author: SOLOMON, J,

text:
    Smalley v. JHA-Markleysburg Inc.

      Peter D. Giglione, for plaintiff.

      David Stutman, Daniel Fautel and Arthur Hoffman, for defendants.
    November 15, 2007
   SOLOMON, J,

BACKGROUND

Initially commenced at docket no. 1514 of 2005, G.D., on June 21, 2005, this action was consolidated after a complaint against other defendants was filed at docket no. 30 of 2006, G.D. Overall, this consolidated action alleges professional negligence, corporate negligence, negligence, and wrongful death against the defendants. Among those named as defendants were Beverly Enterprises-Pennsylvania Inc. d/b/a Beverly HealthcareUniontown, Beverly Health and Rehabilitation Services Inc. and Beverly Enterprises Inc.

The defendants filed preliminary objections to the complaint of the plaintiff seeking, in part, an enforcement of an arbitration agreement entered into by F. Randall Smalley (plaintiff), on March 3, 2004, on behalf of his father, Frederick Smalley Jr. (decedent). The plaintiff asserts that he did not have authority to enter into the arbitration agreement on behalf of his father because his father was incapacitated at the time of the execution of a power of attorney. An evidentiary hearing was then held on the issue of the validity of the arbitration agreement.

STATEMENT OF THE CASE

Prior to his death, the decedent required full-time care from a nursing facility. In his complaint, the plaintiff alleges that during his stay at certain nursing facilities, the decedent was not provided with adequate health care, with the lack thereof ultimately contributing to his death. Among these allegations, the plaintiff’s complaint avers that his father failed to receive the proper degree of care at Beverly Healthcare-Uniontown, a facility owned, operated, and managed by the defendants.

On March 3,2004, while at the Henry Clay Villa facility, and prior to being admitted to the facility of the defendants, the decedent executed a document granting the plaintiff power of attorney. The plaintiff wanted the power of attorney so that he would have the ability to cash the decedent’s checks and to transfer a property interest of his father’s. Present as a witness during the execution of this power of attorney was Brenda Waters, a notary public.

In the months leading up to the execution of the power of attorney, the decedent often had difficulty with conversations because his speech was slurred. In his deposition, the plaintiff stated that his father did not read the document and that when he executed the document, he “scratched his name on the document.” With regard to whether his father knew the purpose of the document when he signed it, the plaintiff offers contradictory testimony. When asked if his father appeared to know why the power of attorney was needed, the plaintiff answered, “[a]s far as I know.” Then, when later asked if his father had the mental ability to sign a power of attorney, he responded, “I don’t think he would even know totally what was going on,” describing his father’s condition as being similar to someone who had suffered a stroke.

On June 2, 2004, due to a worsening medical condition, the decedent was admitted to Beverly HealthcareUniontown. Two days later, on behalf of his father, the plaintiff signed an arbitration agreement that was witnessed by Sharon Bealko. The arbitration agreement provides that:

“It is understood and agreed by facility and resident that any and all claims, disputes, and controversies . . . arising out of, or connection with, or relating in any way to the admissions agreement or any service or health care provided by the facility to the resident shall be resolved exclusively by binding arbitration....”

After instituting this action, the plaintiff obtained the affidavit of Dr. Frank Perrone, dated July 25, 2006, asserting that Frederick Smalley had a history of mental illness. The doctor states that during the period from April 2002 through May 10, 2004, he regularly treated the decedent. Primarily, the doctor opines that the decedent suffered from dementia and severe cognitive impairment connected to years of alcohol abuse. Since the decedent suffered from these conditions, Dr. Perrone believed that Frederick Smalley lacked the mental capacity to know the nature of his actions at the time he executed the power of attorney. This conclusion is based upon a review of medical records as well as his recollections of the decedent while he was a patient.

DISCUSSION

The preliminary objections of the defendants seek to compel the plaintiff to submit to arbitration, arguing that since a valid arbitration agreement was entered into by the plaintiff and Beverly Healthcare-Uniontown, the plaintiff’s only available remedy is through the arbitration process. In opposition, the plaintiff claims that the arbitration agreement is not a valid contract since it was executed when the plaintiff, under his power of attorney, lacked authority due to his father’s incapacity.

Under Pa.R.C.P. 1028(c)(2), if an issue of fact is raised by preliminary objection, the court shall consider evidence by “deposition or otherwise.” Further, the Pennsylvania Superior Court has held that where facts are controverted by preliminary objections, the trial court must resolve the dispute by receiving evidence through “interrogatories, depositions, or an evidentiary hearing.” Slota v. Moorings Ltd., 343 Pa. Super. 96, 100, 494 A.2d 1, 3 (1985). The submission of evidence by affidavit is not recommended to determine preliminary objections, but courts have relied on affidavits when “the facts attested to . . . [are] both clear and specific.” Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 14, 602 A.2d 864, 870 (1992).

As to arbitration agreements, the settlement of disputes through arbitration is not against public policy but is encouraged when proper to lessen over-crowded and congested court dockets. Mendelson v. Shrager, 432 Pa. 383, 385, 248 A.2d 234, 235 (1968). Under Pa.R.C.P. 1028(a)(6), a party may compel arbitration by filing preliminary objections on the grounds that the claim is subject to a prior agreement for alternative dispute resolution. When a party seeks to compel arbitration, the trial court’s inquiry is limited to determining whether a valid arbitration agreement was entered into and, if so, whether the dispute in question is within the scope of the arbitration provision. H.L. Libby Corp. v. Shelly and Loy Inc., 910 F. Supp. 195, 199 (1995), citing PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 377, 632 A.2d 903, 905 (1993). If a trial court determines that arbitration is required, then the arbitrators will be the final judges of both law and fact, unless restricted by the agreement. Messa v. State Farm Insurance Company, 433 Pa. Super. 594, 599, 641 A.2d 1167, 1169 (1994).

In order to determine whether a valid arbitration agreement exists, the underlying issue of whether the plaintiff’s father had the requisite capacity to execute a power of attorney must be determined. Under Pennsylvania law, a totally incapacitated person is incapable of making any contract, gift or instrument in writing. 20 Pa.C.S. §5524. An “incapacitated” person is an “adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.” 20 Pa.C.S. §5501.

Furthermore, when a case involves the issue of the mental capacity, the question is the condition of the person at the “very time he executed the instrument. . . .” Taylor v. Avi, 272 Pa. Super. 291, 297-98, 415 A.2d 894, 897 (1979). There must be strong evidence of incapacity; “mere weakness of intellect resulting from sickness or old age” will not set aside an executed contract if an individual still comprehends the “nature and character” of the transaction. Id., 272 Pa. Super, at 296-97, 415 A.2d at 897.

In support of his contention that the decedent was incapacitated, the plaintiff relies upon the decedent not reading the power of attorney, that he spoke with slurred speech, and that he had a history of suffering from mental impairment. As to his first contention, we note that the failure to read a contract does not render the instrument invalid. The Supreme Court of Pennsylvania has held that failure to read a contract is “an unavailing excuse or defense” and cannot justify an “avoidance, modification or nullification” of the contract. Olson Estate, 447 Pa. 483, 488, 291 A.2d 95, 98 (1972). As to the decedent speaking with slurred speech, the mere fact that he spoke with slurred speech is not conclusive evidence that he was incapacitated or lacked mental capacity. Such a condition may result from physical decline, or other illnesses, but without evidence that the individual lacked comprehension, it is certainly not enough to infer incapacity.

As to the decedent’s history of suffering from mental impairment, although the record reveals certain evidence that the plaintiff’s father had a history of dementia related to alcohol abuse, that evidence does not establish that the decedent was incapacitated on the day in question. In his deposition, the plaintiff testified, initially, that as far as he knew, the decedent understood why the power of attorney was needed. Later, he testified that he did not “think” that his father knew totally. This evidence certainly is not strong evidence of incapacity. Further, neither the plaintiff nor the independent notary witness expressed any concerns that the decedent lacked capacity at the time of his execution of the power of attorney. In fact, the plaintiff, as he testified, used the power of attorney to his benefit and has only raised the issue of incapacity in this lawsuit.

As to the affidavit of Dr. Perrone, the facts attested to are not both clear and certain, or specific, so as to permit this court to rely upon it and determine that the decedent was incapacitated at the time he executed the power of attorney. Most notably, the affidavit contains an opinion rendered over two years after the death of the decedent and does not specifically describe the decedent’s mental capacity at the time of his execution of the power of attorney. It merely states a general conclusion that the doctor “believes” the decedent was incapacitated throughout his treatment. This “belief’ is not stated with any medical certainty, and certainly not within reasonable medical certainty. Therefore, since the record does not support a finding that the decedent lacked the requisite capacity at the time when the power of attorney was executed, we can reach no conclusion other than to find that the arbitration agreement is valid.

Since a valid arbitration agreement exists between the parties, it must then be determined whether the present dispute is within its scope. Here, the plaintiff alleges that the defendants were negligent in providing health care to his father, resulting in injury and leading to his death. A reading of the arbitration agreement at issue clearly establishes that “any claim, dispute, or controversy” which is connected or related to “health care provided by the facility” must be resolved “exclusively by binding arbitration.” Since the present dispute arises from the health care provided to the decedent while he stayed at the defendants’ facility, it clearly is within the scope of the arbitration agreement.

Wherefore, we will enter the following order.

ORDER

And now, November 15, 2007, it is hereby ordered and decreed that the preliminary objections of the defendants are sustained and that this matter must be submitted to arbitration in accordance with the arbitration agreement entered into on June 4, 2004.

      . Plaintiff’s complaint, filed March 1, 2006, paragraph 145.

      . Id. at paragraphs 11-17.

      . Deposition of F. Randall Smalley Jr., taken August 2, 2006, at 18.

      . Id. at 32, 37.

      . Wat 19.

      . Id at 56.

      . Id at 39.

      . Id. at 24.

      . Id at 39.

      . Id at 43.

      . Id at 50.

      . Arbitration agreement, defendants’ preliminary objections, exhibit C, dated June 2, 2004.

      . Deposition of Sharon R. Bealko, taken August 2, 2006, at 23.

      . Arbitration agreement, supra note 12.

      . July 25,2006, affidavit of Dr. Frank Perrone, filed by the plaintiff on August 2, 2007.

      . Id.

      . Id.

        .Id.

      . Id.


source: Caselaw Access Project

author: DiVITO, J,

license: Public Domain

text:
    Hurvitz v. Starbucks Corp.

      Stephen C. Hurvitz, for plaintiff.

      Anthony W. Hinkle, for defendant.
    November 20, 2007
   DiVITO, J,

PROCEDURAL HISTORY

On May 3, 2006, Judith Hurvitz filed a complaint against Starbucks for personal injuries, alleging a premises-liability negligence claim. On December 28, 2006, an award of arbitrators was entered in favor of plaintiff in the amount of $40,000. Starbucks appealed on January 12,2007. On May 11,2007, Starbucks filed a motion for summary judgment. Plaintiff filed her answer on May 29,2007, and her own motion for summary judgment on June 13, 2007. On June 21, 2007, this court granted Starbucks’ motion for summary judgment, with prejudice to plaintiff. Plaintiff subsequently filed this appeal.

FACTUAL HISTORY

On November 26, 2005, Judith Hurvitz was served a cup of hot water for tea at a Starbucks store. The hot water was served in a “double cup.” When Ms. Hurvitz removed the lid from the container to insert a tea bag, she spilled hot water on her forearm, causing first- and second-degree bums to her hand and forearm.

DISCUSSION

Summary judgment is appropriate when upon completion of discovery the moving party has established that there exists no genuine issue of material fact necessary to sustain the cause of action. Pa.R.C.P. 1035.2; Horne v. Haladay, 728 A.2d 954, 955 (Pa. Super. 1999).

Plaintiff brings a premises-liability negligence claim. The basic elements of a negligence cause of action are: (1) duty owed by defendant, (2) breach of duty by defendant, (3) plaintiff incurred actual loss or damages, and (4) there is a causal connection between defendant’s breach and pláintiff’s damages. Krentz v. Conrail, 589 Pa. 576, 588, 910 A.2d 20, 27 (2006). The breach of a duty owed to a business-invitee exists where the possessor: (1) knows or by exercise of reasonable care would discover the condition and should realize that it involves unreasonable risk of harm to invitees, (2) should expect that an invitee will not discover or realize the condition or fail to protect against it, and (3) fails to exercise reasonable care to protect the invitee against the condition. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). Therefore, the primary inquiry is whether a dangerous or defective condition exists and, if so, whether it involves an unreasonable risk of harm.

Plaintiff has not alleged sufficient facts to support a finding of an unreasonable risk of harm. Plaintiff alleges only that the hot water was improperly packed and was therefore in a defective condition, without providing facts to substantiate how it is so. Plaintiff does not proffer any evidence as to breach of industry standards, problems with the construction of the cup or lid, or that the cup was improperly over-filled.

In Pennsylvania, where a reasonable person in the position of an invitee exercising normal perception, intelligence and judgment would recognize a danger, it is deemed obvious. Id. No liability exists when the dangerous condition is obvious to an invitee. Restatement (Second) of Torts §343A(1) (1965).

Plaintiff was served hot water in a double cup. The cups are not alleged to be defective or damaged, and the water was “double-cupped” for her protection. A reasonable person in Ms. Hurvitz’ position would know that hot water can cause a bum, and as such, reasonable care must be exercised when handling it and removing and replacing a lid.

The accident at issue occurred when Ms. Hurvitz removed the lid from the double cup, causing hot water to spill out and burn her arm. Her subsequent injury is the result of a mere accident. Further, “the mere existence of a harmful condition in a public place of business, or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of the proprietor’s duty of care to his invitees, nor raises a presumption of negligence.” Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525, 422 A.2d 593 (1980).

Plaintiff must establish that Starbucks deviated from the duty of reasonable care that it owed in the circumstances (that Starbucks knew or in the exercise of reasonable care should have known of the harmful condition). Neve v. Insalaco’s, 771 A.2d 786 (Pa. Super. 2001). Plaintiff has failed to establish that Starbucks breached a duty owed to her, and cannot establish a prima facia negligence cause of action. Consequently, there exists no genuine issue of material fact as to any negligence on the part of Starbucks which could have caused Ms. Hurvitz’ injury. Therefore, summary judgment is appropriate.

CONCLUSION

Based on the foregoing, the judgment in the case should be affirmed.


author: HANNA, J.,

text:
    Lizik v. Lizik

      Laurel Diznoff, for plaintiff.

      Matthew Budash, for defendant.
    December 3, 2007
   HANNA, J.,

This matter comes before the court on defendant’s exceptions and plaintiff’s counter exceptions to the report and recommendation of the divorce master. For the reasons set forth in this opinion, the court grants defendant’s exceptions 1, 3 and 5, and denies exceptions 2, 4 and 6. Plaintiff’s exceptions 4 and 7 are granted, and 2, 5, 6, 8, 9 and 10 are denied.

FACTUAL AND PROCEDURAL HISTORY

Anne Catherine Lizik (Wife) and John Gerald Lizik Jr. (Husband) were married on August 28, 1976. Three children were born of the marriage, all of whom are now adults. The parties separated on May 3,2003. Wife filed for divorce on July 29,2003. Husband filed a motion for appointment of master on August 11,2006. In response, Wife filed a motion to quash appointment of master, which was denied by this court on October 25, 2006. Following a pre-hearing/settlement conference on December 7,2006, a master’s hearing was held on December 14, 2006 before Divorce Master Sharia Coughlin, Esquire. Based on the testimony presented, the master filed a report on March 5, 2006. She recommended: equitable distribution in a 55 percent-45 percent split in Wife’s favor, holding Wife responsible for outstanding and future Parent PLUS loans, and denial of alimony and counsel fees. (Master’s report at 29, 38, 39.)

On April 25,2007, Husband filed six exceptions to the master’s recommendations.

(1) Master erred by including as marital debt preseparation Parent PLUS loans incurred on behalf of parties’ adult children.

(2) Master erred by including as a factor for equitable distribution post-separation Parent PLUS loans incurred by Wife (as expense of Wife).

(3) Master erred by determining the Husband retained household contents having value of $16,000.

(4) Master erred by considering as a factor for equitable distribution that Wife paid $800 per month in rent.

(5) Master erred by not giving Husband credit for post-separation payoff of the Pontiac Grand Am in the amount of $4,430.

(6) Master erred by awarding Wife 55 percent of the marital assets.

On May 14, 2007, Wife filed 10 counter exceptions.

(1) The master’s recommendations are against the weight of the evidence.

(2) Master erred in determining value of marital residence to be $140,000 (by splitting difference between parties’ appraisals) — master should have found it to be $145,000.

(3) Master erred in reducing value of marital residence by sales commission when there was no evidence that Husband intended to sell the property.

(4) Master erred in not granting Wife’s request for fair rental value.

(5) Master erred in finding that Wife received parties’ 2002 income tax refund.

(6) Master erred in finding that Husband did not dissipate value of Pontiac Grand Am.

(7) Master erred in failing to consider Husband’s preseparation, individual checking account as a marital asset.

(8) Master erred in finding that Husband had only $85,000 in separate property.

(9) Master erred in not awarding Wife 60 percent of the marital property.

(10) Master erred in not granting Wife alimony (failed to consider needs of parties and difference in income; failed to find Husband committed indignities; failed to allow testimony re: Husband’s discipline of the parties’ children as evidence of indignities.

Wife withdrew exception 1 and 3 at the argument before this court on September 26, 2007. This withdrawal was confirmed in a letter to the court dated November 27, 2007. For the purpose of consistency and clarity, the court will continue to refer to the remaining exceptions by their original numbers in this opinion.

DISCUSSION AND ANALYSIS

Each party’s exceptions will be discussed in turn below. As Husband filed his exceptions first, they will be addressed first.

Husband’s Exceptions

(1) Master erred by including as marital debt preseparation Parent PLUS loans incurred on behalf of parties’ adult children.

The master gave Wife credit for the pre-separation Parent PLUS loans because they were “apparently something the parties may have agreed to DURING the marriage and was their ‘joint’ responsibility.” (emphasis added) (Master’s report at 8.) Husband argues that he never agreed to pay for the children’s college education, and he should not be penalized for Wife’s gratuitous decision. Wife contends that Husband was untruthful in his testimony.

It is first important to note that parents are under no obligation to pay for their children’s college education. See Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992). Therefore, the issue before the court is strictly whether or not the Parent PLUS loans are a marital debt. Debts that accrue jointly before separation are marital debts. However, a debt accrued during this time may be a non-marital debt where the other spouse did not take part in incurring the debt and received no benefit therefrom. Without documentation to support a spouse’s allegations regarding marital debts, the court is not required to accept those allegations. Litmans v. Litmans, 449 Pa. Super. 209, 236-37, 673 A.2d 382, 395 (1996).

In the present case, Wife testified that Husband told her to take out loans for the children’s college education because he did not want to use the money in the trust accounts. (Hearing transcript at 40.) She further testified that Husband knew she was taking out the loans because he was standing in the kitchen when she made the phone call to obtain the loans. (Hearing transcript at 41.) Wife also testified that Husband told her that it was her department to find the tuition money. (Hearing transcript at 41-42.) Husband testified that, while he was aware that Wife took out Parent PLUS loans, he did not approve of the loans and had nothing to do with them. (Hearing transcript at 116.)

Based on the master’s use of the words “apparently” and “may” in crediting Wife with the Parent PLUS loans, the court believes that the master did not definitively find that the parties agreed to take out the loans. Further, the master was in the best position to determine truthfulness of the witnesses, and her report gave the court no reason to distrust Husband’s testimony. Therefore, the court finds that the contradictory testimony of the parties does not depict a meeting of the minds necessary to establish an oral agreement regarding the Parent PLUS loans. The loans are not marital debt and Husband’s exception 1 is granted.

(2) Master erred by including as a factor for equitable distribution post-separation Parent PLUS loans incurred by Wife (as expense of Wife).

Husband argues that the master should not have taken the post-separation Parent PLUS loans into consideration as a debt incurred and paid by Wife. Husband asserts that, because there is no legal obligation to provide one’s children with post-secondary education support, Wife’s “gratuitous decision” to provide such support should not be imposed upon Husband. As stated above, Husband’s argument is correct in regards to whether the Parent PLUS loans are considered marital debts. However, the argument is inapplicable in terms of current economic circumstance of the parties, which requires merely a statement of the debts and/or assets of each party.

Under 23 Pa.C.S. §3502(a)(10), current economic circumstance is a factor to consider for the purposes of equitable distribution. In order to fully develop this factor, the master was required to consider the post-separation loan debt in her analysis, just as she would have been required to Husband’s debt, if he had any. The master properly noted all current debts, or lack thereof, of both parties because the statute required her to do so. Further, the master noted in her report that she only considered Wife’s indebtedness on the loans in regards to Wife’s present economic circumstances. (Master’s report at 26.) Therefore, because the master was required to consider Wife’s debts as part of an equitable distribution factor, Husband’s exception 2 is denied.

(3) Master erred by determining the Husband retained household contents having value of $16,000.

Husband argues that master assigned too high of a value to the property that Husband retained. Husband testified that he retained $5,000 worth of property. (Hearing transcript at 121.) He further testified that the property he kept was in “average” condition and was purchased throughout the 27-year marriage. (Hearing transcript at 120.) According to Husband, he kept the following property: pictures, furniture, televisions, sewing machine, filing cabinets, desk, bookshelf, computer, photo album, books, china, bedroom furniture, a piano, appliances, lawn machinery and silverware. (Hearing transcript at 117-20.)

Wife testified that Husband kept $15,000 worth of property. (Hearing transcript at 55.) According to Wife, Husband kept living room furniture (nine pieces — includes piano), dining room furniture (nine pieces), kitchen furniture (six pieces), family room furniture (five pieces), master bedroom furniture (six pieces), kids’ bedroom furniture (11 pieces in three bedrooms), lamps, dishes, pots, pans, Tupperware, china, tools, riding mower, snow blower, sheets, towels, washer and dryer set (purchased in 1997 or 1996), chest freezer, second refrigerator. (Hearing transcript at 51-55.) Wife further testified that she had credit card debt of $16,000, much of which came from reestablishing her home. (Hearing transcript at 60.)

Neither party had the property appraised. The master found that, even at 30 years old, these items were of good quality and would have been expensive to replace even at “private used prices.” (Master’s report at 11290 CD 2003.) She then valued the property at $16,000, which is a higher value than either party testified to. It seems that the master used Wife’s replacement price as the value for the property. This was an error, as Wife was buying brand new items to replace items that were acquired over a 27-year marriage. Therefore, the court must correct this error and value the property based on the testimony.

First, it is important to note the general rule that “an owner of property, real or personal, is competent to testify as to its value.” Silver v. Television City Inc., 207 Pa. Super. 150, 157, 215 A.2d 335, 339 (1965). This presumption is overcome only by a clear showing that the owner has no knowledge of value. Id. Further, while the Divorce Code does not include a method of valuing assets, the Pennsylvania Superior Court has provided some guidance on the issue, stating that courts are free to accept all, portions of, or none of the testimony regarding the true and correct value of property. Aletto v. Aletto, 371 Pa. Super. 230, 537 A.2d 1383 (1988). In Aletto, the Superior Court upheld the trial court’s decision to assign equal weight to the testimony of two experts and average the two figures to arrive at fair market value of a marital residence. 371 Pa. Super, at 242, 537 A.2d at 1389.

Here, the only evidence this court has regarding value of the household contents is the parties’ testimony. The parties generally seem to be in agreement about the specific items that Husband retained. The only conflict is their differing opinions as to the value. The master gave no indication that either party was untrustworthy. Further, the parties would clearly be able to form an opinion regarding value of the items because they were the buyers and had knowledge of the value of the items when they were new. Acting on the presumption that both parties, as owners, were competent to testify regarding the household contents’ value, the court assigns equal weight to the parties’ opinions. Therefore, because the court finds both opinions credible, it will follow the lead of the Aletto court and take the average of the two values, which is $10,000. Husband’s exception 3 is granted.

(4) Master erred by considering as a factor for equitable distribution that Wife paid $800 per month in rent.

Husband argues it is error to include this amount, as Wife failed to provide evidence (other than her own testimony) that she pays rent. Wife testified that she pays $800 per month for rent. (Hearing transcript at 35, 63, 73-74.) Wife resides in a home that was purchased by her mother in April 2005 for $140,000. (Hearing transcript at 73-74.) The mortgage payment is $879, and Wife is reimbursing her mother for the mortgage by paying $800 per month in rent. (Hearing transcript at 73.) The master evidently found Wife’s testimony on this issue to be credible, as she considered the rent in her report. This court has no reason to upset the master’s determination of witness credibility in this instance. Further, the court is aware of no statute that requires documentation to be provided before it can give credence to a statement regarding rent. If Husband wanted to see such documentation, he had the opportunity to obtain it through discovery. Because Husband did not pursue documentation, all the court has before it on this issue is Wife’s testimony and the master’s finding of Wife’s credibility. Therefore, Husband’s exception 4 is denied.

(5) Master erred by not giving Husband credit for post-separation payoff of the Pontiac Grand Am in the amount of $4,430.

Husband argues he should have been credited $4,430 for paying off a marital debt. Husband’s exhibit 8 shows that when he traded in the Grand Am, a lien in the amount of $4,430 was paid off. The master mentioned Husband’s exhibit 8 when she credited him with the Grand Am as a $5,300 marital asset, but she did not discuss the lien that Husband paid off. The court believes this was an oversight on the master’s part and must be corrected. Therefore, Husband’s exception 5 is granted.

(6) The Master erred by awarding Wife 55 percent of the marital assets.

Both parties argue that the master erred in her equitable distribution scheme. (See Wife’s exception 9, below.) Husband argues that Wife should have received less than 55 percent because the master took Parent PLUS loans into account as marital property, and the master improperly assessed the household assets, both of which affected the distribution scheme. The court agrees that the Parent PLUS loans and household assets affected the cash payment that Husband was required to pay to Wife. However, the amounts involved in those aspects of distribution were not enough to affect the overall distribution of a marital estate in excess of $1,000,000.

Wife argues that she should have been awarded a greater portion of the marital property, and employs Factors 3,5,9 and 10 to support her argument. Each of these factors will be addressed briefly below.

Factor 3: Sources of Income

Wife asserted that Husband’s separate property should be valued at $138,000, rather than the master’s finding of “over $85,000.” Wife also argued that she should have been credited for several expenses, which the master did not include because they were not “Wife’s expenses,” but rather children’s expenses. Both Wife and the master noted that Wife’s pension is about $33,000 more than Husband’s.

Factor 5: Future Assets and Income

Wife argues that Husband has a greater opportunity for future increases in income. The master acknowledged that Husband has a greater opportunity for income, but notes that Wife’s pension is larger, and, once Wife stops “funding the grown children’s lives and educations to the extent she presently is,” acquiring capital assets is not out of the question for her.

Factor 9: Standard of Living During the Marriage

Wife argues that she has had to live in more modest homes since separation, she pays for her children’s college education, and holds down three to four jobs to meet her expenses. The master noted that “[wjith the help of Wife’s relatives and post-separation gifts of used furniture and Wife expending some $ 16,000 to reestablish her household, each party continues to reside in a $140,000 home with the amenities of a middle class lifestyle.” Therefore, Wife seems to be maintaining the same standard of living that she had during the marriage.

Factor 10: Present Economic Circumstances

Wife argues that Husband has received a pay raise since the hearing. As discussed above in footnote 7, the court cannot consider any new evidence. Wife does have a larger pension than Husband. Wife’s assistance to her adult children is commendable, but it is not a factor that the court can take into consideration.

Based on the above factors, and all of the equitable distribution factors, which the master discussed in her report, the court finds no reason to disturb the master’s distribution scheme. As previously stated, the amounts involved in these aspects of distribution were not enough to affect the overall distribution of a marital estate in excess of $1,000,000.

Husband’s exception 6 and Wife’s exception 9 are denied.

Wife’s Exceptions

(2) Master erred in determining value of marital residence to be $140,000 (by splitting difference between parties’ appraisals) — master should have found it to be $145,000.

Wife’s expert valued the home in November 2006 at $ 145,000. Husband’s expert valued the home in November 2005 at $135,000. Both parties stipulated to entering the appraisals into evidence without having the experts present at the hearing. The master explained in her report that, because she did not hear testimony from the experts, and because both experts seem to be reliable in their reports, she chose to split the difference between the two appraisals, taking into account the fact that if Husband were to sell the real property, he would incur 6 percent realtor’s commission and transfer taxes. (Master’s report, page 5.) This made the master’s final value of the marital residence $131,600.

Wife cites to Powell v. Powell, 395 Pa. Super. 345, 359, 577 A.2d 576, 583 (1990), for the proposition that “since equitable results will most likely flow from providing the court with the most recent information available, it is persuasively argued that this would occur by valuing marital property as of the date of the equitable distribution hearing.” The Powell court refused to recognize a specific valuation date for every case because it would deprive the court of necessary discretion. However, the court stated that “the valuations should be made as close as possible to the property distribution date.” Wife argues that because her appraisal was one year closer to the distribution date, hers should be the value that is used for distribution purposes.

The court finds that the master properly averaged the two appraisals. The court first established a procedure for the real estate appraisal in 2004 (see order of court of June 15, 2004, paragraph 2). Husband obtained an appraisal in November 2005 and provided the report to Wife in June 2006. Wife did not raise concerns about Husband’s appraisal until eight days prior to the master’s pretrial conference when she requested additional time to complete her own appraisals and additional discovery. While the court granted Wife’s request for a continuance, it also sanctioned Wife for her dilatory conduct in this matter. While Wife’s appraisal is more current, it is due to Wife’s delay and it would be improper to award her an advantage because of her own actions.

This case is a prime example of why the Powell court refused to recognize a specific valuation date for every case. While Wife’s appraisal occurred closer in time to the hearing date, based on the circumstances above, it would be inequitable to rely solely on Wife’s appraisal. The parties stipulated to entering both of their appraisals without expert testimony. Without any record to examine except for the appraisals themselves, the court finds that the most equitable thing to do is to give equal weight to both appraisals and take the average, which is what the master did. Therefore, the court denies Wife’s exception 2.

(4) Master erred in not granting Wife’s request for fair rental value.

The master denied Wife fair rental value because the master found that Husband’s post-separation payments were greater than the fair rental value that Wife would have received. (Master’s report at 29.) Wife argues that the master erred in her calculations of the rental value. Rather than attempt to explain the master’s calculations versus Wife’s calculations, the court sets forth its own calculations using the stipulated numbers for the amount of time Husband remained in the marital residence post-separation; the fair rental value of the residence; and Husband’s post-separation payments on mortgage, real estate tax and homeowner’s insurance. These amounts are:

$695 (stipulated monthly rental value)
x 43 (months)
$29,885.00 (total rental value)
Wife is entitled to 50 percent credit on fair rental value.
$29,885.00 divided by 2 = $14,942.50 (Wife’s credit for rent).
Husband and Wife were jointly responsible for mortgage, real estate tax and homeowner’s insurance. Husband paid all of these expenses over the 43 months after separation. Therefore, Wife’s credit for fair rental value must be offset by her share (half) of those expenses.
$4,184.00 (half of the mortgage)
$3,557.50 (half of the real estate tax)
+$1.241.50 (half of the homeowner’s insurance)
$8,983.00 (Total payments Husband made on Wife’s behalf)
$14,942.50 (half of fair rental value)
-$8.983.00 (half of post-separation residence expenses)
$5,959.50 (Wife’s credit for fair rental value)
The court’s calculations show that Wife is entitled to a credit of $5,959.50. Therefore, the court grants Wife’s exception 4.

(5) Master erred in finding that Wife received parties ’ 2002 income tax refund.

Wife argues that the Master should not have credited her with the 2002 tax return because the parties agreed to use the 2002 tax refund for a computer for their son, Joshua. Wife further contends that the parties agreed that Wife would take Joshua shopping for the computer, as Husband had little or no knowledge of computers. Wife argues that the master should have accepted her testimony rather than credit Wife for the refund.

Husband testified that he said he would buy Joshua a computer. (Hearing transcript at 158.) He testified, however, that he never bought Joshua the computer because he was never given his share of the 2002 tax return. (Hearing transcript at 158-59.) Wife testified that Husband told her that when he got his share of the 2002 tax return he would take Josh and use the money to buy a computer for school. (Hearing transcript at 162.) Wife testified that she told Husband if that was what he was going to do, she would take Josh and get the computer, and Husband agreed. (Hearing transcript at 162.)

The court finds that the contradictory testimony of the parties does not establish a meeting of the minds necessary for an oral agreement. The only issue regarding the tax return that the parties agreed upon was that Wife received it, and did not give Husband his share. Therefore, the master properly deemed the tax return to be a marital asset subject to distribution and credited Wife for it. Wife’s exception 5 is denied.

(6) Master erred in finding that Husband did not dissipate value of Pontiac Grand Am.

In her brief, Wife argued that Husband dissipated the value of the Grand Am because the parties’ son, Josh, was willing to purchase the car for the entire indebtedness in June 2003. Husband traded the car in on July 26, 2005. Wife asserts that Husband traded the car in at a loss. The master refused to find that Husband dissipated marital property by choosing to trade in the car rather than pay it off by selling it to Josh. Rather, the master found that Husband had as much right to trade in the Grand Am as Wife had to trade in the Chevy Blazer.

The court first notes that there is no testimony regarding the exact date that Wife proposed that Husband sell the car to Josh. Wife testified:

“After I filed for divorce, John told Josh he wanted the car back, that he couldn’t afford to make payments on it any more, and that it was my fault that he wanted the car back. Josh had saved $4,000 working at a grocery store. And my mother asked me if I would get the amount of money owed on that particular car and whatever Josh had she would make up the difference and they would buy the car from John for what he owed on it, which I did make that offer to John, and he said why would he sell it to me for what he owed on it when he could sell it outright and make a profit on it, so John took the car and Josh used his savings and the money from my mother to purchase another vehicle.” (Hearing transcript at 48-49.)

Husband testified that he did not remember a conversation about Josh buying the car. (Hearing transcript at 124, 158.) Rather, Husband testified that he attempted to sell the vehicle, and had three people look at it, but ultimately was unable to sell it. (Hearing transcript at 124-25.)

Based on the parties’ testimony, the court does not believe that Wife met her burden of proof that Husband dissipated a marital asset by not selling the car to Josh. First, it is unclear as to whether such an offer even existed, as the parties have contradictory testimony on this issue. Next, even if such an offer was made, Husband was under no obligation to sell the car to Josh or anyone else, just as Wife was under no obligation to trade in the Chevy Blazer.

In Pennsylvania, for the purposes of equitable distribution, a court must consider among other factors, “[t]he contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property .. . .” 23 Pa.C.S. §3502(a)(7). Black’s Law Dictionary defines dissipation as “[t]he use of an asset for an illegal or inequitable purpose, such as a spouse’s use of community property for personal benefit when a divorce is imminent.” Black’s Law Dictionary 486 (7th ed. 1999). In the present case, the value of the Grand Am was depreciated, but not due to any illegal or inequitable action on Husband’s part.

Further, other Pennsylvania courts have found dissipation of marital assets in situations where a party: increased tax liability resulting from filing individual returns rather than joint returns; gambled away assets; unilaterally transmitted funds from a bank account; or stored vehicles in the elements with no protection, allowing them to rust. This court does not believe that choosing to trade in a vehicle rather than sell it is comparable to the situations above. There is no testimony that Husband neglected or failed to maintain the Grand Am during the two years that he had sole possession of it. While it is true that the car depreciated in value over those two years, it seems that the depreciation was the natural depreciation that occurs with any vehicle, and Husband’s actions did not depreciate it any more than is normal. Further, if Wife was concerned that Husband was depreciating the vehicle, she could have filed for an injunction or asked the court to order sale of the vehicle in 2003. Because Husband was under no obligation to sell the vehicle, it was still his to use. The court agrees with the master that Husband had as much right to trade in the Grand Am as Wife had to trade in the Chevy Blazer. Therefore, Wife’s exception 6 is denied.

(7) Master erred in failing to consider Husband’s preseparation, individual checking account as a marital asset.

Wife argues that the parties’ separate checking accounts should have been included in marital assets. Wife testified that she was responsible for finances until 1999, when she insisted the parties get their own checking accounts. (Hearing transcript at 27.) Each party opened his/ her own checking account at S&T. Clearly, bank accounts of the parties fall under the definition of marital assets, and should have been included in equitable distribution.

The parties provided testimony of the checking account balances, albeit at different times. Wife testified that as of the date of separation, her checking account had a balance of $300, and Husband’s had a balance of between $7,000 and $8,000 a few months prior to seperation. She claims Husband told her the balance while balancing his checkbook. (Hearing transcript at 35-36.) Husband testified that at the time of the master’s hearing, his S&T checking account balance varied between $3,000 and $4,000. (Hearing transcript at 135.) Husband failed to rebut Wife’s testimony about the value of the accounts at separation. Therefore, the court must accept Wife’s uncontradicted testimony about the value of the separate bank accounts at separation. Wife’s exception 7 is granted and the court will include $300 as the value of Wife’s account, and $7,000 as the value of Husband’s account.

(8) Master erred in finding that Husband had only $85,000 in separate property.

Wife argues that Husband’s income and expense sheet identifies (in Husband’s handwriting) that Husband has separate assets in the amount of $138,000 (comprised of: $4,000 in S&T checking; $16,000 in S&T savings; $4,000 in credit union savings; $29,000 in municipal bonds; and $85,000 in CDs). Husband testified that these are both non-marital and post-marital monies from inheritance and savings. (Hearing transcript at 136-38.)

The court first notes that there was some confusion about Husband’s municipal bonds. Husband testified that he and his brothers all have a share in the bonds, but that his share was $29,000, not one-third of $29,000. (Hearing transcript at 146.) At argument, Husband’s attorney contended that there was an error at the hearing, and Husband’s share actually is one-third of $29,000. Further, the master found that Wife did not “meet her burden of proof” as to what portion of the bonds constitutes an increase in value of Husband’s interest from the time he received them until the time of separation. (Master’s report at 31.)

Fortunately, the court is able to resolve this issue without analyzing what Husband’s share of the bonds is. The master found that Husband “has been able to have monies directed toward savings through S&T and he has his separate property, his inheritance, at over $85,000.” (emphasis added) (Master’s report at 20.) While the master did not calculate all of the numbers as Wife did, she was clearly aware that Husband had more than $85,000 in separate property. This is evidenced by her reference to Husband’s S&T savings account, and her use of the word “over.”

Further, after reading the master’s report, it does not seem as if the master gave a great deal of weight to the current economic circumstance factor. Rather, she addressed it and treated it as one of many factors. Therefore, even if the master found that Husband had separate property in the amount of $138,000, the court does not believe that it would have made a difference in the way the master distributed the marital estate.

(9) Master erred in not awarding Wife 60 percent of the marital property.

See Husband’s exception 6 above.

(10) Master erred in not granting Wife alimony.

Wife argues that that master failed: to consider the needs of parties and difference in income, to find Husband committed indignities, and to allow testimony regarding Husband’s discipline of the parties’ children as evidence of indignities.

Wife asserts that there is a great discrepancy between the standard of living which Wife enjoyed during the marriage and the standard of living since separation. She argues that Husband is living debt free while she is living paycheck to paycheck with substantial debt repayment. As discussed above, it seems that both Husband and Wife are enjoying the same standard of living that they enjoyed during the marriage. They are living in comparable homes with similar furnishings. Further, as explained above, Wife has a greater pension than Husband, and only has “substantial debt repayment” because she generously chose to take out loans for her children’s education. Therefore, the court finds that the needs, assets, incomes and liabilities of the parties do not reflect a need for alimony.

As for the marital misconduct factor, Wife argues that Husband’s “moodiness/refusal to talk to Wife and the children; Husband’s withholding of his paycheck; Husband’s criticisms of Wife and the manner in which Husband treated the parties’ children when disciplining them” constitute indignities. Wife asserts that, in Pennsylvania, a determination of whether indignities have occurred must be decided on a case-by-case basis. She cited the Pennsylvania Superior Court that:

“While no general rule can be formulated as to what constitutes indignities in a particular action for divorce it has been held many times that vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule and any other plain manifestation of settled hate and estrangement are sufficient grounds for divorce as they, either individually or collectively, amount to indignities to the person.” Rollman v. Rollman, 280 Pa. Super. 344, 349, 421 A.2d 755, 758 (1980) (citing Schrock v. Schrock, 241 Pa. Super. 53, 359 A.2d 435 (1976). (emphasis added)

After reviewing the record, the court agrees with the master that Husband’s criticism of Wife’s cooking, arguments over money and how to raise the children, and “withholding his paycheck” does not amount to marital misconduct. Wife also alleges Husband committed marital misconduct by refusing to speak to her. Wife testified that Husband refused to speak to her for months at a time, and that she and the parties’ son, Josh, spent the last two years in the house sitting in the basement because Husband would not talk to either of them. (Hearing transcript at 30.) She further testified that after months of not speaking, Husband would suddenly start talking to her again like nothing had happened. (Hearing transcript at 30.) Husband testified that there were periods of time when the parties would not talk and he would internalize what had happened before they could begin speaking again. However, he testified that if Wife would talk to him, he would answer her. (Hearing transcript at 151.) The master did not give the court guidance on whose testimony was credible on this issue, as the master did not believe that this behavior constituted marital misconduct even if Wife’s testimony was found to be credible. (Master’s report at 36.) This court maintains that, based upon the above definition of marital misconduct, refusing to speak to one’s spouse is a grievous indignity because it is the epitome of neglect and a clear manifestation of estrangement. The court is unable to make a finding as to whether such indignity actually occurred in the present case, as the only evidence is conflicting testimony from the parties. The master was in the best position to decide who was more credible. However, as explained below, it is not necessary for the court to make a finding on this issue, as it would not change the alimony determination.

Wife also argues that the master erred in refusing to let her testify about Husband’s alleged abuse towards the children. Despite a claim in the divorce complaint regarding such abuse, the master instructed Wife to limit her testimony to abuse between her and Husband. (Hearing transcript at 29.) Wife cites to Beaver v. Beaver to support the proposition that information regarding abuse of the children should be considered as evidence of an indignity. See 313 Pa. Super. 512, 460 A.2d 305 (1983). In Beaver, the Pennsylvania Superior Court stated, “if a spouse mistreats the child of the moving spouse, such mistreatment can constitute an indignity.” Id. at 517, 460 A.2d at 309 (citing McCaskey v. McCaskey, 253 Pa. Super. 360, 385 A.2d 378 (1978). The court therefore agrees with Wife that she should have been given an opportunity to testify about Husband’s behavior towards the children. However, the court does not see a need to remand on this issue.

Even assuming there was a clear finding of marital misconduct, it is only one of 17 factors, and must be assessed in light of those other factors. As explained above, the other alimony factors show that the parties are on relatively even ground. The court finds that the other alimony factors as applied to this case would outweigh marital misconduct in favor of the master’s decision to deny alimony. Therefore, the court finds that it is unnecessary to remand this case on the issue of marital misconduct because it would not change the alimony outcome. Wife’s exception 10 is denied.

Wherefore, the court makes the following order.

ORDER

And now, December 3,2007, this matter having come before the court on both parties’ exceptions to the master’s report and recommendations and the court having heard argument thereon, it is hereby ordered and directed that:

(1) The parties, Anne Catherine Lizik, plaintiff, (Wife), and John Gerald Lizik Jr., defendant, (Husband) are divorced from the bonds of matrimony.
(2) Wife is awarded the following:
(a) All vehicles, household and personal property presently in her possession;
(b) An engagement ring, presently in possession of Husband, which Husband shall transfer to Wife within 30 days from the date of this order;
(c) Wife’s PERS pension in entirety; and
(d) A cash payment from Husband in the amount of $107,858.92, to be paid within 30 days from the date of this order.
(3) Husband is awarded the following:
(a) All vehicles, household and personal property presently in his possession, with the exception of Wife’s engagement ring;
(b) The marital home located at 128 Deer Lane, Penn Run, Pennsylvania; and
(c) Husband’s PERS pension in entirety.
(4) Wife’s claim for alimony is denied.
(5) Wife’s claim for counsel fees is denied.

      . Exceptions 1 and 3 were withdrawn, as explained below.

      . These facts were derived from the master’s report, the pleadings and the hearing transcript.

      . The children are: Jennifer Elizabeth Lizik (dob 6/18/81), Stephanie Ann Lizik (dob 7/5/83) and Joshua John Lizik (dob 7/28/85).

      . See pages 28-29 of master’s report for the complete distribution scheme.

      . In fact, Husband had little to no debt, which the master noted in her report. (Master’s report at 27.)

      . The court notes that the master misstated Wife’s testimony as valuing the property at $20,000. See master’s report at 10.

      . Factor 3 pertains to parties’ sources of income, estate, liabilities and needs. Factor 5 pertains to parties’ future assets and income. Factor 9 pertains to the standard of living during the marriage. Factor 10 pertains to the overall economic circumstances of the parties.

      . Wife further stated that she believes Husband has received a pay raise since the hearing (and is earning $85,000). She also stated that her second job as a tutor has been terminated. The court notes that it is acting in a reviewing capacity. Therefore, while the court is allowed to independently review the evidence from the master’s hearing, it is not allowed to consider any new evidence or changes in circumstance that have occurred since that hearing.

      . The court also notes that Wife’s calculations are correct except for a minor subtraction error of $2.

      . Gruver v. Gruver, 372 Pa. Super. 194, 539 A.2d 395 (1988).

      . Chadwick v. Chadwick, 68 D.&C.4th 369 (Delaware Cty. 2004).

      . Capone v. Capone, 1985 WL 384607 (Philadelphia Cty. 1985)

      . Dolinar v. Kapton, 80 D.&C.4th 156 (Allegheny Cty. 2006).

      . The court notes that it is not bound by any of these cases, except Graver. Rather, they serve as an illustration of the types of situations where Pennsylvania courts have found dissipation of marital assets.

      . Wife again argues that the court should consider the “change in circumstances” since the master’s hearing. The court again notes that it is prohibited from doing so.


author: BROWN JR., S.J.,

text:
    Commonwealth v. Davis

      Mark S. Smith, for Commonwealth.

      Edward S. Blanarik Jr., for defendant.
    January 8, 2008
   BROWN JR., S.J.,

Before the court is petitioner Charles Davis’ post conviction collateral relief petition. After a thorough review of the record, the court is satisfied there are no genuine issues concerning any material fact.

By order dated June 21, 2007, the court informed petitioner of its intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907. On July 5, 2007, the court received a pro se filing styled “response to Commonwealth’s motion to summarily dismiss post conviction relief without hearing.” The court determines petitioner raises no genuine issues concerning any material fact in his “response.” The court will, therefore, proceed with its dismissal of petitioner’s PCRA petition.

DISCUSSION

In the above-captioned case, petitioner raises the issues of ineffective assistance of counsel, obstruction by government officials, prosecutorial misconduct and trial court error. The court appointed Edward Blanarik Esquire, to represent petitioner.

Any PCRA petition must be filed within one year of the date the judgment becomes final, unless petitioner alleges and proves one of the three exceptions provided in 42 Pa.C.S. §9545(b)(1). It is petitioner’s burden to plead and prove one of the exceptions applies. Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258 (1999). PCRA timeliness requirements are jurisdictional, and, therefore, a PCRA court cannot hear an untimely filed petition. Commonwealth v. Rienzi, 573 Pa. 503, 827 A.2d 369 (2003).

Petitioner was sentenced on December 6, 2004, for the offense of simple assault to one year to two years of imprisonment, to be served consecutive to the sentence he was currently serving in a state correctional institution. Petitioner did not file a post-sentence motion with this court or a notice of appeal with the Pennsylvania Superior Court. Petitioner’s judgment became final on December 6, 2004. Petitioner filed the above-captioned petition for post-conviction collateral relief on February 1, 2007, more than one year after his judgment of sentence became final. Additionally, petitioner failed to plead any of the exceptions to the timeliness requirement set forth at 42 Pa.C.S. §9545(b)(l). Therefore, petitioner’s petition is untimely filed.

Accordingly, the following is entered:

ORDER

And now, January 8, 2008, the following is hereby ordered:

Upon consideration of petitioner Charles Davis’ petition for post conviction collateral relief, and after a thorough review of the record in the above captioned case, the court determines there are no genuine issues concerning any material facts. The court further determines petitioner’s PCRApetition is untimely. Therefore, said petition is dismissed.

Petitioner Charles Davis has the right to appeal from this order within 30 days from entry of this order.

The prothonotary is directed to submit a copy of this order to petitioner Charles Davis by certified mail, return receipt requested, pursuant to Pennsylvania Rule of Criminal Procedure 907(4).


author: STEINBERG, J.,

text:
    Commonwealth v. Ramos

      Joseph Stauffer, for Commonwealth.

      John J. Waldron, for defendant.
    February 19, 2008
   STEINBERG, J.,

On October 11, 2006, the defendant, Gilberto Ramos, was arrested and charged with criminal use of a communication facility, delivery of a controlled substance, possession with intent to deliver a controlled substance, and possession of a controlled substance. His arrest followed a drug investigation that utilized a confidential informant to purchase drugs from the defendant.

On December 6,2007, counsel for the defendant filed a “motion in limine with respect to two tapes and transcripts the Commonwealth intends to introduce at trial.” It is alleged in that motion that intercepted communications between the defendant and the confidential informant, as well as an intercepted prison telephone conversation of the defendant’s are inadmissible because the conversations are inaudible, the voices have not been properly authenticated, and the confidential informant’s statements are hearsay. It is also alleged that the transcripts are “inconsistent” with the conversations.

On December 10,2007, counsel for the defendant also filed a “motion to suppress.” It is alleged in that motion that Officer Pedro Cruz, who identified the defendant’s voice on the intercepted conversations, should be precluded from doing so at trial.

BACKGROUND

On June 20,2006, Officer Pedro Cruz of the Allentown Police Department, with the assistance of a confidential informant, arranged a controlled purchase of cocaine from the defendant. The transaction was originally to be completed inside the confidential informant’s residence at 329 North 9th Street in the City of Allentown.

The implementation of the controlled purchase commenced with the confidential informant’s phone call to the defendant. Although the confidential informant reached the defendant, the transaction was delayed because the defendant’s slumber had not reached its completion. As a result, a second phone call was placed at 1:10 p.m., and the defendant told the confidential informant that he was en route to secure the drugs. It was agreed that after securing the drugs, the transaction would take place at the confidential informant’s apartment.

The defendant arrived in a white Chevrolet Suburban at approximately 1:30 p.m. and alerted the confidential informant to his arrival. The police, who were conducting surveillance, also witnessed the arrival of the Chevrolet Suburban outside 329 North 9th Street. Officer Cruz observed the defendant, who is also known as “G-Bay,” exit the front passenger seat. The defendant was known to him by virtue of a mugshot, as well as knowledge that the defendant was wanted by law enforcement.

The defendant approached Officer Cruz’s undercover vehicle with its tinted windows, looked inside, and then returned to the Chevrolet Suburban and drove away. Moments later, the defendant called the confidential informant, and tried to convince him to complete the transaction at a nearby laundromat. The confidential informant declined because he had his son with him, and tried to convince the defendant to return to the apartment. A short time later, the white Suburban returned to 329 North 9th Street and the confidential informant entered the vehicle, and the transaction was completed. Following the completion of the drug transaction, the confidential informant handed the cocaine to Officer Cruz.

The conversations between the defendant and the confidential informant were intercepted with the use of recording devices. Officer Cruz testified at the hearing in this matter that he recognized the voice of the defendant on the intercepted conversations. He was able to render that opinion because after the defendant’s arrest, Officer Cruz interviewed the defendant for approximately 30 to 40 minutes. He also confirmed his opinion based upon intercepted prison telephone conversations of the defendant.

DISCUSSION

I. Motion in Limine

The audiotapes and the transcripts of those tapes have been reviewed to determine their audibility. The alleged conversations between the defendant and the confidential informant regarding the drug transaction are contained on multiple audiotapes. The other audiotape is a recorded telephone conversation of the defendant’s from prison. The purpose of the second tape, according to the Commonwealth, is to aid the jury in identifying the defendant’s voice on the first tape.

The authenticity of the tapes requires consideration of Officer Cruz’s testimony. Specifically, the admissibility of the methodology he used to render the opinion that it was the defendant who was speaking to the confidential informant.

A. Audibility of the Tapes

The tapes have been provided by the Commonwealth for this court’s listening pleasure. Having done so, it is this court’s opinion that the intercepted conversations on all tapes satisfy the legal requirements for audibility. The recorded telephone conversations and the body wire tapes are audible. A small portion of the body wire is unintelligible, but that has more to do with the participants to the conversation, rather than the audibility of the tape. Additionally, a small portion is in Spanish, and although this court did not understand the conversation, it was audible. The second tape with the recording of the prison telephone call contains static, but the defendant’s voice is easily heard and comprehended. There are some limited portions on the second tape that are unclear, but these portions are also attributable to the person with whom the defendant is speaking rather than audibility.

The admissibility of sound recordings is within the sound discretion of the trial court. Commonwealth v. Leveille, 289 Pa. Super. 248, 253, 433 A.2d 50, 52 (1981). See also, U.S. v. Jackson, 649 F.2d 967, 977 (3d Cir. 1981). Recordings are admissible “unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy.” U.S. v. Dimatteo, 2008 WL 186218, action no. 07-230 (E.D. Pa. January 17, 2008) (quoting U.S. v. DiSalvo, 34 F.3d 1204, 1220 (3d Cir. 1994)). Additionally, other jurisdictions have admitted recordings “notwithstanding some ambiguity or inaudibility as long as the recordings are probative.” U.S. v. Arango-Correa, 851 F.2d 54, 58 (2d Cir. 1988). However, no litmus test has been established regarding the extent of inaudibility prior to concluding a tape is untrustworthy. For example, in Dimatteo the tapes were deemed admissible where one witness testified that 90 percent of the tape recordings were audible and another stated that the majority was audible. Dimatteo at *7. In U.S. v. Hall, 342 F.2d 849, 853 (4th Cir. 1965), cert. denied, 382 U.S. 812 (1965), a tape was held admissible even though as much as 25 percent of the tape was inaudible, but the portion of the tape relating to the offer and acceptance of a bribe was audible.

The tapes reviewed by this court are almost completely audible. The confidential informant and everyone he spoke with are understandable. The body wire tape commenced at 1:11 p.m. and ended at 1:55 p.m., without any reason to believe that the recording is untrustworthy. As a result, the defendant’s claim regarding audibility is without merit.

B. Identification of the Defendant’s Voice on the Tapes and Motion To Suppress

The identification of the defendant’s voice on the tapes and the methodology used by Officer Cruz to make the identification are intertwined. As a result, both of these issues will be discussed together.

In order to authenticate a tape for its admissibility, the recording must be: (1) identified as authentic and correct; (2) the recording device must be capable of taking the conversation and the operator of the device must be competent to operate it; (3) no changes, additions or deletions have been made to the recording; (4) the recording must be preserved in a manner that is shown to the court; (5) the conversation elicited must be made voluntarily and in good faith; (6) the speakers are identified. U.S. v. Starks, 515 F.2d 112, 121 (3d Cir. 1975). Here, the defendant is only contesting the identification and methodology for identification of the speakers. The Commonwealth meets its required showing if it “produces evidence sufficient to convince a reasonable jury by a preponderance of the evidence that the defendant is the speaker in order to permit a jury to hear the tape recordings.” See Dimatteo at *4 n.5 (quoting U.S. v. Tubbs, 1990 WL 27365 at *3 (E.D. Pa. 1990)).

The identity of a speaker on an audiotape may be identified by a person who recognizes the voice on the tape recording as belonging to a certain individual. In order to accomplish the identification in this manner the Commonwealth must lay a foundation that the witness has a basis for familiarity with the voice he is identifying. See Pa.R.E. 901(b)(5). See Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977) (identification by acquaintance who then passed receiver to officer); see also, U.S. v. McCartney, 264 F.2d 628 (7th Cir. 1959) (police officer can identify voice after hearing voice several times over the telephone and talking to defendant once in person). Here, Officer Cruz can identify the voice of the defendant on the tape because he has heard the voice of the defendant on several occasions. Officer Cruz overheard the defendant speak with the confidential informant on June 20, 2006, he reviewed the tape recording of the conversations between the defendant and the confidential informant on several occasions, and he spoke with the defendant for 30 to 40 minutes at the police station on October 11, 2006. In addition, Officer Cruz has listened to approximately 20 telephone conversations involving the defendant from prison. Each of these prison telephone conversations were about 15 minutes in length. These experiences give Officer Cruz the requisite familiarity with the defendant’s voice to offer identification testimony at trial.

It is noteworthy that other courts have permitted voice identification testimony even in cases where the identifying witness had only a very brief conversation with the accused. See U.S. v. Vento, 533 F.2d 838, 864-65 (3dCir. 1976). The frequency of the contact between the witness and the defendant goes to the weight of the evidence, not to its admissibility. Hence, it is in the province of the jury to decide whether Officer Cruz’s prior interactions with the defendant are a sufficient basis to identify the defendant’s voice. State v. Sarinske, 280 N.W.2d 725 (Wis. 1979). Identification testimony is admissible where police officer identifies defendant’s voice on telephone call where officer only had interaction with defendant via in-person conversations, and jury decides trustworthiness of identification).

In addition to Officer Cruz’s identification, we find that the circumstances surrounding the tape-recorded conversations are sufficient to identify the defendant as the speaker on the audiotape. Officer Cruz testified at the hearing that the defendant telephoned the confidential informant at 1:30 o’clock p.m. to announce his arrival at 329 N. 9th Street, Allentown. Contemporaneous with this telephone call, Officer Cruz witnessed a white Chevrolet Suburban pull up in front of the address. Officer Cruz recognized the individual that exited the Suburban as being the defendant. Thereafter, following a subsequent telephone conversation between the defendant and the confidential informant, the defendant picked up the confidential informant in the white Chevrolet Suburban in front of 329 N. 9th Street, and the drug transaction was completed. Accordingly, the conversations on the tape of June 6, 2006, revealed a plan of action, which was later carried out by the defendant. These communications, along with Officer Cruz’s visual identification of the defendant, serve as circumstantial evidence that the defendant is the speaker on the audiotape. As a result, the identification of the speakers becomes a factual issue for the jury. Dimatteo at *4.

Accordingly, the pretrial motions to preclude testimony regarding the defendant’s voice on the tapes are denied.

C. Alleged Hearsay on Tapes

Hearsay is a “statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pa.R.E. 801(c). The defense contends that the statements of the confidential informant on the tapes, who apparently is not available for trial, are hearsay.

This issue has been vetted and rejected in U.S. v. Hendricks, 395 F.3d 173 (3d Cir. 2005); see also, U.S. v. Peak, 2006 WL 1030226, action no. 05-510 (E.D. Pa. April 18, 2006). The contention that “surreptitiously monitored conversations” constitute “testimonial hearsay” as explained in Crawford v. Washington, 541 U.S. 36 (2004), was not endorsed in Hendricks, supra. A corollary defense argument, however, is that even though the defendant’s statements are nontestimonial, the confidential informants’ statements are hearsay. Hendricks, supra, was required to address that issue in light of the confidential informant’s murder. Finding no hearsay problem because the informant’s statements were introduced for a purpose other than establishing the truth of the matters contained therein the court further explained:

“We thus hold that if a defendant or his or her co-conspirator makes statements as part of a reciprocal and integrated conversation with a government informant who later becomes unavailable for trial, the confrontation clause does not bar the introduction of the informant’s portions of the conversation as are reasonably required to place the defendant or co-conspirator’s nontestimonial statements into context.” 395 F.3d at 183.

For the foregoing reasons, the statements of the confidential informant on the tapes may be admitted upon proper authentication.

D. Transcripts of Audiotapes for Trial

The use of transcripts to assist the jury in understanding the audiotapes is not a novel concept. U.S. v. Lawson, 347 F. Supp. 144, 148 (E.D. Pa. 1972). See also, Com monwealth v. Hashem, 363 Pa. Super. 111, 139, 525 A.2d 744, 758 (1987), rev’d on other grounds, 526 Pa. 199, 584 A.2d 1378 (1991). The court in Dimatteo explained the purpose and use of transcripts in the following manner:

“The Third Circuit has permitted the use of transcripts to assist the jury while listening to tape recordings.
“Moreover, it is within the trial judge’s discretion to admit transcripts for use with the recordings. As these transcripts are not being admitted as evidence in and of themselves, this court will only require that they be accurate representation of the tape recordings.” Dimatteo at *7. (internal citations omitted)

Any use of transcripts requires the trial court to provide the jury with cautionary instructions, so that the jury understands that the audiotapes are the evidence, and the transcript is a guide. In fact, with the necessary instructions, the tape and transcript may be utilized by the jury during deliberations. Commonwealth v. Bango, 560 Pa. 84, 742 A.2d 1070 (1999).

The problem with the Commonwealth’s transcript of the drug transaction is that it is incomplete. The transcript ends, but the tape continues for a few minutes. As a result, the Commonwealth needs to prepare a new and complete transcript prior to its use at trial. Additionally, although the current transcript is an accurate representation as far as it goes, there are errors in the transcript. This court suggests that prior to submitting another transcript at trial, that the Commonwealth conduct a thorough review of the transcript with defense counsel to avoid similar problems.

For all the foregoing reasons, the use of proper transcripts will be permitted.

ORDER

And now, February 19, 2008, upon consideration of the defendant’s “motion in limine with respect to two tapes and transcripts the Commonwealth intends to introduce at trial” and “motion to suppress”, and after hearing thereon; it is hereby ordered that said motions are denied.

      . 18 Pa.C.S. §7512(a).

      . 35 P.S. §780-113(a)(30).

      . 35 P.S. §780-113(a)(30).

      . 35 P.S. §780-113(a)(l6).

      . Commonwealth exhibit 1. Additionally, after inquiry by this court, additional audiotapes were submitted to this court for review. This post-hearing submission was by agreement of counsel.

      . Commonwealth’s exhibit 2.

       Pursuant to this opinion, the Commonwealth is permitted to submit a more accurate and complete transcript of the intercepted conversations.


author: VALASEK, P.J.,

text:
    Commonwealth v. Betton

      Scott Andreassi, district attorney, for Commonwealth.

      Deborah Yost, public defender, for defendant.
    January 28, 2008
   VALASEK, P.J.,

Before the court for disposition is defendant’s motion to dismiss charges pursuant to Pennsylvania Rule of Criminal Procedure 600.

BACKGROUND

On August 18, 2005 John David Betton (defendant) was a passenger in a vehicle pulled over by state troopers on State Route 28 in South Buffalo Township. Following a detention during which the driver was issued a warning for a Vehicle Code violation the driver submitted to voluntary questioning and consented to a search of the vehicle. Defendant was asked to exit the vehicle and was subjected to a Terry frisk. The trooper executing the frisk retrieved from defendant’s pocket a plastic baggie containing cocaine, the subject of the instant case. Defendant was taken into custody and released the same day.

A criminal complaint was filed on August 22, 2005 charging defendant with possession of a controlled substance, manufacture, delivery, possession with intent to manufacture or deliver a controlled substance, and use of, or possession with intent to use, drug paraphernalia. An arrest warrant was issued the same day.

Defendant was arrested pursuant to the warrant on November 11, 2005. He remained incarcerated until posting bail on February 10,2006 and, following seven continuances, his preliminary hearing took place on March 27, 2006.

Defendant’s appearance for plea court was also continued several times, with defendant eventually appearing before the court on August 9, 2007. In the interim defendant filed an omnibus pretrial motion, which the court denied on October 25,2006. Defendant then failed to appear for plea court on December 7,2006 and January 4, 2007 and the court issued a bench warrant on January 5, 2007.

On the date of the instant hearing defendant had been incarcerated at the Clearfield County Jail since March 23,2007. The January 5,2007 bench warrant was entered into the National Crime Information Center (NCIC) system on April 17,2007, and “hit on” by the Clearfield County Jail on June 27, 2007.

Defendant was transported for August 9, 2007 plea court where he presented an oral motion for continuance and requested a trial. The court granted the motion that day and ordered defendant to appear for trial on September 10, 2007.

Despite the court’s entry of several transport orders, defendant was not transported to Armstrong County for his September 10, 2007 and October 9, 2007 trial dates and his trial was rescheduled for November 5, 2007. Defendant then filed the instant motion to dismiss on October 31, 2007 and the court conducted an evidentiary hearing on the motion on November 15, 2007.

FINDINGS OF FACT

(1) The criminal complaint was filed on August 22, 2005.

(2) Defendant was arrested on November 10, 2005. Defendant was jailed and unable to post bail.

(3) The case was initially listed for preliminary hearing on November 21, 2005 and one was held on March 27, 2006.

(4) Defendant’s preliminary hearing was continued seven times. The reasons for the continuances range from none to “at defendant’s request” (used two times), “defendant needs attorney” (used two times) and a magisterial district judge scheduling conflict.

(5) There is no evidence of how the magisterial district judge knew defendant had no attorney or wanted the preliminary hearing to be continued.

(6) Defendant posted bail and was released from Armstrong County Jail on February 10, 2006.

(7) Defendant’s attorney entered his appearance on July 7, 2006.

(8) Defendant had been unrepresented until July 7, 2006.

(9) Defendant filed an omnibus pretrial motion in the form of a motion to suppress on August 1, 2006.

(10) The court denied defendant’s omnibus pretrial motion in the form of a motion to suppress on October 25, 2006.

(11) Defendant was incarcerated in Cumberland County Jail from November 2,2006 through November 13, 2006.

(12) Defendant was incarcerated in Clearfield County Jail from November 13, 2006 through November 17, 2006.

(13) Defendant was incarcerated in Clearfield County Jail on the date of the instant hearing, beginning on March 23, 2007.

(14) The court entered various transport orders at the district attorney’s behest. The defendant was transported to Armstrong County for neither his September 10,2007 trial nor his October 9, 2007 trial.

(15) The record provides a reason for the failure to transport the defendant for his October 9, 2007 trial. Clearfield County refused to transport defendant to Armstrong County for that date because he had a trial in Clearfield County scheduled for October 12, 2007.

(16) Defendant filed the instant motion to dismiss pursuant to Rule 600 on October 31, 2007, two years, two months and nine days after the criminal complaint was filed.

(17) The court held an evidentiary hearing on the instant motion on November 15, 2007.

DISCUSSION

Pennsylvania Rule of Criminal Procedure 600 dictates that “trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.” In determining whether the Commonwealth has violated Rule 600 the court must remain cognizant that the rule serves two equally important purposes: “(1) the protection of the accused’s speedy trial rights, and (2) the protection of society.” Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004).

Where a defendant raises a Rule 600 argument, the burden is on the Commonwealth to show its due diligence. Commonwealth v. Johnson, 852 A.2d 315 (Pa. Super 2004). “Due diligence is a fact-specific concept that must be determined on a case-by-case basis ... [it] does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth.” Hunt, 858 A.2d at 1241-42. (citations omitted) (emphasis in original) Due diligence includes, among other things, “listing a case for trial prior to the run date, preparedness for trial within the run date, and keeping adequate records to ensure compliance with Rule 600.” Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007).

Because the Commonwealth bears the burden of showing due diligence, it “needs to make certain a record is made to support its claim of due diligence” when it foresees a Rule 600 problem. Johnson, 852 A.2d at 317. When facing Rule 600 challenge, the Commonwealth must present competent evidence, in the form of, for example, file notes, transcripts, testimony or affidavits, to support a finding in its favor. Johnson, 852 A.2d 315. Where the Commonwealth fails to maintain an adequate record of a case’s progress and cannot provide competent evidence to establish due diligence in bringing a defendant to trial within the required time, the defendant’s challenge will succeed.

The court finds that the Commonwealth has not met its burden of proving that defendant could not have been brought to trial by August 22, 2006 by the exercise of due diligence. The Commonwealth failed to explain the delay in defendant’s arrest, the serial continuances of his preliminary hearing, and the inability to transport him to Armstrong County for trial. Therefore, the court is constrained to vacate the charges and discharge defendant.

At the instant hearing the court heard unsworn representations of the assistant district attorney regarding the progress of the case. However, these representations are not competent evidence themselves and remained unsupported by any such evidence. See Johnson, 852 A.2d at 317-18.

The Commonwealth failed to explain the delay between the August 22, 2005 filing of the criminal complaint and defendant’s November 10, 2005 arrest. The Commonwealth provided no evidence of efforts to apprehend defendant during this time. The Commonwealth could have supported a finding of due diligence by calling, for example, a representative of the police department to explain where the authorities looked for defendant, who was interviewed during the search, and what information was revealed with respect to defendant’s whereabouts. As it stands, the court has no evidence of efforts made to apprehend defendant or ascertain his whereabouts following the filing of his criminal complaint.

Likewise, the Commonwealth provided no evidence with respect to the majority of the continuances of defendant’s preliminary hearing, spanning from November 21, 2005 to March 27, 2006. During the hearing the Commonwealth read aloud the reasons for several continuances from the defendant’s file. However, the Commonwealth provided no evidence that the rescheduled hearing dates were the earliest possible or that it made any efforts to move this case through the preliminary hearing phase.

The Commonwealth stated that the defendant requested the November 21,2005 and December 15,2005 continuances of his preliminary hearing. However, defendant denies that he requested the continuances and counters that he remained unrepresented and was not transported from the Armstrong County Jail at the relevant times. The Commonwealth presented no evidence that defendant was, in fact, present at the hearing or that he requested the continuances.

The Commonwealth also stated that the hearings scheduled for January 23,2006 and March 20,2006 were continued because defendant needed an attorney. Again, the Commonwealth presented no evidence that defendant appeared without an attorney or refused to waive his right to counsel, nor did it present any evidence as to how the magisterial district judge knew defendant was unrepresented on those dates. The court also notes that defendant remained unrepresented when the preliminary hearing finally took place.

The Commonwealth could not provide an explanation for the January 3, 2006 and February 13, 2006 continuances and merely stated that the former continuance was done by the magisterial district judge. The sole continuance explained by the Commonwealth was that caused by a conflict in the magisterial district judge’s schedule, resulting in a continuance from March 26, 2006 to the following day when the hearing finally took place. Again, the Commonwealth did not call a single witness to testify to the relevant facts.

The court recognizes that it may exclude from a Rule 600 calculation all continuances requested by the defense and periods of delay resulting from the unavailability of a defendant or his attorney. Pa.R.Crim.P. 600(C). However, the Commonwealth has failed to demonstrate that any of these periods fall under the rule’s exclusions; bald assertions lacking in evidentiary support are insufficient to maintain a finding for the Commonwealth on these grounds. The court remains unconvinced of the reasonableness of the Commonwealth’s efforts to move this case through the preliminary hearing stage and is, therefore, unable to find the exercise of due diligence during this 126-day period.

The Commonwealth similarly fails to present evidence of due diligence in this case after the magisterial district judge finally held the preliminary hearing. The Commonwealth did not, for example, present any evidence of attempts to locate defendant after he failed to appear for plea court, a portion of which time he was incarcerated by the Commonwealth. During this time, the Commonwealth took 102 days, without explanation, to enter defendant’s bench warrant in the National Crime Information Center system.

The Commonwealth has not demonstrated due diligence to bring the defendant to trial even once it determined he was already in its custody at the Clearfield County Jail. In Armstrong County it is the task of the Commonwealth to arrange for the transportation of an incarcerated defendant for trial. Here defendant was not transported for two trial dates, the first on September 10, 2007 and the second on October 9,2007. While the Commonwealth presented an explanation for its failure to transport defendant for the October date, it presented no evidence with respect to September.

The court finds the record in this case to be woefully inadequate with respect to the Commonwealth’s efforts to bring defendant to trial before his mechanical run date, August 22,2006. Based upon this record, the Commonwealth has not met its burden of proving due diligence. This case is one in which the parties have asked the court to render a decision based upon a record severely lacking in relevant material facts and competent evidence. The Commonwealth has not presented a single witness or affidavit to support a claim that it exercised due diligence through defendant’s case. The court finds that the Commonwealth has not met its burden and, therefore, defendant’s motion shall be granted.

An appropriate order shall be entered.

ORDER

And now, January 28, 2008, after hearing on defendant’s motion to dismiss charges pursuant to Pennsylvania Rule of Criminal Procedure 600 and for reasons set forth in the foregoing opinion, it is hereby ordered, adjudged and decreed that defendant’s motion is hereby granted, and the case is hereby dismissed with prejudice.

      . 35 P.S. §780-113(a)(l6).

      .35P.S. §780-113(a)(30).

      . 35 PS. §780-113(a)(32).

      . Defendant was incarcerated in Clearfield County on the date of his second trial, October 9, 2007. Because he faced trial there on October 12,2007, the Clearfield County Jail refused to release defendant to Armstrong County.

      . The excessive delay in the prosecution of this case, approximately 800 days, when combined with the Commonwealth’s inability to demonstrate due diligence during that time, renders a calculation of the adjusted run date unnecessary.


author: NICKLEACH, S.J.,

text:
    Commonwealth v. Pierce

      Chase McClister, assistant district attorney, for Commonwealth.

      Stanley Fudor, for defendant.
    January 28, 2008
   NICKLEACH, S.J.,

Before the court for disposition is defendant’s omnibus pretrial motion in the nature of a motion to suppress. Defendant is charged with, among other things, driving under the influence under 75 Pa.C.S. §3802(a)(l) and 75 Pa.C.S. §3802(c), and careless driving, 75 Pa.C.S. §3714. The parties agree that the sole issue to be decided here is the validity of the initial traffic stop.

At the omnibus hearing, Trooper Christopher Robbins of the Pennsylvania State Police testified as follows. On April 9,2006, he and Officer Goldinger of the Armstrong County roving DUI task force were patrolling together in Kittanning Borough. It was nighttime, the roads were dry, the skies were clear, and the temperature was approximately 30 degrees. Robbins heard a 911 radio transmission regarding a possible DUI driver. The radio transmission stated that a driver near the Edgewood intersection of Hill Street had called in and reported seeing a red Jeep Cherokee operated by a white male. The caller, who had given his name to the 911 dispatcher, reported that the driver was driving “fast” and “recklessly” on old State Route 66, also known as Hill Street.

Robbins was close to the location described and immediately drove to the scene. When he arrived at the intersection, he observed a vehicle driven by defendant making an u-turn at the crest of the hill on a curve. Robbins was approximately 700 feet from the vehicle when the u-turn was made. The vehicle then headed towards Robbins’ vehicle. Robbins brought his car to a halt and when the vehicle passed him, he turned it around to follow it. Robbins identified it as a red Jeep and saw a car behind it at some distance.

A 911 radio transmission informed Robbins that the caller had just said a patrol car was now following the Jeep. Robbins stopped the Jeep at approximately 1:18 a.m. The driver in the vehicle following the Jeep drove by and was stopping to assist. Robbins made certain that the 911 dispatcher had the name and telephone number of the driver/caller and waved him on. The caller was identified as Robert Monheim of Vandergrift, Pennsylvania. Following the initial traffic stop, Robbins arrested defendant for DUI.

Robbins testified that the basis for his stop of defendant was “primarily” his own observations. Robbins said he stopped defendant for violating 75 Pa.C.S. §3332(b), limitations on turning around, because it was a traffic violation to make the u-turn on top of a crest on a curve. Robbins’ secondary reason for making the stop was that a known caller had reported seeing the red Jeep driving fast and recklessly. Asked if there were any other vehicles around, Robbins replied, “There might have been. I can tell you the traffic definitely wasn’t heavy.”

Section 3332 states as follows:

“Section 3332. Limitations on turning around
“(a) General rule. — The driver of any vehicle shall not turn the vehicle so as to proceed in the opposite direction unless the movement can be made in safety and without interfering with other traffic.
“(b) Turns on curves or grades. — No vehicle shall be turned so as to proceed in the opposite direction upon any curve, or upon the approach to or near the crest of a grade, where the vehicle cannot be seen by the driver of any other vehicle approaching from either direction within 500feet.” 75 Pa.C.S. §3332. (emphasis added)

Defendant points out that the Commonwealth has offered no evidence that the distance from defendant to Robbins or any other driver on the road was less than 500 feet, or that the u-tum was otherwise made at a time when it was unsafe to do so. Defendant further argues that the observations of the 911 caller were not sufficient cause to stop defendant for any traffic violation.

The court agrees. With respect to the 911 caller, even if he could be considered a reliable informant because he identified himself to the 911 dispatcher and continued to monitor the defendant’s driving by following him, the driver’s observations as reported in the radio transmission were not descriptive enough and were too conclusory to be a basis for stopping defendant for careless driving. The caller did not specifically describe what defendant was doing to lead the caller to conclude that defendant was driving “recklessly.” Obviously, a statement that a person is driving “fast” cannot serve as the basis for a traffic stop.

As to defendant’s alleged violation of 75 Pa.C.S. §3332(b), the Commonwealth presented absolutely no evidence that defendant’s u-turn occurred “upon any curve, or upon the approach to or near the crest of a grade, where the vehicle [could not] be seen by the driver of any other vehicle approaching from either direction within 500 feet.” Id. (emphasis added) Robbins stated that defendant made a u-turn approximately 700 feet away at the top of a hill on a curve. He did not testify that the vehicle could not be seen by the driver of any vehicle approaching from either direction within 500 feet. As such, Trooper Robbins had no reasonable suspicion that defendant had violated the Motor Vehicle Code and his initial stop of defendant was unlawful. Therefore, defendant’s omnibus motion in the nature of a motion to suppress is granted.

An appropriate order will be entered.

ORDER

And now, to wit, January 28, 2008, defendant having filed an omnibus pretrial motion, after hearing and upon consideration of the evidence and for the reasons set forth in the attached memorandum, it is ordered, adjudged and decreed that the motion be and it hereby is granted and all evidence seized as a result of the illegal arrest be and hereby is suppressed.