author: NEALON, J.,

text:
    Commonwealth v. Pal

      C.P. of Lackawanna County,
    No. 13 CR 2269

      Eugene M. Talerico, Jr., William J. Fisher and Brian J. Gallagher, for Commonwealth.

      Paul J. Walker and Matthew Comerford, for defendant.
    November 27, 2013
   NEALON, J.,

Defendant, who has been charged with murder in the first degree and is facing a maximum sentence of life imprisonment, has filed a motion for bail pursuant to Article I, §14 of the Pennsylvania Constitution. Defendant contends that the magisterial district judge’s preliminary hearing finding of a prima facie case of murder in the first degree does not render defendant ineligible for bail, and further argues that the trial judge must conduct a bail hearing and independently conclude that there is “clear and convincing evidence” of defendant’s guilt of an offense punishable by life imprisonment in order to deny defendant’s request for bail. The Commonwealth submits that once the magisterial district judge found a prima facie case of first-degree murder at the conclusion of the preliminary hearing, the defendant no longer qualified for bail. In the alternative, the Commonwealth maintains that bail should be denied if the undersigned conducts a de novo review of the preliminary hearing evidence and finds that a prima facie case has been established.

Under Article I, §14 of the Constitution, a defendant who has been charged with first-degree murder is not entitled to bail “when the proof is evident or presumption great” that [s]he committed that offense for which the maximum sentence is life imprisonment. To satisfy that burden of proof, the Commonwealth must present evidence at a bail hearing which establishes a prima facie case of murder in the first degree, rather than clear and convincing evidence of that offense. Viewing the evidence in the light most favorable to the Commonwealth, and affording the prosecution the benefit of all inferences reasonably drawn from that evidence which would support a guilty verdict, our independent review of the Commonwealth’s evidence confirms the existence of a prima facie case of defendant’s accomplice and conspiratorial liability for first-degree murder. Therefore, defendant is not entitled to bail under Article I, §14 of the Constitution and 42 Pa.C.S.A. §5701, and his motion for bail will be denied.

I. FACTUAL BACKGROUND

After a Dunmore resident, Frank Bonacci (“Bonacci”), failed to report to work or home on July 20, 2013, (Transcript of Proceedings, Preliminary Hearing (“T.P.”) on 10/11/13 atpp. 36-37), the Dunmore Police Department initiated a “missing person” investigation. (T.P. 10/15/13 at pp. 217-219). On the evening of July 27, 2013, Bonacci’s lifeless body was discovered inside his Jeep Liberty that had crashed at the bottom of a steep embankment near the Roaring Brook Step Falls, approximately .72 miles from Ridge Row. (T.R 10/11/13 atpp. 10-12, 17). Bonacci was found in the front passenger seat with an apparent fatal gunshot wound to the base of his skull, and a large rock was positioned on the vehicle’s accelerator. (Id. at pp. 21, 30-31; T.P. 10/15/13 at p. 93).

The Crime Scene Unit of the Scranton Police Department was summoned to the Step Falls crime site which was situated adjacent to a railroad right-of-way near the University of Scranton tennis courts. (T.P 10/15/13 at pp. 73, 77-79). Based upon the pooling, flow patterns and saturation ofthe decedent’s blood, the position ofBonacci’s body, the intact placement of his flip-flop sandals on his feet, and the absence of any blood transfer evidence, the police concluded that Bonacci had been shot in the back of his head while he was a front seat passenger in the Jeep Liberty as it was level. (Id. at pp. 81-92, 125-126, 134-136). The Crime Scene Unit detectives also determined that the shooter was seated in the passenger side, rear seat of the vehicle at the time that Bonacci was fatally shot. (Id. atpp. 92-93, 117-118, 140-141). Additionally, based upon the tire acceleration marks at the scene, the large rock present on the vehicle accelerator, and the location of Bonacci’s body in the front passenger seat with his sandals still positioned on his feet, the investigators concluded that Bonacci was not operating his Jeep when it plunged down the seventy-two foot embankment. (Id. at pp. 92-94).

During the ensuing autopsy, a bullet projectile was retrieved from Bonacci’s head and provided to the investigating police. (T.P 10/11/13 at pp. 19-20, 24). Examination of that projectile by the Pennsylvania State Police Crime Laboratory determined that the projectile was a wad-cutter type bullet commonly used with a .38 caliber handgun. (T.P. 10/15/13 at pp. 94-96, 120). The police also discovered another unused .38 caliber wad-cutter bullet near the crime scene. (Id. atpp. 102-103). The forensic pathologist who conducted the autopsy concluded that Bonacci died of a single gunshot wound to the head, and his manner of death was classified as homicide. (T.P. 10/11/13 atpp. 17-18).

The police investigation revealed that Bonacci had last been seen alive at approximately 6:50 AM on July 20,2013, as he was walking with defendant, Neil Pal (“Pal”), and Jason Dominick (“Dominick”) to Bonacci’s Jeep which was parked in an alley adjacent to Pal’s residence at 1419 Linden Street, Scranton. (T.P. 10/11/13 at pp. 54-55, 83-84). The investigators also learned of a history of hostility between Dominick and Bonacci involving Dominick’s long time paramour, Ms. Keri Tucker. Dominick’s friend, Christopher Genovese, stated that although Dominick was usually “laid back,” he became a “crazy, obsessive-type” person with Ms. Tucker and would “freak out” in matters involving her. (T.P. 10/15/13 atpp. 13,32-33). For example, when Dominick discovered that Mr. Genovese had forwarded a text message to Ms. Tucker during a period that she and Dominick were no longer dating, he traveled to Mr. Genovese’s place of employment and initiated a physical altercation with Mr. Genovese. (T.P. 10/11/13 atpp. 199-200, 248; T.P. 10/15/13 atpp. 10-11, 25,30-31).

Although Dominick and Ms. Tucker dated from more than four years, they ceased dating in February 2013 and Ms. Tucker began a romantic relationship with Bonacci in March2013. (T.P. 10/11/13 atpp. 195,197-198,246,249). Bonacci and Ms. Tucker dated from March 2013 through May 2013. (Id. at p. 202). On May 5, 2013, Dominick forwarded a text message to Pal which read, “[j]ust so you know, Neil [Pal], I’m cool with your boy, Frank [Bonacci], but if he ever gets cocky around me, I will just snuff him.” (T.P. 10/15/13 atp. 49).

After Bonacci and Ms. Tucker ended their amorous relationship, Bonacci saw Dominick at a Scranton bar in the early morning of June 8, 2013, and shook his hand. (T.P. 10/11/13 at pp. 202-203, 250). However, upon later seeing Dominick and Ms. Tucker together at that bar, Bonacci walked past them and “shoulder bumped” Tucker as he exited the bar. {Id. atpp. 203-204,206,241,251). At 2:24 AM on that date, Bonacci forwarded a text message to Dominick which stated:

Bro, you shook my hand tonight and said everything was good. WTF? Haha, you did real good. I fucked her last night. Have fun with your broken woman.

(T.P. 10/15/13 atpp. 51-52, 63-64).

Dominick became incensed upon reading Bonacci’s text message and immediately called him on his cell phone and challenged him to meet at Step Falls in order to fight. (T.P. 10/11/13 atpp. 204,207,240,242-243, 251-252). At 2:38 AM, Bonacci transmitted a text message to Pal that stated: “[y]o, your boy Jason [Dominick] is trying to fight me right now.” (T.P. 10/15/13 atpp. 52,57,66). Dominick, Ms. Tucker and a third individual travelled to Step Falls where they met Pal and awaited Bonacci’s arrival. (T.P. 10/11/13 at pp. 207-208). Pal spoke to Bonacci on his cell phone and encouraged him to fight Dominick at Step Falls, assuring him that it would be “a one-on-one fight if he did come down.” {Id. at pp. 208-209). However, Bonacci declined the invitation and the fight at Step Falls never occurred. {Id. at pp. 209-210,244,253). A few days later, Dominick and Bonacci met at Pal’s residence and reportedly resolved their differences for the time being. {Id. atpp. 210-245, 253).

On My 18, 2013, at 12:37 AM, Bonacci sent a text message to Ms. Tucker as she was laying in bed with Dominick. {Id. at pp. 212-213). The text message was transmitted in two separate sequences, and Dominick only viewed the first transmission. {Id. at p. 213). In his first text message, Bonacci stated:

Sony it’s late, but I just wanted to say I’m sorry for everything I did when we were together. That wasn’t the real me at the time. I know it sounds fucked up, but I felt different about you than I did with any other girl. I really do care about you and always will.

{Id. atp. 214; T.P. 10/15/13 atp. 53). Dominick never read the second text message from Bonacci which read:

And I hope the best for you and that you [will] be happy in everything you do. Sorry it seems random, but it took me awhile to get over you to be okay.

(T.P. 10/11/13 atpp. 213-214; T.P. 10/15/13 atp. 53).

Later that same day, Dominick attended a party at Pal’s residence. (T.P. 10/11/13 at pp.215-216). That party continued into the early morning of My 19, 2013, and Bonacci was also present at that party. {Id. at pp. 2lb-217). At 12:04 AM on My 19,2013, Dominick forwarded a text message to Ms. Tucker while he was present at Pal’s house, and stated: “[y]our boyfriend, Frankie [Bonacci], is here and [I] wouldn’t be surprised if he is texting [you] because he knows I’m here and not with you.” {Id. at p. 219; T.P. 10/15/13 at p. 54). After Dominick and Ms. Tucker exchanged text messages in which Dominick confirmed that he was at Pal’s residence, Dominick transmitted another text message to Ms. Tucker at 2:25 AM which read “I hope [Bonacci] didn’t leave to see you.” (T.P. 10/11/13 at pp. 220-221; T.P. 10/15/13 at p. 54). Ms. Tucker then unsuccessfully attempted to speak to Dominick by cell phone, (T.P. 10/15/13 atpp. 67-68), and Dominick forwarded a responsive text message stating “I can’t hear you” and “[p] lease sleep alone tonight.” (T.P. 10/11/13 atpp. 221-222; T.P. 10/15/13 atp. 54).

More than four hours later, Ms. Tucker received another text message from Dominick at 4:56 AM on July 19,2013, which read:

Didn’t do anything wrong. I’m in front of your boyfriend, Frank [Bonacci], and [Christopher Genovese] because Justin [Collaruso] got into a seriously bad car accident. We are going to CMC now. If you don’t want me to go to your house after, fuck off and stop talking to me.

(T.P. 10/11/13 at p. 225). At 6:14 AM, Dominick texted Ms. Tucker “[c]oming now,” but she did not respond since she was sleeping. {Id. at pp. 227-228). Dominick eventually arrived at Ms. Tucker’s apartment shortly before 8:00 AM, and initiated an argument with her because her friends were sleeping on her floor. {Id. at pp. 228-229). A fight ensued during which Dominick called Ms. Tucker a derogatory, profane term and “spit on [her], so [she] hit him.” {Id. at p. 229). After Ms. Tucker ordered Dominick to leave, he sent her a text message at 8:07 AM stating “[w]atch how you regret what you did to me this morning when you find out on the news what happened.” {Id. at pp. 230-231). Finally, at 8:30 AM on July 19,2013, Dominick forwarded an additional text message to Ms. Tucker that read:

If you’re not going to stop me now, you’re going to find a hard reality if you think I’m kidding. Salute Keri Lee Tucker, I love so much...I love you. I really tried, babe. My towel is yours.

(Id. at p. 232).

The police investigation disclosed that Dominick and Pal “were best friends” since sophomore year at Scranton High School, (T.P. 10/11/13 at pp. 92-93), and even had “La Familia” tattoos signifying their close bond. (Id. at pp. 93-94, 116, 236; T.P. 10/15/13 at pp. 9, 24). The “La Familia” tattoos were intended to symbolize that “if something happened to one of them, they kind of took it as something happened to all of them like a family.” (T.P. 10/11/13 at p. 93). The investigation also established that although Dominick did not own a gun, (T.P. 10/11/13 at p. 259; T.P. 10/15/13 at p. 29), Pal owned a .38 caliber black hand gun that he prominently displayed in his waistband when he was in public. (T.P. 10/11/13 at pp. 97-100,118,128; T.P. 10/15/13 atpp. 7,20,21). Cameron Kashmer attested that he purchased a .38 caliber gun from an unidentified African American male at Pal’s garage, but later gave it to Pal in March 2013 to help defray a gambling debt that he owed to Pal. (T.P. 10/11/13 at pp. 171-175, 185-186, 190).

On the same day that Dominick forwarded the foregoing text messages to Ms. Tucker and engaged in a verbal and physical altercation with her, and one day after he had viewed Bonacci’s text message to Ms. Tucker expressing continuing feelings for her, Pal hosted another party at his residence which began in the evening of July 19, 2013. Pal and Dominick were both present at that party, and Dominick was wearing a tee shirt, shorts and sneakers at that time. (T.P. 10/11/13 at pp. 48-49, 101-102; T.P. 10/15/13 atpp. 14-15, 17-18, 154-157). The party lasted for close to 12 hours and the attendees were participating in drinking games on the back deck of the residence. (T.P. 10/11/13 atpp. 45-48, 66; T.P. 10/15/13 atpp. 17-18,154-155). Bonacci arrived at Pal’s party at approximately 2:00 AM on July 20, 2013. (T.P. 10/11/13 at pp. 48, 74, 159; T.P. 10/15/13 atpp. 15, 154, 164). Shortly after 3:00 AM, two attendees, Sam Senuk and Alyssa Antonio, retired from the party and entered Pal’s basement where they fell asleep. (T.P. 10/11/13 atpp. 159-161, 164, 166; T.P. 10/15/13 at pp. 155-156). At that time, Pal told Mr. Senuk that “[s]omebody was messing with Frankie [Bonacci].” (T.P. 10/11/13 atp. 161).

With the exception of Pal, Dominick, Bonacci and Brandon Emily, everyone in attendance at Pal’s party had either departed or fallen asleep by 5:00 AM. (T.P. 10/11/13 atpp. 49-50, 67-68; T.P. 10/15/13 atpp. 15,18-19). While those four individuals were standing on Pal’s back deck at approximately 6:50 AM, Pal advised Mr. Emily that Pal was driving Dominick and Bonacci to their homes in Bonacci’s Jeep. (T.P. 10/11/13 at pp. 51-53, 68, 81-82). Mr. Emily observed Pal, Dominick and Bonacci as they departed the back deck, walked down the adjacent alley and toward Bonacci’s Jeep which was parked alongside Pal’s garage. (Id. atpp. 53-56, 61-62, 83; T.P. 10/15/13 at pp. 225-226). Approximately 45 seconds later, Mr. Emily “heard Frankie’s Jeep start up” and drive away. (T.P. 10/11/13 atpp. 54-55, 83-84).

University of Scranton security cameras located near its Ridge Row tennis courts depict Bonacci’s Jeep crossing the Ridge Row railroad tracks into the University of Scranton’s tennis courts parking lot, less than one mile from Pal’s residence, at 6:51 AM. (T.P. 10/15/13 at pp. 195, 227-231). After Pal, Dominick and Bonacci had departed in Bonacci’s vehicle, Mr. Emily sat on Pal’s back deck until 7:11 AM when Mr. Emily’s friend, Cory Riley, arrived to drive Mr. Emily home. (T.P. 10/11/13 at pp. 51-52, 57-58, 60-61). Between 7:18 AM and 7:33 AM, Pal initiated a series of calls to Maribeth Castaldi’s cell phone during which he inquired whether she was alone and could pick him up in her car. (T.P. 10/11/13 at pp. 102-105). Based upon their cell phone conversations, Ms. Castaldi retrieved Pal and Dominick as they were standing near the University of Scranton/Lackawanna College sign on the Central Scranton Expressway ramp from Route 81 South, and proceeded to drive them to Pal’s residence on Linden Street. (Id atpp. 105-106,111-112,123-124,129-130). The exit ramp location where Ms. Castaldi collected Pal and Dominick is approximately 800 yards from where Bonacci’s body and vehicle were found on July 27, 2013. (T.P. 10/15/13 at pp. 233, 256-257). Although Ms. Castaldi’s boyfriend, Sean Barass, was present at Pal’s home when she, Pal and Dominick arrived there on July 20, 2013, Ms. Castaldi did not disturb Mr. Barass since he was still asleep. (Id. atpp. 112-124-125).

At 8:30 AM, Dominick awakened Alyssa Antonio and Sam Senuk after Mr. Senuk’s mother had arrived at Pal’s residence to ensure that Mr. Senuk was not late for work. (T.P. 10/11/13 atpp. 167-168; T.P. 10/15/13 atpp. 156-157). When Dominick awakened Ms. Antonio, he was no longer wearing a shirt. (T.P. 10/15/13 at p. 157). Dominick, Pal, Sean Barass, Joe Barass and Ms. Antonio then drove to a local diner to eat breakfast. (Id. at pp. 158-159). Although Dominick had been wearing a tee shirt and sneakers during Pal’s party, he wore flip-flop sandals and a pink button-down shirt of Pal’s when they left for breakfast. (Id. at pp. 159-169). Police subsequently concluded that Pal and Dominick had burned their blood-stained clothes at Pal’s residence. (T.P. 10/15/13 atpp. 248-249).

Later that same day, Keri Tucker noticed that Dominick had a bum mark on his hand, and when she asked him how it had occurred, he stated that he had burned it while making pizza in her oven. (T.P. 10/11/13 at pp. 236-238). After Bonacci was reported missing, Pal and Dominick advised their friends that when Pal and Dominick arrived atBonacci’s Jeep on the morning of July 20,2013, Bonacci declined to permit Pal and Dominick to travel with him and instead left Pal’s party alone in his Jeep. (T.P. 10/11/13 at p. 234). Pal and Dominick provided that same version of events when they were first interviewed by the police. (T.P. 10/15/13 at pp. 177, 180, 189-190, 237-241). In those accounts, Pal and Dominick claimed that instead of walking back to the rear deck (i.e., where Brandon Emily was standing) after Bonacci had allegedly refused to travel with them, they returned to Pal’s residence via a circuitous route in which they travelled through neighbors’ yards and entered Pal’s home by way of the front door. (Id. at pp. 190, 237-241).

When Pal was interviewed by the Dunmore Police on July 23, 2013, he referred to Bonacci in the past tense, thereby indicating to the investigators that “he knew that Frank Bonacci was dead already.” (Id. at pp. 223-224). On July 27, 2013, Pal provided conflicting accounts to a friend, David Edsell, concerning the direction that Bonacci travelled when he purportedly left Pal’s party alone on the morning of July 20, 2013. (T.P. 10/11/13 at pp. 146-148, 153). In addition, when Pal spoke to Maribeth Castaldi on the morning of August 1,2013, he instructed her to tell the police that when he telephoned her shortly after 7:00 AM on July 20,2013, he had called to request that she provide her boyfriend, Sean Barass, “a ride home, and [she] said that [she] couldn’t because [she] had to work.” (Id. at pp. 113, 126-127, 136-138).

Later on August 1, 2013, Pal was interviewed by Scranton Police detectives regarding Bonacci’s murder. (T.P. 10/15/13 at pp. 233-235). After advising Pal of his Miranda rights and securing written waivers of his rights to counsel and to remain silent, the detectives questioned Pal, at which time that he again claimed that Bonacci had declined Pal’s offer to drive Bonacci and Dominick in Bonacci’s Jeep, and had instead departed Pal’s residence alone in his own vehicle. (T.P. 10/15/13 at pp. 235-240). During the initial portion of his interview, Pal “was very matter of fact” with his responses and displayed a rather relaxed demeanor. (Id. at p. 242).

However, Pal “basically froze” and his “entire demeanor changed” once the detectives confronted him with incriminating evidence, including cell phone records and the University of Scranton videotape surveillance, and advised him that Maribeth Castaldi had admitted transporting Pal and Dominick from the Central Scranton Expressway ramp to Pal’s residence shortly before 8:00 AM on July 20, 2013. (Id. at pp. 242-243). Pal began “sweating profusely,” “took deep breaths as if he was inhaling heavily,” and “put his head in his hands and just shook it back and forth” repeatedly. (Id. at pp. 243-244). He also “engaged in lip licking repeatedly” and “was swallowing heavily” as he “had tears in his eyes.” (Id. at p. 246). He then stated “you don’t need me to tell you, you already know what happened, you can make your case.” (Id.). Pal was arrested at that time, and a search of his garage on August 2, 2013, uncovered a spent .38 caliber casing and more than 240 bullet holes in the walls. (Id. at pp. 108-109,246). The head stamp on the .3 8 caliber round that was discovered near the crime scene was identical to the head stamp on the .38 caliber casing retrieved from Pal’s garage. (Id. atpp. 114, 119-120).

Pal was originally charged with criminal homicide as a principal, criminal conspiracy to commit homicide, and accomplice liability for criminal homicide, but on October 11, 2013, the Commonwealth withdrew the charge of criminal homicide as a principal. (T.P. 10/11/13 at p. 6). At the conclusion of preliminary hearings that were conducted on October 11, 2013, and October 15, 2013, the criminal charges against Pal were bound over for trial. (T.P. 10/15/13 at pp. 274-275). On October 30, 2013, the Commonwealth filed a Criminal Information charging Pal with murder of the first degree as an accomplice, murder of the third degree as an accomplice, criminal conspiracy to commit murder of the first degree, and criminal conspiracy to commit murder of the third degree. (See Criminal Information, Counts I-IV).

On October 31, 2013, Pal filed a “Motion for Bail” which was made returnable for a hearing on November 25,2013. Pal avers that he is eligible for bail under Article I, §14 of the Pennsylvania Constitution, and asserts that “the mere fact that the Commonwealth established a prima facie case of first degree murder at a preliminary hearing against a defendant does not render that defendant ineligible for bail.” (Defendant’s Motion for Bail at ¶¶3, 17). Pal submits that the trial court must conduct “its own evidentiary hearing” and “determine that ‘the proof is evident or presumption great’ that the defendant will be convicted of first degree murder” in order to deny Pal’s request for bail. (Id. at ¶19). In his Motion for Bail, Pal argues that the Commonwealth bears the burden of proving his guilt by “clear and convincing evidence” at the bail hearing. (Id. at ¶25).

At the time of the bail hearing on November 25, 2013, the Commonwealth submitted the preliminary hearing transcripts as its sole proof in opposition to Pal’s bail motion. In addition to presenting oral argument regarding the appropriate standard of review under Article I, §14 of the Constitution, Pal introduced the testimony of his father, Kushal Pal, and the affiant, Scranton Police Detective Joseph Lafferty. Pal’s Motion for Bail is now ripe for disposition.

II. DISCUSSION

(A) STANDARD OF REVIEW

The decision to grant or deny an application for bail is vested to the sound discretion of the trial court, Com. v. McKown, 2013 WL 5729802, at *13 (Pa. Super. 2013), and will be reversed only for an abuse of discretion “where the trial court ‘misapplies the law, or its judgment is manifestly unreasonable, or the evidence of record shows that its decision is a result of partiality, prejudice, bias, or ill will.’” Com. v. Bishop, 829 A.2d 1170, 1172 (Pa. Super. 2003) (quoting Com. v. Dunlavey, 805 A.2d 562, 564 (Pa. Super. 2002)). “At a bail hearing, the Commonwealth bears the burden of proof.” Com. v. Heiser, 330 Pa. Super. 70, 72, 478 A.2d 1355, 1356 (1984). Pennsylvania Rule of Criminal Procedure No. 520 governs an accused’s right to bail prior to trial, and states that “[bjail before verdict shall be set in all cases as permitted by law.” Pa.R.Crim.P. 520(A). Therefore, it must first be determined whether the law permits a defendant, who is charged with first-degree murder and facing life imprisonment, to pre-trial release on bail.

(B) CONSTITUTIONAL AND STATUTORY RESTRICTIONS

Pal’s ability to secure bail is circumscribed by Article I, §14 of the Pennsylvania Constitution and Section 5701 of the Judicial Code, 42 Pa.C.S.A. §5701. Prior to 1998, Article I, §14 provided:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.

Grimaud v. Com., 581 Pa. 398, 404, 865 A.2d 835, 839 (2005). Before the 1998 amendment to Article I, Section 14 of the constitution, 42Pa.C.S.A. §5701 similarly stated:

All prisoners shall be bailable by sufficient sureties, unless for capital offense when the proof is evident or presumption great. Excessive bail shall not be required.

Heiser, 330 Pa. Super, at 72, 478 A.2d at 1356; U.S. v. Leonetti, 1988 WL 61738, at * 8 n. 3 (E.D. Pa. 1988). A “capital offense” under the these constitutional and statutory provisions means a crime such as first-degree murder for which the death penalty could be imposed. See Com. v. Soltis, 455 Pa. Super. 218, 227, 687 A.2d 1139, 1143 (1996), app. denied, 548 Pa. 647, 695 A.2d 786 (1997).

In Com. ex rel Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963), the Supreme Court of Pennsylvania first addressed whether a defendant charged with a capital offense could be released on bail under Article I, § 14 of the Pennsylvania Constitution. Construing the phrase “when the proof is evident or presumption great,” the Alberti court held:

In other words, a capital offense is a crime for which the death penalty may, but need not, be inflicted, [citation omitted]. We are likewise convinced that the words in Section 14 “when the proof is evident or presumption great” mean that if the Commonwealth’s evidence which is presented at the bail hearing, together with all reasonable inferences therefrom, is sufficient in law to sustain a verdict of murder in the first degree, bail should be refused. It follows that in the absence of such evidence, the prisoner is entitled to bail.

Id. at 400-401, 195 A.2d at 98. Accord Com. v. Manley, 60 Pa. D. & C. 194, 195 (Lacka. Co. 1947) (interpreting Article I, § 14 and holding “that if on the evidence submitted at the preliminary examination the court would not be justified in sustaining a verdict of murder in the first degree found by a jury upon such evidence, then defendant ought to be admitted to bail.”). Nine years after Alberti, the Supreme Court again stated that “[t]he Constitution makes it clear that unless the ‘proof is evident or presumption great’ that a capital offense has been committed, the defendant prior to trial is entitled to bail.” Com. v. Caye, 447 Pa. 213, 215, 290 A.2d 244, 245 (1972) (holding that where defendant was convicted of the non-capital offense of second-degree murder, he had an absolute right to bail).

After Pennsylvania’s earlier death penalty scheme was invalidated in Scoleri v. Pennsylvania, 408 U.S. 934 (1972), and Com. v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), the Pennsylvania Supreme Court had occasion to revisit the phrase “capital offense” in article I, §14 in the context of a bail request by a defendant who was charged with first-degree murder. Relying upon Alberti and Caye, the Court in Com. v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972) determined “that ‘capital offense’ refers to the punishment or penalty which may be imposed upon the person found guilty of a crime, rather than a definition of a particular crime.” Id. at 331, 296 A.2d at 832. Since there were no longer any “criminal offense in the Commonwealth for which the death penalty may be imposed” in 1972, Truesdale concluded that “there are no ‘capital offenses’; hence, by mandate of our constitution, all offenses are bailable prior to trial.” Id. at 331-332, 296 A.2d at 832. In support of its conclusion that the defendant who was charged with first-degree murder was entitled to pre-trial bail, the Supreme Court reasoned:

Prior to the invalidation of the death penalty, there was a strong flight urge because of the possibility of an accused forfeiting his life, and the framers of our constitution must have felt that if a person were accused of a crime and had to risk the possibility of receiving the death penalty or forfeiting bail, he would obviously choose the latter. However, they did not feel the urge to flee was as great where the maximum penalty was life imprisonment, as indicated by the failure to draft the constitution to read, bail may be denied in cases of “capital offenses or life imprisonment.”

Id. at 337-337, 296 A.2d at 835.

Once Pennsylvania’s death penalty statute was revised and withstood constitutional challenges in Com. v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970 (1983), Com. v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070 (1987), and Com. v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992), the general assembly passed joint resolutions proposing an amendment to Article I, §14 of the Pennsylvania Constitution to change the first clause to read:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great;....

Grimaud, 581 Pa. at 405, 865 A.2d at 839 (quoting Joint Resolution No. 1, 1998, P.L. 1327, H.B. No. 1520). Pursuant to Section 201.1 of the Pennsylvania Election Code, the Attorney General of Pennsylvania prepared a “plain english statement” identifying “the purpose, limitations and effects of the ballot question” to be submitted to the electorate to amend Article I, §14 of the Constitution. See 25 P.S. §2621.1. In that “plain english statement,” the attorney general explained:

The purpose of the ballot question is to amend the Pennsylvania Constitution to add two additional categories of criminal cases in which a person accused of a crime must be denied bail. Presently, the constitution allows any person accused of a crime to be released on bail unless the proof is evident or presumption great that the person committed a capital offense. A capital offense is an offense punishable by death. The Pennsylvania Supreme Court has ruled that a person accused of a crime that is not a capital offense may be denied bail only if no amount or condition of bail will assure the accused’s presence at trial.
The ballot question would amend the constitution to disallow bail also in cases in which the accused is charged with an offense punishable by life imprisonment or in which no condition or combination of conditions other than imprisonment of the accused will reasonably assure the safety of any person and the community. The ballot question would extend to these two new categories of cases in which bail must be denied the same limitation that the constitution currently applies to capital cases. It would require that the proof be evident or presumption great that the accused committed the crime or that imprisonment of the accused is necessary to assure the safety of any person and the community.
The proposed amendment would have two effects. First, it would require a court to deny bail when the proof is evident or presumption great that the accused committed a crime punishable by death or life imprisonment. Second, it would require a court deciding whether or not to allow bail in a case in which the accused is charged with a crime not punishable by death or life imprisonment to consider not only the risk that the accused will fail to appear for trial, but also the danger that release of the accused would pose to any person and the community.

Grimaud, 581 Pa. at 410-411, 865 A.2d at 842-843 (emphasis added).

A majority of the electorate approved the amendment to Article I, §14 during the 1998 general election, Id. at 403, 865 A.2d at 838, and that provision now reads, in pertinent part:

All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great;....

Pa. Const, art. I, §14. The effect of the 1998 amendment was to create two additional “exceptions to the right to bail” for (1) any offenses “for which the maximum sentence is life imprisonment,” and (2) cases where no conditions “other than imprisonment will reasonably assure the safety of any person and the community.” Com. v. Jones, 899 A.2d 353, 355 (Pa. Super. 2006). In an apparent effort to comport with that amendment, Section 5701 of the Judicial Code was amended in 2009, and now states:

All prisoners shall be bailable by sufficient sureties, unless:

(1) for capital offenses or for offenses for which the maximum sentence is life imprisonment; or
(2) no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.

42 Pa.C.S.A. §5701. Unlike Article I, §14 of the Constitution, Section 5701 as amended includes the phrase “when the proof is evident or presumption great” only in subsection (2) relating to situations where no condition[s] “other than imprisonment will reasonably assure the safely of any person and the community.” Cf. In re Paulmier, 594 Pa. 433, 448, 937 A.2d 364, 373 (2007) (holding that the use of the word “or” is disjunctive and “means one or the other of two or more alternatives.”).

Prior to 1998, the Supreme Court consistently construed Article I, §14 as making a defendant who was charged with a capital offense eligible for bail unless the proof was evident or presumption great that [s]he committed that capital offense. See Com. v. Martorano, 535 Pa. 178, 185, 634 A.2d 1063, 1066 (1993) (stating that “a criminal defendant is not entitled to bail in a capital case when the proof is evident or the presumption great.”); Caye, 447 Pa. at 215, 290 A.2d at 245 (“The Constitution makes it clear that unless the ‘proof is evident or presumption great’ that a capital offense has been committed, the defendant prior to trial is entitled to bail.”); Alberti, 412 Pa. at 400-401, 195 A.2d at 98 (holding that in the absence of evidence “sufficient in law to sustain a verdict of murder in the first degree..., the prisoner is entitled to bail.”). Even following the 1998 amendment to Article I, §14, the Supreme Court acknowledged that the amended constitutional provision obligates “a court to deny bail when the proof is evident or presumption great that the accused committed a crime punishable by...life imprisonment.” Grimaud, 581 Pa. at 411, 865 A.2d at 843. As worded, Section 5701 of the Judicial Code arguably appears to limit the “proof is evident or presumption great” requirement to instances where “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community.” See 42 Pa.C.S.A. §5701(2). Since the “proof is evident or presumption great” language does not appear in subsection (1) addressing capital offenses and life imprisonment offenses, see 42 Pa.C.S.A. §5701(1), an interpretive argument could conceivably be made that it is inapplicable to bail eligibility “for capital offenses or for offenses for which the maximum sentence is life imprisonment.” However, where the Supreme Court has interpreted a constitutional provision, as it has done in Grimaud, Martorano, Caye and Alberti, it is presumed that when the legislature subsequently enacts a statute dealing with the same subject matter, the legislature intended the same construction to be provided to the language of the subsequent enactment. See Com. v. Dickson, 591 Pa. 364, 384, 918 A.2d 95, 107 (2007); L.A.L. v. V.D. 72 A.3d 690, 692 (Pa. Super. 2013). Since “[cjourts are obligated to avoid constitutional difficulties and construes statutes in a constitutional manner if possible,” Com. v. Mohamud, 15 A.3d 80, 85 (Pa. Super. 2010), the 2009 amendment to Section 5701 will be interpreted in conformity with Article I, §14 of the Constitution, as interpreted by our Supreme Court, so as to apply the “proof is evident or presumption great” requirement to bail requests by defendants charged with a crime that is punishable by life imprisonment.

Baseduponthe 1998 amendmentto Article I, §14andthe foregoing pronouncements of the Pennsylvania Supreme Court, a defendant who is charged with an offense for which the maximum sentence is life imprisonment may be eligible for bail unless “the proof is evident or presumption great” that [s]he committed that offense. Murder in the first degree is an offense that is punishable by a sentence of life imprisonment. See Pa.C.S.A. § 1102(a). The question of whether “the proof is evident or presumption great” that Pal committed that offense must be determined based upon “the Commonwealth’s evidence which is presented at the bail hearing.” Alberti, 412 Pa. at 400, 195 A.2d at 98. Hence, a trial judge considering such a bail request is not bound by the magisterial district judge’s preliminary hearing determination, and must instead conduct an independent review of the Commonwealth’s evidence.

(C) COMMONWEALTH’S BURDEN OF PROOF

Neither Article I, §14 of the Constitution, nor 42 Pa.C.S.A. §5701 identifies the evidentiary burden governing the determination of “when the proof is evident or presumption great.” Other states which have addressed that standard of proof have generally adopted one of three approaches: (1) a variation of a probable cause test; (2) a clear and convincing evidence standard; or (3) a requirement of evidence beyond a reasonable doubt. See State v. Furgal, 161 N.H. 206, 216, 13 A.3d 272, 280 (2010); Simpson v. Owens, 207 Ariz. 261, 271, 85 P.3d 478, 488 (2004). Citing Alberti as authority, the Supreme Court of the Virgin Islands has identified Pennsylvania as a jurisdiction which employs a “clear and convincing evidence” standard in deciding whether “proof is evident or the presumption is great.” See Browne v. People of Virgin Islands, 2008 WL 4132233, at * 11 n. 24 (V.I.2008).

There is a paucity of appellate case law in this Commonwealth addressing the standard of review to be applied in deciding “when the proof is evident or presumption great” that the defendant committed murder in the first degree. As noted above, the Supreme Court in Alberti stated “that the words in Section 14 ‘when the proof is evident or presumption great’ mean that if the Commonwealth’s evidence which is presented at the bail hearing, together with all reasonable inferences therefrom, is sufficient in law to sustain a verdict of murder in the first degree, bail should be refused.” Alberti, 412 Pa. at 400-401, 195 A.2d at 98. Eight years later, the Supreme Court considered the bail eligibility of a minor who had been charged with first-degree murder. In Com. v. Farris, 443 Pa. 251, 271 A.2d 906 (1971), a delinquency petition was presented to a Family Court Division judge who conducted a hearing and received evidence “that Farris fatally stabbed another youth in the back without provocation during a street gang fight.” Id. at 252, 278 A.2d at 907. After the Family Court judge held the matter for further proceedings and the juvenile was subsequently indicted by a grand jury for murder, the defendant filed a petition for pre-trial bail which was denied by a trial judge in the criminal section of the common pleas court. In affirming the denial of bail, the Supreme Court held:

Since evidence offered at the preliminary hearing in the family court division established a prima facie case of murder in the first degree, the court below did not err in refusing to release Farris on bail pending trial, and its order to this effect will be affirmed.

Id. at 253, 278 A.2d at 907.

Thirteen years after Farris, the Superior Court of Pennsylvania also applied a prima facie standard in determining a defendant’s eligibility for bail under Article I, §14 and 42 Pa.C.S.A. §5701. In Heiser, supra, the Superior Court preliminary noted that “[a]t a bail hearing, the Commonwealth bears the burden of proof.” Heiser, 330 Pa. Super, at 72, 478 A.2d at 1356. Citing Farris and Alberti as controlling authority, the Heiser court expressly held that the Commonwealth “can satisfy its burden to prove that a defendant is not entitled to bail by establishing a prima facie case of murder in the first degree.” Id. at 72-73, 478 A.2d at 1356.

No appellate court in Pennsylvania has considered the Commonwealth’s burden of proof under Article I, §14 and 42 Pa.C.S.A. §5701 since file 1984 decision in Heiser. During that almost thirty-year period, several common pleas courts have reached conflicting conclusions regarding the appropriate standard of proof. In Com. v. Scarfo, 43 Pa. D. & C.3d 339 (Phila. Co. 1987), the Philadelphia County court applied the prima facie standard in denying the petition for bail that was filed by a capital case defendant. Id. at 341-342. Other trial courts have held, albeit without reference to Alberti and its progeny, that defendants charged with first-degree murder are automatically ineligible for bail. See, e.g., Com. v. Levanduski, 2003 WL 25600033, at *9 (Monroe Co. 2003) (“Defendant has been charged with criminal homicide, a felony of the first degree, an offense for which the maximum sentence is life imprisonment. Thus, Article I, §14 of the Pennsylvania Constitution does not provide for bail.”); Com. v. Quinn, 2002 WL 34400888, at * 8 (Del. Co. 2002) (“Defendant was charged with murder under 18 Pa.C.S.A. §2502(a), (b) and (c) and faced a potential life sentence. Under the 1998 amendments to Article I, Section 14 of the Pennsylvania Constitution, defendant was not eligible for bail.”).

However, in Com. v. Hamborsky, 75 Pa. D. & C.4th 505 (Fayette Co. 2005), the court concluded that an automatic denial of bail under Article I, §14, based solely on the potential penalty, was “irrational, unreasonable, and discriminatory” and violative of the Eighth Amendment to the United States Constitution. Id. at 513-515. The Fayette County court rejected the prima facie standard as too low of a level of proof, Id. at 515-516 & n. 1, and reasoned that the trial judge must instead conduct a bail hearing and decide whether the evidence presented demonstrates the “likelihood of a conviction, and how that bears on the likelihood of flight.” Id. at 517. Based upon the evidence that was submitted by the prosecution in that case, the Hamborsky court found that “the Commonwealth has not shown that the ‘proof is evident or presumption great’ that Hamborsky did not act in self-defense,” and, therefore, declared that “the defendant is bailable under Article I, Section 14 of the Pennsylvania Constitution.” Id. at 520.

More recently, the trial court in Com. v. O’Shea-Woomer, 8 Pa. D. & C.5th 178 (Lanc. Co. 2009) analyzed “when the proof is evident or presumption great” in connection with a request for bail by a defendant who was charged with first-degree murder. The Lancaster County court construed Alberti as making “a distinction between the Commonwealth’s burden of proof at a preliminary hearing and at a bail hearing.” Id. at 219. In finding that the Commonwealth was obligated to establish more than a prima facie case, the court observed “that the language ‘proof is evident or presumption great’ means something more than primafacie evidence, for to read it in this manner would do nothing to advance the constitutional rights of the accused, since a suspect may not be held without a showing of prima facie evidence in any case.” Id. at 222. Moreover, it opined that “the plain language of the evident proof standard in Article I, Section 14 suggests a ‘clear and convincing’ standard,” which “requires evidence that is ‘so clear, direct, weighty, and convincing that the trier of fact could come to a clear conviction, without hesitating, concerning the facts at issue.’” Id. at 223 (quoting Com. v. Feucht, 955 A.2d 377, 380 (Pa. Super. 2008)). The trial court in O’Shea-Woomer stated that “[t]his heightened standard of proof provides significant protection to the accused before bail is denied.” Id.

The trial courts in Hamborsky and O’Shea-Woomer articulate thoughtful policy arguments why bail requests under Article I, §14 of the constitution should be decided based upon a standard of review other than the prima facie test. However, the only appellate authority directly addressing the controlling standard has identified a prima facie case of first degree murder as the Commonwealth’s appropriate burden of proof. See Farris, supra; Heiser, supra. Unlike the courts in Hamborsky, and O’Shea-Woomer, we do not interpret Alberti as requiring clear and convincing evidence of guilt, rather than a prima facie case. In describing the governing standard of proof, Alberti references “the Commonwealth’s evidence which is presented at the bail hearing, together with all reasonable inferences therefrom,” as being “sufficient in law to sustain a verdict in the first degree.” Alberti, 412 Pa. at 400-401, 195 A.2d at 98 (emphasis added). A trial court is obligated “to consider all reasonable inferences based on [the Commonwealth’s] evidence which could support a guilty verdict” when deciding whether a prima facie case has been established. See Com. v. Winger, 957 A.2d 325, 328 (Pa. Super. 2008). Thus, the clear directive in Alberti that the reviewing court should consider the Commonwealth’s evidence “together with all reasonable inferences therefrom” reflects that the prima facie standard, as opposed to a more demanding “clear and convincing evidence” requirement, is the appropriate standard of review in determining “when the proof is evident or presumption great.”

Under the doctrine of stare decisis, common pleas courts may not ignore or disregard decisional precedent of appellate courts in this Commonwealth. See Com. v. Randolph, 553 Pa. 224, 230-231, 718 A.2d 1242, 1245 (1998) (“It is a fundamental precept of our judicial system that a lower tribunal may not disregard the standards articulated by a higher court.”); Calabrese v. Colonial Ins. Co. of California, 45 Pa. D & C.4th 228, 240 (Lacka. Co. 2000) (“A state trial court is bound to follow the ruling of a Pennsylvania appellate court on matters of state law, notwithstanding the fact that a federal district court may have reached a contrary conclusion”). While it is true, as Pal notes in his submissions, that the most direct pronouncement of the governing standard of proof is set forth in an intermediate appellate decision in Heiser, a ruling by the Superior Court remains binding precedent upon Pennsylvania trial courts until it has been overturned by the Pennsylvania Supreme Court. Marks v. Nationwide Insurance Company, 762 A.2d 1098, 1101 (Pa. Super. 2000), app. denied, 567 Pa. 751, 788 A.2d 381 (2001); Erie Insurance Exchange v. Soroka, 2011 WL 2516797, at *9 (Lacka. Co. 2011), aff’d, 47 A.3d 1237 (Pa. Super. 2012). Therefore, pursuant to Farris and Heiser, the evidentiary record submitted by the Commonwealth will be analyzed to determined whether it establishes a prima facie case of first-degree murder against Pal.

A prima facie case consists of evidence which, when read in the light most favorable to the Commonwealth, sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Com. v. Henricks, 927 A.2d 289, 291 (Pa. Super. 2007); Com. v. Blakey, 2008 WL 5380436, at * 5 (Lacka. Co. 2008), aff’d, 4 A.3d 206 (Pa. Super. 2010). The prima facie standard does not require the Commonwealth to prove the elements of the crime beyond a reasonable doubt. Com. v. Ludwig, 583 Pa. 6, 22, 874 A.2d 623, 632 (2005); Com. v. Barnes, 14 A.3d 128, 130 (Pa. Super. 2011). Rather, a prima facie case in support of an accused’s guilt consists of evidence that, if accepted as true, would justify submission of the case to a jury. Com. v. Huggins, 575 Pa. 395, 402, 836 A.2d 862, 866 (2003), cert. denied, 541 U.S. 1012 (2004); Com. v. Cordoba, 902 A.2d 1280, 1285 (Pa. Super. 2006). In determining the presence or absence of a prima facie case, the prosecution must be afforded the benefit of all inferences reasonably drawn from the evidence which would support a guilty verdict. Com. v. Landis, 48 A.3d 432, 444 (Pa. Super. 2012); Blakely, supra.

(D) ACCOMPLICE LIABILITY FOR FIRST DEGREE MURDER

The Commonwealth has charged Pal with, inter alia, murder of the first degree as an accomplice pursuant to 18 Pa.C.S.A. §306(b)(3), and criminal conspiracy to commit murder of the first degree under 18 Pa.C.S.A. §903(a). (See Criminal Information, Counts I, III). “The elements of first-degree murder are as follows: (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill.” Com. v. Padilla, 2013 WL 5848693, at *2 (Pa.2013). A defendant may be convicted as an accomplice to first-degree murder “so long as the facts adequately support the conclusion that he or she aided, agreed to aid, or attempted to aid the principal in planning or committing the offense, and acted with the intention to promote or facilitate the offense.” Com. v. Markman, 591 Pa. 249, 269, 916 A.2d 586, 597 (2007). The Commonwealth must prove that the defendant himself possessed the specific intent to kill in order to sustain a conviction of first-degree murder as an accomplice. Com. v. Bennett, 57 A.3d 1185, 1199-1200 (Pa. 2012); Com. v. Daniels, 600 Pa. 1, 33-38, 963 A.2d 409, 429-432 (2009). “The mens rea required for first-degree murder, specific intent to kill, may be established solely from circumstantial evidence.” Com. v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008) (quoting Com. v. Shoff, 911 A.2d 147, 160 (Pa. Super. 2006)), app. denied, 600 Pa. 760, 967 A.2d 958 (2009). “Clearly, evidence of acts to conceal a crime, such as disposing of a victim’s body, are relevant to prove the accused’s intent or state of mind.” Com. v. Dollman, 518 Pa. 86, 91, 541 A.2d 319, 322 (1988).

Malice is also an element of first degree murder, and required proof of “wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty.” Com. v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013). Malice may be inferred after considering the totality of the circumstances. Com. v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012), app. denied, 57 A.3d 70 (Pa. 2012). “Actions of the accused that occur before, during and after are admissible as evidence to show malice.” Com. v. Gonzalez, 858 A.2d 1219, 1223 (Pa. Super. 2004) (emphasis in original), app. denied, 582 Pa. 695, 871 A.2d 189 (2005). “Further, actions that attempt to conceal a crime or destroy evidence are also admissible to prove malice.” Id.

A person cannot be an accomplice simply based on evidence that [s]he was present at the crime scene, and “[tjhere must be some additional evidence that the person intended to aid in the commission of the underlying crime, and then aided or attempted to aid.” Com. v. Rega, 593 Pa. 659, 690, 933 A.2d 997, 1015 (2007), cert. denied, 552 U.S. 1316 (2008). However, the amount of aid “need not be substantial so long as it was offered to the principal to assist him in committing or attempting to commit the crime.” Markman, 591 Pa. at 269-270; Com. v. Toritto, 61 A.3d 29, 35 (Pa. Super. 2013). “The least degree of assistance in committing the offense is adequate to sustain the finding of responsibility as an accomplice.” Com. v. Adams, 39 A.3d 310, 324 (Pa. Super. 2012) (quoting Com. v. Gladden, 445 Pa. Super. 434, 450, 665 A.2d 1201, 1209 (1995)).

The direct and circumstantial evidence establishes a prima facie case of accomplice liability on the part of Pal. Pal was well aware of the acrimonious relationship between Dominick and Bonacci resulting from their mutual interest in Keri Tucker. Two months before Bonacci’s murder, Dominick had informed Pal in a text message that if Bonacci “ever gets cocky around me, I will just snuff him.” In June 2013, Pal had even attempted to broker a fight between Dominick and Bonacci at Step Falls. Dominick and Pal “were best friends” and their “La Familia” tattoos were designed to convey that “if something happened” to either of them, it would be treated as though it had happened to both “of them like a family.”

By virtue of that close bond, it is reasonable to infer that Dominick had advised Pal of Bonacci’s text message to Ms. Tucker declaring his abiding affection for her on July 18, 2013. A few hours before the murder, Pal informed Sam Senuk at Pal’s party that “[sjomebody was messing” with Bonacci. Shortly thereafter, Pal reportedly orchestrated the transportation arrangement which enabled Dominick, Bonacci and Pal to be alone in Bonacci’s vehicle. Of those three individuals, only Pal owned a .38 caliber handgun, and the projectile removed from Bonacci’s head was consistent with the use of a .38 caliber weapon. In addition, the .38 caliber casing discovered near the crime scene matched the .38 caliber casing seized from Pal’s garage. Finally, less than thirty minutes after Pal, Dominick and Bonacci departed in Bonacci’s Jeep, Pal contacted Maribeth Castaldi who picked them up at a removed location within 800 yards of where Bonacci’s body and vehicle were discovered. When viewed in the light most favorable to the Commonwealth, the evidence indicates that Pal provided the .38 caliber handgun to Dominick and coordinated his opportunity to shoot Bonacci in his Jeep at an isolated location. As such, the totality of these circumstances establishes a prima facie case of accomplice liability for first-degree murder.

An accused’s conduct following a murder, including destruction or fabrication of incriminating evidence, is admissible to establish consciousness of guilt of first-degree murder. See Com. v. Wholaver, 588 Pa. 218, 226, 903 A.2d 1178, 1183 (2006), cert. denied, 549 U.S. 1171 (2007). Moreover, false and contradictory statements by an accused to the police “are indicatory of guilt” of first-degree murder. Com. v. Carbone, 524 Pa. 551, 562, 574 A.2d 584, 589 (1990); Com. v. Donnelly, 439 Pa. Super. 70, 75, 653 A.2d 35, 37 (1995), app. denied, 541 Pa. 633, 663 A.2d 686 (1995). Additionally, evidence that the defendant has attempted to suborn false testimony from a prospective witness is admissible as substantive evidence of consciousness of guilt of first-degree murder. Com. v. Young, 561 Pa. 34, 61, 748 A.2d 166, 180 (1999).

Pal made a series of false and contradictory statements to the police. Furthermore, he encouraged Maribeth Castaldi to provide false information to the police regarding Pal’s telephone calls and Ms. Castaldi’s transportation of Pal and Dominick on the morning of the murder. According to the police, Pal and Dominick also burned their bloodstained clothing at Pal’s residence. Whether in isolation or in combination, these post-murder actions by Pal reflect consciousness of guilt of first-degree murder.

Examining the evidence in the light most favorable to the Commonwealth while affording it the benefit of all reasonable inferences to be drawn from that evidence, the direct and circumstantial proof justifies submission of Count I of the criminal information to the jury. The Commonwealth has established a prima facie case of accomplice liability for murder of the first degree. Consequently, Pal is not entitled to bail under Article I, §14 of the Pennsylvania Constitution and Section 5701 of the Judicial Code, 42 Pa.C.S.A. §5701.

(E) CONSPIRATORIAL LIABILITY

Although Pal’s motion for bail may be denied solely based upon the Commonwealth’s presentation of a prima facie case of accomplice liability, the Commonwealth has also demonstrated aprimafacie case of criminal conspiracy to commit murder of the first degree. “To establish conspiracy to commit murder, the Commonwealth must show that the defendant, with the specific intent to kill, agreed with one or more persons to commit murder, or agreed to attempt to commit murder, or solicited someone to commit such crime or agreed to aid in the commission, attempt, or solicitation of such crime, and committed an overt act towards the commission of the murder.” Com. v. Stokes, 38 A.3d 846, 855 (Pa. Super. 2011). “Given the surreptitious nature of conspiracy, the existence of a formal agreement is often proven circumstantially, such as by ‘the relations, conduct or circumstances of the parties or overt acts on the part of co-conspirators.’” Com. v. Jacobs, 614 Pa. 664, 39 A.3d 977, 985 (2012) (quoting Com. v. Johnson, 604 Pa. 176, 185, 985 A.2d 915, 920 (2009), cert. denied, 131 S.Ct. 250 (U.S. 2010)). In the case of a conspiracy to commit homicide, “each member of the conspiracy can be convicted of first-degree murder regardless of who inflicted the fatal wound.” Com. v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013) (quoting Johnson, supra).

The direct and circumstantial evidence discussed in Section 11(D) above likewise establishes a. prima facie case that Pal intended to aid in the commission of Bonacci’s murder, entered into an agreement with Dominick to engage in that crime, and committed overt acts in furtherance of that crime. As with accomplice liability, the specific intent to kill necessary to sustain a conviction for criminal conspiracy to commit first-degree murder may be established through circumstantial evidence. See Com. v. Montalvo, 598 Pa. 263, 274-275, 956 A.2d 926, 932-933 (2008), cert. denied, 556 U.S. 1186 (2009). The same pre-murder and post-murder conduct by Pal which supports his accomplice liability is also sufficient to establish a prima facie case of conspiratorial culpability. Accordingly, the Commonwealth has demonstrated a prima facie case of criminal conspiracy to commit first-degree murder, and Pal’s Motion for Bail will also be denied on that independent basis. An appropriate follows.

ORDER

And now, this 27th day of November, 2013, upon consideration of defendant’s “Motion for Bail,” the Commonwealth’s response thereto and the memoranda of law submitted by counsel, and based upon the evidence presented by the Commonwealth at the bail hearing on November 25,2013, which established a prima facie case of murder of the first-degree as an accomplice, 18 Pa.C.S. A. §§306(b)(3) and 2502(a), and criminal conspiracy to commit murder of the first degree, 18 Pa.C.S.A. §§903(a) and 2502(a), it is hereby ordered and decreed that the “Motion for Bail” filed by defendant, Neil Pal, is denied.

      . In Pennsylvania, “[p]robable cause to arrest exists when the facts and circumstances within the police officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Com. v. Weaver, 16 A.3d 562, 565 (Pa. Super. 2013). The clear and convincing evidence standard is more demanding than the preponderance of the evidence standard which “is defined as the greater weight of the evidence, i.e., to tip a scale slightly,” Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004), and requires evidence “that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” In re S.T.S., Jr., 76 A.3d 24, 38 (Pa. Super. 2013). Under the “beyond a reasonable doubt” standard governing criminal prosecutions, a reasonable doubt “is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs.” Com. v. Simpson, 66 A.3d 253, 274 (Pa. 2013).

        . In support of its conclusion, the Hamborsky court cited two unpublished common pleas court decisions, Com. v. Ebersole, No. 106 C 2003 (Bedford Co. 2003), and Com. v. Long, No. 4201 C 1999 (Westmoreland Co. 2002), which reportedly rejected the prima facie analysis as the appropriate standard of review for bail requests under Article I, §14. Hamborsky, 75 Pa. D. & C.4th at 515-516 & n.1.


source: Caselaw Access Project

author: GRAY, J.,

license: Public Domain

text:
    Hafer v. Anadarko E&P Company LP

      C.P. of Lycoming County,
    No. 11-02303

      Marc S. Drier, for plaintiffs.

      Andrea E. Hammel, for defendant.
    December 2, 2013
   GRAY, J.,

OPINION AND ORDER

And now, this 4th day of December 2013, following oral argument on the defendant’s motion for summary, judgment held November 1, 2013, and after review of the argument, pleadings, motions and briefs, the court finds that summary judgment is warranted. This matter involves a dispute as to the terms of an oil and fas lease and can be determined as a matter of contract law. Viewing the record in favor of the non-moving party, the court concludes that the oil and gas lease executed on April 8, 2008 (“Lease”) in this matter does not require a payment of $2500 per acre to the Hafers on or by August 13, 2011. The court enters the following opinion and order.

Findings of Fact

On May 15, 2006, the Hafers executed an oil and gas lease with East Resources, Inc., for a term of five years with no provisions for extension beyond the initial five year term unless oil, gas or other substances covered by the lease were actually being produced in paying quantities under the lease. Complaint-Assumpsit, ¶4. Before April 28,2008, an agent for East Resources Inc. approached the Hafers and negotiated a new five year lease, beginning at the end of the existing lease primary term on May 15, 2011. Complaint-Assumpsit, ¶5. During the negotiation, the agent noted the following in writing. “300 AN ACRE 90 DAYS AFTER SIGN LEASE $1700 AN ACRE ON OR BEFORE THE EXPIRATION DATE 5/15/2011, 2,500 AN ACRE 90 DAY AFTER EXPIRE DATE” On April 28, 2008, an oil and gas lease was executed which provided a “primary term of Five years from May 15,2011, hereinafter called the “Effective Date”..[.]” An extension payment of $2500 per acre was required as follows.

EXTENSION OF TERM: At Lessee’s option, Lessee may extend the primary term of this lease for an additional period equal to the primary term by paying or tendering to Lessor an extension payment of twenty five hundred per acre payable at (2500.00) any time prior to the expiration of the primary term. If Lessee exercises this option, the primary term of this lease shall be considered to be continuous, commencing on the Effective Date hereof and continuing to the end of the extended primary term. (Emphasis Added.)

The oil and gas lease further provides for rental payments as follows.

(6) RENTAL PAYMENT — This lease is made on the condition that within ninety (90) days from the Effective Date of this lease, Lessee shall pay to the Lessor the sum or (See attached addendum, Clause 7) Dollars ($ .00) per acre for the first year....

The attached addendum, clause 7 provides the following.

7. Lessee agrees to pay to Lessor in which three hundred dollars ($300.00) per net mineral acre to be delivered to Lessor within 90 days of the execution of this agreement and the remaining One Thousand Seven hundred dollars (1700.00) per net mineral acre due on or before May 15, 2011. All rental due during the primary term of the lease will then be considered to be paid in full and no further rental payments will be due.

The lease also provides the following.

(17) ACCEPTANCE — This lease contains all of the agreements and understanding of the Lessor and Lessee respecting the subject matter hereof and no implied covenants or obligations or verbal representations or promises have been made or relied upon by Lessor or Lessee supplementing or modifying this lease or as an inducement thereto.

Ultimately the lease was assigned to the defendant, Anadarko E&P Company LP. Complaint-Assumpsit, ¶10. Todd and Kathryn A. Hafer filed a Complaint-Assumpsit on December 8, 2011, alleging that they should have been paid $2500 per acre on or by August 13, 2011 based upon the oil and gas lease executed on April 28, 2008 as evidenced by a writing made prior to the execution of the oil and gas lease.

Conclusions of Law

Summary Judgment

1. Pursuant to Pa. R.C.P. 1035.2, the court may grant summary judgment at the close of the relevant proceedings if there is no genuine issue of material fact or if an adverse party has failed to produce evidence of facts essential to the cause of action or defense. Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. Ct. 2011).

2. A non-moving party to a summary judgment motion cannot rely on its pleadings and answers alone. Pa. R.C.P. 1035.2; 31 A.3d at 971.

3. When deciding a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, with all doubts as to whether a genuine issue of material fact exists being decided in favor of the non-moving party. 31 A.3d at 971.

4. If a non-moving party fails to produce sufficient evidence on an issue on which the party bears the burden of proof, the moving party is entitled to summary judgment as a matter of law. Keystone, 31 A.3d at 971 (citing Young v. Pa. Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000)).

5. “Interpretation of a contract...poses a question of law. In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” State Farm Fire & Cas. Co. v. MacDonald, 2004 PA Super 161, P4 (Pa. Super. Ct. 2004), citing, Stein Revocable Trust v. Gen. Felt Indus., Inc., 2000 PA Super 103, 749 A.2d 978, 980 (Pa. Super. 2000) (citations and quotation marks omitted).

6. The court concludes that the oil and gas lease, including the specific reference in paragraph 6 to the attached addendum, clause 7 listing the rental payments, represents the entire agreement between the parties and their assignee.

7. The oil and gas lease does not require a payment of $2500 per acre to the Hafers on or by August 13, 2011

8. The parol evidence rule precludes this court from considering the pre-contactual writing listed as plaintiff’s Exhibit “B.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004).

Discussion

The issue in this case pertains to whether the parol evidence rule precludes this court from considering extrinsic evidence, including a pre-contractual writing and oral discussions not contained in the oil and gas lease executed on April 28, 2008.

In Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004), our Supreme Court has explained the parol evidence rule. In particular, the Court held that:

[wjhere the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract...and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.

Id. at 436 (citing Gianni v. Russell & Co., 126 A. 791, 792 (Pa. 1924) (citations omitted)). Additionally, our Supreme Court has explained when the parol evidence rule should be applied.

[F]or the parol evidence rule to apply, there must be a writing that represents the “entire contract between the parties.” To determine whether or not a writing is the parties’ entire contract, the writing must be looked at and “if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the [parties’] engagement, it is conclusively presumed that [the writing represents] the whole engagement of the parties....”...
Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract. One exception to this general rule is that parol evidence may be introduced to vary a writing meant to be the parties’ entire contract where a party avers that a term was omitted from the contract because of fraud, accident, or mistake.

854 A.2d at 436-37 (citations omitted).

In this instance, the parties deliberately put the contract into writing. Therefore, in the eyes of this court, that writing is the best and only evidence concerning their agreement. That writing, the Lease, does not provide a payment of $2500 per acre to the Hafers on or by August 13, 2011. The Lease specifically refers to an addendum, clause 7, which lists the rental payments but that writing does not reference the handwritten pre-contractual writing, Exhibit “B.” The court notes that all of the payments that were listed by the agent in Exhibit “B,” that were required on or before the expiration date of March 15, 2011, were included in clause 7 as rental payments. The court further notes there was ample blank space remaining after clause 7 to include a further rental payment of $2500 per acre by August 13, 2011, but no such provision was included. The writing does include an option to extend the term by paying or tendering to Lessor an extension payment of twenty five hundred per acre payable at (2500.00) any time prior to the expiration of the primary term, i.e., March 15, 2016.

The court notes that unlike, Empire Properties Inc. v. Equiseal Inc., 674 A.2d 297 (Pa. Super. 1995) which was cited by plaintiffs, this matter does not involve an oral modification of the written contract between the parties nor has any party invoked the Statute of Frauds as a defense. In the instant case, the oral discussions and writing occurred prior to the execution of the written document, the Lease. The Lease does not include a $2500 per acre by August 13, 2011. The Lease also has a provision which contradicts the assertion that the pre-contractual writing was part of the agreement. It provides the following.

This lease contains all of the agreements and understanding of the Lessor and Lessee respecting the subject matter hereof and no implied covenants or obligations or verbal representations or promises have been made or relied upon by Lessor or Lessee supplementing or modifying this lease or as an inducement thereto, (emphasis added)

The court enters the following order.

ORDER

And now, this 4th day of December, 2013, following oral argument on defendant’s Motion for Summary Judgment held on November 1, 2013, and for the reasons stated above, defendant’s motion is granted. It is ordered and directed that judgment is entered in favor of defendant and against plaintiffs on all claims. Plaintiffs’ complaint is dismissed with prejudice. The court notes that plaintiffs did not raise claims of fraud or mutual mistake. The pretrial conference scheduled for December 6,2013 is hereby cancelled and the matter is removed from the trial list.


author: SNITE, J.,

text:
    Harris v. Stark & Stark

      Jeffrey B. McCarron, for defendants Mattioni, Ltd., Joseph F. Bouvier and John McCarron.

      Eugene J. Maginnis and Jill M. Caughie, for defendants Erlanger law firm, PLLC and Robert K. Erlanger.

      Josh MGreenbaum and Jill M. Caughie, for defendants Henry Edward Van Blunk, Stark & Stark, RC. and Liederbach Hahn Foy & Van Blunk.

      Charles L. Kamps III, Scott A. Blow and Patrick T. Hanley, pro se defendants.
    December 4, 2013
   SNITE, J.,

This is a case for wrongful use of civil proceedings under the Dragonetti Act and for abuse of process. It arises from two underlying cases brought and heard in the Philadelphia Court of Common Pleas Commerce Program. Douglas T. Harris, plaintiff in this case, was a party in both underlying cases. Before the court are defendants Henry Van Blunk, Stark & Stark, P.C., Liderbach, Hahn, Foy & Van Blunk, P.C., Robert Erlanger, and Erlanger Law Firm PLLC’s Motion for Partial Summary Judgment, plaintiff’s response in opposition thereto, and defendants’ reply.

PROCEDURAL HISTORY

The underlying proceedings arose out of a real estate purchase agreement (“purchase agreement”) between defendants Charles Kamps, Patrick Hanley, and Scott Blow (“Individual Defendants”), their partnerships Philadelphia Waterfront Development (“PWD”) and Philadelphia Waterfront Partners (“PWP”) (collectively “PWP Plaintiffs”), and Churchill Development Group, LLC, Churchill Residential Development, LP, Churchill Commercial Development, LP (collectively “Churchill”), and their principal Joseph Logue (“Logue”), concerning property located at 7777 State Road.

On August 18, 2006 Churchill purchased 100% of the membership interests in PWD and 75% of the membership interests in PWP from Individual Defendants. Under the purchase agreement, Individual Defendants were to provide PWP’s 2005 tax returns to Churchill by October 15, 2006. By November 15, 2006 Churchill, acting through PWP, was required to obtain a loan commitment for the acquisition of the property located at 7777 State Road. By December 15, 2006 Churchill, acting through PWP, was required to close on the purchase of 7777 State Road subject to reasonable extension as approved. The purchase agreement further provided that Churchill, acting through PWP, had an additional thirty days to complete the tasks if Individual Defendants failed to provide timely tax returns. If Churchill failed to timely comply with its tasks, 75% of the PWD interest and 75% of the PWP interest would revert to Individual Defendants.

On October 12, 2006, Individual Defendants provided improperly executed copies of PWP’s tax returns to Churchill. Individual Defendants’ failure to provide timely tax returns was a breach of their obligations under the purchase agreement thus allowing Churchill an additional thirty days to complete their tasks under the purchase agreement. Therefore, Churchill had until December 14,2006 to obtain a loan commitment and until January 13, 2007 to close on the property. Individual Defendants began to assert that a reversion had occurred due to Churchill’s failure to complete their tasks in the required time. Churchill was able to obtain a loan commitment on December 6, 2006. Churchill closed on the property on January 17, 2007.

In January 2007 PWP Plaintiffs, represented by Moving Defendants in the instant action, filed a praecipe for a writ of summons against Churchill and Logue and a praecipe for lis pendens as to the property arguing that a reversion had occurred under the purchase agreement (“PWP Action”). PWP Plaintiffs filed a complaint against Churchill, Logue, and Douglas T. Harris (“Harris”) on April 7, 2007. PWP Plaintiffs pursued claims of breach of contract, unjust enrichment, fraudulent conveyance, constructive trust, fraud, breach of fiduciary duty, and conspiracy against Logue and Churchill arguing that Logue and Churchill failed to perform under the terms of the purchase agreement resulting in a reversion of the property to PWP Plaintiffs. PWP Plaintiffs pursued claims for fraudulent conveyance, fraud, breach of fiduciary duty, and civil conspiracy against Harris for his role as attorney for PWP Plaintiffs in the negotiation of the purchase agreement. Prior to the trial, PWP Plaintiffs voluntarily dismissed the remaining claims against Harris, terminating him as a party in the action. On April 15, 2010, following a bench trial, the court issued an order and opinion entering judgment against PWP Plaintiffs and in favor of Logue and Churchill.

Meanwhile, on June 21, 2007, Harris filed a complaint against Individual Defendants for breach of contract (“Harris Action”). Harris claimed that the Individual Defendants breached their obligation to pay Harris under the terms of the promissory note executed as consideration for business and legal work Harris performed throughout the negotiations with Logue and Churchill. The Harris Action proceeded to trial. The jury found that Individual Defendants breached their obligation to pay Harris. Harris was awarded judgment for the full amount of the promissory notes, plus interest and legal fees, on July 19, 2010. The court awarded Harris $525,000 (plus interest) and attorneys’ fees and costs in the amount of $243,035.99 under the terms of the notes. Harris has not been able to collect on the judgment he received.

Harris filed a complaint in the present action on April 29, 2011. Harris asserts claims of wrongful use of civil proceedings and abuse of process against all defendants. In the present action Harris alleges that he “was damaged because the judgments he has obtained in the Harris Action, and the [notes] that underlie them, were rendered substantially uncollectable.” Harris argues that it is the fault of defendants Hemy Van Blunk, Stark & Stark, P.C., Liderbach, Hahn, Foy & Van Blunk, P.C., Robert Erlanger, and Erlanger Law Firm PLLC (“Moving Defendants”) that he has been unable to collect on the judgments against Individual Defendants. In the instant action Harris seeks compensatory damages in the amount of his award in addition to monies associated with his collection efforts. Moving Defendants file the instant motion for summary judgment to preclude Harris from seeking damages in the amount of the monetary judgments he was awarded on his claims against Individual Defendants in the Harris Action.

DISCUSSION

The only issue before the court on Moving Defendants’ Motion for Partial Summary Judgment is whether Harris can, in the instant case, recover from Moving Defendants the amount of the judgment he was awarded in the Harris Action against Individual Defendants.

Once the relevant pleadings have closed, any party may move for summary judgment. “Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law.” Further, granting summary judgment is appropriate only when the evidentiary record shows the material facts are undisputed. The trial court must view the record in the light most favorable to the non-moving party.

To succeed in a cause of action for wrongful use of civil procedure, a plaintiff must allege and prove the following three elements: (1) that the underlying proceedings were terminated in his favor; (2) that defendant caused those proceedings to be instituted against the plaintiff without probable cause; and (3) harm has been caused to the plaintiff. A plaintiff may recover “any pecuniary loss that has resulted from the proceedings.” However, a plaintiff must prove that the damages he is entitled to were causally related to the claims brought against him the in the underlying action.

A common law abuse of process claim requires a plaintiff to show that the defendant (1) used a legal process against plaintiff; (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff. The plaintiff must also establish that the legal process used against him caused the alleged harm.

In the instant case, plaintiff asserts that he is entitled to collect from Moving Defendants, as damages, the value of the judgment he received against Individual Defendants in the Harris Action. To support this assertion Harris argues that the initiation of the PWP action was aimed at “preventing Logue and [Churchill] from obtaining financing for the development of the [property.” Plaintiff argues that for this reason the judgment awarded him in the Harris Action was rendered “substantially uncollectable.”

It is undisputed that in the Harris Action Harris argued that the notes executed by Individual Defendants “were in exchange for work Harris did to get to get to [the] point [of sale].” Payment was due to Harris irrespective of whether Individual Defendants’ deal with Logue and Churchill survived. In other words, the notes were executed as consideration for legal fees and expenses that Individual Defendants incurred for Harris’ work completed months prior to the dispute that later arose between Harris and Individual Defendants and Logue and Churchill and Individual Defendants. Harris now “argues that ‘the mechanics of payment’ could not have worked unless Logue developed and sold the property.”

Individual Defendants remain obligated to pay the judgment awarded to Harris in the Harris Action. In the instant action Harris argues that the thwarted sale and development of the property was a result of the PWP Action. However, Harris cannot establish that Individual Defendants failure to pay the judgment in the Harris Action was causally related to the claims asserted against him in the PWP Action.

The undisputed material facts establish that Harris’ right to payment was not contingent on the successful sale or development of the property, the subject matter of the PWP Action. Therefore, Harris cannot sustain the burden of showing that the damages he seeks from Moving Defendants, payment of the judgment rendered against Individual Defendants in the Harris Action, are casually related to the claims brought in the PWP Action. The damages Harris seeks from Moving Defendants in the instant action are too attenuated to be considered “any specific pecuniary loss that has resulted from the proceedings.”

CONCLUSION

In conclusion, I am granting Moving Defendant’s Motion for Partial Summary Judgment on the basis that damages in the amount of monetary damages Harris was awarded on his claims against Individual Defendants are too attenuated. Harris is precluded from seeking damages in that amount.

ORDER

And now, this 4th day of December, 2013, upon consideration of defendants Henry Van Blunk, Stark & Stark, P.C., Liederbach, Hahn, Foy & Van Blunk, P.C., Robert Erlanger, and Erlanger Law Firm, PLLC’s Motion for Partial Summaiy Judgment, and any response in opposition thereto, it is hereby ordered that said motion is granted.

Plaintiff Douglas T. Harris is hereby precluded from seeking damages in the amount of monetary damages he was awarded on his claims against Charles Kamps, Ted Hanley, and Scott Blow.

      . Am. Compl. ¶18.

      . Am. Compl. ¶19.1.

      . Am. Compl. ¶19.2.

      . Am. Compl. ¶19.3.

      . Am. Compl. ¶20.

        . Id.

      . Am. Compl. ¶21.

      . Am. Compl. ¶23.

        . Id

      . Am. Compl. ¶24.

      . Am. Compl. ¶25.

      . Am. Compl. ¶32.

      . Logue and Churchill’s Motion to Strike the lis pendens was granted on June 4,2007.

      . An amended complaint was filed on May 21,2007.

      . Logue and Churchill’s Motion for Summary Judgment was granted in part and denied in part on January 21,2009.

      . Harris’ Motion for Summary Judgment was granted in part and denied in part on January 21,2009.

      . An amended complaint was filed on December 19,2007.

      . On November 3,2011 the court entered an order severing claims against individual defendant Scott Blow on account of initiation of bankruptcy proceedings. On April 4, 2013 the court entered an order severing claims against individual defendant Patrick Hanley on account of initiation of bankruptcy proceedings.

      . Defs.’ Mot. Summ. J. ¶31.

      . Defs.’ Mot. Summ. J. ¶59.

      . Id.

        . Pa.R.C.P 1035.2.

      . Rausch v. Mike-Meyer, 783 A.2d 815, 821 (Pa. Super. 2001).

      . McCarthy v. Dan Lepore & Sons 4 Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998).

      . Rausch, 783 A.2d at 821.

      . 42 Pa. Cons. Stat. Ann. §8351.

      .42 Pa. Cons. Stat. Ann. §8351(4).

      . See Morello v. Anastasio, 24 Pa. D & C.5th 376, 384 (Pa. Ct. Com. Pl. 2012) (Bernstein, J.).

      . Cruz v. Princeton Ins. Co., 925 A.2d 853 (2007) (quoting Werner v. Plater-Zyberk, 799 A.2d 776, 785 (2002)).

      . See Shiner v. Moriarty, 706 A.2d 1228, 1242 (Pa. Super. Ct. 1998).

      . See Am. Compl. ¶¶35, 37.

      . Defs.’ Mot. Summ. J. ¶62.

      . Tr., Jul. 12,2010 p. 87.

      . Id. at pp. 56-57, 86.

      .SeePl.’sResp.tlSó-S?.

      . See Am. Compl. ¶¶35, 37,421.

      .42 Pa. Cons. Stat. Ann. §8351(4).


author: WILLIAMSON, J.,

text:
    Madsen v. Thomas

      C.P. of Monroe County,
    No. 9959 CIVIL 2012

      Jamie J. Anzalone, for plaintiff.

      Brent A. Green, for defendant.
    November 1, 2013 —
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by defendant Lauriel Thomas on July 1, 2013. On October 3, 2013, plaintiff Robert Madsen filed a response to defendant’s motion for summary judgment. In the motion, defendant Thomas argues that summary judgment should be granted because there is no admissible evidence identifying the defendant as being involved in an accident with the plaintiff. As such, defendant asserts that as a matter of law, and in the absence of any undisputed facts of record, there is no genuine issue and summary judgment should be granted.

Plaintiff commenced this action by filing a complaint on November 29, 2012, alleging the following: that on August 4, 2012 at approximately 6:55pm plaintiff was proceeding west bound on Interstate 80 inNetcong, Morris County, New Jersey, in the center lane. Plaintiff further alleges that when he attempted to move into the right lane he was forced to swerve back into the center lane due to the defendant attempting to pass the plaintiff at a high rate of speed in the right lane. In an effort to avoid colliding with defendant, plaintiff swerved back into the center lane thereby losing control of his vehicle. Plaintiff veered off the roadway and rolled six times down an embankment. Plaintiff alleges that the accident was the result of the carelessness and negligence of defendant, which caused plaintiff to suffer numerous injuries requiring medical care and treatment.

In his answer, filed March 1, 2013, defendant denied the allegations made by plaintiff, stating that the events of the accident are at issue. To support the denial, defendant argued there was never any contact between the defendant’s vehicle and the plaintiff’s vehicle. Further, defendant stated the operation of his vehicle did not cause plaintiff to lose control of his vehicle, and in the alternative, that if plaintiff lost control due to the actions of another driver, it was a driver other than defendant.

Depositions were taken of plaintiff and defendant on April 18, 2013. Defendant filed the instant motion for summary judgment on July 1, 2013. Upon stipulation of the parties on October 3, 2013, oral arguments were not held, and the matter is set to be decided on the parties’ briefs. Also on October 3, 2013, plaintiff filed a response and brief to defendant’s motion for summary judgment. After review of the parties’ briefs, we are ready to dispose of the motion.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2, where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auctrion Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Tingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all wellpled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

Defendant argues there are no genuine issues of material fact and requests that this court grant summary judgment in his favor. Defendant asserts that the information used by plaintiff in initiating this suit is inadmissible hearsay, in that the plaintiff’s information came through a police report prepared in response to the accident. Further, defendant states that plaintiff has no knowledge or evidence that defendant was the alleged driver who caused plaintiff to lose control of his vehicle and subsequently crash. Therefore, defendant argues that plaintiff cannot establish the cause of action. We disagree.

In granting a motion for summary judgment, the court must be convinced that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Thompson, 412 A.2d at 468 (quoting Kotwasinski v. Rasner, 258 A.2d 865 (Pa. 1969); Prince v. Pavoni, 302 A.2d 452 (Pa. Super. 1973). Pennsylvania case law makes it clear that summary judgment is to be granted only “in the clearest of cases, where the right is clear and free from doubt.” Id. Applying the above mentioned standards, summary judgment in favor of defendant cannot be entered at this time.

In this matter, the events which lead up to the auto accident are clearly in dispute. It is noted that, throughout the pleadings, both plaintiff and defendant provide differing accounts as to what caused plaintiff’s car to lose control, ultimately rolling six times and ending up in a ditch. The depositions of both plaintiff and defendant provide two stories as to the location of their respective vehicles at the time of the incident. Plaintiff testified that immediately prior to losing control of his vehicle, he was traveling in the middle lane of Interstate 80 west. Plaintiff noticed a car coming up “pretty fast” behind him in the middle lane. Plaintiff then states that as he started to move into the right lane, the black car (which he believes was presumably the defendant) was already there. Because of this, plaintiff testified that he swerved to come back into the middle lane, lost control, went over to the right hand lane, went down an embankment and the vehicle overturned. N.T. plaintiff’s deposition, 4/18/13, p. 30. Further, plaintiff testified that he definitely did not go into the far left lane at any point, and as he lost control of his vehicle, the black car went by the plaintiff. Id. p. 37. Plaintiff testified that he never saw defendant at the scene of the accident while waiting for emergency personnel to arrive. Id. p. 44. However, plaintiff believes defendant was the driver of the vehicle that caused the accident, because the defendant was at the scene of the accident.

Defendant’s version of events directly contradicts the statements made by Plaintiff regarding the accident. In his deposition, defendant testified that as he was in the far right lane, he noticed a red car (which he believes was presumably the plaintiff) in the left-hand lane. The red car was approximately 1000 feet in front of defendant’s car. N.T. defendant’s deposition, 4/18/13, p. 18-19. Defendant testified that he then noticed the red car spinning from the left lane all the way across the other two lanes into the ditch. Id. p. 19. Next, defendant stated that he stopped at the scene, where two other cars had already pulled over to assist plaintiff. Id. At no time did defendant state he was trying to pass plaintiff on the right, but rather, provided specific testimony as to how he stopped at the scene to provide aid, then proceeded to leave once other drivers started assisting the plaintiff.

Taking into account the depositions, exhibits and admissions of both parties, it is evident that there is a genuine issue of a material fact. In dispute is the fact of whether or not defendant was attempting to pass plaintiff in the right hand lane, which plaintiff claims is the impetuous for the accident. The dispute of this fact alone is enough to be presented to a jury as both parties present differing accounts of the accident. Both admit being present at the time of the accident. Both give different versions of the events.

Defendant’s main contention in his argument for summary judgment is that the police accident report relied upon by plaintiff for identification is inadmissible hearsay evidence. Defendant believes the plaintiff will seek to introduce the police report as proof the defendant was at the scene, or drove the black vehicle, or is somehow responsible. This argument fails at this time. Information in the police report could be introduced if presented in a manner that is admissible. In any event, plaintiff believes the defendant caused the accident. Defendant admitted in discovery he was at the scene of the accident. There is not enough to sustain a motion for summary judgment, because the events which lead up to the accident themselves are in contention. Regardless of the admissibility of the accident report, which is an issue at time of trial, not in a motion for summary judgment, there are still disputed facts. The parties testified differently as to the distance between the cars as well as the subsequent actions taken by each driver with regard to the lane placement, speed and ultimate cause of the accident. Whether or not plaintiff can sustain his burden of proof at trial to prove the defendant is the driver of the vehicle he believes caused the accident is an issue for trial. The defendant has admitted in the discovery that he witnessed the accident. Whether or not the jury finds the defendant’s car caused the accident or not is a question for the jury.

Furthermore, we note that if circumstantial evidence is presented by the plaintiff, it could draw into question the facts of the occurrence of the accident itself. Plaintiff is correct in his response to defendant’s motion for summaiy judgment that if a finder of fact chooses to believe defendant’s testimony, a verdict in favor of the defense would likely be entered. Conversely, if a finder of fact believes plaintiff’s version, a verdict can be rendered on behalf of plaintiff based on the weight of circumstantial evidence presented. Because these are material facts necessary for the establishment of the cause of action, and these facts are in dispute, summary judgment cannot be granted.

Accordingly, viewing the evidence in a light most favorable to the non-moving party, this court finds there are genuine issues of material facts as presented through the depositions, exhibits and admissions of both plaintiff and defendant. As such, summary judgment is not appropriate at this time, and we enter the following order.

ORDER

And now, this 31st day of October, 2013, upon consideration of defendant’s motion for summary judgment, the same is denied.