author: SCHMEHL, J.L., P.J.,

text:
    Volutza v. McBryan

      Shanin Specter, Andrew S. Youman, Charles L. Becker and Garabet M. Zakeosian, for plaintiffs.

      Barbara S. Magen, Sheila A. Harén and Michael M. Badowski, for defendants McBryan Jr., and Berks Internal Medicine Ltd.

      Kevin H. Wright and Terrence M. Pitt, for defendants Hey Jr. and Cardiology Associates of West Reading Ltd.

      James P Kilcoyne, for defendants Winn and West Reading Radiology Associates.

      Edwin L. Stock, for defendant The Reading Hospital and Medical Center.
    June 3, 2010
   SCHMEHL, J.L., P.J.,

Donald J. McBryan Jr. MD, and Berks Internal Medicine Ltd., defendants/appellants in the above-captioned matter, appeal from the jury verdict of February 9, 2009.

I. FACTUAL AND PROCEDURAL BACKGROUND

This medical malpractice action was initiated following the January 24, 2003 death of Gregory Volutza (decedent). A later autopsy showed the cause of death to have been a myocardial infarction (heart attack). The events which occurred during the week of Monday, January 20, 2003 largely form the basis for this action.

The following is a brief summary of largely undisputed facts of the events of that week. On the morning of Monday, January 20,2003, the decedent was suffering from chest pain and chest tightness, jaw pain, shakiness, anxiety and lightheadedness. The decedent went to see defendant Donald J. McBryan Jr. M.D., of defendant Berks Internal Medicine Ltd., for an evaluation of the symptoms. Defendant McBryan is a physician, and at the time worked as a primary care physician at Berks Internal Medicine.

During the medical exam and visit, the decedent told defendant McBryan that he had taken the anti-anxiety medication Ativan that morning, and that it had seemed to alleviate his symptoms. Decedent, it should be noted, was a pharmacist by occupation. Defendant McBryan reviewed the decedent’s medical history, taken at decedent’s initial visit with defendant McBryan a month prior. The history showed that the decedent was 37 years of age and overweight. He had high cholesterol and blood pressure for both of which he took medication. Additionally he had some family history of heart conditions which required surgery.

During the same visit, defendant McBryan’s office conducted an electrocardiogram on the decedent. Defendant McBryan determined that decedent had not experienced cardiac-related problems, and that instead the symptoms likely stemmed from a panic attack. Defendant McBryan told the decedent to go to the emergency room if his symptoms returned, and scheduled the decedent to undergo a Cardiolyte stress test the following day.

The next morning, on Tuesday, January 21,2003, the decedent underwent the stress test, conducted by defendant E. Berry Hey Jr. M.D., a cardiologist at the facility of defendant Cardiology Associates of West Reading Ltd. The immediate test results of the stress test were considered to be within normal range, and the decedent left the appointment following the test. Later that day, defendant Randall S. Winn M.D., a radiologist with defendant West Reading Radiology Associates, reviewed the images from the stress test and found that they showed some abnormalities, including a minor heart defect. Defendant Winn then mailed the results to defendant McBryan, as was the protocol at the time. Defendant McBryan received the stress test results on Thursday, January 23, 2003.

Three days after the stress test, while at work the morning of Friday, January 24,2003, the decedent re-experienced the same symptoms he had experienced on Monday. He telephoned defendant McBryan’s office and left a voice message to inform the office of the recurrence of the symptoms. Upon receiving a written note containing the message, defendant McBryan then reviewed the imaging portion of the stress test results, which had just arrived that day. Defendant McBryan then called the decedent’s workplace, whereupon he learned that the decedent was at that moment undergoing urgent care by emergency workers for an apparent heart attack. Defendant McBryan called the defendant Reading Hospital and Medical Center to speak with the cardiologist on call, then left to meet the ambulance at the hospital. The decedent passed away shortly thereafter that same morning.

The third amended complaint, filed March 30, 2004, listed counts in negligence against each defendant, including the defendant Hospital, as well as causes of action of wrongful death under the Survival Act.

This court held a jury trial from January 26, 2009 through February 9,2009. The verdict was returned after the two-week trial in favor of plaintiff and against defendants McBryan and Berks Internal Medicine, in the amount of $4,000,000. A verdict also came back in favor of the remaining defendants.

On February 18,2009, plaintiff filed motions for post-trial relief, as well as a motion for delay damages. Defendants McBryan and Berks Internal Medicine also filed motions for post-trial relief on February 18, 2009, with five reasons listed therein. On May 7, 2009, this court held argument on all post-trial motions, and after consideration of same and review of the record, entered an order which denied all post-trial motions, and granted plaintiff’s motion for delay damages, pursuant to Pa.R.C.P. 238.

Defendants McBryan and Berks Internal Medicine filed notice of the present appeal January 7,2010. Moving defendants thereafter filed a timely concise statement of errors complained of on appeal.

II. DISCUSSION

Defendants McBryan and Berks Internal Medicine raise the following lengthy “Concise statement of errors complained of on appeal”:

(1) This court erred and abused its discretion in denying defendants’ motions for partial nonsuit and for partial directed verdict due to the fact that Dr. McBryan, as the referring physician, had no duty to call for, or otherwise access, ordered test results. Defendants are entitled to either the entry of judgment n.o.v. or, in the alternative, a complete new trial as to all defendants on this basis.

(2) The instant defendants are entitled to a complete new trial as to all defendants, since the jury’s verdict was against the overwhelming weight of the evidence.

(3) This court erred and abused its discretion in failing to grant a new trial, since the jury’s verdict rendered solely against Dr. McBryan, with no liability being attached to the co-defendants, Dr. Hey and Dr. Winn, represents an inconsistent and irreconcilable verdict which was contrary to the evidence presented, thereby entitling Dr. McBryan to a complete new trial as to all defendants.

(4) This court erred and abused its discretion in repeatedly refusing to instruct the jury that Dr. McBryan, as the referring physician, had no duty to call for, or otherwise access, the results of Dr. Winn or Dr. Hey’s tests. By refusing to instruct the jury that Dr. McBryan, as the referring physician, had no duty to call for, or otherwise access, the results of Dr. Winn or Dr. Hey’s tests, the court allowed the jurors to base a finding of negligence upon a theory of liability which was not supported by the requisite expert testimony.

In this regard, plaintiff’s expert witness offered no criticism of Dr. McBryan for not calling Dr. Winn and Dr. Hey in advance of receiving their reports concerning Mr. Volutza. Despite this, plaintiff improperly elicited testimony from Mrs. Volutza that Dr. McBryan advised her, after Mr. Volutza’s death, that he may have been able to access the reports from the Hospital’s computer system. Without the appropriate instruction, the jury was improperly permitted to infer negligence, on the part of Dr. McBryan, based upon the testimony of a non-expert witness. Defendants were unduly prejudiced by the court’s error and abuse of discretion, since one cannot be certain whether the jury’s verdict was based upon its finding that Dr. McBryan should have taken proactive steps to obtain the test results of Dr. Winn and Dr. Hey. As such, a complete new trial must be granted as to all defendants.

(5) This court erred and abused its discretion in refusing to grant a new trial based on the court’s failure to instruct the jury on Dr. McBryan’s submitted point for charge no. 8. By failing to instruct the jury on Dr. McBryan’s submitted point for charge no. 8, the court improperly allowed the jurors to substitute their own opinions, as non-physicians, for those of the expert witnesses and to decide the standard of care issue based on their own lay opinions as to Dr. McBryan’s care and treatment. Defendants were unduly prejudiced by the court’s error and abuse of discretion, since one cannot be certain whether the jury’s verdict was based upon its finding that Dr. McBryan should have taken proactive steps to obtain the test results of Dr. Winn and Dr. Hey. As such, a complete new trial as to all defendants must be granted.

(6) During the argument held on Dr. McBryan’s post-trial motions, counsel for Dr. Hey, plaintiff’s counsel and the court, in an effort to try and reconcile the jury’s verdict, commented that the jury “could have” found Dr. McBryan solely liable based upon the events which occurred on Friday, January 24, 2003. In point of recorded fact, this further demonstrates Dr. McBryan’s entitlement to a new trial. Dr. Machac, plaintiff’s only liability expert, confined his standard of care deviation opinions, as against Dr. McBryan, exclusively to the events which occurred on Monday, January 20, 2003. Dr. Machac offered no testimony whatsoever that Dr. McBryan negligently deviated from any standard of care with regard to the events which occurred on Tuesday, January 21,2003, Wednesday, January 22, 2003, Thursday, January 23, 2003, and/or Friday, January 24, 2003. Flence, the parties’ and the court’s recognition that this jury’s verdict could very well have been, and most likely was, the product of matters beyond the confines of the care and treatment rendered by Dr. McBryan on Monday, January 20,2003, demonstrates that the jury either disregarded the court’s instructions and/or that the court failed to properly instruct the jury. It is the latter which occurred here, and Dr. McBryan is entitled to a complete new trial, as to all defendants, on this basis.

(7) The practice of medicine involves professional skill and training and the application of techniques which are generally beyond the knowledge of individuals who are not physicians. Therefore, in evaluating the conduct of individual defendant physicians, it is the duty of the trial court to caution jurors that they must not substitute their own thinking, as non-physicians, as to what would be proper treatment under the circumstances presenting to each individual physician defendant. Jurors should be instructed that in considering whether (or not) a doctor negligently departed from applicable standards of care they must be guided by the testimony of the physicians and experts as to the standard (or standards) of care applicable to the facts surrounding an individual physician’s professional involvement in the case. This fundamental point of law was presented to the court as a proposed jury instruction (no. 8) by Dr. McBryan, and this court erred and abused its discretion in failing to provide this instruction to the jurors. Therefore, the instant defendants are entitled to a complete new trial on this basis.

(8) The court also erred and abused its discretion in the entirety of the court’s jury instructions as given. The given instructions failed to offer the legally required guidance reflected in Dr. McBryan’s submitted proposed point for charge no. 8. Thus, the jury was free to speculate, as well as to decide this case on matters beyond that of the legally supported evidentiary criticisms of Dr. McBryan. Again, Dr. Machac’s expert standard of care deviation opinions, as against Dr. McBryan, were limited solely to Dr. McBryan’s professional involvement with Mr. Volutza on Monday, January 20,2003. The fact that this jury, by the court’s own recognition, both during the trial and again in the post-trial hearing, “could have” been influenced by other legally insufficient theories requires a complete new trial as to all defendants.

(9) This court erred and abused its discretion in allowing plaintiff’s expert, Dr. Machac, on direct examination, to declare the American Heart Association guidelines on the management of unstable angina to be authoritative. The court also erred and abused its discretion in allowing plaintiff’s expert, Dr. Machac, on direct examination, to testify regarding the AHA guidelines on the management of unstable angina, and to refer to same on power-point, since this testimony constituted inadmissible hearsay and/or the improper use of a learned treatise during the direct examination of an expert witness. This testimony was unduly prejudicial to the healthcare providers, since the AHA guidelines improperly became the focus of the case, in contravention of all pertinent legal authority, thereby warranting the grant of a complete new trial as to all defendants.

(10) This court erred and abused its discretion in prohibiting defense counsel’s cross-examination of plaintiff’s expert, Dr. Machac, with respect to the central issue in the case. Plaintiff made the issue, as to whether a primary care physician should be responsible for an unforeseen outcome in a patient who presents with non-specific complaints, the central issue in the case. This court’s limitation on defendant’s cross-examination of plaintiff’s expert witness, on this issue, was unduly prejudicial and harmful to defendant’s case, thereby warranting the grant of a complete new trial as to all defendants.

(11) This court erred and abused its discretion in refusing to grant a new trial, since Dr. Machac was not qualified to render expert testimony on the standard of care issue. This court erred and abused its discretion in permitting Dr. Machac to testify as an expert witness against Dr. McBryan, since it was never established, as required by 40 P.S. §1303.512, that Dr. Machac practiced in the same subspecialty as Dr. McBryan or in a subspecialty which has a substantially similar standard of care for the specific care at issue. Moreover, it was never established that Dr. Machac, a practicing clinical cardiologist, was actively involved in the full-time teaching of medicine in the applicable subspecialty of primary care medicine or a related field of medicine. As such, since Dr. Machac was not qualified to render [expert] testimony against Dr. McBryan on the standard of care issue and since expert testimony was required, a complete new trial as to all defendants is necessary.

(12) The trial court erred and abused its discretion in denying defendants’ motions for post-trial relief, and in molding the verdict adding damages for delay, through its order dated December 17, 2009.

(13) The trial court erred and abused its discretion by allowing judgment to be entered on the jury’s verdict (on January 7, 2010), particularly since the jury’s verdict must be set aside.

To begin, it is well-established that issues not raised in post-trial motions are waived for purposes of appeal. Diener Brick Co. v. Mastro Masonry Contractor, 885 A.2d 1034, 1038 (Pa. Super. 2005). In order to preserve an issue for appeal, a party must have raised that issue previously in its post-trial motions, and the mention of a newly claimed error, once a case is on appeal, does not remedy its previous omission from post-trial motions. Id. at 1039. This edict stems from Pa.R.C.P. 227.1, the purpose of which is to ensure that a trial court has opportunity to correct errors in its ruling, and avert the need for appellate review. Siculietano v. K & B Amusements Corp., 915 A.2d 130, 132 (Pa. Super. 2006).

The February 18,2009 motions of defendants McBryan and Berks Internal Medicine for post-trial relief raised only some of the issues raised in this present appeal, and those not previously raised have been waived. Specifically, in their motions for post-trial relief, the moving defendants argued that:

(1) The jury’s verdict rendered solely as against Dr. McBryan with no liability being attached to co-defendants, Drs. Hey and Winn, represents an inconsistent verdict that was contrary to the undisputed evidence thereby entitling Dr. McBryan to a new trial as a matter of law.

(2) The court committed an error of law entitling Dr. McBryan to a new trial when the court repeatedly refused to instruct the jury that Dr. McBryan, as the referring physician, had no duty to call for, or otherwise access, ordered test results.

(3) The court committed an error of law in allowing plaintiff’s expert, on direct examination, to declare the American Heart Association guidelines on the management of unstable angina as being authoritative, over the defense’s objections of improper use of learned treatises and hearsay.

(4) The court committed an error of law in prejudicially restricting defense counsel’s ability to cross-examine plaintiff’s expert as to the critical issue in the case.

(5) The court committed error by denying the defense’s motion in limine and trial objections to exclude Dr. Machac’s expert testimony as against Dr. McBryan.

In a sixth reason listed in their motion for post-trial relief, the moving defendants also made a “reservation of rights to pursue further matters of repeatable error” to submit additional points of error once the trial transcript was completed and in their possession.

In comparing the moving defendants’ post-trial motions with the same parties’ errors complained of on appeal, it is this court’s belief that the errors numbered 1, 2, 5, 6, 7, and 8 were not before this court in post-trial motions. As such, this court only briefly addresses its reasoning pertaining to the issues not raised in post-trial motions, and more fully addresses the errors complained of on appeal which were previously raised in post-trial- motions. Additionally, several of the errors complained of on appeal are duplicative, and so for purposes of judicial economy, this court has consolidated those errors in discussion below.

Error 1

The first error complained of on appeal was not raised in post-trial motions. In brief, however, this court found the moving defendants were not entitled to a partial nonsuit or directed verdict, and that, as described below at “Error 4,” this issue arose in such a cursory manner in trial that to further highlight it would have resulted in prejudice to plaintiff. This court further found that there was sufficient evidence presented to support the verdict rendered by the jury. Therefore, this court believes this error complained of on appeal to be both waived and without merit.

Error 2

The second error complained of on appeal was not raised in post-trial motions. In brief, however, this court found that the verdict was not against the overwhelming weight of the evidence, and to the contrary, there was ample evidence presented to support the verdict rendered by the jury. The record clearly demonstrates the jury’s verdict, as is further discussed below. Therefore, this court believes this error complained of on appeal to be both waived and without merit.

Error 3

The third error complained of on appeal pertains to the verdict rendered against defendant McBryan, with no liability against defendant Hey and defendant Winn. The distribution of liability in the jury’s verdict was not contrary to the evidence presented. The responsibilities and respective specialties of all three doctor defendants were clearly laid out for the jury to consider, including the responsibility of a primary care physician, defendant McBryan, to evaluate incoming patients. As shown at trial, each of the three doctor defendants carried different duties of care toward the decedent. The duties of care did not necessarily overlap, based upon the veiy different function each defendant held during the week of January 20,2003, such that it was within the purview of the jury to ascribe liability to defendant McBryan alone.

The verdict of negligence against moving defendants was well-supported by the evidence presented, and could very well have stemmed solely from decedent’s January 20, 2003 visit to Berks Internal Medicine. The plaintiff presented ample evidence that defendant McBryan had opportunity to detect or at least suspect the decedent’s heart attack, based upon the collective indications of symptoms presented, family history, age, weight, and the EKG reading at the time of the first medical exam. The failure to order blood work at that time also could have contributed to the negligence the jury found. It is the province of the jury to decide the case on the facts and the law and because there is evidence to support the verdict, the verdict should not be disturbed. This court does not believe it committed any error of discretion in failing to grant a new trial on this basis, nor does it believe a new trial was merited on this or any other basis.

Error 4

The fourth error complained of on appeal relates to this court’s decision not to give the jury a special instruction that defendant McBryan did not have an obligation to actively seek out the stress test results. This issue stems from a comment by plaintiff during direct examination. Trial tr. vol. 1, 722, January 29,2009. At that particular point in trial, plaintiff’s counsel asked plaintiff whether, at the Hospital, and immediately after decedent’s death, she had any discussion with defendant McBryan about the stress test results. Id. Plaintiff answered the question in the affirmative, and related that while speaking to defendant McBryan at the Hospital, the plaintiff asked defendant McBryan why he had not looked up the stress test results. Id. According to plaintiff, defendant McBryan responded that he could have looked at the stress test results sooner. Id.

This piece of plaintiff’s testimony was not important enough, in the context of the entire two-week trial, to underline in a separate jury instruction, nor was it likely that the jury would interpret this testimony as that of an expert stating a standard of care. Plaintiff’s counsel did not even incorporate this particular contention into plaintiff’s own closing argument. Further, it is worth noting that the wording of plaintiff’s testimony here at issue did not actually assign a “duty” on the part of the moving defendants to actively seek out the test results, nor did moving defendants object to this testimony during the direct examination. Trial tr. vol. 1,722, January 29,2009. Additionally, moving defendants had ample opportunity to cross-examine plaintiff on this same point, and to present defendant McBryan’s version of the same conversation.

This court found it had no obligation to address this brief testimony by plaintiff in jury instructions, and in fact would have been more prejudicial in doing so. To highlight this brief comment by the plaintiff, an obviously non-expert witness, regarding a conversation between herself and one of the defendants, would have been improper. It also would be difficult, over the course of a two-week trial, for the court to instruct the jury members on every piece of testimony they were not to consider on the final day of trial. The court clearly does not have a duty to so instruct.

Overall, this court believes it fashioned a jury charge that was fair to all parties to the case. A trial court’s jury charge is considered in its entirety, when evaluated on appeal. Rettger v. UPMC Shadyside, 991 A.2d 915, 931 (Pa. Super. 2010). This court believes that its charge as a whole to the jury was fair and impartial in its entirety to all parties involved. Additionally, a trial court has substantial leeway in fashioning its charge to the jury, and may select its own language while remaining cognizant of the need to adequately instruct the jury on the law as it applies to the evidence adduced at trial. Id. This court had no duty to use the exact jury charge proposed by the moving defendants. This court did nonetheless include jury instructions which reminded the jury of the limits on the liability that could be ascribed to the moving defendants. Trial tr. vol. 2, 945, Feburary 6, 2009. Clearly on the whole, the court’s charge was a correct statement of the law of the case. The decision not to instruct the jury on this point raised by moving defendants was within both the law and this court’s discretion, and does not merit a new trial.

Error 5

The fifth error complained of on appeal is largely duplicative of Error 7, and was not raised in post-trial motions. In brief, however, this court found that its jury instruction was sufficient as to standard of care and the professional standards to which the defendants, as professionals, would be held. Moving defendants’ submitted point for charge conveyed the same overall meaning as did this court’s instruction, and there was no reason to duplicate a jury instruction which was already covered by the court in the charge. Therefore, this court believes this error complained of on appeal to be both waived and without merit.

Error 6

The sixth error complained of on appeal was not raised in post-trial motions. In brief, however, co-defendant’s counsel’s argument on post-trial motions, positing that defendant McBryan’s liability might be based on the events of Friday, January 24, 2003, had no impact on whether the record before the jury could enable the jurors to reach a verdict not against the weight of the evidence. Co-defendant’s counsel’s comment was after trial, and had no effect on the jury’s verdict. Furthermore, there was ample evidence for the jury to reach the verdict at which it arrived, and it should not be disturbed. Therefore, this court believes this error complained of on appeal to be both waived and without merit.

Error 7

The seventh error complained of on appeal was not raised in post-trial motions, and is duplicative of the jury instructions this court purportedly failed to give, mentioned at Error 5. In brief, however, this court did not find it to be an abuse of its discretion to choose a different format for jury instruction other than the particular one presented by counsel for moving defendants. This court’s jury instructions, on the whole, largely had the same effect as that sought by moving defendants. Additionally, the charge itself, taken as a whole, was a correct statement of the law, and was not reversible error. Therefore, this court believes this error complained of on appeal to be both waived and without merit.

Error 8

The eighth error complained of on appeal was not raised in post-trial motions, and is duplicative of Error 5 and Error 7. In brief, however, this court did not find it to be an abuse of its discretion to instruct the jury in a manner different than that specifically sought by moving defendants. This court’s instructions in complete form were fair to all parties, and did not constitute reversible error. Therefore, this court believes this error complained of on . appeal to be both waived and without merit.

Error 9

The ninth error complained of on appeal addresses the allowance of the American Heart Association guidelines as authoritative during trial. This court permitted the use of the AHA guidelines during trial after finding the AHA guidelines to qualify as an authoritative treatise, and after issuing limiting instructions to plaintiff’s counsel as to the manner in which plaintiff’s expert witness could make use of those guidelines. This court believes the manner in which it allowed the use of this treatise was appropriate and permissible under state law.

Pennsylvania courts allow an expert witness the limited use of textual material on direct examination to explain the basis for that expert’s reasoning. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000). In Aldridge, at the trial court level, defense counsel examined their expert witness at trial through the use of textbooks on pediatrics. In its review of the use of the textbooks at trial, the Pennsylvania Supreme Court clarified its position on the use of learned treatises at trial, generally. Id., 561 Pa. at 334, 750 A.2d at 298. There, the Supreme Court held that although some published materials could be considered hearsay, an expert witness could nonetheless rely thereupon in the formation of that expert’s opinion, and it would be unreasonable to entirely restrain an expert witness altogether from any use of a learned treatise. Id. at 333-34, 750 A.2d at 297-98. The Supreme Court did, however, direct that trial courts should exercise caution and issue limiting instructions in allowing the use of learned treatises, to ensure that the learned treatise itself did not become the focus of the examination and supersede the expert’s own testimony. Id. See also, Arnoldy v. Forklift L.P., 927 A.2d 257 (Pa. Super. 2007) (overruled on other grounds), Burton-Lister v. Siegel, Sivitz and Lebed Associates, 798 A.2d 231, 238 (Pa. Super. 2002). This court believes the use of the AHA guidelines at trial in this case was in compliance with Aldridge and its progeny.

At trial, the use of the AHA guidelines was a subject of extensive discussion with counsel. This court held lengthy discussion about this issue on the record at sidebar and in the retiring room, where all parties had an opportunity to argue whether the AHA guidelines were authoritative and whether plaintiff’s expert, cardiologist Josef Machac M.D., could use them on direct examination. Trial tr. vol. 1, beginning at 13, January 26, 2009. This court considered the evidence and case law presented by all parties’ counsel, and made the decision to allow the use of the AHA guidelines. Following discussion, and the decision to allow a limited use of the AHA guidelines, this court allowed for all counsel to eliminate those slides from plaintiff’s expert witness’ presentation which they found objectionable. The slides did not become, as moving defendants have alleged, “the focus” of the case, or even of expert Machac’s testimony. The AHA guidelines were only one portion of that expert’s testimony, which also included EKG readings and anatomical and physiological diagrams of the heart, and the expert’s own experience as a cardiologist for his expert opinion as to the detectability of the heart attack. It was the events of the week of January 20,2003, the death of the decedent, the testimony of the defendants, and the testimony of all experts which remained the true focus of the case.

While expert Machac said the AHA guidelines were authoritative, defendant McBryan also said he was familiar with them, and answered all questions put to him about them. Further, while the testimony that the AHA guidelines were authoritative was not in moving defendants’ favor, moving defendants had ample opportunity to present, and did present, sources and authorities that represented a different view than that of the AHA, and which was in moving defendants’ favor so as to build their defense. This court’s decision to allow testimony as to the AHA guidelines testimony was not unduly prejudicial. Rather, it was supported by case law, allowed permissible testimony, within this court’s discretion, and certainly does not merit a new trial.

Error 10

The tenth error complained of on appeal addresses this court’s ruling on an objection during moving defendants’ cross-examination of expert Machac. Moving defendants claim that this court’s limitation on moving defendants’ cross-examination was prejudicial and unduly harmful to their case. This court believes its ruling at that point in trial to have been appropriate, and non-prejudicial to moving defendants.

The portion of trial to which moving defendants presumably refer is the moment at which moving defendants’ trial counsel questioned expert Machac on how a primary care physician might treat a patient presenting with aheadache. Trial tr. vol. 1,314-16, January 27,2009. At this moment, plaintiff’s counsel objected, stating that the case was “not about a headache in a doctor’s office,” and this court directed moving defendants’ counsel to lead to a point. Id. Moving defendants’ trial counsel continued the line of questioning, asking expert Machac how common a primary care physician would find (patients’) complaint of a headache, and whether a doctor could

“make an assessment and say, well, probably fatigue, it might be a migraine, it might be a stress headache; all within keeping within the standard of care, that patient it could be your patient, walks out the door and blows an aneurism in the brain and dies instantly . . . (and whether that primary care physician would be) guilty for not sending the patient to .... ”Id.

Plaintiff’s counsel began to object anew, and this court sustained the objection. Id.

It is worth addressing the manner in which moving defendants characterize this particular line of questioning. This court disagrees that it limited the questioning on “the central issue” in the case, that the decedent’s death was necessarily an “unforeseen outcome” of “nonspecific complaints,” or that moving defendants’ trial counsel’s line of questioning was a fair hypothetical analogy to the facts of the case. Instead, the particular line of questioning was inflammatory, irrelevant, and misleading to the jury. It certainly is in the trial court’s discretion to disallow such misleading cross-examination. It was inaccurate to analogize one non-specific symptom to the multitude of symptoms with which decedent presented on January 20, 2003, as well as the decedent’s own medical history, and that of his family. This court limited heard, sustained and overruled objections equally with respect to all parties when appropriate throughout trial, and was well within its discretion to limit this particular line of questioning.

Error 11

In their eleventh error complained of on appeal, moving defendants cite to 40 P.S. §1303.512, generally, and claim that this court erred in allowing expert Machac’s expert witness testimony. Moving defendants appeal this court’s decision to allow expert Machac’s testimony because they claim it was precluded under the cited statute, and because expert Machac did not regularly practice as a primary care specialist. This court considers its ruling appropriate and expert Machac’s qualifications to have been more than adequate to allow his testimony.

This court’s ruling was in keeping with Pennsylvania statutory and case law on medical expert witnesses.. The standard for qualifying an expert witness who testifies in a medical professional liability case is partly controlled by 40 P.S. §1303.512, entitled simply “Expert qualifications.” This statute directs, at subsection (a) that

“(n)o person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.” 40 P.S. §1303.512(a).

It continues on that

“(a) court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience, and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable subspecialty or a related field of medicine within the previous five-year period.” 40 P.S. §1303.512(e).

Although an earlier subsection of 40 P.S. §1303.512 directs in part that an expert testifying as to a physician’s standard of care must practice in the same subspecialty as the defendant physician, it is this last subsection at (e) which the court found operative in its ruling. Expert Machac demonstrated his qualifications to be, among others, that of a physician in internal medicine, or internist, a cardiologist, and a nuclear medicine physician. Trial tr. vol. 1, 98, January 26, 2009.

By expert Machac’s testimony while under cross-examination as to his qualifications, expert Machac stated that he saw not only cardiological problems in his patients, but a great number of other internal medicine problems, as well. Trial tr. vol. 1,115, January 26,2009. Expert Machac continued on to demonstrate the necessity of his ability to diagnose and evaluate those other internal medicine problems because of their possible impact on a given patient’s cardiovascular health, as well as overall health. Id. Moving defendants’ trial counsel then objected to expert Machac’s testifying as an expert in the primary care setting, an objection which this court overruled because of the expert’s work in internal medicine generally. Trial tr. vol. 1, 119-121, January 26, 2009.

This court’s ruling is in keeping with a number of cases where there was a similar concern over a trial expert’s qualifications. For example, in the case of Gbur v. Golio, a radiation oncologist was deemed qualified as an expert witness in a case against a physician urologist. Gbur v. Golio, 932 A.2d 203 (Pa. Super. 2007). The radiation oncologist was permitted to testify as to the standard of care and breach thereof by the urologist who failed to adequately diagnose and treat a patient’s prostate cancer which metastasized to the jaw. Id. at 205-206. The Superior Court there held that the oncologist’s qualifications included significant contact with urologists, that the oncologist had treated patients with prostate cancer, and that his testimony did not relate to the substantive field of urology, but to the physician’s failure to properly diagnose and treat the cancer. Id. at 207-208.

Similarly, in the case here, this court allowed the testimony of expert Machac, a physician in internal medicine, or internist, a cardiologist, and a nuclear medicine physician while defendant McBryan was presented as a primary care physician. Further, expert Machac demonstrated that he regularly treated patients with internal medicine problems other than those cardiological, and his testimony with respect to defendant McBryan largely concerned the latter’s failure to diagnose the decedent’s heart attack.

As such, this court believes it did not commit error or abuse its discretion in its ruling, and that its allowance of expert Machac’s testimony was proper.

Error 12

In their twelfth error complained of on appeal, moving defendants claim that this court erred and abused its discretion in denying defendants’ motions for post-trial relief and in awarding delay damages, a contention which goes to post-trial matters. This court’s reasoning in denying the moving defendants’ motions for post-trial relief is explained herein, above. As this court has explained above, it believes its decision to deny moving defendants’ post-trial motions were sound, as the reasons behind those motions were unsupported, and the trial proceeded in accordance with Pennsylvania law.

As to the delay damages, which were unopposed by moving defendants in their post-trial motions, this court awarded the delay damages in keeping with Pa.R.C.P. 238. That rule, entitled “Damages for delay in actions for bodily injury, death or property damage,” directs, in relevant part, that when a plaintiff requests monetary relief for death, damages for delay shall be added to the amount of compensatory damages, and shall become part of the verdict. Pa.R.C.P. 238(a)(1). The court followed the wording of this rule in calculating the delay damages, and in apportioning the delay damages between the wrongful death and survival actions in the same proportion as those actions were represented in the jury verdict, as shown in its December 19,2009 order. Further, upon request by moving defendants, and again in keeping with Pennsylvania law, this court has also granted the moving defendants’ emergency post-trial motion to stay execution on the judgment, and to reduce the amount of appellate security. This court does not believe it erred or abused its discretion in its treatment of the delay damages here, and acted appropriately with respect to same.

Error 13

As to moving defendants’ thirteenth and final error complained of on appeal, moving defendants allege that this court erred and abused its discretion in allowing the judgment to be entered on the jury’s verdict because the jury’s verdict must be set aside, a contention which goes in part to post-trial matters. This court’s reasoning for believing the jury’s verdict to have been sound is explained herein, above. This court does not believe there is merit to moving defendants’ claim that the jury verdict was without sufficient evidentiary support, nor that this court committed an abuse of discretion that would either require the jury verdict to be set aside, or would have precluded this court from entering judgment based on same to be entered in the first place.

Further, the entry of judgment was proper and in keeping with Pa.R.C.P. 227.4 That rule, entitled “Entry of judgment upon praecipe of a party,” directs that the prothonotary shall enter judgment upon praecipe of a party when a court grants or denies relief but does not itself enter judgment or order the prothonotary to do so. Pa.R.C.P. 227.4(2). Accordingly, on January 7,2010, the prothonotary of this court entered judgment on the verdict upon praecipe of plaintiff, and pursuant to Rule 236 of the Supreme Court of Pennsylvania. This court believes there was no error or abuse of discretion in allowing judgment to be entered on the jury’s verdict, nor should the verdict be set aside.

In conclusion, because this court believes moving defendants’ arguments above to be without merit, this court believes that the new trial which moving defendants claim is necessary throughout their errors complained of on appeal, is neither appropriate nor warranted. A new trial is merited only when the verdict is against the weight of the evidence, such that the verdict is so contrary to the evidence presented that the trial’s outcome shocks the conscience. This court firmly believes there was more than ample evidence presented upon which the jury could base the verdict it reached, and the verdict should not be disturbed. Finally, there were no errors of law in the rulings or the charge of the court that would merit a new trial.

For the above stated reasons, this court respectfully recommends that the instant appeal be denied.

The prothonotary shall forward the remainder of the file to the Superior Court.

      . The court had previously granted a nonsuit and directed verdict in favor of defendant Hospital on direct liability, excluding agency grounds.

      . Defendants’ point for charge no. 8 reads as follows:
      “The practice of medicine involves professional skill and training and the application of techniques which are generally beyond the knowledge of individuals who are not physicians. Therefore, in evaluating the conduct of defendants in this case, you are cautioned that you must not substitute your own thinking as non-physicians as to what would be proper treatment under these circumstances, but you must be guided by the testimony of the physicians and experts you have heard testify as to the standard or standards of care applicable under these circumstances and as to whether defendants, in this instance of this case, fell below an acceptable standard of care. Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970); Lambert v. Soltis, 422 Pa. 304, 221 A.2d 173 (1966).”


source: Caselaw Access Project

author: PICCIONE, J.,

license: Public Domain

text:
    Altman v. Penn Power Co.

      Susan M. Papa, for plaintiffs.

      Phillip L. Clark Jr., for defendant.
    May 26, 2010
   PICCIONE, J.,

Before this court for disposition are defendant’s preliminary objections to plaintiffs’ complaint. The current action arises out of the placement of a telephone pole by Pennsylvania Power Company (defendant). Plaintiffs Harry D. Altman and Deborah A. Altman allege that the telephone pole was erected on their property at 134 Saint Clair Lane, Wampum, Pennsylvania.

On August 7, 2009, plaintiffs filed a two-count complaint against defendant with the first count in ejectment and the second count in trespass. In Count I, plaintiffs request that the court order defendant to remove the telephone pole from their property. In Count II, plaintiffs argue that defendant’s encroachment on their property has interfered with plaintiffs’ use and enjoyment of their property. Plaintiffs request that the court enter judgment in their favor in an amount not in excess of $25,000. On August 26,2009, defendant filed preliminary objections to plaintiffs’ complaint. The court held a hearing regarding defendant’s preliminary objections on April 26, 2010.

In the first preliminary objection, defendant asserts that plaintiffs’ complaint fails to conform with Rule 1054 of the Pennsylvania Rules of Civil Procedure because the complaint contains no abstract of title. Further, defendant argues that plaintiffs provide no description of the land that is the subject of their complaint. As a result, defendant requests that the court dismiss plaintiffs’ complaint.

Pa.R.C.P. 1028 states that a preliminary objection may be filed for the “failure of a pleading to conform to law or rule of court[.]” Pa.R.C.P. 1028(a)(2). In an action of ejectment, “[t]he plaintiff shall describe the land in the complaint[,]” and “[a] party shall set forth in the complaint or answer an abstract of the title upon which the party relies at least from the common source of the adverse titles of the parties.” Pa.R.C.P. 1054. The requirement that the plaintiff set forth an abstract of title in a complaint is mandatory, and the failure to do so renders a complaint ineffective. Visconti v. Garcia, 3 D.&C.3d 367, 369 (1977); Goodrich-Amram 2d §1054:2; Standard Pennsylvania Practice §120:57.

Defendant is correct that plaintiffs’ complaint fails to comply with Pa.R.C.P. 1054. The complaint does not contain a description of the land, and it does not set forth an abstract of title. As a result, the court is inclined to grant defendant’s first preliminary objection. The court is not inclined, however, to dismiss plaintiffs’ complaint. “Where a trial court sustains preliminary objections on the merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend.” Jones v. City of Philadelphia, 893 A.2d 837, 846 (Pa. Commw. 2006). “If it is possible that the pleading can be cured by amendment, a court ‘must give the pleader an opportunity to file an amended complaint.... This is not a matter of discretion with the court but rather a positive duty. ’ ” Id. (citing Framlau Corporation v. County of Delaware, 223 Pa. Super. 272, 276, 299 A.2d 335, 337 (1972)). Therefore, defendant’s first preliminary objection is sustained, and plaintiffs are granted leave to amend their complaint so that it may comply with Pa.R.C.P. 1054.

In the second preliminary objection, defendant correctly indicates that the complaint contains the allegation that plaintiffs are being denied the use and enjoyment of their property. Because the complaint contains no specifics as to how plaintiffs have been denied the use and enjoyment of their property, defendant claims to be unable to prepare an adequate defense to plaintiffs’ allegations. Defendant requests that plaintiffs be required to file a more specific pleading.

Pa.R.C.P. 1028 permits preliminary objections based on insufficient specificity in a pleading. Pa.R.C.P. 1028(a) (3). Pa.R.C.P. 1019 provides that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a). The purpose of Rule 1019 is to give the defendant notice of what the plaintiffs’ claim is and the grounds upon which it rests so that the defendant can prepare an adequate defense. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008); Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579, 588 (Pa. Super. 2002). “[T]he complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense.” Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission 950 A.2d 1120, 1134 (Pa. Commw. 2008). In determining whether an allegation is sufficiently specific, the allegation must be read in the context of the rest of the complaint. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission, 950 A.2d 1120, 1134 (Pa. Commw. 2008).

The court agrees with defendant that plaintiffs’ complaint does not give defendant notice of the grounds upon which plaintiffs’ claims rest. Whether read in isolation or in the context of the complaint, the allegation that plaintiffs have been deprived of the use and enjoyment of their property does not allow defendant to prepare an adequate defense. Additional allegations concerning plaintiffs’ claim to the property, the location of the telephone pole, and any other information detailing the denial of plaintiffs’ use and enjoyment of the property would provide defendant with the necessary information to prepare a defense. Therefore, defendant’s second preliminary objection is sustained, and plaintiffs are granted leave to amend their complaint.

In the final preliminary objection, defendant points out that no drawing of the property is attached to the complaint even though plaintiffs allege that such a drawing marked as exhibit A is attached to the complaint. Defendant argues that the failure to attach the drawing is a violation of Pa.R.C.P. 1019 and requests that the court dismiss plaintiffs’ complaint.

As stated above, a preliminary objection may be filed for the “failure of a pleading to conform to law or rule of court[.]” Pa.R.C.P. 1028(a)(2). Rule 1019 states that “[wjhen any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof^.]” Pa.R.C.P. 1019(i). Defendant is correct that no drawing is attached to plaintiffs’ complaint; however, the failure to attach the drawing is not a violation of Pa.R.C.P. 1019(i) because plaintiffs’ claim is not necessarily based on the drawing. In their complaint, plaintiffs must describe the land and set forth an abstract of title in accordance with Pa.R.C.P. 1054. Plaintiffs must also provide further information about the location of the telephone pole and their property as well as how defendant is encroaching upon plaintiffs’ property. If plaintiffs do so, they are not required to attach a drawing of the property to the complaint. Plaintiffs must, however, attach a copy of an exhibit if their complaint indicates that such an exhibit is attached. Because plaintiffs’ complaint does not violate Rule 1019(i) and is not subj ect to dismissal, defendant’s final preliminary objection is overruled.

ORDER

And now, May 26,2010, the court having held a hearing on April 26,2010 regarding defendant’s preliminary objections to plaintiffs’ complaint, with Susan M. Papa, Esquire,, appearing and representing the plaintiffs, and Phillip L. Clark Jr., Esquire, appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

(1) Defendant’s first preliminary objection alleging failure to conform to rule of court is hereby sustained pursuant to the attached opinion.

(2) Defendant’s second preliminary objection alleging insufficient specificity is hereby sustained pursuant to the attached opinion.

(3) Defendant’s third preliminary objection requesting dismissal for failure to attach a writing is hereby overruled pursuant to the attached opinion.

(4) Plaintiffs are granted a period of 20 days from the date of this order to file an amended complaint

(5) The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: McGINLEY, J.,

text:
    Commonwealth v. Lichtenwalner

      Stephen M. Van Natten, chief deputy district attorney, for Commonwealth.

      Robert Long, for defendant.
    May 19, 2010
   McGINLEY, J.,

This is a motion for post-conviction collateral relief filed pro se by defendant on September 29,2005 and amended by counsel on June 9, 2006.

PROCEDURAL HISTORY

On September 22,1998, defendant pleaded guilty but mentally ill to charges of criminal conspiracy (nine counts), arson (nine counts), risking a catastrophe (four counts), and terroristic threats (two counts) in relation to a series of bam burnings and brush fires that took place in rural northern Lehigh County and Northampton County in June and August 1997. In return, an additional five counts of criminal conspiracy, 11 counts of arson, 10 counts of risking a catastrophe, as well as one count of cruelty to animals were not pursued by the Commonwealth. The Commonwealth and defendant agreed to run certain counts concurrent and to a binding minimum sentence in the standard range on several counts. It was also agreed that no limit would be placed on sentencing on four specific counts of arson. There was no other agreement with the exception that the Commonwealth would not oppose a total minimum of 22 years on the four counts of risking a catastrophe, eight counts of arson, and eight counts of criminal conspiracy contained in case number 2881/1997.

On November 30, 1998, we held a hearing pursuant to 42 Pa.C.S. §9727 (disposition of persons found guilty but mentally ill), at which we found that defendant met the criteria for a plea of guilty but mentally ill pursuant to 42 Pa.C.S. §9727. (N.T., defendant’s sentencing hearing, November 30, 1998, p. 8.) Defendant was then sentenced to a cumulative term of29-58 years imprisonment in a state correctional institution, such confinement to include appropriate treatment for his diagnosed mental illness. The sentence was in conformity with the plea agreement. The mínimums were also within the standard range of the sentencing guidelines on all but two cases.

Defendant filed a post-sentence motion to modify sentence on December 9,1998, alleging the sole ground that the sentence imposed is excessive in light of the disparity of the sentence given his co-defendant. (Defendant’s motion to modify sentence, filed December 9, 1998, par. 3.) We denied defendant’s motion by order of December 16, 1998. Defendant filed a notice of appeal on December 30, 1998. The appeal was dismissed by order of the Superior Court of Pennsylvania on October 22, 1999 due to appellant’s counsel’s failure to file a brief.

Defendant filed his pro se motion for post-conviction collateral relief on September 29, 2005. By order dated October 5,2005, we appointed Robert Long, Esquire, to represent defendant; counsel was given 60 days to file an amended petition. Attorney Long filed a request to hire expert and request to extend deadline and both requests were granted by orders datedNovember 30,2005. A second request to extend deadline was granted by order dated March 14, 2006. On June 9, 2006, Attorney Long filed an amended PCRA petition as well as a petition to stay the proceedings. Attached to the petition to stay was an evaluation of Dr. Frank Dattilio, in which Dr. Dattilio opined that defendant was incompetent to proceed with his hearing on the PCRA. The Commonwealth was not opposed to the stay, and by order dated December 21, 2006, the stay was granted.

By order dated June 29, 2009, we denied defendant’s pro se petition for removal of counsel and appointment of new counsel. We further ordered Attorney Long to take steps for a new competency evaluation of defendant. A competency hearing was held, and on January 11,2010, defendant was found competent to assist counsel in his PCRA petition. A PCRA hearing was scheduled for and held March 26, 2010.

FACTUAL HISTORY

In our statement of reasons pursuant to 1925(a) filed June 18,1999, we set forth the following factual history. During the summer of 1997, rural northern Lehigh County, as well as parts of Northampton County, was victimized by a series of bam burnings and brush fires. This reign of terror was comprised of deliberately-set fires occurring on June 13-14 (brush fires/bird pen), June 14 (two brush fires, barn fire), June 16 (bam fire), August 18 (bam fire, vacant house set ablaze), August 21 (two bam fires), August 22 (another two barn fires), August 23 (house under construction set afire), and August 24 (bam fire).

A number of the bams’ owners testified at defendant’s sentencing hearing as to the loss they experienced. For example, the Costello barn, which was destroyed on August 22,1997, had stood since 1874 and is irreplaceable. (N.T., defendant’s sentencing hearing, November 30,1998, pp. 12-13.) Mrs. Dawn E. Costello testified as to the sheer terror she felt as her husband raced into the burning barn in an attempt to save it. {Id. at 14-15.) Mr. Costello narrowly escaped the barn’s flaming roof collapsing on him as he drove one of the family’s tractors from the burning structure. {Id. at 17.) In addition to the loss of their historic treasure, the Costellos incurred a monetary loss of $55,428 which was not covered by insurance. (Id. at 15.) Six volunteer firefighters spent two hours and used 8,000 gallons of water in extinguishing this blaze, which was determined to have been intentionally set by lighting a hay bale located just inside the door of the bam. (Defendant’s pre-sentence investigation report, prepared November 20, 1998.)

The Zellner barn, destroyed on June 14, 1997, had been in the Zellner family for over 80 years, and the victims had a great deal of sentimental value for it. (N.T., defendant’s sentencing hearing, November 30, 1998, p. 22.) The bam itself contained an old wooden grinding wheel that was extremely rare. (Id. at 23.) Eighteen volunteer firefighters spent five and a half hours and 104,000 gallons of water extinguishing this blaze, which state police investigation determined had been intentionally set in a hay storage area inside the west wing of the bam. (Defendant’s pre-sentence investigation report prepared November 20, 1998.) The investigation found that a liquid accelerant was utilized in the setting of this fire. <id.)

Paul Kovalchick testified that he sustained a loss in excess of $40,000, after insurance, from the fire set to his bam on August 18,1997. (N.T., defendant’s sentencing hearing, November 30,1998, p. 29.) Mr. Kovalchick testified that he hurriedly wet down the roof of his adjoining home as sparks from the barn blew onto it. (Id.) Linda Kovalchick, his wife, testified to the sheer horror of not knowing where her husband was as she ushered the couple’s sleepy children out of their home. (Id. at 32.) The loss of the Kovalchick bam was made even more devastating by the fact that defendant could be heard laughing at the scene. (Id. at 34.) The police investigation determined that the fire was intentionally started among two bales of hay in the barn. (Defendant’s pre-sentence investigation report prepared November 20, 1998.) Records of the Germansville Fire Department indicate that 21 volunteer firefighters worked for six hours and used 450,000 gallons of water to extinguish this fire. (Id.)

Glenn Williams, the owner and operator of Riverview Farms, lost a bam which had stood since 1930, and at the time of the fire on August 24,1997 contained “probably the best hay made in the last 20 years.” (N.T., defendant’s sentencing hearing, November 30,1998, p. 37.) This loss severely hampered the feeding of his 700 head of cattle. (Id.) Mr. Williams also testified to the enormous problems he had in securing new insurance after his original insurer gave him notice of its intent to cancel his policy. (Id. at 38.) What’s more, he had to endure the humiliation of originally being suspected by his insurance company of having committed the arson himself. (Id. at 40.) The records of the Lehigh Township Volunteer Fire Company indicated that 780,000 gallons of water were used to extinguish this fire. (Defendant’s pre-sentence investigation report prepared November 20, 1998.) In addition, firefighters were dispatched two additional times as the structure rekindled later in the day. (Id.)

These barns were important to all the county as monuments to the rural culture which is a treasured part of Lehigh County’s heritage.

After a Pennsylvania State Police investigation, defendant was arrested along with his co-defendant on August 27, 1997.

ISSUES

There are two issues regarding defendant’s PCRA petition. First, whether defendant’s PCRA petition is timely under one of the exceptions to the one-year filing deadline. Secondly, whether defendant’s guilty plea is invalid due to defendant’s asserted incompetency.

DISCUSSION

Petitions for collateral relief in criminal cases in Pennsylvania must be filed under the Post Conviction Relief Act, 42 Pa.C.S. §9542 (“The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.”). PCRA petitions must be filed within one year of the judgment of sentence becoming final:

“(b) Time for filing petition.—
“(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
“(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the constitution or laws of this Commonwealth or the constitution or laws of the United States;
“(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
“(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.” 42 Pa.C.S. §9545.

The Act does allow, as indicated, for three exceptions to the one-year requirement. 42 Pa.C.S. §9545(b)(l)(i), (ii) and (iii). However, even those exceptions must be raised within 60 days “of the date the claim could have been presented.” 42 Pa.C.S. §9545(b)(2).

Judgment became final in this matter on November 21, 1999, one month after the Superior Court denied defendant’s appeal. Defendant filed his pro se motion for post-conviction collateral relief on September 29,2005, well after the one-year deadline.

Defendant asserts the second statutory exception to the one-year requirement applies in this case: “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.” 42 Pa.C.S. §9545(b)(l)(ii).

Pursuant to Commonwealth v. Cruz, 578 Pa. 325, 852 A.2d 287 (2004), mental incompetence may qualify under the “after-discovered evidence” exception if defendant can prove (1) he was and remained incompetent throughout the period during which his right to file a PCRA petition lapsed; and (2) that his current petition was timely filed within 60 days of his becoming sufficiently competent to ascertain the facts upon which his underlying claims are predicated.

On March 26,2010, we heard the testimony of Frank M. Dattilio Ph.D., a clinical and forensic psychologist, regarding defendant’s, competency in order to determine whether defendant’s PCRA petition falls within the exception to the one-year time bar. Dr. Dattilio testified that defendant was not competent from September of 1998 to April of2006. He opined that defendant was competent when he stood trial but deteriorated and decompensated subsequent to that date up until the time he was evaluated in 2006. He further testified that it was highly unlikely that defendant was competent for one year cumulatively during the period of time he was incarcerated. N.T., PCRA hearing, March 26, 2010, pp. 9-11.

Dr. Dattilio’s uncontradicted testimony establishes that defendant was incompetent from September 1998 through April 2006. This clearly meets the first requirement that defendant was incompetent throughout the period during which defendant’s right to file a PCRA petition lapsed. We find this testimony is also sufficient to satisfy the second inquiry whether the petition was filed within 60 days of defendant becoming sufficiently competent to ascertain facts upon which his underlying claims are predicated. Defendant filed his pro se motion for post-conviction collateral relief on September 29, 2005. Pursuant to Dr. Dattilio, the pro se motion was filed prior to defendant becoming sufficiently competent and, in fact, the PCRA matter was stayed during defendant’s continued incompetency. The motion, although perhaps premature, was not in jeopardy of being filed after the 60-day time period allotted to qualify under the exception.

We find that defendant’s amended PCRA petition falls within an exception to the one-year deadline and is timely pursuant to 42 Pa.C.S. §9545(b)( 1 )(ii) and (b) (2).

We now address the merits of defendant’s amended PCRA petition. Defendant asserts that he is entitled to relief pursuant to 42 Pa.C.S. §9543(a)(2)(iii), and accordingly, he must plead and prove by a preponderance of the evidence that his sentence resulted from a plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent. Defendant’s amended PCRA petition asserts that defendant’s guilty plea was not knowing or voluntary because he was mentally incompetent at the time it was entered.

Competence to plead guilty depends upon whether the defendant has the ability to comprehend his or her position as one accused of a crime and to cooperate with counsel in making a rational defense. Commonwealth v. Frey, 588 Pa. 326, 904 A.2d 866 (2006), cert. denied, 127 S.Ct. 1157 (U.S. 2007).

Dr. Dattilio testified at the PCRA hearing that defendant was competent during his guilty plea. Dr. Dattilio, reading from his 2006 report of defendant, testified:

“In reviewing my previous psychological evaluation dated August 5,1998, although it was not the request of the evaluation at the time to determine his competency, based on the notes and the report, Mr. Lichtenwalner was competent at that time to stand trial. It appears more likely that the stress of the incarceration and the stress of his psychotic illness to being sentenced to a lengthy period of time incarcerated has contributed to such a severe state of mental illness that he has, unfortunately, remained incompetent since that time.” N.T., PCRA hearing, March 26, 2010, p. 28.

Dr. Dattilio further testified that he automatically assessed whether defendant was competent at the time of the guilty plea; he felt that defendant was competent, and it is still his opinion today that defendant was competent at that time. N.T., PCRA hearing, March 26, 2010, pp. 29,31.

Also at the PCRA hearing, during cross-examination, defendant testified as follows:

“Q. And when you pled guilty do you remember the court asking you questions about the charges — if you understood the charges?
“A. Yeah.
“Q. And you did?
“A. Yeah.
“Q. And you understood that Attorney Seiger was there to represent you at that time?
“A. Yeah.
“Q. And you understood that you were entering a guilty plea at that time?
“A. Yeah.
“Q. And you understood that you would be sentenced based on your guilty plea?
“A. Yeah.
“Q. And did you understand at that time that that could include a state prison sentence?
“A. Yeah.
“Q. And Attorney Seiger didn’t force you to do that? “A. No.
“Q. You chose to do that?
“A. My parents told me I had to do it, so—
“Q. Okay. So you talked to your parents and you listened to your parents?
“A. I was afraid of losing my family, so I did what they told me to do.
“Q. As you sit here today, — you’re admitting to at least to committing four arsons?
“A. Yeah.
“Q. There were many others that you were charged with?
“A. Yeah.
“Q. And you entered guilty pleas, guilty but mentally ill pleas, in all of those cases, right?
“A. I didn’t know law back then. I know law now.
“Q. Okay. Nobody forced you to do that though?
“A. No.” N.T., PCRA hearing, March 26, 2010, pp. 24-26.

Defendant further testified that he did actually commit four of the arsons. N.T., PCRA hearing, March 26,2010, pp. 21, 25. He generally denied one of the fires, stating it could not have been him because the fire started at four in the morning and he had an 11:30 curfew. N.T., PCRA hearing, March 26, 2010, p. 21.

In examining the evidence presented at the PCRA hearing, we find that defendant did not prove by a preponderance of the evidence that his guilty plea was unlawfully induced, and that the inducement caused him to plead guilty, although innocent. We are convinced that defendant was competent at the time he entered his guilty plea, and that he did so knowingly and willingly.

In addition, he openly admitted to committing four of the arsons for which he has been sentenced. Accordingly, defendant’s amended PCRA petition is denied.

ORDER

And now May 19,2010, upon consideration of defendant’s amended motion for post-conviction collateral relief filed with the clerk of courts- — criminal division on June 9,2006, hearing thereon and for the reasons set forth in the accompanying opinion, it is hereby ordered that said amended motion for post-conviction collateral relief is denied.

The defendant is advised that he has the right to appeal from this order to the Superior Court of Pennsylvania by filing a notice of appeal within 30 days of the date of this order.

The clerk of courts is directed to serve a copy of this notice upon the district attorney, counsel for the defendant and upon the defendant certified mail, return receipt requested.

      . As discussed more fully in the procedural history, defendant’s PCRA was stayed for a lengthy period of time due to his incompetence.

      . The court put on the record that the sentence on the two counts of terroristic threats was in the aggravated range of the sentencing guidelines because the charge derived from two separate bomb threats made to a high school, Northern Lehigh. Similarly, the sentence on one of the counts of arson was a minimum sentence in the aggravated range because of the destruction of animals which resulted (two horses died). (N.T., defendant’s sentencing hearing November 30,1998, pp. 60-65.)

      . Co-defendant, Michael Meleschuk, was sentenced to a cumulative term of two and one-half — five years less one day imprisonment in Lehigh County Prison to be followed by 35 years probation supervision for his role in the crimes. (Case numbers 2886, 2887/1997, 330/1998.)


author: GEORGE, J.,

text:
    Loss-Stair Engineering Inc. v. Bon-Ton Builders Inc.

      John Mooney, for plaintiff.

      Douglas Gent, for defendant.
    June 8, 2010
   GEORGE, J.,

Appellant, Bon-Ton Builders Inc., challenges judgment entered against them and in favor of appellee, Loss-Stair Engineering Inc., following a non-jury trial. Based upon findings of fact memorialized by this court’s order dated October 20, 2009, judgment was entered in favor of appellee and against appellant in the amount of $63,215.75. Judgment was also entered in favor of the appellee on appellant’s counterclaim. After this court denied appellant’s post-trial motions, this appeal follows.

Appellant is a professional corporation engaged in building and developing residential properties. Appellee, also a professional corporation, is in the business of offering professional civil engineering services. On or about August 14,2005, the parties entered into a written agreement for the development of a 75-acre tract of property to be known as the “Crosswinds” project. The contract required appellee to perform engineering services for the project at a contract price of $2,200 per lot. After the project commenced, several modifications by appellant required appellee to perform services not originally contemplated. Appellee subsequently submitted invoices to appellant for services claimed to have been performed. The amount of the invoices and services performed was disputed by appellant. In an effort to resolve, inter alia, the fee dispute, the parties met on September 21,2007. As a result of the meeting, the parties reached an agreement resolving the Crosswinds fee dispute.

Concurrent with the Crosswinds project, the parties entered into an oral agreement wherein appellee would provide engineering services to appellant for a second development project known as “Twin Ponds.” Ominously, the Twin Ponds project involved an anticipated subdivision of property for which appellant had entered an intent to purchase agreement with the property’s owner, David Stair, who coincidently was a principal in appellee corporation. The intent to purchase agreement contained a fluctuating purchase price of $ 1,700,000 for a 34-lot development or $1,600,000 for a 33-lot development depending on the results of a feasibility study. The intent to purchase agreement was entered on January 14, 2006. On July 26, 2006, appellee submitted a 35-lot sketch plan to the appropriate municipal jurisdiction. Thereafter, on October 26, 2006, appellant entered into a sales agreement with Stair for the purchase price of the property at $1,700,000.

On May 7, 2007, appellee submitted a preliminary subdivision plan to the relevant municipality. At approximately that same time, appellee contacted a firm to provide a preliminary hydrogeological study for the Twin Ponds subdivision. As a result of that contact, appellee learned for the first time that a preliminary hydrogeological study had been performed in 2006. The results of that study limited the number of lots in the proposed subdivision to 27.

At the previously referenced meeting of September 21, 2007, the parties also resolved outstanding issues concerning the Twin Ponds project including, inter alia, those related to the lot discrepancy. The resolution called for appellant to make payment to appellee in an amount of $3,750 per lot for a 27-lot Twin Ponds subdivision in exchange for engineering services at the property. On that same date, appellant paid appellee $10,354.70 for the Twin Ponds project as discussed and agreed between the parties.

In reliance upon the September 21, 2007 agreement, appellee provided services for the Twin Ponds subdivision approval. Subsequent reluctance by appellant to pay for the services rendered has resulted in a termination of the parties’ relationship and failure to obtain the final subdivision approval for the Twin Ponds project. This court determined that the value of the services provided by appellee upon the parties’ previous agreement totaled $98,010.81 plus reimbursable expenses in the amount of $7,359.64. Judgment was entered in that amount minus a credit for sums previously paid by appellant. Appellant currently challenges the judgment arguing that it is against the substantial weight of the evidence. In support of the claim, appellant raises 18 allegations of error allegedly committed by the court in weighing the evidence.

The scope of review of a verdict entered in a non-jury case is limited to determining whether its factual findings are supported by evidence or whether the court made a legal error. Hester v. Pennsylvania Financial Responsibilities Signed Claims ACP, 743 A.2d 926 (Pa. Super. 1999). A judgment n.o.v. may only be properly entered by a court in a clear case where all reasonable minds would agree that the verdict is improper even after the verdict winner has been given the benefit of every available inference of fact arising from the evidence. Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229 (2008). Importantly, the trial court’s assessment of the credibility of witnesses is binding absent an abuse of discretion. Thatcher’s Drug Store of West Goshen Inc. v. Consolidated Supermarkets Inc., 535 Pa. 469, 477, 636 A.2d 156, 160 (1994). An abuse of discretion does not occur where there is a mere difference of opinion regarding an interpretation of the facts; rather, an abuse of discretion is found only in flagrant cases where there is not a substantial ground for a difference of opinion. Viener v. Jacobs, 834 A.2d 546, 556 (Pa. Super. 2003). Where the trial court sits as the finder of fact, the trial court’s findings are controlling unless those findings are not based upon competent evidence. Id., 834 A.2d at 554. The weight to be assigned to the testimony of the witnesses and credibility determinations are within the exclusive province of the trial court as the court is free to believe all, part, or none of the evidence presented. Mackay v. Mackay, 984 A.2d 529 (Pa. Super. 2009).

A review of the appellant’s allegations of error reveals that the majority of those allegations do not challenge this court’s factual findings as being unsupported by sufficient evidence but rather challenge this court’s failure to make certain findings suggested by appellant. Specifically, 16 of the 18 challenges claimed that the court “erred in failing to find” or “failed to consider” evidence which appellant apparently thought to be important. Each of these claims are meritless in light of the well-settled law cited above which instructs that the trial court, sitting as fact-finder, is free to believe all, part, or none of the evidence presented. See also, Stokes v. Gary Barbera Enterprises Inc., 783 A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723, 797 A.2d 915 (2002). Appellant mistakenly concludes that this court failed to consider testimony when, to the contrary, this court considered all of the testimony however found the testimony of appellant’s witnesses to lack credibility on several key points. Thus, appellant does nothing more than improperly challenge this court’s credibility determinations. The apparent difference of opinion as to what evidence was credible, and therefore deserving of weight, is not an appropriate basis to overturn the verdict. See Viener v. Jacobs, supra.

Appellant’s remaining two challenges are equally meritless. Appellant claims that the court erred in finding as fact that the preliminary hydrogeological study conducted prior to June 30,2006 was unknown by appellee until late May or early June of 2007. Contrary to appellant’s claim, the record amply supports this court’s conclusion concerning appellee’s first knowledge of the existence of the hydrogeological study. See trial transcript, pp. 17,59, and 68. Observing the demeanor of the witnesses during the course of trial, this court found appellee’s testimony credible. As this testimony supports the court’s findings of fact, appellant’s claim lacks merit. In reality, it is nothing more than a camouflaged attempt at requesting an appellate court to improperly make factual findings contrary to the credibility determination of the fact-finder.

Similarly, appellant’s claim that the court’s finding as to the terms of a September 21, 2007 settlement agreement are unsupported by the record is equally meritless. Exhibits introduced at trial clearly support this court’s factual finding. See exhibit F and exhibit G. Incredulously, appellant’s own pleadings support this court’s finding. In paragraph 44 of appellant’s answer and new matter, appellant alleges that the terms of the parties’ September 21, 2007 agreement are reflected in a letter attached to the pleading as an exhibit (trial exhibit G). The exhibit reflects that appellant agreed to sign a revised contract for the Twin Ponds project in the amount of $101,250 which, incidentally, is the amount calculated in trial exhibit F (a calculation of 27 developed lots at $3,750 per lot totaling $ 101,250). Appellant’s allegation was admitted in appellee’s answer to new matter thereby conclusively establishing this issue. See Gibbs v. Herman, 714 A.2d 432 (Pa. Super. 1998) (averments in the pleadings constitute binding judicial admissions, conclusive in their nature). Thus, appellant’s claim that this court erred in accepting as fact an affirmative admission in appellant’s pleading is ludicrous.

Notably, the volume of allegations raised by appellant does not overcome their lack of merit. As the factual findings of this court are supported by the record, it is respectfully requested that the judgment be affirmed.

      . In Estate of Lakatosh, 441 Pa. Super. 133, 136 n.1, 656 A.2d 1378, 1380 n.1 (1995), a panel of the Superior Court quoted with approval the following observation from United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982):
      “With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court, it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors .... [Wjhen I read an appellant’s brief that contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not by loquaciousness.”


author: DANTOS, J.,

text:
    Commonwealth v. Clemons

      Tonya H. Tharp, senior deputy district attorney, for Commonwealth.

      Eric K. Dow die, for defendant.
    April 14, 2010
   DANTOS, J.,

On February 23,2010, defendant, Eddie Clemons, after a jury trial, was found guilty of firearms not to be carried without a license. Additionally, on the same date, this court found the defendant guilty of person not to possess, use, manufacture, control, sell or transfer firearm, and the summary offenses of disorderly conduct and reckless driving. Thereafter, on April 1, 2010, this court sentenced the defendant to the following: Count 1: person not to possess, use, manufacture, control, sell or transfer firearm, imprisonment in a state correctional institution for a period of not less than five years nor more than 10 years; Count 2: firearms not to be carried without a license, imprisonment in a state correctional institution for a period of not less than three and a half years nor more than seven years. Count 2 was ordered to run concurrently to Count 1. Count 3: disorderly conduct, a fine of $300; and Count 6: reckless driving, afine of $200. Presently before this court is defendant’s post-sentence motion pursuant to Pennsylvania Rule of Criminal Procedure 720. In his post-sentence motion, the defendant filed a motion for a new trial, challenging the weight of the evidence with regards to firearms not to be carried without a license and person not to possess, use, manufacture, control, sell or transfer firearm.

A. CHALLENGING THE WEIGHT OF THE EVIDENCE

The defendant alleges that the verdict was against the weight of the evidence with regards to Counts 1 and 2. This court notes that a motion for a new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict, but contends that it is against the weight of the evidence. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000); Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003). Furthermore, a challenge that the verdict is against the weight of the .evidence requires this court to conclude in its discretion that “the verdict is so contrary to the evidence as to shock one’s sense of justice.” Commonwealth v. Lyons, 833 A.2d 245, 259 (Pa. Super. 2003). Indeed, “for a new trial to lie on a challenge that the verdict is against the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa. Super. 1998). See also, Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

In the instant case, trial testimony revealed that on April 10, 2008, the defendant, Eddie Clemons, was operating a motorbike on S. Carlisle Street, Allentown, Lehigh County, that appeared to be unregistered and lacking a license plate and stickers. (C. exibit 6.) Officer Ryan Koons of the Allentown Police Department yelled for the driver of the motorbike to stop, but the operator of the vehicle ignored his directives, whizzed past the officer, and ran the stop sign at S. Carlisle and E. Walnut streets. The driver lost control of the motorbike and crashed near the intersection of S. Carlisle and E. Walnut streets. (C. exhibit 5.) The operator then fled on foot down S. Carlisle Street and turned onto E. Hickory Street. (C. exhibit 4.) Officer Koons pursued the individual on foot.

During the foot chase, Charles Rodriguez, a City Line Construction worker who was restoring a carport located on E. Hickory Street, observed a black male with a gun in his right hand, running down E. Hickory Street. (C. exhibit 1.) At the time of this observation, Mr. Rodriguez was sweeping out the carport that was located approximately five to eight feet from the street. (C. exhibit 1.) Mr. Rodriguez described the gun as a “pistol” that was “chrome/shiny.” (C. exhibit 3.) Mr. Rodriguez also noted that Officer Koons was approximately 20 to 30 feet behind the suspect. Mr. Rodriguez witnessed the running black male toss the firearm into a City Line Construction dumpster that was located at the corner of E. Hickory and S. Dauphin streets, prior to his apprehension by Officer David Layton. (C. exhibit 2.) (D. exhibit 1.) Immediately thereafter, Mr. Rodriguez informed the officers of his observations. Officer Layton climbed into the dumpster and recovered a semiautomatic handgun with one Winchester .40 caliber bullet in the chamber, but no clip. (C. exhibit 3.) The officers retraced the path of the foot chase, and the magazine clip containing 10 .40 caliber Smith and Wesson rounds was recovered at the corner of S. Carlisle and E. Hickory streets. (C. exhibit 1.) (C. exhibit 7.) (C. exhibit 8.) It is undisputed that the defendant does not possess a license to carry a firearm. (C. exhibit 9.)

By tracing the serial number on the firearm, it was determined that the owner of the gun is Jeremy Roberts. Mr. Roberts resides in the 800 block of Turner Street, Allentown, Lehigh County, in the building next to the defendant’s former address. (C. exhibit 10.) Mr. Roberts did not report the gun stolen or missing.

From the evidence recounted above, it is reasonable for the jury to have concluded that the defendant possessed a firearm on the day in question. Indeed, an unbiased witness, Mr. Rodriguez, witnessed a black male throw a gun into a City Line Construction dumpster and reported the same to the officers within one minute of the defendant being taken into custody. Although Mr. Rodriguez was unable to identify the defendant as the person who threw the gun into the dumpster, Officer Koons identified the defendant as the operator of the motorized minibike, and as the person taken into custody on S. Dauphin Street immediately thereafter. Moreover, acting on the information provided to him by Mr. Rodriguez, Officer Layton climbed into the dumpster and, in fact, recovered a firearm. Furthermore, the magazine was found on the path that the defendant took during his attempt to elude the authorities. Additionally, it is stipulated that the defendant did not have a license to possess a firearm. In light of the foregoing, the jury’s determination of defendant’s guilt on the charge of firearms not to be carried without a license is reasonable. Similarly, this court’s conclusion that the defendant committed the offense of person not to possess, use, manufacture, control, sell or transfer firearm is logical and rational. The evidence presented at the time of trial was not tenuous, vague or uncertain as to cause the verdict to shock one’s sense of conscience. Accordingly, the defendant’s challenge to the weight of the evidence must fail.

ORDER

Now, April, 14 2010, upon consideration of defendant’s post-sentence motion pursuant to Pennsylvania Rule of Criminal Procedure 720, and for the reasons expressed in the accompanying opinion, it is hereby ordered that defendant’s post-sentence motion pursuant to Pennsylvania Rule of Criminal Procedure 720 is denied.

      . 18 Pa.C.S. §6101(a)(1).

      . 18 Pa.C.S. §6105(a)(1).

      . 18 Pa.C.S. §5503(a)(4).

      . 18 Pa.C.S. §3736(a).

      . Officer Koons was located on the northwest corner of S. Carlisle Street at the intersection of E. Walnut Street with several other uniformed officers conducting an unrelated investigation. Officer Koons heard and viewed the motorized minibike heading towards him from about 100 yards away, originating at Hamilton/S. Hanover Avenue. This occurred at approximately 4 p.m. on a sunny day and Officer Koons had an unobstructed view of the driver. The driver of the motorized minibike was identified as the defendant.

      . The individual was approximately eight to 10 feet from Mr. Rodriguez when he ran past him. (C. exhibit 1.)

      . The subject firearm was displayed to the jury. (C. exhibit 3.) Defendant argues that the witness’ testimony is fatally flawed because the gun was gray and/or black and did not have any chrome features. (C. exhibit 3.) However, Mr. Rodriguez described the gun as “shiny from reflections,” and Officer Koons described the firearm as having “chrome pieces.” (C. exhibit 3.)

      . Officer Koons testified that the defendant was approximately 1/2 block ahead of him during the foot chase. Additionally, Officer Koons lost visual contact of the defendant for only four to six seconds when the defendant rounded onto E. Hickory Street, and again when the defendant turned onto S. Dauphin Street.

      . The 30 cubic yard dumpster belonged to City Line Construction and was being utilized by the workers as a depository for the debris from the fire-damaged carport. (C. exhibit 2.) (D. exhibit 1.)

      . When the defendant turned the corner from E. Hickory Street onto S. Dauphin Street and saw Officer Layton, the defendant “gave .up” and stopped running immediately.

      . Officer Layton pursued the defendant in his police cruiser, heading southbound on S. Carlisle and then eastbound on E. Walnut Street. Officer Layton exited his patrol car at S. Dauphin and E. Walnut streets, and observed the defendant running northbound on S. Dauphin Street directly at him.

      . Only approximately 30 seconds elapsed from the time that the defendant was in custody to the time that Mr. Rodriguez approached the officers.

      . The firearm was operational. No fingerprints could be lifted from the firearm. (D. exhibit 2.)

      . Officer Layton testified that once he climbed into the dumpster, he observed a black and silver handgun in plain view on the floor of the dumpster.

      . No fingerprints were recovered from the bullets or the magazine. (D. exhibit 2.)