author: LUDGATE, J,

text:
    Commonwealth v. Vaux

      Ellen R. West, assistant district attorney, for Commonwealth.

      Jay M. Nigrini, for defendant.
    April 23, 2009
   LUDGATE, J,

I. PROCEDURAL HISTORY

On March 4, 2008, Erik Keith Vaux (defendant) was charged by information in docket 829-08 with three counts of involuntary deviate sexual intercourse with a child, 18 Pa.C.S. §3123(b), three counts of indecent assault, 18 Pa.C.S. §3126(a)(7), three counts of indecent exposure, 18 Pa.C.S. §3127(a), endangering the welfare of a child, 18 Pa.C.S. §4304(a)(l) and corruption of minors, 18 Pa.C.S. §6301(a)(l).

On July 18, 2008, the defendant was charged in docket 3090-08 with involuntary deviate sexual intercourse with a child, 18 Pa.C.S. §3123(b), involuntary deviate sexual intercourse, 18 Pa.C.S. §3123(a)(7), two counts of indecent assault, 18 Pa.C.S. §3126(a)(7) and (a)(8), indecent exposure, 18 Pa.C.S. §3127(a), endangering the welfare of children, 18 Pa.C.S. §4304(a)(l) and corruption of minors, 18 Pa.C.S. §6301(a)(l). The same day, the defendant was charged in docket 3092-08 with involuntary deviate sexual intercourse with a child, 18 Pa.C.S. §3123(b), involuntary deviate sexual intercourse, 18 Pa.C.S. §3123(a)(7), two counts of indecent assault, 18 Pa.C.S. §3126(a)(7) and (a)(8), endangering the welfare of children, 18 Pa.C.S. §4304(a)(l) and corruption of minors, 18 Pa.C.S. §6301(a)(l).

On June 20, 2008, the court granted the Comm on - wealth’s motion for joinder of trials pursuant to Pa.R.Crim.P. 582, finding similarity between the alleged victims and similarity of time frame throughout the three dockets. The defendant, through counsel, filed a motion to sever trials on September 11,2008, which was denied September 17, 2008.

On October 15 and 16 of 2008, a jury trial was held before Judge Linda K.M. Ludgate. The jury returned a verdict of guilty on all counts in all three dockets.

On March 24, 2009, this court held a Megan’s Law hearing and found the defendant to be a sexually violent predator pursuant to 42 Pa.C.S. §9791 etseq. and ordered the defendant to register as a sex offender for the rest of his life. That day, this court also sentenced the defendant to a total sentence of 51 to 125 years incarceration with 462 days of credit time.

The defendant, through counsel, filed a timely notice of appeal on March 25, 2009. On March 31, 2009, this court ordered the defendant to file a concise statement of errors complained of on appeal pursuant to 1925(b) Pa.R.A.P. within 21 days. On April 6,2009, the defendant timely filed his 1925(b) statement.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the instant appeal be denied.

II. ISSUES RAISED BY THE DEFENDANT

The defendant raises only one issue on appeal, being “[wjhether the trial court erred in denying appellant’s motion to sever the three separate cases for trial.”

III. DISCUSSION

The joinder of separate indictments or informations for trial is governed by Rule 582 of the Pennsylvania Rules of Criminal Procedure. The rule provides:

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

Rule 583 also provides “[t]he court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.”

“Whether or not separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant.” Commonwealth v. Newman, 528 Pa. 393, 398, 598 A.2d 275, 277 (1991). Evidence of distinct crimes is inadmissible solely to demonstrate a defendant’s criminal tendencies; however, evidence is admissible to show a common plan, scheme or design embracing commission of multiple crimes, orto establish the identity of the perpetrator, so long as proof of one crime tends to prove the others. This will be true when there are shared similarities in the details of each crime. Commonwealth v. Keaton, 556 Pa. 442, 458, 729 A.2d 529, 537 (1999), cert. denied, 528 U.S. 1163 (2000). (emphasis added) “To establish similarity, several factors to be considered are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed.” Commonwealth v. Rush, 538 Pa. 104, 113, 646 A.2d 557, 561 (1994).

In Commonwealth v. Andrulewicz, three cases charging Andrulewicz with various sex crimes on separate juvenile victims were consolidated for trial. The trial court found the similarities between the cases to be probative of a common plan or scheme and that evidence of each offense would be admissible in separate trials. The Superior Court affirmed. 911 A.2d 162 (Pa. Super. 2006), appeal denied, 592 Pa. 778, 926 A.2d 972 (2007).

In this case, all three victims described remarkably similar occurrences. Each of the victims testified the defendant would provide them marijuana and alcohol. (Notes of testimony (N.T.) 10/15/08-10/16/08, pp. 7, 9, 44, 81.) Each of the victims described multiple instances of the defendant placing his mouth on their penis while each boy was intoxicated or passed out. (N.T. 10/15/08-10/16/08, pp. 9, 45, 47, 77, 79.) Victim M.M. testified the sexual episodes with the defendant began when he was approximately 11 years old and stopped at approximately 14 or 15 years old. (N.T. 10/15/08-10/16/08, pp. 6, 11.) Victim N.K. stated the assaults began while he was 12 or 13 and concluded at age 15. (N.T. 10/15/08-10/16/08, pp. 43, 51, 53.) The third victim, N.P., stated the oral sex happened when he was as young as 6 years old and as old as 13. (N.T. 10/15/08-10/16/08, pp. 74-75.) All three testified the assaults happened at the defendant’s home in Laureldale and the home of the defendant’s parents in Shillington. (N.T. 10/15/08-10/16/08, pp. 7, 8, 45-46, 48, 75-76.)

The relation of the separately charged crimes is also shown through the relationships of the victims to one another. Victim M.M. testified he was friends with victims N.P. and N.K. and that the defendant was friends with the families of N.P. and N.K. (N.T. 10/15/08-10/16/08, p. 6.) Victim N.K. testified he was friends with the family of N.P. (N.T. 10/15/08-10/16/08, p. 43.) Victim N.P. stated he knew N.K. and M.M. and they were present 20 or more times during the assault. (N.T. 10/15/08-10/16/08, p. 80.)

The court concluded the similarities between the victims and the manner in which they were victimized were sufficient to constitute a common plan or scheme, such that evidence of each would be admissible in separate trials.

The jury was capable of separation of the evidence; there was no danger of confusion or prejudice to the defendant. When charging the jury, the court went to painstaking means to detail which instructions applied to which docket and which alleged victim, to prevent confusion by the jury. For example, the court instructed the jury “[tjhis charge of involuntary deviate sexual intercourse relates to Count 2 of the case where [N.K.] is the victim and Count 2 where [M.M.] is the victim.” (Notes of testimony, jury charge, 10/16/08, p. 14.) This type of guidance was given throughout the jury charge in order to distinguish between the crimes alleged as applicable to each victim, including different types and subsections of IDSI and indecent assault. (Notes of testimony, jury charge, 10/16/08, pp. 12-21.)

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied.

      . Excluding the indecent exposure charges in docket 829-08, for which the court granted the defendant’s motion for judgment of acquittal prior to jury deliberations.

      . M.M. also testified to assaults at an Econo Lodge motel; the motel was determined by police to be in Douglasville, Berks County, Pennsylvania. N.P. testified to instances occurring at an apartment in Mt. Penn. (N.T. 10/15/08-10/16/08, pp. 8, 78, 108.)


source: Caselaw Access Project

author: KENNEDY, J.,

license: Public Domain

text:
    Commonwealth v. Dailey

      H. Stanley Rebert, for Commonwealth.

      Danny Dailey, pro se.

      May 15, 2009
   KENNEDY, J.,

On Thursday, April 30, 2009, the clerks of courts office forwarded to the undersigned Danny Dailey’s petition for appeal of the denial of records by the District Attorney’s Office of York County, under the Right-to-Know Law, in which he requested “Copies of Complaints and of Copies of Dated Envelopes That Contained Letters Sent to the Accuser and Her Mother Used Against Me in Court. . . Mr. Dailey filed this petition on or about April 20,2009. We deny Mr. Dailey’s petition, and we issue the following opinion to discuss the basis for our decision:

FACTS AND PROCEDURAL HISTORY

This matter arises from Mr. Dailey’s summary conviction for harassment. In our 1925(a) opinion, dated March 25, 2008, we recited the facts as follows:

On August 28, 2007, Southwestern Regional Police Department Officer Jaime Stalcup responded to a harassment call at a residence in North Codorus Township. (N.T. hearing, pp. 12-13.) Officer Stalcup reported that this was not the first instance in which he or another officer were called to this residence on this matter; he can recall at least three prior occasions when he was called, and that other police officers from his department also responded to this residence for the same reason regarding the same appellant. (N.T. hearing, pp. 14-15.)

On August 28, 2007, appellant placed an un-stamped envelope in the mailbox of the residence of Ms. Audrey Adams, containing a letter addressed to Ms. Adams, which she found harassing. (N.T. hearing, pp. 5, 14.) According to Ms. Adams and Officer Stalcup, appellant continued to send letters and telephone calls to Ms. Adams, even after she, her mother (with whom she resided) and the police instructed Mr. Dailey to stop. (N.T. hearing, pp. 6-7.) The August 28,2007 letter appeared in Ms. Adams’ mailbox after the police had instructed him to cease contacting Ms. Adams. (N.T. hearing, p. 16.)

On January 30, 2008, appellant was found guilty of harassment and fined.

Since the filing of our 1925(a) opinion on March 25, 2008, Mr. Dailey has filed several motions, including the following: a motion for reargument [sic] on October 17, 2008; reargument and statement of facts on December 3,2008; discovery demand on December 12, 2008; and a petition to place court costs on the county, on December 31,2008, which we granted on January 5,2009. Mr. Dailey has also sent this court various correspondence, colorfully detailing his communications with the victim and her family in this case.

The Superior Court affirmed our judgment of sentence on October 6,2008, and returned the case on January 27, 2009. Mr. Dailey’s instant petition deals with the same subject matter of his summary conviction.

DISCUSSION

On April 20, 2008 Mr. Dailey filed his self-styled “Petition for Appeal of Denial of Records by the District Attorney s Office of York County Under the (Right To Know Law) Asking for Copies of Police Reports of Complaints and of Copies of Dated Envelopes That Contained Letters Sent to the Accuser and Her Mother Used Against Me in Court Pertaining to a Citation Charge Issued by the Southwestern Police Department September 2007 and Later Convicted by the Courts of Judge Kim S. Leppo on October 31, 2007 and of John S. Kennedy on January 30, 2008 and of the Superior Court on Written Arguement [sic] andRearguement Ending December 10 2008. ”

In order to provide for access to public information, Governor Ed Rendell signed Pennsylvania’s new Right-to-Know Law on February 14, 2008, and it took effect on January 1, 2009. 65 P.S. §67.101 et seq. This law governs the release of records from an agency, including an entity or office of the unified judicial system, provided the request is specific and concise. All records are presumed to be public records unless disclosure is barred by: (1) state or federal law or regulation, or judicial order; or (2) privilege, e.g., attorney-client, doctor-patient; or (3) one of the exceptions under section 708 of the statute.

A record is defined as any “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received, or retained pursuant to law or in connection with a transaction, business or activity of an agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.” Section 67.102.

The Right-to-Know Law chapter 7 outlines the procedure for filing a request under the statute. “Agencies may fulfill verbal, written or anonymous verbal or written requests for access to records under this Act. If the requester wishes to pursue the relief and remedies provided for in this Act, the request for access to records must be a written request.” Section 67.702. Requesters of information should “identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested, and shall include the name and address to which the agency should address its response.” Section 67.703.

Agencies are required to respond within five business days. “Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record, legislative record or a financial record, and whether the agency has possession, custody or control of the identified record, and to respond as promptly as possible under the circumstances.” Section 67.901. If the agency fails to respond in five days, the request is deemed denied. Id. In that event, a requestor has 15 business days to file an appeal to the state Office of Open Records. Section 67.1101(a)(1). In the case of an appeal of a decision by a local agency, the Office of Open Records shall assign an appeals officer to review the denial. Section 67.1101 (a) (2). Then, “within 30 days of the mailing date of the final determination of the appeals o fficer relating to a decision of a local agency issued under section 1101(b) or of the date a request for access is deemed denied, a requester or local agency may file a petition for review or other document as required by rule of court with the court of common pleas of the county where the local agency is located. Section 67.1302(a). While the law does not specify whether the agency or requester must file this petition for review with the county prothonotary’s office or the clerk of court’s office, the penalties for denying access to a public record in bad faith are civil penalties of not more than $1,500. Section 67.1305(a). (emphasis added) We hold that absent local rule, requesters and agencies should file a petition for review with the prothonotary’s office in the county where the agency is located.

Mr. Dailey states as follows, “I Appealed the Refusal by the Police Department to Office of Open Records Which Was Forwarded to the District Attorney’s Office Which Never Has Responded As of This Date of4/20/09. Another Letter Was Sent to the Officer of Open Records at the DA’s Office Even If He May Just Handle Records From Their Office and Not the Police Department Records As I Was Told Differant Things of This. One Was Sent to Their Department Also. ” Mr. Dailey indicates parenthetically that he appealed the refusal of the Southwestern Regional Police Department on March 13,2009, and that the York County District Attorney’s Office received a copy of his appeal of the refusal from this police department on March 19, 2009.

Upon reviewing the statutory definitions of “agency” and “local agency,” as well as the statutes relating to intergovernmental cooperation which enable the creation of regional police departments (53 P.S. §2301 et seq.), the Southwestern Regional Police Department qualifies as a local agency under the statute, as “any local, intergovernmental, regional or municipal agency, authority, council, board, commission, or similar government agency.” 67 §102. A local agency is required to provide public records in accordance with this act. 67 §302(a).

Mr. Dailey has not included in his petition whether this police department has responded to his requests for infonnation, nor if this local agency even received Mr. Dailey’s requests. Nor are we aware of any reasons the police department may have provided to Mr. Dailey for a decision not to provide these records to him.

In the event that a local agency denies a written request for access to records, the Office of Open Records shall assign an appeals officer to review the denial. 67 § 1101 (a) (2). Again, Mr. Dailey’s petition is silent as to whether he contacted the state’s Office of Open Records at any point following a denial from the police department.

Mr. Dailey’s petition also includes the following paragraph, addressed to District Attorney Stanley Rebert, Magisterial District Justice Kim Leppo, and the undersigned: “This Letter Is a Complaint of the Southwestern Regional Police Department and the York County District Attorney’s Office of York Pennsylvania of One of Other Complaints I Have of Them.

“I Have Sent the Clerk of Courts Office a Copy of This Petition To. Forward to the Judge in Charge of Appeals and Also a Copy of This Petition to the District Attorney’s Office of York County That Has So Far With in a Reasonable Period of Time Has Neglected To Respond to My Request on a [sic] Answer on the Appeal I Had in Re-guards [sic] to Asking for Copies of Police Reports and Dated Envelopes Containing Letters That Pertained to the Charge, Case, and Conviction by the Police, DA’s Office and the Courts or Have They Sent the Requested Document Whether They Be in the Police s Possession or in Their Hands They Have Refused To Be Honest and Fair in Their Practices As Some of Other Ones Have Done Involveing [sic] This Case and Others Working in the Court Systems and Offices and the Law Besides the Accuser Involved in This Charge and Case That Has Lied Enough To Begin With, [Signed] Victim, Defendant, Witness. ”

Accordingly, we deny Mr. Dailey’s petition for appeal for the following reasons:

(1) Mr. Dailey has not advised in his petition what form his initial request to the Southwestern Regional Police Department was presented, whether written or not (in order to preserve his appellate rights, the request must be written);

(2) Mr. Dailey has not provided us with any information regarding the Southwestern Regional Police Department’s response to his initial request for information; and

(3) Mr. Dailey has not provided us with any information regarding any contacts he may or may not have made to the state’s Office of Open Records for the purposes of appealing a denial from the police department.

In conclusion, we do not reach the merits of whether the documents Mr. Dailey requests qualify as records under the statutory definition, or whether the documents he requests may fall under one of the exceptions outlined in section 708 of the statute. We dismiss his petition for appeal without prejudice, so that he may attempt to gain this information properly under the state’s Right-to-Know Law.


author: LASH, J.,

text:
    Hain v. Borough of West Reading

      William R.A. Rush, for plaintiff.

      Lisa Bellino Apelian, for defendant Envirotech & Associates.
    April 24, 2009
   LASH, J.,

The matter before this court is the motion of defendant, Envirotech & Associates Inc., for summary judgment. The within action is a claim for damages for injuries suffered by plaintiff, Archer Hain, during the construction of a new single story firehouse for the Borough of West Reading and West Reading Fire Company No. 1. Envirotech is an engineering firm retained by the Borough to handle inspections and provide reports to the Borough on the construction process. Plaintiff, a mason tender employed by F.L. Royer Inc., was injured when he fell from scaffolding at the construction site. Plaintiff’s amended complaint claims, among other things, that Envirotech had a duty to safeguard plaintiff’s welfare based on its contractual obligation to perform safety inspections of the project for the Borough. Envirotech’s motion contends that the inspection duties agreed upon between Envirotech and the Borough did not include providing safety inspections, that Envirotech owed no general or contractual duty to plaintiff, and that therefore, plaintiff has no cause of action against Envirotech. Argument was held on the motion on April 20, 2009.

According to plaintiff’s amended complaint, the Borough, on February 26, 2002, entered into an agreement with Envirotech to act as an “on-site inspector” for the project. It was also stated that Envirotech was to act as the Borough’s “representative” on the project. Plaintiff further alleges that, in accordance with the contract, Envirotech “undertook a duty to inspect the work site of the project to ... ensure that all safety precautions necessary for the protection of the workers on the project and/or required by law were taken.” Plaintiff then alleges that Envirotech failed to properly inspect the project and was negligent by allowing workers, such as plaintiff, to perform construction work while standing on a scaffolding which was unsafe because of its height and lack of railings or other safety devices required to protect a worker from falling. According to plaintiff, his fall and resulting injuries were a direct result of Envirotech’s negligence.

The “contract” referred to in plaintiff’s amended complaint was, in fact, an informal agreement delineated in correspondence from Glen R. Powell, CSI, on behalf of Envirotech, addressed to the code compliance officer of the Borough of West Reading. The correspondence set forth the “scope of services” to be provided by Envirotech, listing the following:

• Provide inspections totaling approximately seven hours per week
• Attend all formal job meetings
• Review all change orders for form and appropriateness
• Review all applications for payment (certifications to be provided by architect)
• Notify architect of any issues arising from inspection activities (architect to handle issues)
• Keep project diary and take photos throughout the course of the project for use in case of disputes.
• Provide a monthly written report to the appropriate Borough representative(s) documenting progress.

In Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001), the Supreme Court restated the standard for granting summary judgment:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which ‘an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ Pa.R.C.P. 1035.2(2). We review the record 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. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992).”

The “primary element” in a negligence action is the existence of a duty of care owed by a defendant to the plaintiff. Althaus ex rel Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000). As the Pennsylvania Supreme Court stated in Althaus:

“The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.” 562 Pa. at 553, 756 A.2d at 1169.

Plaintiff argues that Envirotech, as the Borough’s representative, contractually assumed the duties of the Borough as a landowner. Plaintiff then cites Restatement (Second) of Torts §343 for the proposition that a landowner, or in this case its representative, must exercise reasonable care to protect persons invited on the land from a dangerous condition existing on the land.

However, for Envirotech to have assumed the duties of a landowner, it would have had to assume possession of the land, particularly the area occupied by the construction. Here, Envirotech’s responsibility under the contract was limited to providing inspections for approximately seven hours per week, then providing a monthly written report to the Borough. Nowhere does it suggest that Envirotech had taken possession or assumed control of the land or the work site.

Secondly, the evidence is clear that, at all relevant times, neither the Borough nor Envirotech, as its representative, was in possession of the work site. The general contractor, defendant, Stirling Engineering & Construction Inc., had assumed possession of the work site in accordance with the contract it entered into with the Borough on February 26,2002. Article 10 of the “General conditions of the contract for construction” specifically provides that Sterling would be responsible for “initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the contract,” including taking reasonable precautions and providing reasonable protection for the safety of and to prevent injury to, employees on the project and other persons who may be affected thereby.

A landowner has no duty to protect the employees of an independent contractor from risks arising from or created by the job contracted, unless the landowner retains and exercises control over the work of the independent contractor. LaChance v. Michael Baker Corporation, 869 A.2d 1054, 1057-58 (Pa. Commw. 2005). There is nothing in the record to suggest that the Borough, either directly or indirectly through Envirotech, retained possession and control of the work area during the construction process. There is also no evidence that the Borough controlled the work or workers at the site, or delegated that conduct to Envirotech. Accordingly, Envirotech has not assumed the duties of a landowner.

Plaintiff’s primary argument is that the “inspections” called for in the contract between the Borough and Envirotech contemplates safety inspections and that, therefore, Envirotech is contractually obligated to detect and warn of safety concerns that exist. In the alternative, plaintiff contends that the term “inspections” is ambiguous, and that this ambiguity constitutes a material factual dispute requiring that the matter be submitted to a jury.

We disagree. The record is dispositive that Envirotech, as the Borough engineer, was to inspect the construction being performed to ensure that the construction complied with the plans and specifications of the submitted designs. Nothing in the record provides that the inspections would extend beyond this limited scope, or include safety inspections. Therefore, while the terms of the contract are indeed very general, the context of the provisions are made clear from the evidentiary record, and this court is satisfied that no ambiguity exists and that there is no issue of material fact.

Accordingly, we enter the following order:

ORDER

And now, April 24, 2009, upon consideration of the motion of defendant, Envirotech & Associates Inc., for summary judgment, response thereto, briefs filed by the parties, and upon review of the record, the motion for summary judgment is granted. Judgment is entered in favor of defendant, Envirotech & Associates Inc., and against plaintiff, Archer Hain.

      . Restatement (Second) of Torts §343 states:
      “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if but only if, he
      “(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
      “(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

        “(c) fails to exercise reasonable care to protect them against the danger.”

      . Defendant, Stirling Engineering & Construction Inc., is no longer a party to this suit due to this court granting its motion for summary judgment on November 13,2007, on the basis that Stirling was entitled to statutory employer immunity under the Pennsylvania Workers’ Compensation Act, 77 P.S. §1 et seq.

      . Paragraph 10.1.1 of article 10 sets forth: “The contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the contract.” Section 10.2.1 of article 10 states, in pertinent part: “The ‘contractor’ shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: .1 employees on the work and other persons who may be affected thereby.” Section 10.2.6 of article 10 states: “The contractor shall designate a responsible member of the contractor’s organization at the site whose duty shall be the prevention of accidents. This person shall be the contractor’s superintendent unless otherwise designated by the contractor in writing to the owner and architect.”


author: ASHWORTH, J,

text:
    Commonwealth v. Robinson

      Alina Andreoli, assistant district attorney, for Commonwealth.

      Jeffrey A. Conrad, for defendant.
    April 16, 2009
   ASHWORTH, J,

Wilbert Torillo Robinson has filed an amended motion for post-conviction collateral relief. For the reasons set forth below, the amended motion will be granted.

I. PROCEDURAL BACKGROUND

By Information no. 5141-2005, Robinson was charged with five counts of robbery, one count of criminal conspiracy, and one count of aggravated assault. Robinson was later charged at Information no. 1502-2006 with criminal conspiracy, and robbery. These offenses occurred on August 15, 2005, and August 25, 2005.

Because Robinson was 17 years of age at the time these offenses were committed, Robinson filed a motion to transfer proceedings to juvenile court on November 11,2006. A juvenile decertification hearing was held in this matter before the Honorable Michael J. Perezous on December 27, 2006. By opinion and order dated March 8,2007, Judge Perezous denied the petition, and ordered that Robinson be tried as an adult on all charges.

Thereafter, Robinson’s cases were consolidated, for purposes of trial, with his six co-conspirators. After numerous continuances by Robinson, his case was scheduled for trial for the May 2007 trial term, at which time the Commonwealth was prepared to proceed to trial.

Before a jury was selected, Robinson chose to enter an open plea on May 7,2007. At that time, the court accepted Robinson’s pleas, after determining that Robinson had knowingly, voluntarily, and intelligently chosen to plead guilty. Sentencing was deferred pending a presentence investigation report. Robinson was represented at his plea by court-appointed counsel, Paul Campbell, Esquire.

On August 2, 2007, Robinson was sentenced on Information no. 5141 to an aggregate sentence of nine and a half to 19 years. On Information no. 1502-2006, appellant received a sentence of three to six years incarceration on the robbery charge and two to four years on the criminal conspiracy charge. The sentences on these charges were concurrent to each other but consecutive to the sentence at no. 5141. Thus, the aggregate effect of these sentences was 12 1/2 to 25 years. Robinson was represented by Attorney Campbell at this sentencing hearing.

On August 10, 2007, Robinson filed a timely motion to modify sentence claiming that the sentence imposed by the court (1) was “unjust and inequitable”, (2) was disproportionate to the sentences imposed on two co-defendants by another court, and (3) failed to consider his individual achievements and mitigating circumstances of age, rehabilitative potential and limited involvement in the criminal episodes. On August 20,2007, I entered an order denying Robinson’s motion to modify and reduce sentence.

Robinson filed a direct appeal with the Superior Court of Pennsylvania on September 19,2007, from his judgment of sentence entered on August 2,2007, as finalized by the denial of Robinson’s post-sentence motion by order dated August 20,2007. Thereafter, Robinson was directed to identify the matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) and on October 10,2007, he filed a Rule 1925(b) statement listing three issues. On October 16, 2007, I filed an opinion pursuant to Rule 1925(a) addressing each of the issues raised on appeal.

The Superior Court directed trial counsel, on behalf of Robinson, to file a brief in support of the appeal on or before December 12, 2007. On January 15, 2008, an order was issued by the Superior Court dismissing the appeal for trial counsel’s failure to file a brief.

On November 19, 2008, Robinson filed a timely pro se motion for post-conviction collateral relief. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, Jeffrey A. Conrad, Esquire, was appointed on December 11, 2008, to represent Robinson on his collateral claims. After receiving an extension, counsel filed an amended motion on March 30, 2009, in which he raised two issues: (1) whether trial counsel’s failure to file a brief with the Pennsylvania Superior Court was per se ineffective assistance of counsel; and (2) whether trial counsel unlawfully induced Robinson to plead guilty to Counts 2 and 3 on Information no. 5141-2005.

II. DISCUSSION

Initially, Robinson claims trial counsel’s failure to file a brief with the Superior Court constituted per se ineffective assistance of counsel. I must agree. The Pennsylvania Constitution, in Article V, Section 9, confers upon a defendant the absolute right to a direct appeal to the Superior Court. Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). “It is well-settled that ‘an accused who is deprived entirely of his right of direct appeal by counsel’s failure to perfect an appeal is per se without the effective assistance of counsel, and is entitled to reinstatement of his direct appellate rights.’” Commonwealth v. Mikell, 968 A.2d 779 (Pa. Super. 2009) (quoting Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa. Super. 2005) (emphasis added)).

Where counsel fails to file an appellate brief, resulting in the dismissal of an appeal, counsel has effectively waived the constitutional right of the accused to a direct appeal, in the absence of an effective waiver by the accused. Commonwealth v. Mosteller, 430 Pa. Super. 57, 62-63, 633 A.2d 615, 618 (1993). In the instant case, it is undisputed that the Superior Court dismissed Robinson’s direct appeal because of court-appointed counsel’s failure to file a brief. “Appellant had a right to the zealous advocacy of competent counsel or the protections of formal withdrawal procedures. Here there was neither zealous advocacy nor a proper formal withdrawal.” Commonwealth v. Ciotto, 382 Pa. Super. 458, 461, 555 A.2d 930, 931 (1989). Attorney Campbell simply abandoned Robinson’s appeal and, by his inaction, allowed Robinson’s constitutional right to an appeal to be waived. See Wilkerson, supra. The “role (of the) advocate requires that (counsel) support his client’s appeal to the best of his ability.” Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003) (quoting Anders v. California, 386 U.S. 738, 744 (1967)). This was clearly not done in this case as counsel’s failure to file a brief denied Robinson meaningful review of his appeal and, thus, constitutes per se ineffectiveness.

When, as here, a criminal defendant establishes that counsel’s ineffective assistance denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal. Ciotto, supra at 461, 555 A.2d at 931 (citing Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977)). See also, Commonwealth v. Hernandez, 755 A.2d 1, 9 n.4 (Pa. Super. 2000).

Accordingly, I will grant Robinson post-conviction collateral relief and reinstate his direct appeal rights nunc pro tunc.

As for the remaining issue, that is, whether trial counsel unlawfully induced Robinson to plead guilty to Counts 2 and 3 on Information no. 5141-2005, we cannot address it in this proceeding. For as the Superior Court recognized in Commonwealth v. Liston, 941 A.2d 1279 (Pa. Super. 2008) (en banc), when a trial court addresses a petitioner’s ineffectiveness claims after it has already granted him or her the right to file a direct appeal nunc pro tunc, it essentially offers an advisory opinion that is generally prohibited. Id. at 1284. The Liston court, however, proposed a new procedural requirement to address the situation where a PCRA petition requests the restoration of the petitioner’s appellate rights nunc pro tunc, and raises other claims of trial counsel’s ineffectiveness.

“[Hjenceforth, if the PCRA court determines that, in fact, appellate counsel was ineffective for failing to file a requested direct appeal and reinstates the petitioner’s direct appeal rights nunc pro tunc, the court shall also reinstate the petitioner’s right to file post-sentence motions or amended post-sentence motions nunc pro tunc. The petitioner can then raise whatever ‘other’ claims of counsel ineffectiveness he/she wants to in post-sentence motions; the trial court can hold an evidentiary hearing, if warranted, perfect the record for review, and reach a final decision on the merits. In this way, the trial court’s decision results in an appealable ruling, and the trial court will not be compelled to issue a merely ‘advisory’ opinion. The record will also be complete so that [the Superior Court] may review the appellant’s ineffectiveness claims on the ensuing direct appeal. . . . This practice will preserve valuable judicial time and resources, and save the appellant from having to file another, duplicative PCRA petition raising the identical claims later in the process.” Liston, supra at 1284-85. See also, Commonwealth v. Jones, 960 A.2d 481, 486-87 (Pa. Super. 2008).

However, on October 31, 2008, the Pennsylvania Supreme Court granted the Commonwealth’s petition for allowance of appeal in the Liston case. See Com monwealth v. Liston, 598 Pa. 638, 959 A.2d 1248 (2008). Accordingly, given the pending appeal before the Supreme Court, this court is not bound by the en banc decision of the Superior Court in Liston. We are bound by the appellate decisions of this Commonwealth prohibiting the issuance of advisory opinions. See Pittsburgh Palisades Park LLC v. Commonwealth of Pennsylvania, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005) (courts in this Commonwealth do not render decisions in the abstract or offer purely advisory opinions); Erie Insurance Exchange v. Claypoole, 449 Pa. Super. 142, 150, 673 A.2d 348, 352 (1996) (it is impermissible for courts to render purely advisory opinions).

Thus, having found that Robinson is entitled to the reinstatement of his direct appeal rights nunc pro tunc, we decline to address the remaining ineffective assistance of counsel claim.

III. CONCLUSION

Based upon the foregoing, Robinson’s amended motion for post-conviction collateral relief will be granted, his direct appeal rights will be reinstated, and he will be permitted to appeal nunc pro tunc.

Accordingly, I enter the following:

ORDER

And now, April 16, 2009, it is hereby ordered that Wilbert Torillo Robinson’s amended motion for post-conviction collateral relief is granted. It is further ordered that Robinson’s appeal rights shall be reinstated nunc pro tunc.

Attorney Jeffrey Conrad shall continue in his representation of Robinson through the appellate process.

      . 18 Pa.C.S. §3701 (a)(1), 18 Pa.C.S. §903, 18 Pa.C.S. §2702(a) (1), respectively.

      . 18 Pa.C.S. §3701(a)(l) and 18 Pa.C.S. §903, respectively.

      . The Pennsylvania Constitution Article V, Section 9 guarantees: “There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be provided by law; and there shall be other such rights of appeal as may be provided by law.”

      . The appeal was granted limited to the following issues: (1) Did the Superior Court contradict Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), in purporting to create its own new exception to that case; (2) Did the Superior Court contradict Commonwealth v. Reaves 592 Pa. 134, 923 A.2d 1119 (2007) by holding that any PCRA petitioner entitled to a ntmc pro tunc direct appeal is automatically entitled to nunc pro tunc post-sentence motions as well, without proving prejudice; and (3) Did the Superior Court usurp this court’s exclusive authority to create procedural rules under Article V, Section 10(c) of the state constitution? See Liston, 598 Pa. 638, 959 A.2d 1248 (2008).


author: KISTLER, J.,

text:
    Washington v. Hamilton

      Jennifer Bierly, for appellee.

      Harry E. Hamilton, pro se.
    May 29, 2009
   KISTLER, J.,

The following is this court’s opinion in response to appellant’s notice of appeal and matters complained of on appeal filed May 14,2009. Although this court has never done so before, this court would like to preface this opinion by noting that this opinion marks appellant’s eighth appeal filed in the immediate action. Taken together with the appeals filed by appellant’s mother and father in actions 06-4974 and 07-0041 respectively, this brings the total number of appeals filed pursuant to the issue of custody to 10 and a total of 548 filings in all these cases to date.

It was famously stated by George Washington, this nation’s founding father that, “The administration of justice is the firmest pillar of government.” This court would submit to the honorable Superior Court that throughout the past six years, appellant has worked to obstruct the administration of justice by manipulating and impeding the judicial process which is designed to find a prompt resolution to what almost certainly is a traumatic experience for any child. Appellant’s toil has resulted in not only a draining of the resources of the Wife, but also of the judicial system and most importantly stability to the child. The flood of litigation works not only to hamstring both of our courts’ ability to render a prompt resolution and devote resources to other matters; it also drains the resources of the child’s mother which this court believes would be better served providing necessities for the child. For these reasons the court asks the honorable Superior Court to please consider the section of this opinion addressing the abuse of judicial process and perhaps find a way to facilitate a resolution.

PROCEDURAL BACKGROUND

After four years of litigation, this court made a ruling on the custody of the parties’ child on June 13, 2008. This court, thereafter, entered an order February 9,2009, regarding defendant’s request for paternity and genetic testing. The defendant appealed the court’s order of February 9, 2009, on March 16, 2009 (491 MD 2009).

On April 28, 2009, this court filed its opinion in response to defendant’s appeal of the order of February 9, 2009. This appeal was recently dismissed by per curium order of the Superior Court (491 MD 2009) on May 18, 2009, for failure to comply with procedural rules.

On April 15, 2009, this court entered a sua sponte order regarding other matters involving the exchange of the child through a supervised custody exchange center.

May 14,2009, appellant filed a notice of appeal alleging that he is within the appropriate 30-day appeal period of the order of April 15, 2009, but his statement of matters complained of on appeal, filed the same date, makes reference only to matters which were the subject of prior orders and, in most instances, matters already raised in prior appeals to this court.

FACTUAL BACKGROUND

The convoluted and confusing procedural history of this case, and Father’s persistent efforts to appeal and re-appeal matters already resolved, and to raise those issues ad nauseam, is but a brief glimpse at the pattern of abuse of judicial process that has been the ongoing history of this case.

The parties were married and have one child, a son, of approximately 7 years of age. The custody litigation between these parents has been unparalleled in its volume and breadth throughout the entire history of this matter, since its inception in 2004. After many failed attempts, and Father’s stalling tactics, this court was finally able to reach a decision on the merits of the custody dispute between these parents on June 13, 2008. Contrary to expectations, the hearing and ruling by the court has not restored tranquility and predictability to the lives of the family, as Mother and child have continued to be held hostage by the continual and frivolous motions and petitions and other matters filed by Father in this action. Before going forward with the body of this court’s opinion regarding the scope of that frivolous and dilatory conduct, the specific matters complained of on this appeal by the defendant must be addressed.

PATERNITY TESTING TESTIMONY

The appellant’s first matter complained of on appeal relates specifically to the paternity testing order of this court issued on February 9,2009. That matter was ruled on by this court more than three months before this appeal, and was the subject of an appeal already filed by the appellant on March 16, 2009, to 491 MD 2009. As such, the matter is not appropriate for consideration by this court and was not timely filed. Beyond that, this court has no manner of addressing what possible argument Father is making when he is concerned about: “the availability of parties in a divorce action for copulation?” The appeal at 491 MD 2009 was dismissed by the Superior Court on May 18, 2009.

Clearly, the appeal should be quashed on this point.

TESTIMONY REGARDING SUPPORT

The appellant’s second complained of matter deals in some abstract manner with the subj ect of support regarding two children of the Mother born to another man outside this marriage. If there is any possible relevance to this point raised by Father, it is not within the subject matter of this court’s order of April 15, 2009, regarding the custody exchange of the child of both of these parents. It seems to relate in some, abstract and esoteric, way back to the order of this court dated February 9, 2009, dealing with the genetic testing issue.

As such, it is urged that the appeal be quashed on this point as well.

PATERNITY TESTING OF DEFENDANT

In all candor, this court was never entirely sure in February of2009 what possible theory Father wished to proceed upon in his request to have children, not of his marriage, and not fathered by him, to be tested for paternity. It was stipulated at the February 2009 hearing that the appellant was not the father of the twins and that there had never been any opportunity for the appellant to be the father of the twins bom outside his marriage. Father persisted in his demands that the twins be tested to determine their paternity. It was agreed by all parties, in the presence of the court, that Hamilton could be tested and that a sample would be taken from each of the twins, to conclusively prove that Hamilton was not the biological father of the twins. It may, perhaps, be that agreement between the parties that is referenced by the appellant in his third-stated complaint. This court is not certain.

Without the testing of Hamilton, and without invading Mother’s privacy, it would otherwise be required to test the entire sample of males on the face of the earth to determine the paternity of the children. This court ruled that Hamilton was not entitled to paternity testing other than to specifically exclude himself as the father.

Most pertinently, this matter again relates to the court’s order of February 9,2009, and as such is not timely raised and has already been raised by the previous appeal before the Superior Court (which has now been dismissed), and the appeal on this point should be quashed.

JURISDICTION WITHIN LUZERNE COUNTY

Appellant has maintained since the inception of this matter that this court lacks jurisdiction over the child because Father resided outside Centre County. In this court’s opinion and order of June 13,2008, after custody hearing, this court made a determination that jurisdiction did lie in Centre County as Mother and child had resided here continuously from the date of birth, to the present.

Appellant also references a requirement for this court to “recuse when appearance of conflict is raised,” however, there has never been a petition filed for recusal and the matter has not been presented, other than in offhanded comments by Father, during arguments on other issues.

Lastly, the appellant references “the international spotlight on Pennsylvania” which appears to reference judicial misconduct in Luzerne County dealing with juvenile delinquency dispositions and other matters. Clearly this reference has no significance or relevance to the matter at hand and now on appeal.

As appellant’s primary objections relate to matters neither raised nor decided in the order of April 15,2009, the appeal on this point should similarly be quashed.

ABUSE OF JUDICIAL PROCESS

Under normal circumstances, this court would be inclined to return to its busy schedule, content that a quashing of all of the appellant’s points raised in his notice of appeal would satisfactorily conclude the matter. However, under the unique circumstances of this case, the Centre County Court of Common Pleas feels compelled to go beyond the response offered heretofore with a request for further humanitarian relief from the Superior Court.

On September 18, 2007, your court through Judges Todd, Bowes and McCaffery issued a memoranda opinion in this case, which contained on page 11 the following admonition to this appellant:

“We make one final observation. The lack of final custody order in this case is directly attributable to Father. His avoidance tactics, his refusal to allow the trial court to address the merits of the issues as evidenced by his filing of repeated, dilatory motions, and his continual filing of frivolous, interlocutory appeals have served to delay matters; Father’s actions are getting dangerously close to abuse of judicial process. Ultimately, Father’s filing of a motion to dismiss this action is incomprehensible to this court; Father has now found himself in a position for which he only has himself to blame.” Washington v. Hamilton, Superior Court opinion filed to 1845 MDA 2006. (emphasis added)

At the time of that Superior Court opinion, there had been approximately 140 docket entries in the two and a half years of custody litigation. The current count of docket entries in this action is 548. This includes 400 filings to this caption alone, together with 73 filings in the companion case filed by appellant’s mother (2006-4974) and an additional 75 filings in the companion case filed by appellant’s father (2007-0004). Several of those “companion” filings are exact duplicates of filings by Father in this action. Each requires docketing. Each requires handling by court personnel. Each requires review by the court. Many required hearing. All drain the energy and resources of the “system” and the family. Thirty-three times Father has sought the extraordinary assistance of the court by petitioning for either “emergency relief” or “special relief.” In an effort to dispose of this tide of filings, the court resorted at one point to creating a monthly spot on the scheduling calendar for “Harry Hamilton Day.”

This court estimates that approximately 10 percent of its total judicial energy and time is expended dealing exclusively and specifically with the matters raised by this father in an ever-accelerating flow of repetitious and dilatory matters. In March 2009, Father filed no less than seven matters; asking for “special” or “emergency” relief no less than five of those times. More importantly, Mr. Hamilton, himself a lawyer in good standing, has effectively reined scheduling and economic ruin upon his ex-wife and his son. Mother is compelled to appear at numerous and lengthy hearings, with counsel, and respond to the flood of matters brought by Father before this court. This conduct of Father must be placing extreme economic stressors on Mother, and emotional stressors on both Mother and child. This conduct, if unchecked, will likely result in debilitating impacts on both Mother and child. As such, it is in the best interest of the parents’ minor child to interrupt and tenninate the flow of litigiousness from Father.

This is the eighth appeal filed by the appellant in this action, it has become but a “drop in the bucket” compared to the bulk of filings before the trial court in the several related actions brought by the appellant and his parents. The Superior Court’s September 2007 admonition that: “Father’s actions are getting dangerously close to abuse of judicial process” was made more than 20 months ago, and more than 52 filings have been filed since that time (including three appeals to the Superior Court). There have been 170 additional docket entries in that time. It is without question that Father has developed a course of conduct and a strategy of fatigue and attrition and harassment through the exploitation of his legal education and possession of a word processor and fax machine.

The relief necessary to restore the well-being of Mother and child and all court personnel associated with Father is not unprecedented. In the Commonwealth Court decision of Lal v. Borough of Kennett Square, 786 A.2d 1019 (Pa. Commw. 2001), decided onNovember 8,2001, the Commonwealth Court barred the plaintiff from filing any further appeals or other actions, and instructed the Court of Common Pleas of Chester County to dismiss administratively any filings filed on matters already addressed by the court. The Commonwealth Court recognized that Lai could not be controlled absent those drastic measures, and that unchecked he would continue his “abuse of the judicial process,” id. at 1021, unless restrained by the appellate court.

This court is ever mindful that at the core of this case is the well-being of a happy, intelligent, and promising young man of 7 years of age. This court does not wish to interrupt Father’s periods of partial physical custody with his son and this court does not wish to abandon the child in an environment that is unchecked and unmonitored. But to permit Father to continue to grind Mother and son below the heel of his boot will serve the best interest of no party to this litigation. As such, this court would suggest that it be directed to appoint a guardian ad litem to have regular and unfettered contact with the child to assure his well-being, and who shall have the sole and exclusive power to bring matters for modification or contempt of the current custody order to the attention of the court.

Specifically, this court is asking the Superior Court to quash the appeals filed in this action and to remand to the court of common pleas with specific instructions to:

(1) Enter an order appointing a guardian ad litem to protect the interests of the child, and for that guardian ad litem to be available at all times for the child, and to meet with the child not less than quarterly during the remainder of his minority to determine his welfare. The guardian ad litem shall be empowered to petition the court for any relief appropriate for the well-being of the child. The identity of the guardian ad litem shall not be disclosed to the parents; and

(2) Enter an order barring the Centre County Prothonotary from accepting any legal filing or document relative to the custody of Stanley Harry Edwin Hamilton in this case or any other matter related to the status of this case, other than as filed by the guardian ad litem; and,

(3) Enter a dismissal, with prejudice, of all outstanding matters currently before this court relative to the custody of this child contained in this action.

It is with a heavy heart that this court makes these specific requests of the Superior Court based upon the authority in Lai. After struggling with this matter and the frivolous proclivities of Father well into six years, this court is compelled to seek a solution to this increasing and never-ending abuse of judicial process.


author: KISTLER, J,

text:
    Commonwealth v. McKown

      Carolyn Larrabee, for Commonwealth.

      Jason S. Dunkle, for defendant.
    April 28, 2009
   KISTLER, J,

Presently before this court are the omnibus pretrial motions, in the form of a motion to suppress and motion to quash warrant, filed by Hobson L. McKown (defendant). After having reviewed the briefs submitted on these motions, the defendant’s omnibus pretrial motions are hereby denied for the following reasons.

STATEMENT OF FACTS

(1) Defendant appeared at Central Court in the Centre County Courthouse on September 10, 2008, for a preliminary hearing on a separate criminal action than the one presently before the court.

(2) Upon the conclusion of the preliminary hearing, the Commonwealth requested that the court modify defendant’s bail and prohibit defendant from possessing any firearms.

(3) Magisterial District Judge Leslie A. Dutchcot modified defendant’s bail to include a special condition that he was not able to possess any firearms.

(4) Defendant proceeded to the sheriff’s department to make arrangements to comply with the surrender of his firearms.

(5) Upon learning that sheriff’s deputies would accompany defendant into his home in order to secure the firearms, defendant attempted to negotiate an alternate time or way in which the weapons could be surrendered.

(6) The sheriff’s deputies refused to wait until a later time in which to enforce the order and explained to defendant that as the surrender of his firearms was a requirement of his bail, failure to comply with this condition would likely result in his bail being revoked.

(7) Defendant agreed to comply with his bail conditions and accompany the sheriff’s deputies to his residence to retrieve the firearms.

(8) Defendant’s residence is a mobile home trailer divided into two living units.

(9) Upon arriving at defendant’s residence, the sheriff’s deputies were met by a middle-aged female who the police later discovered was defendant’s mother. The sheriff’s deputies asked the female to stay outside the residence while they collected the guns.

(10) As the defendant and sheriff’s deputies were walking towards the residence, defendant began to once again ask the sheriff’s deputies if they could make an alternate arrangement to collect the firearms and slowed his pace as the group approached the residence.

(11) At approximately 30 feet from the residence, defendant stopped walking and stood still, looking extremely nervous.

(12) At this moment, the sheriff’s deputies became concerned that there was something in the trailer which was dangerous.

(13) The sheriff’s deputies asked defendant if there was anything in the residence that could harm or hurt them. Defendant responded that there was not but the sheriff’s deputies remained unconvinced.

(14) Based on defendant’s nervous behavior the officers handcuffed defendant and retrieved the house key from the defendant’s left front pocket.

(15) Deputy Albright walked up the steps and opened the door a few inches in order to peer inside.

(16)Deputy Albright observed a sign which read, “I do not consent to this search.” Stacked near the sign were six ammunition cans.

(17)Upon viewing the ammunition cans, Deputy Al-bright opened the door further and observed a computer desk with a set of wire cutters, voltage meter, circuit boards, phone cords and hard drives. There was also another ammunition can next to the door and three mouse traps stacked on top of each other on the kitchen counter.

(18) Deputy Albright had seven years experience as a K-9 handler of an explosive detection dog and 200+ hours of explosives and IED (improvised explosive device) training. He recognized the aforementioned objects as components used in the construction of explosives or IEDs.

(19) Deputy Albright backed out of the residence and contacted the local bomb tech, Officer White.

(20) Shortly before Officer White arrived, defendant was placed in the back of a police cruiser while handcuffed and transported to a holding cell.

(21) Officer White agreed that if he were to encounter any IEDs or booby traps he would render them safe and contact the appropriate federal employees and obtain a search warrant for IED components and explosives.

(22) Officer White then entered the residence without a warrant.

(23) During the search, Officer White observed items which are used to manufacture components of IEDs.

(24) In addition to searching the open areas for bombs, Officer White opened kitchen cabinets in order to allow the officers to retrieve the firearms in safety. Officer White opened these areas because the size of an IED could be as small as a thumb.

(25) In a kitchen cabinet were several shipping envelopes and a cloth bag. Officer White looked inside the bag and recognized a pipe which he believed was used to smoke marijuana. In one of the envelopes, Officer White felt what he believed to be another pipe used to smoke marijuana. Officer White also observed a green substance which he believed was marijuana. The substance was later determined to be oregano.

(26) Officer White immediately notified the other officers of what he found and then completed his search of the area for explosives. No items were found which presented a danger to law enforcement.

(27) Based on Officer White’s observations, Detective Martin obtained a search warrant for the pipe and substance which was believed to be marijuana. The pipe was later determined to contain marijuana residue.

DISCUSSION

Defendant argues that the evidence obtained from his residence should be suppressed because law enforcement officials illegally entered the residence without a warrant and conducted a search in violation of both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Warrantless searches and seizures are unreasonable per se, unless conducted pursuant to a specifically established and well-delineated exception to the warrant requirement. Commonwealth v. Key, 789 A.2d 282, 287 (Pa. Super. 2001).

I. Sheriff’s Deputies ’Initial Entry

As a threshold matter, this court determines that “conditions of bail” are not the equivalent of a court order authorizing law enforcement to take custody of a defendant’s firearms. The key distinction being, had defendant chosen not to abide by the conditions of bail, law enforcement would not have then been able to proceed to the defendant’s home and collect the firearms. It is not the duty of law enforcement to force defendant to carry out the terms of his bail. For example, once a defendant agrees to post a sum of money as bond, it is not then the duty of law enforcement to withdraw money from that person’s bank account or place a mortgage on his residence to make sure that condition of bail is satisfied. Rather, it is the duty of law enforcement to bring the defendant before the court upon a showing that defendant failed to comply with a condition of bail.

In the present case, defendant had the choice of either surrendering his firearms or having his bail revoked and being sent to prison. Law enforcement certainly had the authority to make sure that the search and surrender of the firearms was conducted in a reasonable and safe manner. However, law enforcement does not have the authority to enter defendant’s residence and seize his firearms if defendant refuses to abide by this condition of bail.

Although the court determines that police entry of a residence, pursuant to a bail modification order for the purpose of securing firearms amounts to a search, the police did not need a warrant in this instance because defendant gave the police his express consent to enter the residence and seize any firearms. (N.T. 1/8/2009, p. 10,11.14-16.) Based on the totality of the circumstances, the court determines that the Commonwealth has proven by clear and convincing evidence that consent was freely given. The deputy at the sheriff’s office informed defendant that he had a choice between refusing to abide by the conditions of his bail and risk having bail revoked, or permitting the officers to accompany him into his residence and retrieve the firearms. Therefore, the court determines that the warrantless search of defendant’s residence for the purpose of securing firearms was not in violation of defendant’s right to be free from unreasonable searches.

Having established that the police had consent to enter the premise to search for firearms, the court must next consider whether the police officer’s subsequent search of the apartment for explosives and seizure of marijuana pipes was proper. Although defendant consented to a search of his residence for firearms, the defendant never consented to a search of his apartment for any explosive devices or narcotics. This distinction is significant because a party consenting to a warrantless search may limit his or her consent to defined areas. Commonwealth v. Yedinak, 450 Pa. Super. 352, 358, 676 A.2d 1217, 1220 (1996). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id (citation omitted) Applying this standard, the court determines that defendant’s consent only extended to places in which a firearm could be stored. A reasonable person in defendant’s situation would likely understand that a search for firearms would include only areas or containers in which a firearm could be stored. The key question therefore is whether the envelope or cloth bag was of sufficient size to hold a firearm.

Unfortunately, the court is constrained by the testimony elicited by the Commonwealth which failed to set before the court the size of the containers searched. In an evidence suppression hearing, the Commonwealth has the burden of both production and persuasion, and must prove by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 581(H). Therefore, the court is constrained to find that the Commonwealth has failed to show that defendant’s consent extended to the cloth bag or envelope.

Although defendant’s consent may not have extended to the two containers in which the marijuana pipes were found, it did, however, provide the police with a lawful reason to enter the residence. As such, the sheriff’s deputies initial entry into the residence was legal.

II. Search of the Residence for Explosives

Having determined that defendant consented to search the residence for firearms, the court must next consider whether there were exigent circumstances which would permit the police to search areas of the residence which could not have contained a firearm.

Acting pursuant to the consent provided by the defendant, Deputy Albright opened the door of the residence a few inches to peer inside. Deputy Albright observed objects which he believed, pursuant to his training in explosive devices, were used to manufacture explosives or IEDs. Fearing that the residence might contain explosives or traps, Deputy Albright contacted the local bomb tech, Officer White. For these reasons, the court believes that Deputy Albright’s decision to call a bomb tech and have him search for explosives was based on probable cause. The court makes this determination based on defendant’s nervous behavior and Deputy Albright’s inspection of the inside of the residence coupled with his seven years of experience as a K-9 handler of an explosive detection dog. Therefore the court must determine whether Officer White’s search of the residence was conducted pursuant to exigent circumstances which would have excused the need for a search warrant.

The test to determine whether exigent circumstances exists is as follows:

“In determining whether exigent circumstances exist, a number of factors are to be considered:
“(1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable,- and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.
“Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or danger to police or other persons inside or outside the dwelling. Nevertheless, police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.
“Id. [Commonwealth v. Roland, 595] at 600, 637 A.2d [269] at 270-71 [1994] (quotations and citations omitted); Commonwealth v. Bostick, 958 A.2d 543, 557 (Pa. Super. 2008). Moreover, this court has observed that, ‘the Commonwealth must present clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent, [] and that the exigency was in no way attributable to the decision by police to forego seeking a warrant.’” Commonwealth v. Lee, 972 A.2d 1 (Pa. Super. 2009) (citing Commonwealth v. Rispo, 338 Pa. Super. 225, 231, 487 A.2d 937, 940 (1985) (quoting Commonwealth v. Davis, 270 Pa. Super. 202, 206, 411 A.2d 250, 252 (1979))).

The court believes that the facts of this case are unique for a number of reasons. The first distinguishing fact is that unlike many cases involving exigent circumstances, the defendant in this case was already technically in custody as he was handcuffed and placed in the back of a police car after Deputy Albright peered into the residence. This fact clearly weighs heavily against the Commonwealth as there was no likelihood of flight or danger to the officers coming directly from the defendant. However, because the defendant had already consented to a search of his residence for firearms, albeit limited to areas or containers which could hold firearms, the intrusion was minimal. This factor weighs heavily in favor of the Commonwealth pursuant to the sixth and seventh factors. Finally, the court determines that the police officers acted without a warrant due to a reasonably perceived threat to officer and public safety. Explosives, by their very definition, are volatile and need not be within the reach of a defendant to be dangerous. A delay to secure a warrant could only have worked to increase the risk to officers at the residence and any members of the public who might come within proximity of the mobile home unit.

Weighing all the relevant factors, the court determines that the sheriff deputies had probable cause to believe that explosives may be present in the trailer and that exigent circumstances existed such that a search of all areas of the trailer in which explosives could be hidden was lawful. As a result, Officer White’s discovery of two marijuana pipes, although beyond the scope of defendant’s consent, was nonetheless lawful as it was done pursuant to exigent circumstances.

III. Best Evidence Rule

At the hearing, this court overruled an objection by the defendant that Deputy Albright’s testimony as to the contents of a court order issued by a district court magistrate should be inadmissible, as the writing itself would be the best evidence. See Pa.R.E. 1002. The court notes that, “When the contents of a document are not at issue and the matter to be proved exists independently of the writing,” the best evidence rule does not apply. Commonwealth v. Harris, 719 A.2d 1049, 1051 (Pa. Super. 1998). Here, the issue raised was whether a court order listing conditions of bail should constitute an order of the court such that the need for a warrant was unnecessary. The contents of the order were therefore not at issue. Furthermore, the decision of this court that a search pursuant to a bail modification order constitutes a Fourth Amendment search renders the issue moot.

IV. Motion To Quash Warrant— Lack of Probable Cause

Defendant argues that the warrant was not supported by probable cause because the affidavit failed to include a basis of knowledge as to Officer White’s training in identifying controlled substances and drug paraphernalia. Defendant relies on Commonwealth v. Camperson, 437 Pa. Super. 355, 650 A.2d 65 (1994) as the basis for the argument that an issuing authority must consider the “basis of knowledge of persons supplying hearsay information.” However, a review of the underlying cases in which the Camperson court cited as authority for this rule reveals that this rule stems from determinations as to the reliability of informants. See id. at 364, 650 A.2d at 70 (quoting Commonwealth v. Miller, 334 Pa. Super. 374, 382, 483 A.2d 498, 501-502 (1984)). In the situation where a magistrate must make a determination as to probable cause to issue a warrant based on information supplied to law enforcement by an informant, it is clear that the issuance of the warrant hinges on the informant’s “basis of knowledge.”

In this case, the information was supplied by a police officer who relayed his findings to a detective. Although the “basis of knowledge” remains pertinent, it is not a defining factor as in the case with information provided by a citizen informant. It is therefore but one of the many factors which a magistrate must consider.

Having reviewed the affidavit, the court determines that the warrant was issued pursuant to probable cause. Defendant’s motion to quash is hereby denied.

ORDER

And now, April 28, 2009, the defendant’s omnibus pretrial motions are hereby denied.