author: MOTTO, P.J.,

text:
    Commonwealth v. Stauffer

      C.P. of Lawrence County,
    No. 176 of 2014, CR

      Jonathan R. Miller, for Commonwealth.
    . David H. Acker, for defendant.
    Oct. 21, 2014
   MOTTO, P.J.,

Before the court for disposition is the petition for writ of habeas corpus filed on behalf of the defendant, Justin Stauffer, which contends that the Commonwealth failed to establish a prima facie case as to each of the charges filed against the defendant. The defendant contends that because the victim testified that on the date of the alleged rape, she initially consented to engage in unprotected sexual intercourse with defendant, including the act of penetration, there is insufficient evidence to establish a prima case for each of the charges. The dispositive issue is whether the Commonwealth has net its burden of providing evidence to support a prima facie case for rape by forcible compulsion, sexual assault and indecent assault, where the victim withdrew her consent after penetration, and the continuation of intercourse was accompanied by force and without consent.

This case arises from an alleged sexual assault that occurred at the defendant’s residence with a female victim, Gavynne Hehman. The victim testified at the preliminary hearing that she had been in a relationship with the defendant since April 2013. According to the victim’s testimony, on the day of this incident the defendant had picked her up at her house and took her to his residence at 946 cleland Mill Road in North Beaver Township, Lawrence County. The victim stated that she did not know the exact date of the assault, but was sure that it was a few days before Halloween in October 2013 The victim testified that once they arrived at the defendant’s residence they went to the defendant’s bedroom and sat down on the bed together. The defendant indicated that he wanted to have sex with the victim and she refused and said that she was not on birth control and she did not want to become pregnant. According to her testimony, the defendant kept asking her to have sex until she finally relented and said she would, but only if the defendant wore a condom. The defendant stated that he did not like condoms and would not wear one. After some persuasion by the defendant, however, the victim agreed to sexual intercourse with the defendant on the condition that he would stop and withdraw prior to ejaculation. According to the victim, the defendant agreed to withdraw before ejaculation. The victim stated that during the intercourse, the defendant stated that he was about to ejaculate. At this point, the victim told him to stop and reminded him that had agreed to withdraw. According to the victim’s testimony, when she told the defendant to stop and withdraw he refused and grabbed her arms and wrists and held them behind her back with one hand and placed his other hand on her upper back and forced her down onto the bed. The victim stated that she was bent over the bed with the victim behind her unable to move because he was holding her down. According to her testimony, the defendant stated “No. I’m not going to stop.” and that he was going to ejaculate inside her whether she wanted him to or not. The victim tried to move and pull away from the defendant but the defendant held her down and she was unable to move. The victim testified that the defendant held her down and continued the intercourse to the point of ejaculating inside of her and then released her. The victim testified that after the defendant released her she got up and got dressed and walked upstairs and spoke with the defendant’s family, but that she did not tell them what had happened. The victim testified that when the defendant drove her home later that evening she asked him why he held her down when she did not want to continue having intercourse and he replied that that it was not a big deal and not to worry about it because she was not going to get pregnant. The victim stated the defendant told her not to tell anyone about what happened.

The victim further testified that she found out she was pregnant shortly after the assault and told her parents that she was pregnant in November 2013, right before Thanksgiving. She stated that she did not inform her parents about the assault at that time because she was still in a relationship with the defendant — and was afraid that he would harm her if she told anyone. According to the victim’s testimony on cross examination, after this incident she continued having consensual sexual intercourse with the defendant up until the time she ended their relationship in December 2013. The victim stated that her relationship with the defendant ended around Christmas when she first told her parents about the sexual assault. The victim testified that after she ended her relationship with the defendant he continued to try and contact her by calling her and showing up at her house.

On January 8,2014 the victim contacted the state police and was interviewed by Pennsylvania State Trooper Harry Gustafson, Jr. about the sexual assault. Based on victim’s statement, the defendant was charged with rape by forcible compulsion (18 Pa.C.S. §3121(a)(l)), sexual assault (18 Pa.C.S. §3124.1), unlawful restraint (18 Pa.C.S. §2902(a) (1)), and indecent assault (18 Pa.C.S. §3126(a)(2)). A preliminary hearing was held on February 20, 2014 before Magisterial District Judge Jerry Cartwright. At the conclusion of the hearing, District Judge Cartwright bound all the charges against the defendant over to this court except unlawful restraint. The defendant filed a petition for writ of habeas corpus on May 9, 2014 challenging the sufficiency of the commonwealth’s evidence. At the habeas corpus hearing, the Commonwealth presented the notes of testimony of the preliminary hearing. No additional evidence was offered by either party.

Filing a petition for a writ of habeas corpus is the appropriate method by which a defendant may challenge a pre-trial finding that the Commonwealth has presented sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 614 A.2d 249 (Pa. Super. 1996); see also Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1995); Commonwealth v. Carmody, 199 A.2d 143 (Pa. Super. 2002). In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. Comm v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). The Commonwealth must satisfy this evidentiary burden by presenting evidence that established a crime was committed and that there is a probability that the Defendant committed the crime. Commonwealth v. Fox, 422 Pa. Super. 225, 619 A.2d 327 (1993). The Commonwealth establishes & prima facie case by 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). The Commonwealth is not required to prove this by the “beyond a reasonable doubt” standard; however, the Commonwealth must satisfy a standard of “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994).

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

Count 1 of the Information charges the defendant with rape by forcible compulsion in violation of §3121(a)(1) of the crimes code. This offense requires that the defendant engaged in sexual intercourse with a complainant by forcible compulsion. Forcible compulsion is defined as compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. 18Pa.C.S. §310 l.It is specifically alleged that the defendant engaged in sexual intercourse with the victim by forcible compulsion in that he held the victim’s arms behind her back and held her down with a hand on her back and continued the sexual intercourse with her after she withdrew consent and told him to stop. Count 2 charges sexual assault in violation of 3124.1 of the crimes code. Sexual assault requires proof that the defendant engaged in sexual intercourse with a complainant without the complainant’s consent. 18 Pa.C.S. §3124.1 It is alleged that the defendant held the victim down and continued sexual intercourse with the victim after she withdrew consent and against her will. Count 3 of the information charges the defendant with indecent assault by forcible compulsion, which requires proof that defendant had indecent contact with the complainant, caused the complainant to have indecent contact with the defendant or intentionally caused the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the defendant or the complainant and the defendant did so by forcible compulsion. 18 Pa.C.S. §3126(a)(2) The Information alleges that the defendant had indecent contact with the victim by continuing with sexual intercourse to the point of ejaculation after she withdrew consent for the contact.

In the instant case, the victim testified that she consented to sexual intercourse with the defendant on the condition that the defendant stop and withdraw before ejaculation. The Commonwealth contends that while the victim and defendant were engaging in consensual sexual intercourse, the victim clearly communicated her withdrawal of consent prior to the defendant ejaculating inside of her. The defendant held her down by force and continued with the intercourse after she told him to stop. Thus, the Commonwealth contends that defendant thereby committed the crimes of rape, sexual assault and indecent assault.

The defendant argues in his petition that a review of the facts and circumstances demonstrates that the Commonwealth has failed to carry its burden of establishing a prima face case against him. The defendant contends that the victim’s testimony at the preliminary hearing establishes that the defendant and the victim worked together and had been dating for months before and after the date of the alleged rape; that the victim continued dating the defendant for two more months after the alleged sexual assault; that the victim and the defendant were sexually active and engaged in unprotected sexual intercourse both before and after the date of this incident; that on the date of this incident the victim and the defendant engaged in consensual and unprotected sexual intercourse; that they had “accidents” before in which he had not withdrawn prior to ejaculation; and that she did not report being sexually assaulted until she ended her relationship with the defendant approximately two months later. The defendant argues, based on the victim’s testimony at the preliminary hearing that at the time of the alleged sexual assault the victim and the defendant consensually engaged in unprotected sexual intercourse, including the act of penetration, and that the victim was aware that unprotected sexual intercourse between her and the defendant could result in her coming into direct contact with the defendant’s semen, therefore, the Commonwealth’s evidence is insufficient to establish a prima facie case with regard to any of the charges.

This case involves a slight deviation from what is generally encountered in sexual assault cases. The crux of this cases centers on the question — when a female who agrees to sexual intercourse then changes her mind and withdraws her consent, but is compelled to continue intercourse by use of force, does this constitute a sexual assault. A review of the case law reveals that this presents an issue of first impression in Pennsylvania, therefore, this court must consider how other jurisdictions have resolved this question. In recent years, the courts in many of our sister states have directly considered whether withdrawal of consent after penetration can constitute a rape, of these cases, a few courts have held that it does not constitute a rape, with the vast majority of courts finding that if a couple consensually engages in sexual intercourse and one or the other changes his or her mind and communicates the revocation of consent, and the other partner continues the sexual intercourse by compulsion of the party who changes his or her mind, then that circumstance constitutes a sexual assault.

In State v. Way, 297 N.C. 293, 254 S.E.2d 760 (N.C. 1979), the Supreme Court of North Carolina was asked to decide whether the trial court erred in answering the jury’s question “whether consent can be withdrawn” by instructing that “consent initially given could be withdrawn and if the intercourse continued through use of force or threat of force and that the act at that point was no longer consensual this would constitute the crime of rape.” Id. at 294, 254 S.E.2d at 761. The North Carolina Supreme Court determined, without any analysis or citation of authority, that the instruction was erroneous, holding that if the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape. Id. at 295, 254 S.E.2d at 762. This decision was called into question by the Supreme Judicial Court of Maine in State v. Robinson, 496 A.2d 1067 (Me. 1985) when the court held that rape is committed if a couple consensually engages in sexual intercourse and one or the other changes his or her mind, and communicated the revocation of consent, and the other partner continues the sexual intercourse by compulsion.

In Robinson, the court was called upon to decide whether the trial judge had provided the jury with a proper instruction after the jury sent the following question to the judge: “if two people began consenting to an act, then one person says no and the other continues-is it rape.” id. at 1069. The trial court responded by instructing the jury, “if a couple consensually engages in sexual intercourse and one or the other changes his or her mind, and communicates the revocation or change of mind of the consent, and the other partner continues the sexual intercourse by compulsion of the party who changes his or her mind, then it would be rape.” The critical element there is the continuation under compulsion. Id. Based on that instruction the defendant was convicted of rape in the first degree. On appeal, the court found no error in the trial court’s instructions. Noting its disagreement with the North Carolina Court in the Way opinion, the Robinson Court stated that the controlling provision of the Maine Criminal code, as well as common sense, established the correctness of the trial court’s instruction. Id. at 1069. At trial, there was contradicting testimony about when the victim withdrew her consent to sexual intercourse. The court rejected the defendant’s argument that rape occurs only when a male’s entry of the female sex organ is made as a result of compulsion. The court found that given the emphasis given on compulsion in Maine’s statutory definition of rape, the ongoing intercourse, initiated with the victim’s consent, did not become rape merely because she revoked her consent. It became rape if and when the victim submitted to the defendant’s sexual assault only because of force or the threat of force. Id. at 1070.

In State v. Bunyard, 281 Kan. 392, 133 P.3d 14, 33 (2006), the Supreme Court of Kansas ruled as a matter of first impression that the Kansas rape statue proscribes all non-consensual sexual intercourse that is accomplished by force or fear, not just the initial penetration. The court considered whether there was sufficient evidence of rape when the victim was a willing participant up until the time of initial penetration and did not withdraw consent until post-penetration. The Kansas statue defined rape as: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances: (A) when the victim is overcome by force or fear. Kansas Statues Annotated Section 21-3502 (1996, 2002 Supp.). Id. at 398, 133 P.3d at 20. Responding to appellant’s contention that the moment of penetration is the crucial point at which to determine the presence or absence of consent, the court concluded that nowhere in its statutory definition of rape or sexual intercourse was it stated that intercourse ended with penetration, but rather that penetration merely establishes a minimum amount of contact necessary to prove the offense. Id. at 340, 133 P.3d at 22. The court stated:

A participant in sexual intercourse may withdraw consent after penetration has occurred. The continuation of sexual intercourse after consent had been withdrawn, and in the presence of force or fear, is rape.

Id.

Therefore, the Supreme Court of Kansas found that there was sufficient evidence to find the defendant guilty of rape and ruled that the Kansas statue proscribes all nonconsensual sexual intercourse that is accomplished by force or fear, not just the initial penetration. Id. at 346, 133 P.3d at 28.

In State v. Siering, 35 Conn. App. 173, 644 A.2d 958 (1994), the intermediate appellate court of Connecticut was asked to address whether the trial court’s response to a jury question constituted error. The Jury’s question in the case was “if a person agrees to sexual intercourse then changes her mind, withdraws her consent, but is compelled to continue intercourse by use of force, does this constitute sexual assault?” Id. at 175, 644 A.2d at 961. The trial court responded that if there exists consensual intercourse and the alleged victim changes her mind and communicates the revocation or change of mind of consent and the other person continues the sexual intercourse by compelling the victim through the use of force then it would be sexual assault in the first degree. Id. The court rejected the defendant’s argument that if there is consent at the moment of penetration, the subsequent withdrawal of consent and continuation of intercourse accompanied by force cannot convert nonconsensual intercourse into sexual assault. Id. in considering the trial court’s answer to the jury question, the Connecticut court of appeals noted that the state rape statue did not suggest that intercourse is complete upon penetration; rather, it provides that penetration, however slight, is sufficient to complete intercourse. Id. at 176, 644 A.2d at 962. The appellate court found:

It is axiomatic that statues are not to be interpreted to arrive at bizarre or absurd results. The defendant’s construction of the statute would mean that if intercourse is continued by force after the victim withdrew consent, it would not constitute sexual assault unless the victim, upon revoking consent and struggling against the defendant, — succeeds in momentarily displacing the male organ, followed by a re-penetration by the defendant.

Id.

The court concluded that if the act of penetration ends the act of sexual intercourse, it would lead to absurd results not contemplated by the drafters of the rape statues. Therefore, the court held that an act of sexual intercourse that is initially consensual can become sexual assault if one party withdraws consent and the other party continues intercourse. Thus, the trial court’s jury instruction was not improper. Id. 177, 644 A.2d at 963.

Likewise, in State v. Baby, 404 Md. 220, 946 A.2d 463 (2008), the Court of Appeals of Maryland found the analyses conducted by the Maine Court in Robinson, the Kansas Court in Bunyard, and the Connecticut court in Sieving to be persuasive and utilized a similar framework in concluding that the Maryland rape statue punishes the act of penetration which persists after the withdrawal of consent. In Baby, the victim consented to sexual intercourse with the defendant, but withdrew her consent following penetration and was forced to continue intercourse against her will. During deliberations, the jury asked if a woman consents to intercourse and then changes her mind and the man continues, does that constitute rape. The trial court repeated the definition of rape to the jury and sent them back for further deliberations. The jury returned a verdict of guilty on the charge of rape. Defendant appealed and the appellate court reversed defendant’s conviction holding that the trial court erred in refusing to answer the question submitted by the jury regarding whether a sex act initially consented to by the victim can constitute rape is she withdraws consent after penetration has occurred. The appellate court found, based on the language in Battle v. State, 287 Md. 675, 686, 414 A.2d 1266, 1270 (1980), that if a woman consents to sexual intercourse prior to penetration and withdraws the consent following penetration, there is no rape. Baby v. State, 172 Md. App. 588, 617, 916 A.2d 410, 427 (2007). The State filed a notice of appeal to the Maryland Supreme Court asking the court to definitively decide the question of what constitutes rape, arguing that the appellate court improperly relied on language in Battle v. State, Supra, to determine that post-penetration withdrawal of consent, coupled with continuation of intercourse through force is not sufficient to constitute the elements required for a finding of rape. The State contended that the relevant language in Battle, that “on the other hand, ordinarily it a woman consents prior to penetration and withdraws the consent following penetration, there is no rape” was dicta and therefore should not have been granted precedential value.

After athorough analysis ofthe holdings and conclusions of other state courts’ interpretation of their state rape statues, the Maryland Supreme Court found that Maryland’s first degree rape statute proscribes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration. State v. Baby, Supra. 404 Md. at 240, 946 A.2d at 483. The court found that the court’s earlier pronouncement in Battle was dicta and therefore need not be followed. Id. In overturning the court of appeals, the court found that a woman may withdraw consent for vaginal intercourse after penetration has occurred and that, after consent has been withdrawn, the continuation of vaginal intercourse by force or threat of force may constitute rape. State v. Baby, Supra. 404 Md. at 260, 946 A.2d at 502. However, the court did find that force of threat of force is an essential element of the crime of rape. Id.

Based on the victim’s testimony at the preliminary hearing, the court finds that the Commonwealth has established a prima face case to the charges of rape, sexual assault and indecent assault. The victim testified that she willingly engaged in sexual intercourse with the defendant, but, during the course of intercourse, she communicated her withdrawal of consent and the defendant continued having intercourse with her by holding her down and holding her hands behind her back. The victim stated that when the defendant held her down she was unable to move and he continued intercourse with her against her will. Under Pennsylvania law, rape by forcible compulsion requires that the defendant engage in sexual intercourse with a complainant by forcible compulsion with forcible compulsion defined as compulsion by use of physical, intellectual, moral, emotional or psychological force. 18 Pa.C.S. §3121(a)(1). According to the holdings in many of our sister states a woman may withdraw consent for intercourse after penetration has occurred and after consent has been withdrawn the continuation of intercourse by force may constitute rape. See State v. Way, Supra.; State v. Robinson, Supra.; State v. Bunyard, Supra.; State v. Siering, Supra.; State v. Baby, Supra. See also Davenport v. Vaughn, 2005 WL 856912 (E.D.Pa. 2005)(applying Pennsylvania law in affirming the defendant’s rape conviction, held that the trial court properly rejected the defendant’s assertion that only the initial act of penetration counts as penetration under the rape statue, so a withdrawal of consent after sexual intercourse has begun is not rape unless the man withdraws and then penetrations again. The court noted that the requirements for rape in this circumstance are that force is directed against the victim and that the force is sufficient to establish the victim’s lack of consent). The defendant’s act of holding the victim down and continuing sexual intercourse with her against her will and by force is sufficient to establish a prima facie case to rape by forcible compulsion. Furthermore, the victim stated that the defendant ejaculated inside of her causing her to come into contact with his semen against her will and without her consent. Overall, the victim has provided direct and circumstantial evidence that defendant continued having sexual intercourse with her after she withdrew her consent by forcibly holding her down against her will. Moreover, for the same reasons that the court finds a prima facie case has been established as to the charge of rape by forcible compulsion, the court also finds that the charges of sexual assault and indecent assault are satisfied by the testimony of the victim relating that she told the defendant to stop and withdraw his penis from her vagina, and he held her down and continued the intercourse to the point of ejaculating inside of her.

Accordingly, this court finds that based upon the victim’s testimony, the evidence provided by the Commonwealth is sufficient to establish a prima face case against the defendant as to all charges. Therefore, this court must deny the defendant’s petition for writ of habeas corpus for the reasons set forth in this opinion.

ORDER OF COURT

And now, this 21st day of October, 2014, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that defendant’s omnibus pretrial motion in the nature of a motion for writ of habeas corpus is dismissed.

Defendant’s motion for discovery is granted and any dispute as to discovery shall be resolved by motion to the court.

The court notes that this case is on the November 2014 trial list.


source: Caselaw Access Project

author: ANDERSON, J.,

license: Public Domain

text:
    Iski v. HarperCollins Publishers

      C.P. of Lycoming County,
    No. 11-02,105

      Richard Callahan, for plaintiff.

      Brice Paul, for defendant.
    Oct. 27, 2014
   ANDERSON, J.,

Before the court is plaintiff’s request for damages allegedly resulting from intentional or negligent misrepresentations made by defendant respecting plaintiff’s resignation from her employment with defendant. A trial was held on October 24,2014. The matter is now ripe for decision and the court enters the following:

FINDINGS OF FACT

1. Plaintiff was employed by defendant company as a full-time receiving clerk for approximately eighteen years.

2. Sometime prior to May 12, 2011, plaintiff accepted a job offer from her boyfriend’s mother’s company in Florida.

3. On May 12, 2011, plaintiff informed Jeff Payne, a manager with defendant company, that she wished to resign from her employment there, effective May 26, 2011, because she planned to take a job in Florida. Plaintiff asked Mr. Payne what she needed to do to effectuate the resignation. Mr. Payne informed plaintiff that she needed to fill out a form and that he would get her the form.

4. Mr. Payne informed the Human Resources Generalist, Lily King, that plaintiff needed a resignation form. Ms. King put the form on plaintiff’s desk while she (plaintiff) was on a break.

5. Plaintiff completed the form after returning from her break and turned the form in to Ms. King.

6. The form requires the person completing it to state that the action of resignation is voluntary on his or her part and that he or she understands that he or she does not have any re-employment rights. The form does not mention possible rescission of the resignation.

7. After the form was turned in to Ms. King, later that day, plaintiff and the other employees were called to a meeting at which it was announced by management that the plant would be closing in December 2011, and that any employees who worked through the closing date would be given a severance package. The package was explained at the meeting.

8. Prior to the meeting, only two people in the plant knew of the impending closure. Mr. Payne was not one of those two people. Ms. King also did not know of the impending closure.

9. After the meeting, Ms. King and plaintiff walked back to their offices. Plaintiff expressed to Ms. King relief that she had resigned. Plaintiff did not express regret.

10. Plaintiff learned within a few days to a week after tendering her resignation, that she might not be able to move to Florida because the father of her children had begun legal proceedings to prevent the move.

11. At a custody hearing on May 26,2011, plaintiff was told by the judge that she would not be able to take the children to Florida. Plaintiff then telephoned Ms. King and informed her that she would not be moving to Florida, and requested that her last paycheck be sent to the same address she had previously used, rather than an address in Florida which had been recently provided.

12. At no time did plaintiff inquire of anyone employed by defendant company whether she could rescind her resignation and continue to be employed there.

13. Plaintiff was highly regarded as an employee by the management at defendant company and had a good working relationship with her fellow employees and managers.

14. By offering severance packages to employees, defendant company was attempting to keep as many employees as possible to meet the work requirements they had to meet by the end of December.

15. Defendant company had no policy regarding rescission of a resignation. No one had attempted to rescind a resignation during the eleven years Ms. King worked there.

16. The employees who stayed with defendant company through the closing in December 2011 were given severance packages and were eligible for Federal Trade Act benefits.

DISCUSSION

Plaintiff’s case is based on her allegations that she was told by Jeff Payne and also by Lily King that she could not rescind her resignation. The court cannot find that such statements were made, however. The company offered a significant severance package to those employees who would stay with the company and had no reason to discourage plaintiff from staying. She was well thought of at the company and had significant experience there. Ms. King’s testimony that when informed by plaintiff that she was resigning because she had a job in Florida, that she told her congratulations but did not tell her she could not rescind her resignation, is credible. Ms. King testified that no one in her eleven years with the company had ever asked to rescind their resignation and she did not think about it. She testified that there was no policy regarding such. Mr. Martin, the company’s Human Resources Director, also testified that there was no policy regarding rescission of resignations. The court finds it credible that under the circumstances, the matter would not have been broached.

Plaintiff argues that there could be only one reason she would not have asked to rescind her resignation: she had been told she could not. The court is not persuaded by this argument, however. It is just as possible that plaintiff herself simply did not think to do so.

Accordingly, the court draws the following:

CONCLUSIONS OF LAW

1. Defendant did not make any misrepresentation to plaintiff.

2. Plaintiff is not entitled to damages.

VERDICT

And now, this day of October 2014, for the foregoing reasons, the court finds in favor of defendant and against plaintiff.


author: TUNNELL, J.,

text:
    Downingtown Area School District v. Chester County Board of Assessment Appeals

      C.P. of Chester County,
    No. 2012-11946

      Mark P Thompson, for appellant, Downingtown Area School District

      Sigmund J. Fleck, for appellee, Chester County Board of Assessment Appeals

      Sharon DiPaolo, for intervener, LTK Associates, LP
    Oct. 29, 2013
   TUNNELL, J.,

Downingtown Area School District filed a timely appeal to this court from the decision of the Chester County Board of Assessment Appeals on October 17,2012 not to change the assessment for the commercial property in question for tax year 2013 in the amount of $1,839,760.00.

This commercial property is encumbered by a long-term lease that is highly advantageous to the lessor and owner, appellant LTK., The lease provides LTK with significantly above-market rents, 58.5% above market, for the foreseeable future. Its terms could extend until 2070. The result is an income-producing property that is highly valuable in the market place to the willing buyer. This fact bears greatly on the court’s determination of the “actual value” of the property for assessment purposes.

The appeal was consolidated for trial only with another property tax appeal, Downingtown Area School District v. Chester County Board of Assessment Appeals, et al., No. 2012-11947, which raised generally the same legal issue, namely the effect of a long-term lease on the actual value of a property. Although each property involved a similar legal issue, and the parties’ positions were supported by the same expert witnesses, that property and its related appeal is factually the polar opposite of the one presently before the court. Encumbered by a long term lease for which there is no annual rent due to be paid for the next ten (10) years, its marketplace value as an income-producing property is significantly limited by its non-existent rent and necessarily so is its resultant actual value.

Hearings in the trial de novo were held on August 12, 2014 and September 18, 2014.

The court will issue separate decisions.

The court grants the appeal and increases the assessment, making the following:

FINDINGS OF FACT

1. The Appellant is Downingtown Area School District (“School District”).

2. The appellees are the Chester County Board of Assessment Appeals, and the Intervener, the taxpayer, LTK Associates, LP. (“LTK”).

3. The property that is the subject of the appeal is located at 200 Eagleview Boulevard, Uwchlan Township, Chester County, PA 19341, Tax Parcel ID NO. 33-04G-0367.

4. The School District filed an appeal of the assessment for the subject property for tax year 2013.

5. On October 17, 2012, the Chester County Board of Assessment Appeals issued a decision sustaining the assessment for that tax year at $1,839,760.

6. On November 19, 2012, the School District filed an appeal of the decision of the Chester County Board of Assessment Appeals.

7. At this time the appeal covers three (3) tax years.

8. The applicable common level ratio for tax year 2013 is 59%.

9. The applicable common level ratio for tax year 2014 is 60.2%.

10. The applicable common level ratio for tax year 2015 is 57.7%.

11. The property consists of 2.659 acres of land, improved by a one-story building constructed in 2010 containing 14,280 square feet. There are 106 parking spaces.

12. LTK Associates owns the ground. It constructed and owns all improvements.

13. LTK Associates developed the property in accordance with plans and specifications of Walgreens, known as a “build to suit.”

14. The construction of the building is masonry with concrete floors.

15. The building is configured for use by a single tenant.

16. The property is located in a neighborhood having commercial, office, industrial and retail uses.

17. Currently, the property is occupied by Walgreens Eastern Co., Inc. (“Walgreens”), as tenant, a related entity of Walgreens, Inc..

18. Walgreens has no subtenants and thus no rental stream of income itself.

19. Walgreens has occupied the property since construction in 2010 as a drug store, pursuant to a long-term lease with an initial term of 25 years, and seven 5-year options (the “Walgreens Lease”). If all options are exercised, the lease extends until 2070.

20. Under the long-term lease, Walgreens is responsible to pay the real estate taxes for the property.

21. Walgreens does not own the grounds, building or improvements.

22. LTK’s interest in the property is a “leased fee.”

23. Walgreens’ interest in the property is a “leasehold interest.”

24. About 15% of the square footage of the subject property is currently used as a pharmacy.

25. The remaining 85% of the square footage of the subject property is used for general retail purposes.

26. The School District called as its expert witness appraiser Patrick F. Noone.

27. Mr. Noone developed all three approaches to value: cost, sales, and income.

28. LTK called as its expert witness appraiser MarkR. Shonberg.

29. Mr. Shonberg also developed the three approaches to value: cost, sales, and income. Mr. Shonberg completed appraisals for only two of the approaches: cost and income.

30. Under the income approach, the experts essentially agreed on a value of LTK’s leased fee — presenting values that were within $26,000.00 of each other — $7,256,800 (Noone) and $7,230,000 (Shonberg).

31. Because of its “above market” rent, Walgreen’s leasehold interest has no market and thus no value, as conceded by both parties’ experts.

DISCUSSION

Chester County is a third class county. Accordingly, the Consolidated County Assessment Law applies to tax assessment appeals arising in Chester County. 53 P.S. Sec. 8801(b)(l)(i). Pursuant to the Consolidated County Assessment Law, “all subjects and properties made taxable by the laws of this Commonwealth...including all real estate” shall be valued and assessed. Consolidated County Assessment Law, 53 P.S. §8811(a)(1); see also, General County Assessment Law, 72 P.S. §5020-201. Under the Consolidated County Assessment Law, the county has the power to rate and value all objects of taxation according to the “actual value” thereof. 53 P.S. §8842; see also, F&M Schaeffer Brewing Co. v. Lehigh County Bd. of Appeals, 530 Pa. 451, 456, 610 A.2d 1, 3 (Pa. 1992).

The term “actual value” is defined as market value or fair market value, which in turn are defined as “the price which a purchaser, willing but not obliged to buy, would pay an owner, willing but not obliged to sell, taking into consideration all uses to, which the property is adapted and might in reason be applied.” F&M Schaeffer, 530 Pa. at 457, 610 A.2d at 3 (quoting Buhl Found, v. Bd. of Prop. Assmt, 407 Pa. 567, 570, 180 A.2d 900, 902 (1962)). In arriving at the “actual value” under 72 P.S. §5020-402(a), all three appraisal methods — cost, income and comparable sales approaches — must be considered in conjunction with one another. Morelyn Plaza Ltd. Partnership v. Bucks County Bd. of Assessments, 1997 WL 68578, *3 (Bankr. E.D.Pa. 1997), aff’d, 149 F.3d 1164 (3rd Cir. 1998).

In a tax assessment appeal, the court of common pleas must proceed de novo. Murtagh v. County of Berks, 715 A.2d 548, 552 (Pa. Cmwlth. 1998). In a de novo appeal, it is the trial court’s duty “to independently determine the fair market value of the parcel on the basis of the competent, credible and relevant evidence presented by the parties.” Green v. Schuylkill County Bd. of Assessment Appeals, 565 Pa. 185, 196, 772 A.2d 419, 426 (2001); Westinghouse Electric Corp. v. Bd. of Property Assessment, 539 Pa. 453, 463, 652 A.2d 1306, 1311 (1995). The trial court also has the discretion to decide which of the methods of valuation is the most appropriate and applicable to the given property. Willow Valley Manor, Inc., 810 A.2d 720, 723 (2002). If the trial court is presented with conflicting testimony by equally credible experts, it is appropriate for the court to find that the fair market value of the property is “somewhere between the values presented by the competing experts.” Green, 565 Pa. at 208, 772 A.2d at 433; Westinghouse, 539 Pa. at 464, 652 A.2d at 1312; Trustees of the Int’l Brotherhood of Painters v. Bd. of Revision of Taxes, 1997 WL 1433766 (Phila. C.P. 1997). The trial court is free to accept all, part or none of an expert’s testimony in determining value. West Mifflin Area School Dist. v. Bd. of Property Assessment, 802 A.2d 687,. 691 (Pa. Cmwlth. 2002).

In a tax assessment appeal, once the taxing authority has presented its assessment record into evidence, it has made out a prima facie case for the validity of the assessment by fixing the time when the burden of coming forward with evidence shifts to the appellant. Deitch Co. v. Bd. of Property Assessment, 471 Pa. 213, 221, 209 A.2d 397, 402 (1965). If the appellant produces sufficient proof to overcome its initially allotted status, the evidentiary value of the taxing authority’s assessment record ceases and may no longer influence the court’s determination of the assessment’s correctness. Green, 565 Pa. at 195, 772 A.2d at 425-426. In that event, the appellant continues to carry the burden. Westinghouse Electric Corp. v. Board of Property Assessment, 539 Pa. 453, 460, 652 A.2d 1306, 1310 (1995). See also 16 McQuillin, The Law of Municipal Corporations §44.124 (3rd Ed.).

Finally, at the center of every real property assessment appeal is uniformity. The Uniformity Clause of the Pennsylvania Constitution provides that:

“All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Pa. Const, art. VIII, §1.

The Supreme Court reminded recently, in Friends of Pennsylvania Leadership Charter School v. Chester County Board of Assessment Appeals, 61 A.3d 354 (Pa. 2014):

“Taxation, however, is not a matter of exact science; hence, absolute equality and perfect uniformity are not required to satisfy the constitutional uniformity requirement.” Clifton v. Allegheny Co., 969 A.2d 1197, 1210 (Pa. 2009) (citing Leonard v. Thornburgh, 489 A.2d 1349, 1352 (Pa. 1985); In re: Harleigh Realty Co., 149 A. 653, 654 (Pa. 1930) (“Scientific formulae, arithmetical deductions andmental contemplations, have small value in making assessments under our practical system of taxation.”)). “Some practical inequalities are obviously anticipated, and so long as the taxing scheme does not impose substantially unequal tax burdens, rough uniformity with a limited amount of variation is permitted.” Id., at 1210-11 (citation omitted), see also Delaware, L&W.R. Co.’s Tax Assessment, 73 A. 429, 430 (Pa. 1909) (noting Uniformity Clause requires only “substantial uniformity, which means as nearly uniform as practicable in view of the instrumentalities with which and subjects upon which tax laws operate”).

Determining the “Actual Value” of the Real Property Encumbered by the Walgreens Lease

The existence of a long-term lease, which encumbers the present property and creates different interests in the property, impacts the court’s value assessment, as discussed below.

Ownership Interests in Property

There are several types of ownership interests in property, two of which are involved in this case. “Fee simple” is the most complete form of ownership. It is absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power and escheat. The Appraisal of Real Estate, 14th ed. 2013 at 4, The Dictionaiy of Real Estate Appraisal, 5th ed. 2010 at 78. A “leased fee” interest is “[a]n ownership interest held by the landlord with the rights of use and occupancy transferred by the lease to others.” Tech One, 617 Pa. at 445 n.8 (Pa. 2012)(quoting The Appraisal of Real Estate, 12th ed. 2001 at 83). See also, The Appraisal of Real Estate, 14th ed. 2013 at 72; The Dictionary of Real Estate Appraisal, 5th ed. 2010 at 111. A “leasehold” interest is “[t]he interest held by the lessee (the tenant or renter) through a lease transferring the rights of use and occupancy for a stated term under certain conditions.” Tech One, 617 Pa. at 447 n. 13, 53 A.3d at 690 n. 13 (quoting The Dictionary of Real Estate Appraisal 4th ed. 2002 at 162); see also, The Appraisal of Real Estate, 14th ed. 2013 at 72; see also, The Dictionary of Real Estate Appraisal 5th ed. 2010 at 111.

In this case, the Walgreens Lease divides the subject property into two interests: a leased fee and a leasehold interest. Intervener LTK holds the “leased fee.” Walgreens holds the “leasehold interest.”

Selection of An Appraisal Method

The School Board’s expert, Patrick Noone, a licensed real estate appraiser in the Commonwealth ofPennsylvania, developed all three appraisal methods to determine the property’s value. LTK’s expert, Mark R. Shonberg, also a licensed real estate appraiser in the Commonwealth, likewise developed the three appraisal methods, although he ultimately rejected the sales approach as not applicable to the present situation.

Having considered the various approaches presented by the experts, the court concludes that the “income approach” to value should be given the most weight in its determination of the actual value of this income-producing property. Under the “income approach” to value, each expert essentially agreed on the “leased fee” value, presenting the court with value estimates that were within $26,000.00 of each other — $7,256,800 (Noone) and $7,230,000 (Shonberg).

At the center of this dispute, therefore, is the question:

What, if any, value should be assigned to Walgreens’ “leasehold interest” in the property it occupies?

The School District contends that Walgreens’ leasehold interest is irrelevant, without value and should not be considered in the court’s analysis. Noone, therefore, did not consider the leasehold interest, or assign it a value, in his income approach. LTK’s appraiser, Mr. Shonberg, did consider the leasehold interest in his income approach, but contends that a “negative value” or a “leasehold detriment” should be assigned to that interest and necessarily reduce the leased fee value by that amount. The court agrees that the leasehold interest must be considered in its value assessment. However, as both parties agree, this leasehold interest has no market and no value. It, therefore, does not impact the leased fee value agreed to by the experts.

Impact of a Long-term Lease on the Value of A Property

The question of whether or not a property subject to a long-term lease should be valued for assessment purposes in its “unencumbered” or “fee simple” form was addressed by the Pennsylvania Supreme Court In re Appeal of Marple Springfield, 530 Pa. 122, 706 A.2d 708 (1992) [Marple Springfield i]. The court concluded that it should not. According to the court, “to interpret the tax assessment statute as requiring valuation of property in hypothetical “unencumbered form,” ...is to ignore the economic realities of commercial real estate transactions.” Id. Marple Springfield I established two basic principles applicable to valuing real property encumbered by a long-term lease. First, the “economic reality” of the existence of the lease must be considered by an appraiser in establishing the market value of property encumbered by a lease as it will be a factor which affects the price which a purchaser of the property is willing to pay. Second, when the property generates income, the capitalization of income approach is an appropriate method to use in ascertaining its value when applying that method, the “contract rent” received under the lease is the relevant income stream which is to be capitalized, even if it is below prevailing market rental rates. Id.

In the recent case of Tech One Associates v. Bd. of Property Assessment, Appeals and Review of Allegheny County, 617 Pa. 439, 465, 53 A.3d 685, 700 (Pa. 2012), the court went further in addressing the impact of long-term leases on property values when it considered which interests created by such a long-term lease were to be valued in assessing property taxes. It concluded that the market value of the property interests as a whole (both leased fee and leasehold) must be considered for tax assessment purposes. Id.

The appellant lessor in Tech One challenged the trial court’s rejection of its appraisal method because it did not include consideration of the value of buildings and other improvements on the land, which were owned by the lessee under the terms of a long-term lease. The lessor argued that the improvements were not taxable real estate because they were owned by the lessee as leasehold interests. The Tech One Court summarized the facts before it as follows:

The subject of this appeal is a 47.5 acre piece of land... upon which is situated a community shopping center..., a multi-screen movie theater, and a restaurant.... The land and buildings comprise one tax parcel....
[Lessor] purchased the then-undeveloped land during the 1980’s. In 1989, [Lessor] entered into a 50-year lease agreement... 1990, with Lessee in a transaction that [was] found to be “arm’s length.” ...Lessee was given the right under this lease to construct buildings on the land and to make other improvements to the land, and, in the early 1990’s, Lessee constructed the shopping center, movie theater, and restaurant, as well as their surrounding parking lots, lighting fixtures, and the access roads.
The lease guarantees Lessee the first opportunity to purchase any part of [Lessor’s]...interest in the premises which it elects to sell during the term of the lease, and it also gives Lessee a purchase option for the land on which the buildings sit, which it is entitled to exercise in the sixth month of year 49 of the lease. If Lessee fails to exercise this purchase option, upon the termination of the lease, [Lessor]...has the right to retake possession of the entire premises....
Lessee was required to pay [Lessor]...$665,000 in rent annually for the entire term of the lease. The lease also required Lessee to pay all real estate taxes levied on the premises, and granted Lessee the option, at any time of its choosing, to assign all of the rights, title, and interests which it possessed under the lease, and, correspondingly, required any assignee to assume Lessee’s obligations under the lease. Lessee was also permitted to sublease part or all of the premises to a tenant for any use permitted by the lease.

The court concluded that “the statutes of this Commonwealth authorizing the taxation of real estate are concerned with the particular nature of the property involved, not the means by which the property is owned... Consequently, the mere fact that the shopping center buildings and other improvements to the land in the instant matter were owned by Lessee as leasehold interests does not alter the fact that they are particular types of real estate enumerated in Section 201 (a) and, thus, are proper subjects of taxation.” Having determined that the leasehold interest in buildings and improvements at the shopping center were “real estate” and, thus, subjects of taxation, the remaining question for the Tech One Court to answer was whether their market value had been properly established, taking into account its earlier decision in Marple Springfield I.

The Tech One Court reasoned that, although not mentioned therein, Marple Newtown I did not preclude the consideration of a leasehold interest, but simply necessitated that, in conducting this valuation, the impact of the lease on the market value of the real estate owned as the leased fee and, also, on the market value of the real estate owned as a leasehold interest must be considered. The Tech One Court further held that if the holder of the leased fee and the leasehold interest each receive rent pursuant to a contractual arrangement, it is appropriate, pursuant to Marple Springfield I, to employ the capitalization of income approach to value those interests utilizing the contract rent. In sum, the court held that “in conducting this type of valuation, the impact of the market value of the real estate owned as the leased fee and, also, the market value of the real estate owned as a leasehold interest must be considered.” Id.

Tech One stands for the proposition that:

the...“economic reality test” be applied separately to the leasehold and the leased fee interests, rather than only to the leased fee. Thus, the “test” is to be used as a valuation tool for determining the market value of these real property interests. That is, what a willing buyer would pay a willing seller for the leasehold and what a willing buyer would pay a willing seller for the leased fee interest. Their combined value equals the total assessable real estate.

Assessment Law and Procedure in Pennsylvania, by Bert M. Goodman, Esquire 14th ed. (2013) at 190-91.

Stated in mathematical terms, and as developed in Marple Newtown I and Tech One, a property subject to a long-term lease is valued as follows:

Actual value = leased fee value (economic reality test + contract rent) + leasehold value (economic reality test + contract rent).

Although some of the facts presented in Tech One appear to differ from those here (i.e. “ownership” of the buildings on the land), the essential facts for valuation purposes are the same — the lessee is a tenant occupying property by virtue of a long-term lease and thus has a “leasehold interest.” Furthermore, nowhere in the decision did the Pennsylvania Supreme Court state that it was limiting its holding to just the facts presented. There were factual distinctions in Marple Newtown I and Tech One, yet those did not preclude the Tech One Court from applying the principles of Marple Newtown I in conducting its analysis. The same reasoning is applicable here. The concepts of leased fee and leasehold interests should apply to all leased properties, transcending the fact pattern presented in Tech One. The court, therefore, must consider both of the interests created by the Walgreens Lease.

Value of LTK’s Leased Fee

Valuing the leased fee at issue here is the simpler of the two analyses. The opined that the actual value of the leased fee was between $7,230,000 (Shonberg) and $7,256,800 (Noone). The court assigns an actual value to the leased fee of $7,243,400, which represents the difference between those two values.

Value of Walgreens’ Leasehold Interest

Valuing the “leasehold interest” at issue is a bit more complex. Although the Walgreens Lease divides the parcel into a leased fee and a leasehold interest, there is no sublease and necessarily no income stream that can be valued. Therefore, the “contract” rent portion of the leasehold equation set out in Tech One does not exist and has a “zero” value.

Turning to the “economic realty” part of the equation, although the parties disagreed about whether the leasehold interest should be valued as part of the court’s analysis, they did agree on one important fact regarding its value. Both sides agree that there is no market for a “negative leasehold” — the term used to describe a leasehold interest when property is leased at above-market rates. Because actual value considers the economic reality of the lease — what a willing buyer would pay a willing seller for the property interest here, the “leasehold” — when there is no willing buyer or seller, the market value of that leasehold must be $0. In fact, both sides acknowledged that a negative leasehold has no value. So, in this case:

Actual value = $7, 244,000 + $0

Actual value = $7, 244,000

LTK nonetheless argues that the court must assign a negative value to the leasehold interest and reduce the property’s actual value by that amount for what it calls the leasehold “detriment” to Walgreens. According to Mr. Shonberg, there is a “leasehold detriment” to Walgreens because of the substantial rent it agreed to pay LTK. He values the detriment to be the variance “between the contract occupancy costs (rent and expense) and market costs”. Mr. Shonberg then calculates a leasehold “detriment” totaling $ -3,362,485, reduces the leased fee value by that amount and opines the court should do so as well before reaching a final determination of the property’s actual value.

Neither LTK nor Mr. Shonberg offered any legal support for this proposition. LTK attempted to support its analysis by referring in its briefing to the general proposition that the sum of the fee subject to the leases and the leasehold interest “tend to be the same as the value of the property free and clear” citing In re Appeal of Cynwyd Investments, 679 A.2d 304, n.10 (Pa. Commw. Ct. 1995), which in turn quoted The Appraisal of Real Estate 469 (7th ed. 1978)). That proposition does not apply in all situations as evidenced by the use of the term “tend.” There can be exceptions to any rule and the present situation is necessarily one of those situations. As stated in the 14th edition of that same appraisal manual, The Appraisal of Real Estate 449, “the incremental value created by a lease premium can result in a leased fee value that exceeds the fee simple value.” A long-term lease at above market value rents logically raises the value of the property as such property is valued by a purchaser for its ability to produce income. Appeal of V.V.P. Partnership, 167 Pa. Cmwlth. 282, 647 A.2d 990, 991 (1994), app. den. 540 Pa. 615, 656 A.2d 120 (1995).

The court’s task in this case, as dictated by controlling case law, is to consider the impact of the Walgreens Lease on the property, not to assess the property in its “unencumbered” or “fee simple form.” That is what the court has done.

CONCLUSIONS OF LAW

1. The Board of Assessment Appeals established a prima facie case which was rebutted by the competent, credible and relevant evidence.

2. The competent, credible and relevant evidence was nonetheless conflicting in certain respects, and it is the court’s obligation to weigh the same and determine the value of the property.

3. The actual value of the property is $7,243,400 as of August 1, 2012.

4. Application of the respective common level ratios to the actual value yields the following assessed values:

For January 1, 2013: $4,273,606.

For January 1, 2014: $4,360,527.

For January 1, 2015: $4,179,442.

An appropriate order follows.

ORDER

And now, this 29th day of October, 2014, following a trial de novo in the above captioned matter by the undersigned, sitting without a jury, the court hereby grants the appeal of Downingtown Area School District, and determines the assessed value for Tax Parcel No. 33-04G-0367 as follows:

For January 1, 2013: $4,273,606.

For January 1, 2014: $4,360,527.

For January 1, 2015: $4,179,442.

      . “Income-producing property is purchased for the right to receive a future income stream.” Assessment Law and Procedure in Pennsylvania, by Bert M. Goodman, esquire 14th ed. (2013) at 195.

      . LTK referred the court to discussions in appraisal materials of the concept of “negative leaseholds.” However, nothing in those selections provided the court with any controlling case law endorsing LTK’s analysis as presented. Although Mr. Shonberg testified that he has utilized such an analysis in bankruptcy proceedings, this is not such a proceeding.


author: COX, J.,

text:
    Commonwealth v. Moore

      C.P. of Lawrence County,
    Nos. 167, 1229, 1232 of 2012

      Jessica Barson, for Commonwealth.

      Dennis A. Elíseo, for defendant.
    Oct. 31, 2014
   COX, J.,

Before the court for disposition is the petition for writ of habeas corpus filed at case number 167 of 2012, C.R., and the omnibus pretrial motions filed at case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., on behalf of the defendant Frank Leroy Moore, Jr. At case number 167 of 2012, C.R., the defendant asserts that the Commonwealth is unable to establish a prima facie case for the charges of indecent Assault and corruption of minors as there is a lack of evidence that the defendant had improper contact with the victim. At case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., the defendant argues that the evidence seized pursuant to the search warrant obtained and executed by Detective Brian Cuscino on June 13, 2012, should be suppressed as the information contained in the affidavit of probable cause used to procure the search warrant was state. The Commonwealth has also raised a motion to consolidate cases concerning all three of the aforementioned cases.

C.M., the victim at case number 167 of 2012, C.R., who was born on September 16, 1996, previously lived with her father, the defendant. She recalled an incident when she was approximately eleven or twelve years old, in which the defendant touched her inappropriately. The victim testified that during the summer before she entered either sixth or seventh grade, one evening she was in the living room of her residence watching television with her father while her mother was upstairs sleeping. The victim asked the defendant to tickle or rub her back, which was a normal request for her to make. The defendant began rubbing her back and her shirt was removed. At that time, the victim laid down and pretended to be asleep because she was afraid. The defendant then removed the victim’s pants and underwear while the victim kept her eyes closed as she did not want to see what, was happening. The defendant proceeded to place his finger inside of her vagina for several minutes. For the duration of these events, the defendant remained completely clothed. The victim terminated the encounter by wrapping herself in a blanket and going upstairs. She did not inform anyone about these events until 2012 when she confided in her friend Brad Nulsen and she eventually informed her mother of those events as well.

At case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., Corporal Richard Conti, Jr., of the New Castle Police Department began investigating the defendant for having surveillance equipment in his home as Corporal Conti received reports from a juvenile, who saw a video of herself and another juvenile taking a shower. On July 31, 2008, Corporal Conti was able to obtain a search warrant for the defendant’s residence, which he executed on that date. He seized two computers and several videotapes that were stored at the New Castle Police station in a permanent evidence locker. Corporal Conti viewed one of the videotapes and discovered videos of juvenile females showering interspersed between recorded episodes of the television show Star Trek. However, no charges were filed in 2008 relating to the videotapes or the computers and the cases remained dormant until the Fall of 2012 when the investigations were revived by Detective Brian Cuscino of the New Castle Police Department. At that time, the victim at case number 167 of 2012, C.R., informed Detective Cuscino that she was touched inappropriately by the defendant. Detective Cuscino was also notified that there was an open investigation from 2008 concerning the defendant and the evidence was still in the custody of the Newcastle Police Department. OnJune 13,2012, Detective Cuscino applied for and received a search warrant for the contents of the computers in order to have the contents of the computers extracted by the Pennsylvania State Police computer lab at Edinboro University. The computers were returned to Detective Cuscino in September of 2012, and several images of juveniles showering were extracted from one of the computers. Detective Cuscino also viewed the videotapes during his investigation.

The defendant was then charged with aggravated indecent assault of a child, aggravated indecent assault-complainant less than 16 years old, indecent assault-without consent of other, indecent assault-person less than 13 years of age and corruption of minors-defendant age 18 or above at case number 167 of 2012, C.R. He also was charged with four counts of photographing, videotaping, depicting on computer or filming sexual acts and eight counts of child pornography at case number 1229 of 2012, C.R. In addition, at case number 1232 of 2012, C.R., the defendant was charged with three counts of photographing, videotaping, depicting on computer or filming sexual acts and three counts of child pornography.

In his petition for writ of habeas corpus filed at case number 167 of 2012, C.R., the defendant contends that the Commonwealth is unable to establish a prima facie case for the charges of indecent assault and corruption of minors as there is a lack of evidence that the defendant improperly touched the victim.

Indecent assault is defined as:

(a) Offense defined. — A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
(1) the person does so without the complainant’s consent;
(7) the complainant is less than 13 years of age. 18 Pa.C.S.A. § 3126(a)(1) and (7).

The phrase indecent contact includes “a sexual or intimate part of the victim’s body is brought into contact with any part of the defendant’s body, without the victim’s consent, for the purpose of arousing or gratifying a sexual desire.” Commonwealth v. Grayson, 379 Pa. Super. 55, 62, 549 A.2d 593, 596 (1988). The crime of indecent assault was created to address the widespread concern for the outrage, disgust and shame engendered in the victim. Commonwealth v. Whetstine, 344 Pa. Super. 246, 254, 496 A.2d 111, 781 (1985) (citing Commonwealth v. Capers, 340 Pa. Super. 136, 489 A.2d 879 (1985)). Additionally, uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses. Commonwealth v.

Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005) (quoting Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999)). In Castelhun, the Commonwealth presented the testimony of the victim, who stated that the appellant repeatedly touched her in a sexual manner by placing his penis in her mouth, digitally penetrating her vagina and inserting his pents into her vagina. The Castelhun Court determined that the Commonwealth presented sufficient evidence that the appellant committed the offense of indecent assault solely through the victim’s testimony. Id., 889 A.2d at 1233-1234.

The sufficiency of the Commonwealth’s evidence concerning the charge of indecent assault was also challenged in a petition for writ of habeas corpus in Commonwealth v. Pettiford, 10 Pa. D. & C. 4th 413 (Pa. Com. Pl. Somerset 1991). In that case, the victim was a 12-year-old girl attending summer camp and the defendant was a counselor at that camp. At the preliminary hearing, the victim testified that in the presence of the other campers, the defendant began rubbing and touching her legs in the knee to calf area and on a previous occasion the defendant rubbed her neck, cheek and hair. The defendant also kissed her neck as well.

The defendant in Pettiford argued that the legs, neck and cheek are not intimate parts of the body and the defendant’s actions do not fall within the definition of indecent assault. After reviewing the transcript of the victim’s testimony, the Pettiford Court concluded that the Commonwealth established a prima facie case that the defendant committed indecent assault. Id., 10 Pa. D. & C. 4th at 414. The court reasoned, “We cannot say that under no circumstances can a rubbing and touching of the leg and cheek or a kiss on the neck be considered indecent contact.” Id., As a result, the Pettiford Court held that the victim’s description of the defendant’s conduct established sufficient evidence that a prima facie case existed against the defendant and the charges were permitted to move forward. Id.

The defendant also challenges the sufficiency of the Commonwealth’s evidence for the charge of corruption of minors, which consists of:

(a) Offense defined.—

(l)(ii) Whoever, being of the age of 18 years and upwards, by any act in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree, 18 Pa.C.S.A. § 6301(a)(1).

The charge of corruption of minors requires that the Commonwealth prove the specific underlying act that is alleged in the criminal information. Commonwealth v. Anderson, 379 Pa. Super. 589, 598, 550 A.2d 807, 811 (1988). In the current case, the information states, “Namely the actor did touch a juvenile on her back, stomach and breasts and then removed her clothing and put his fingers in her vagina without permission.” These are the same allegations that are contained in both counts for the charges of indecent assault.

The victim at case number 167 of 2012, C.R., testified that she previously lived with her father and she testified to an incident that occurred when she was approximately eleven or twelve years old. During the summer prior to her entering either sixth or seventh grade, the victim was watching television in the living room of her residence with the defendant when she asked him to tickle or rub her back. At that time, the defendant began rubbing her back and he removed her shirt. The victim laid down and pretended to be asleep because she was afraid. The defendant then removed the victim’s pants and underwear while the victim kept her eyes closed to avoid seeing what was occurring. The defendant proceeded to place his finger inside of her vagina for several minutes. The victim was able to end the encounter by wrapping herself in a blanket and going upstairs.

The Commonwealth has presented evidence that the defendant had indecent contact with the victim as she testified that the defendant removed her pants and underwear and placed his finger in her vagina for several minutes. Moreover, the testimony indicates that the victim was less than 13 years of age as she testified the incident occurred when she was either eleven or twelve years old during the summer before she entered sixth or seventh grade. As stated in Castelhun, the victim’s testimony alone is sufficient to support a guilty verdict against a criminal defendant. Similarly, the court is to accept the victim’s testimony as being truthful at this stage in the proceedings. In addition, indecent assault is a sexual offense listed in Chapter 31 of the crimes code, which provides a basis for the charge of corruption of minors. Therefore, the Commonwealth has presented sufficient evidence to support the two counts of indecent assault and the charge of corruption of minors concerning the allegations that the defendant rubbed the victim’s back and “removed her clothing and put his fingers in her vagina without permission.” The information filed at case number 167 of 2012, C.R., also contains allegations that the defendant touched a juvenile on her stomach and breasts. However, the Commonwealth has not presented any evidence that the defendant performed those actions and the petition for writ of habeas corpus is granted concerning the allegations that the defendant touched a juvenile on her stomach and breasts.

At case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., the defendant argues that the evidence seized pursuant to the search warrant obtained and executed by Detective Brian Cuscino on June 13, 2012, should be suppressed as the information contained in the affidavit of probable cause used to procure the search warrant was stale.

“[I]t is well established that a search warrant affidavit must contain sufficient facts to permit the issuing judge to conclude with reasonable certainty that a crime has been committed and that evidence or fruits thereof may be found on the premises to be searched.” Commonwealth v. Samuels, 326 Pa. Super. 561, 564-565, 474 A.2d 632, 634 (1984) (citing Commonwealth v. Crawford, 320 Pa. Super. 95, 466 A.2d 1079(1983)). State information cannot supply the probable cause necessary to support the issuance of a search warrant. Id., 326 Pa. Super, at 565, 474 A.2d at 634 (citing Commonwealth v. Albert, 264 Pa. Super. 390, 399 A.2d 1106 (1979)). In determining whether the evidence supporting the issuance of a search warrant is state “[t]he issuing magistrate must consider the nature and quantity of items to be seized, the time lapse Involved, and the ease with which the items may be disposed. The validity of any search warrant must be determined on a case-by-case basis considering the unique circumstances of each case.” Commonwealth v. Klimkowicz, 331 Pa. Super. 75, 81, 479 A.2d 1086, 1088-1089 (1984) (citing Commonwealth v. Jones, 229 Pa. Super. 224, 323 A.2d 879 (1974)). There is no hard and fast rule for determining staleness and the mere lapse of time between the discovery of the criminal activity and the issuance of the search warrant will not necessarily dissipate the existence of probable cause as long as there is a showing that the criminal activity is likely to have continued up to the time of issuance of the warrant. Commonwealth v. Stamps, 493 Pa. 530, 536, 427 A.2d 141, 144 (1981) (citing United States v. Harris, 403 U.S. 573, 579 n.2, 91 S.Ct. 2075, 2079 n.2, 29 L.Ed.2d 723 (1971)). “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.” Commonwealth v. Haggerty, 388 Pa. Super. 67, 71-72, 564 A.2d 1269, 1271-1272 (1989) (citing Stamps, 493 Pa. 530, 427 A.2d 141).

In the current cases, Corporal Conti commenced an investigation of the defendant after receiving information from a juvenile that the defendant had surveillance equipment in his home. The juvenile stated that she saw a video of herself and another juvenile showering. On July 31, 2008, Corporal Conti obtained a search warrant for the defendant’s residence, which was executed on that date. He seized two computers and several videotapes that were stored in a permanent evidence locker. Corporal Conti viewed one of the videotapes and discovered videos of juvenile females showering interspersed between recorded episodes of Star Trek. It is unknown as to whether the original search warrant also included permission to search the contents of the computers that were seized. No charges were filed in 2008 relating to the videotapes or the computers and the cases remained dormant until the fall of 2012 when the investigations were revived by Detective Brian Cuscino of the New Castle Police Department. At that time, the victim at case number 167 of 2012, C.R., informed Detective Cuscino that she was touched inappropriately by the defendant. Detective Cuscino was notified concerning an open investigation from 2008 relating to the defendant. The evidence seized as part of that investigation remained in the custody of the New Castle Police Department. On June 13, 2012, Detective Cuscino applied for and received a search warrant for the contents of the computers in order to have the contents of the computers extracted by the Pennsylvania State Police computer lab at Edinboro University. The computers were returned to Detective Cuscino in September of 2012, and several images of juveniles showering were extracted from one of the computers. Detective Cuscino also viewed the videotapes during the course of his investigation.

It is important to note that the charges at case number 1232 of 2012, C.R., are not based upon evidence obtained through the execution of the June 13, 2012, search warrant, as they are based upon videos of juvenile females showering that were seized during the execution of the July 31, 2008, search warrant. Moreover, Counts 1 through 8 in case number 1229 of 2012, C.R., are also based upon similar evidence. Those charges would not be affected by the issuance of the June 13, 2012, search warrant. However, Counts 9 through 14 are based upon images of naked juveniles showering that were extracted from the computers seized on July 31,2008. Those images were seized based upon the search warrant obtained by Detective Cuscino on June 13, 2012.

The defendant contends that the information supporting probable cause for the June 13, 2012, search warrant is stale as it related to the computers seized during the execution of the July 31, 2008, search warrant. The court is required to examine the existence of probable cause at the time each search warrant was issued and whether the evidence presented at that time was stale. Corporal Conti received information the defendant installed surveillance equipment in his residence, which he utilized to record juveniles showering. Upon receiving that information from a juvenile, who viewed a recording of herself and another juvenile showering, Corporal Conti made a timely application for and was issued a search warrant. Moreover, Corporal Conti executed the search warrant on the date it was issued. Two computers and several videotapes were seized during the execution of that warrant, which remained in the custody of the New Castle Police Department. No further action was taken concerning that evidence until the victim at case number 167 of 2012, C.R., reported that she was inappropriately touched by the defendant. At that time, Detective Cuscino also learned of the previous investigation, search warrant and the seized computers. In his investigation, Detective Cuscino obtained another search warrant on June 13, 2012, for the contents of the computers that were properly seized during the execution of the July 31,2008, search warrant. Based upon the record currently before the court, there is no indication that either search warrant was based upon stale information at the time it was issued. The July 31, 2008, search warrant was based upon current information received from the juvenile that the defendant installed surveillance equipment in his residence and he was recording juveniles, while they were showering. Corporal Conti timely applied for a search warrant, was granted the same and executed the warrant on the same day. Furthermore, Detective Cuscino applied for a search warrant on June 13, 2012, to obtain the contents of the computers already seized by Corporal. Conti based upon information provided by C.S. He was granted that search warrant and executed it on the same date by sending the computers to the crime lab to have the contents extracted. There is no indication that either search warrant was issued based upon evidence that was stale as the evidence was current at the time when each search warrant was issued. Therefore, the defendant’s Omnibus Pretrial Motions at case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., are denied.

The Commonwealth has also raised a motion to consolidate cases for case numbers 167 of 2012, C.R., 1229 of 2012, C.R., and 1232 of 2012, C.R.

Joinder of trials for separate informations is governed by Pa.R.Crim.R 582, which states:

(A) Standards
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) The evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) The offenses charged are based on the same act or transaction.

“Whether or not separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant.” Commonwealth v. Newman, 528 Pa. 393, 398, 598 A.2d 275, 277 (1991) (citing Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988)). The Pennsylvania Supreme Court has created a three pronged test for determining if joinder of offenses is proper, which is as follows: “whether the evidence of each of the offenses would be admissible in a separate trial for the other, whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, whether the defendant will be unduly prejudiced by the consolidation of offenses.” Lark, 518 Pa. at 302, 543 A.2d at 497 (1988). Evidence of crimes perpetrated on different dates may be admissible in trials for each separate offense if it constitutes a sequence of events that forms the history of the case and is part of the natural development of the case. Commonwealth v. Thomas, 879 A.2d 246, 260-261 (Pa. Super. 2005) (quoting Commonwealth v. Drumheller, 570 Pa. 117, 138, 808 A.2d 893, 905 (2002)). “Consolidation of indictments requires only that there are shared similarities in the details of each crime.” Newman, 528 Pa. at 400, 598 A.2d at 278 (1991) (citing Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 721 (1981)). Moreover, prejudice in terms of Pa.R.Crim.P. 582 means “that which would occur if the evidence tended to convict [the defendant] only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.” id., 528 Pa. at 401, 598 A.2d at 279 (quoting Lark, 518 Pa. at 307-308, 543 A.2d at 499).

Case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., should be consolidated as they arise out of the same series of transactions or occurrences and are based upon similar facts. Both cases deal with the defendant placing surveillance equipment in his residence and utilizing that equipment to record juvenile females showering. He also placed a two-way mirror in his shower, so he could view the juveniles showering. At case number 1229 of 2012, C.R., the defendant is charged with six counts of sexual abuse of children-possession of child pornography for having six images of juveniles showering and at case number 1232 of 2012, C.R., the defendant is charged with several offenses for installing a two-way mirror in the bathroom for viewing and videotaping juvenile females showering and for possessing videos of naked juveniles in the shower. These incidents are very closely related, yet, they can be distinguished by a jury as they involve different victims, which can provide the jury a way to distinguish the charges. Moreover, the defendant will not be prejudiced by the consolidation of these two informations for trial as the same evidence used to prove the charges at case number 1229 of 2012, C.R, will be utilized to prove the charges at 1232 of 2012, C.R.

However, the information at case number 167 of 2012, C.R, will not be consolidated with those cases as it would be prejudicial to the defendant if case number 167 of 2012, C.R, is tried with those cases. At case number 167 of 2012, C.R, the defendant is charged with several offenses arising from an incident where he allegedly inappropriately touched the victim. This case is significantly different from case numbers 1229 of 2012, C.R, and 1232 of 2012, C.R, as those cases dealt with recording and viewing juvenile females while showering. There is no indication that the evidence utilized to prove case number 167 of 2012, C.R, would be admissible in the trials at the other two case numbers nor would the evidence from those cases be admissible at case number 167 of 2012, C.R. Moreover, there is nothing on the record to demonstrate that the incident charged in case number 167 of 2012, C.R, occurred at the same time as the incidents in case numbers 1229 of 2012, C.R, and 1232 of 2012, C.R, The Court finds that it would be unduly prejudicial to permit the joinder of case number 167 of 2012, C.R, with case numbers 1229 of 2012, C.R, and 1232 of 2012, C.R.

For the reasons set forth in this opinion, the defendant’s petition for writ of habeas corpus at case number 167 of 2012, C.R, is granted in part and denied in part. The defendant’s petition for writ of habeas corpus concerning the charges at case number 167 of 2012, C.R, is denied as Commonwealth has presented sufficient evidence to establish a prima facie case for all of the charges filed against the defendant. Conversely, the court grants the defendant’s petition for writ of habeas corpus concerning the allegations that the defendant touched a juvenile on her stomach and breasts as there is no evidence to support those claims. The defendant’s omnibus pretrial motions at case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R. are denied. The Commonwealth’s motion to consolidate cases is granted concerning case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., and those case are joined for purposes of trial. However, that motion to consolidate cases is denied concerning case number 167 of 2012, C,R., and it is not joined with case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R.

ORDER OF COURT

Now this 31st day of October, 2014, this case was before the court on August 1, 2014, for a hearing on the petition for writ of habeas corpus filed at case no. 167 of 2012, C.R. and the omnibus pretrial motions filed at case nos. 1229 of 2012, C.R. and 1232 of 2012, C.R. by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Jessica Barson, Esquire, Assistant District Attorney for the County of Lawrence and the defendant Frank Leroy Moore, Jr., represented by counsel, Dennis A. Elisco, Esquire and after a hearing held, and with both counsel being afforded the opportunity to file a legal memorandum, and after consideration of the evidence and statements of counsel, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the petition for writ of habeus corpus at case no. 167 of 2012, C.R. filed by the defendant is granted in part and denied in part. The petition for writ of habeus corpus concerning the charges is denied; however, the specific allegation that the defendant touched a juvenile on her stomach and breasts is granted as there is no evidence to support those claims and said allegations are stricken from the information. All other allegations and charges shall remain in full force and effect.

2. In accordance with the attached opinion, the omnibus pre-trial motions filed at case nos. 1229 of 2012, C.R. and 1232 of 2012, C.R. are denied.

3. In accordance with the attached opinion, the motion to consolidate cases filed by the Commonwealth is granted regarding case nos. 1229 of 2012, C.R. and 1232 of 2012, C.R., and those cases are joined for trial.

4. In accordance with the attached opinion, the motion to consolidate cases regarding case no. 167 of 2012, C.R. is denied and it shall be tried separately from case nos. 1229 of 2012, C.R. and 1232 of 2012, C.R.

5. The above cases shall be listed for the December, 2014, criminal jury trial term.

6. The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Jessica Barson, Esquire and Dennis A. Elisco, Esquire.

      . 18 Pa.C.S.A. § 3125(b).

      . 18 Pa.C.S.A. § 3125(a).

      . 18 Pa.C.S.A. § 3126(a)(1).

      . 18 Pa.C.S.A. §3126(a)(7).

      . 18 Pa.C.S.A. § 6301 (a)(1)(ii)

      . 18 Pa.C.S.A. § 6312 (b).

      . 18 Pa.C.S.A. §6312(d)(1).

      . 18 Pa.C.S.A. § 6312(b).

      . 18 Pa.C.S.A. §6312(d)(1).