approval by the Superior Court, en banc, in Bonasorte, 337 Pa. Super. at 339 n.4, 486 A.2d at 1365 n.4.

        See also, Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682 (1978), in which the Supreme Court, in dicta, stated that “[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” “In Franks, it was held that a court must invalidate the warrant and suppress the fruits of the search if the criminal defendant can prove that the affiant made deliberate misstatements or made statements with reckless disregard for the truth and these statements were necessary to the finding of probable cause.” Commonwealth v. Bradshaw, supra, 290 Pa. Super, at 165, 434 A.2d at 182. (emphasis in original)

      . Defendants also argue that chapter 2 of the Rules of Criminal Procedure has been violated, specifically Rules 208 and 209, by the failure of the police while executing the warrant to properly sign, witness or prepare an inventory and provide a copy to the issuing magistrate, and that this violation requires the suppression of any evidence obtained pursuant to the warrant. The “exclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning seaches and seizures. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.” Commonwealth v. Mason, 507 Pa. 396, 406-407, 490 A.2d 421, 426 (1985). (emphasis in original) In Mason, our Supreme Court, quoting Commonwealth v. Musi, 486 Pa. 102, 115-16, 404 A.2d 378, 385 (1979), stated:
      “A rule of exclusion is properly employed where the objection goes to the question of the reliability of the challenged evidence ... or reflects intolerable government conduct which is widespread and cannot otherwise be controlled.... Experience does not suggest there has been such a widespread and flagrant abuse of Rule 2008(a) [now Rule 208] that would require the fashioning of a per se exclusionary rule for its violation.. .. Therefore, the imposition of a sanction requiring the exclusion of evidence that results from a search where there has not been compliance with the rule must depend upon the relationship of the violation to the reliability of the evidence seized. Here, there was probable cause for the entry and search and there is no dispute that the rifle was in fact found on the premises described in the warrant and seized pursuant to that search. Thus, appellant’s rights were not prejudiced by the officer’s failure to fully comply with the mandates of the rule.
      “Federal cases interpreting a comparable rule of criminal procedure, see Rule 41(d) of the Federal Rules of Criminal Procedure, have concluded that although important, the procedures required for execution and return of the warrant are ministerial and that irregularities should not void an otherwise valid search absent a showing of prejudice. ... We accept the wisdom of this approach and hold that where, as here, appellant has failed to demonstrate that she was prejudiced from the violation of this rule a request to suppress the fruits of the search is not justified.” Id. at 403-404, 490 A.2d at 424-25. (internal citations and emphasis omitted) See also, Commonwealth v. DeGeorge, 319 Pa. Super. 244, 466 A.2d 140 (1983), rev ’d on other grounds, 506 Pa. 445, 485 A.2d 1089 (1984) (violation of former Rule 2009(a), now Rule 209(a), requiring return of an inventory of the items seized, does not require exclusion of evidence).
      As stated in Commonwealth v. Ryan, “[t]he failure to file the inventory with the clerk of courts office did not violate any of defendant’s constitutional rights, did not invalidate the search warrant, nor did it affect its execution.” 268 Pa. Super. 259, 263, 407 A.2d 1345, 1347 (1979).


author: O’BRIEN, /.,

text:
    In re Macumber
    C.P of Monroe County,
    no. 151 O.C. 2003.

      Keith Welks, for Henderson.
    December 19, 2003
   O’BRIEN, /.,

I. FINDINGS OF FACT

(1) William Macumber is a 27-year-old single man who, following an automobile accident in 1995, entered into a structured settlement agreement. The agreement provided petitioner with an immediate lump sum payment of $30,000 and a series of installment payments of $250 per month starting in May of 2001 and ending in March of 2010.

(2) Being unwilling to await the passage of time to receive his monthly payments, the petitioner sought the services of 321 Henderson Receivables Limited Partnership. That firm has proposed paying Mr. Macumber the sum of $9,521.90 in exchange for his assignment of 69 payments totaling $17,250.

II. DISCUSSION

Following legislative hearings, which disclosed considerable concern about the abuse of transfers of structured settlement payments by citizens of the Commonwealth, the General Assembly enacted and the governor signed the “Structured Settlement Protection Act” on February 11, 2000. That act provides in pertinent part as follows:

“Conditions to transfers of structured settlement payment rights

“(a) Petition. — No transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shalt be required to make any payment to any transferee of structured settlement payment rights unless the payee has filed a petition requesting such transfer and the petition has been granted by final order or decree of a court of competent jurisdiction based on such court’s express written findings that: ...

“(3) The payee has established that the transfer is in the best interests of the payee or his dependents.

“(4) The payee has received or expressly waived in a separate written acknowledgment signed by the payee, independent legal advice regarding the implications of the transfer, including consideration of the tax ramifications of the transfer.

“(5) If the transfer would contravene the terms of the structured settlement:

“(i) the transfer has been expressly approved in writing by:

“(A) the payee, the structured settlement obligor and the annuity issuer, provided, however, that such approval may not be unreasonably withheld and further provided that the structured settlement obligor and the annuity issuer shall be required to consent to the transfer if the transferee has agreed to indemnify the structured settlement obligor and annuity issuer from all liabilities arising from the factoring transaction and compliance or noncompliance with this act and further provided that if at the time the payee and the transferee propose to enter into the transfer agreement a favorable tax result is in effect, then the approval of the annuity issuer and the structured settlement obligor shall not be required; and

“(B) any court or responsible administrative authority that previously approved the structured settlement; and

“(ii) signed originals of all approvals required under subparagraph (i) have been filed with the court from which the authorization of the transfer is being sought and originals or copies have been furnished to the payee, the structured settlement obligor and the annuity issuer. [40 P.S. 4003]”

After carefully evaluating the testimony of the beneficiary of the structured settlement agreement, we conclude that an assignment of his rights under that agreement should not be approved. The transfer is clearly not in the best interest of payee William Macumber. The discount rate being charged by 321 Henderson Receivables Limited Partnership is in excess of any interest rate allowed under Pennsylvania law and the payee did not give any coherent or rational reasons for entering such a bad bargain at this time. The circumstances underlying the present petition are dramatic evidence of the wisdom of the legislature in enacting the “Structured Settlement Protection Act.”

III. CONCLUSION OF LAW

The evidence has failed to establish that the transfer is in the best interest of the payee, William Macumber.

DECREE

And now, December 19, 2003, the petition of William Macumber for court approval of a transfer of structured settlement rights to 321 Henderson Receivables Limited Partnership is denied.