author: COX, J,

text:
    Commonwealth v. Lyons

      C.P. of Lawrence County,
    no. 1212 of 2009.

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

      David H. Acker, for defendant.
    June 9, 2010
   COX, J,

Before the court for disposition is the omnibus pretrial motion containing two motions for writ of habeas corpus filed on behalf of the defendant Harry W. Lyons, which argue the Commonwealth failed to establish a prima facie case that the defendant committed the crimes of aggravated assault, simple assault, harassment, recklessly endangering another person and endangering welfare of children. The defendant contends that the victim in this case, JS, was incompetent to testify because he is a 4-year-old child who suffered brain damage during birth and his answers were inconsistent at the preliminary hearing. Therefore, the defendant argues, the testimony of Thomas S, his father, regarding JS’s statements is inadmissible hearsay and is not subject to the tender years exception.

On June 26,2009, Sandy Copper and Christine Montague, caseworkers at Lawrence County Children and Youth Services, received a Childline referral regarding an incident involving child abuse at 3225 Old Pittsburgh Road, New Castle, Lawrence County, Pennsylvania. The defendant lived at that residence with his girlfriend, Jennifer DeSalvo, and her two children: the victim JS and his brother. Ms. DeSalvo had custody of the two children at the time of this incident. Ms. Copper noticed bruising on JS’s face from the areas surrounding his eye to his jaw and there was bruising on his buttocks. The caseworkers departed the residence and obtained an emergency court order for custody of the two children. However, the children were not taken away immediately because Ms. DeSalvo indicated to the caseworkers that JS had an appointment for an examination by a local pediatrician, Dr. Gheorge Antonescu. Ms. Copper insisted upon the caseworkers taking the children to Dr. Antonescu’s office to avoid involving police in potentially transferring the children to Mr. S’ custody.

Next, Ms. Copper went to the residence of Thomas S., the children’s father, to determine if it was a suitable home for the children to be placed. Mr. S was at work on the morning of June 26,2009. At approximately 11:30 o’clock a.m., Lisa, Mr. S’ fiancee at the time and current wife, called Mr. S on the telephone and stated that she was informed Mr. S’ four-year-old son JS had a large bruise on the left side of his face and bruising on his buttocks. Mr. S was scheduled to leave work at 12 o’clock p.m. and he went directly home. When he arrived, he was met by his wife and the caseworkers. Mr. S and the caseworkers immediately went to the Lawrence County Government Center to obtain a court order placing the children in Mr. S’ custody, which was granted. It is unclear from the record what procedure Mr. S utilized to gain custody of the children. While at the Lawrence County Government Center, Mr. S called his sister, Sherry Fenske, and requested that she pick up JS and JS’s brother at Dr. Antonescu’s office.

After the children were taken to Mr. S’ residence, JS was playing with his father in their front yard and eventually they went into the residence. While in the living room of the residence, JS informed Mr. S that the defendant punched him and he made a punching gesture toward the left side of his face. He also pointed toward his buttocks and said that “mommy beat me”. JS was taken to Children’s Hospital of Pittsburgh where he was examined by Dr. Kavita Conti, who was in her fellowship for pediatric emergency medicine and worked at that hospital for two-and-a-half years. Dr. Conti graduated from medical school in 2004 and is a board certified pediatrician. Initially, the doctor explained that JS suffered from asphyxia at birth and, as a result, had anoxic brain damage and encephalopathy, liver damage and hyperbilirubinemia. Dr. Conti indicated that, during the examination, JS was mildly distressed and was quiet. She noted maxilla erythema, bruises, swelling and tenderness of the left cheek. The bruise was described as bluish in color and extended from JS’s orbit and maxillary down to his chin. He also had bruising of his buttocks, which seemed to be more severe on the right side than the left. A CT scan revealed that there were no fractures or structural damage to JS’s face. Dr. Conti opined that the bruising of the face and buttocks were caused by another person and were not self-inflicted or from falling down.

On July 7, 2009, Officer Caleb Duff of the Shenango Township Police Department received a facsimile from Lawrence County Children and Youth Services referring to a child abuse case involving a 4-year-old victim. The report stated that the defendant and Jennifer DeSalvo injured the child. Ms. DeSalvo provided multiple inconsistent explanations for the injuries to Ms. Copper. Eventually, the defendant was charged with aggravated assault, simple assault, harassment, recklessly endangering another person and endangering welfare of children. A preliminary hearing was held on November 16, 2009, and Magisterial District Judge Jennifer L. Nicholson bound all of the charges over to this court.

JS testified at the defendant’s preliminary hearing, but appeared to be confused at times. During his testimony, JS called the defendant “daddy”, but when asked to describe his “daddy”, he accurately described Mr. S. JS also said he got hit in the face at his “daddy’s” house and later changed his answer to “mommy’s” house. There were many inconsistencies in JS’s testimony, which included stating that the white board in the courtroom was red, he indicated that his brown shoes were green and his white pants were red. But, JS remembered getting punched in the face by the defendant. JS clearly indicated that the defendant was the person who punched him in the face. It must be noted that Magisterial District Judge Jennifer L. Nicholson properly ruled that JS’s testimony was incompetent and inadmissible. This court agrees with Magisterial District Judge Nicholson’s determination and JS’s testimony is also incompetent for the purposes of disposition on this matter based upon the preliminary hearing transcript.

The defendant has filed an omnibus pretrial motion challenging the sufficiency of the Commonwealth’s evidence. A petition for writ of habeas corpus is the proper means for testing a pretrial finding that the Commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 449 Pa. Super. 378, 674A.2d 249 (1996). The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Fox, 422 Pa. Super. 224, 234, 619 A.2d 327, 332 (1993) (quoting Commonwealth v. Tyler, 402 Pa. Super. 429, 433, 587 A.2d 326, 328 (1991)).

In evaluating an accused’s entitlement to pretrial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). In a pretrial habeas corpus proceeding, as in a preliminary hearing, the Commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412 (1990). This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense, Commonwealth v. Prosdocimo, 331 Pa. Super. 51, 479 A.2d 1073 (1994). The standard in determining whether a defendant is properly held for court is: (a) that the record reveals a prima facie showing that a crime or crimes have been committed; and (b) that the defendant was in some way legally responsible. Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246 (1989). In other words, a prima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Commonwealth v. Fountain, 811 A.2d 24 (Pa. Super. 2002).

The Commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). The Commonwealth need not prove the elements of the crime beyond a reasonable doubt. Id. at 1180. The prima facie case merely requires evidence of the existence of each element of the crime charged. Id. Additionally, the evidence is to be reviewed in a light most favorable to the Commonwealth and the Commonwealth is entitled to reasonable inferences drawn from the evidence. Id.

The weight and credibility of the evidence is not a factor at this stage, the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Id. As a result of the Commonwealth bearing the minor burden of establishing a prima facie case, a witness’ credibility is not an issue at a preliminary hearing. Liciaga, supra. Neither is it for the court ruling on the motion for writ of habeas corpus to assess the credibility of the witnesses presented at the preliminary hearing. Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002). Although a habeas corpus hearing is similar to a preliminary hearing, in a habeas corpus proceeding the Commonwealth has the opportunity to present additional evidence to establish that the defendant has committed the elements of the offense charged. Karlson, supra.

First, the defendant contends that the testimony of Thomas S regarding statements made by JS should not be admitted under the tender years exception to the hearsay rule because JS is incompetent to testify. As a result, the defendant asserts that testimony cannot become competent through the tender years exception.

That exception is set forth in 42 Pa.C.S.§5985.1, which states:

“(a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

“(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

“(2) the child either:

“(i) testifies at the proceeding; or

“(ii) is unavailable as a witness.”

It must be noted that generally every witness is presumed to be competent to be a witness. Commonwealth v. Moore, 980 A.2d 647, 649 (Pa. Super. 2009) (quoting Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa. Super. 2006)). The presumption of competence also applies to child witnesses. Commonwealth v. Boich, 982 A.2d 102, 109-10 n.6 (Pa. Super. 2009). However, the trial court must make an inquiry into the mental capacity of a child witness under the age of 14 to determine if he or she is competent to testify. Id. That investigation involves determining whether the following factors exist: “(1) capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) ability to remember the event which was observed or perceived; (3) ability to understand questions and to communicate intelligent answers about the occurrence, and (4) consciousness of the duty to speak the truth.” Id. (citation omitted)

A child who is incompetent to testify is unavailable for purposes of the tender years exception. Commonwealth v. Bean, 450 Pa. Super. 574, 578, 677 A.2d 842, 843 (1996) (citing Commonwealth v. Hanawalt, 419 Pa. Super. 411, [414,] 615 A.2d 432, 433 (1992)). However, the trial court must make an evaluation regarding the tender years exception and include in its inquiry the effect of the child’s incompetence on the reliability of the declarations of the child. Id. 450 Pa. Super, at 582, 677 A.2d at 845-46. In Bean, the appellant was accused of sexually assaulting his 11-year-old mildly retarded and epileptic son. The appellant and his ex-wife had one child, the victim, and they divorced eight years prior to the alleged sexual assault. The victim wanted to spend more time with the appellant and the appellant was granted overnight visitation on weekends. On June 26, 1993, the victim returned to his mother’s house after an overnight visit at the appellant’s residence. The victim began riding his bike, but after a half an hour he complained that his “butt hurt.” Initially, the victim indicated that the pain was from riding his bike; however, he later informed his mother that the appellant touched him inappropriately. Subsequently, the victim told his stepfather that the appellant “put his wiener in his butt.” The victim was taken to the hospital for an examination and he asked a caseworker from the Department of Human Services “did you know that my dad put his wiener in my butt?” He also stated that, “Dad touched my wee-wee and I told him I didn’t like it.” The victim’s family doctor also called another caseworker at Warren County Child and Youth Services to speak with the victim and the victim made a similar statement to the one he told his stepfather, but added “that his father put Neosporin on it to make it stop hurting, but that it didn’t stop hurting.”

A preliminary hearing was held to determine if the testimony from several witnesses who heard the victim’s comments was admissible pursuant to the tender years exception to the hearsay rule. The trial court held an in camera hearing and the court deemed the victim incompetent to testify and was considered unavailable as a witness. The trial court determined that all of the statements to the witnesses demonstrated sufficient indicia of reliability, except the statements to the caseworker from Warren County Child and Youth Services. The appellant appealed claiming that the trial court improperly decided that the statements contain sufficient indicia of reliability, even though the victim was an incompetent witness.

The Bean court explained that any statement admitted pursuant to the tender years exception must possess sufficient indicia of reliability, which can be garnered from the time, content and circumstances of its making. Id., 450 Pa. Super, at 579,677 A.2d at 844. “Property admitted evidence under this hearsay exception possesses ‘particularized guarantees of trustworthiness’ and, therefore, does not violate the accused’s right to confront witnesses under the state or federal constitution.” Id. In order to decide whether statements made by a child are trustworthy, the court must examine the following factors: “(1) the spontaneity and consistent repetition of the statement(s); (2) the mental state of the declarant; (3) the use of terminology unexpected of a child of a similar age; and (4) the lack of motive to fabricate.” Id., 450 Pa. Super, at 580,677 A.2d at 844-45. The Bean court noted that the victim attempted to please adults by telling them what they wanted to hear and he believed that it was sometimes better to lie than to tell the truth. Id. Additionally, the court recognized that the trial court attempted to evaluate the reliability of the hearsay testimony, but failed to consider the effect of the victim’s incompetence on the statements made to the witnesses and his tendency to tell adults what he believes they want to hear. Id., 450 Pa. Super, at 582,677 A.2d at 845-46. Therefore, the Bean court granted the appellant’s request for a new trial, in order for the trial court to perform a more thorough evaluation under the tender years exception. Id.

In the case sub judice, JS was playing with his father in the living room of his father’s residence when he indicated that the defendant punched him in the face. More specifically, JS made a fist and a punching motion toward the left side of his face and said that the defendant punched him. He also pointed toward his buttocks and stated that “mommy beat me.” These statements were consistent with the examination performed by Dr. Con-ti, who stated that JS had bruising on the left side of his face and on his buttocks. She also opined that the injuries were caused by another person striking JS and were not self-inflicted.

Conversely, the defendant asserts that JS’s testimony at the preliminary hearing was inconsistent to the extent that Magisterial District Judge Jennifer L. Nicholson declared that he was incompetent to testify; therefore, the hearsay statements are inadmissible. JS did not testify at the hearing regarding the current omnibus pretrial motion. The parties have stipulated to the admission of the preliminary hearing transcript and the court must utilize that testimony to determine if JS’s testimony was incompetent and whether the tender years exception to the hearsay rule applies. As stated previously, the court rules that JS’s testimony is incompetent based on the preliminary hearing transcript; thus, rendering him unavailable to testify in the current matter under the tender years exception. The defendant points out that JS testified that the white board in the courtroom was red, his brown shoes were green and his white pants were red. Additionally, JS suffered brain damage at birth caused by asphyxiation. The defendant contends that all of these factors indicate a lack of sufficient indicia of reliability to the statements JS made to Mr. S and Mr. S’ testimony regarding those statements is inadmissible.

As the Bean court explained, the court must take into account the surrounding circumstances and factors to determine if the statements were admissible under the tender years exception. While playing in Mr. S’ living room, JS informed Mr. S that the defendant punched him in the face and that Ms. DeSalvo struck him on the buttocks. It must be noted that Mr. S did not question JS regarding the incident or attempt to solicit that information from him. Moreover, JS consistently repeated his statement that the defendant punched him in the face and that his mother struck him on the buttocks. The language used by JS indicates that his statements were reliable as he stated that the defendant punched him while making a fist and gesturing toward his bruised eye. He also indicated that Ms. DeSalvo struck him on the buttocks by exclaiming that “mommy beat me.” That choice of terminology and gestures are commonly utilized by 4-year-old children with the same maturity level.

Even under questioning at the preliminary hearing, JS consistently stated that the defendant punched him. However, JS became confused at certain points in the proceeding and indicated that the defendant was his father and that the defendant punched him at Mr. S’ residence, which he quickly corrected to his mother’s residence. It is important for the court to consider JS’s cognitive impairments caused at birth in this analysis as well. JS’s young age and brain damage may cause him to become confused easily and may affect his perception of certain events. But, that does not appear to be the situation in this case. JS consistently explained that the defendant was the individual that punched him in the face and he also made a punching gesture towards the left side of his face. Furthermore, JS has no reason to fabricate his statement regarding the injuries that he sustained as he spoke favorably about his mother at the preliminary hearing, and he recalled an occasion when his mother kissed his knee when it was injured. Likewise, there is no indication that he had an issue with the defendant or a reason to fabricate his statement. In addition, the testimony of Dr. Conti appears to corroborate JS’s assertion that the defendant punched him as Dr. Conti opined that JS was struck by another person, which caused the bruising. Also, JS suffered bruising on his buttocks that was consistent with being struck by another person. Therefore, the court rules that, even though JS is incompetent to testify, the statements he made to Mr. S meet the requirements for the tender years exception to the hearsay rule and are admissible.

Next, the defendant contends that the Commonwealth has failed to establish a prima facie case that the defendant committed aggravated assault, simple assault, harassment, recklessly endangering another person and endangering welfare of children.

The defendant has been charged with aggravated assault in violation of 18 Pa.C.S. §2702(a)(l), which states:

“(a) Offense defined. — A person is guilty of aggravated assault if he:

“(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.”

Moreover, serious bodily injury is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18Pa.C.S. §2301.

In the current matter, it appears that bruising to the face is insufficient to establish serious, permanent disfigurement or protracted loss or impairment of a bodily member or organ. Dr. Conti did not testify that JS suffered any serious bodily injury. Therefore, the Commonwealth bears the burden of establishing that the defendant attempted to cause JS serious bodily injury. Commonwealth v. Matthew, 589 Pa. 487, 492, 909 A.2d 1254, 1257 (2006) (citing Commonwealth v. Alexander, 477 Pa. 190, 193, 383 A.2d 887, 889 (1978)). The Commonwealth is not required to show that serious bodily injury actually occurred, but merely that the defendant attempted to cause serious bodily injury to the victim. Commonwealth v. Stevenson, 894 A.2d 759, 774 (Pa. Super. 2006) (citing Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001)). It must be noted that attempting to cause serious bodily injury and causing serious bodily injury are treated differently under 18 Pa.C.S. §2702. Attempting to cause serious bodily injury requires proof that the defendant intended to cause serious bodily injury. If the defendant is charged with causing serious bodily injury, the Commonwealth must establish that the defendant intentionally, knowingly or recklessly caused the victim serious bodily injury. The Commonwealth is permitted to establish the specific intent to cause serious bodily injury through the circumstances surrounding the incident. Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001) (citing Commonwealth v. Elrod, 392 Pa. Super. 274, 279, 572 A.2d 1229, 1231 (1990)).

In Alexander, 477 Pa. 190, 383 A.2d 887, the victim was standing on a sidewalk and he was struck in the face by the appellant. The victim fell to the ground and was not rendered unconscious by the blow. He was eventually taken to the emergency room and treated for a nose injury. The appellant attempted to flee after striking the victim, but was apprehended by a taxi cab driver, who was an eyewitness, and a police officer. The appellant was convicted of aggravated assault at a bench trial. He filed post-trial motions that were denied and he was sentenced to a term of incarceration of nine months to 23 months. He appealed to the Pennsylvania Superior Court, which affirmed the trial court’s decision. Subsequently, he filed an appeal with the Pennsylvania Supreme Court, which reversed the order of the Superior Court affirming the judgment of sentence.

The Commonwealth admitted that the appellant did not cause the victim serious bodily injury, but argued that striking the victim in the face demonstrated an intent to cause serious bodily injury. Id., 477 Pa. at 193, 383 A.2d at 889. (See 18 Pa.C.S. §2702(a)(l).) The Alexander court explained that a punch delivered to the face, without more, cannot support a finding that the appellant intended to inflict serious bodily injury upon the victim. Id., 477 Pa. at 194, 383 A.2d at 889. “Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.” Id. (citing Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974)). The Alexander court reasoned that there were no circumstances to support a finding that the appellant garnered the requisite intent as there was not a major difference in size between the appellant and the victim, the appellant was not restrained from escalating his attack upon the victim, he did not have a weapon in his possession and he made no statements before, during or after the attack to indicate his intent to inflict further injury upon the victim. Id, 477 Pa. at 194, 383 A.2d at 889. Thus, the court held that there was insufficient evidence to support a conviction for aggravated assault. Id., 477 Pa. at 194-95, 383 A.2d at 889-90.

Also, in Commonwealth v. Roche, 783 A.2d 766 (Pa. Super. 2001), the appellant asked the victim if he wanted to arm wrestle and the victim declined to participate. As the victim and his friend were leaving the bar, the appellant, who was twice as large and appeared much stronger, shoved the victim. Immediately after that incident, the victim and his friend left the bar and walked toward their vehicle when they noticed that the appellant and another male exited the bar and began following them. The appellant and his companion approached the victim and asked him “Are you a tough guy?” When the victim turned around, the appellant punched him in the left eye and the victim fell to the ground unconscious. He also struck his face on the concrete and sustained a scalp laceration. The victim was transported to the hospital and was subsequently diagnosed with an orbital blowout, frontal rim and sinus fractures. He underwent surgery to attach a plate on the bottom eyelid. The appellant was tried and convicted on the charges of aggravated assault, simple assault and reckless endangerment. He appealed the judgment of sentence to the Pennsylvania Superior Court challenging whether he acted with the intent to cause serious bodily injury.

The Roche court noted that the victim suffered serious bodily injury as a result of the punch. Id., 783 A.2d at 770. However, “the attendant facts and circumstances do not suggest that appellant delivered that lone blow with the specific intent of inflicting serious bodily injury upon the victim.” Id. It is not enough to merely establish that the victim suffered serious bodily injury; the Commonwealth must prove that the appellant acted with the requisite mens rea. Id. The Roche court ruled that the belligerent words of the appellant and the throwing of one punch are insufficient to support the conclusion that the appellant acted with the requisite intent to cause serious bodily injury. Id. The appellant threw one punch, immediately ceased his attack and did not continue to strike the victim while the victim was on the ground. Id. Clearly the appellant’s action required a conviction for simple assault, but the Commonwealth failed to demonstrate that the appellant had the requisite intent to cause serious bodily injury to sustain a conviction for aggravated assault. Id. 783 A.2d at 771.

In the case sub judice, the evidence presented by the Commonwealth established that the defendant struck JS on the left side of his face with a single punch similar to Alexander and Roche. Although there is a major size difference between the defendant and JS, there is no evidence to establish that the defendant intended to cause serious bodily injury to JS. Dr. Conti testified that JS had bruising on his left cheek, but there was no swelling or deformity in that area. Furthermore, Dr. Conti ordered a CT scan, which revealed that JS did not suffer any fractures on the left side of his face. Under the facts on record, the defendant struck a single punch to the left side of JS’s face, but did not follow up his attack. It must be noted that JS had bruising on his buttocks as well, but the record states that his mother, Ms. DeSalvo, caused those injuries. The Commonwealth has not introduced any evidence to show the defendant had the intent to cause death or serious bodily injury. Thus, the court dismisses the charge of aggravated assault as the Commonwealth has failed to establish that the defendant intended to cause JS serious bodily injury.

Also, the defendant contends that the Commonwealth has failed to provide sufficient evidence to support the charge of recklessly endangering another person, which occurs if the defendant “engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. §2705. The court in Commonwealth v. Moody, 295 Pa. Super. 106, 441 A.2d 371 (1982), held that the Commonwealth failed to meet its burden that the defendant placed another in danger of death or serious bodily injury where the defendant forced a 12-year-old girl into a basement, struck her when she attempted to leave the basement and touched her in a vulgar manner.

In Moody, supra, the defendant accosted a 12-year-old girl while she was walking on the street in front of her home. The defendant forced the girl into the basement of a building and he molested her. During the encounter, the girl kicked the defendant in the groin and the defendant attempted to flee the building. As he was leaving, the victim attempted to exit the basement and the defendant struck her in order to keep her in the basement. The girl eventually exited the building and informed others of her situation. The defendant was apprehended after he attempted to drive away and he struck another vehicle. The defendant was convicted after a non-jury trial of attempted rape, indecent assault, simple assault, recklessly endangering another person and unlawful restraint. He subsequently appealed that decision arguing that the Commonwealth failed to provide sufficient evidence to support a conviction for attempted rape, recklessly endangering another or unlawful restraint.

The court reasoned that the crime of recklessly endangering another person consists of reckless conduct that causes or results in a substantial risk of death or serious bodily injury. Id., 295 Pa. Super, at 112, 441 A.2d at 374 (citing Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337 (1978)). The Moody court explained that it was unable to conclude that the evidence presented established that the defendant placed the victim in sufficient physical danger to support a conviction for recklessly endangering another person. Id.

In the current case, as explained previously, there is no indication that JS actually suffered serious bodily injury or that the defendant intended to cause JS death or serious bodily injury. In accordance with that rationale, the court must dismiss the charge of recklessly endangering another person.

The defendant is also charged with simple assault, endangering welfare of children and harassment. First, a defendant is guilty of simple assault if he intentionally, knowingly or recklessly causes bodily injury to another. 18 Pa.C.S. §2701(a)(l). Bodily injury is defined as “impairment of physical condition or substantial pain.” 18 Pa.C.S. §2301. As the Roche court indicated, evidence establishing that the defendant punched the victim in the face with a single blow is sufficient to support a conviction for simple assault. Roche, 783 A.2d at 773. In the current matter, Mr. S testified that JS informed him that the defendant punched JS in the face and JS made a punching gesture toward the left side of his face. Additionally, the Commonwealth presented photographs and testimony establishing that there was significant bruising on JS’s face, which Dr. Conti opined was caused by being struck by another person. Therefore, in accordance with the court’s decision in Roche, the Commonwealth has established a prima facie case that the defendant committed the offense of simple assault.

Moreover, endangering the welfare of children is defined as “(1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” 18 Pa.C.S. §4304(a)(l). In Commonwealth v. Passarelli, 789 A.2d 708 (Pa. Super. 2001), the victim, a 3-month-old child, was left in the care of the appellant, her father, while her mother ran errands. When the victim’s mother returned she noticed a bump on the back of the victim’s head, which the victim did not have before the mother placed her in the care of the appellant. The mother transported the victim to the hospital and it was discovered that the victim suffered from a possible skull fracture, swelling of the brain and three broken ribs. The appellant was convicted of simple assault and endangering welfare of children and acquitted of aggravated assault and recklessly endangering another person.

Initially, the Passarelli court noted that 18 Pa.C.S. §4304(a)(1) permits convictions for endangering a child either through an act or by a failure to act. Id., 789 A.2d at 716. The Passarelli court reasoned that the Commonwealth presented expert testimony at trial that the victim’s injuries were not an accident, but caused by shaking or blunt impact to the back of the victim’s head. Id. The court held that, “After a thorough review of the record, we conclude that the evidence was sufficient to sustain [the appellant’s] conviction for simple assault and EWC [endangering welfare of children].” Id.

In the case currently before the court, there has been evidence presented that the defendant, who was the boyfriend of the victim’s mother, punched JS in the face causing bruising to the child’s face. An adult striking a 4-year-old child in the face with a closed fist causing a large amount of bruising clearly violates the duty of care, protection and support stated in 18 Pa.C.S. §4304(a)(l). Additionally, the Commonwealth presented the expert testimony of Dr. Conti, who stated that the bruising to JS’s face was not self-inflicted and was caused by being struck by another individual. Thus, the Commonwealth has presented sufficient evidence to establish a prima facie case that the defendant committed the offense of endangering welfare of children.

The defendant is also charged with harassment, which occurs when a person strikes or has physical contact with another person with the intent to harass, annoy or alarm another. 18 Pa.C.S. §2709(a)(l). In Commonwealth v. Blackham, 909 A.2d 315 (Pa. Super. 2006), the appellant grabbed an 8-year-old child by the arm and the back of his neck and forced him to go home. The victim screamed for the appellant to let him go, but the appellant refused to do so. Those actions resulted in bruises on the victim’s arm and the appellant was charged with harassment. The appellant was convicted at a summary hearing and filed for a trial de nova. After a trial, the appellant was convicted as well. The appellant filed an appeal, in which she argued that there was insufficient evidence to support a conviction for the charge of harassment.

The Blackham, court reasoned that the testimony from trial indicated that the appellant made physical contact with the victim with the intent to harass, annoy or alarm him. Id., 909 A.2d at 320. The court reached this conclusion based on the testimony of the victim, who stated that the appellant grabbed his arm to take him home and she would not release it, even though he “kept telling her to get off of me . ...” Id., 909 A.2d at 319. As a result, the court held that the Commonwealth presented sufficient evidence that the appellant harassed the victim in violation of 18 Pa.C.S. §2709(a)(l). Id.

In the current matter, the record indicates that the defendant punched JS in the face, which caused substantial bruising to the left side of his face. Similar to the physical contact in Blackham, it was done to harass, annoy or cause alarm to JS. In fact, there is testimony by Dr. Conti that during the medical examination JS was in mild distress and was not talkative. It appears that JS was in some form of emotional distress from the incident in question. Additionally, there would be no other reason for the defendant to strike JS other than to cause him alarm. Therefore, the Commonwealth has established a prima facie case that the defendant committed the offense of harassment.

For the reasons set forth in this opinion, the defendant’s omnibus pretrial motion is granted in part and denied in part. The Commonwealth has failed to establish a prima facie case that the defendant committed aggravated assault and recklessly endangering another person; therefore, those charges are dismissed. However, the Commonwealth has presented sufficient evidence that the defendant committed the offenses of simple assault, endangering welfare of children and harassment.

ORDER

Now June 9,2010, this case being before the court on April 7,2010, for a hearing on the omnibus pretrial motion filed by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Kathleen Fee-Baird, Esquire, assistant district attorney for the County of Lawrence and the defendant, Harry W. Lyons, represented by counsel, David H. Acker, Esquire, and after a hearing held, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the omnibus pretrial motion in the nature of a motion for writ of habeas corpus regarding the charges of aggravated assault and recklessly endangering another person is hereby granted and the charges of aggravated assault and recklessly endangering another person are hereby dismissed.

(2) In accordance with the attached opinion, the omnibus pretrial motion in the nature of a motion for writ of habeas corpus regarding the charges of simple assault, endangering welfare of children and harassment is hereby denied.

(3) This case is placed on the August 2010 criminal jury trial term.

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

      . 42 Pa.C.S. §5985.1.

      . 18 Pa.C.S. §2702(a)(l).

      . 18 Pa.C.S. §2701(a)(1).

      . 18 Pa.C.S. §2709(a)(l).

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §4304(a)(1).

      . The Bean court explained that the United States Supreme Court held in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), a child’s testimony is not per se unreliable based on the fact that the child is deemed incompetent to testify at trial. However, a child’s incompetence is a relevant factor to determine whether the child’s earlier statements possessed the requisite indicia of reliability. Bean, 450 Pa. Super, at 582 n.5, 677 A.2d at 845-46 n.5.


source: Caselaw Access Project

author: MOTTO, J,

license: Public Domain

text:
    Squicquero v. Ross

      C.P. of Lawrence County,
    no. 10090 of 2005, C.A.

      Charles W Garbett, for plaintiff.

      Mark F Bennett, for defendants.
    March 24, 2010
   MOTTO, J,

Before the court for disposition is the motion for post-trial relief filed by the defendants following a jury trial that resulted in a verdict in favor of plaintiff and against the defendants. This action arose from an incident that occurred on May 11, 2003 when the plaintiff Stephanie Squicquero was a passenger in an automobile stopped for a traffic signal. While stopped, a tree located on the property of the defendants fell onto the Squicquero automobile, causing serious and extensive injury to plaintiff’s left arm. In bringing this action against the defendants, the plaintiff maintained that the defendants knew or should have known that the tree was diseased and rotted; that they knew or should have known that the condition of the tree created a dangerous condition; and that the defendants failed to take action to correct the dangerous condition by removing the tree. The jury found that the defendants were negligent, that the negligence of the defendants was a substantial factor in bringing about the harm to the plaintiff and awarded damages for past medical expenses, future medical expenses, pain and suffering, embarrassment and humiliation, loss of enjoyment of life, and disfigurement. Defendants’ post-trial motion raises the following issues:

(1) Was it error for the court to permit the plaintiff to introduce evidence of plaintiff’s past medical bills paid by the Department of Public Welfare (DPW).

(2) Should the court have excluded the identification testimony of Larry Shaffer.

(3) Did the plaintiff’s evidence fail to establish a basis for a finding of negligence on the part of the defendants.

I. EVIDENCE OF PAST MEDICAL BILLS

Defendants argue that plaintiff should have been precluded from recovering the medical expenses that were paid by the Commonwealth of Pennsylvania, Department of Public Welfare based upon the holding in Tristani v. Richmond, 609 F. Supp.2d 423 (W.D. Pa. 2009).

In Tristani, the Pennsylvania Department of Public Welfare placed liens on settlement proceeds obtained from third parties by recipients of Medicaid benefits. The settlement proceeds resulted from personal injury actions instituted by the recipients of the Medicaid benefits. The Tristani court held that, although DPW can require an assignment of the right to receive payments for medical care, and can also demand as a condition of Medicaid eligibility that the recipient assign in advance any payments that may constitute reimbursement for medical costs; nevertheless, DPW cannot force an assignment of, or place a lien on, any portion of the general property of a recipient of benefits including settlement proceeds not specifically allocated to medical payments. Thus, the lien placed by DPW upon the general settlement proceeds was unlawful, as violative of the anti-lien provisions of the Social Security Act, 42 U.S.C. §1396 et seq.

However, in holding that DPW was prohibited from asserting a lien against the general property of the recipient of benefits paid by Medicaid for medical expenses, the Tristani court did not infringe upon the right of those recipients to collect payments for medical expenses in a third-party action. Tristani held that the department has the option of pursuing a direct action against liable third parties or can intervene in an action brought by a Medicaid beneficiary against a liable third party. Tristani, 609 F. Supp.2d at 486. However, Tristani does not affect the ability of a Medicaid recipient to pursue claims against a liable third party and collect the full amount of medical expenses incurred as the result of the injury. Tristani made it explicit that the Medicaid recipient retained the right to recover for medical expenses paid for by the Medicaid program, specifically stating the following:

“Pennsylvania law permits a Medicaid recipient to include medical expenses paid for by the Medicaid program within his or her claim against a liable third party. 62 Pa.C.S. §1409(b)(5)(vi)“Although DPW had the option of commencing its own actions against the liable third parties to reimburse itself for the expenditures incurred in providing medical assistance to Tristani and Valenta, these two individuals never lost the option of including those expenditures within their own claims.” Tristani, 609 F. Supp.2d at 472.

Defendants further argue that plaintiff is precluded from recovering the medical expenses paid for by the DPW pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, specifically 75 Pa.C.S. §1722. Such section provides as follows:

“In any action for damages against a tort-feasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.”

75 Pa.C.S. §1719 provides: “As used in this section the term ‘program, group contract or other arrangement’ includes, but is not limited to, benefits payable by a hospital plan corporation or a professional health service corporation subject to 40 Pa.C.S. ch. 61 (relating to hospital plan corporations) or 63 (relating to professional health services plan corporations).”

Benefits paid for medical expenses through the Department of Public Welfare constitute payments made by a governmental agency and is not a program, group contract or other arrangements contemplated by section 1719, and is not a hospital plan or a professional health service corporation. The Medicaid program is authorized pursuant to the Social Security Act. Congress appropriated funds to enable the states to provide medical assistance for those whose income and resources are insufficient to meet the costs of necessary medical services. 42 U.S.C. §1396. The Medicaid program involves cooperation between the states and federal government. Depending upon the particular states’ per capita income, the federal government pays anywhere between 50 percent and 83 percent of the costs that the state incurs for providing medical assistance to those who are eligible to receive it. 42 U.S.C. §1396d(b). Tristani v. Richmond, 609 F. Supp.2d at 440.

In Browne v. Nationwide Mutual Insurance Company, 449 Pa. Super. 661, 674 A.2d 1127 (1996), the Superior Court held that Social Security disability benefits should not be deducted from an arbitration award under the terms of section 1722 of the Motor Vehicle Financial Responsibility Law as Social Security disability payments were not encompassed in a language of “any program, group contract or other arrangement.” The Browne court noted that the same language, concerning any “program, group contract, or other arrangement,” is also contained in 75 Pa.C.S. §1720, which eliminates subrogation and provides:

“In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits, benefits payable under sections 1711 (relating to required benefits) 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719 (relating to coordination of benefits).”

It is clear that the nature of the benefits under the medicaid program are subject to subrogation, and the right of subrogation is not taken away by section 1720. Tristani did not hold that there was not a right of subrogation in DPW, but only that the DPW did not have the right to assert a lien against settlement proceeds which constituted general property of the Medicaid recipient as opposed to a specific award of compensation for the same medical benefits that were paid for by the Medicaid program and for which the plaintiff sued and recovered. Furthermore, the nature of the benefit being such that it is a benefit conferred by the government, it is more similar to the type of benefit contemplated by Browne, a benefit for which recovery is not precluded by section 1722 of the Motor Vehicle Financial Responsibility Law. Here, since the DPW had an independent right to intervene in this third-party case, for the express purpose of seeking recovery for the Medicaid payments, or alternatively pursue a direct cause of action for such payments against the tort-feasor, section 1722 cannot be interpreted as precluding the recovery of these benefits.

II. IDENTIFICATION TESTIMONY OF LARRY SHAFFER

Defendants next argue that the court improperly permitted Larry Shaffer to offer identification testimony. Plaintiff called Shaffer to testify that sometime prior to May 11, 2003, he was working in the area and he was told by one of his men that a lady wanted to talk to him about a tree. The tree was the tree that later fell on the vehicle of the plaintiff. Shaffer testified as having told the lady who wanted to talk to him that the tree was going into decline and should be taken down. As to the identification of the lady with whom he spoke, Larry Shaffer on direct examination stated the following:

“Q. And I know it has been sometime, but do you recognize in court the lady that you talked to that day?

“A. I believe it would be the lady sitting to the right there. (Indicating Marjorie Ross.)...” (N.T. November 18, 2009, pp. 21,22.)

On cross examination, the following exchange occurred:

“Q. And, sir, can you say for sure that the person with whom you spoke was Mrs. Ross?

“A. No, sir, I cannot.

“Q. Okay. Could it have been someone else?

“A. It could have been, yes.

“Q. Okay, so, let me make sure. I think this is important for all of us. You cannot say that the woman you spoke with was, in fact, Mrs. Ross?

“A. Not definitely, no.” (N.T., November 18, 2009, pp. 24, 25.)

Defendants’ argument is that because Shaffer could not be certain that the lady he spoke to was in fact defendant Marjorie Ross, that his testimony should be stricken. However, it is not required that the result of a witness’ observation be stated with absolute certainty. A similar argument was raised by the defendant in the case of Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957 (1979),where the defendant objected to the testimony of a Dr. Miller who was asked about statements made by the victim as to how her injuries occurred. In testifying, Dr. Miller used phrases such as “I vaguely remember... I think I recall and I thought she said.” Defendant argued because of a lack of certainty, her testimony was inadmissible. In holding that the testimony was admissible, despite its lack of certainty the Stickle court stated the following:

“ ‘The competency of a witness is a matter for the trial court to determine and is not reviewable in the absence of a clear abuse of discretion. Commonwealth v. Ware, 459 Pa. 334, 356, 329 A.2d 258, 269 (1974); Commonwealth v. Kosh, 305 Pa. 146, 155, 157 A.2d 479, 482 (1931).’ Commonwealth v. Baker, 466 Pa. 479, 484, 353 A.2d 454, 457(1976)....

“ ‘The result of a witness’ observation need not be positive or absolute certainty. Such a degree of certainty cannot be demanded, even in theory . . . ; it suffices if (the witness) had an opportunity of personal observation and did get some impression from this observation.’ (emphasis in original) 2 Wigmore, Evidence §658 at 768 (3ded. 1940).

“Where a witness has observed an occurrence and formed an impression thereof, the fact that, at the trial, due to the passage of time and the fading of memory, she is not able to state with positive or absolute certainty exactly what she observed, but only what T think’ or T vaguely remember’ occurred, will not preclude the introduction of the witness’ testimony.

“ ‘The deficiency comes merely in the quality of her recollection .... The law makes no objection on such grounds. It welcomes whatever quality of recollection (the witness) is able to bring.’ (footnote omitted) Id.” Stickle, supra, 484 Pa. at 108, 398 A.2d at 967.

In applying the above standard, the court concludes that it was proper to allow the testimony of Shaffer. Shaffer stated his belief that the lady with whom he spoke was the defendant Marjorie Ross. The conversation occurred in the vicinity of the Ross residence and related to the tree that was the subject of these proceedings. The fact that on cross-examination Shaffer stated that he could not say for sure that the person with whom he spoke was Mrs. Ross, or that it could have been someone else or that he could not say that it was definitely Mrs. Ross all goes to the quality of his identification testimony but not as to its admissibility. It was for the jury to weigh Mr. Shaffer’s testimony in its entirety to determine if it would accept that defendant Marjorie Ross was the person with whom he spoke that day.

III. SUFFICIENCY OF THE EVIDENCE

The defendants next contend that the evidence does not support a finding of liability against the defendants and that the court must therefore grant a motion for judgment n.o.v.

A judgment n.o.v. is the proper remedy in a civil case where the evidence is insufficient to sustain the verdict. Entry of judgment n.o.v. on the basis of evidentiary insufficiency is appropriate only in a clear case, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Coward v. Owens-Corning Fiberglas Corporation, 729 A.2d 614 (Pa. Super. 1999). Judgment n.o.v. is an extreme remedy that is properly entered by the trial court only where, after viewing the evidence in a light most favorable to the verdict winner, the facts are so clear that no two reasonable minds could fail to agree that the verdict, as rendered by the jury, was improper. Rohm and Haas Company v. Continental Casualty Company, 732 A.2d 1236 (Pa. Super. 1999). If there is any basis upon which the jury could have properly made its award, a denial of a motion for judgment n.o. v. is required. Sewak v. Lockhart, 699 A.2d 755 (Pa. Super. 1997). A judgment n.o.v. can also be granted where the movant is entitled to judgment as a matter of law, where the court concludes that even with all factual inferences considered adverse to the movant, the law nonetheless requires a verdict in movant’s favor. Lockwood v. City of Pittsurgh, 561 Pa. 515, 751 A.2d 1136 (2000).

One who owns or occupies land in a developed or residential area has a duty to make reasonable inspections of the property, and to correct any conditions unreasonably dangerous to others that could be discovered by the use of reasonable care and that could be made reasonably safe by repair or otherwise. Barker v. Brown, 236 Pa. Super. 75, 340 A.2d 566 (1975).

Thus, in Barker, where plaintiff claimed damages to his property caused by the fall of a dangerously decayed tree from the defendant’s adjoining property, the Superior Court held that it was for the jury to determine whether defendants knew or should have known of the existence of an unreasonably dangerous defect that could have been eliminated. The court said the following relative to the responsibilities of a landowner regarding a tree in a residential sitting:

“Urban living, by altering the purpose for which the land is used, must also bring with it certain responsibilities. A tree growing in an urban or residential area does not have the same natural relation to surrounding land as a tree located in a rural setting. That tree, once growing in a midst of a forest, is no longer the same ‘natural object’ when a city grows around it or residential areas are developed in proximity to it. Specifically, the relatively minor expenditures in time and money that it will take to inspect and secure trees in a developed or residential area is not large when compared with the increased danger and potential for damages represented by the fall of such a tree.

“We hold that a possessor of land in or adjacent to a developed or residential area is subject to liability for harm caused to others outside of the land by a defect in the condition of a tree thereon, if the exercise of reasonable care by the possessor:

“(a) would have disclosed the defect and the risks involved therein, and

“(b) would have made it reasonably safe by repair or otherwise. . . .

“The reasonable care standard encompasses, at least, a duty to make a visual inspection. Under some circumstances, it may encompass more. Starke v. Long, 221 Pa. Super. 338, 292 A.2d 440 (1972). If the possessor of land in or adjacent to a developed area knows, or should know, through inspection or otherwise, that a defect in one of his trees poses an unreasonable danger to others outside of the land, he is under a duty to eliminate that danger.” Barker, at 80-81, 340 A.2d at 569.

Here, testimony was presented, which the jury was entitled to accept as true, from which it could be inferred that the defendants had constructive notice of the decayed condition of the tree. Additionally, the jury could have inferred that a reasonable inspection of the tree would have disclosed the danger. Visual indications of disease included the existence of seams and splitting in the tree trunk, the existence of dead wood that was visible, cavities in the tree trunk, discoloration of the wood, rotted wood, flaring of the roots, and the existence of fungus. From this evidence, the jury was free to conclude that the defendants violated their duty to inspect the tree given its close proximity to the major highway and that a reasonable inspection would have disclosed the decayed condition of the tree. The jury was also free to conclude that given the external signs of decay, the defendant should be charged with constructive notice of the diseased and decayed condition of the tree. Finally, the jury was free to conclude that the defendants had actual notice that the tree was in a state of decline and should be removed based upon the testimony of Larry Shaffer who provided actual notice to one of the defendants of the condition of the tree and that it should be taken down. Since the standard which the court must apply in addressing a judgment n.o.v. requires that the evidence must be viewed in the light most favorable to the plaintiff as the verdict winner, the court finds that it is required to deny the motion.

ORDER

And now, March 24,2010, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendants’ motion for post-trial relief is denied.


author: NEALON, J,

text:
    Sovereign Bank v. Gawron

      C.P. of Lackawanna County,
    no. 08 CV 5095.

      Sheetal R. Shah-Jani, for plaintiff.

      William E. Vinsko Jr., for defendant.
    June 16, 2010
   NEALON, J,

The lender’s summary judgment motion in this residential mortgage foreclosure action presents the relatively novel issue of whether a borrower may void and rescind a mortgage agreement based upon the predatory lending practices of a lender’s agent in fraudulently generating a grossly inflated property appraisal in order to procure a loan and mortgage that far exceed the fair market value of the mortgaged realty. Pennsylvania law prohibits the use of fraudulent appraisals in connection with residential mortgages and recognizes that a mortgage agreement may be voidable based upon fraud in the inducement involving the assignor lender or its agent. Since the borrowers have produced an expert appraisal report reflecting that the mortgage broker’s appraisal figure was five times the actual value of the property, and that mortgage broker has been indicted for procuring fraudulent appraisals to qualify borrowers for higher mortgages, genuine issues of material fact exist with regard to the borrowers’ affirmative defense of fraudulent inducement. Thus, the assignee lender’s motion for summary judgment will be denied.

I. FACTUAL BACKGROUND

Plaintiff Sovereign Bank instituted this residential mortgage foreclosure suit against defendants Gerald Gawron and Mark Gawron based upon a note and mortgage that were executed by the Gawrons and SIB Mortgage Corporation on July 2, 2002. The Gawrons’ mortgage was subsequently assigned to the Bank via an “assignment of mortgage” formalized by the Bank and Mortgage Electronic Registration Systems, Inc., as nominee for SIB Mortgage Corporation, on August 7, 2008. (Plaintiff’s complaint, ¶3; plaintiff’s motion for summary judgment, exhibits A and A2.)

The Bank has averred that the Gawrons are in default as a result of their failure to make principal and interest payments due under the note and mortgage. (Plaintiff’s complaint, ¶5.) The Gawrons deny any such default and further allege that they have made all “payments based on the value of the residence, which is far below the mortgaged value, as was discovered when the mortgage broker responsible for the loan was investigated for mortgage fraud.” (Defendants’ answer and new matter, ¶5.) The Gawrons also assert “the affirmative defense of fraud” in the inducement based upon “the misrepresentations made by the mortgage broker” which led the Gawrons “to believe that the value of the home ... was far in excess of the actual value.” (Id., ¶¶17,22-23.) The Gawrons seek judgment in their favor on the ground that they were fraudulently induced to enter into the mortgage agreement by the mortgage broker who acted as the lender’s agent. (Id., p. 4.)

According to an affidavit executed by Gerald Gawron and Mark Gawron, the mortgage broker involved with the Gawrons’ refinancing of the subject property at 146 Bellman Street, Throop, was Mr. Alex Gambini. (Docket entry no. 11.) While reportedly acting as the original lender’s agent, Gambini manufactured a grossly inflated appraisal of the Bellman Street property so that a loan and mortgage in the amount of $249,500 could be issued to the Gawrons. (Defendant’s brief in opposition at pp. 2-3; Plaintiff’s motion for summary judgment, exhibits A and A1.) The Gawrons have produced an expert report from a certified appraiser, W. Nevin Gerber, attesting that at the time of the Gawrons’ refinancing in July 2002, the true value of the Bellman Street property was merely $55,000. (Docket entry no. 12 at pp. 4, 7.) Based upon the fraudulent appraisal secured by Gambini, the Gawrons were led to believe that the resale value of the Bellman Street property would be sufficient to satisfy their loan/ mortgage indebtedness in the event that they were unable to make their monthly payments and defaulted on the loan/mortgage. (Defendant’s brief in opposition, p. 2.)

On October 7,2008, the United States Department of Justice indicted Gambini for mail fraud in violation of 18U.S.C. §1341. The federal indictment charges that Gambini “operated a financial services business, employing real estate appraisers and loan processors who appraised properties and assisted [borrowers] with the mortgage application process,” and “on numerous occasions [between January 1999 and December 2002] knowingly instructed others to conduct false and fraudulent appraisals of properties, produce false and fraudulent documents, supplied those false and fraudulent appraisals, and supplied software to accomplish false and fraudulent appraisals... in order qualify [borrowers] for higher mortgages.” (See U. S. v. Gambini, No. 3:08-CR-00369 (M.D. Pa.), docket entry no. 1, ¶¶1-2.) On June 8, 2010, Gambini’s criminal trial was postponed to July 26, 2010 since the parties are negotiating a plea agreement and require additional time to consummate that agreement. (Id., at nos. 53-54.)

The Bank has filed a motion for summary judgment seeking an in rem judgment against the Gawrons “for $250,316.83 plus interest from July 29, 2008 at the rate of $53.40 per diem and other costs and charges collectible under the mortgage, for foreclosure and sale of the mortgaged property.” (Plaintiff’s motion for summary judgment, p. 4.) In apparent anticipation of the Gawrons’ fraud defense, the Bank avers that “[t]he alleged issues that the [Gawrons] may or may not have with [Gambini] at origination are exactly that, against [Gambini], not the [Bank], who did not originate the loan, nor did it have any relationship with [Gambini].” (Id, ¶11.) In response, the Gawrons maintain that the assignment of the mortgage to the Bank by its predecessor-in-interest “does not preclude this defense as the [Bank] suggests.” (Defendants’ response to motion for summary judgment, ¶11.) Moreover, the Gawrons specifically assert that the original lender, SIB Mortgage Corporation, falsely “represented [that] the value of the property was far more than the actual value” and that the Gawrons “were granted a mortgage on a property which does not and has not had the value which the [lender] represented it had.” (Id, ¶¶1-2.) The Gawrons submit that there are genuine issues of fact concerning “the value of the property in light of the misrepresentations of the lender and mortgage broker,” as well as the “preliminary question as to whether the [Bank] has any liability for the actions of its predecessor entities.” (Defendants’ brief in opposition, p. 3.)

II. DISCUSSION

(A) Standard of Review

Summary judgment is appropriate “only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 553, 981 A.2d 145, 153 (2009). Summary judgment may be entered in a mortgage foreclosure action “if the mortgagors admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount.” Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998), appeal denied, 557 Pa. 653, 734 A.2d 861 (1999); Wilson v. Parisi, 549 F. Supp.2d 637, 655 (M.D. Pa. 2008). When considering a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Abrams v. Pneumo Abex Corp., 602 Pa. 627, 634-635, 981 A.2d 198, 203 (2009); Black v. Labor Ready, Inc., 2010 WL 1645962 at * 2, ¶13 (Pa. Super. 2010). The moving party bears the burden of proving that no genuine issue of fact exists and that the movant is entitled to judgment as a matter of law, Stimmler, 602 Pa. at 554, 981 A.2d at 154, and “[i]f there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.”Mull v. Ickes, 2010 WL 1758567 at * 2, ¶6 (Pa. Super. 2010); Kurowski v. Burroughs, 2010 WL 1645961 at * 4, ¶11 (Pa. Super. 2010).

(B) Fraud in the Inducement Defense

The viability of a mortgage foreclosure action depends upon the existence of a valid mortgage. Straker v. Deutsche Bank National Trust, 2010 WL 500412 at * 3 (M.D. Pa. 2010) (Vanaskie, J.) (quoting In re Madera, 586 F.3d 228, 232 (3rd Cir. 2009)); In re Calabria, 418 B.R. 862, 866-867 (W.D. Pa. 2009) (“In Pennsylvania, actions in mortgage foreclosure are dependent on the existence of a valid mortgage.”); In re Randall, 358 B.R. 145, 158 (E.D. Pa. 2006) (same). Not unlike other written instruments, mortgages are governed by the law of contracts and interpreted accordingly. See Second Federal Savings and Loan Association v. Brennan, 409 Pa. Super. 581, 586, 598 A.2d 997, 999 (1991). It is a fundamental precept of contract law that if a party is fraudulently induced to enter into an agreement (i. e., “but for” fraudulent misrepresentation(s) the contract would not have been executed by the innocent party), the agreement is void or voidable at the option of the injured party. Youndt v. First National Bank of Port Allegheny, 868 A.2d 539, 546 (Pa. Super. 2005); Blumenstock v. Gibson, 811 A.2d 1029, 1036 (Pa. Super. 2002), appeal denied, 573 Pa. 714, 828 A.2d 349 (2003); 1726 Cherry Street Partnership v. Bell Atlantic Properties Inc., 439 Pa. Super. 141, 148-150, 653 A.2d 663, 667-668 (1995), appeal denied, 544 Pa. 647, 664 A.2d 976 (1995). Therefore, if borrowers raise factual issues regarding fraud in the inducement in conjunction with the formation of the mortgage, they have asserted a valid defense to the foreclosure, and summary judgment in favor of the lender is not appropriate. Greentree Consumer Discount Company v. Newton, 909 A.2d 811, 813-15 (Pa. Super. 2006). See also, Cunningham, 714 A.2d at 1056 (“Thus, a counterclaim in a foreclosure action is cognizable if it alleges fraud in the inducement to the mortgage, but not if it alleges fraud in the inducement to the contract of sale.”); In re Randall, 358 B.R. at 157 (mortgagors can properly defend in rem foreclosure proceedings by demonstrating that the mortgage is void due to fraud).

Other jurisdictions have relied upon statutory law regulating “predatory lending” practices by lenders in granting relief to borrowers in mortgage foreclosure actions. See e.g., LaSalle Bank, N.A. v. Shearon, 19 Misc. 3d 433, 439-43, 850 N.Y.S.2d 871, 875-79 (2008) (lender violated statutory provision requiring due diligence inquiries for sub-prime, adjustable rate mortgage loan by issuing a loan without first inquiring into borrowers’ ability to repay). See also, Caggiano et al., “Predatory Lending Law Developments and Assignee Liability under HOEPA and State Law,” 62 Bus. Law. 617 (February 2007). The protections afforded by the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§201-1 to 201-9.3, have been extended to the purchase of real estate for residential purposes. See Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007), appeal denied, 597 Pa. 717, 951 A.2d 1164 (2008). In Wilson v. Parisi, supra, former U. S. District (now U. S. Court of Appeals) Judge Thomas I. Vanaskie considered whether property appraisers and lending institutions could be liable for damages under section 2(4)(xxi) of the UTPCPL, 73 P.S. §201-2(4)(xxi), for “misleading and deceptive statements and omissions concerning the value and the financing of the houses purchased by consumers . . . .” Wilson, 549 F. Supp.2d at 640, 665. Noting that “the UTPCPL is to be liberally construed in order to effectuate its purpose,” Judge Vanaskie denied the motion for summary judgment that had been filed by the appraisers and lending institutions and concluded that “[tjhere is a genuine issue of material fact as to whether the PK defendants knowingly falsely represented the value of the Wilsons’ property by securing a fraudulent appraisal, thus requiring the Wilsons to pay more than the fair market value for their home.” Id., at 666.

The gist of the Gawrons’ fraud defense is that they have been exposed to a deficiency judgment of almost $200,000 {i.e., the bank’s demand for judgment in the amount of $250,316.83, plus $53.40/day from 7/29/08, less the property’s resale value of $55,000 if sold at sheriff sale) due to the fact that they were fraudulently granted a loan of $249,500 on a property that had a fair market value of $55,000. The UTPCPL prohibits the use of deceptive appraisals in connection with residential mortgages, see Wilson, supra, and a mortgage agreement may be voided based upon fraud in the inducement. See Greentree Consumer Discount Company, supra. If the Gawrons can establish that Gambini fraudulently induced them to enter into the loan and mortgage agreements with the original lender, SIB Mortgage Corporation, and that Gambini was acting as the actual or ostensible agent of SIB Mortgage Corporation at that time, the Gawrons arguably may be able to void and rescind those agreements. The summary judgment record and the federal Indictment in U.S. v. Gambini raise triable issues of fact with respect to the elements of that affirmative defense. What must still be addressed, however, is whether the rights of the assignee, Sovereign Bank, may be limited by the conduct of the assignor, SIB Mortgage Corporation, and/or its putative agent in the formation of the mortgage agreement.

(C) Assignee Liability

In reply to the Gawrons’ affirmative defense of fraud in the inducement, the Bank maintains that it cannot be held accountable for the actions of the assignor-lender or its alleged agent. (Plaintiff’s motion for summary judgment, ¶11.) Under the law of assignment, the assignee stands in the shoes of the assignor and “succeeds to no greater rights than those possessed by the assignor.” Crawford Central School District v. Commonwealth, 585 Pa. 131, 137, 888 A.2d 616, 619-20 (2005). “Conversely, an assignee’s right against the obligor is subject to all of the limitations of the assignor’s right, to all defenses thereto, and to all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” Smith v. Cumberland Group, Ltd., 455 Pa. Super. 276, 286, 687 A.2d 1167, 1172 (1997) (citing Peoples Pittsburgh Trust Company v. Commonwealth, 359 Pa. 622, 627-28, 60 A.2d 53, 56 (1948)). Accord, American Lumber Corp. v. National R.R. Passenger Corp., 886 F.2d 50, 55 (3d Cir. 1989) (“[A]n assignee ofa chose of action takes it subject to all defenses ... existing at the time of the assignment” (quoting General Electric Credit Corp. v. Security Bank, 244 A.2d 920, 923 (D. C. App. 1968))); E-Time System, Inc. v. Voicestream Wireless Corp., 2002 WL 1917697 at * 9 (E.D. Pa. 2002) (“Importantly, it is a universal and uncontroversial tenet of contract law that an assignee of a claim takes the same subject to all defenses that could validly have been raised by the defendant against the assignor at the time of the assignment.”) (citing North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U.S. 596 (1894)); Restatement (Second) of Contracts §336(2) (“The right of an assignee is subject to any defense ... of the obligor which accrues before the obligor receives notification of the assignment____”).

We acknowledge that a few trial courts have concluded that a mortgage assignee is not subject to the defenses and counterclaims that could have been asserted by the obligor against the mortgage assignor. See e.g., W. M. Specialty Mortgage LLC v. Shuttleworth, 82 D.&C.4th 129, 132 (Lawrence Cty. 2007) (striking mortgage foreclosure defendant’s counterclaim based upon the UTPCPL on the ground that the mortgage assignor, not the plaintiff-mortgage assignee, was the perpetrator of the fraudulent loan practices alleged in the counterclaim). However, the merits of the Gawrons’ affirmative defense must be decided in accordance with the appellate authority set forth in Cumberland Group Ltd. and its progeny. Therefore, the Bank’s assigned right against the Gawrons in this litigation is subject to the affirmative defenses that the Gawrons could have asserted against SIB Mortgage Corporation at the time of the assignment, including their defense of fraud in the inducement.

(D) Rescission Remedy

In the event that the Gawrons are successful in their effort to void and rescind the mortgage agreement based upon fraud in the inducement, it may prove to be a pyrrhic victory. Rescission is an equitable remedy which “amounts to the unmaking of a contract, and is not merely a termination of the rights and obligations of the parties towards each other, but is an abrogation of all rights and responsibilities of the parties towards each other from the inception of the contract.” Keenheel v. Commonwealth, Pennsylvania Securities Commission, 134 Pa. Commw. 494, 501, 579 A.2d 1358, 1361 (1990); Erie Telecommunications Inc. v. City of Erie, 853 F.2d 1084, 1092 (3d Cir. 1988). Since equitable rescission is a form of retroactive relief that returns the parties as nearly as possible to their original positions with respect to the subject matter of the contract, restitution often accompanies rescission. Baker v. Cambridge Chase Inc., 725 A.2d 757, 766 (Pa. Super. 1999), appeal denied, 560 Pa. 716, 745 A.2d 1216 (1999). Hence, one who wishes to rescind a contract must restore or tender a return of the property or security which was the subject matter of the rescinded contract. Keenheel, supra; R & R Capital LLC v. Merritt, 632 F. Supp.2d 462, 480 (E.D. Pa. 2009); Koken v. Cologne Reinsurance (Barbados) Ltd., 34 F. Supp.2d 240, 255 (M.D. Pa. 1999).

Consequently, if the Gawrons rescind the loan and mortgage agreements due to fraud in the inducement, it is conceivable that they will be obligated to return the borrowed proceeds as part of that rescission. It is theoretically possible that the refundable sum could be equitably adjusted to more closely reflect the true value of the mortgaged property at the inception of the indebtedness, see e.g., Sharabianlou v. Karp, 181 Cal. App. 4th 1133, 1144, 105 Cal. Rptr. 3d 300, 309 (2010) (in equitable rescission, the court should do complete equity between the parties and, if necessary, may grant monetary relief to do so), but absent such a remedial modification, the Gawrons could remain responsible for a substantial deficiency judgment even if they prove fraudulent inducement. In the interim, Sovereign’s motion for summary judgment will be denied based upon the arguable validity of the Gawrons’ affirmative defense of fraud in the inducement.

ORDER

AND NOW, June 16,2010, upon consideration of the “motion for summary judgment” of plaintiff Sovereign Bank, as assignee of Mortgage Electronic Registration Systems Inc., as a nominee for SIB Mortgage Corporation, the exhibits and memoranda of law submitted by the parties, and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that the motion for summary judgment of plaintiff Sovereign Bank, as assignee of Mortgage Electronic Registration Systems Inc., as a nominee for SIB Mortgage Corporation, is denied.

      . Section 512(b) of the Mortgage Bankers & Brokers and Consumer Equity Protection Act (“CEPA”) similarly provides that “[a] lender shall not engage in a pattern or practice of making covered loans based on the consumer’s collateral without regard to the consumer’s repayment ability ....” 63 P.S. §456.512(b). ThatAct defines a“covered loan” as “[a] consumer credit mortgage loan transaction involving property located within this Commonwealth ... for which the original principal balance of the loan is less than $100,000.” 63 P.S. §456.503. Since the Gawrons borrowed $249,500, CEPA is inapplicable.


author: DOZOR, J,

text:
    Commonwealth v. Bachman
    C.P. of Delaware County,
    nos. 5821-06 and 7513-06.

      Frank Annunziato, for Commonwealth.

      Josh Bachman, pro se.
    June 11, 2010
   DOZOR, J,

NATURE AND HISTORY OF THE CASE

This is an appeal following the March 11, 2010, denial of the petition for time credit for imprisonment while in custody prior to sentence.

As to transcript 7513-06, on January 8,2007, appellant entered into a negotiated guilty plea to Information A, theft by unlawful taking and Information B, criminal conspiracy to theft by unlawful taking. Appellant was sentenced on Information A, to time served of 17 days to 12 months in a county facility and Information B, to one-year consecutive county probation. Appellant was required to complete 56 hours of community service, pay restitution in the amount of $367.99 and have no contact with the victim.

As to transcript 5821-06, on January 8,2007, appellant entered into a negotiated guilty plea wherein he was sentenced as follows, Information B, possession of drug paraphernalia. Appellant was sentenced to one-year county probation, a $100 cost assessment per the Substance Abuse Demand and Reduction Act and 96 hours of community service. This sentence was to run consecutive to the sentence imposed on transcript 7513-06.

On June 6,2007, at the request of appellant’s probation officer, The Honorable Kenneth A. Clouse issued bench warrants for violations of his probation/parole because appellant failed to report as directed, failed to refrain from use, possession or distribution of controlled substances and failed to complete special conditions of his probation/parole. Appellant’s probation officer requested a Gagnon I hearing and as such the bench warrants were rescinded. Appellant’s Gagnon I hearing was held on September 7, 2007, and Master Parker recommended appellant have a Gagnon //hearing.

On September 14,2007, a Gagnon //hearing was held before The Honorable Joseph P. Cronin Jr. on both transcripts. Appellant was found in violation of his probation/ parole and was re-sentenced as follows:

• Transcript 7513-06, Information A, theft by unlawful taking, full back time of 263 days and Information B, criminal conspiracy to theft by unlawful taking, one-year consecutive county probation. Appellant was granted immediate parole upon completion of PREP program and to enroll in and complete an after-care program.

• As to transcript 5821-06, Information B, possession of drug paraphernalia, one-year county probation, to run consecutive to the sentence imposed on transcript 7513-06.

On November 29, 2007, at the request of appellant’s probation officer, The Honorable Kenneth A. Clouse issued bench warrants for violations of his probation/ parole because appellant once again failed to report as directed, failed to refrain from use, possession or distribution of controlled substances and failed to complete special conditions of his probation/parole. Appellant’s probation officer requested a Gagnon II hearing, which was scheduled for January 29, 2008. On January 29, 2008, The Honorable Kevin F. Kelly held the Gagnon II hearing and found appellant in violation of his probation/ parole sentence and as such re-sentenced appellant as follows:

• Transcript 7513-06, Information A, theft by unlawful taking, full back time of 156 days and Information B, criminal conspiracy to theft by unlawful taking, one-year consecutive county probation. Appellant was granted immediate parole upon completion of PREP II and credit for 204 days.

• As to transcript 5821-06, Information B, possession of drug paraphernalia, one-year county probation, to run consecutive to the sentence imposed on transcript 7513-06 and credit for 204 days. Appellant was to report to adult probation and parole within 24 hours of release from prison, complete all community service hours and comply with any aftercare recommendations.

On December 23, 2008, at the request of appellant’s probation officer, The Honorable Ann Osborne issued bench warrants for violations of his probation/parole because appellant violated the laws of the Commonwealth and was arrested on August 27,2008, for burglary, access device fraud and theft by unlawful taking. Appellant’s probation officer requested a Gagnon II hearing, which was scheduled for April 27, 2009.

On April 27,2009, appellant had a Gagnon II hearing before this court, wherein appellant was found in violation of his probation and parole and sentenced as follows:

• Transcript 7513-06, Information B, criminal conspiracy to theft by unlawful taking, six months to 12 months. Appellant was to comply with all previous conditions, a parole plan was to be in place for drug and alcohol rehab.

• As to transcript 5821-06, Information B, possession of drug paraphernalia, six months to 12 months. Appellant was to comply with all previous conditions, a parole plan was to be in place for drug and alcohol rehab.

Appellant was fully advised of his post-sentence and appeal rights at the Gagnon //hearing. Appellant did not file any timely post-sentence motions; rather, appellant filed motion for credit for time served on January 7, 2010.

Thereafter, on April 12, 2010 this court received the notices of appeal on both transcripts and this court issued aPa.R.A.P. 1925(b)(2) request, for a concise statement within 21 days.

As of the date of this opinion, this court has yet to receive the concise statement of matters complained of on appeal. Furthermore, this court has not received a timely request for a continuance to file the concise statement of matters complained of on appeal. This court determines under the case law discussed below, the Superior Court must determine that appellant has failed to timely file a concise statement of matters complained of on appeal, appellant has also failed to timely request an extension of time in which to file the concise statement of matters complained of on appeal; therefore, the appellant has waived his right to raise any issues on appeal.

DISCUSSION

On April 14, 2010, this court, pursuant to Pa.R.A.P. 1925(b) sent an order, via certified mail return receipt requested, directing appellant to file a concise statement of matters complained of on appeal within 21 days. On April 16, 2010, someone at SCI Somerset signed and returned the receipt to this court.

Rule 1925 reads as follows:

“(b)(2) Time for filing and service. The judge shall allow the appellant at least 21 days from the date of the order’s entry on the docket for the filing and service of the statement. Upon . . . good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental statement be filed. In extraordinary circumstances, the judge may allow for the filing of a statement or amended or supplemental statement nunc pro tunc.”

As of the date of this opinion, appellant has not responded to the court’s order. Furthermore, appellant has not requested an extension of the 21 days to file a concise statement. This court considers appellant’s failure to file the required statement as a waiver of all issues, since this failure “prevents meaningful appellate review.” Conforti v. McGarvey, 387 Pa. Super. 230, 563 A.2d 1268 (1989). In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), the Pennsylvania Supreme Court eliminated any aspect of discretion and established a bright-line rule for waiver under Rule 1925:“ [I]n order to preserve their claims for appellate review, appellants must comply whenever the trial court orders them to file a statement of matters complained of on appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” Id, 553 Pa. at 420, 719 A.2d at 309. Thus, waiver under Rule 1925 is automatic. Commonwealth v. Butler, 571 Pa. 441, 445, 812 A.2d 631, 633 (2002).

CONCLUSION

For all of the foregoing reasons, the trial court’s judgment of sentence and denial of the motion for credit for time served should be affirmed.

      . 18 Pa.C.S. §3921.

      . 18 Pa.C.S. §903; 18 Pa.C.S.§3921.

      .35P.S. §780-113(a)(32).

      . 18 Pa.C.S. §3921.

      . 18 Pa.C.S. § 903; 18 Pa.C.S. §3921.

      . 35 P.S. §780-113(a)(32).

      . 18 Pa.C.S. §3921.

      . 18 Pa.C.S. §903; 18 Pa.C.S. § 3921.

      .35 P.S. §780-113(a)(32).

      . 18 Pa.C.S.§903; 18 Pa.C.S. §3921.

      .35P.S. §780-113(a)(32).