author: STEINBERG, J,

text:
    Commonwealth v. Wolf

      Matthew Falk, deputy district attorney, for Commonwealth.

      Michael E. Brunnabend, for defendant.
    April 14, 2010
   STEINBERG, J,

On July 16, 2009, the petitioner, Mark Wolf, entered a guilty plea to rape of a child. Under the terms of the plea agreement, the Commonwealth agreed not to seek a mandatory sentence. The appellant admitted to sexually abusing his daughter, D.W., in a variety of ways. The sexual abuse began when D.W. was between the ages of 7 and 11 and continued until she was 13 years old, when she disclosed the abuse to her mother. The appellant was sentenced on December 3, 2009, to not less than 12 years nor more than 25 years in a state correctional institution and was also found to be a sexually violent predator.

Post-sentence motions were filed on December 10, 2009, and a hearing on those motions was held on January 26,2010. This court denied the motions on February 5,2010, and the appellant filed a timely appeal on March 3, 2010. In accordance with this court’s directive, the appellant filed a “concise statement of matters complained on appeal,” pursuant to Pa.R.A.P. 1925(b), on March 24, 2010. In his “concise statement of matters complained on appeal” the appellant set forth two allegations: (1) that “the court erred in finding that the defendant was a sexually violent predator;” (2) that the sentence was improper because it is excessive and the court failed to set forth its reasons for the length of the sentence and to consider the appellant’s rehabilitative needs.

For the reasons discussed below, the appellant has failed to demonstrate that a substantial question exists regarding his sentence. Furthermore, the merits of the appellant’s sentencing claim and his objection to his designation as a sexually violent predator are wanting, and the judgment of sentence should be affirmed.

DISCUSSION

“It is well-settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); see also, Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003); and Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). The appellant must demonstrate that a substantial question exists concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005).

“The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis.” Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). A claim that a sentence is unreasonable can raise a substantial question when an appellant “sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. . . .” Mouzon, 812 A.2d at 627. However, a substantial question requires something more than alleging excessiveness. See Ladamus, 896 A.2d at 595.

Here, the appellant’s vague allegations do not present a substantial question. “It is important to note that this court is not persuaded by bald assertions or the invocation of special words in a concise statement of reasons; [t]o the contrary, a concise statement must articulate the way in which the court’s conduct violated the sentencing code or process.” Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super 2008), quoting Commonwealth v. Kalichak, 943 A.2d 285,290 (Pa. Super 2008). Further, claims of excessiveness and inadequate consideration of mitigating circumstances, i.e. the need for rehabilitation, do not raise a substantial question for review. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); Commonwealth v. Cannon, 954 A.2d 1222 (Pa. Super. 2008); Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super. 2007); Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999). For this reason, the appellant’s claims regarding his sentence are not reviewable on appeal.

If the merits of the appellant’s sentencing claims are considered, then the sentencing court’s decision-making is scrutinized under an abuse of discretion standard. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007); Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super. 2007). The following explanation has been used as the starting point for determining if the sentencing court properly exercised its discretion:

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (enbanc).

The appellant received a standard range sentence. His offense gravity score was 14 and his prior record score was zero. Hence, the standard range sentence for rape of a child under 13 years old was 72 to 240 months, and the appellant received a minimum sentence of 144 months. Generally, when a sentence is imposed within the sentencing guideline range there is no substantial question. Commonwealth v. Maneval, 455 Pa. Super. 483, 688 A.2d 1198 (1997); Commonwealth v. Johnson, 446 Pa. Super. 192, 197, 666 A.2d 690, 692 (1995).

The guidelines are advisory and nonbinding, but the sentencing court must consider them in formulating a sentence. Walls, 926 A.2d at 964. The purpose of the guidelines was explained in Walls as follows:

“Consultation of the guidelines will assist in avoiding excessive sentences and further the goal of the guidelines, viz., increased uniformity, certainty, and fairness in sentencing. Guidelines serve the laudatory role of aiding and enhancing the judicial exercise of judgment regarding case-specific sentencing. Guidelines may help frame the exercise of judgment by the court in imposing a sentence. Therefore, based upon the above, we reaffirm that the guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors — they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence.” Id. at 964-65.

Here, the sentencing guidelines were considered in imposing the appellant’s sentence. This court also considered the presentence report and all of the relevant facts and cumstances. See Commonwealth v. Devers, 519 Pa. 88, 100, 546 A.2d 12, 18 (1988); Commonwealth v. Pollard, 832 A.2d 517, 526 (Pa. Super. 2003). In other words, in reaching our sentence, “the protection of the public, the gravity of the offense as it relates to the impact on the victim and the community, the defendant’s rehabilitative needs and the sentencing guidelines” were all evaluated. 42 Pa.C.S. §9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).

Some of the significant factors supporting the imposition of the appellant’s sentence were the multiple episodes of abuse, the lengthy period of time that the abuse occurred, the young age of the victim, and the relationship between the appellant and the victim. The victim is the appellant’s daughter and the sexual abuse, in the nature of vaginal, anal, oral, and digital penetration, occurred 40 to 50 times over a period of two to five years.

The appellant further contends that this court erred because, in arriving at its sentence, it failed to set forth such appropriate and legally required reasons to justify the sentence. The appellant offers no support for this contention, stating only that the court erred in failing “to properly set forth its reasons for the length of the sentence or set forth other factors as required by the Sentencing Code, or otherwise failed to review such factors that are set forth in the Sentencing Code, including the need for the defendant to seek rehabilitation rather than incarceration prior to its imposition of sentence.”

In imposing a sentence the trial court must provide the reasons for the sentence on the record. “The court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reasons for the sentence imposed.” As long as the reasons demonstrate that the trial court “weighed the sentencing guidelines with the facts of the crime and the defendant’s character in a meaningful fashion, the court’s sentence should not be disturbed.” Commonwealth v. Anderson, 830 A.2d 1013, 1019 (Pa. Super. 2003), quoting Commonwealth v. Begley, 566, Pa. 239, 301-302, 780 A.2d 605, 642-43 (2001).

The appellant’s argument is clearly undermined by the record. As discussed above, this court considered the gravity of the offense as it impacted the life of the victim, and the important purpose of the statute that was violated. In addition, this court specifically identified mitigating factors that were considered at sentencing, including the appellant’s lack of criminal history, his honorable discharge from the Navy, his employment history, his acceptance of responsibility, and his family history.

It is further noted that the appellant’s need for rehabilitation does not diminish the seriousness of this case or the need for lengthy incarceration. See Commonwealth v. Lilley, 978 A.2d 995, 999 (Pa. Super. 2009), quoting Commonwealth v. Williams, 539 Pa. 249, 253 n.1, 652 A.2d 283, 285 n.1 (1994) (“five broad purposes of the penal system: protection of society, general deterrence . . . , individual deterrence, rehabilitation, and retribution”). It is clear from the nature of the offense in this case that the appellant maintained a lengthy criminal relationship with his daughter that preyed on her youth and her trust in her father. She has been affected and will continue to be affected by the defendant’s conduct. The appellant’s wife commented: “My daughter is going to be messed up for such a long time. This abuse was going on for so long that it became part of her life. She doesn’t know what is right or wrong. He made her believe what she was doing was right.” The facts support the sentence imposed. In other words, the nature of the offense and the appellant’s rehabilitative needs were adequately weighed, and justified the imposition of a lengthy, standard range sentence.

Lastly, the appellant objects to his designation as a sexually violent predator (SVP). This objection is without merit. The appellant was determined to be an SVP at the time of his sentencing based, in part, on the introduction into evidence of the sexual offender assessment report that was prepared by Dr. Veronique Valliere after the appellant’s guilty plea. No testimony was presented by the appellant.

An SVP is defined as “[a] person who has been convicted of a sexually violent offense . . . and who is determined to be a sexually violent predator [based on a sexual offender assessment evaluation]... due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” Here, the appellant’s conviction for rape of a child clearly satisfies the requirement of a sexually violent offense. Also, Dr. Valliere’s report dated September 12, 2009, concludes that the appellant meets the diagnostic criteria for pedophilia, given his repeated sexual assault of a prepubescent child, and “meet[s] the criteria for... classification as a sexually violent predator.” Following that conclusion, the Commonwealth filed a “motion to classify the defendant as a sexually violent predator,” and this issue was addressed at the sentencing hearing held on December 3,2009. Both the Commonwealth and the defense argued the relevance of Dr. Valliere’s findings and whether they supported an SVP classification.

The following factors, as required, were considered by Dr. Valliere in preparing the sex offender evaluation and also by this court in reaching the decision that the appellant was an SVP by “clear and convincing evidence” :

“(1) Facts of the current offense, including:
“(i) Whether the offense involved multiple victums.
“(ii)Whether the individual exceeded the means necessary to achieve the offense.
“(iii) The nature of the sexual contact with the victim.
“(iv) Relationship of the individual to the victim.
“(v) Age of the victim.
“(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
“(vii) The mental capacity of the victim.
“(2) Prior offense history, including:
“(i) The individual’s prior criminal record.
“(ii) Whether the individual completed any prior sentences.
“(iii) Whether the individual participated in available programs for sexual offenders.
“(3) Characteristics of the individual, including:
“(i) Age of the individual.
“(ii) Use of illegal drugs by the individual.
“(iii) Any mental illness, mental disability or mental abnormality.
“(iv) Behavioral characteristics that contribute to the individual’s conduct.
“(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense.”

At the hearing, this court weighed each of these factors, along with Dr. Valliere’s sexual offender assessment evaluation and diagnosis of pedophilia, and set forth its findings of fact. See Commonwealth v. Meals, 590 Pa. 110, 912 A.2d 213 (2006); see also, Commonwealth v. Geiter, 929 A.2d 648, 652-53 (Pa. Super. 2007) (SVP designation affirmed where defendant sexually abused his 10-year-old son on multiple occasions over a one-year period after he started exercising visitation rights with the child, and although many of the section 9795.4(b) factors were found to “favor” the appellant, that did not preclude an SVP determination). In particular, it was determined that this case involved only a single victim to whom the appellant had easy access because they lived in the same household. The appellant commented that having sex with his daughter “was the easy way. There was no fighting, no arguing.” Although the crimes did not involve “unusual cruelty,” they did include vaginal, anal, oral, and digital penetration on 40 to 50 occasions. The appellant used his status as father to abuse the victim from the time she was probably 7 until she was 13. The victim remembered the timing of the abuse because she was a third grader. Whether it started at age 7 or 11 was not significant because either way her mental capacity was limited due to her youth and the great influence that her father had over her as her parent. The appellant, who was 34 at the time of sentencing, had no prior offense history and did not use illegal drugs. However, the appellant has a mental abnormality in the form of pedophilia, which is associated with a high likelihood of reoffending. Additionally, the appellant’s lack of insight into the abuse of his daughter, and his capacity to reoffend, is made even more egregious by his comment in the presentence report, “she came into my room, she never said no. I never made this little girl do anything, I never forced her or threatened.”

It is apparent that the appellant’s mental abnormality was not dormant, but instead it was coupled with predatory actions. Meals, 912 A.2d at 224 (“[P]roof of a mental abnormality... is not sufficient in itself to prove SVP status .... Instead, there must also be proof concerning predatory behavior.”). “Predatory” behavior is defined as “[a]n act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization.” (emphasis added) Here, the appellant promoted a relationship of victimization with his daughter and acted opportunistically by assaulting the victim only after her mother left the house. In addition, the appellant maintained this behavior for an extended period of time. It is clear that the appellant engaged, and is likely tó engage in the future, in predatory behavior. “The salient inquiry to be made by the trial court is the identification of the impetus behind the commission of the crime and the extent to which the offender is likely to reoffend.” Commonwealth v. Geiter, 929 A.2d at 651.

Taking all of the forgoing evidence into account, including Dr. Valliere’s opinion, an order was entered finding, by clear and convincing evidence, that the appellant is an SVP. While it is unclear whether the appellant is challenging the sufficiency of the evidence or the weight of the evidence, his objections lack any basis in fact or law. See Fuentes, 2010 WL 937525 at *9.

ORDER

And now, April 14, 2010, it appearing that the appellant has filed a notice of appeal in the above-captioned matter; it further appearing that the defendant has filed a “concise statement of matters complained on appeal” pursuant to Pa. R.A.P. 1925(b); it further appearing that our accompanying opinion satisfies the requirements of Pa.R.A.P. 1925(a);

It is hereby ordered that the clerk of courts, criminal division, shall transmit the record in the above-captioned matter to the Superior Court forthwith;

It is further ordered that the clerk of courts shall include with the transmittal of the record the following documents:

(1) The notes of testimony from the sentencing held December 3, 2009.

(2) A copy of the appellant’s pre-sentence investigation report and sex offender evaluation prepared by the Sexual Offenders Assessment Board, for review by the Superior Court, and that said reports shall be sealed to preserve their confidentiality pursuant to Pa.R.Crim.P. 703.

      . 18 Pa.C.S. §3121(c).

      . Notes of testimony, sentencing (N.T.S.) 12/3/09, p. 3.

      . Concise statement of matters complained on appeal,¶1.

      . Cf. Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007) (Challenge to the discretionary aspects of standard range sentence requires demonstration that actions of sentencing court were either inconsistent with Sentencing Code or contrary to fundamental norms underlying sentencing process).

      . Concise statement of matters complained on appeal, ¶2.

      . Pa.R.Crim.P. 704(C)(2).

      . 204 Pa. Code §303.1(d).

      . N.T.S., 12/3/09, pp. 37-38.

      . N.T.S., 12/3/09, p. 39.

      . Commonwealth’s exhibit 1. The report was admitted into evidence by stipulation at the sentencing hearing.

      . 42 Pa.C.S. §9792.

      . Commonwealth’s exhibit 1, p. 4.

      . See Commonwealth v. Fuentes, 2010 WL 937525 *6 (Pa. Super. March 17, 2010), quoting Commonwealth v. Dixon, 907 A.2d 533, 535-36 (Pa. Super. 2006) (“At the core of the expert’s assessment is a detailed list of factors, which are [mandated] and are designed as, ‘criteria by which . . . [the] likelihood [of reoffense] may be gauged.’”).

      . 42 Pa.C.S. §9795.4(e)(3).

      . 42 Pa.C.S. §9795.4(b).

      . N.T.S. 12/3/09, p. 38. Presentence report, p. 3.

      . “Mental abnormality” is defined as “[a] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” 42 Pa.C.S. §9792.

      . N.T.S. 12/3/09, p. 20. “Sexual arousal to prepubescent children typically develops early in life and is highly deviant. Deviant sexual arousal to prepubescent children is related to a risk of recidivism.” See Judge Klein’s concurring statement in Geiter, 929 A.2d at 653: “Geiter suffered from the personality disorder, pedophilia, and all pedophiles are likely to engage in predatory sexually violent offenses in the future.”

      . N.T.S. 12/3/09, p. 19; Presentence report, p. 3.

      . 42 Pa.C.S. §9792.


source: Caselaw Access Project

author: LESKINEN J.,

license: Public Domain

text:
    Commonwealth v. Bailey

      Doug Sepic, assistant district attorney, for Commonwealth.

      David Shrager, for defendant.
    November 30, 2009
   LESKINEN J.,

Before this court is an omnibus pretrial motion filed by the defendant, Jonathan Bailey. After full consideration of the record, arguments by counsel and pertinent case law, the court finds that the defendant’s motion must be denied in part and granted in part pursuant to Bailey’s statements.

BACKGROUND

On the date of the alleged incident, October 10,2008, Bailey was under pretrial supervision through the Fayette County Adult Probation and Parole Office on a drug related offense. Around this time, the probation officers came into possession of a photograph downloaded from “MySpace.” The photo displayed Bailey brandishing a semi-automatic handgun in front of the gold Chevrolet Caprice that Bailey sometimes operated. Possession of the firearm was a violation of the conditions of the pretrial services contract Bailey signed on January 23,2008 in order to get out of jail on bond. On October 10,2008, when the officers arrived at Bailey’s residence, they witnessed Bailey in what appeared to be a drug deal on the street in front of Bailey’s home. As the probation officers approached Bailey he retreated around the east side of his house. Bailey re-emerged moments later and spoke with Officer Townsend.

Officer Williams began a search of Bailey’s house pursuant to the conditions of the pretrial supervision. In Bailey’s bedroom, Officer Williams found many plastic sandwich baggie corners commonly used for the packaging and distribution of cocaine. Officer Williams also confiscated a “niclcel-bag” package of suspected marijuana, a smoking device from a jacket pocket found in the living room and two shotguns found behind a sofa. Officer Williams then searched the outside of the residence. In the grass on the east side of the house where Bailey had retreated when the officers first approached the residence, he found two plastic baggies containing golf ball size quantities of suspected powder cocaine and a silver digital scale caked with suspected cocaine.

Officer Townsend conducted a search of Bailey’s person finding approximately $461 in his front pocket and a bundle of plastic sandwich baggies. Bailey was handcuffed and detained in the probation office vehicle. The probation officers questioned Bailey about the sandwich bags, to which Bailey responded he “eats a lot of sandwiches.” The officers also asked Bailey how he supported himself and Bailey stated “I make money when I get it, how I get it.” Although these statements are arguably not inculpatory, they were the product of interrogation, and the defendant was in custody.

Officers Williams and Townsend then searched Bailey’s gold Chevrolet Caprice. Bailey spontaneously stated to the officers, “everything in the car is mine.” In the vehicle, Townsend located a box of open 9 mm ammunition and a number of small vials usually used to package phencyclidine a Schedule II controlled substance. Williams also discovered paperwork detailing the working mechanism of a shotgun and a semi-automatic handgun.

Detective O’Barto and Patrolman Norman Howard arrived at Bailey’s residence after the searches occurred. The probation officers informed them of what they had discovered. O’Barto then read Bailey his Miranda rights and informed him he was under arrest. O’Barto proceeded to question Bailey in the presence of Officers Williams and Townsend. When questioned about the bundle of baggies found on his person, Bailey again answered that he “eats a lot of sandwiches.” Bailey also stated that he did not know where any firearms were and that he did not receive public assistance or S.S.I. When questioned if Bailey was employed he again responded, “I make money when I get it, how I get it.”

Bailey filed this omnibus pretrial motion on July 20, 2009 and the matter was heard on September 24, 2009.

DISCUSSION

Bailey avers that the officers did not possess the necessary probable cause or reasonable suspicion of criminal activity to justify the search of his person, residence or vehicle. The Fourth Amendment to the United States Constitution and Article I §8 of the Pennsylvania Constitution protects individuals from unreasonable searches and seizures, thus ensuring the “right of each individual to be let alone.” Commonwealth v. Blair, 394 Pa. Super. 207, 214, 575 A.2d 593, 596 (1990).

However, when Bailey was searched, he was currently on pretrial services with the Fayette County Adult Probation and Parole Office. Because of concern that he would commit crimes while out on bond, “pretrial services” were made a condition of his release from detention. By agreeing to the terms and conditions of the pretrial services contract, Bailey had a substantially diminished expectation of privacy while he was under the adult probation/parole office’s supervision.

As one of the conditions of the contract, Bailey agreed to submit to searches of his person, property, vehicle or residence with regards to potential violations. More specifically paragraph 15 of the contract states:

“I will submit to searches of my person, property, vehicle, and residence where such place is legally under my control, with regard to violations. The search may be conducted by a probation/parole officer and/or his/her agent and any illegal substances, narcotics, implements, intoxicants and/or contraband will be subject to seizure”

The Commonwealth asserted that prior to the search of Bailey, his vehicle and residence, the probation officers were alerted to a possible violation from a tip concerning Bailey’s MySpace page. The website showed a picture of Bailey brandishing a gun which is a violation of paragraph 14 of this pretrial services contract which states, “ I will not possess, control, transport or use any firearms or dangerous weapons.”

Due to concerns of a possible violation, the probation officers went to Bailey’s residence to further investigate. When the probation officers arrived Officer Townsend testified he witnessed Bailey in a potential drug deal which in fact is another violation of his contract with adult probation, paragraph 10 that states: “ I will not possess or use any controlled substance.”

Thus, this court finds that under the terms of the contract and the testimony of the probation officers, the officers acted reasonably and properly in their search of Bailey, his car and his residence, as it was obvious that Bailey had violated one or more of the conditions contained in his pretrial services contract.

Bailey also avers the omnibus pretrial motion should be granted since Bailey was without counsel when questioned and did not understand his right against self-incrimination. As a general rule, the prosecution may not use statements, whether inculpatory or exculpatoiy, stemming from a custodial interrogation of a defendant, unless it demonstrates that he or she was apprised of his or her right against self-incrimination and his or right to counsel. Commonwealth v. Umstead, 916 A.2d 1146 (Pa Super. 2007).

(This court is aware of no reason that would prevent the pretrial services contract from containing an explanation of Miranda rights and an acknowledgement by the defendant that he understands that anything he says to a probation officer will be used against him in court, whether in custody or not, whether interrogated or not. No such provision is in the instant agreement.)

An “interrogation” occurs, and Miranda warnings are necessary, where the officers should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect. Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143 (1998). An “interrogation” for Miranda purposes is defined as questioning initiated by law enforcement officials. Commonwealth v. McAliley, 919 A.2d 272 (Pa. Super. 2007 ) However, an unsolicited statement by the suspect is admissible, and Miranda warnings are unnecessary under such circumstances. Commonwealth v King, 554 Pa. 331, 721 A.2d 763 (1998). Bailey’s spontaneous statement that, “everything in the car is mine” is therefore, admissible.

On the other hand, any admissions made by a criminal defendant that are not preceded by Miranda warnings and that are the product of custodial interrogation, may not be used as evidence at trial. Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977). Townsend testified that prior to Detective O’Barto arriving at Bailey’s residence and giving Bailey his Miranda rights, the probation officers had questioned Bailey about the sandwich bags and how he supported himself. The court finds that the statements must be suppressed as law enforcement officials began questioning Bailey after he was arrested without first providing him with Miranda warnings.

When O’Barto arrived at the scene and was introduced to Bailey he Mirandized him, Bailey was then asked similar questions as to the sandwich bags and his income. However, Pennsylvania courts have long recognized that once an initial inculpatory admission has been improperly obtained, it may create a strong “psychological pressure to confess.” Commonwealth v. Chacho, 500 Pa. 571, 459 A.2d 311(1983). Moreover, when aprior statement. is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether such coercion has carried over into the defendant’s second statements. Oregon v. Elstad, 470 U.S. 298 (1985).

From the testimony provided by the probation officers it appears to the court that a short time period passed from when the officers questioned Bailey to when O’Barto arrived, read Bailey his Miranda rights and also began questioning him. Therefore, the court finds that when Bailey repeated the same answers to O’Barto’s questions, it was simply the product of the fact he had already said the same answers to the similar questions when questioned by the probation officers a short time prior. Therefore, the initial coercion by the probation officers questions “carried over” into Bailey’s second statements. Thus, Bailey’s statements made to O’Barto must also be suppressed, as they remain tainted despite the fact proper warnings were given.

Wherefore, the court enters the following order.

ORDER

And now, November 30,2009, upon consideration of the defendant’s omnibus pretrial motion and the arguments of counsel said motion is denied in part and granted in part in accordance with the preceding opinion.


author: Ford, J.,

text:
    Meier v. Stegmeier

      James L. Reich, for the plaintiff.

      Jennifer L. Grossi, for the defendant.
    March 31, 2010
   Ford, J.,

This is a custody case. The parties are the parents of two young boys. Plaintiff, Bartholomew Meier (Father), was the primary physical custodian of the boys when the custody trial began on March 16, 2010. At the trial, he asked that his petition to relocate to the state of Wisconsin with the boys be granted. Defendant, Susan L. Stegmeier (Mother), was the partial physical custodian of the boys when the trial began. Through her petition, she asked that she be made the primary physical custodian and that the boys be allowed to reside primarily with her in the state of Tennessee. She resides in the state of Tennessee with her husband who is an active-duty member of the United States Army.

Following the March 16 trial, by order dated March 25, I granted Mother’s petition for modification. The order provides that the parents continue as the joint legal custodians of the boys. However, Mother was designated as the primary physical custodian. Father’s request to relocate to Wisconsin was granted. It is in Wisconsin that he will exercise his partial custody rights under the order. In this opinion, I explain the reasons for the March 25 order.

PROCEDURAL HISTORY

The parties began their relationship in 2002. They have never been married to each other. The parties have two young sons, Nathan and Addison. The parties separated on a date in 2007.

On February 26,2008, Father filed the complaint that started this custody action. In the complaint, he sought primary physical custody of the children. The parties lived in Lehigh County at the time.

On August 13, 2008, the court entered an order accepting a written stipulation of the parties whereby they shared both legal and physical custody of the children.

Later in 2008, Mother decided to move to Tennessee. An order was entered on November 18,2008, accepting another stipulation of the parties whereby they shared legal custody of the children. However, under the stipulation and order, Father became primary physical custodian and Mother became partial physical custodian of the children. The parties lived under the terms of that order until 2010.

On December 18,2009, Father filed a notice of intention to relocate to Wisconsin. On the same date, he filed a petition to relocate with the children to Wisconsin.

On January 14,2010, Mother filed a notice of intention to relocate with the children to the home that she already had in Clarksville, Tennessee. On the same date, she filed a petition for modification of the earlier custody order. In the petition, she asked that she be designated as the primary physical custodian of the children.

On February 4, 2010, Father also filed a petition for special relief repeating the request in his earlier petition to allow him to remove the children from this jurisdiction and to have them reside primarily with him in Wisconsin. In this later petition, he also asked for a hearing under Plowman v. Plowman, 409 Pa. Super. 143, 597 A.2d 701 (1991).

I conducted atrial on all of these outstanding petitions on March 16,2010.1 entered an order on March 25,2010, wherein I granted Mother’s request for modification by designating her as the primaiy physical custodian of the two boys. Father received permission to relocate to the state of Wisconsin with partial physical custody rights rather than the primary custody rights that he sought to maintain. Under the March 25 order, Mother and Father continue to share legal custody rights.

FINDINGS OF FACT

(1) Mother and Father began their relationship on a date in 2002. Their son, Nathan Meier, was born on December 16,2003. He was six years old and in kindergarten at the time of the custody trial on March 16. Their son, Addison Meier, was bom on January 24, 2006. He was four years old at the time of the trial. The parties were never married to each other.

(2) At the time the trial began, under the second 2008 agreement and court order, Father was primary physical custodian of the two children. He resides with them at 317 New Street, Walnutport, Northampton County, Pennsylvania. Father is 39 years of age. He has a masters degree. He was trained and has worked as a graphic designer. However, Father is unemployed. He receives unemployment compensation which will expire in May 2010. His last full-time employment was in December of 2008. He then worked part-time until April 2009.

(3) Mother resides at 701 Anita Court, Clarksville, Tennessee. She lives there with her husband, Anthony Stegmeier, who is a specialist (E-4) in the United States Army. Specialist Stegmeier has been deployed to combat zones and is scheduled to deploy to Afghanistan in the late summer of 2010 for a 12- to 15-month tour. Mother has a daughter, Kiera, by Specialist Stegmeier. Kiera was bom on September 19, 2009.

(4) Mother works part-time providing emotional and physical support for military families and she works part-time at a YMCA. Her total part-time hours per week are approximately 23.

(5) Mother has a fourth child, Sky lar, age 8, who is the oldest of her four children. Skylar resides primarily with his father, Jeffrey Sutton, in Roseto, Northampton County, Pennsylvania. Mother’s physical contact with Slcylar is limited. They see each other infrequently each year. They also speak by phone. Mother and Jeffrey Sutton have an excellent relationship. While Mother loves Skylar, almost all significant parenting decisions are made by Mr. Sutton and that is with the consent of Mother. Skylar is engaged in a number of productive activities, excels in the parochial school that he attends and has not had an absence from school in three years. Skylar rarely sees Nathan, Addison and Kiera. On the occasions that the boys have contact with each other, they get along well.

(6) Neither the parties nor the children, Nathan and Addison, who are the subject of this custody proceeding, reside in Lehigh County, Pennsylvania.

(7) Father has investigated job availability for his field in Lehigh County, in Northampton County which adjoins Lehigh County, and in surrounding areas. He has submitted many job applications. These efforts have been unsuccessful.

(8) Father has a job offer, which has been outstanding since late 2009, as a graphic designer for a business known as “Fifty 7” in Eagle River, Wisconsin. Father will earn approximately $24,000 per year in that job which is approximately $16,000 per year less than he earned in his last full-time employment.

(9) Father has a home available to him in Eagle River which he can occupy rent-free with the boys, except for utilities and upkeep. This home is owned by his family. Father grew up in Eagle River. His family still resides there. The home in which he plans to live is located in a mostly rural section with fields and a few other homes located nearby. Father plans to move immediately to this home. His two motivations for the move are employment and proximity to his family.

(10) Mother, who is 27 years old, became unhappy in her relationship with Father early in 2007. She told Father that she wanted to date other men. She moved out of the bedroom that she shared with Father and moved into another bedroom in the same home. She slept in that bedroom for several months until she moved into the home of her parents in the fall of 2007.

(11) Mother had full-time employment in 2007 and 2008.

(12) After Mother’s separation from Father, she briefly dated a man named Chris and then dated a man named Carlos.

(13) As indicated in the procedural history, Mother and Father agreed to shared physical custody of Nathan and Addison after the parties separated. While Father sought primary custody with his complaint filed on February 26, 2008, the parties entered a stipulation which resulted in an order dated August 13, 2008, continuing the shared custody arrangement.

(14) In January of 2008, Mother met her present husband, Anthony Stegmeier. They were married one month later on February 14, 2008. Very shortly after that, Specialist Stegmeier was deployed overseas. Mother has a stable marriage with Specialist Stegmeier.

(15) In August 2008, while her husband was deployed, Mother was living here in the Lehigh Valley. On a day that month, she returned to her home to find a man lurking inside. He sexually assaulted Mother. While Mother suffered minor physical injuries, she suffered long-term psychological effects. These manifested themselves in nightmares and anxiety. Mother had a particular fear of people approaching her from the rear. Mother also had a fear of being present in the geographic area where the assault occurred. Following the assault, Mother had a tendency to be short-tempered with the children. These effects of the assault were factors that contributed to Mother’s decision to leave the Lehigh County area.

(16) Specialist Stegmeier was advised of the assault on his wife. The Army granted him permission to leave his deployment and spend approximately 15 days with Mother in the United States. He was also permitted to remain stateside after that which will be the situation until-his deployment in late summer 2010.

(17) Mother received talk therapy in Lehigh County following the assault. She continued with therapy in Tennessee. She is still actively engaged in it. It has helped her adjust to the trauma of the assault.

(18) After Mother and Father’s romantic relationship ended, the two of them engaged in regular, heated arguments. Skylar, Nathan and Addison were exposed to these. On some occasions, Skylar would intervene in an attempt to have Mother and Father stop the fighting. As a result of this, Mr. Sutton agreed to take primary custody of Skylar at Mother’s request.

(19) Because of the poor relationship which developed between the parties and the various effects that Mother was still experiencing from the sexual assault upon her, she made the decision to leave this area and to relocate to Tennessee to be near her husband’s home base. She felt compelled to make the move to get away from this area, to get healthy and to place herself in a position to ask for primary custody of the boys. Mother made a request to Father that he permit the children to go with her to Tennessee with the arrangement that she be the primary custodian. Father refused. The parties then negotiated an agreement which resulted in the November 1, 2008 stipulation for custody which was accepted by the court and filed on November 18, 2008. Under this stipulation and order, Father became primary physical custodian. Mother’s partial custody rights included time with the children for eight weeks in the summer and four major holidays. Mother was also granted the opportunity for other contacts with the children when she could return to Pennsylvania.

(20) While Mother was granted eight weeks of partial custody with the boys for the summer of 2009, she only exercised six weeks of that custody time. During the summer, she was in the final months of her pregnancy with Kiera and she had high blood pressure. She was compelled to reduce the eight weeks of custody to six weeks of custody for these reasons. Mother has exercised the other specific custody periods given to her under the order of November 18, 2008.

(21) Mother and Father communicate with each other as little as possible. The children are suffering from this lack of communication. Both parties are at fault in this failure of the parents to effectively co-parent.

(22) Mother has taken a number of significant steps to stay involved in Nathan and Addison’s lives even though the time granted her under the stipulated order is limited. She has made sure that medical and dental insurance exist for Nathan and Addison through the military. She has paid all co-pays. She has been in contact with Nathan’s school to monitor his progress including the arranging for and actually attending a parent-teacher conference. She has maintained regular contact with the boys by phone. Because of Father’s conduct when she places calls to his home, the phone calls have been less frequent than they could be and less than she desires.

(23) When Mother telephones Father’s home, Father does not put each child on the phone to have a discussion with Mother. He does not insist that they direct their attention to Mother who is on the phone. Rather, he puts the phone down (or perhaps uses a speakerphone) and allows the children to continue in whatever activities they do when Mother calls. Mother just listens to them and catches conversations when she can. Father sets no rules for the boys when Mother calls. He believes they should be allowed to conduct themselves the way they want when she calls. Because of this approach by Father, these calls are largely a waste of time. They have done very little to nothing to foster Mother’s relationship with the boys.

(24) Father faults Mother for not exercising custody more than she did since she moved to Tennessee. He has not facilitated additional contact for her. When Mother came to Lehigh County for the last custody conference earlier this year, she asked Father if she could spend some time with the boys. He initially refused and said that the boys had to go to a birthday party in Maryland. At the custody conference itself, an agreement was then reached and Mother was allowed to see the boys. Mother arrived in Pennsylvania a few days before the start of the March 16 custody trial. She and Father arranged for her to spend time with the boys starting March 15. For reasons that are unclear to Mother, Father cancelled Mother’s meeting with the boys on March 15 and moved it to the end of court on March 16.

(25) Father does not promote Mother’s relationship with the boys. He has squandered opportunities to enhance that relationship even though Mother has infrequent contact with the boys since she moved to Tennessee. The missed opportunities have occurred when Mother attempts to speak with the boys by phone, as described above, and when Father rendered face-to-face contact for her with the boys difficult on the two occasions noted. Mother does not promote Father’s relationship with the boys. (There is no evidence though that she undermines that relationship or misses specific chances to enhance it.)

(26) When the parents resided together, they shared co-parenting duties and they performed those duties well from the births of the boys until the parties’ separation.

(27) After the parties separated, during their respective periods of custody, they performed their parenting functions well with the exceptions noted in these findings of fact.

(28) Specialist Stegmeier is an appropriate stepparent in that he assists in caring for the boys when they are in Mother’s custody, supports her in her plan to become primary custodian and, in his actions, respects the roles of the biological parents.

(29) Mother has a network of friends and support through the military families near her home in Clarksville, Tennessee.

(30) Nathan has a problem with bowel movements that should cause concern to both parents. An inordinate number of days pass between many of his bowel movements. Nathan has difficulty with having bowel movements on a regular basis. He then has unexpected accidents.

(31) In 2006, Mother and maternal grandmother, Nedra Michael, took Nathan to a specialist for assistance with the bowel movement problem. The specialist created diet suggestions for Mother and Ms. Michael with which they have attempted to comply. In the summer of 2009, during Mother’s custody period, she was partially successful with Nathan in addressing the bowel movement problem by following the dietary suggestions and creating a bathroom schedule for Nathan. Mother’s plan, if she were granted primary custody, would be to fully, address the issue that Nathan has, continue with the dietary and schedule approaches, and make use of the nutritionist who is available to her at the base through the United States Army. She would like to try to resolve the issue without medication. Mother is appropriately concerned about the issue.

(32) Father addressed Nathan’s bowel problem by a regular schedule of administering Miralax. He now regularly gives Benefiber to Nathan. (It is unclear from both Mother’s and Father’s testimony whether these are prescription items and, if they are, who prescribed them.)

(33) Despite Father’s testimony that Nathan no longer has problems going to the bathroom or with bowel movements, these problems continue for Nathan. Father was not forthcoming in his testimony as to whether Nathan continues to have bowel movement accidents and he was not forthcoming in his testimony about the diet that he provides for Nathan. Father provided no plan for addressing Nathan’s ongoing bowel movement problem other than continuing to provide food for him and administration of the Benefiber. Nathan needs more sustained attention than Father is presently providing him.

(34) Addison has significant emotional issues that manifest themselves in disturbing ways. He “spins,” to use the word of the parties, when he gets excited. This involves his going to the ground or floor and moving his body in circles. Addison has speech issues which include stuttering. These physical manifestations have not been properly investigated and addressed.

(35) Mother recognizes there is an emotional problem with Addison. Father does not. Mother’s plan for addressing the problem is commendatory, as far as it goes, namely, spending more time with Addison, giving attention to him and listening to the concerns that he expresses. However, an evaluation by the appropriate expert with the necessary follow-up is needed.

(36) Mother has family members, particularly the maternal grandmother and Skylar, who reside in the Lehigh Valley area. She does not have extended family in Tennessee. However, she has her immediate family of Specialist Stegmeier and her infant daughter, Kiera. She also has the support of friends and the military families in Tennessee.

(37) Father does not have family members living in the Lehigh Valley or in Tennessee. However, his mother, siblings and other relatives reside in the Eagle River, Wisconsin area. He is particularly close with his mother and an uncle.

(3 8) In terms of physical environment and the support of family and friends, both Mother and Father have much to offer the boys with their respective homes in Tennessee and Wisconsin. Both provide fine environments for the upbringing of the boys.

(39) Through therapy in the Lehigh Valley and Tennessee, removing herself from the area where the sexual assault occurred, providing herself with time to stabilize her living situation, and by now being part of an intact marriage, Mother is in a position to provide an environment for a stable upbringing ofNathan and Addison. She has in place appropriate plans, with the addition of some court-ordered requirements, to address the significant issues that Nathan and Addison have had for an extended period of time.

(40) During Mother’s period of being a partial physical. custodian of the boys over the past (approximately) one year and five months, her love and concern for them and her desire to be their primary custodian have continued unabated. She has done all that is reasonable under the circumstances to remain actively involved in their lives.

(41) While Father has not yet moved to his new home in Eagle River, Wisconsin or begun his new job there, he plans to relocate immediately. He has demonstrated by his performance since his separation from Mother that he provides a proper home for the boys and he loves them. Father does not have in place an adequate plan to address Nathan’s bowel movement issue. He has no plan in place to address Addison’s emotional issues. He does not recognize the boys’ problems, minimizes them or ignores them.

(42) Father has improperly discussed custody issues with Nathan. He told Nathan that “Daddy needs to move.” He made this statement even though he was seeking court permission for relocation. Nathan asked him if they (Nathan and Addison) “have to go to Mommy’s.” Father responded, “No.”

DISCUSSION AND CONCLUSIONS OF LAW

As the court and counsel recognize, the paramount consideration in a custody case is the best interests of the children. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). In my attempts to determine the best interests of Nathan and Addison, I considered “all factors which legitimately impact upon the [children’s] physical, intellectual, moral and spiritual well-being....” Zummo v. Zummo, 394 Pa. Super. 30, 45, 574 A.2d 1130, 1137 (1990).

The best interests of the children, Nathan and Addison, require that Mother be their primary physical custodian. Her marriage with Specialist Stegmeier is stable. Her love and concern for Nathan and Addison are evident and they have gone undiminished even during the period of her partial physical custody. She left this geographical area to compose herself in light of the bad relationship with Father (as to which both parents share the blame) and after the trauma of the sexual assault. She has done a good job in getting her life together, in taking care of the children when she had them and in constructing a plan to address all of the boys’ needs. She does not have immediate family in the Tennessee area but she has the support of her husband and the friendship and support of military families.

By having the boys live with Mother as their primary custodian, they will be raised with their younger half-sister, Kiera. Absent compelling reasons to the contrary, siblings should be raised together in one household whenever possible. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); and Ferdinand v. Ferdinand, 163 A.2d 820 (Pa. Super. 2000).There are no compelling reasons to the contrary in this case. Mother will also have the boys be in contact with Skylar although it is recognized that such contact will rarely occur. Mother should attempt more contact with Skylar than has occurred in the past.

Mother acknowledges the bowel problem that Nathan has and the emotional problems that Addison has. She has definitive and acceptable plans to address Nathan’s problem. She has apian for Addison. What she plans for Addison is appropriate but more is required. The additional requirement was made part of the court order of March 25. The important point here is the recognition by Mother of these issues with both children and her eagerness to properly address them. Mother included these topics in her answer when she was asked why she felt it would be best for the boys to live with her as primary custodian. Her answer was:

“Because I love them and miss them and they have a baby sister named Kiera, and they love and adore her and I think I can get them on a schedule. When I have them in the summer, we’re on a schedule. I’d like to keep that. I’d like to take Nathan to the nutritionist without medication and Addison, I think Addison needs some more time where people listen to him.”

Mother’s primary shortcoming is her failure to effectively communicate with Father. In fact, she avoids communication with him as often as possible. This is unfortunate. Under the terms of the March 25 order, Mother must do better. On the other hand, while Mother’s communication with Father has been poor, she has done nothing, under the evidence in this case, to denigrate Father in the eyes of the children or to hinder his relationship with them.

Maternal grandmother, Nedra Michael, has been a positive influence in the lives of Nathan and Addison. Because Mother maintains regular contact with her mother who lives in this area, it is anticipated that the maternal grandmother will remain involved in the children’s lives and that is a good thing. Father has a good relationship with Ms. Michael. To his credit, he has promoted her relationship with the boys.

From the little evidence that was presented about the paternal grandmother, it appears that she has a loving relationship with the boys and she will build on that once Father relocates to Wisconsin.

Father’s love and concern for his two boys are unquestioned. He has done a good job in providing care for his children and in performing all of the duties that responsible parents perform. This includes the duties in the children’s very young years which Mother also performed. He has taken good care of them over the past year and -five months while he was the primary custodian.

Father has his shortcomings too.

Since Father became primary custodian, he has not facilitated Mother’s contact and relationship with Nathan and Addison. The way that he handles his end of phone conversations when Mother calls his home to talk to the boys is ridiculous. He lets the boys dictate the rules when Mother calls and refuses to put into place what is necessary so that these calls can be worthwhile. This certainly does not convey the message to the children that their Mother plays an important role in their lives and that they need to remain in contact with her during the periods when she had limited contact. It also shows deficiencies in Father’s setting rules for his young children. The way that Father handled these calls over his time as primary custodian was unfair to Mother.

Father, like Mother, communicates as little as possible. The court is expecting a change in him on this topic, too. Father criticized Mother at trial for not attempting to spend more time with the boys than the specific, established custody times in the last order. That position of Father is disingenuous because Father has impeded or made it difficult for Mother to spend extra time with the children. While Mother got to see the boys at the time of the custody conference in January 2010, after an agreement was reached at that conference, that followed Father’s refusal to let her see the boys so that they could go to a birthday party in Maryland.

There was brief testimony at the trial about Mother’s arrival in Pennsylvania for the trial. I only mention this because of the stand that Father takes that Mother has not sought additional time with the children. Mother was supposed to see the children on March 15, the day before the trial began. Father changed that to March 16 for reasons that he did not adequately explain to Mother

Father discussed custody issues with Nathan and promised him something that he had no business promising. He told Nathan that “Daddy needs to move.” He made this statement knowing that the court was going to decide his petition for relocation. When Nathan asked if he and Addison had to go to Mother’s, Father responded “No.” Father did not act in Nathan’s best interest in having this discussion, a discussion begun by Father.

It was difficult to get information from Father about his views and how he responds to Nathan’s bowel movement problem and Addison’s emotional displays. For some reason, Father was not straightforward in his responses to various questions regarding both children. As to Addison, he either was not forthcoming with what he sees in Addison’s emotional displays or minimizes the issue or fails to see that there is a problem at all. If the children remain in the primary care of Father, the court’s concern is that Nathan’s bowel movement problem will not be properly addressed by Father and Addison’s emotional issues will be ignored.

As I indicated earlier, one of the petitions at the trial was Father’s petition to relocate to Wisconsin where he wanted to remain primary physical custodian. Mother objected to the relocation under those circumstances. She had no objection to his relocation if she became the primary physical custodian.

As can be seen, this is not a typical relocation case. Mother has been residing out of state for one year and five months. Her moving to Tennessee was not opposed at that point by Father. Father does not reside in Lehigh County, Pennsylvania. He resides in an adjoining county and wishes to relocate from it. Whether Father remained in the adjoining county or moved to Wisconsin, Mother contested his remaining primary physical custodian.

As an aid in focusing on what is in the best interests of children in a relocation situation, the Pennsylvania Superior Court has set forth factors for the trial court to consider. The factors stated by the Superior Court are:

“First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent.
“Next, the court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it....
“Finally, the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.” Gruber v. Gruber, 400 Pa. Super. 174, 184-85, 583 A.2d 434, 439 (1990).

There is a potential advantage in Father’s move to Wisconsin, namely, he would become employed after a significant period of unemployment and he would be living near his family. He is close with his family and they, particularly his mother and uncle, probably will be a positive factor in the lives of the children. (I say “probably” because these people did not testify and there was little information about them.) The Father’s decision to move to Wisconsin is not the result of a momentary whim.

Mother questioned the desirability of having the boys live in Eagle River, Wisconsin. She had several contentions in this regard. While she did not doubt that Father will be able to move into his family’s home and that the home is adequately sized, she believes that it is dreary and contains dated fixtures and appliances. She believed that the boys will be bored while they live in Eagle River because the area is rural with few young people or attractions in the vicinity. The court rejects these contentions . Father has demonstrated that he can provide a good environment and wonderful opportunities for the children in Eagle River, Wisconsin. Nevertheless, there are other factors too, which I have already discussed, which weigh in the determination of primary custody.

Father’s motives for his move to Wisconsin are understandable and acceptable. He has a chance for employment and for a home near his family. While Mother did not present convincing reasons to oppose the move to Wisconsin, her efforts at trial were focused on convincing the court that it is preferable that she be the primary physical custodian. She has succeeded in doing that.

The parents have already lived under circumstances where Mother had to travel quite a distance to the home of Father in order to spend time with the children. Father’s home near Lehigh County is approximately equidistant with his planned home in Wisconsin, to Mother’s home in Tennessee. Mother has paid all of her transportation expenses to this point. Mother has agreed that, if she were granted primary custody of the children, she would be willing to share the transportation expenses for Father’s trips to Tennessee. Thus, there are available, realistic custody arrangements possible for Father to remain meaningfully involved in the children’s lives whether Father resides in Pennsylvania or Wisconsin.

After my assessment of the parties, which is crucial in this case, and consideration of all of the factors that I have discussed in this opinion, it is clear that the best interests of the children require that Mother be made the primary physical custodian of the children with meaningful partial custody rights granted to Father. Both parents have the opportunity to remain involved in their children’s lives and to be influential caregivers as the boys grow to adulthood. The parents’ lives can be made easier and their children benefit if both parents now make the effort to communicate with each other as often as possible about the children and to actually be kind to each other for the sake of their sons.


author: FORD, J.

text:
    Citizens Bank v. Macungie Crossings L.L.C.

      Magdeline D. Coleman, for the plaintiff.

      Bruce H. White, for the defendant.
    March 12, 2010
   FORD, J.

This is a foreclosure action involving the appointment of a receiver. Opus East LLC contracted to develop and construct a three-building manufacturing and distribution center in Lehigh County which was to be called Lehigh Valley Crossing. In order to complete work on the distribution center, Opus formed three limited liability companies, Macungie Crossings I L.L.C., Macungie Crossings II L.L.C., and Macungie Crossings III L.L.C. Macungie acted as the owner and developer of the distribution center.

To obtain funding for the completion of the distribution center, Macungie obtained a loan from plaintiff Citizens Bank, in the principal amount of $35,900,000. This loan was secured by the distribution center property.

Shortly thereafter, Opus entered contracts with a number of third-party subcontractors who are now requesting court permission to file suit against Citizens Bank and a receiver, CB Richard Ellis/Pittsburgh LP, which does business as CB Richard Ellis. These third-party subcontractors are S.A. Comunale Co. Inc., Perley-Halladay Associates Inc., J.R Neuber Jr. General Contractor Inc., Wolfe Roofing and Sheet Metal Inc., Earth Engineering Inc., Four-Quarters Inc., Ace Electrical Inc., Earth Care Inc. (these subcontractors will be referred to collectively as movants).

Macungie stopped work on the distribution center. Macungie also defaulted on its loan obligation to Citizens Bank. Accordingly, Citizens Bank brought this foreclosure action. In a number of documents in this case, Macungie acknowledged its default on the loan.

On July 1,2009, the parties to this litigation submitted an 18-page “stipulated consent order appointing receiver.” There is no indication that movants had any hand in deciding the content of this order. I signed this order appointing receiver. Under this order, receiver was given broad powers to preserve assets and minimize losses as a result of the default.

On July 22,2009, the parties presented their “consent judgment for foreclosure” to me. On July 22,1 signed this consent judgment for foreclosure in favor of Citizens Bank and against Macungie for $22,604,025.72 plus interest, other costs and expenses.

During the course of the project, Opus East and/or Macungie submitted requisitions for payment to Citizens Bank, which in turn released funds directly to Opus East and/or Macungie for payment to the subcontractors. The movants allege that, while a certain portion of those funds was forwarded to some of the movants, Opus East and/ or Macungie failed to distribute at least one portion of the released funds totaling $ 1,317,859. These funds were deposited by Citizens Bank into an account operated by Opus East and/or Macungie at Wilmington Trust & Bank. Citizens Bank and Macungie agreed in the July 1 order that the released funds represent the total balance of construction loan funds received but not yet applied to the costs of the distribution center project.

In the motion before the court, movants are attempting to gain access to the funds held at Wilmington Trust to partially pay them for the remainder that is still owed to them. Movants ask permission of the court to file suit against Citizens Bank and receiver because under the terms of the July 1 order, they must receive court permission to sue receiver. In an order entered today, movants are granted the permission they seek.

In addition to what is explained above, there are several other provisions of the July 1 order which must be considered in deciding the present contest. One of these is paragraph 25 of the July 1 order. It directs receiver to remit the proceeds of all the property and business assets of Macungie to Citizens Bank and other creditors in order of priority.

Another is paragraph 24 of the July 1 order which ■reads in part:

“In no event shall the receiver be liable to anyone for good faith compliance with their duties and responsibilities, nor shall the receiver, its employees or advisors be liable to anyone for any actions taken or omitted by them except upon a finding by this court that they acted or failed to act as a result of malfeasance, bad faith, gross negligence or reckless disregard of their duties.” (emphasis added)

There is no mechanism at any place in the July 1 stipulated order for the court to explore whether a finding should be made, under paragraph 24, that receiver “acted or failed to act as a result of malfeasance, bad faith, gross negligence or reckless disregard of their duties'.”

Also pertinent to the present inquiry is part of paragraph 30 of the July 1 order which reads:

“Excluding plaintiff (Citizens Bank), all directors, equity owners, creditors, and other persons, and all others acting on behalf of any such equity owner, creditor or other persons, including sheriffs, marshals, other officers, deputies, servants, agents, employees and attorneys are enjoined from:
“(a) Commencing, prosecuting, continuing or enforcing any suit or proceeding in law, equity, bankruptcy, or otherwise against or affecting defendants (Macungie) or any part of the property or business assets without first obtaining leave of this court except that such actions may be filed to toll any statutes of limitations...(emphasis added)

In their effort to get the court to grant leave to file suit against receiver, movants have attached exhibit B to their present motion. Exhibit B is movants’ proposed complaint if they are granted permission to sue. This complaint sets forth several causes of action against receiver and Citizens Bank, including counts for conversion, breach of fiduciary duty, civil conspiracy and unjust enrichment. It appears that movants would leave it to final action on their proposed complaint for the determination under paragraph 24 of the July 1 order on the question of whether receiver is guilty of malfeasance or other misconduct.

Citizens Bank defends the subject motion for leave to file suit by addressing each cause of action set forth in the proposed complaint with what is, in essence, a demurrer to each count of the proposed complaint combined with factual arguments.

The parties agree as to some of the legal principles that apply to the present contest. As the parties point out, “unless authorized by statute, a suit cannot be brought against a receiver without the permission of the court which appointed him.” Warner v. Conn, 347 Pa. 617, 620, 32 A.2d 740, 741 (1943). Additionally, “[i]t is for that court, in its discretion, to decide whether it will determine for itself all claims of or against the receiver, or will allow them to be litigated elsewhere.” Id. at 620, 32 A.2d at 742.

Also applicable is the following:

“[W]here receivers have, vitute officii, possession of property in which a third party has an interest which is paramount to that of the receivers, the court appointing them should, upon proper application, give leave to such third party to enforce, in the appropriate court, his claim to the property in a suit against the receivers, and a refusal to give such leave, when duly and properly applied for, is reversible error unless it clearly and certainly appears that the petitioner’s alleged claim is not valid." Meehan v. Connell Anthracite Mining Co., 318 Pa. 481, 488-89, 178 A. 833, 836 (1935). (emphasis added)

The proposed complaint appears to be well drafted. It sets, forth the causes of action indicated, above against Citizens Bank and receiver. The presentation of this proposed complaint against receiver is not precluded in the July 1 order as a way to convince the court that those who are allegedly aggrieved by receiver should be given permission to sue receiver. In fact, as pointed out, the July 1 order sets up no mechanism for the court to decide if permission to sue receiver should be given. As I also pointed out, this order was drafted and then presented to the court by Citizens Bank and Macungie with no apparent input from movants. Under these circumstances, movants have given reason, with the proposed complaint, that they should be allowed to air their grievances in court. Their allegations are serious and the amount held in Wilmington Trust is substantial. The court, in the exercise of its discretion, hereby grants movants permission to move forward with their complaint against Citizens Bank and receiver.

The arguments presented by Citizens Bank, in opposition to this motion, are far outweighed by the need to have the serious allegations decided by the court in proceedings in which each party will have the opportunity to fully present its position.


author: LASH J.,

text:
    Rivera v. Pineiro-Garcia

      Peter David Maynard, for the plaintiff.

      Jacqueline R. Mark, for the defendant.
    April 8, 2010
   LASH J.,

The matter before this court is the petition of plaintiff, Alexis Rivera (Father), to modify the child custody order entered in this case by agreement on December 15,2008, regarding custody of the parties’ minor child, Aron J. Pineiro, bom September 28, 2007. Trial was held on April 6, 2010. The Court enters the following Findings of Fact:

I. FINDINGS OF FACT

(1) Plaintiff, Alexis Rivera (Father), is an adult individual who currently resides at 916 Moss Street, Reading, Berks County, Pennsylvania 19604.

(2) Defendant, Yahaira Pineiro-Garcia (Mother), is an adult individual who currently resides at 1008 Scott Street, Reading, Berks County, Pennsylvania 19611.

(3) The parties are the natural parents of Aron J. Pineiro, bom September 28, 2007 (minor child).

(4) This matter initially came before the court through Father’s complaint for custody filed September 16,2008. After appearing before a custody master, the parties agreed to resolve the case, as set forth in an order entered December 15, 2008. That order provided, among other things, that Mother would have primary physical custody of the minor child and Father would have partial custody every Monday, Wednesday, and Friday from 11 a.m. until 1 p.m., and alternate weekends from Saturday at 1 p.m. until 7 p.m., and Sunday from 1 p.m. until 7 p.m. Father’s custody time was to be supervised by the paternal grandmother, Luz Rivera, who would also provide all transportation.

(5) On May 19, 2009, Father filed a petition to modify the custody order in conjunction with a motion to hold Mother in contempt, setting forth, among other things, that Mother had refused to allow Father to visit with the minor child, that the minor child suffered injuries from unknown sources requiring Father to take the minor child to the hospital, and because Mother’s home is unclean and unsanitary, and the minor child’s continued residence there would not be in the minor child’s best interest.

(6) The matter was set for a hearing on June 10,2009. At that time, the parties reached an agreement whereby the order of December 15, 2008 would be modified to provide, among other things, that Mother would have primary physical custody and Father would have partial physical custody every Monday, Wednesday, and Friday from 11 a.m. to 3 p.m., and on alternate weekends from Saturday at 11 a.m. until 6 p.m., and Sunday from 11 a.m. until 6 p.m. The requirement that Father’s visits be supervised was rescinded. Father withdrew his petition for contempt.

(7) On or about August 11, 2009, Father filed the within petition for modification, alleging, among other things, that Father never agreed to the terms for modification as set forth in the order of June 30, 2009. Father requested that he be granted primary physical custody of the minor child.

(8) Father currently resides with his parents, Luz and Juan Rivera, in a four-bedroom home. Also residing there temporarily-is Father’s 10-year-old cousin, Juan Louis Rivera.

(9) Father has never been employed. He receives SSI due to mental limitations, which Father described as being “slow.”

(10) Mother resides in a three-bedroom home with the subject minor child and her other three children, Yarelis, age 7, Angel, age 4, and Yasteris, 10 months. Mother has a steady boyfriend, who occasionally stays over on weekends.

(11) Mother is also unemployed, since January 2010.

(12) The minor child used to spend weekdays in daycare, however, Mother cancelled the daycare for financial reasons after losing her employment.

(13) The minor child is considered developmentally delayed, currently functioning at the level of a 1 and 1/2 year old, with speech impediments. The minor child receives speech therapy twice a week.

(14) There were several protection from abuse petitions filed by the parties. Mother obtained a final order against Father, by agreement without admission, on June 11, 2008, for a period of one year. Father obtained a temporary order against Mother on his own behalf in a separate matter, and obtained one on behalf of the minor child and against Mother, both of which were subsequently withdrawn by Father.

II. DISCUSSION

Father is seeking a 50/50 shared custody arrangement on a week-on, week-off basis. Mother desires to retain primary custody, although she is willing to grant expanded time to Father to permit overnights on weekends, in addition to the time already provided under the order of June 30, 2009. In making disposition, this court considered the testimony of the parties and the exhibits submitted.

The primary thrust of Father’s argument is that he is being denied time with the minor child. He did not know Mother’s current address. He does have her cell phone number, however, she does not answer the phone when he calls. Father states that Mother’s boyfriend is antagonistic toward him. As a result, Father tries to avoid any direct contact with Mother or the boyfriend and, therefore, does not pick the minor child up on weekends, limiting himself to picking up the minor child from daycare on weekdays. However, since the minor child no longer goes to daycare, his time is further limited. Father has relied on the paternal grandmother to pick up the minor child on his behalf, however, this is now a problem because of hard feelings between her and Mother.

Father believes he can provide a good household for the minor child, when he has the minor child, they interact in a playful manner. His house is spacious. He is always available to care for the minor child, as is the paternal grandparents, who also do not work.

. Mother provides a different point of view. She states that she would like Father to have the minor child during his times and other times when he asks, however, he does not ask, and even declines visits when Mother inquires whether he would want some time. While Mother agrees that Father loves the minor child a great deal, she questions the extent of his commitment.

On the other hand, the paternal grandmother was very active in obtaining as much custody time with the minor child as possible. Initially, Mother agreed to allow the paternal grandmother to pick up the minor child whenever she asked. However, the paternal grandmother would seek time nearly every day. As a result, Mother began insisting on following the schedule contained in the court order. Mother states that the paternal grandmother then became upset and since that time, the two have had hard feelings. The paternal grandmother stopped picking up the minor child, and since Father was only sporadically involved in picking up the minor child, his visits became even less frequent.

Mother notes that Father has not been involved in the minor child’s speech therapy, nor with medical visits or treatments. The minor child had to have surgery on his ears to implant tubes. Father did not participate. Father states that he would have participated, however, Mother never notified him of medical appointments. The speech sessions also create logistical concerns, as the therapist conducts the sessions at the minor child’s home. As neither party feels comfortable in the other person’s home, and since Mother was the party involved in the speech therapy, all speech therapy sessions were ultimately conducted at Mother’s house, with Father not being present.

At issue is primary physical custody. The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

This custody dispute appears to stem from two problems. First, the parties do not communicate with each other. This problem is exacerbated by Father’s limitations. Secondly, there are hard feelings between Father and Mother’s boyfriend and also between Mother and the paternal grandmother. Because these problems exist, Father has had limited contact with the minor child.

The parties are going to have to make a greater effort in working together. Because of Father’s limitations, the paternal grandmother should be able to be involved in facilitating the transfer of the minor child, but should not otherwise interfere. Further, she should not get upset because Mother insists on following the schedule contained in the order. Additionally, Mother should advise her boyfriend to cease his interaction with Father during custody transfers. For his part, Father should make more of an effort to spend time with his minor child, not accepting any difficulty that arises as an excuse.

This court is not. prepared to award shared custody. Mother’s proposal to permit Father to have custody every other weekend starting on Friday at 11 a.m. until Monday at 3 p.m. makes sense. Father would otherwise retain his normal Monday, Wednesday, and Friday schedule. The parties would share transportation equally, with the party with custody dropping off the minor child. Dropping off rather than picking up may alleviate some of the issues raised in this matter.

We enter the following order:

ORDER

And now, April 8,2010, after trial held, custody of the parties’ minor child, Aron J. Pineiro, bom September 28, 2007, shall be as follows:

(1) The parties shall share legal custody of the minor child.

(2) Defendant, Yahaira Pineiro-Garcia (Mother), shall have primary physical custody of the minor child.

(3) Plaintiff, Alexis Rivera (Father), shall have partial custody of the minor child as follows:

(A) Every other weekend from Friday at 11 a.m. to the following Monday at 3 p.m.;

(B) Every Monday, Wednesday, and Friday from 11 a.m. to 3 p.m.; and

(C) At such other times as the parties may agree.

(4) Mother shall have custody on Mother’s Day and Father on Father’s Day each year from 8 a.m. to 6 p.m.

(5) The parties shall alternate the Christmas holiday such that in even-numbered years, Mother shall have custody from December 24 at 2 p.m. to December 25 at 2 p.m., then Father shall have December 25 at 2 p.m. to December 26 at 2 p.m., with the schedule to be reversed in odd-numbered years.

(6) The parties shall alternate the following named holidays, from 8 a.m. to 8 p.m., with Mother having the next holiday after the date of this order: Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving.

(7) Each party shall be entitled to one week of uninterrupted time with the minor child for purposes of vacation. The vacationing party shall provide the non-vacationing party with written notice at least 30 days in advance. If there is a conflict in the vacation schedule, Mother’s presence shall control in odd-numbered years and Father’s in even-numbered years.

(8) The holiday and vacation schedules shall take precedence over the regular custody schedule.

(9) The parties shall share transportation equally, with the party having custody of the minor child dropping off the minor child at the other party’s home, unless the parties agree to some other arrangement.

(10) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.

(B) The right to be fully informed concerning the . progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

(2) In the event of any serious illness of the child at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

(3)Neither party shall alienate nor permit to attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

(4)Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three days.

(5)The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

(6)The parties shall, at all times, consider the child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7)Neither party shall question the child as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of spy.

(8)The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.

'(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.

(D) The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa. R.C.P. 1915.12.