author: STALLONE, J,

text:
    Commonwealth v. White

      James I Goldsmith, assistant district attorney, trial counsel for Commonwealth.

      Alisa R. Hobart, assistant district attorney, P.C.R.A. counsel for Commonwealth.

      Richard P. Reynolds, trial counsel for appellant.

      Allen Daringer, P.C.R.A. counsel for appellant. •

      August 20, 2009

      . Attorney Reynolds was appointed as trial counsel by Judge Jeffrey K. Sprecher, to whom this case was originally assigned, on February 24, 2005. This case was reassigned from Judge Sprecher to this court prior to the trial.

   STALLONE, J,

On June 27,2007, a jury found the appellant, Tommy White, guilty of first-degree murder, aggravated assault manifesting extreme indifference to the value of human life and possessing instruments of crime, arising out of the death of Brian Scott Crow on February 9, 2006, at 1111 Green Street in the City of Reading. On July 17,2007, this court sentenced the appellant to the mandatory sentence of life in prison without parole on the first-degree murder conviction with credit for 887 days time served, along with a fine in the amount of $5,000 and restitution in the amount of $6,763.

Thereafter, the appellant, by and through trial counsel, filed a timely appeal to the Superior Court of Pennsylvania. Upon being advised of the filing of the appeal, this court entered an order on August 20, 2007, for the appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days from that date. However, the concise statement was never filed and the appeal was eventually dismissed by per curiam order of the Superior Court entered on October 10, 2007, due to trial counsel’s failure to file the docketing statement required by Pa.R.A.P. 3517.

Moreover, the appellant did not file a petition for allowance of appeal, but instead filed a timely first petition for relief under the Post Conviction Relief Act on June 18, 2008. Upon being advised of that filing, this court appointed Allen Daringer, Esquire, to represent the appellant. With his assistance, the appellant then filed an amended first petition for relief under the Post Conviction Relief Act, seeking (1) the restoration of his appellate rights nunc pro tunc, and/or (2) a new trial. A hearing on this amended first petition was originally scheduled to be held before this court on December 12,2008, but was continued to February 18,2009, and thereafter to March 18 and 20,2009, at the appellant’s request.

At the hearing held on March 20,2009, the appellant asked this court to grant relief, as to his amended first petition, in the form of an order reinstating his appeal rights nunc pro tunc, in lieu of proceeding with argument in support of his post-conviction claims. This court entered an “ineffectiveness” order on March 25, 2009 by agreement of counsel, giving the appellant leave to file a direct appeal nunc pro tunc no later than 30 days from that date. The appellant has timely filed that appeal, in which he is now raising a total of five issues for appellate review.

His first contention is that the evidence at trial was insufficient to support his convictions for first-degree murder, aggravated assault manifesting extreme indifference to the value of human life and possessing instruments of crime, on the basis that the Commonwealth failed to prove “premeditation” and his specific intent to kill Brian Scott Crow, beyond a reasonable doubt. Appellant also makes a related argument that the jury’s verdicts are not supported by sufficient evidence, in that the evidence showed that he acted in self-defense while under the influence of drugs and/or alcohol.

In reviewing any claim involving sufficiency of the evidence, this court must determine whether, viewing all of the evidence in the light most favorable to the Commonwealth as the verdict winner, a jury could find that the evidence was sufficient to support a finding of guilt beyond a reasonable doubt on each of the offenses charged. Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025 (1996). It is the trier of fact which has the responsibility of assessing the credibility of the witnesses and weighing the evidence presented and, in doing so, the trier of fact is free to believe all, part or none of the evidence presented. Commonwealth v. Mitchell, 588 Pa. 19, 902 A.2d 430 (2006).

The charge of first-degree murder is defined as an “intentional killing” by section 2502(a) of our Pennsylvania Crimes Code. In order to sustain a verdict for first-degree murder, the Commonwealth must prove beyond a reasonable doubt (1) that a human being was unlawfully killed, (2) that the defendant committed the killing, and (3) that the defendant’s conduct was with the specific intent to kill. Commonwealth v. Fiebiger, 570 Pa. 583, 810 A.2d 1233 (2002); Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390 (1999). The specific intent to kill may be inferred when the evidence establishes the use of a deadly weapon on a vital part of the victim’s body. Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040 (1998).

In order to sustain a conviction for aggravated assault manifesting extreme indifference to the value of human life, the Commonwealth must prove, in addition to the victim sustaining serious bodily injury, that the defendant acted with the requisite criminal state of mind, under circumstances manifesting an extreme indifference to the value of human life. Commonwealth v. Roche, 783 A.2d 766 (Pa. Super. 2001). In a situation where the Commonwealth is claiming specific intent to cause bodily injury, such intent can be inferred from the use of a deadly weapon on a vital part of the victim’s body. Commonwealth v. Nichols, 692 A.2d 181 (Pa. Super. 1997).

A conviction for possessing instruments of crime should be sustained when the Commonwealth proves beyond a reasonable doubt that the defendant possessed an instrument which is commonly used for criminal purposes, under circumstances which were not manifestly appropriate for its lawful use, with the intent to employ it criminally. Commonwealth v. Foster, 438 Pa. Super. 40, 651 A.2d 163 (1994).

The evidence of record in support of these charges is that, on February 9, 2005, Brian Skipper, a volunteer with “Meals on Wheels”, arrived at the residence of Brian Scott Crow at 1111 Green Street in the City of Reading, for the purpose of delivering a meal to Mr. Crow. N.T., trial, p. 38. Mr. Skipper knocked on the door, but did not receive any response. N.T., trial, pp. 38-39. He then opened the door, as he was permitted to do by his employer, and entered the residence. N.T., trial, p. 39. Mr. Skipper began calling out the victim’s name, but again received no response. N.T., trial, p. 40. After walking through the living room and entering the bedroom, he observed Mr. Crow lying on a bed, with his legs draped over the bed, and not wearing any clothing. N.T., trial, p. 41. Mr. Skipper and a co-worker who was with him immediately went next door to a neighbor’s residence and called 9-1-1. N.T., trial, pp.42-43. Mr. Skipper remained at the scene until Officers Robert Fontanez and Bobby Moser of the Reading Bureau of Police arrived on scene. N.T., trial, p. 43. Upon their arrival, Officers Fontanez and Moser entered the residence, observed the victim lying on the bed and promptly secured the crime scene. N.T., trial, pp. 51, 55, 56.

After Mr. Crow was pronounced dead, his body was removed from the residence and taken to the morgue at the Reading Hospital and Medical Center where it remained until February 10, 2005, when it was taken to the Lehigh Valley Medical Center for the performance of an autopsy by Samuel Land M.D., a forensic pathologist. N.T., trial, p. 283. During the course of the autopsy, Dr. Land determined that a total of 18 sharp-force wounds had been inflicted on Mr. Crow, some of which were “stab” wounds and some of which were “slash” wounds. N.T., trial, pp. 283-84. Dr. Land’s examination revealed a total of seven stab wounds to the left chest, in the area of the left nipple. N.T., trial, p. 286. Dr. Land further observed that each of these stab wounds penetrated the chest cavity and the heart, the aorta and the inferior vena cava. N.T., trial, p. 286. Each of these wounds were “fatal” and would have caused rapid death. N.T., trial, p. 286-87. Dr. Land’s examination also revealed a “slash” wound to the neck, along with three wounds to the upper right side of the neck, three wounds to the lower right side of the neck, and three wounds to the upper chest. N.T., trial, p. 288. Of the total of 18 sharp-force wounds, 17 of them were consistent with the use of a scissors, with the remaining wound being consistent with the use of a knife. N.T., trial, p. 295. The autopsy further revealed “blunt force trauma” to various parts of Mr. Crow’s body, including his eyes, left cheek and both ears. N.T., trial, p. 294. ’

In addition to the 18 sharp-force wounds and “blunt force trauma”, Dr. Land also discovered that Mr. Crow’s penis had been severed from his body, which was in and of itself a potentially fatal wound due to excessive bleeding. N.T., trial, pp. 292-93. Due to the presence of jagged tissue, the severing of Mr. Crow’s penis was not a clean amputation, but instead appeared, in Dr. Land’s opinion, to have required some effort in the form of “sawing” motions. N.T., trial, p. 293.

The evidence of record further reveals that, on the morning of February 9, 2005, between 2 a.m. and 2:30 a.m., the appellant arrived at the apartment of his stepfather, Ronnie Welker, located at 233 North Sixth Street in the City of Reading. N.T., trial, p. 134. When Mr. Welker opened the door, he observed the appellant to be in “disarray”, with blood on his clothing and on his hands. N.T., trial, pp. 134,135,137. Mr. Welker did not observe any injuries to the appellant, except perhaps for a swollen hand. N.T., trial, p. 135. The appellant was holding a pair of scissors and said, “I think I fucked up — I think I hurt somebody this time.” N.T., trial, p. 135. The appellant then proceeded to take off his clothes and put them, along with his boots, the scissors and the knife, into a plastic trash bag which he asked his stepfather to “get rid of.” N.T., trial, p. 136. Appellant stayed at his stepfather’s apartment that night, but left the following morning to go to work. N.T., trial, p. 139.

The following day, the appellant called his stepfather from a local hotel and told him that he was thinking of going either to Ohio or Texas, where his sisters lived. N.T., trial, pp. 140-41. When it appeared that the appellant might in fact leave Pennsylvania, Mr. Welker contacted the Reading Bureau of Police and took the trash bag to City Hall. N.T., trial, pp. 143-44. Mr. Welker did not put anything into or take anything out of the trash bag or even touch its contents, prior to turning it over to the police. N.T., trial, p. 144.

The appellant returned to his stepfather’s apartment later that same day, at which time Mr. Welker, without the appellant’s knowledge, telephoned the police. N.T., trial, pp. 145-46. A short time later, Mr. Welker, by prearrangement with the police, exited the apartment with the appellant. N.T., trial, pp. 146,158,159. They got into Mr. Welker’s vehicle, whereupon they were immediately stopped by the police. N.T., trial, pp. 146,158-59. The appellant was placed under arrest and taken to City Hall, where he was advised of his constitutional rights. N.T., trial, p. 256.

After waiving his rights, the appellant gave a 23-page written statement to Criminal Investigators Robert Heiden and Barry Rambo of the Reading Bureau of Police, in which he admitted stabbing Brian Scott Crow with a pair of scissors in the chest area and cutting off Mr. Crow’s penis with a knife. N.T., trial, pp. 256-61. While the statement was being taken, Criminal Investigator Heiden was asking the questions, while Criminal Investigator Rambo was taking notes of the appellant’s answers. N.T., trial, pp. 251,254. Afterward, the appellant was given the opportunity to review each of the questions and answers and proceeded to initial and sign each answer and each page. N.T., trial, p. 261.

In accordance with Pennsylvania law, this court instructed the jury that it could find specific intent if it found that the appellant had knowingly applied deadly force to a vital part of Brian Scott Crow’s body. N.T., trial, p. 359. As a result, there is sufficient evidence in the record, consisting not only of Dr. Land’s testimony, but also the appellant’s own written statement to the police, to support a finding that he used the scissors to stab Brian Scott Crow seven times in the left chest area, in the area of the heart and aorta, which certainly was a vital part of Mr. Crow’s body. In our view, therefore, the evidence is sufficient to establish beyond a reasonable doubt, not only that the appellant killed Brian Scott Crow, but that he did so with the requisite specific intent. For that reason, we must reject this part of the appellant’s sufficiency claim as being without any merit, which then leaves us with the remaining portion of his claim as it relates to voluntary intoxication and self-defense.

We refused to give any instruction to the jury on voluntary intoxication on the basis that the evidence did not support it, as trial counsel readily acknowledged at trial. (N.T., trial, pp. 329-30):

“The Court: I would think defense counsel would run into more of a problem with that, especially when the evidence with regard to ‘intoxication ’ is, as I said yesterday, is very, very weak, but I will let Mr. Reynolds at least make the first call with regard to that, and then I will make a ruling.
“Mr. Reynolds: What is the first call, your honor?
“The Court: The first call is do you really want a voluntary intoxication charge to the jury?
“Mr. Reynolds: Do I want one?
“The Court: Yes.
“Mr. Reynolds: Frankly, in all candor to the court, it appears to me I am not entitled to it on the status of the evidence.
“The Court: I don’t think you are entitled to it, and I think it is going to weaken your argument if you’re pushing for this self-defense. And in either event, I will not give the instruction with regard to intoxication based upon the record as it stands today at this moment.”

And as for his claim that the evidence showed that he killed Brian Scott Crow in self-defense, we disagree; on the contrary, while we did instruct the jury on the law of self-defense, the physical evidence, including but not limited to the size of the appellant relative to that of the victim, the number of wounds inflicted upon the victim, the location of the wounds on vital parts of the victim’s body and the precision with which they were inflicted, indicating that the victim was “pinned down” at the time, was sufficient to support the jury’s finding that the appellant did not act in self-defense.

“Now, the evidence in this case has also raised the issue of whether the defendant acted in self-defense when he stabbed Brian Scott Crow. Self-defense is another form of justification in the law of Pennsylvania. And if the defendant’s actions were justified because of self-defense, you cannot find him guilty beyond a reasonable doubt. Moreover, you should know that it is the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant did not act in justifiable self-defense.
“If the Commonwealth proves to you beyond a reasonable doubt that the defendant used force, then to prove that such force was not justifiable in this case, it must prove beyond a reasonable doubt that the defendant did not reasonably believe that he was in immediate danger of death or serious bodily injury from Brian Scott Crow at the time that he used the force and that therefore his belief that it was necessary for him to use deadly force to protect himself was unreasonable.
“To put it another way, the Commonwealth must prove either that the defendant did not actually believe that he was in danger of death or serious bodily harm such that he needed to use deadly force to defend himself at that moment, or, that while the defendant actually believed that he needed to use such force, his belief was unreasonable in light of all the circumstances known to him at that time.
“Keep in mind also that a person is justified in using deadly force against another not only when they are in actual danger of an unlawful attack, but also when they mistakenly, but reasonably, believe that they are. A person is entitled to estimate the necessity for the force that he or she employs under the circumstances that he or she reasonably believes them to be at the time.
“In the heat of conflict, a person who has been attacked ordinarily has neither the time nor the composure to evaluate carefully the danger and make these judgments about exactly how much force is needed to protect himself or herself. You should consider the realities of the situation faced by the defendant here when you assess whether the Commonwealth has proven beyond a reasonable doubt either that he did not believe that he was actually in danger of death or serious bodily injury to the extent that he needed to use such force in self-defense or that while he did believe, that his belief was unreasonable.
“If the Commonwealth proves this element beyond a reasonable doubt, the actions of the defendant in using deadly force are not justified. If the Commonwealth fails to prove this element, the defendant’s action was justified and you must find him not guilty of any of the charges of first-degree murder, third-degree murder, voluntary manslaughter and aggravated assault or even possession of an instrument of crime.”

Next, the appellant claims that the jury’s verdicts were likewise against the weight of the evidence, on the basis that the jury convicted him based solely upon the gruesomeness of the evidence presented.

As a threshold issue, we note that a “weight of the evidence” claim must be initially raised before the trial court. Pa.R.Crim.P. 607(A). Here, the appellant did not do so, which means that he has waived his right to seek review of this particular claim in this appeal. Commonwealth v. Ferguson, 866 A.2d 403 (Pa. Super. 2004).

However, even assuming arguendo that he had properly preserved this claim by first raising it before this court, we would still disagree on its merits. In Pennsylvania, a “weight of the evidence” claim concedes that sufficient evidence exists to support a verdict, but questions the believability of that evidence. Commonwealth v. Lewis, 911 A.2d 558 (Pa. Super. 2006). When reviewing this type of claim, the reviewing court does not sit as a “13th juror” for the purpose of assessing the credibility of the witnesses or to determine whether it would have reached the same verdict. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000). Rather, the reviewing court must only determine whether the evidence is so tenuous, vague and/or uncertain that the jury’s verdicts “shock the conscience” of the court and should be set aside. Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

Moreover, based upon our review of the record, the appellant has not pointed us to anything to substantiate this claim, nor do we see anything which would indicate that the jury reached its verdicts based solely upon the alleged gruesomeness of the evidence presented. As a result, there being nothing which shocks this court’s conscience as to any of the jury’s verdicts, we see no need to disturb them.

Appellant’s next contention is that he was subjected to an illegal arrest, made without probable cause and without an arrest warrant, and that the written statement which he subsequently gave to the police was not knowingly, intelligently and voluntarily given. This claim is based upon his assertion that he was taken into custody on the “pretext” of an outstanding arrest warrant on a burglary charge, when in fact he was being arrested on the charges filed in the instant case. However, the record shows that the appellant did not file a pretrial motion challenging the legality of his arrest or the admissibility of his written statement, which means that this claim must also be considered as waived for purposes of this appeal. See Commonwealth v. Groff, 378 Pa. Super. 353, 548 A.2d 1237 (1988).

Next, the appellant contends that this court erred in denying him the right to cross-examine his stepfather, Ronnie Welker, with regard to Mr. Welker’s prior convictions. Although the appellant does not specify the convictions that he is referring to, the record indicates that Mr. Welker had prior convictions for forgery in 1973, retail theft in 1974, burglary in 1981 and forgery in 1982. N.T., trial, p. 148. Hence, a period of more than 10 years has clearly elapsed since the date of these convictions or from Mr. Welker’s release from any sentence of confinement imposed for those convictions. The text of Pa.R.E. 609(A) is as follows:

“For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, shall be admitted if it admitted dishonesty or false statement. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.”

In making its ruling, this court not only took into account the age of the convictions, but also the fact that no evidence was presented to this court concerning the facts and circumstances underlying those convictions. Without such information, this court was not in a position to conclude that the probative value of the convictions substantially outweighed any prejudicial effect resulting from their admission. The record is likewise devoid of any evidence that the appellant provided sufficient advance written notice to the Commonwealth of his intent to elicit such testimony from Mr. Welker. And so, for these reasons, we did not err in preventing the appellant from cross-examining Mr. Welker concerning his prior convictions.

Appellant’s fourth contention is that this court erred in not declaring a mistrial after one of the principal jurors displayed “sickness” due to the graphic nature of some of the evidence presented at trial. In making this claim, the appellant is referring to juror no. 2, Richard Clausen, who was excused and replaced by alternate juror no. 2, Jeffrey Erb. The record discloses the following events which led to this court’s decision to do so (N.T., trial, pp. 297-99):

“Juror No. 2: Your honor, may I be excused?
“The Court: All right. We will have a recess for 10 minutes. He may be excused.
“(The juror left the courtroom at 1:50 p.m.)
“The Court: What was that juror’s number?
“The Tipstaff: Juror no. 2.
“The Court: Okay. Let’s take 10 minutes .. .
“The Court: Mr. Reynolds, do you want to make any comment at this point?
“Mr. Reynolds: Yeah, I would make a motion to remove juror no. 2.
“Mr. Goldsmith: Whatever the court deems appropriate. I don’t have an opinion on that.
“The Court: Well, I see no reason for the court to remove juror no. 2. If the Commonwealth agrees to it in view of the fact that we have three alternate jurors here, then I will, but I don’t want to create a problem.
“Mr. Goldsmith: I have no objection to it.
“The Court: You have no objection to it. All right. I am just going to talk to Mr. — to him and tell him that he is excused. His name is Richard Clausen, and substituting then for Mr. Clausen will be the second alternate juror that we had here, Jeffrey Erb. Okay, Mr. Reynolds, any objection to me talking to Mr. Clausen privately out in the hallway?
“(The jury entered the courtroom.)
“The Court: All right. For the members of the jury and for the record, Mr. Clausen has been excused from serving on this jury by agreement of all parties concerned. And I just felt that that would be better than take a chance that he might have some further repercussions and then we’d all feel a little bad about it, especially since we have the privilege of having three alternate jurors.
“So, in either event, Mr. Erb now is substituting for Mr. Clausen and will remain on the main panel as juror no. 2. Okay. Thank you very much.”

As noted, the record shows that, although trial counsel asked that juror no. 2 be “removed”, he did not request a mistrial, thereby resulting in a waiver of this claim for purposes of this appeal. See Commonwealth v. Bell, 386 Pa. Super. 164, 562 A.2d 849 (1989). However, even assuming arguendo that the request had been made, it is well settled that a motion for a mistrial is addressed to the sound discretion of the trial court. Commonwealth v. Lettau, 955 A.2d 360 (Pa. Super. 2008). Under Pennsylvania law, the “extreme” remedy of a mistrial is appropriate only when the incident complained of is such that its unavoidable effect is to deprive a defendant of a fair and impartial trial. Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406 (2008); Commonwealth v. West, 937 A.2d 516 (Pa. Super. 2007).

Here, this court properly exercised its discretion in removing Mr. Clausen and substituting Mr. Erb. The appellant has not pointed us to any evidence of record or legal authority for his position that our decision deprived him of a fair and impartial trial in this case. Therefore, we likewise reject this claim as being without any merit whatsoever.

Finally, the appellant contends that the assistant district attorney, James T. Goldsmith, Esquire, engaged in prosecutorial misconduct in making the following three statements during his closing argument (N.T., trial, pp. 386-87):

(1)“Maybe as defense counsel elicited in its cross-examination of Dr. Land yesterday that the bruises inside Brian’s mouth were caused by forced oral sex, that the defendant went over there to rape an easy frail target and then kill the only victim of his sex crime, the only witness to his sex crime. It might have happened that way.” (N.T., trial, p. 386);
(2) “Might have happened that the defendant who we know used drugs, drugs were in his system, we know he was a user. There is evidence of that. There is no evidence that he was a drug dealer as Mr. Reynolds eludes. It may have been those fake cocaine bags were brought over by the defendant, Tommy White, in exchange for sex, and when the victim realized he got bum bags, he got raped and then killed.” (N.T., trial, p. 386); and
(3) “There were two people in that room that night. One of them giving a statement to the police that he gave after being able to think of what his story would be two- and-a-half days later. The other one you never heard from. So you have to look at the surrounding evidence to come to the conclusion of what Brian Crow’s testimony would be if he were here today.” (N.T., trial, p. 387).

Initially, we note that trial counsel did not object to any of these comments, resulting in the waiver of this claim for purposes of this appeal. Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985); Commonwealth v. Galloway, 771 A.2d 65 (Pa. Super. 2001); Commonwealth v. Green, 251 Pa. Super. 318, 380 A.2d 798 (1977).

However, even assuming arguendo that one or more timely objections had been made, we note that, as a general rule, a prosecutor is permitted to vigorously argue his case to a jury in summation as long as his comments are supported by the evidence and/or based on inferences which can reasonably be derived from that evidence. Commonwealth v. Hardcastle, 519 Pa. 236, 254, 546 A.2d 1101, 1109 (1988). In the present case, the assistant district attorney’s comments were certainly within the fair scope of the evidence, as they were based upon testimony by the witnesses and/or reasonable inferences to be drawn from that testimony. Therefore, we likewise reject this claim as being without any merit.

And so, for these reasons, we affirm the judgment of sentence and respectfully request that the instant appeal be denied.

      . Title 18,18 Pa.C.S. §2502(c) (Supp. 2009).

      . Title 18, 18 Pa.C.S. §2702(a)(l) (Supp. 2009).

      . Title 18,18 Pa.C.S. §907(a) (Supp. 2009).

      . As a result of finding the appellant guilty of first-degree murder, the jury did not return verdicts on the remaining homicide charges of third-degree murder and voluntary manslaughter.

      . Title 18,18 Pa.C.S. §1102(a)(l) (Supp. 2009).

      . We imposed a sentence of six months to five years for possessing instruments of crime, to run concurrently with the life sentence imposed for first-degree murder, but did not impose any sentence on the aggravated assault conviction, as it merged for sentencing purposes with the first-degree murder conviction.

      . Immediately prior to the scheduled start of the hearing on December 12, 2008, Attorney Daringer advised this court that he was unsure whether the appellant was competent to assist him at the hearing. Having been apprised of that information, this court continued the hearing until February 18, 2009, in order to give both Attorney Daringer and the assistant district attorney, Alisa R. Hobart, the opportunity to make this determination and research the relevancy of the competency issue, if in fact there was one.
      On February 17, 2009, this court held a “status conference” with counsel, at which the appellant was not present, by agreement, and which was not stenographically recorded, for the sole purpose of receiving an update from counsel on the results of their research. Upon being advised by both counsel that there was little case law on the issue, this court directed Attorney Daringer to have the appellant evaluated by Larry Rotenberg M.D., who had previously evaluated the appellant prior to trial. It was understood and agreed by both counsel that the sole purpose of Dr. Rotenberg’s evaluation would be to determine the appellant’s competency for puiposes of this post-conviction proceeding, as opposed to his competency either prior to trial, at trial or at sentencing.
      This competency hearing was scheduled to begin before this court on March 18, 2009. On that date, this court was advised that the appellant had refused to cooperate with Dr. Rotenberg in having the evaluation performed when Dr. Rotenberg went to see him at Berks County Prison on March 9, 2009. N.T., competency hearing, March 18.2009, pp. 21 -23. However, after an extended colloquy, the appellant promised this court that he would cooperate with Dr. Rotenberg. N.T., competency hearing, March 18, 2009, pp. 32-37. As a result, Dr. Rotenberg was able to evaluate the appellant on March 19, 2009 and to complete his written report by March 20, 2009.
      The competency hearing was therefore held on March 20,2009, at which time this court heard testimony from Dr. Rotenberg and engaged in a further colloquy with the appellant. At the conclusion of the hearing, this court made a finding that the appellant was competent to assist Attorney Daringer in this post-conviction proceeding. In doing so, this court took into consideration Dr. Rotenberg’s testimony that the appellant understood the nature of the proceeding, based not only upon his evaluation of the appellant on March 19,2009, but also his observations of the appellant in the courtroom on March 18, 2009, the appellant’s communications with Attorney Daringer, his responses to this court’s several questions and his promise to the court that he would in fact cooperate with the evaluation. N.T., competency hearing, March 20, 2009, pp. 10-11. Our finding was also based in part upon the appellant’s own admission that he was able to assist Attorney Daringer in this post-conviction proceeding. N.T., competency hearing, March 20.2009, pp. 26-27.

      . This request was made with the understanding that the appellant would have to file another post-conviction petition in order for this court to entertain the merits of his post-conviction claims, in the event that the within appeal would be denied. N.T., competency hearing, March 20, 2009, pp. 30-31.

      . The text of our order is as follows:
      “And now, March 25,2009, after a hearing held on the defendant’s amended first petition for relief under the Post Conviction Relief Act, in which he is claiming, inter alia, that his trial counsel, Richard P. Reynolds, Esquire, was ineffective in failing to perfect his direct appeal from the judgment of sentence entered by this court on July 17, 2007, after the appeal had been timely filed, and the Commonwealth having conceded at the hearing that the defendant is entitled to relief as to this particular issue, the same is hereby granted.
      “Accordingly, the defendant is given leave to file a nunc pro tunc appeal from the judgment of sentence no later than 30 days from the date of this order.”

      . We note at this juncture that the appellant originally raised a total of eight issues, but has since withdrawn three of those eight, without prejudice to raise them in a future post-conviction ineffectiveness proceeding (see footnotes 1, 2 and 3 of the appellant’s supplemental concise statement of errors complained of on appeal filed June 25, 2009), as follows:
      • The evidence shows that the defendant suffered from a mental infirmity at the time of the alleged crimes;
      • The Commonwealth failed to establish a proper chain of custody for the admission of evidence given by a Commonwealth witness (Ronnie Welker) to police; and
      • The trial court should have disqualified the jury panel after a juror made comments about the gruesomeness of the crime to his neighbor, one of the lead investigators (Detective Robert Heiden).

      . These wounds are reflected on a black and white photograph which was marked and admitted into evidence at trial as Commonwealth exhibit C-23.

      . This wound is reflected on a black and white photograph which was marked and admitted into evidence at trial as Commonwealth exhibit C-20.

      . These wounds are reflected on a black and white photograph which was marked and admitted into evidence at trial as Commonwealth exhibit C-26.

      . This wound is reflected on a black and white photograph which was marked and admitted into evidence at trial as .Commonwealth exhibit C-22.

      . The pair of scissors was marked and admitted into evidence as Commonwealth exhibit C-15.

      . The knife was marked and admitted into evidence as Commonwealth exhibit C-16.

      . The appellant’s written statement was marked as Commonwealth exhibit C-12, but was not admitted into evidence because of Pa.R.Crim.P. 646(B)(2), which provides that:
      “(B) During deliberations, the jury should not be permitted to have
      “(2) A copy of any written or otherwise recorded confession by the defendant.”

      . All italicized language in this memorandum opinion is for emphasis only.

      . The text of our instruction was as follows (N.T., trial, pp. 366-68):

      . See N.T., trial, pp. 300-307.

      . He showed no signs of intoxication and did not exhibit any confusion in responding to Criminal Investigator Heiden’s questions while the statement was being taken. N.T., trial, p. 251.

      . See N.T., trial, pp. 147-52.

      . Furthermore, in accordance with Pennsylvania law, this court instructed the jury that the closing arguments of counsel are not evidence in the case (N.T., trial, pp. 373-74) and a jury is presumed to have followed a trial court’s instructions. Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992); Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544 (1990).


source: Caselaw Access Project

author: GEORGE, J.,

license: Public Domain

text:
    Rex v. Wellspan Health

      Neil J. Rovner, for plaintiff.

      Michael D. Pipa, for defendants.
    August 24, 2009
   GEORGE, J.,

The plaintiff, Cathy Rex, initiated this medical malpractice action by complaint dated April 22,2009 against the defendants, William Schrantz M.D., Gettysburg Hospital and Gettysburg Orthopaedics LLP (collectively defendants). The complaint alleged that the several defendants failed to adequately diagnose, monitor, and treat Rex in regard to an injury suffered during a horseback riding accident. The complaint identified the cause of action against Gettysburg Hospital as one of vicarious liability for the actions and inactions of Dr. Schrantz and other “agents, servants, and employees.”

The complaint was met by preliminary objections from the several defendants challenging the sufficiency and specificity of the complaint as it related to the agency allegations against Gettysburg Hospital. On June 3,2009, an amended complaint was filed by Rex. The amended complaint was once again met with preliminary objections of the several defendants challenging the specificity of the complaint as it related to the agency allegations against Gettysburg Hospital. All parties have briefed the issue and it is now ripe for disposition.

Defendants object claiming that Pennsylvania Rule of Civil Procedure 1019(a) requires that a pleading include the material facts necessary to support a claim. Defendants note that only Dr. Schrantz is named as an individual defendant. As such, the generic reference to agents, servants, and employees frustrates their ability to properly defend the action as they are not fully apprised of the tortious acts underlying the claim. Rex counters that the complaint is specific in regard to the negligent conduct of the defendants and has placed the defendants on notice by alleging that “neither Dr. Schrantz nor nurses, or other personnel treating Ms. Rex” acted in compliance with their duty to properly treat her. Rex further points out that defendants are familiar with the personnel who treated Rex and thus have adequate notice of the underlying factual background.

The purpose of the pleadings is to place the defendants on notice of the claims upon which they will have to defend. McClellan v. HMO, 413 Pa. Super. 128, 143, 604 A.2d 1053, 1059 (1992). A complaint must give the defendants fair notice of the plaintiff’s claims and a summary of the material facts that support those claims. Id. Although it is unnecessary to plead all the various details of an alleged agency relationship, a complainant must allege, as a minimum, facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent’s authority, and how the tortious acts of the agent either fall within the scope of that authority, or if unauthorized, were ratified by the principal. Rachlin v. Edmison, 813 A.2d 862, 870 (Pa. Super. 2002). Rex’s broad reference to nurses and other treating personnel falls far short of that standard.

As mentioned, the primary purpose of a pleading is to form a clear and distinct issue for the trial between the parties. Pleadings serve the purpose of giving notice to an opponent of the propositions to be confronted at trial so as to avoid any unfair surprise. Vondersmith v. Kloidt, 143 Pa. Super. 170, 174, 17 A.2d 706, 708 (1941). Such purpose is forwarded by the current pleading as the general references include numerous scenarios of actions or inactions by numerous hospital personnel. Defendants are left to decipher and defend all potential causes of action no matter how obscure, and perhaps unknown, the underlying facts may be. The rules of procedure simply do not permit the plaintiff to delegate their duty of pleading a specific claim to opposing parties or the court. Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 236, 622 A.2d 355, 357 (1993).

As the sole preliminary objection raised by the defendants is one based upon lack of specificity, Rex will be given the opportunity to file an amended complaint specifically identifying the agent by name or specific and appropriate description. The amendment may not change the cause of action nor the theory upon which recovery is sought. See Krause v. Great Lakes Holdings Inc., 387 Pa. Super. 56, 73, 563 A.2d 1182, 1190 (1989).

Based upon the foregoing, the following order is entered.

ORDER

And now, August 24, 2009, defendants’ preliminary objections to plaintiff’s amended complaint pursuant to Pa.R.C.P. 1028(a)(3) are granted. Count III of plaintiff’s complaint is limited to a cause of action against Gettysburg Hospital based upon a theory of vicarious liability for the actions of Dr. Schrantz. Plaintiff is granted 20 days from the date of this order within which to file a second amended complaint. In the event a second amended complaint is not filed within the time period set forth herein, defendants shall file an answer to the amended complaint, as modified by this order, within the time period set forth in the Pennsylvania Rules of Civil Procedure.

      . The complaint identifies both Gettysburg Hospital and Gettysburg Orthopaedics LLP as being affiliated with Wellspan Health.


author: NANO VIC, P.J.,

text:
    Commonwealth v. Fisher

      Cynthia Dyrda-Hatton, assistant district attorney, for Commonwealth.

      Michael P. Gough, for defendant.
    March 24, 2009
   NANO VIC, P.J.,

PROCEDURAL AND FACTUAL BACKGROUND

On September 16,2005, at the conclusion of a two-day jury trial, the defendant, Ralph W. Fisher, was convicted of possession of a controlled substance (four counts), possession with intent to deliver a controlled substance (four counts), unlawful delivery of a controlled substance (four counts), and possession of drug paraphernalia (four counts) with respect to the sale of marijuana on four separate occasions to Jason Shiffert, a confidential informant. The four transactions occurred on January 2, 8 and 30 of 2004, and February 5, 2004. Each was witnessed by Officer Brian Biechy of the Lehighton Borough Police Department. The first two purchases were made by Shiffert from defendant and his co-defendant, Frederick Theesfeld III. The third and fourth purchases involved defendant and Shiffert only. With respect to the first two purchases, defendant was also charged and convicted of criminal conspiracy (two counts).

At trial, Shiffert, Theesfeld and Biechy testified on behalf of the Commonwealth. Each described defendant’s involvement in the sale and delivery of marijuana to Shiffert. In each case, the marijuana was contained within a clear plastic baggie handed to Shiffert. To assure against auy chicanery by Shiffert, prior to each purchase the police met with Shiffert at police headquarters, directed him to undress to his underwear, and patted him down. Each time the police provided Shiffert with the money for the controlled buy; drove him to within a block of where the transaction was to occur — outdoors, on the sidewalk, in front of his mother’s home; watched as he walked to the designated location where the purchase was to occur; and parked across the street where they waited and remained until the transaction was completed and Shiffert transferred to their custody the marijuana he had purchased from defendant. In short, Shiffert was under constant police surveillance from the time he entered the police station until the time he provided the police with the drugs purchased.

Defendant took the stand on his own behalf and denied giving or participating in any drug-related activity. Defendant denied delivering any packages of any type to Shiffert. Instead, defendant testified that on one occasion he picked up a package from Shiffert for Theesfeld which he believed contained jewelry. Defendant also denied receiving any money from Shiffert. To the contrary, the only exchange of money which defendant acknowledged was money he paid to Shiffert in repayment of a loan he had received from Shiffert’s girlfriend. In rebuttal, the Commonwealth presented evidence of defendant’s prior conviction of receiving stolen property in 2001, a crimen falsi offense.

Following his convictions, defendant was sentenced on January 23,2006, to an aggregate state sentence in a state correctional facility of no less than two- nor more than four-years imprisonment. These sentences were affirmed on direct appeal by the Superior Court; defendant’s request for discretionary review before the Pennsylvania Supreme Court was denied on May 8, 2007. Defendant filed a pro se petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546, on May 7, 2008, whereupon we appointed counsel to represent defendant. Thereafter, the amended petition which is now before us for disposition was filed. An evidentiary hearing was held on October 6, 2008.

The sole basis of defendant’s claim for collateral relief which defendant has elected to pursue is that of the alleged ineffectiveness of his trial counsel, Brian Gazo, Esquire. (Letter memorandum, p. 2.) Specifically, defendant contends that trial counsel failed to adequately investigate and present evidence as to Shiffert’s involuntary commitment to a mental health institution, use of prescriptive medication, and affliction with a seizure disorder and that, had he done so, the testimony of Shiffert would have been substantially discredited. Defendant further claims that Shiffert has difficulty understanding information communicated to him, and had this been investigated further by trial counsel, Shiffert would have been determined to be incompetent as a witness.

DISCUSSION

Ineffectiveness of trial counsel as a basis for collateral relief requires a defendant to plead and prove by a preponderance of the evidence that his conviction or sentence was caused by inadequate representation. In finding that counsel’s representation was deficient, three elements must be shown: (1) that the underlying claim is of arguable merit, (2) that no reasonable basis existed for counsel’s action or inaction, and (3) that there is a reasonable probability the outcome of the proceedings would have been different but for counsel’s failures. See Commonwealth v. Pierce, 515 Pa. 153, 157-58, 527 A.2d 973, 974-75 (1987). A failure to satisfy any prong of this test requires rejection of the claim of ineffectiveness. See Commonwealth v. Daniels, 600 Pa. 1, 17, 963 A.2d 409, 419 (2009).

While counsel’s failure to interview witnesses or gather information which could be helpful to the defense and of which he is aware may exist, “supports a finding of ineffective assistance of counsel,” this finding alone “will not be equated with a conclusion of ineffectiveness of counsel absent some positive demonstration that [the evidence] would have been helpful to the defense.” Commonwealth v. Bailey, 322 Pa. Super. 249, 262, 469 A.2d 604, 611 (1983). Under Pierce, “a defendant is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it could have reasonably had an adverse effect on the outcome of the proceedings.” Commonwealth v. Howard, 538 Pa. 86, 99, 645 A.2d 1300, 1307 (1994). (internal quotation marks omitted)

In these post-conviction proceedings, defendant has failed to produce any evidence which he contends his trial counsel failed to discover or use at trial which would have had a reasonable likelihood of affecting the outcome of the proceedings. Without knowing why Shiffert was involuntarily committed, what medications he was taking, why he experienced seizures, and what his mental capacity was, defendant has presented no evidence upon which to base a finding to a reasonable degree of probability that the absence of such information prejudiced defendant. Defendant asks us to speculate as to the significance and consequences of information which he claims was not obtained by trial counsel without himself producing the information or demonstrating how it would have made a difference at trial.

At the PCRA hearing, defendant testified that during the six- to seven-month period preceding trial, he was aware that Shiffert was taking prescription medication, although the types and reasons for the medication were unknown to him. Defendant further testified that on one occasion, within the three-month period leading to trial, he recalled Shiffert taking some medication and then 20 to 25 minutes later experiencing a seizure. Defendant was also aware that Shiffert had been involuntarily hospitalized in a mental health institution, although he did not know the reason. Defendant also testified that Shiffert has difficulty with words, in speaking and writing, and that he has a limited capacity to comprehend what is going on. Finally, defendant testified that all of this information was communicated to Attorney Gazo and that Attorney Gazo advised defendant he would investigate.

When questioned by defendant’s counsel at the PCRA hearing, Attorney Gazo admitted that defendant had told him that Shiffert took prescriptive medication and had been involuntarily committed. Attorney Gazo concluded that Shiffert had some mental health issues but that Shiffert’s medical records would likely be privileged and protected from discovery. See 50 P.S. §7111. Nevertheless, at trial Attorney Gazo questioned Shiffert about the medications he was then taking, and Shiffert acknowledged that these medications clouded his thoughts somewhat. (N.T. 9/15/05, p. 107.) Attorney Gazo further asked Shiffert whether he had attempted suicide. The Commonwealth objected on the basis of relevancy and the objection was sustained. (N.T. 9/15/05, pp. 110-12.) Defendant has raised no claim of trial court error in this ruling. Cf. Commonwealth v. Harris, 578 Pa. 377, 385 n.10, 852 A.2d 1168, 1172 n.10 (2004) (noting that a claim of trial court error not included in a PCRA petition will not be considered by the court).

As to defendant’s claim that Shiffert had cognitive difficulties, Attorney Gazo testified that Shiffert appeared to understand and responded appropriately to questions asked of him at trial. Defendant has presented no evidence of a debilitating condition rendering Shiffert incompetent to testify. To the extent Shiffert’s testimony exhibited any limitations, this goes to its weight, not its admissibility. Indeed, the trial record indicates that defendant himself had as much, if not more, difficulty in responding to questions and being coherent than did Shiffert.

To establish prejudice, defendant “must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different had counsel pursued the theory [he] now presents].” Daniels, 600 Pa. at 30, 963 A.2d at 427. Defendant has not persuaded us that this is the case. Nor can counsel be deemed ineffective for failing to impeach a witness with evidence of a suicide attempt which the court has ruled is irrelevant. See Harris, 578 Pa. at 386, 852 A.2d at 1173 (finding that trial counsel is not ineffective for failing to impeach a witness with mental health information which the trial court has precluded from being introduced).

Moreover, the thrust of the evidence defendant asserts should have been discovered, was primarily to challenge Shiffert’s credibility with respect to his ability to accurately perceive, recall, and communicate what occurred at the time of each purchase. As to this objective, it cannot be forgotten that Shiffert’s testimony was in fact consistent with that of two other Commonwealth witnesses, Theesfeld and Officer Biechy, both in a position to observe. Theesfeld was side by side with defendant for the first two buys; Biechy witnessed each buy from across the street. Consequently, the prejudice of which defendant complains appears harmless at most.

CONCLUSION

In that defendant has not proven prejudice, defendant’s claim of trial counsel’s ineffectiveness fails and his petition for post-conviction relief will be denied.

      . 35 P.S. §780-113(a)(16).

      . 35 P.S. §780-113(a)(30).

      .35P.S. §780-113(a)(30).

      .35P.S. §780-113(a)(32).

      . 18 Pa.C.S. §903(a)(l).

      . At the PCRA hearing, defendant produced a copy of the application for Shiffert’s involuntary commitment pursuant to section 302 of the Mental Health Procedures Act. The application, dated June 4,2004, indicates that Shiffert was suicidal and was admitted on June 3,2004, for involuntary emergency examination and treatment. The application indicates that Shiffert, who was then 23 years old, was distraught over breaking up with his girlfriend. There is nothing in this record to indicate that Shiffert’s mental health issues somehow affected his ability to observe, comprehend or recall the drug transactions to which he testified. Cf. Commonwealth v. Rizzuto, 566 Pa. 40, 63-64, 777 A.2d 1069, 1082-83 (2001) (defining the critical question regarding the relevance of a witness’ mental health history in terms of the witness’ ability to observe and remember) (abrogated on other grounds).


author: LASH, J,

text:
    Talley v. McDermott

      Joseph T. Bambrick, for plaintiff.

      Lawrence Sager, for defendant.
    August 5, 2009
   LASH, J,

This court held a custody

trial on July 30 and 31, 2009. At issue is primary custody of the parties’ son, Liam B. Talley McDermott, age 11. This court also reviewed defendant, Niall B. McDermott’s (Father), partial custody time with the parties’ three daughters. Also under review was whether counseling for the parties is appropriate and whether Liam should be permitted to resume individual counseling. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Clare T. Talley (Mother), is an adult individual who currently resides at 3813 Penns Drive, Reading, Berks County, Pennsylvania 19606.

(2) Defendant, Niall B. McDermott (Father), is an adult individual who currently resides at 80 Overlook Drive, Reading, Berks County, Pennsylvania 19606.

(3) The parties are the natural parents of five children, Roiy N. Talley McDermott, bom July 15, 1992, Elena M. Talley McDermott, born July 11,1995, Liam B. Talley McDermott, bom November 23, 1997, Maeve I. Talley McDermott, born March 14,2000, and Brigid C. Talley McDermott, bom April 5, 2003.

(4) Both parties reside in the Exeter School District.

(5) The parties are husband and wife, having been married on January 9,1989. The parties separated on or about November 16,2007, when a temporary protection from abuse order was entered in favor of Mother and against Father, which among other things, evicted Father from the marital residence at 80 Overlook Drive, Reading, Berks County, Pennsylvania.

(6) The parties have remained separated since the entry of the temporary protection from abuse order, but are not yet divorced. The divorce action is pending.

(7) The parties were experiencing marital difficulties for an extended time. As a result, Mother filed a divorce action on May 23,2007. Within the divorce was a count for confirmation of custody in which Mother requested the court grant primary custody of the five children to her. However, the parties continued to reside together.

(8) The problems came to a head on or about November 15, 2007. On that date, the minor child, Rory, was cut with a pair of scissors. The incident began after Mother observed the parties’ daughter, Maeve, walking around a table with a pair of sharp scissors. Mother directed her daughter to put the scissors down, however, Rory told Maeve not to listen to Mother. After Mother tried to retrieve the scissors, Rory grabbed the blades, then Mother and Rory each pulled on the scissors, resulting in Rory getting cut. He then cursed at Mother. Father, who was in another room and heard the commotion, began attending to Rory and stated to Mother that she “was a danger to the children.” This incident was the catalyst for mother proceeding to file protection from abuse petitions against Father and Rory.

(9) Temporary orders were granted by this court against Father and Rory on November 16, 2007. The temporary order against Father evicted him from the marital home. The temporary order entered against Rory did not evict Rory from the home, however, Rory moved out with Father, as did the parties’ other son, Liam. Father obtained a temporary arrangement to reside in a friend’s residence.

(10) On or about November 30, 2007, the parties reached an agreement, whereby Mother and the three daughters would move from the marital residence, Father and the two sons would move back into the marital residence, and Mother would receive the sum of $ 10,000 to assist her with relocation. Both abuse petitions were withdrawn by Mother.

(11) As a result of the separation, the custody claim began being processed. A temporary order was entered by agreement on January 3,2008, setting forth that Father would maintain primary custody of the sons, Rory and Liam, and Mother would have primary custody of the daughters, Elena, Maeve, and Brigid. No partial custody or supervision to the non-custodial parent was set forth. The parties also agreed to have the court appoint Peter H. Thomas Ph.D., to perform an independent custody evaluation.

(12) An unfortunate estrangement developed whereby the daughters and Father had no contact, while Mother and the sons had no contact. The daughters and the sons also became estranged from each other. Each party blames the other for this circumstance.

(13) In response to a petition for special relief filed by Father, the court ordered reunification counseling through Dr. Timothy Ring of Berkshire Psychiatric Associates, which was to take place prior to resuming visitation. The order provided that Dr. Ring, once he observed progress in reconciliation, would recommend visitation or partial custody with the non-custodial parent and the children from which that party was estranged.

(14) Due to costs and insurance concerns, the parties did not proceed with counseling with Dr. Ring. In lieu thereof, the court, on June 30,2008, by agreement of the parties, appointed Robert M. Nagle Ph.D., to perform the reunification counseling. The stipulation, which the court approved, specifically provided that Dr. Nagle would first meet with Mother and the sons to attempt reunification among them prior to involving himself with Father and the daughters.

(15) On August 28, 2008, the court entered a new temporary custody order reiterating that Mother would have primary custody of the daughters and Father would have primary custody of the sons, but also setting forth that the non-custodial parent “shall be permitted partial custody or visitation as directed by” Dr. Nagle. The court also removed the case from the trial list setting forth that the custody order would remain in effect for as long as necessary and could become a permanent order, but permitting either party, if a modification was deemed necessary, to make application and obtain a hearing.

(16) Dr. Nagle scheduled and attempted to have sessions with Mother and the sons. However, Dr. Nagle cut off the sessions when he determined that the level of emotion and anger among Mother and the sons precluded any progress in reunification. In lieu of continuing with the reunification process, Dr. Nagle wrote a written report. Further, he never commenced any reunification attempts among Father and the daughters.

(17) In his report, dated November 2008, Dr. Nagle expressed concerns about Father asserting influence in the form of parental alienation. He stated: “we also feel that there is no hope for reunification attempts as long as the boys are with [Father].” He also offered his belief that Father should not have visitation with his daughters and that there is a “real possibility” that Father may be relocating to his native Ireland with the sons.

(18) Recently, the estrangement has ameliorated somewhat. Currently, the parties alternate partial custody of the youngest four children, Sundays from 1 p.m. to 4 p.m. Rory, who is now 17, remains estranged from his mother and does not participate in partial custody.

(19) Prior to Dr. Nagle’s involvement, Father obtained counseling for Liam with Pennsylvania Counseling Services. Tracy R. York provided the counseling which, according to Father, went well. However, Mother, who was not involved in the decision to employ counseling for Liam, objected on or about February 18,2008. As a result of this objection, Liam was disenrolled.

(20) At all relevant times, Mother has been unemployed, having been a homemaker during the time the parties lived together. Father is self-employed in the machine sales business, with clients all over the world. This results in occasional trans-global travel.

II. DISCUSSION

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

The overriding issue in this case is the continued presence of the estrangement, how it first occurred, and whether the problem can be resolved or at least abated. Mother predominately relies on the opinions of Dr. Nagle to support her belief that her two sons are suffering from “parental alienation syndrome,” which is the reason she currently has no relationship with Rory and a tenuous relationship with Liam. She blames Father, claiming that Father has succeeded in “brainwashing” the boys. Dr. Nagle, indeed, has offered up Father as the catalyst and questions whether Liam should be permitted to continue in the primary care of Father.

Father denies these allegations. He urges that the parties and the children need to engage in a “healing process.” He sets forth that the anger the boys feel for Mother came about due to the circumstances of the separation and of Mother’s mistreatment of them prior to the separation. He avers that Mother has engaged in excessive discipline of the boys, on several occasions striking them with a belt. She is also verbally abusive. He also believes that Mother has orchestrated hard feelings between he and the daughters, and that therefore, it is she, not he, who has engaged in alienating the children from a parent. He also avers that Mother has a problem with alcoholism, which may contribute to mood swings and mistreatment of the children. Finally, Mother has denied access of the daughters to the paternal grandparents, who reside in Ireland but travel to the United States to visit with the family. According to Father and the paternal grandmother, this was done without any reason whatsoever.

It is apparent that the tension between the parties has escalated into a polarization between the males and the females of the family. The estrangement is real, and extremely unfortunate, described by Father as “catastrophic.”

The problem could have been avoided if the parties, when they began experiencing difficulties, would have made a commitment to work together to reach appropriate resolutions. However, the parties appear to have a strong distrust for each other, probably because they know each other so well. This court has dealt with the parties on several occasions and agrees that neither party can be taken at his or her word, that both have serious credibility issues. Accordingly, they have refused to work with each other and have instead taken actions, ostensibly to protect their own interests, but which has also caused the gap between the respective camps to widen. They either didn’t consider, or were unconcerned, that their actions would result in the five children being substantially harmed.

As Dr. Nagle spoke only on the estrangement between Mother and the boys, we consider that relationship first. In making his determination, Dr. Nagle considered the statements made to him by Mother and his observations of the poor interaction between Mother and the boys when he met with them. He also reviewed Dr. Thomas’ independent psychological evaluation.

We find that Dr. Nagle had insufficient information to form a conclusion that Father alienated the boys from Mother. For one, Mother is simply not a reliable source. Secondly, there are circumstances present which adequately explain the boys’ anger toward Mother. We know that Rory and his Mother were having problems prior to the separation. Rory did not hesitate to be disrespectful, acting as a rebellious teenager against Mother’s authority. It is apparent that Mother overreacted on occasion, both against Rory and Liam.

Secondly, the “scissors incident” likely had a huge adverse impact. For one, Rory ended up being seriously cut, ostensibly due to his own rebellious actions, but also due to Mother’s inappropriate response. To make matters worse, Mother followed up this incident by filing protection from abuse petitions against Father and Rory, resulting in Father’s eviction from the premises. From the boys’ standpoint, this must have appeared grossly unfair, as Father had little involvement in the scissors incident and appeared to be the more reasonable of the two parties, at least on this occasion. Further, as Mother sought protection against Rory, she had to allege that she believed she was in danger of injury from Rory.

Ultimately, Father and the boys returned to the house, after an agreement between the parties was reached, but when they returned, they found that most of the furnishings and personal property of the parties had been removed. They came back to an almost bare home. Not only were general items taken, but items particularly special to Father, such as the portrait of his parents’ home in Dublin and his autographed soccer jerseys, which Mother had no interest in, were also removed. The combination of these circumstances cast Mother as unfair and vindictive. In essence, it appears that the resentment harbored by the boys against Mother developed from observations and from being hurt and angry; any promptings by Father, if they occurred at all, would be merely cumulative.

For his part, Father probably did very little to ease the tensions between Mother and the boys. However, he did endeavor to place Liam in counseling, counseling that apparently was working well for Liam until Mother required that it be cut off.

Regarding Father’s estrangement from the daughters, little evidence was presented. As stated, Dr. Nagle did not investigate this issue, as he had ended the reunification efforts before reaching this issue. However, Dr. Nagle did note that Mother admitted that, when she perceived problems between her and the boys, she issued orders to the daughters precluding them from speaking to the boys without getting her permission first. This was an improper directive, and at the very least, did nothing to promote reconciliation among the five children.

With all that being said, this court does not want to convey the impression that Mother is solely responsible for the estrangement issue or the other difficulties being experienced by the children. For example, Mother’s alcohol problem may be overblown, as there was no evidence of any problems or incidents involving the children stemming from her consumption of alcohol. Further, Father’s involvement with alcohol may be as substantial as Mother’s. Further, while there is no direct evidence fully explaining why Father and the daughters are estranged, we find it highly unlikely that three girls would not want continuing contact with their father if there had never been any problems between Father and the daughters when they resided together. Our statements are merely contextual, as the bulk of the trial focused on Mother’s relationship to the boys, primary custody of Liam being the leading issue. We recognize that both parents have left their imprint on their children, an imprint that could adversely affect them for some time to come, unless the parties make a strong effort to change their ways and work together, and unless counseling is appropriately engaged and utilized.

Certainly, counseling must occur. The order will provide that the parties will engage in co-parenting counseling and therapy sufficient to help them work together to have, as Father puts it, a “healing” episode. Secondly, Liam shall resume counseling with Tracy R. York for, by all accounts, it was beneficial, and Mother’s objections appear to be based solely on her being excluded from the decision to retain Ms. York in the first place.

Custody of Liam shall continue with Father. Father and Liam have an excellent relationship, as does Liam and his brother, Rory. There is no reason to disturb this. On the other hand, it would be best if Liam could spend some additional time with Mother, by expanding the Sunday visits. Both Liam and Mother appear to want to have a relationship with each other. Liam also wants to have a relationship with his sisters. If Mother is willing to treat Liam in a fair manner as she apparently treats her daughters, there is no reason why the relationship cannot be reestablished and begin to blossom. By all accounts, Mother is an excellent cook, so it would appear appropriate that Mother prepare a nice meal for herself, her daughters and Liam on Sundays before he returns to his Father. Sitting together at the dinner table, discussing events of the day in a positive manner, could be therapeutic.

Likewise, Father should have some additional time with the daughters. We will also expand Father’s time with the daughters, commensurate with the expansion of Liam’s time with Mother. Finally, as Mother herself testified that there were no issues with the paternal grandparents, they shall be permitted liberal access to all the children when they are visiting from Ireland. We enter the following order:

ORDER

And now, August 5, 2009, after trial held, this court orders that custody of the parties’ minor children, Rory N. Talley McDermott, born July 15,1992, Elena M. Talley McDermott, born July 11, 1995, Liam B. Talley McDermott, born November 23, 1997, Maeve I. Talley McDermott, born March 14, 2000, and Brigid C. Talley McDermott, born April 5, 2003, (minor children), shall be as follows:

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

(2) Defendant, Niall B. McDermott (Father), shall have primary physical custody of Rory and Liam.

(3) Plaintiff, Clare T. Talley (Mother), shall have primary custody of Elena, Maeve and Brigid.

(4) The parties shall alternate custody of Liam, Elena, Maeve and Brigid on Sundays from 1 p.m. to 7 p.m., such that the four minor children shall be together every Sunday.

(5) By agreement, the minor child, Roiy, shall not be required to spend time with his mother. However, if he elects to visit with his mother, he shall be free to do so.

(6) counseling for Liam shall be reestablished with Tracy R. York of Pennsylvania Counseling Services. The costs for this shall be borne by Father.

(7) The parties shall engage in co-parenting counseling, therapy, and such other counseling as deemed recommended by the counselor. The counselor shall be appointed by agreement of the parties or, in lieu thereof, by the court. The parties shall share the costs equally, however, selection of the counselor shall be conditioned, if at all possible, upon the counselor accepting the parties’ insurance coverage.

(8) When the paternal grandparents are visiting the United States from Ireland, all five minor children shall be permitted liberal access to them during the grandparents’ stay. If the parties cannot agree on a schedule, either party may make informal application to the court.

(9) Mother shall be entitled to custody of the four minor children on Mother’s Day and Father on Father’s Day each year from 1 p.m. to 7 p.m.

(10) The parties shall alternate the Christmas vacation, such that Father shall have custody from December 24 at 1 p.m. to December 25 at 1 p.m. and Mother shall have December 25 at 1 p.m. to December 26 at 1 p.m. on even-numbered years, with the parties to reverse the schedule on odd years.

(11) Each party shall be entitled to one week vacation time with the four minor children. The vacationing party shall provide the non-vacationing party with at least 60 days written notice of the dates and times for said vacation.

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

(13) The attached appendix shall be made apart of the within order.

APPENDIX TO ORDER

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

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

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

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

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

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

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

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

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

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

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

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

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

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

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

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

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

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

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

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

      . Action 07-05251,1.D. no. 2.

      . Action 07-05251,1.D. no. 1.

      . The basis for Mother’s petition against Father was an alleged incident occurring the day before, November 14,2007. Mother accused Father of pushing her after which she would not move when he told her to do so.

      . The order of January 3,2008 does not identify Brigid anywhere in the order. However, the parties’ clear understanding was that Mother would have primary custody of Brigid, as well as the other two daughters.


author: KNISELY, J,

text:
    Commonwealth v. Serrano

      Craig Stedman, for Commonwealth.

      Michael Marinaro, for defendant.
    June 26, 2009
   KNISELY, J,

Defendant Angel Roberto Serrano has appealed his judgment of sentence to the Superior Court of Pennsylvania. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. In his appeal, appellant raises sufficiency and weight of the evidence arguments.

BACKGROUND

On January 4, 2007, appellant Serrano and Brandon McPherson armed themselves and went to the comer of Beaver Street and West Andrew Street, downtown Lancaster, where they opened fire on a group of males. Serrano and McPherson were battling with the males over drug-dealing territory. B.P., a 7-year-old girl, was walking home with her mother and two cousins across the street when appellant and McPherson opened fire on the males. B.P. was struck by a bullet in her back. Appellant and McPherson fled the scene of the shooting.

B.P. was taken to the hospital. The EMT kept her alive on the way by sticking his finger in her back to stop the bleeding. N.T. trial, 11/4/08, at 234. At the hospital, she went into cardiac arrest. Id. Bone fragments and travel of the bullet caused injuries to her ribs, lung and heart. Id. at 611. At one point, they had to shock her heart to get it beating again. Id. She came veiy close to dying, but the efforts of her doctors and medical staff saved her life. Id. at 613.

From the shooting scene, appellant and McPherson went to the house of McPherson’s friend. They changed clothes and caught a cab with their respective girlfriends, Brittney and Sheena, and another male, to a motel. The five of them then went to the house of Sheena’s mother. Upon returning to Lancaster, appellant sought money from his stepfather. His stepfather, reasoning that appellant would violate his probation if he left the state, refused to give him money. Appellant fled to Florida where stayed with another girlfriend, Nicole. he

While in Florida, appellant remained in contact with various girlfriends in Lancaster, his sister, and his stepfather. He warned his stepfather to be careful when testifying. He also wrote his sister telling her to be nice to the girls to secure his alibi. The letters to his sister and Brittney told them what to say regarding the shooting. Appellant also asked Brittney for money which she sent him several times during his time in Florida.

On February 14, 2007, appellant was arrested in Florida. Formal charges were filed against appellant and McPherson on March 12,2007. On September 24,2007, appellant was extradited from Florida. While in prison, appellant continued to manipulate his girlfriends as part of his “power move,” N.T. trial, 11/6/08, at 1029, to establish an alibi. Calling them “two fat girls in love,” id., he told them each he was not dating the other.

Appellant was charged under Information 96-2008 with attempted murder, conspiracy to commit murder, aggravated assault, conspiracy to commit aggravated assault, and two counts of recklessly endangering another person. On November 14, 2008, a jury found appellant guilty of criminal conspiracy to commit murder, criminal conspiracy to commit aggravated assault, and recklessly endangering another person. The court ordered a pre-sentence investigation. On March 23, 2009, this court sentenced appellant to 20 to 40 years in a state correctional institute for criminal conspiracy to commit murder, five to 10 years for criminal conspiracy to commit aggravated assault, and one to two years on each count of reckless endangerment. All counts were consecutive; thus, the aggregate term is 27 to 50 years of state imprisonment.

On April 1, 2009, appellant filed a petition to modify sentence which was denied by this court’s April 2,2009 order. This appeal followed.

DISCUSSION

Appellant claims there was insufficient evidence to establish his guilt beyond a reasonable doubt on the charges of conspiracy to commit murder, conspiracy to commit aggravated assault, and recklessly endangering another person.

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all proper inferences favorable to the Comm on - wealth, the fact-finder could reasonably have determined all the elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Oliver, 693 A.2d 1342, 1344 (Pa. Super. 1997).

A person is guilty of criminal conspiracy if he, with another person, (1) intends to promote or facilitate the commission of a crime, and (2) agrees with the other person that one or more of them will engage in conduct constituting the crime or attempting or soliciting to commit such crime. 18 Pa.C.S. §903(a). An agreement may be inferred from the acts and circumstances of the parties. Commonwealth v. Ripley, 833 A.2d 155, 160 (Pa. Super. 2003). Moreover, a conspiracy conviction requires an overt act done in furtherance of the conspiracy. 18 Pa.C.S. §903(e). The sufficiency of evidence to sustain a conviction of conspiracy is not affected by the fact that defendants are acquitted on the substantive charges. Commonwealth v. Wanamaker, 298 Pa. Super. 283, 288, 444 A.2d 1176, 1178 (1982) (citing Commonwealth v. Rosen, 141 Pa. Super. 272, 14 A.2d 833 (1940)).

Here, the Commonwealth presented ample evidence that appellant conspired with McPherson to kill the males on the corner. Witnesses testified that appellant and McPherson were upset prior to the shooting. N.T. trial at 247, 343, 346. McPherson felt disrespected, id. at 247, and told his girlfriend that he was going to shoot the guy on Beaver Street. Id. at 346. Appellant and McPherson left the house in downtown Lancaster together. Id. at 343, 448. Witnesses back at the house testified to hearing gunshots shortly after appellant and McPherson left. Id. at 259, 350, 452. Before the shots, McPherson’s girlfriend remained at the house. She called McPherson’s cell phone. Id. at 351. Another male at the house took the phone and asked, “What’s taking so long, are you gonna make it rain.” Id.

Witnesses testified that McPherson and appellant returned to the house out of breath and excited. Id. at 249-50,352,452-53. They were each seen with different guns. Id. at 262-63, 274-75, 340, 355, 453. They changed clothes. Id. at 3 50,454. Appellant told a witness. “I think we clapped them niggas.” Id. at 371. They took a cab to a motel where appellant admitted that both he and McPherson shot at a guy. Id. at 460-61. Appellant sought money and fled to Florida to “get out of dodge.” Id. at 529. A silver revolver fitting the description given by witnesses of a gun they saw the defendants with was recovered. Id. at 763-65. The same gun was matched to bullets recovered from the scene. Id. at 803-806. Only one gun was recovered when appellant was interviewed by a Lancaster detective in Florida, but during the interview appellant asked if the detective had any gum in custody. Id. at 1020. (emphasis added)

Although only one of the guns described at trial was recovered, the circumstances surrounding the shooting revealed an unlawful agreement. Commonwealth v. Lawson, 437 Pa. Super. 521, 530, 650 A.2d 876, 880 (1994) (criminal conspiracy inferentially established by showing the relationship, conduct, or circumstances of the parties). The jury was free to infer from the witness’ testimony that appellant and McPherson agreed to kill, intended to kill, armed themselves and opened fire on a public street in furtherance of their conspiracy.

Appellant also challenges the sufficiency of evidence to support the guilty verdict on the conspiracy to commit aggravated assault charge. Although there is more than sufficient evidence to establish the elements of this count, this court, in preparing its 1925 opinion, recognized that the criminal information and record reveal a single conspiracy to kill rather than two separate conspiracies. The two conspiracy counts on the information list nearly identical facts. Further, the record as discussed above supports a finding of one single, continuing conspiracy with a common scheme to kill the rival males on the comer. Although not raised by defense counsel, this court improperly imposed a sentence on this count as a second, separate offense. Such a sentence is not permissible under 18 Pa.C.S. §906 (barring multiple convictions of inchoate crimes). The court acknowledges that the appropriate correction must be made based on Commonwealth v. Andrews, 564 Pa. 321, 331, 768 A.2d 309, 314 (2001) (noting person conspiring to commit multiple crimes with single objective is guilty of only one conspiracy), and Commonwealth v. Marinez, 777 A.2d 1121, 1126-27 (Pa. Super. 2001) (requiring sentence imposed on conspiracy to commit aggravated assault be vacated).

Appellant was also convicted of recklessly endangering another person (REAP). REAP is defined at 18 Pa.C.S. §2705:

“Section 2705. Recklessly endangering another person
“A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”

The Commonwealth was required to show that appellant (1) possessed a mens rea recklessness, (2) acted (“actus reas”), and (3) as a result of his action, created the danger to another person of death or serious bodily injury. Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa. Super. 2003). “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Commonwealth v. Klein, 795 A.2d 424, 427 (Pa. Super. 2002) (citing Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super. 2000)). The Commonwealth must demonstrate that the defendant had an “actual present ability to inflict harm.” Id.

Here, appellant along with McPherson opened fire on a public street, in the early evening hours, at a group of males while other innocent bystanders were walking down the street. One bullet struck and nearly killed B.P. The Commonwealth provided ample evidence that appellant’s wrongful, violent conduct did place B.P. and her mother at risk of death or serious bodily injury.

Finally, appellant contends the guilty verdicts of attempted murder, conspiracy to commit murder, conspiracy to commit aggravated assault, and reckless endangerment were against the weight of the evidence.

The weight of the evidence is exclusively for the fact-finder who is free to believe all, part, or none of the evidence and to determine the credibility of witnesses. Commonwealth v. Champney, 574 Pa. 435, 443, 832 A.2d 403, 408 (2003). An appellate court will only reverse a trial court’s verdict where it is so contraiy to the evidence that it shocks the conscience. Id.

The evidence at trial established appellant’s conspiracy and reckless endangerment of B.P. and her mother. Three separate people who saw appellant shortly before and after the shooting testified to appellant’s active and willing participation. N.T. trial at 255-56, 346-47, 352-53, 359, 450-51, 453. Ballistics testing connected the gun appellant was seen with to the bullets recovered from the shooting. Id. at 802-804. Letters and tape-recorded conversations revealed appellant’s attempt to fabricate an alibi for the day of the shooting by manipulating four women, his sister, a girlfriend in Florida, and two girlfriends in Pennsylvania. Id. at 877, 884, 985-96, 1029. B.P.’s mother testified to running when she heard shots and to realizing her daughter was shot. Id. at 185-86. An EMT and doctor testified to B.P.’s condition and the seriousness of her injuries. Id. at 232-34, 608-13. The jury was free to believe all, part or none of this evidence presented during the trial. Therefore, the jury’s guilty verdict was not against the weight of the evidence.

For the foregoing reasons, the court respectfully submits that appellant’s judgment of sentence for one count of conspiracy to commit murder and two counts of reckless endangerment should be affirmed.

      . 18 Pa.C.S. §901(a).

      . 18 Pa.C.S. §903(a)(l)(2).

      . 18 P.S. §2702(a)(l)(4).

      . 18 Pa.C.S. §903(a)(l)(2).

      . 18 P.S. §2705.

      . Of note, although the guilty verdicts of conspiracy to commit murder and not guilty of attempted murder may be inconsistent, the inconsistency does not constitute grounds for reversal. Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971) (“consistency in a verdict in a criminal case is not necessary”).