author: BUCHHOLZ,

text:
    Office of Disciplinary Counsel v. Turner

      Disciplinary Board Docket no. 136 D.B. 2008.
    September 28, 2009
   BUCHHOLZ,

Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On September 4,2008, Office of Disciplinary Counsel filed a petition for discipline against Thomas J. Turner III. The petition charged respondent with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement based on allegations that respondent engaged in the unauthorized practice of law. Respondent did not file an answer to petition for discipline.

A disciplinary hearing was held on January 8, 2009, before a District I Hearing Committee comprised of Chair Stephen A. Feldman, Esquire, and Members Michael L. Korniczky, Esquire and Tamara Lee Traynor, Esquire. Respondent appeared pro se.

Following the submission of a brief by petitioner, the Hearing Committee filed a report on May 1, 2009, con-eluding that respondent violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement as contained in the petition for discipline, and recommending that he be disbarred from the practice of law.

This matter was adjudicated by the Disciplinary Board at the meeting on July 18, 2009.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent is Thomas J. Turner III. He was born in 1943 and was admitted to practice law in the Commonwealth in 1975.

(3) By order of the Supreme Court of Pennsylvania dated October 26,1993, respondent was suspended from the practice of law for a period of two years.

(4) Respondent never petitioned for reinstatement before the Supreme Court and remains under suspension.

(5) Prior to the two-year suspension, respondent received three informal admonitions in 1978, one informal admonition in 1985, and a private reprimand in 1992.

(6)Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

Tammy Coleman Matter

(7) In November or December 2004, Tammy Coleman received in the mail a solicitation from respondent.

(8) Respondent identified himself as an attorney and offered to assist Ms. Coleman in filing for bankruptcy so that she could retain her house, which was scheduled for sheriffs sale.

(9) Ms. Coleman contacted respondent using the telephone number that appeared on the solicitation.

(10) Respondent represented to Ms. Coleman that he was an attorney and directed her to bring his fee in cash and certain paperwork to a restaurant in Philadelphia.

(11) On December 6, 2004, Ms. Coleman met with respondent at the restaurant.

(12) Ms. Coleman paid respondent $300 in cash and gave respondent paperwork.

(13) Respondent reviewed the paperwork and completed some documents, including a Chapter 13 Bankruptcy petition; summary of schedules and schedules A-J; declaration; statement of financial affairs; disclosure of compensation of bankruptcy petition preparer; and Chapter 13 plan.

(14) Respondent decided where and what specific information should be entered on the documents he prepared on behalf of Ms. Coleman.

(15) Respondent decided which exemptions Ms. Coleman should claim.

(16) Respondent failed to sign and print his name and address on the declaration, the statement and the plan.

(17) Respondent failed to place his social security number on the declaration, the statement and the plan.

(18) These failures violated 11 U.S.C. §110(b)(1).

(19) During respondent’s meeting with Ms. Coleman, he told her that the filing of the bankruptcy documents would stop the sheriff’s sale of her home and that he would contact her.

(20) After receiving no communication from respondent, Ms. Coleman made several unsuccessful attempts to contact respondent by telephone.

(21) The bankruptcy documents completed by respondent were filed in the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(22) By order dated July 22, 2005, Bankruptcy Judge Kevin Carey found that respondent had engaged in the unauthorized practice of law and had violated numerous provisions of 11 U.S.C. §110.

(23) The court fined respondent $2,000, directed respondent within 15 days of the date of the order to pay to Ms. Coleman the $300 fee he received, and ordered respondent to cease engaging in further fraudulent, unfair or deceptive conduct and the unauthorized practice of law.

(24) Respondent did not pay either the $2,000 fine to the clerk of court or the $300 to Ms. Coleman.

Janet Miller Matter

(25) In April 2005, John H. Croom IV, Esquire, referred Janet Miller to respondent, as she was seeking relief from foreclosure.

(26) Ms. Miller met with respondent, who advised Ms. Miller that she could stop an imminent sheriff’s sale of her home by filing for bankruptcy, and that he would take care of stopping the sale of her home.

(27) Ms. Miller enlisted respondent’s assistance with preparation of the papers necessary to file for bankruptcy.

(28) Ms. Miller presented respondent with copies of her bills and various other papers regarding her financial condition.

(29) Respondent prepared for Ms. Miller a Chapter 13 Bankruptcy petition, declaration, summary of schedules and schedules A-J, statement of financial affairs, Chapter 13 plan, application to pay filing fees in installments, and a disclosure of compensation to bankruptcy petition preparer.

(30) Respondent decided where and what specific information should be entered on each of the documents, and which exemptions Ms. Miller should claim and the amounts thereof.

(31) Respondent signed the petition and the satement as a “non-attorney petition preparer” and printed his name, address and social security number thereon.

(32) Respondent did not sign the declaration, plan or application, nor did he print his name, address and social security number on those documents.

(33) Respondent accepted $300 from Ms. Miller for his services and gave to her for filing the completed bankruptcy documents.

(34) On April 29, 2005, Ms. Miller filed the petition and other documents with the court.

(35) On May 11,2005, the United States trustee filed a motion for disgorgement of fees and for the imposition of fines and other relief pursuant to 11 U.S.C. §110.

(36) Respondent did not file a response to the motion.

(37) Respondent was served with notice of a hearing scheduled for June 13, 2005.

(38) The hearing was held and respondent appeared and testified.

(39) By order requiring disgorgement of fees paid by debtor and imposing fines and granting additional relief pursuant to 11 U.S.C. § 110, dated July 5,2005, the court made findings and conclusions that respondent engaged in the unauthorized practice of law.

(40) In that same sanctions order, the court disallowed the entire fee of $300 received by respondent from Ms. Miller, directed respondent to disgorge and pay over to Ms. Miller that sum within 15 days of the date of the order, and directed respondent to file a certification with the court.

(41) The court directed fines totaling $3,000 and ordered respondent to cease the unauthorized practice of law.

(42) On September 21,2007, the trustee filed a motion for contempt against respondent.

(43) On November 21, 2007, respondent filed an answer to the contempt motion.

(44) The court held a hearing on November 29, 2007 and found respondent to be in civil contempt of the sanctions order.

(45) On December 20,2007, respondent paid the sanctions fee of $3,000 and filed a certification of compliance.

Unauthorized Practice of Law

(46) In 1998 respondent was working for a company that provided advertising and paralegal services and in that capacity began working at Bongiovanni & Berger, specifically with James J. O’Connell, Esquire. His responsibilities were to mail solicitation letters to prospective clients and perform paralegal duties.

(47) On or before August 6, 2002, Mr. O’Connell reviewed with respondent Pa.R.D.E. 217(j)(l)-(6) and respondent indicated that he would comply with Rule 217.

(48) By letter dated August 6, 2002 to Elaine Bixler, executive director of the Disciplinary Board, Mr. O’Connell advised the Disciplinary Board that he was supervising respondent.

(49) Sometime in 2004, respondent no longer worked for Mr. O’Connell.

(50) From October 2005 through May 2007, respondent worked in the law office of John Croom, located at 1616 Walnut Street, Suite 1908, Philadelphia, PA 19103.

(51) Respondent did not inform the Disciplinary Board that he was working at Mr. Croom’s law office nor did he provide the name of his supervising attorney.

(52) Respondent spent unsupervised time in Mr. Croom’s office, where he had full access to bankruptcy software and computer programs.

(53) Respondent had direct contact with clients and prospective clients of Mr. Croom in person, by answering telephones, by taking messages and by interviewing clients and prospective clients.

(54) Respondent gave legal advice to some of Mr. Croom’s clients.

(55) Respondent provided case information to client-debtors and collected fees from Mr. Croom’s clients.

(56) Respondent misrepresented his identity to clients and third parties by intentionally and continuously referring to himself as “Dan McCluskey”, among other names.

(57) In March 2007 respondent hired, on behalf of Mr. Croom, an attorney named John Erik Sabo, Esquire. Respondent handled the interviewing and training of Mr. Sabo.

(58) It was not until after he was hired that Mr. Sabo met Mr. Croom, who introduced himself as the attorney for the office.

(59) Mr. Sabo was told that respondent’s name was “Dan McCluskey” and he performed paralegal duties.

(60) Mr. Croom was frequently absent from the office from mid-April through the beginning of May 2007.

(61) During these absences, Mr. Sabo observed that respondent routinely:

“(a) conducted client interviews and intake of prospective clients;
“(b) received monies, generally in the form of cash, and documentation from clients and prospective clients;
“(c) answered questions in person or by telephone of clients and others regarding bankruptcy cases;
“(d) offered legal advice to clients and prospective clients;
“(e) prepared and mailed out solicitations to prospective clients;
“(f) declined to answer telephone calls from the trustee’s office or the court; and
“(g) failed to identify himself when conducting client interviews and intake and when answering the telephone.”

(62) While Mr. Croom was absent from the office, Mr. Sabo out of necessity occasionally consulted with respondent to obtain legal advice and respondent provided the legal advice and guidance on case strategy.

(63) On May 10, 2007 Mr. Sabo left Mr. Croom’s employ as he learned, among other things, that Mr. Croom had numerous problems with the court and that respondent was using a false name.

(64) On May 31, 2007, Frederick Baker, Senior Assistant United States Trustee, placed a telephone call to Mr. Croom’s office, seeking to find out if respondent was continuing to operate from Mr. Groom’s office using a false name.

(65) Respondent answered the telephone and identified himself as “Dan McCluskey.”

(66) During the conversation, Mr. Baker identified himself and inquired twice if “Mr. McCluskey” was actually Tom Turner.

(67) At the disciplinary hearing respondent was unapologetic and unrepentant regarding his conduct while working in Mr. Croom’s office, placing the blame solely on Mr. Croom.

(68) Respondent expressed no remorse and defended his conduct, stating that: “looking back, would I do it any different? I don’t think so.” (N.T. 134.)

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) R.P.C. 5.5(a) — A lawyer shall not practice law in a jurisdiction in violation of the regulations of the legal profession in that jurisdiction, or assist another in doing so.

(2) R.P.C. 5.5(b) — A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by the Rules, Pa.B.A.R. 302 or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(4) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(5) Pa.R.D.E. 203(b)(3) — Willful violation of any other provision of the Enforcement Rules is a grounds for discipline via:

(a) Pa.R.D.E. 217(j)(l) — which prohibits a formerly admitted attorney from engaging in law-related activities in this jurisdiction except under the supervision of a member in good standing of the bar of this Commonwealth;

(b) Pa.RD.E. 217(j)(2) — which provides that a formerly admitted attorney cannot engage in any law-related activities in this jurisdiction except those of a preparatory nature or those involving clerical assistance to an attorney in good standing appearing as the representative of a client;

(c) Pa.R.D.E. 217(j)(3) — which provides that a formerly admitted attorney may have direct communication with a client or third party only if the communication is limited to ministerial matters, which clearly indicate that he or she is a legal assistant and identify the supervising attorney;

(d) Pa.R.D.E. 217(j)(4)(iv) — which prohibits a formerly admitted attorney from representing himself or herself as a lawyer or person of similar status;

(e) Pa.R.D.E. 217(j)(4)(v) — which prohibits a formerly admitted attorney from having any contact with clients either in person, by telephone, or in writing, except as provided in Pa.R.D.E. 217(j)(3);

(f) Pa.R.D.E. 217(j)(4)(vi) — which prohibits a formerly admitted attorney from rendering legal consultation or advice to a client;

(g) Pa.R.D.E. 217(j)(4)(x) — which prohibits a formerly admitted attorney from receiving, disbursing, or otherwise handling client funds;

(h) Pa.R.D.E. 217(j)(5) — which provides that a formerly admitted attorney must file with the Disciplinary Board a notice of engagement, identifying the supervising attorney and certifying that the formerly admitted attorney’s activities will be monitored for compliance.

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with the unauthorized practice of law during his period of suspension from the bar of the Supreme Court of Pennsylvania. Respondent did not answer the petition and the factual allegations are deemed admitted. Pa.R.D.E. 208(b)(3). Petitioner bears the burden of proving ethical misconduct by a preponderance of the evidence that is clear and satisfactory. Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981). The evidence, including the factual allegations set forth in the petition, the testimony of six witnesses, and 24 exhibits, proves that respondent violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement contained in the petition for discipline. For the following reasons, the board recommends that respondent be disbarred.

Respondent was suspended by order of the Supreme Court of Pennsylvania dated October 26, 1993. This suspension followed many years of involvement by respondent with the disciplinary system in Pennsylvania, commencing in 1978 with the first of five incidents of private discipline. Respondent never petitioned for reinstatement from his suspension and remains a suspended lawyer.

As a suspended lawyer respondent is prohibited from practicing law. Despite this prohibition, respondent engaged in law-related activities and the unauthorized practice of law; managed the law practice of John Croom, Esquire, and supervised a legal associate in the law office; engaged in misconduct before the Bankruptcy court that necessitated intervention by the court; and violated orders issued by the Bankruptcy court. In particular, the testimony of John Erik Sabo at the disciplinary hearing is revealing as to the breadth and depth of respondent’s misconduct. Mr. Sabo is a former associate of the Croom Law Office and personally observed respondent’s many acts of misconduct, such as direct communication with clients; soliciting new clients; receiving fees from clients; offering legal advice; misrepresenting his identity to others; and answering Mr. Sabo’s legal questions.

Although respondent did not file an answer to petition for discipline, he appeared at the disciplinary hearing and testified on his own behalf. He admitted that he accepted fees from Mr. Croom’s clients, dispensed legal advice to clients, and misrepresented his identity so that a bankruptcy judge would not discover that respondent was working for Mr. Croom. Respondent showed himself to be unrepentant and unapologetic, to the point that he stated he would not change what he had done.

The egregious facts of this case support disbarment. Respondent’s suspended status in no way deterred him from practicing law. Any further suspension order would likely have little impact on respondent’s future activities. Disbarment is the most severe sanction available to this board, and it is not imposed lightly, as it takes away an attorney’s privilege to practice law without guarantee of restoration.

The goals of the attorney discipline system include protecting the public from unfit attorneys, maintaining the integrity of the bar, upholding respect for the legal system, and deterrence. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986); In re Iulo, 564 Pa. 205, 766 A.2d 335 (2001). Respondent’s disbarment will accomplish these goals.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Thomas J. Turner III, be disbarred.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

ORDER

And now, December 16, 2009, upon consideration of the report and recommendations of the Disciplinary Board dated September 28, 2009, it is hereby ordered that Thomas J. Turner III is disbarred from the bar of this Commonwealth and he shall comply with all the provisions of Rule 217, Pa. R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa. R.D.E.


source: Caselaw Access Project

author: O’CONNOR,

license: Public Domain

text:
    In re Besden Petition for Reinstatement

      Disciplinary Board Docket no. 190 D.B. 2005.
    October 21, 2009
   O’CONNOR,

Vice Chair,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

By order of the Supreme Court of Pennsylvania dated December 1, 2005, Laurie Jill Besden was placed on temporary suspension from the practice of law and the matter was referred to the Disciplinary Board. By order of July 29, 2008, the court suspended Ms. Besden from the practice of law for a period of three years retroactive to December 1,2005. This suspension was based on Ms. Besden’s conviction of violations of the Controlled Substance, Drug, Device and Cosmetic Act, Identity Theft and the Pharmacy Act.

On September 29, 2008, Ms. Besden filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania. Office of Disciplinary Counsel filed a response to petition on December 10, 2008, in which it stated that while not opposing the petition, it would not take a position until after the reinstatement hearing.

A reinstatement hearing was held on February 26,2009 before a District II Hearing Committee comprised of Chair Michael T. Taylor, Esquire, and Members Steven B. Barret, Esquire and Elizabeth A. Schneider, Esquire. Petitioner was represented by Michael B. Hayes, Esquire. Petitioner testified on her own behalf and presented the testimony of five witnesses.

Following the submission of a brief by petitioner, the Hearing Committee filed a report on June 5, 2009 and recommended that the petition for reinstatement be granted.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on July 18, 2009.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Laurie Jill Besden. She was born in 1974 and was admitted to the practice of law in the Commonwealth in 1999. Her current business address is Oliver & Caiola, LLC, 2500 DeKalb Pike Suite 100, East Norriton, PA 19401. She is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(2) By order dated December 1, 2005, the Supreme Court of Pennsylvania placed petitioner on temporary suspension as a result of a joint petition filed with the court. Prior to her suspension petitioner was on inactive status since August 2002.

(3) By order of July 29, 2008, the court suspended petitioner from the practice of law for a period of three years, retroactive to the date of petitioner’s December 1, 2005 temporary suspension.

(4) Petitioner’s suspension is based upon criminal convictions for violations of the Controlled Substance, Drug, Device and Cosmetic Act, Identify Theft, and the Pharmacy Act.

(5) From 2002 until January 2004, petitioner was repeatedly arrested and charged with crimes relating to a substance abuse problem.

(6) Petitioner suffered from a long-term addiction to hydrocodone, which she began taking in 1999 while studying for the bar exam. Her addiction to hydrocodone and other drugs worsened over the next few years, until she eventually ingested multiple pills on a daily basis.

(7) On March 29, 2002, petitioner was arrested in Collegeville, Pennsylvania and charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, Forgery and Pharmacy Act.

(8) On September 3, 2002, in the Court of Common Pleas of Montgomery County, petitioner was placed on A.R.D. as a result of these charges.

(9) On August 8, 2002, petitioner was arrested in Whitemarsh, Pennsylvania and charged with DUI and other vehicle offenses.

(10) On February 13, 2003, petitioner entered a plea of guilty to DUI and other vehicle offenses in the Court of Common Pleas of Montgomery County and was sentenced to incarceration of not less than 48 hours nor more than 12 months in the county correctional facility.

(11) On October 16, 2003, petitioner was arrested in Norristown, Pennsylvania and charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, Theft by Deception and Identity Theft.

(12) On January 29, 2004, petitioner was arrested in Plymouth Meeting, Pennsylvania and was charged with violation of the Controlled Substance, Drug, Device and Cosmetic Act, Pharmacy Act and Identity Theft.

(13) On July 28,2004, petitioner entered an open guilty plea to violations of the Controlled Substance, Drug, Device and Cosmetic Act, Identity Theft and the Pharmacy Act.

(14) On October 14, 2004, petitioner was sentenced to undergo imprisonment for 11 1/2 to 23 months followed by three years of probation at the Montgomery County Correctional Facility.

(15) In addition, petitioner was arrested in Ventnor, New Jersey on September 7,2002, for prescription drug fraud and possession. Petitioner entered into a negotiated plea agreement which included two years probation, fines and a six month driver’s license suspension.

(16) On January 29, 2004, J. David Farrell, Esquire, visited petitioner in prison as a representative of Lawyers Concerned for Lawyers (LCL).

(17) Petitioner joined LCL and developed a long-term plan for her treatment and rehabilitation.

(18) Upon her release from prison petitioner attended a 35-day program at the Caron Foundation and intensive outpatient treatment at Program in Counseling for approximately eight weeks.

(19) Petitioner continued with weekly drug counseling at Program in Counseling and joined Narcotics Anonymous (NA) and Alcoholics Anonymous (AA).

(20) Petitioner currently continues as an active member of LCL, NA and AA, attending at least bi-weekly NA meetings, a weekly women’s AA meeting, and monthly LCL meetings. She averages four to six meetings per week in which she frequently relates her story of addiction.

(21) Petitioner has a very repetitive schedule facilitating sobriety, including work, the gym, meetings and walking her dog. When petitioner is unable to adhere to this schedule, she modifies as needed and resumes her schedule as soon as practical.

(22) Petitioner serves as co-chair of the Montgomery County LCL. In addition, petitioner volunteers her time to help other current and former inmates in addiction recovery. She is presently awaiting approval to serve as a speaker and volunteer with NA and AA at the Montgomery County Correctional Facility.

(23) Petitioner has continuously maintained her sobriety since January 29, 2004.

(24) In January 2005, petitioner obtained employment as a paralegal with Oliver & Caiola, LLC in East Norriton, Pennsylvania. Petitioner shared her criminal history and drug addiction with her employers, who have treated her as a suspended attorney since the inception of her employment.

(25) Petitioner has not engaged in the practice of law or held herself out as a licensed lawyer during the period of her suspension.

(26) In November 2008, Judge William Carpenter released petitioner from probation 16 months early.

(27) Petitioner presented five witnesses on her behalf.

(28) Frank Caiola is a principal with the firm of Oliver & Caiola. He has daily contact with petitioner in her capacity as a paralegal.

(29) Petitioner is a trustworthy employee who is an asset to the firm.

(30) Detective Jeffrey McGee has been employed with the Plymouth Township Police Department for 21 years. He first met petitioner in January 2004 when he arrested her in connection with an arrest warrant and detainer on a probation violation.

(31) Petitioner and Detective McGee kept in contact as to her progress and became friends. He attends regular recovery meetings with petitioner and believes she is committed to her sobriety.

(32) Mary Beth Smollen is petitioner’s AA sponsor. She has observed through her weekly interaction with petitioner that petitioner is balanced in her life and dedicated to her sobriety.

(33) Ms. Smollen has observed that petitioner is willing to accept full responsibility for her actions and the mistakes she has made.

(34) J. David Farrell, Esquire, has been a licensed lawyer in Pennsylvania since 1980 and has been involved with LCL for many years.

(35) Mr. Farrell, as a member of LCL, first met petitioner when she was incarcerated in January 2004. Fie stayed in contact with her through her incarceration, which lasted 11 1/2 months.

(36) Mr. Farrell assisted petitioner in making plans for her future recovery and observed that she was very motivated to do so. Fie also helped her to obtain employment with Oliver & Caiola.

(37) Mr. Farrell has complete confidence in petitioner and would trust her in her capacity as a lawyer. Fie believes she is able to handle the stress of a law practice.

(38) Roberta Besden is petitioner’s mother. While prior to petitioner’s incarceration their relationship was strained, since petitioner’s recovery they have been veiy close. Mrs. Besden has observed that petitioner is committed to her rehabilitation.

(39) Petitioner testified on her own behalf.

(40) She accepts responsibility for her misconduct and is sincerely remorseful.

(41) Petitioner understands that she is and will continue to be an addict and must be proactive in her sobriety.

(42) Petitioner has a strong network of family and friends to whom she can turn for support.

(43) Petitioner fulfilled her requirements for Continuing Legal Education.

(44) In addition to her paralegal responsibilities, petitioner has reviewed numerous legal periodicals and newsletters in order to keep apprised of the law.

(45) If reinstated, petitioner intends to practice in Bucks and Montgomery counties.

(46) Office of Disciplinary Counsel does not oppose the petition for reinstatement.

III. CONCLUSIONS OF LAW

(1) Petitioner has presented clear and convincing evidence that she has the moral qualifications, competency and learning in the law required for reinstatement to practice law in the Commonwealth. Pa.R.D.E. 218(c) (3).

(2) Petitioner’s resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or administration of justice nor subversive of the public interest. Pa.R.D.E. 218(c)(3).

IV. DISCUSSION

Petitioner seeks reinstatement to the bar from her suspension of three years, retroactive to December 1, 2005. An attorney who is suspended from the practice of law for a period exceeding one year may not resume practice until reinstated by order of the Supreme Court of Pennsylvania.

In order for petitioner to gain reinstatement after suspension, she has the burden of demonstrating, by clear and convincing evidence, that she possesses the moral qualifications, competency and learning in the law required for admission to practice law. Further, petitioner must demonstrate that her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. In determining petitioner’s fitness to resume the practice of law, the board considers the nature of petitioner’s misconduct, her present competence and legal ability, her character, rehabilitation and degree of remorse expressed. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner’s suspension resulted from her 2004 conviction of violations of the Controlled Substance, Drug, Device and Cosmetic Act, Identity Theft, and the Pharmacy Act. Petitioner was sentenced to a period of incarceration in the Montgomery County Correctional Facility. Prior to her conviction petitioner had struggled with substance abuse issues and was repeatedly arrested and charged with crimes. Upon her incarceration in January 2004, she met with J. David Farrell, Esquire, a member of Lawyers Concerned for Lawyers, and determined a plan for her treatment and recovery from substance abuse.

Following her release from prison, petitioner engaged in treatment programs and attended recovery meetings at AA, NA and LCL. Petitioner continues her involvement with these recovery meetings and often speaks of her experiences to others. She has learned to maintain her sobriety by balancing her daily schedule, with time for work, exercise and meetings. Petitioner enjoys her work as a paralegal with the law firm of Oliver & Caiola and is grateful for the responsibility that the firm places on her and the trust they have in her. The record is clear that petitioner has made substantial and profound changes in the way she lives her life.

Petitioner expressed sincere remorse for her misconduct and an acceptance of responsibility for her acts. Petitioner’s request for reinstatement is supported by the credible testimony of five witnesses who have obsefved the changes in petitioner’s life and her dedication to sobriety. Petitioner has demonstrated that she is morally qualified to return to the practice of law.

Petitioner has fulfilled her required Continuing Legal Education credits. During her period of suspension she has reviewed many legal periodicals to keep apprised with the current state of the law, mostly in conjunction with her position as a paralegal. This is sufficient to prove petitioner’s competence and learning in the law.

The board concludes that petitioner has met her burden of proving her fitness to resume the practice of law and recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Laurie Jill Besden, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

ORDER

And now, December 4, 2009, upon consideration of the report and recommendations of the Disciplinary Board dated October 21,2009, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: TILSON, J,

text:
    Menkes v. Fisher

      Mina Menkes, pro se.

      Donald B. Scace Jr., for defendants.
    November 4, 2009-
   TILSON, J,

FACTS AND PROCEDURAL HISTORY

Appellant, Mina Menkes, appeals from this court’s order dated August 7, 2009, which granted appellees’, Vivian S. McCardell and Vivian S. McCardell administratrix of the estate of Jeffrey D. Samuelsson deceased, motion for summaiy judgment.

On February 6, 2004, appellant filed a complaint against several defendants alleging personal injury as a result of a motor vehicle accident that occurred on September 24, 2001. On March 31, 2004, appellant filed a praecipe to reinstate the complaint. On August 24,2005, Judge William T. Nicholas entered an order sustaining multiple preliminary objections, and thereafter, only appellees Vivian S. McCardell, Vivian S. McCardell administratrix of the estate of Jeffrey D. Samuelsson deceased, and defendant Vanessa Fisher remained. Defendant Vanessa Fisher settled with appellant. On February 13, 2008, Judge Nicholas entered an order providing that defendants are given leave to conduct a second deposition of plaintiff, if defendants so desire ... and plaintiff is cautioned that a failure to comply with this order may result in the imposition of sanctions, upon defendants’ application to the court for hearing. On April 9, 2008, appellees filed a motion to preclude against plaintiff. On October 1,2008, a hearing was held before Judge Nicholas on appellees’ motion for sanctions for appellant’s failure to obey the court order dated February 13, 2008. On October 3, 2008, Judge Nicholas entered an order precluding appellant from testifying at the time of trial pursuant to appelees’ motion to preclude. On October 14,2008, appellees filed a motion for summary judgment. Oral argument was held on appellees’ motion for summary judgment on August 7, 2009. There is no record of this proceeding. On August 7,2009, this court entered an order granting appellees’, Vivian S. McCardell and Vivian S. McCardell administratrix of the estate of Jeffrey D. Samuelsson deceased, motion for summary judgment.

On September 9, 2009, appellant filed a notice of appeal. Pennsylvania Rule of Appellate Procedure 903 provides that except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken. Appellant filed her notice of appeal 33 days after this court entered the order on August 7, 2009. Therefore, appellant’s appeal should be dismissed.

In addition, appellant failed to timely file a concise statement of matters complained of on appeal as required by the order dated October 5, 2009 and Pennsylvania Rule of Appellate Procedure 1925(b). The order dated October 5,2009 provides that appellant is directed to file with the office of Prothonotary of Montgomery County a concise statement of matters complained of on appeal within 21 days from the date of docket of this order. This order was docketed on October 6, 2009, and appellant failed to file her concise statement of matters complained of on appeal by October 27,2009,21 days after the order was docketed. Appellant mailed her concise statement of matters complained of on appeal to Judge Tilson’s chambers, and it was received on October 28,2009. Appellant’s concise statement of matters complained of on appeal was not filed with the office of Prothonotary of Montgomery County. In addition, appellant’s concise statement of matters complained of on appeal violates Pennsylvania Rule of Appellate Procedure 1925(b)(4), as discussed in more detail below and is not coherent in parts. Therefore, appellant’s appeal should be dismissed.

Although appellant’s appeal should be dismissed pursuant to Pennsylvania Rule of Appellate Procedure 903 and Pennsylvania Rule of Appellate Procedure 1925(b), this court wishes to discuss the merits of this case.

ISSUES

Appellant filed the instant appeal on September 9, 2009 and raised the following issues in her concise statement of matters complained of on appeal, which was mailed by appellant to Judge Tilson’s chambers and received on October 28, 2009, but was not filed with the office of Prothonotary of Montgomery County:

“(1) Why did Judge Arthur’s court stenographer George Frye/or substitute stenographer absent from the ‘summary judgment hearing’?
“(2) What was Mark Phillips, Esquire sitting next to Donald Scace, Esquire, when no entry of appearance was entered by him? Who is Mark Phillips anyway? Was his function there to further bully the judge to close the plaintiff’s legitimate claims against the defendant. Was he paid off or paid by way of other favors promised to him or whatever law office he is from?
“(3) Why was the plaintiff, Mina Menkes, requested to leave the courtroom/hearing room and told that there was another hearing going to be going on, only to find out later that Donald Scace and the above-mentioned Mark Phillips stayed for a good 10 minutes afterwards in that very courtroom which the plaintiff and her witness (who had been sitting in the public area of the courtroom and had come with her to give her moral support and to make sure nothing funny was going to go on) were requested to leave.
“(4) Why did Judge Tilson indulge in such inappropriate behavior as taking up time from plaintiff’s time in the hearing by asking Donald Scace about his metal braces. Is State Farm using this lawyer to try to manipulate the judges to feel sorry for him and to take away focus from a plaintiff’s claims against the defendants?
“(5) If Judge Tilson could indulge in a five-minute conversation about the lawyer’s medical status, why would he tell the plaintiff that her time was finished and he didn’t have all day to hear her arguments?
“(6) Was it appropriate for Judge Tilson to tell the plaintiff that Judge William Nicholas was a wonderful guy and that I should have been grateful for having him as my presiding judge?
“(7) Did Judge Tilson use the fact that he didn’t have a court stenographer present to say just any nonsense to the plaintiff?
“(8) Did Judge Tilson have a right to suggest that the fact the plaintiff’s mother was 95 years of age, that any matter of care or any manner of death was appropriate? Is that the way he would want to cared for in his older years and is this the way he would want to die?
“(9) Has there been collusion among the parties from beginning to the ‘summary judgment’ among the defendants and the pressing Judge William T. Nicholas and then Judge Tilson only covering up for his predecessor?
“(10) Why did Judge Nicholas from the very first hearing act like it was a big joke? Did Judge Nicholas facilitate the eventuality of the plaintiff’s mother’s macabre murder at the hands of ‘family members’ by facilitating the lies and games played by the defendants when the plaintiff had made her case years before?
“(11) Why did Judge Nicholas grant State Farm’s defense attorney Donald Scace his sanction for the plaintiff not being able to speak at trial when the ‘deposition’ was just a badgering session when the plaintiff was asked the same question 10 times after she had already told the deposing lawyer that she had no clue that the intersection was there and only knew that it even existed/and in fact where she had been hit only after the police report came out three weeks later?
“(12) Did Judge Nicholas know that this was Donald Scace, Esquire way of badgering and agitating the plaintiff knowing she has a brain injury and that this would make her brain go into convulsions and force her to leave the ‘deposition’ which was only cumulative of information already within the defendant’s State Farm defense attorney for four years previous already?
“(13) Should the plaintiff been at her mother’s side in Florida instead of being intimidated to come to another sham ‘hearing/deposition’ so that she could make sure that the clueless, malevolent sibling did not torture and batter the plaintiff beloved mother to death?
“(14) Did all the games played by the judge and the defendants prolong, aggravate and make permanent the plaintiff’s injury i.e., a life sentence by treating her with such cruelty, contempt and disrespect?
“(15) Why did the judge allow a simple case of a blind intersection in which the plaintiff had the right of way as it was a T intersection at School Rd and Rte 73, be tortured into such a prolonged ridiculous saga with terrible consequences to both her and her mother, dismissing PennDOT and Whitpain Township and then letting State Farm go on and on without making a single offer?
“(16) Why was the plaintiff’s motion for ‘unclean hands’ against State Farm never scheduled for a hearing when in fact, he had made his insured sign lies about the state of the hedges at the comer of Rte 73 and School Rd., when in fact they had half of the hedges cut down even before the lawsuit had been initiated?
“(17) When is State Farm and other defendants going to pay Reparations already, and the plaintiff can throw out all the junk papers that have cluttered her house and her brain and made it even more difficult to do the necessary things a person has to do even with her more limited range due to the head injury sustained at this intersection?
“(18) Why did everyone disregard the evidence presented about the many previous serious accident at this intersection. Do the judge in Montgomery County think that unsafe intersection and brain injuries are a joke?”

STANDARD

Summary judgment may be entered only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). The record must be viewed in the light most favorable to the opposing party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.

ANALYSIS

Appellant’s concise statement of matters complained of on appeal violates Pennsylvania Rule of Appellate Procedure 1925(b)(4) which provides that: “(ii) The statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge. The judge shall not require the citation to authorities; however, appellant may choose to include pertinent authorities in the statement” and “(vi) If the appellant in a civil case cannot readily discern the basis for the judge’s decision, the appellant shall preface the statement with an explanation as to why the statement has identified the errors in only general terms. In such a case, the generality of the statement will not be grounds for finding waiver.” Appellant’s concise statement of matters complained of on appeal does not concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge, but instead, to summarize, identifies appellant’s objections to the Judge Nicholas and Judge Tilson’s court room behavior, questions Judge Nicholas’ ruling on appellees’ motion for sanction, questions when defendants will pay reparations, and questions why everyone disregarded the evidence.

On October 1,2008, a hearing was held before Judge Nicholas on appellees’ motion for sanctions for appellant’s failure to obey the court order dated February 13, 2008. Appellant testified that at the deposition opposing counsel was badgering her with questions. (N.T. 10/1/08 p. 11.) The court found that appellant left the deposition in the midst of the deposition in violation of the order dated February 13, 2008, and thus on October 3, 2008, Judge Nicholas properly entered an order precluding appellant from testifying at the time of trial pursuant to appellees’ motion to preclude. (N.T. 10/1/08 p. 10.) On October 14,2008, appellees filed a motion for summary judgment.

This court granted appellees’ motion for summary judgment because this court found that there are no genuine issues of material fact. Dean v. PennDOT, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id. When the facts are so clear that reasonable minds cannot differ, summary judgment is appropriate. Cochran v. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995). This court found that because appellant is precluded from testifying at the time of trial, she will not be able to sustain her burden of proving her negligence claim at trial. To establish a cause of action in negligence, the plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage. Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998). The plaintiff has the burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm. Id. Appellant cannot meet her burden without her testimony, and as a result of prior orders by Judge Nicholas, appellant was left without any witnesses to present.

CONCLUSION

For the reasons set forth above, this court’s order dated August 7,2009, which granted summary judgment should be affirmed.


author: SPATARO, J.,

text:
    Commonwealth v. Martin

      Christopher Mitchell, for Commonwealth.

      William T. Jorden, for defendant.
    January 19, 2010
   SPATARO, J.,

Defendant, James D. Martin, was operating his 24-foot AMF Crestliner Pontoon Boat on Conneaut Lake around 10:45 p.m. on August 1,2009 when Officer John G. Hopkins, a waterways conservation officer for the Pennsylvania Fish and Boat Commission, executed a stop of Martin’s pontoon boat that led to Martin being charged with boating under the influence. Officer Hopkins was on routine patrol that evening with Officer Matt Visosky. According to Officer Hopkins, he observed Martin’s pontoon boat at a time when Martin was traveling south, while the officers were traveling north on Conneaut Lake. Officer Hopkins did not immediately observe either the starboard (right/ green) or port (left/red) navigation lights on Martin’s pontoon boat, contending that Martin’s use of his docking lights, which illuminated the area in the front or the bow were so bright as to washout visibility of the navigation lights. As a consequence, Officers Hopkins and Visosky maneuvered their boat in a northwesterly direction, followed by a move in an easterly direction, intending to confront Martin with what they believed to be a violation of the boating laws of the Commonwealth of Pennsylvania; specifically, that the use of docking lights violated Pennsylvania Law because the docking lights impaired the visibility of the navigation lights. Although they observed Martin’s fully functional navigation lights when they were about 10 to 12 feet from Martin’s boat, they proceeded to stop and board Martin’s boat.

Martin contends that the approach of the officers on Conneaut Lake was much different than described by the officers. He contends, along with his witnesses, that the officers actually approached his pontoon boat from the southwest and, as a result, would have been able to observe his navigation lights. Martin contends that the officers were predisposed to finding any reason to stop and board his pontoon boat, and the claim that his docking lights washed out observance of the navigation lights on his pontoon boat was false. Martin contends that the officers are incorrect in their opinion that using docking lights at the same time as navigation lights is illegal. Our analysis of the issue now before the court does not require a credibility determination. For purposes of this decision, we will accept as credible the testimony of Officer Hopkins.

The issue is: Whether the simultaneous use of docking lights and navigation lights by a watercraft operator in the Commonwealth of Pennsylvania is prohibited, thereby providing probable cause for enforcement officers to stop and board a vessel exhibiting both docking lights and navigation lights at the same time?

From our review of Pennsylvania Law, we conclude that the use of docking lights, concurrently with the use of navigation lights, is not illegal. This decision is consistent with this court’s reported decision in the case of Commonwealth v. Spears, Crawford Cty. L.J. vol. 26, no. 91 (Oct. 9, 2002).

Our analysis of this issue requires a progression through the statutes and regulations appearing in the Pennsylvania Administrative Code. The provisions of 30 Pa.C.S. §5123 authorize the Fish and Boat Commission to “promulgate such rules and regulations as it deems appropriate to provide for the operation and navigation of boats, including the rules of the road for boating, the ways, manner, methods and means of boating, the management of boats and the use thereof and the protection of waters for boating purposes.” 30 Pa.C.S. §5123(a). The statutes of the Commonwealth are completely silent on whether the use of docking lights coincident with the use of navigation lights is allowed or prohibited. Instead, one must look to the regulations promulgated by the Fish and Boat Commission to determine what the “rules of the road for boating” are for watercraft operators in the Commonwealth of Pennsylvania.

The next step is to consider the provisions appearing in 58 Pa. Code §95.3. The pertinent provisions of this code section read as follows: “[a] boat from sunset to sunrise and during periods of restricted visibility shall carry and exhibit the lights prescribed by the Inland Navigation Rules Act of 1980 (33 U.S.C. §2001-2073).” 58 Pa. Code §953(a). (emphasis added) Nothing is said about the manner in which those lights are to be utilized; rather the regulations address only the fact that a watercraft operator must carry and exhibit certain lights. Again, we note that Pennsylvania regulations are completely silent with respect to the use of any other lights or whether a watercraft operator may simultaneously utilize their navigation lights with any other lights, including docking lights. What is apparent, however, is that a watercraft operator must refer to the United States Code to determine what lights they are required to have and how those lights are to be exhibited.

The third step in our analysis requires that we consider the pertinent provisions of the United States Code. The pertinent provisions of 33 U.S.C. §2022 describe the “lights prescribed in these rules” along with the intensity. There was no testimony that Martin’s pontoon boat was not equipped with the lights required by the Inland Navigational Rules Act, nor was there any testimony that the intensity of those lights fell below the standards set forth in the Inland Navigational Rules or that the lights were not mounted properly. Martin’s pontoon boat did carry and exhibit the lights required under the Inland Navigational Rules Act.

Although there was limited testimony elicited on the subject, we note that docking lights are mounted on the bow or front of a boat. They are of such intensity as to allow the watercraft operator to visualize the area where the operator intends to dock his or her boat. The Inland Navigational Rules Act does not have any regulations that relate to the luminescence of docking lights, where they are to be positioned, etc. It is not illegal for a watercraft operator to have docking lights.

The Commonwealth contends that the court must also look at the provisions of 33 U.S.C. §2020, specifically the provisions that read as follows: “[t]he rules concerning lights shall be complied with from sunset to sunrise, and during such times no other lights shall be exhibited, except such lights as cannot be mistaken for the lights specified in these rules or do not impair their visibility or distinctive character, or interfere with the keeping of a proper look out.” 33 U.S.C. §2020(b). While there is the parenthetical reference to sections 2001 through 2073 of the U.S. Code, appearing in 58 Pa. Code §95.3(a), there is no directive within the Pennsylvania regulations that states that a watercraft operator must comply with those specific federal regulations. All Pennsylvania law requires is that a watercraft operator carry and exhibit the lights prescribed by the Inland Navigation Rules Act from sunset to sunrise and during periods of restricted visibility. It says nothing about the use of other lights, such as docking lights, nor does it specifically incorporate the provisions of 33 U.S.C. §2020(b).

The Pennsylvania Supreme Court recently had occasion to review the law that pertains to the statutory construction of a penal statute. In the case of Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160 (2009), the Supreme Court held that the criminal statute making it a crime to discharge a firearm into an occupied structure could not be construed to also include the act of discharging a firearm while inside the structure. The Supreme Court stated the law as follows:

“Importantly, our interpretation is further supported by the statutory mandate that penal statutes ‘shall be strictly construed.’ 1 Pa.C.S. § 1928(b)(1); see also, Commonwealth v. McClintic, 589 Pa. 465, 481, 909 A.2d 1241, 1251 (2006). Of course, the mandate to construe penal statutes narrowly does not override the ‘general principle that the words of a statute must be construed according to their common and approved usage,’ and does not require this court to give the words of a penal statute their ‘narrowest possible meaning.’ Commonwealth v. Booth, 564 Pa. 228, 234, 766 A.2d 843, 846 (2001). The mandate ‘does mean, however, that where ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused.’” Id., 599 Pa. at 614, 962 A.2d at 116869.

In the instant matter, we have a layering of statutory and regulatory construction. The statute itself delegates to the Fish and Boat Commission the power to promulgate rules and regulations for the operation of boats. The rules for statutory construction apply with at least the same force and effect, if not more, to the inteipretation of regulations promulgated by an administrative agency. For that reason, when we apply a strict construction to the language of Pennsylvania Code section 95.3, that requires that a watercraft operator “shall carry and exhibit the lights prescribed by the Inland Navigational Rules Act of 1980,” we cannot read into that clause the further requirement that a watercraft operator must also refrain from the use of lights that are not even mentioned in the Inland Navigation Rules Act of 1980, or if other lights are used, that they not impair the visibility or distinctive character of the required lights. 58 Pa. Code §95.3.

The Commonwealth cites three cases from other jurisdictions in support of its positions. All three cases are easily distinguishable.

The Commonwealth cites Lustig v. Mondeau, 211 Fed. Appx. 364 (6th Cir. 2006). The Lustig case was a civil action, brought in federal court, seeking damages against law enforcement officers who detained and later charged plaintiff with a boating under the influence violation. Lustig, 211 Fed. Appx. at 365. Plaintiff claimed that the stop of her pontoon boat was illegal. Id. In Lustig, the officers were unable to ascertain if plaintiff’s navigation lights were on because the docking lights obstructed their view. Id. They then hailed plaintiff’s boat and asked her about the navigation lights. Id. The essential facts in Lustig are as follows:

“Without boarding, the deputies asked plaintiff to turn the navigation and docking lights on and off. The deputies reported that plaintiff required assistance in locating the switch for the docking lights; that the green navigation light was not visible when the docking lights were turned off; and that plaintiff’s breath smelled of alcohol.” Id. at 366. (emphasis added)

The officers in Lustig did not take further action until after talking with the plaintiff and establishing that the green navigation light was not functioning properly. Id. In the instant case, the officers knew full well that Martin’s navigation lights were functional. There was no evidence of erratic or unsafe boating, nor the smell of alcohol, nor any difficulty on the part of Martin to locate the switches on his console. The officers lacked an articulable reason to board Martin’s boat and should have waved him off after recommending that he turn his docking lights off once they were satisfied that the navigation lights were functioning properly.

Lustig illustrates the rather obvious difference between the ability of people to interact on boats and vehicles. In a moving vehicle, it is virtually impossible for a police officer to drive alongside a motorist and cany on a conversation. Hence, the only safe method of making an inquiry is to have the motorist bring his vehicle to a complete stop and then to engage the motorist in conversation.

Boats are obviously much different and the difference between stopping a boat and boarding a boat is significant. A law enforcement officer is able to carry on a conversation with a watercraft operator without the need to board the watercraft operator’s boat. Boarding a boat is no less intrusive than entering one’s vehicle or dwelling without a warrant. The law requires at least reasonable suspicion, if not probable cause, before an officer is permitted to board a boat, and any evidence obtained in the absence of probable cause is subject to suppression. Commonwealth v. Lehman, 857 A.2d 686, 688 (Pa. Super. 2004). This is especially pertinent when one considers that significant interaction, including conversation, can occur without the necessity of the law enforcement officer boarding the suspect’s vessel.

In the instant case, there was no probable cause to warrant the boarding of defendant’s boat or conducting the investigation that ensued. The concerns of the officers could have easily and unobtrusively been addressed by simply telling the defendant to turn off his docking lights. Instead, the officers used the fact that the defendant was utilizing his docking lights as a pretext for an illegal boarding of his boat; the functional equivalent of an arrest because there would have been no place for Martin to go. The pretextual nature of the boarding is clear because of the way the officers approached Martin’s boat. These officers approached Martin’s boat head-on so that the likelihood of the docking lights washing out the starboard and port navigation lights was at its greatest. Had they approached from either the starboard or port sides, they would have seen the navigation lights much closer than 10 to 12 feet.

The Commonwealth also cites State v. Warren, 78 S.W.3d 797 (Mo. App. 2002) in support of its position. In the Warren case, much like the present case, law enforcement authorities stopped and boarded the defendant’s boat because the operator had both his docking lights and navigation lights on at the same time. Warren, 78 S.W.3d at 798. If anything, the Warren case further supports defendant’s position in this case, as the court in Warren held that the officer’s stop of the defendant’s vessel “was pretextual and without reasonable suspicion because defendant was not operating his vessel in violation of the law.” Id. at 799.

Finally, the Commonwealth points to State v. Higgins, 680 N.W.2d 645 (N.D. 2004) in support of the Commonwealth’s position. In Higgins, the defendant was charged with a boating under the influence offense that followed from the stop of defendant’s boat because the ability of the enforcement officers to observe defendant’s navigation lights was impaired by the docking lights. Higgins, 680 N.W.2d at 648. What distinguishes the Higgins case from the instant case is that in North Dakota, the regulations are specific in describing the lighting requirements of all vessels and does not merely refer to the Inland Navigational Rules Act. Id. The North Dakota regulations precisely define the distances from which navigation lights must be observed. Pennsylvania law falls short in providing that level of regulation.

Boaters are entitled to know what the law is and the legislature would do well by addressing the lack of clarity that now exists. Manufacturers of pontoon boats equip these vessels with docking lights to aid the operator in docking their boats at night. Some boaters turn these lights on, even when not docking, to make themselves more visible to other vessels and so that they can see better; unaware that their navigation lights may be washed out. These operators are not cognizant of the purpose of the navigation lights to aid other boaters in ascertaining the direction of travel of the pontoon boat operator. Martin’s counsel notes in his brief that if “the Commonwealth’s interpretation of the federal rule is correct, then the only time that the use of docking lights would not be illegal would be when a boat is tied to the dock and not underway.”

The legislature should adopt a comprehensive statute, much like the Motor Vehicle Code, to make clear the law of this Commonwealth. If the legislature is not prepared to act, then it falls upon the Fish and Boat Commission to engage in a comprehensive review of its regulations to identify those areas that require greater clarity.

This court finds that the officers lacked probable cause, or even reasonable suspicion of a violation of the Fish and Boat Code, to stop and board Martin’s pontoon boat. The use of docking lights in concert with navigation lights is not a violation of the law in this Commonwealth. The claimed impairment in the officers’ view of the navigation lights by reason of the use of Martin’s docking lights was pretextual because of the method of the approach toward Martin’s boat taken by these officers. Moreover, once aware that the navigation lights were functional, the officers no longer possessed any reason to board Martin’s boat because, at that point, the officers were aware of Martin’s compliance with the regulation that he “carry and exhibit the lights prescribed by the Inland Navigation Rules Act.” 58 Pa. Code §95.3(a). In conformity with the Superior Court’s holding in Commonwealth v. Lehman, supra, this court will suppress all evidence obtained from the illegal stop and boarding of Martin’s pontoon boat.

ORDER

And now, January 19, 2010, the court grants defendant’s suppression motion and suppresses all evidence obtained following the stop of defendant’s pontoon boat.


author: ANTHONY, J,

text:
    Commonwealth v. Kennedy

      Jeffrey D. Burd, assistant district attorney, for Commonwealth.

      John F. Baurkot, for defendant.
    February 9, 2009
   ANTHONY, J,

The defendant is charged with possession of a controlled substance— contraband by inmate prohibited (heroin) and possession of a controlled substance (heroin), relative to an incident that occurred on July 23,2008, at the men’s community corrections center of the Lehigh County Prison.

The defendant, pro se, filed a motion for pretrial discovery and inspection, a petition for writ of habeas corpus/double jeopardy clause, and amotion to suppress. Subsequently, the defendant’s attorney, John F. Baurkot, Esquire, deputy public defender, filed a motion to suppress. The motion filed by Attorney Baurkot alleges that the defendant was searched for drugs without a warrant, was questioned about suspected drug use without being given Miranda warnings, and submitted to drug testing without a warrant or other legal excuse. Defendant’s counsel argues that all statements and other evidence must be suppressed.

A pretrial hearing was held on October 29, 2008. Inasmuch as the defendant was represented at the time he filed his pro se motions and petition, the same were summarily dismissed at the start of the hearing. The defendant proceeded on the motion to suppress filed by Attorney Baurkot. The Commonwealth offered the testimony of Corrections Officer Scott Holmes. The defendant did not offer any testimony or other evidence. The affidavit of probable cause attached to the criminal complaint was made part of the record.

Following oral argument, I took the defendant’s motion under advisement. This opinion follows.

FINDINGS OF FACT

Corrections Officer (C.O.) Scott Holmes, a 19-year veteran of the Lehigh County Prison’s (LCP) corrections force, was assigned to the men’s community corrections center (work release center) on July 23, 2008. At approximately 10:15 p.m., Holmes entered a bathroom at the work release center. While looking into a mirror, Holmes observed the defendant, fully clothed, in the corner of a stall, heard him snort something, and saw him wipe his nose. Holmes asked the defendant what he was doing, and then observed the defendant attempt to hide something in his front pocket.

Holmes asked the defendant to empty his pockets, but the defendant did not comply. Holmes again asked the defendant to empty his pockets: this time the defendant pulled from his pocket a small, cellophane baggie with the name “Bad Boy” printed on it. The baggie was empty. Holmes took possession of the baggie, placed it in an envelope, and placed the envelope in a drop safe. The baggie was eventually delivered to Investigator Cliff Knappenberger, and was thereafter photographed and field-tested.

After finding the baggie, Holmes handcuffed the defendant, escorted him to a holding cell, and called for additional officers. At some point the defendant stated to Holmes “you caught me”, or words to that effect. No question was before the defendant when he made this statement.

Additional officers arrived and the defendant was strip-searched. No further contraband was discovered. The defendant was transported back to the main LCP facility later that evening.

All inmates who are placed in the work release center receive a handbook. On page 12 of the handbook, the inmates are advised that they are not to consume alcohol or use illegal drugs and are subject to random urinalysis and/or oral alcohol screens. They are further advised that if drug or alcohol use is confirmed, appropriate disciplinary action shall be taken.

C.O. Holmes indicated he believed that on the following day the defendant was asked to and did submit a urine sample for analysis. Holmes believed the sample tested positive for heroin. Holmes also believed the baggie seized was analyzed, and that it too tested positive for heroin.

DISCUSSION

The defendant argues that he should have been Mirandizedprior to any questioning, and that prison authorities should have secured search warrants prior to asking him to empty his pockets and requesting a urine sample.

Miranda Warnings

Miranda warnings are required where an individual is subjected to custodial interrogation. Commonwealth v. Williams, 941 A.2d 14 (Pa.Super. 2008). Custodial interrogation includes any words or actions on the part of the police, other than those normally attendant to arrest and custody, that are reasonably likely to elicit an incriminating response from the individual being questioned. Commonwealth v. Gaul, 590 Pa. 175, 912 A.2d 252 (2006). However, “[i]t is well established in Pennsylvania that volunteered or spontaneous utterances are admissible even though the declarant was not ‘Mirandized." Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711 (1998).

In this case, the record indicates that the defendant made a spontaneous statement, along the lines of “you caught me”, and not in response to specific questioning by C.O. Holmes.

Search of Defendant and Request for Urine Sample

The defendant also argues that a search warrant was needed to recover the contents of his pocket and to acquire a urine sample for drug testing. As to the latter, the defendant analogizes it to a situation where an individual is stopped for DUI and refuses to have blood drawn for the purpose of analysis. He argues that although the person suspected of DUI is subject to penalties, the police must still obtain a search warrant in order to draw a blood sample for analysis if the suspect refuses one.

The defendant’s argument fails for two reasons. First, it assumes that the defendant refused to submit a urine sample. No evidence was offered, nor can I find any in the record, that the defendant either refused or agreed to submit a urine sample fortesting. Notably, the defendant did not allege in his motion that he was compelled to submit a urine sample.

Second, it assumes that a prisoner and an individual stopped for DUI share the same constitutional freedoms. “It is a difficult balance to maintain between protection of an individual’s freedoms and the societal need for secure prisons.” Commonwealth v. Wallington, 238 Pa. Super. 427, 430, 357 A.2d 598, 600 (1976). Prisoners’ constitutional freedoms are curtailed to a degree because of the necessity of prison officials to maintain discipline. Id. In a prison environment, the protections afforded by the Fourth Amendment are limited “to the extent that officials may search prisoners and seize contraband or evidence of suspected criminality.” Id. Our courts do recognize, however, that this is not meant to be an excuse for harassing prisoners and depriving them of basic freedoms. Id.

In this case, there is nothing to suggest that the purpose of requesting a urine sample from the defendant was to harass him. To the contrary, Holmes inadvertently walked into the work release center bathroom when the defendant was apparently using illegal drugs. Any reasonable person in the defendant’s position would have known he was not to use illegal drugs, and the work release center handbook, which is provided to all inmates, clearly states this policy and advises the residents they are subject to random urinalysis.

As to the contents of the defendant’s pockets, Holmes asked the defendant for the contents because he believed the defendant was hiding “contraband or evidence of suspected criminality”, and again, not as a means to harass him.

CONCLUSION

Based on the above, I find that no Miranda warnings were necessary prior to asking the defendant what he was doing in the work release center bathroom, no search warrant was necessary prior to asking the defendant to empty the contents of his pocket, and no search warrant was necessary prior to requesting a urine sample from the defendant. The defendant’s motion to suppress is denied.

ORDER

And now, February 9,2009, upon consideration of the defendant’s motion to suppress, and following a hearing held on October 29, 2008,

It is ordered that the defendant’s motion is denied and dismissed.

      . 18 Pa.C.S. §5123(a.2).

      . 35 P.S. §780-113(a)(16).

      . Attorney Baurkot’s motion does not specifically allege this, but he does make reference to “illegal seized heroin” in the motion.

      . See affidavit of probable cause.

      . This is where work release residents are placed until they are sent back to the main prison.

      . C.O. Holmes testified on direct examination that he could not remember the exact words the defendant used, and that the defendant made this comment spontaneously as he was transporting the defendant. On cross-examination, Holmes stated that the defendant likely uttered these words while in the bathroom.

      . Lehigh County Department of Corrections Men’s Community Corrections Center Handbook, 10/2008, p. 12. Admitted into evidence as Commonwealth’s exhibit 1. Notably, if the urine sample was taken in the main facility the following day, it is likely it was targeted, and not random, based on what had occurred the previous day.

      . Based on the testimony of C.O. Holmes, it is clear he did not have first-hand knowledge of what happened to the defendant after he was removed to the main prison facility. The affidavit of probable cause prepared by Investigator Cliff Knappenberger states: “The substance was photographed and field tested. Also on July 24,2008, inmate Kennedy was the subject of a urine test. Both the substance and inmate Kennedy tested positive for the drug heroin.”


text:
    Commonwealth v. Rodriguez

      Jeffrey Burd, deputy district attorney, for Commonwealth.

      John Waldron, for defendant.

      April 9, 2009
   ANTHONY, J,

The defendant was charged with possession with intent to deliver a controlled substance (marijuana), possession of a small amount of marijuana, and possessing an instrument of crime following an incident that took place on May 13, 2008.

On September 17, 2008, the defendant filed omnibus pretrial motions consisting of (1) motion for suppression of evidence and (2) motion for discovery. Pretrial hearings were held on November 26,2008, and February 10, 2009, the latter at the request of defendant’s counsel.

At the hearing of November 26,2008, Officer Joshua Brubaker of the Allentown Police Department (APD) testified. At the hearing of February 10, 2009, Evaristo Rodriguez (defendant) testified, and I admitted into evidence photographs of the belt, trousers, and shirt the defendant wore at the time of his arrest as D-2, D-3 and D-4, respectively. Although Brubaker appeared for the hearing of February 10, 2009, he did not testify. At that same hearing, defendant’s counsel offered into evidence Brubaker’s arrest report of May 13,2008, as D-l, pursuant to Pa.R.E. 803.1(1 )(b), and I took the question of the admissibility of the report under advisement. Thereafter, I reviewed Brubaker’s earlier testimony and determined that the report is admissible as an inconsistent statement of a witness.

Defendant’s counsel filed a brief wherein he argued, inter alia, that Brubaker is not credible based on inconsistencies and discrepancies between his testimony and his report, and that the evidence should be suppressed. The district attorney sent to me a letter brief wherein he argued that the evidence should not be suppressed.

THE EVIDENCE

Officer Brubaker’s Testimony

At the hearing of November 26, 2008, Brubaker stated on direct examination that he has been a police officer for approximately four years, with approximately two years with the Allentown Police Department (APD). He further testified that on May 13, 2008, he drove to Jack’s Pizza (no location was given) in full uniform and driving a police cruiser, and walked into the establishment at approximately 11 a.m. “to pick up a food order for personnel working at headquarters that day.” While inside, he observed the defendant standing in front of a counter. The defendant looked in the direction of Brubaker, and Brubaker watched the defendant walk away from the counter “to the center booth, located in the pizza shop, and sit down.” Brubaker observed a bulge on the defendant’s right hip while the defendant was at the counter, but could not tell, at least initially, whether the defendant was carrying a concealed weapon.

An employee of Jack’s Pizza advised the defendant that his pizza was ready, and after looking at Brubaker for a few seconds, the defendant stood up and walked up to the counter. At this point Brubaker observed the outline of a firearm underneath the defendant’s shirt. Brubaker commented that his ability to identify the weapon was based on training he received on the identification of firearms through the “Philadelphia Fraternal Police Lodge,” regular observation of individuals who possess firearms, previous arrests of individuals with concealed firearms, and his practice of always carrying a concealed firearm while not on duty.

Brubaker waited for the defendant to sit down. According to Brubaker, the defendant appeared to be very nervous. When the defendant sat down, he picked up the slice of pizza, put the slice back down, then placed his hands on the table, bowed his head, and prayed. While he was praying, Brubaker walked up to and then behind the defendant. The defendant noticed Brubaker before he started to walk behind him, and Brubaker observed the defendant reach for the firearm. By the time Brubaker got behind the defendant, the defendant’s “hand was already forming to the shape of the handle of the firearm and was less than an inch from the grip of the firearm.” At that point, Brubaker put his “hand on the handle of the firearm to prevent [the defendant] from being able to pull the firearm.”

After Brubaker put his hand on the handle of the firearm, he grabbed the defendant’s wrist with his left hand, put him in a wristlock and placed handcuffs on him. At the point he was being handcuffed, the defendant told Brubaker he had a concealed weapons permit in his front pocket, stating he was trying to reach for it. Brubaker stood the defendant up, and attempted to remove his gun from his waistband, as he was concerned the defendant may still be able to reach the gun. Brubaker has had a number of experiences with handcuffed individuals who were able to move their hands from the back to the front of their bodies.

According to Brubaker, he had to undo the defendant’s belt in order to remove the firearm (he did not explain why). When he pulled up the defendant’s shirt to undo his belt, he noticed a portion of a plastic bag sticking out of the fly of the defendant’s trousers. Based on his basic training and education at the police academy, at least 72 hours of drug intelligence and drug identification classes following the academy, and dozens of drug arrests, Brubaker concluded the bag “probably” contained drugs. Brubaker undid the belt and immediately removed the firearm due to safety considerations. Upon removing the defendant’s belt, the defendant’s pants fell to the ground. Brubaker removed a baggie from the fly, and observed that it contained nine zip lock-type bags of a greenish-brown vegetable matter, which he believed to be marijuana.

After the firearm was secured, Brubaker found a concealed weapons permit in the defendant’s “back right pocket”. He transported the defendant to headquarters where the defendant was searched. He found $430 in various denominations on the defendant. He contacted the Lehigh County Sheriff’s Department and confirmed that the defendant’s concealed weapons permit was valid.

On cross-examination, Brubaker confirmed that the defendant carried the concealed weapon on his right hip, a common location. He agreed that the gun was in proximity to where he located the permit. When asked why he walked behind the defendant, Brubaker stated:

“I asked him several times what the bulge was on his waist, and he said nothing several times, and I know in my experience, that people carry firearms illegally throughout the entire state and throughout the entire county, and it’s my duty as a police officer to determine who carries a firearm legally and who carries one illegally.”

Brubaker acknowledged that he did not mention this aspect of the events when testifying on direct examination. Brubaker explained that had the defendant advised him beforehand that he had a concealed weapons permit, he “would have handled the situation completely differently.”

On redirect examination, Brubaker commented that while at police headquarters, another officer discovered that the defendant was wearing body armor.

Defendant’s Testimony

At the hearing of February 10, 2009, the defendant indicated on direct examination that he was in Jack’s Pizza on May 13, 2008, at approximately 11 a.m., and he ordered a slice of pizza. He sat down and then observed Officer Brubaker walk into the restaurant. He noted that Brubaker walked immediately to the counter. The defendant was advised his slice was ready, so he went to the counter, picked up the slice, and went back to his seat and “said a quick prayer”. The defendant was wearing a black belt approximately one and one-half inches in width, a pair of fairly new blue jeans, and a collarless long-sleeved brown, thermal-type shirt made of stretch fabric (photos of these items were admitted into evidence as D-2, D-3 and D-4, respectively).

The defendant had a handgun contained in a holster attached to his belt. He had a concealed carry permit in his wallet located in his right back pocket. The holster was attached to the belt through a hole in the holster, and the gun was removable by lifting a snapped metal button, or by lifting a Velcro strap. According to the defendant, it was not necessary to remove the holster from the belt in order to remove the gun from the holster.

The holster containing the gun was situated on the defendant’s right hip midway between his right front and right rear pockets. The bottom of the brown shirt covered the gun and the holster, creating a bulge under the shirt that was plainly visible. When Rodriguez went to obtain his slice of pizza, he walked past Brubaker who was standing to his right side. He testified as follows regarding the events leading up to his arrest:

“Q: [Attorney Waldron]: What occurred next relative to Officer Brubaker?
“A: [The defendant]: Well, the officer, he looked at me. He goes, what do you have there? I told him I had a firearm, and that I had a permit to carry it, and that I knew the Sheriff, and he proceeded to say he didn’t care.
“Q: What did he do specifically?
“A: Well, after that, he immediately approached me, and he started walking behind me. At this point, I’m still sitting down. So, I mean, I didn’t react at all. I just sat there. So, he walks up behind me, and he puts his hand immediately on the gun.... I was trying to relay to him that I had an actual gun permit at the time.... He says, he didn’t care____[H]e put his hand on the gun, and then, at that point, I was still sitting down at the booth. So, he grabbed my arm, and he put it in a wrist lock.
“Q: Which arm?
“A: My right arm. . . . Then he yelled out, put your hand on your head. So, I put my left hand on my head .... He immediately put the cuffs on my one hand that he had already in possession, and then he put my other arm down like in an arresting position, and he just cuffed me. ... I was cuffed from behind, and I kept trying to communicate with him and tell him that I had an actual permit, but he kept saying that he didn’t actually care. So, I actually told him to reach in my back pocket to get the permit. So, that’s when he actually went back in the pocket, and with one hand grabbed — he did it all with one hand. He pulled out the wallet.
“Q: Which hand did he do it with?
“A: His left hand.
“Q: Where was his right hand?
“A: He was like, trying to detain me. Like, I wasn’t— he was just trying, he just had one hand on the handcuffs.
“Q: So, he had his right hand on the handcuffs?
“A: Yeah.
“Q: And his left hand, he then did what?
“A: He went into my back pocket and pulled my wallet out____With one hand, he slid out my ID, my driver’s license. Basically, all the cards that I had, he just whipped them all out, like everything on the table, with my permit and everything.
“Q: And did he see your permit at that point and time?
“A: Yes, definitely. ... He then said, well, let’s see what else you have on you. He basically, he pulled my shirt up, and then he started another search.... He went in my front pocket, and then he seen the baggies sticking out of the fly. So, he suggested, do you have crack on you? I said no. And then, he basically, he unstrapped my belt, unzipped my zipper, and my pants fell down, and I was in the restaurant in just my underwear, basically.
“Q: And at that point and time, your permit had already been viewed by him and was on the table?
“A: Yeah. My permit was on the table, my ID, driver’s license, the gun was on the table. And at that point, there was already back up in the store. So, there was two other officers there....
“Q: Now, in order to take — as I understand it, in order to take the gun out of the holster, you’d have to first lift up your long John; correct?
“A: Yes.
“Q: And then lift up the holster to then remove the gun from the holster correct?
“A: Yes.”

On cross-examination, the defendant acknowledged that after Brubaker placed handcuffs on him, the defendant gave him permission to retrieve his permit from his wallet, so Brubaker lifted up his shirt and pulled out his wallet from his right rear pocket. The defendant indicated that by the time his “pants were down, the gun was already on the table with the permit” along with other items from his wallet.

I questioned the defendant and he stated that after he was handcuffed, the gun was taken out of the holster and placed on the table, and then the contents of his wallet, including the permit, were removed and placed on the table. He indicated Brubaker stated to him he wanted to see what else he had on his person, so he searched the defendant’s front pockets and recovered his “rent money” in the approximate sum of $400. The defendant noted that when the officer lifted up his shirt in order to search his front pockets, the portion of the plastic baggie sticking out of the defendant’s zipper, which until this point was covered, was now visible.

Brubaker’s Report

“Brubaker’s report of May 13, 2008, states as follows:
“R/O [Reporting Officer] was assigned to duty officer position at HQ. R/O took marked patrol unit 503 to Jacks [sic] Pizza to pick up lunch. R/O was in full uniform. R/O went into Jacks [sic] Pizza and observed a male standing at the counter with his right hip bladed toward R/O. R/O observed that the male had a buldge [sic] on his right hip consistant [sic] with that of a gun handle. Male then observed R/O and quickly went and sat down. As soon as the male sat down, one of the Jacks [sic] employees stated that the males [sic] pizza was ready. The male sat for a few seconds and stared at R/O and then got up to get the pizza. At that point it became more aparent [sic] to the R/O that the male had a firearm under his shirt due to the fact that his right hip was towards R/O while the male was walking to get his pizza. R/O waited for male to sit down until talking to him. R/O asked male what was on his waist, as R/O was walking towards the male. R/O went behind male and he began to reach towards the location of the firearm. R/O grabbed the males [sic] hand and placed him into a wrist lock. R/O then called for another unit. R/O cuffed male and asked male what he was reaching for. Male relayed he was reaching for his front pocket. R/O asked male what was in his front pocket. Male relayed he was reaching for his weapons permit. R/O did locate a weapons permit in the males [sic] back right pocket. R/O pulled up males [sic] shirt to recover the firearm, and take it off of his belt for officer safety. R/O undid males [sic] belt and saw a plastic baggie sticking out of the males [sic] fly/zipper. R/O removed it and found it to contain (nine) ziplock type baggies with greenish-brown vegtable [sic] matter. Vegtable [sic] matter did later test positive for marijuana. R/O also located $430 of U.S. currency. It was 16: 20 dollar bills; 4: 10 dollar bills; 11:5 dollar bills; and 15: 1 dollar bills. R/O also recovered keys to a Toyota. Male relayed that his moms [sic] Toyota was parked outside and she lives in CT. Sgt. Brader asked the owner of Jack’s Pizza if he would like the car towed due to it being on private property, and he stated yes. R/O checked vehicle for items of value before towing it. R/O located two black guns under the driver seat, three cell phones, one box of ammo in the rear of the passenger seat and one box of ammo in the spare tire in the trunk. Cell phones and cash seized. Suspected marijuana logged into evidence and sent to PSP for further testing. R/Q read male his rights and he agreed to talk, however he would not give any information. Males [sic] criminal history was negative.”

FINDINGS OF FACT

After careful review of the evidence, I make the following findings of fact:

(1) The defendant was in Jack’s Pizza, on May 13, 2008, at approximately 11 a.m.

(2) The defendant was wearing jeans, a belt, and a stretch fabric shirt.

(3) The defendant was carrying a concealed weapon in a holster attached to the belt.

(4) The defendant was wearing body armor under his clothing.

(5) The stretch fabric shirt covered the holster and gun, and the top of the fly of the defendant’s jeans.

(6) The defendant’s fly was secured with a zipper.

(7) A portion of a clear plastic baggie protruded from the top of the defendant’s fly.

(8) The bulk of the plastic baggie was inside the defendant’s jeans.

(9) The plastic baggie contained nine small plastic zip lock-type bags of greenish-brown vegetable matter.

(10) The plastic baggie was held in place by the'zipper.

(11) The bottom of the defendant’s shirt covered the protruding portion of the plastic baggie.

(12) At all times material hereto, the defendant was aware he had the items mentioned above concealed on his person.

(13) Brubaker walked into Jack’s Pizza on May 13, 2008, at approximately 11 a.m.

(14) Brubaker was in full uniform.

(15) The defendant was in Jack’s Pizza when Brubaker arrived.

(16) The defendant observed Brubaker shortly after Brubaker walked into Jack’s Pizza.

(17) Brubaker observed the defendant shortly after he walked into Jack’s Pizza.

(18) The defendant was standing at a counter when Brubaker initially observed him.

(19) The defendant ordered a slice of pizza while standing at the counter.

(20) Brubaker was standing to the defendant’s right side.

(21) Brubaker observed a bulge on the defendant’s right hip while the defendant was standing at the counter.

(22) The defendant walked away from the counter.

(23) The defendant sat down at a booth and waited for his slice of pizza to be prepared.

(24) After a few minutes, an employee of Jack’s Pizza advised the defendant that his pizza was ready.

(25) The defendant hesitated, looked at Brubaker, and went to the counter in order to retrieve the slice of pizza.

(26) The defendant was visibly nervous.

(27) Brubaker observed the defendant and believed he appeared to be nervous.

(28) When the defendant went to the counter in order to retrieve the slice of pizza, Brubaker again observed the bulge on the defendant’s hip.

(29) The bulge appeared as an outline of a handgun.

(30) Based on his training, education and experience, Brubaker concluded the defendant was carrying a handgun.

(31) The defendant returned to the booth with the slice of pizza.

(32) The defendant sat down.

(33) The defendant picked up the slice of pizza, put the slice back down, placed his hands on the table, bowed his head, and prayed.

(34) While he was praying, Brubaker walked towards the defendant.

(35) The defendant noticed Brubaker as he was walking towards him.

(36) Brubaker asked the defendant what the bulge was on his waist.

(37) The defendant replied “nothing” or words to that effect.

(3 8) Brubaker walked towards the rear of the defendant while the defendant was still seated at the booth.

(39) The defendant reached towards the area of his right hip with his right hand.

(40) The defendant’s right hand formed to the shape of a handle of a firearm.

(41) Brubaker observed the defendant reach towards the area of his right hip with his hand forming to the shape of a handle of a firearm.

(42) Brubaker believed the defendant was reaching for a firearm.

(43) When his hand was less than one inch from the suspected firearm, Brubaker intercepted the defendant’s movements by placing his right hand on what turned out to be the handle of a handgun.

(44) Using his left hand, Brubaker placed the defendant in a wristlock, and then handcuffed both of the defendant’s hands behind the defendant’s back.

(45) While being handcuffed, the defendant stated to Brubaker he had a concealed weapons permit in his front pocket, and advised it was what he was reaching for when Brubaker placed him in a wristlock.

(46) Brubaker stood up the defendant from his seated position and lifted the front of the defendant’s shirt in order to remove the defendant’s belt and gun.

(47) When Brubaker lifted the front of the defendant’s shirt, he observed the portion of the baggie sticking out of the defendant’s fly.

(48) When Brubaker picked up the defendant’s shirt and saw the portion of the plastic baggie sticking out of the defendant’s fly, he concluded, based on his training, education and experience, the defendant was likely concealing illegal drugs.

(49) Brubaker removed the defendant’s belt, thereby removing the firearm and the holster from the belt.

(50) After Brubaker removed the defendant’s belt, the defendant’s trousers fell to the ground.

(51) When the trousers were on the ground, Brubaker immediately saw a clear plastic baggie containing a greenish-brown vegetable matter from inside the defendant’s trousers.

(52) Based on his training, education and experience, Brubaker believed the baggie contained marijuana.

(53) Brubaker removed the baggie from inside the defendant’s trousers.

(54) The plastic baggie contained nine smaller clear plastic bags of the suspected marijuana.

(55) Brubaker removed the defendant’s wallet from his right rear pocket, and removed the contents from the wallet including a concealed weapons permit.

(56) Brubaker also recovered from the defendant $430 in U.S. currency in various denominations.

(57) At police headquarters, the defendant was found to be wearing body armor.

(58) Police confirmed the defendant had a valid permit to carry a concealed weapon after the defendant was taken into custody.

DISCUSSION

When deciding a motion to suppress, the court is required to make findings of fact and conclusions of law in order to determine whether the challenged evidence was legally obtained. Pa.R.Crim.P. 581(H); Commonwealth v. Wilmington, 729 A.2d 1160, 1162 (Pa. Super. 1999). The Commonwealth bears the burden of establishing, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant’s rights. Pa.R.Crim.P. 581(H); Commonwealth v. Smith, 784 A.2d 182, 186 (Pa. Super. 2001). Any determinations of witness credibility and what weight should be afforded their testimony are within the exclusive province of the trial court. Commonwealth v. Fitzpatrick, 446 Pa. Super. 87, 91, 666 A.2d 323, 325 (1995).

Under certain circumstances, the police are justified in briefly stopping and frisking an individual for investigatory purposes.

“In order for such a stop to be reasonable under the Fourth Amendment to the United States Constitution, the police conduct must meet two separate and distinct standards. First, the police officer must point to specific and articulable facts which warrant the initial stop .... This standard is met ‘if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to believe that criminal activity may be afoot. Second, if the reasons for the stop meet the standard and, therefore, it is deemed reasonable for Fourth Amendment purposes, a police officer may frisk the individual to search for weapons.” Commonwealth v. Robinson, 410 Pa. Super. 614, 619, 600 A.2d 957, 959 (1991). (citations omitted)

In addition, “possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.” Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006) (quoting Commonwealth v. Robinson, 410 Pa. Super. 614, 619, 600 A.2d 957, 959 (1991)). Officer safety, and the safety of the public, “must always be afforded great weight when balanced against the privacy rights of an individual during an investigatory detention and pat down or frisk for weapons.” Id. (emphasis in original)

In the case sub judice, Brubaker had a reasonable suspicion to stop the defendant, briefly detain him, and to secure his weapon. Based on his training and experience, the essential facts available to Officer Brubaker were as follows: the defendant was carrying a concealed weapon; the defendant acted visibly nervous when Brubaker entered Jack’s Pizza, Brubaker saw an outline of a handgun underneath the defendant’s shirt on the defendant’s right hip; when asked what was on his hip, the defendant stated “nothing”; and the defendant began to reach towards the suspected handgun when Brubaker approached. Taking all these facts into consideration, I find Brubaker’s actions in restraining the defendant and securing the weapon were justified. When the defendant’s pants fell to the ground after removal of the belt, Brubaker, upon seeing apparent marijuana in a clear plastic baggie, had probable cause to believe the defendant was in possession of a controlled substance. Accordingly, he was justified in removing the baggie from inside the defendant’s pants and securing this and other evidence.

The actions leading up to the seizure of the suspected marijuana constituted only a limited intrusion upon the defendant’s privacy rights when balanced against the safety concerns of Brubaker and the general public. See id., 894 A.2d 759. To hold otherwise under these circumstances would do violence to the well-considered reasoning of Terry [v. Ohio, 392 U.S. 1 (1968)] ... and analogous cases.” Id., 894 A.2d at 773.

The defendant’s motion to suppress is denied.

ORDER

And now, April 9,2009, upon consideration of defendant’s motion for suppression of evidence, and hearings held on the motion,

It is ordered that the defendant’s motion is denied and dismissed.

      . 35 RS. 780-113(a)(30).

      .35 P.S. 780-113(a)(31)(i).

      . 18 Pa.C.S. 907(c).

      . At the November 26,2008 hearing, and by agreement of the parties, the motion for discovery was dismissed as moot.

      . N.T., November 26,2008, p. 21.