author: McGINLEY, J,

text:
    Carvalho v. Homesite Insurance Company of Pennsylvania

      Robert M. Davison, for plaintiffs.

      Joseph N. Bongiovanni, for defendant.
    July 15, 2010
   McGINLEY, J,

Plaintiff Maria Carvalho filed a breach of contract action against Homesite Insurance Company of Pennsylvania to determine if she was improperly denied insurance coverage on a property she owned that was destroyed by vandalism. Anon-jury trial was held on August 5,2009. By decision dated December 21, 2009, an award was entered in favor of plaintiffs and against Homesite in the amount of $127,187.50. On March 31, 2010, Homesite’s post-trial motions were denied, and the instant appeal followed. This opinion is to provide our reasons for denying Homesite’s post-trial motions.

FACTS

Carvalho purchased the property at issue located at 219 West Ridge Street, Lansford, Carbon County, PA 18232 onAugust21,2007. The property required extensive repairs and rehabilitation before it could pass code and be determined habitable. (Joint stipulation, para. 3.) On September 4, 2007, Carvalho executed a contract with Dave’s Home Improvement to install dry wall and floors, to paint doors, and to make many other improvements for a cost of $19,800. (J.S., para. 10.) On October 4, 2007, Carvalho signed an agreement to have a boiler installed at a cost of $7,000. (J.S.,para. 11.) OnNovember 13,2007, Carvalho signed an agreement with Pierce Electric Company to upgrade the electric service and add smoke detectors for a cost of $7,000. (J.S., para. 12.)

On October 27, 2007, Carvalho’s insurance through Nazareth Mutual Insurance Company was denied due to “lack of maintenance.” (J.S., para. 6.) Carvalho had represented to Nazareth on August 24, 2007, that the premises was occupied, that her tenant would have liability insurance, that the property was not under or in need of any renovations, repairs, or general maintenance, and that the tenant’s name and telephone number would be provided in the future. (J.S., para. 5.) Carvalho testified that there was a mistake with the policy if it stated that the home was occupied and not in need of repairs. (N.T., pp. 35-36.) She further testified that at the time she applied for insurance with Nazareth she intended on renting the property. (N.T., p. 37.) She subsequently changed her mind and intended on using the home as a second residence that would eventually become her primary residence. (N.T., p. 38.)

Carvalho sought insurance for the property with Homesite and made an oral application for homeowner’s insurance on October 30, 2007. (J.S., para. 7.) Carvalho was issued coverage effective October 31,2007 and the policy was issued. Carvalho agreed to be bound by the terms and conditions of the policy. (J.S., para. 9.)

Subsequent to her application with Homesite, Carvalho sought mortgage financing for the subject property with Ambient Mortgage LLC/plaintiff Flag Star. When the property was used as security, her application was denied. (J.S., para. 14.) Upon subsequent application, she obtained a mortgage in the amount of $48,000. (J.S., para. 15.) Per the loan documents, Carvalho represented that the subj ect property was an investment property, that a tenant would reside in the premises and obtain insurance, and that all renovations were complete. (J.S., para. 16.) The mortgage documents contain a residential lease executed on November 12,2007, between Carvalho and tenant Jose Ortiz. (J.S., para. 17.) Carvalho also completed an affidavit of occupancy wherein she represented that the property at issue is an investment property, “Not owner occupied. Purchased as an investment to be held or rented.” (J.S., para. 18.)

Carvalho testified, however, that there was never a tenant in the house. (N.T., p. 23.) When asked to explain why she signed a lease if she did not intend on renting the property, she stated:

“I applied for a loan and the bank said that I needed more income. I said, well, I don’t have no more income. She said this is only for the bank. I said but I don’t have ‘em. She said just give me a lease and the bank will loan the money. I said but I don’t have any. She said it’s only for the bank, you don’t got to worry about it. So we made a lease for the bank to loan the money.” (N.T. p. 23.)

Carvalho testified that when she first purchased the property she thought about renting it, but after it was fixed up she decided to keep it as a second home because she wanted to move out of Allentown. (N.T., p. 14.) She stated that the property looked really nice after the contractor fixed it and it was a bigger place to live and it is less expensive to live there. (Id.)

On December 29, 2007, the property at issue was vandalized, a fire was intentionally set and the fire destroyed the property. (N.T., p. 19.) At the time of the fire, the property was vacant and a certificate of occupancy had not yet been issued, nor had any final inspection taken place. (N.T., p. 20.) Carvalho never resided in the property and never moved any of her personal belongings into the property. (N.T., p. 21.)

After the fire, Carvalho filed a claim with Homesite for the policy proceeds; the request for insurance coverage was denied on March 13, 2008. The house has been condemned and the cost to demolish and haul away the debris was $10,937.50. The cost to replace the home is $143,250. (N.T., p. 25.)

Homesite’s 1925(b) statement provided three issues complained of on appeal. First, Homesite asserts that this court erred in denying its motion for post-trial relief because plaintiffs failed to produce evidence that the subject property constituted a “residence premises”. “Residence premises” is defined in part in the policy as “the one family dwelling where you reside and which is shown as the ‘residence premises’ in the declarations.” (Exhibit E.)

Homesite contends that Carvalho is not entitled to coverage because she never resided in the subject property. However, the policy does not define “reside”. There is no parameter for the amount of time a homeowner must spend in the property before it is her residence. Carvalho testified that she spent time, albeit limited time, visiting the property prior to the fire, and that she intended on moving personal property into the property so that she could use it as a second residence.

In addition, Carvalho was forthcoming in her oral application for insurance that nobody was living in the house at the time she was requesting insurance. The following conversation took place during the phone application:

“Gwen: And how are you using that second home?
“Ms. Carvalho: Well, right now it’s — I have it for the —a family member is going to be living there. They’re just going to live there and help me with the — there’s going to be — right now there’s no mortgage, but I’m thinking about later on. But right now there’s no mortgage.
“Gwen: So, this will be your primary house?
“Ms. Carvalho: No. No. It won’t be my primary. I already have a primaiy ....
“Ms. Carvalho: . . . Right now — if anybody’s going to be living there it will be not to be rented. . . .
“Gwen: And it will be just your family lives there, if anybody—
“Ms. Carvalho: Yeah.
“Gwen: Right? The total number of people that will be in the house?
“Ms. Carvalho: Right now there will probably only be about three or four.” (Pages 2-3, 8, 16-17.)

The policy became effective the day after the oral application was made, at which time the insurance company knew or should have known that nobody was living in the home. The insurance company issued the policy. At the time of the issuance, it was understood by all parties that the subject property would be the “residence premises” even though no one was residing in the home. We find sufficient evidence existed at the time of trial to find that the subject property was the residence premises under the insurance policy at issue.

Secondly, Homesite asserts that this court erred in denying its post-trial motions because the subject property was vacant for 30 consecutive days prior to the fire and the fire was an act of vandalism.

Homesite’s insurance policy states in part:

“We insure against risk of direct loss to property described in coverages A and B only if that loss is a physical loss to the property. We do not insure, however, for loss:... (2) Caused by:... (d) Vandalism and malicious mischief if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant.” (Exhibit E.)

We find that this property is not considered vacant under the above language because it was a dwelling being constructed. Carvalho stipulated that she never lived in the property. In fact, she did not move her belongings into the property because she was waiting for the certificate of occupancy to be issued. There is no evidence that Carvalho did anything to interfere with getting the certificate of occupancy, without which she was not able to fulfill the obligation of keeping the property occupied. She was not asked at the time of her application for insurance if the property had a certificate of occupancy.

Until the issuance of the certificate of occupancy, the property could not be considered vacant. Accordingly, the vandalism exclusion does not apply in this case.

Finally, Homesite asserts that this court erred as a matter of law or abused its discretion in denying its motion for post-trial relief where Carvalho made material misrepresentations about the condition of the property in applying for the policy, and made material misrepresentations about whether she intended to rent the premises.

Homesite’s policy provided:

“(2) Concealment or fraud. This entire policy will be void if, whether before or after a loss, an ‘insured’ has
“(a) Intentionally concealed or misrepresented any material fact or circumstance;
“(b) Engaged in fraudulent conduct; or
“(c) Made false statements; relating to this insurance.” (Exhibit E.)

First, Homesite states that it may rescind its policy based on the material misrepresentations made by Carvalho regarding the condition of the property. During the oral application, the following occurred:

“Gwen: Okay. And the wiring, has your electrical been upgraded in the house?
“Ms. Carvalho: I actually just got electric- — it just got upgraded just now—
“Gwen: Okay.
“Ms. Carvalho: — from a 60 to a 100 ....
“Gwen: Okay. And the heating system, how old is that heater?
“Ms. Carvalho: It’s brand new. Just put in about a week ago.” (Exhibit D, pp. 22-23.)

Carvalho’s trial testimony provided that at the time of the oral application, the new electrical panel was in the property, the electric was on and operating and everything was running. Carvalho believed that the home was habitable at that time because the electricity was on and operating. She spoke with the electrician in October and he started in November; he upgraded the electric from 60 amps to 200 amps and checked where wires went, put more breakers in and added smoke alarms. (N.T., pp. 18-20.)

We find Carvalho credible and find that the information she provided during the phone application was to the best of her knowledge at the time and given in a general manner. We do not find that the answers were intentionally concealed or misrepresented. In addition, we do not find that they were false. Carvalho may have been mistaken as to the timing of some of the repairs, but the repairs were made and she did rehabilitate the house. Therefore, we find that Carvalho did not say or do anything during the insurance application that would allow Homesite to rescind the policy.

Lastly, Homesite argues that Carvalho misrepresented her intentions regarding the use of this home. Again, we find Carvalho’s testimony credible. She testified that her original intentions included a possibility of renting the property, but after it was fixed she decided to keep it as a secondary home. (N.T., pp. 14, 38.) It looked really nice, it was bigger and cheaper to live there. (N.T., p. 14.) This is consistent with the information she provided during the oral application. (Exhibit D, pp. 7-8.)

Carvalho did provide a fraudulent rental lease to Ambient Mortgage; however, she testified that she only signed it because the bank had suggested it in order to prove that she had additional income. (N.T., p. 23.) Her testimony is consistent with the fact that her first mortgage application, filed without rental income, was denied. (Exhibit J.) She testified that she never received the security deposit indicated in the lease. (N.T., p. 33.) She had no intention of renting the home to Jose Ortiz, her friend’s son. (N.T., p. 34.) We believe her testimony that she ripped up the lease after providing it to the bank and never received any rent money. (N.T., p. 54.)

Carvalho misrepresented herself to the bank, but not to her insurance company. Although we certainly do not condone such action, said misrepresentation did not impact the information provided to her insurance company. She changed her intentions from possibly renting the home to using it as a secondary home. She made her intentions clear during the phone application. The policy, therefore, cannot be rescinded based on any misrepresentation or fraud regarding how Carvalho intended on using the property.

For all of the above reasons, we found that the insurance policy was in place at the time of the fire. The vandalism exclusion did not apply to the facts of this case because Carvalho never had an opportunity to move into the home. Accordingly, Carvalho was entitled to the proceeds of the insurance policy in the stipulated amount of$140,735.26.

      . Based on the stipulation of counsel, the award was amended to $140,735.26 to include prejudgment interest.

      . Carvalho testified that in November of 2007 she went to the property four or five times and in December of 2007 she went to the property four or five times. Each month she had three one-day trips and one weekend-long trip. (N.T., p. 30.)


source: Caselaw Access Project

author: CHARLES, J.,

license: Public Domain

text:
    Commonwealth v. Enck

      Megan Ryland-Tanner, for Commonwealth.

      Robert B. Keys Jr., for defendant.
    August 10, 2010
   CHARLES, J.,

The question before us is whether the defendant, John Enck, was subject to “custodial interrogation” while police were executing a search warrant at his home. Although factors exist that support both sides’ positions on this issue, our conclusion based upon the totality of circumstances presented is that the defendant was subjected to a custodial interrogation without first being advised of his so-called ‘Miranda warnings.” Accordingly, and for reasons that we will articulate in more detail below, we will be granting the defendant’s motion to suppress the statements he uttered to police.

I. FACTS

On June 15, 2009, a team of police led by Lebanon County Detective Jason Cleck arrived at the defendant’s residence in order to execute a search warrant. The warrant was issued by a magisterial district judge because the Commonwealth possessed probable cause to believe that the defendant possessed child pornography on his computer. The primary focus of Detective Cleck and his team was to secure any computers that were located inside the defendant’s residence.

Upon arrival, the defendant’s dogs created some commotion. The defendant appeared reluctant to secure his dogs. As a result, Detective Steven Bord said to the defendant: “Restrain your dogs so I do not have to shoot them.” After additional discussion, the defendant did place his dogs in the backyard and the police entered the residence.

Detective Cleck explained to the defendant that he possessed a search warrant because he suspected that child pornography would be located on the defendant’s computer. Detective Dominic Visconte advised the defendant that he was not under arrest and that he could leave his home if he chose.

The defendant did not wish to leave his home. Therefore, police told the defendant that he would have to stay in one location and that he would not be able to leave that location while police were present. The defendant chose to sit in his living room. A police officer was assigned to stand right next to the defendant in order to make sure that he did not move around his house while police were conducting their search. The defendant was told by police that this officer was present “to keep an eye on him.”

While police were searching the defendant’s home, they located several computers. When they did so, Detective Cleck would ask the defendant who used each computer. In addition, the defendant was asked about his familiarity with terms that are frquently used by those who view and exchange child pornography on the computer. The defendant responded to each of Detective deck’s questions. At one point, the defendant asked Detective Cleck: “What charges am I facing?”

Child pornography charges were eventually filed against the defendant on August 27, 2009. The pretrial motion sought to suppress all statements made by the defendant as a result of Detective deck’s questioning. We conducted a pretrial hearing on June 30,2010. Thereafter, we asked for briefs from the parties. These briefs have been received. The issue raised by the defendant is now before us for disposition.

DISCUSSION

Everyone involved in this case agrees that the defendant was never advised of his so-called “Miranda rights” prior to being questioned by Detective Cleck. Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, statements made by a suspect while subject to “custodial interrogation” are inadmissible unless the suspect is first read his Miranda rights. The parties to this dispute vigorously contest whether the defendant was subject to “custodial interrogation.” Our decision today will hinge upon whether the defendant was or was not “in custody” when he answered Detective deck’s questions.

Police officers are required to provide so-called ‘Miranda warnings” to any suspect who is subjected to a custodial interrogation. Commonwealth v. McAliley, 919 A.2d 272 (Pa. Super. 2007). When an individual is placed under arrest, he is always considered to be “in custody.” Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008). However, “custody” for purposes of Miranda transcends formal arrest. A suspect may be considered “in custody” whenever his/her freedom is deprived in any significant way. Commonwealth v. Elchinger, 591 Pa. 1, 915 A.2d 1122 (2007).

“Custodial interrogation has been defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.”’ Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999), quoting in part Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966).

“‘Interrogation’ is police conduct ‘calculated to, expected to, or likely to evoke an admission.’” Mannion, supra at p. 200, quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969).

The analysis of whether a defendant is “in custody” is fact-specific, and must be made on a case-by-case basis. Commonwealth v. DeJesus, 567 Pa. 415, 787 A.2d 394 (2001); Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d 1323 (1988). In determining whether an individual was “in custody,” our inquiry should focus upon whether the suspect “reasonably believes” that his or her freedom of movement has been restrained in any significant way. Commonwealth v. Eichinger, supra. The test for custodial interrogation does not depend upon the subjective intent of the law enforcement investigator, but whether upon what the suspect reasonably believes about his freedom of movement. Commonwealth v. Sepulveda, 579 Pa. 217, 855 A.2d 753 (2004).

Factors that we must consider in assessing whether a defendant is “in custody” include the following:

(1) Whether the defendant was the focus of an investigation. Commonwealth v. Jones, 758 A.2d 228 (Pa. Super. 2000).

(2) Whether the defendant’s freedom of action or movement was restricted in any way. Commonwealth v. Sepulveda, supra.

(3) Whether the defendant was advised that he or she was not under arrest. Commonwealth v. DiStefano, 782 A.2d 574 (Pa. Super. 2001).

(4) The length of the detention. Commonwealth v. DiStefano, supra.

(5) The location of the detention and whether the defendant was transported to that location by police. Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001).

(6) Whether the police showed, threatened or used physical force. Commonwealth v. DiStefano, supra.

The case of Commonwealth v. Brodo, 262 Pa. Super. 375, 396 A.2d 802 (1979) involved questions posed by police to a defendant while he was inside his home. The defendant claimed that he was subject to a custodial interrogation. The court recognized the general proposition that “a suspect actually may be in custody even if the police have not taken him to a police station or formally arrested him.” Id. at 805. Nonetheless, the court noted that police had asked “only two short questions.” Because the interrogation was “short and occurred in appellant’s own home,” the court determined that the defendant was not subject to a custodial interrogation.

On the other hand, the court in Commonwealth v. Zogby, 455 Pa. Super. 621, 689 A.2d 280 (1997), determined an in-home questioning to be “custodial.” In Zogby, police were investigating a hit-and-run accident. Police officers were admitted into the defendant’s house by a roommate. They awakened the defendant from a sound sleep and told him to come outside in order to answer questions about the side of his car. The court found that the police conduct in Zogby was sufficiently coercive that it could be classified “custodial interrogation.”

In this case, the Commonwealth argues that no “custodial interrogation” occurred because the defendant was told he was not under arrest and was free to leave his house. We acknowledge that these are both factors that weigh in favor of the Commonwealth’s position. However, as far as we can see, these are the only factors that weigh in favor of the Commonwealth.

Many factors exist that weigh in favor of the defendant. Some of those factors include the following:

(1) The defendant was told that he would have to sit in one place and not move during the police search.

(2) An officer was assigned to stand next to the defendant in order to “keep an eye on him.” The defendant could have reasonably believed that the officer was present to make sure that he would comply with police instruction not to move.

(3) Police advised the defendant early in the encounter that they would shoot his dogs unless the defendant secured them.

(4) The defendant was told that police were present at his house to execute a warrant that related to possession of child pornography. By its very nature, a search warrant is a coercive device.

(5) The nature of Detective deck’s questions were anything but innocuous. Detective deck asked critical investigative questions such as “who used this computer” and “what does this particular phrase mean” in a clear effort to obtain inculpatory information. By its very nature, accusatory questioning can be reasonably viewed as coercive.

(6) Police stayed inside the defendant’s home for 45 to 50 minutes. This is a relatively lengthy encounter, especially for an individual who was required to sit still in one place while being guarded by an armed police officer.

(7) Detective deck’s questioning occurred throughout the time that police were inside the defendant’s home. Detective deck never reminded the defendant that he was free to leave immediately prior to questioning him.

Both sides rely upon the fact that the questioning by Detective deck occurred inside the defendant’s home. The Commonwealth points out that questioning inside a person’s home is generally less coercive than questioning inside a police station or police cruiser. Defendant argues that the police essentially “took over” his house and denied him access to most of it. He argues that this conduct is in many ways more coercive than situations where defendants voluntarily consent to questioning at police headquarters.

We understand the arguments of both parties with respect to the location of the questioning. Both positions have merit, In our opinion, the location of police questioning — at the defendant’s home — is not a factor that we will weigh for or against either party,

As we consider all of the above factors, there is one additional piece of evidence that we find particularly illuminating. During his direct examination, Detective Cleck outlined portions of his conversations with the defendant. Detective Cleck remembered that the defendant asked him: “What charges am I facing?” This question was illuminating, because it served as a mirror into the defendant’s state of mind; the defendant believed that he had been or imminently would be “under arrest.”

As we examine the totality of circumstances presented, we conclude that the defendant subjectively believed that his liberty had been “substantially affected” and that his subjective belief was objectively reasonable. Although Detective Cleck did advise the defendant that he was “free to leave”, Detective Cleck did not reinforce that statement by having the defendant sign a written acknowledgement to that effect. Moreover, every single action taken by police after Detective deck’s “you are free to go” statement directly contradicted the notion that the defendant was indeed free to do as he pleased. Based upon the totality of cirumstances, we conclude that the defendant was subjected to a “custodial interrogation.” Because police did not advise the defendant of his Miranda warnings, statements made by the defendant during the custodial interrogation must be and will be supressed. An order to effectuate this decision will be entered this date.

      . On the other hand, mere suspicion by police does not automatically create a custodial interrogation. In Commonwealth v. Busch, 713 A.2d 97 (Pa. Super. 1998), the court stated “that it ‘was the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicion at the time the questioning was conducted’” which triggered the requirement for Miranda. Id. at 99.


author: WECHT, A.J.,

text:
    J.W. v. J.R.W. Sr.

      Luke Kelly, for plaintiff.

      J.R. W. Sr., pro se.

      Gina M. Pietosi, pro se.

      Jan Ira Medoff, for defendant Bonasorte.

      Licia Iannuzzi, for Children Youth and Families. Amanda Franzen, guardian ad litem for child.
    July 12, 2010
   WECHT, A.J.,

The subject of this custody litigation is J.R.W. (d.o.b. 11-29-06). On July 20,2009, this court adjudicated J.R.W. dependent pursuant to a petition for dependency filed by the Allegheny County Office of Children, Youth and Families (CYF). J.R.W. was placed with defendant Carolyn Bonasorte (maternal grandmother). At a January 8,2010 placement review, defendant Gina M. Pietosi (Mother) and defendant J.R.W. Sr. (Father) were granted visitation with J.R.W. Father’s visitation was to be supervised by plaintiff J.W. (paternal grandmother).

On April 23, 2010, paternal grandmother sought to intervene in the dependency matter to obtain visitation with J.R. W. This court ordered that paternal grandmother could pursue custody rights. On May 17,2010, paternal grandmother filed a complaint for custody and obtained an order that scheduled Generations education and mediation.

On June 30, 2010, maternal grandmother presented a motion to strike/preliminaiy objections to paternal grandmother’s custody complaint. Maternal grandmother argued that since J.R.W. was subject to the juvenile court dependency proceeding, the custody litigation should be on hold until the dependency was concluded. Paternal grandmother replied that she had standing to pursue custody notwithstanding that J.R. W. is a dependent child, and that the grandparent standing law indicates that the legislature contemplated that custody and dependency could proceed concurrently.

There are three main issues that must be resolved. First, does paternal grandmother have standing to participate in the dependency proceeding? If so, then she can pursue her rights there and custody litigation need not proceed. Second, if paternal grandmother cannot participate in dependency, does she have standing to proceed in custody? Third, can custody litigation proceed while the child is dependent?

Paternal grandmother would not have standing to participate as a party litigant in the dependency case. The Superior Court has held that a grandparent does not have standing to participate in dependency unless the grandparent has legal or in loco parentis custody or that grandparent’s care, custody and control of the child are at issue in the dependency. In re L.C. II, 900 A.2d 378, 380 (Pa. Super. 2006). In L.C. II, the minor child had lived with the grandmother for 14 years. When the mother resumed primary custody, the grandmother had partial custody rights. Id. at 379. When the child was alleged to be dependent, the grandmother sought leave to participate in the dependency proceedings. The trial court denied the request. Id. at 380. The Superior Court affirmed, stating that only parties to a dependency action have the fight to participate, and that those parties are limited to the child’s parents, the child’s legal custodian, and the person whose care and control of the child are in question. Id. at 381.

In the instant case, paternal grandmother does not belong in any of these three categories of party. She is not J.R.W.’s parent, she is not the legal custodian of J.R.W., and her care of J.R.W. is not at issue in the dependency. Therefore, paternal grandmother does not have standing and cannot participate in the dependency proceedings.

However, paternal grandmother does have standing to participate in custody proceedings. The Superior Court acknowledged in L. C. II that the grandmother did have standing in custody, but recognized that this standing did not extend to dependency. Id. at 330. The Pennsylvania Supreme Court has held that 23 Pa.C.S. §5313 confers standing on a grandparent to file a custody complaint after the grandchild has been adjudicated dependent. R.M. v. Baxter, 565 Pa. 619, 621, 777 A,2d 446, 447-48 (2001). In the Baxter case, the child was adjudicated dependent and placed with foster parents. Id. at 621, 777 A.2d at 448. Approximately nine months after the adjudication, the grandmother filed a custody complaint to which the child’s guardian ad litem and the agency filed preliminary objections. Id. The trial court sustained the preliminary objections, finding that the grandmother did not meet the pleading requirements of 23 Pa.C. §5313(b) (3) (a grandparent “who for 12 months has assumed the role and responsibilities of the child’s parent,... or who assumes the responsibility for a child who has been determined to be a dependent child..., or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.”). Id. at 623, 777 A.2d at 449. The Superior Court reversed, deciding that the dependency adjudication did not preclude the grandmother from pleading that the child was at substantial risk of parental abuse. Id. The Supreme Court affirmed, holding that this statute confers automatic standing on a grandparent to seek custody of a dependent child. Id. 626, 777 A.2d at 451.

In the instant case, paternal grandmother’s custody complaint meets all of the pleading requirements of section 5313(b). Therefore, under Baxter, she has standing to pursue custody. The sole difference between Baxter and the instant case is that paternal grandmother appears to be seeking only partial custody rights. There may be some question of whether a grandparent seeking only partial custody meets the criteria of “deem[ing] it necessary to assume responsibility for a child who is substantially at risk.” However, since paternal grandmother has not stated on the record that she seeks only partial custody and since her custody complaint meets all the requirements of Baxter, this court need not reach the issue.

The Superior Court has held that it is inappropriate to allow custody litigation to proceed outside of ongoing dependency proceedings. P.T. & K.T. v. M.H., 953 A.2d 814, 819 (Pa. Super. 2008). In that case, an aunt and uncle filed a custody complaint when their nephew was taken into CYF custody. Id. at 815. The trial court did not grant standing. Id. at 816. After the child was adjudicated dependent, but prior to the dispositional stage, the aunt and uncle again sought standing to file for custody. Id. The trial court denied standing to file for custody, but granted standing to participate in the dependency proceedings. Id. The aunt and uncle appealed the denial of standing in custody. Id. The Superior Court noted that the aunt and uncle did not cite any case law that addressed the issue of concurrent custody and dependency proceedings. Id. at 817. However, the Superior Court also noted that the cases cited by CYF to support the principle that the aunt and uncle must seek custody through the dependency were also not dispositive of that issue. Id.

Instead, the Superior Court concluded that the circumstances of the case made it inappropriate to allow the custody complaint to move forward outside the dependency. Id. at 819. The court found it would be a waste of judicial resources to have parallel proceedings, and that the aunt and uncle’s standing in dependency was sufficient to protect their interests in custody. Id.

In the instant case, paternal grandmother does not have standing in the dependency matter. Her interest in custody cannot be protected except through custody proceedings. This court is concerned about the problems with concurrent proceedings that the Superior Court cited in P. T. Therefore, this court will stay paternal grandmother’s custody complaint pending the resolution of the dependency proceedings. Paternal grandmother shall be given notice of all dependency hearings and reviews. Whether visitation with paternal grandmother is in J.R.W.’s best interests will be addressed. In keeping with the best practice initiative of family group decision-making (FGDM) that has been embraced in Pennsylvania, this court intends to assess the appropriateness of FGDM in this case. To date, this court has not yet ordered FGDM due to the high level of acrimony between the families. Should no party call paternal grandmother as a witness at the next review hearing, this court intends to do so.

An order in accordance with this opinion follows.

ORDER

And now, July 12, 2010, in accordance with the foregoing memorandum, it is hereby ordered, adjudged and decreed that:

(1) Defendant Carolyn Bonasorte’s motion to strike/ preliminary objections is denied. Plaintiff J.W.’s complaint for custody is stayed pending further order.

(2) The May 17, 2010 order scheduling Generations education and mediation is vacated.

(3) The review hearing scheduled for August 27,2010 before the undersigned shall proceed as scheduled. All parties should be prepared to address whether visitation with plaintiff is in the child’s best interest,

(4) Plaintiff shall receive notice of all scheduled dependency hearings and reviews in the In re J.R. W. case, docketed at 09-1171, JID 83719-A.

      . It is interesting to note that no party appealed the grant of standing in dependency to the aunt and uncle. Under the L.C. II case, it would appear that they lacked standing. Since the issue was not appealed, the Superior Court did not address it.


author: PICCIONE, J,

text:
    LeClair v. LeClair

      Susan M. Papa, for plaintiff.

      William M. Panella, for defendant.
    July 15, 2010
   PICCIONE, J,

Before this court for disposition is defendant’s petition for contempt in which defendant argues that plaintiff willfully and intentionally disobeyed an order of court. This action arises out of divorce proceedings between Paul Michael LeClair (Husband) and Susan L. LeClair (Wife). Husband initiated the divorce proceedings on May 19, 2009 by filing a complaint in divorce. Wife did not object to the request for a divorce but did submit claims for alimony, alimony pendente lite, interim counsel fees, costs, and expenses, which Husband disputed.

On January 8, 2010, Husband filed a petition for bifurcation and appointment of master, requesting that the court bifurcate the case, grant the divorce, and appoint a master to resolve all other pending issues. In an order dated February 10,2010, the Honorable John W. Hodge granted Husband’s request to bifurcate the case and appointed a master to resolve the economic issues. The order also contained the following paragraphs which are especially pertinent to the matter currently before the court:

“(1) The plaintiff [Husband] agrees to continue to pay to the defendant [Wife] the sum of $1,000 per month, as alimony pendente lite, pending further order of court or written agreement of the parties... .
“(8) Until final economic resolution, each party is hereby enjoined and restrained from alienating, assigning, concealing, conveying, dissipating, encumbering, hypothecating, pledging, secreting, transferring or otherwise disposing of any of the marital property of the parties.” LeClair v. LeClair, no. 10841 of 2009, C.A. (C.P. Lawrence February 10, 2010).

On March 29, 2010, Wife filed the instant petition for contempt, claiming that Husband has failed to pay Wife $1,000 per month in alimony pendente lite as required by the order of court. Wife avers that Husband instead used the funds to make two mortgage payments on the marital home. She requests that the court find Husband in contempt and order him to pay $500 in counsel fees. Since the filing of the petition, Husband has not sent any of the monthly payments to Wife but has used the monies to pay the home mortgage and other of the parties’ debts. The court held a hearing on this matter on June 1, 2010.

To hold a party in contempt, “a party must have violated a court order, and the complaining party must satisfy that burden by a preponderance of the evidence.” Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009). The mere showing of noncompliance with a court order, however, “is never sufficient, alone, to prove contempt.” Bold v. Bold, 939 A.2d 892, 895 (Pa. Super. 2007). Rather, the complaining party must prove the following three distinct elements: “(1) that the contemnor had notice of the specific order or decree which is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent.” Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006). Further, the order at issue must have been “definite, clear, and specific — leaving no doubt or uncertainty in the mind of the contemnor of the prohibited conduct.” Marian Shop Inc. v. Baird, 448 Pa. Super. 52, 56, 670 A.2d 671, 673 (1996). (emphasis in original) The order must be strictly construed, and any ambiguities in the order must be read in favor of the contemnor. In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super. 2004).

In the case sub judice, it appears that Husband failed to comply with one of the terms of the F ebruary 10,2010 order of court. The order states that Husband agreed to pay $1,000 per month to Wife as alimony pendente lite, and Husband admitted during the contempt hearing that he ceased making payments to Wife on March 5, 2010. N.T., 6/1/10, at 31-32. Therefore, the court finds that Husband violated the February 10, 2010 order of court.

Proof that Husband violated a court order is not, itself, sufficient to justify holding him in contempt. Wife must also demonstrate that Husband had notice of the February 10, 2010 order and that his violation was volitional. Husband does not dispute that he received notice of the order, and he admitted during the hearing that his attorney sent him a copy of the order. Id. at 31. Husband also acknowledges that he chose to make mortgage payments on the marital home rather than send $1,000 per month to Wife. As a result, Wife satisfied her burden of showing that Husband received notice and that the violation was volitional.

Wife must also demonstrate that Husband acted with wrongful intent in violating the order if the court is to grant Wife’s petition, Husband testified that, since January of2009, he consistently sent Wife $1,000 per month so that Wife could make payments on the mortgage, home equity loan, and their daughter’s student loan. Id. at 23-25. He indicated that this arrangement was based on an agreement with Wife, who also acknowledged the existence of such an agreement. Id. at 10,23, Husband testified that he understood the February 10,2010 order as a continuation of the parties’ agreement that Wife would use Husband’s payments to pay for the mortgage, home equity loan, and student loan. Id. at 25. Husband continued to make payments to Wife until March of 2010, when he learned that Wife vacated the marital residence and had failed to make a mortgage payment since January of 2010. Id. at 25-26. After attempting to contact Wife, Husband received an e-mail from Wife on March 3,2010 indicating that Wife wanted to keep the marital home. Id. at 11. As a result, Husband began using the $1,000 payments mandated by the order of court to pay the mortgage. Id. at 26. Husband continued this practice until Wife filed the instant petition. Id. at 41.

Based on a review of the record and the testimony presented at the contempt hearing, the court finds that Husband did not act with wrongful intent in violating the February 10,2010 order of court. By directing the $1,000 monthly payments toward the mortgage bills and other of the parties’ debts, Husband merely sought to continue the agreement he had with Wife. In fact, by making the required mortgage payments, Husband may have been attempting to comply with paragraph 8 of the order prohibiting the dissipation of martial property. He did not consider his actions to be inconsistent with the February 10,2010 order, and, in light of the parties ’ long-standing agreement, the court does not regard Husband’s interpretation of the order as unreasonable. As stated above, an order of court must be clear enough to leave no uncertainty as to the prohibited conduct, and any ambiguities must be resolved in favor of the contemnor. Marian Shop Inc., 670 A.2d at 673; Cullen, 849 A.2d at 1211. Because the court finds that Husband did not intend to violate the February 10, 2010 order of court, Wife’s petition for contempt is denied. Likewise, Wife’s request for counsel fees in connection with this petition is also denied.

Although the court denies Wife’s petition, the court finds that the February 10, 2010 order directs Husband to pay $1,000 to defendant as alimony pendente lite and does not authorize payments of mortgage bills or other of the parties’ debts as a substitute. Therefore, beginning August 1, 2010, Husband must pay Wife $1,000 per month, as alimony pendente lite, pending further order of court or written agreement of the parties. Husband is prohibited from using the $1,000 monthly payments for any purpose other than alimony pendente lite paid to Wife. Husband and Wife are permitted to determine who should bear the cost of the mortgage, home equity loan, and student loan until the equitable distribution hearing.

ORDER

And now, July 15,2010, the court having held a hearing on June 1, 2010 regarding defendant’s petition for contempt, with Susan M. Papa, Esquire, appearing and representing the plaintiff (Husband), and William M. Panetta, Esquire, appearing and representing the defendant (Wife), the court finds and it is hereby ordered and decreed as follows:

(1) The Wife’s petition for contempt is hereby denied pursuant to the attached opinion.

(2) As of August 1, 2010, the Husband must pay directly to the Wife the sum of $1,000 per month, as alimony pendente lite, pending further order of court or written agreement of the parties.

(3) The Husband is prohibited from directing the monthly payments toward any other cost, including but not limited to mortgage, home equity loan, and student loan bills.

(4) The court offers no opinion or recommendation concerning which party should bear the costs of the mortgage, home equity loan, and student loan as of August 1, 2010. The parties are free to decide how these costs will be allocated between them pending the equitable distribution hearing.

(5) The Wife’s petition for contempt and request for a hearing presented on July 13, 2010 is denied.

(6) 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: PICCIONE, T,

text:
    Lyles v. Huntington Bancshares Incorporated

      Douglas J. Olcott and Dallas W. Hartman, for plaintiffs.

      Thomas E. Zumpella, for defendant,
    July 13, 2010
   PICCIONE, T,

Before this court for disposition are defendant’s preliminary objections to plaintiffs’ complaint. The current action arises out of a slip and fall accident that took place in a parking lot located at 108 South Market Street in New Wilmington. On January 18, 2008, plaintiff Simonae R. Lyles parked in the lot and, upon exiting her vehicle, slipped on a patch of ice. Mrs. Lyles sustained numerous injuries as a result of the slip and fall.

On December 11,2009, plaintiffs Robert and Simonae R. Lyles filed a complaint alleging that defendant Huntington Bancshares Incorporated, as owner of the parking lot, was negligent in failing to prevent the dangerous accumulation of ice that caused Mrs. Lyles’s accident. On January 8, 2010, defendant filed preliminary objections to plaintiffs’ complaint, stating that Mrs. Lyles had previously filed a workers’ compensation claim against defendant arising out of the same accident. Defendant argues that the Pennsylvania Workers’ Compensation Act provides the exclusive remedy for injuries sustained by employees in the course of their employment and that employers are consequently immune from being sued in tort. As a result, defendant asserts that this court does not have subject matter jurisdiction over this dispute and requests that plaintiffs’ claims be dismissed. In addition, defendant indicates that paragraph 10 of plaintiffs’ complaint lists one of Mrs. Lyles’s injuries as a “damaged vertebral disc requiring ???? [sic] [.]” Pl.’s comp. ¶ 10(b). Defendant argues that the averment fails to specify what injury Mrs. Lyles sustained and should, therefore, be stricken. On February 2,2010, plaintiffs filed a response to defendant’s preliminary objections in which plaintiffs allege that Mrs. Lyles was an employee of The Huntington National Bank and/or The Huntington Kentucky LLC at the time of the January 18, 2008 accident.” Pl.’s resp. ¶3. Plaintiffs also point out in their response that paragraph 10(b) of their complaint identifies an injury suffered by Mrs. Lyles but omits the treatment she received. After providing the parties with an opportunity to submit briefs, the court held oral argument on defendant’s preliminary objections on June 28, 2010.

Preliminary objections may be filed on the following grounds: “(1) lack of jurisdiction over the subject matter of the action ...; (3) insufficient specificity in a pleading; [and] (4) legal insufficiency of a pleading.” Pa.R.C.P. 1028(a)(1), (3), (4). When preliminary objections raise a question of subject matter jurisdiction “[t]he trial court’s function is to determine whether the law will bar recovery due to a lack of subject matter jurisdiction.” Arbor Resources Limited Liability Company v. Nockamixon Township, 973 A.2d 1036, 1042 n.5 (Pa. Commw. 2009).

When ruling on a preliminary objection in the nature of a demurrer, the court must accept as true all material facts set forth in the pleading, as well as all reasonable inferences deducible from such facts. Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001). However, the court is not required to accept as true “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Envirotest Partners v. PennDOT, 664 A.2d 208, 211 (Pa. Commw. 1995) (citing Meier v. Maleski, 167 Pa. Commw. 458, 648 A.2d 595 (1994)). Preliminary objections should be sustained only in those instances where it appears with certainty that the law would not permit recovery. Id.

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 plaintiff’s 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, 1235-36 (Pa. Super. 2008). “[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).

Initially, the court finds that plaintiffs’ complaint exhibits sufficient specificity to provide notice of their claims. Defendant argues that paragraph 10(b) of the complaint is insufficiently specific because it does not provide notice of the alleged injury. An examination of the complaint reveals that paragraph 10(b) identifies the alleged injury as a “damaged vertebral disc[.]” Pl.’s comp. ¶1003). Although a specific treatment is not indicated, the complaint sufficiently apprises defendant of the nature of the injury. Therefore, defendant’s preliminary objection asserting insufficient specificity in a pleading is overruled.

The remaining issue to be decided is whether the court lacks subject matter jurisdiction over this dispute due to the immunity from common law liability afforded employers under the Pennsylvania Workers’ Compensation Act. Section 481 of the Act states:

“The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes . . . entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.” 77 P.S. §481(a).

Therefore, the court’s jurisdiction over this matter depends on whether defendant is Mrs. Lyles’ employer for purposes of the Act. As a general rule, a parent corporation and its subsidiary are to be regarded as separate entities under the Act. Mohan v. Publicker Industries Inc., 422 Pa. 588, 592, 222 A.2d 876, 879 (1966). Whether the employer is the parent corporation or the subsidiary is a legal question which is to be determined based on the facts of each particular case. Kiehl v. Action Manufacturing Company, 517 Pa. 183, 187, 535 A.2d 571, 572 (1987). An entity is an employer if it maintains control over the work to be done by an employee and the manner of doing it. Venezia v. Philadelphia Electric Company, 317 Pa. 557, 177 A. 25 (1935). Where aparentsubsidiary relationship is established the questions of which corporation has control over an employee is determined by focusing on the functions performed by each corporation and by the employee in addition to other indicia of control. Mohan, 422 Pa. at 593, 222 A.2d at 879. For example, in Kiehl, our Supreme Court found that the parent corporation was not entitled to immunity under the Act from a third-party trespass suit brought by employees of the wholly-owned subsidiary corporation where the employees reported to work at the subsidiary, operated machinery listed as assets of the subsidiary, and produced detonators for the subsidiary. Kiehl, 517 Pa. at 189-90, 535 A.2d at 574. In reaching its conclusion, the court stated that a corporation will be deemed the employer “where the employee is shown to have acted in furtherance of one, or essentially one of the corporations [.]” Id. (citing Mohan, 422 Pa. at 593, 222 A.2d at 879). (emphasis in original)

In the case sub judice, Mrs. Lyles reported to work at The Huntington National Bank, a wholly-owned subsidiary of defendant. Her report of occupational injury identifies her employer as The Huntington National Bank, and she filed her workers’ compensation claim with The Huntington National Bank. Def.’s exhibit B. Her W-2 forms list her employer as The Huntington Kentucky LLC, also a wholly owned subsidiary of defendant. Pl.’s exhibit A. Nothing has been alleged indicating that defendant acted as Mrs. Lyles’ employer. It also does not appear that defendant exercised sufficient control over the work of Mrs. Lyles to render defendant her employer. At this time, the court is unable to conclude that defendant is the employer of Mrs. Lyles. Therefore, defendant is not entitled to immunity from suit under the Workers’ Compensation Act, and defendant’s preliminary objection alleging lack of subject matter jurisdiction is overruled.

ORDER

And now, July 13, 2010, the court having held oral argument on June 28, 2010 regarding defendant’s preliminary objections to plaintiffs’ complaint, with Douglas J. Olcott, Esquire, appearing and representing the plaintiffs, and Thomas E. Zumpella, Esquire, appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

(1) Defendant’s preliminary objections are hereby overruled pursuant to the attached opinion.

(2) 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: GRINE, J.,

text:
    Commonwealth v. Blair

      Kristin Scipione, for Commonwealth.

      Joseph L. Amendola, for defendant.
    July 20, 2010
   GRINE, J.,

Presently before the court is an omnibus pretrial motion brought by Brandon M. Blair (defendant). On or about September 7, 2009, defendant was charged with one count of sexual assault (18 Pa.C.S. §3124.1) two counts of aggravated indecent assault(18 Pa.C.S. §3125(a)(1) and two counts of indecent assault (18 Pa.C.S. §3126(a)(1). The charges stem from alleged conduct which occurred on September 7, 2009 in Centre Hall, Centre County, Pennsylvania. Defendant filed a motion in limine asking the court to quash Count 3 and Count 5 of the information. Additionally defendant seeks to introduce evidence of the victim’s prior sexual conduct.

FINDINGS OF FACT

(1) The complainant in this shall be referred to as “Victim”

(2) Victim claims that she had know Brandon Blair (defendant) for approximately a year.

(3) Victim testified at the preliminary hearing in this matter which was held on September 16, 2009.

(4) Victim testified that she knew defendant through her boyfriend, Coty Johnson.

(5) Victim testified that she worked on September 6, 2009, until about 7 p.m. and then went home before she went out with Coty, defendant, and several other friends.

(6) Victim and her friends, including Coty and defendant, went to Cato to ride four-wheelers and trucks.

(7) The group had pizza at Coty’s residence and left for Cato around 9 p.m.

(8) Victim was drinking on the night of September 6, 2009. She estimated that she had two beers and five Mike’s Hard Lemonades over a period of at least four hours.

(9) Victim estimated that she, Coty, defendant and Jake Lucas left Cato around 1 a.m. to go to a party in Centre Hall.

(10) When they arrived at the party in Centre Hall, Victim claims that she was not feeling well and decided to remain in the truck. She also claims that she was passing in and out of consciousness.

(11) At one point Victim left the truck to vomit and then returned to the truck again.

(12) The next thing Victim remembers is waking up to find that someone was having sex with her. Victim did not remember consenting and was not sure who the person was.

(13) At some point, Victim remembers someone walking by the truck and saying something to the effect of “Coty, aren’t you even going to shut the door?”

(14) Victim claims that she believed that the defendant was her boyfriend, Coty, and that she would have been okay with having sex with Coty.

(15) Jake Lucas testified that Victim was drunk. Jake Lucas initially thought that Victim was having sex with Coty, and realized this was not the case at some point.

(16) Jake Lucas testified that when he saw Victim having sex with a person he later found out was defendant, her eyes were closed and her head was rolled back and to the side.

(17) State Police Trooper James Ellis spoke with defendant after giving him his Miranda rights at about 9:05 a.m. on September 7, 2009.

(18) Defendant told Trooper Ellis that after they arrived at the party in Centre Hall, he was outside smoking and decided to check on Victim, who had remained in the truck.

(19) Defendant asked her if Coty had come back, and she muttered something he didn’t understand.

(20) Defendant then told Trooper Ellis that he opened the door, pulled Victim’s pants down and engaged in sexual activity with her.

(21) Defendant claims that there was no conversation, but that he thought the sexual activity was consensual.

(22) Trooper Ellis first had contact with defendant at approximately 8:45 a.m. on September 7, 2009.

(23) Trooper Ellis claims that when he went to defendant’s residence on September 7, 2009, defendant was woken up by their presence and defendant seemed groggy.

(24) Trooper Ellis testified that defendant had the smell of alcohol on him.

(25) Trooper Ellis also testified that defendant had bruises on him.

(26) Defendant signed a waiver of his Miranda rights at approximately 9:05 a.m. on September 7, 2009.

CONCLUSIONS OF LAW

18 Pa.C.S. §3104(a) sets forth as a general rule that “Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.”

(2) “The purpose of the Rape Shield Law is to prevent a trial from shifting its focus from the culpability of the accused toward the virtue and chastity of the victim.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009).

(3) “[V]ia interpretive efforts by the courts of this Commonwealth, the Rape Shield Statute has been found to bow to the following exceptions: (1) evidence that negates directly the act of intercourse with which a defendant is charged; (2) evidence demonstrating a witness’ bias or evidence that attacks credibility; and (3) evidence tending to directly exculpate the accused by showing that the alleged victim is biased and thus has motive to lie, fabricate, or seek retribution via prosecution.” Commonwealth v. Burns, 988 A.2d 684, 690 (Pa. Super. 2009) (citing Commonwealth v. Allburn, 721 A.2d 363, 367 (Pa. Super. 1998).

(4) “Before introducing an extra-judicial admission, the Commonwealth must establish by independent evidence that a crime has in fact been committed; however, the Commonwealth is not required to prove the existence of a crime beyond a reasonable doubt.” Commonwealth v. Reyes, 545 Pa. 374, 381, 681 A.2d 724, 727 (1996).

(5) “An exception to the corpus delicti rule known as the closely related crime exception was specifically approved of by this court in Commonwealth v. McMullen, [545 Pa. 361,] 372, 681 A.2d [717,] 723 (1996). This exception comes into play where an accused is charged with more than one crime, and the accused makes a statement related to all the crimes charged, but the prosecution is only able to establish the corpus delicti of one of the crimes charged. Under those circumstances where the relationship between the crimes is sufficiently close so that the introduction of the statement will not violate the purpose underlying the corpus delicti rule, the statement of the accused will be admissible as to all the crimes charged.” Commonwealth v. Bardo, 551 Pa. 140, 147, 709 A.2d 871, 874 (1998).

(6) The purpose of the corpus delicti rule is to guard against “the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed” Commonwealth v. Reyes, 545 Pa. 374, 381, 681 A.2d 724, 727 (1996). (citations omitted)

DISCUSSION

1. Evidence of Prior Sexual Conduct

Defendant has asked the court to allow him to introduce evidence that Victim engaged in consensual sexual contact with her boyfriend, Coty Johnson on the morning of the alleged sexual assault. The court finds that this evidence would violate the Rape Shield Statute which is found at 18 Pa.C.S. §3104(a).

18 Pa.C.S. §3104(a) sets forth as a general rule that “Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.” In this case, there is no allegation that Victim engaged in past sexual contact with defendant. Defendant argues that evidence of her past sexual conduct should be allowed because it shows that there is an alternative theory as to how evidence of sexual contact could be present and cites Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), to support his position. The court finds that Majorana is not relevant to this case. In Majorana the defendant was claiming that there was no sexual contact between himself and the victim. In this case, defendant does not deny that there was sexual contact, rather that he believed that the sexual contact was consensual. “[V]ia interpretive efforts by the courts of this Commonwealth, the Rape Shield Statute has been found to bow to the following exceptions: (1) evidence that negates directly the act of intercourse with which a defendant is charged; (2) evidence demonstrating a witness’ bias or evidence that attacks credibility; and (3) evidence tending to directly exculpate the accused by showing that the alleged victim is biased and thus has motive to lie, fabricate, or seek retribution via prosecution.” Commonwealth v. Burns, 988 A.2d 684, 690 (Pa. Super. 2009) (citing Commonwealth v. Allburn, 721 A.2d 363, 367 (Pa. Super. 1998). The court finds that the evidence that defendant is seeking to admit does not negate the act of intercourse for which defendant is charged, does not demonstrate a witness’ bias or go to credibility and does no show that Victim is has a motive to be untruthful or seek retribution.

“The purpose of the Rape Shield Law is to prevent a trial from shifting its focus from the culpability of the accused toward the virtue and chastity of the victim” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super. 2009). Allowing evidence of Victim’s prior sexual contact with Coty Johnson would only serve to prejudice the jury, as defendant has admitted to having sexual contact with Victim. If defendant claimed that no sexual contact had occurred, then the evidence of Victim’s prior sexual contact would be admissible to show an alternative explanation for the evidence found by the medical personnel at Mount Nittany Medical Center which showed she had recent sexual contact. Therefore, defendant’s motion to allow evidence of Victim’s prior sexual contact with Coty Johnson is denied.

2. The Corpus Delecti Rule

“Before introducing an extra-judicial admission, the Commonwealth must establish by independent evidence that a crime has in fact been committed; however, the Commonwealth is not required to prove the existence of a crime beyond a reasonable doubt.” Commonwealth v. Reyes, 545 Pa. 374, 381, 681 A.2d 724, 727 (1996). While the corpus delecti rule generally does not allow for an extra-judicial admission where there has been no independent evidence that a crime has been committed, there is an exception for closely related crimes. “An exception to the corpus delicti rule known as the closely related crime exception was specifically approved of by this court in McMullen, at 372, 681 A.2d at 723. This exception comes into play where an accused is charged with more than one crime, and the accused makes a statement related to all the crimes charged, but the prosecution is only able to establish the corpus delicti of one of the crimes charged. Under those circumstances where the relationship between the crimes is sufficiently close so that the introduction of the statement will not violate the purpose underlying the corpus delicti rule, the statement of the accused will be admissible as to all the crimes charged.” Commonwealth v. Bardo, 551 Pa. 140, 147, 709 A.2d 871, 874. The crimes defendant is charged with are closely related. “The purpose of the corpus delicti rule is to guard against “the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed.” Commonwealth v. Reyes, 545 Pa. 374, 381, 681 A.2d 724, 727 (1996). (citations omitted) Introduction of statements made by defendant in this case which led to defendant being charged with aggravated indecent assault and indecent assault will not violate the purpose of the corpus delecti rule. Defendant is also charged with sexual assault as well as another count of aggravated indecent assault unrelated to his statements which have been corroborated with evidence independent of defendant’s statements. Therefore, the court finds that the exceptions to the corpus delecti rule apply. Defendant’s motion in limine to suppress statements made by defendant relating to the charges in Count 3 and Count 5 of the criminal information is denied.

ORDER

And now, July 20,2010 the court enters the following order:

(1) Defendant’s motion in limine to clarify allegations in criminal information is denied. Allegations in the criminal information were clarified at the time of the hearing.

(2) Defendant’s motion to allow evidence of Victim’s prior sexual contact with Coty Johnson is denied.

(3) Defendant’s motion in limine to quash Count 3 and Count 5 of the criminal information is denied.

(4) Defendant’s motion in limine to suppress statements made by defendant relating to the charges in Count 3 and Count 5 of the criminal information is denied.


author: VICAN, J,

text:
    DeLong v. Fenton

      Mark A. Primrose, for plaintiffs.

      Marshall E. Anders, for defendants.
    June 16, 2010
   VICAN, J,

On February 18, 2010, plaintiffs filed a complaint against defendants seeking damages for a dispute arising from a construction contract. The provisions of the contract required defendants to perform certain renovations on plaintiffs’ home. Plaintiffs allege that shortly after they paid defendants for the completed work, they became aware of deficiencies in either the materials used and/or the installation of the materials. On August 17,2009, plaintiffs contracted with another construction outfit to repair and/or replace the deficiencies allegedly caused by defendants. Plaintiffs paid the second construction outfit $35,627.86 for the repairs and currently seek the same amount in damages from defendants.

On March 12, 2010, defendant Joan L. Fenton filed preliminary objections to plaintiffs’ complaint. Ms. Fen-ton’s objections sought dismissal of the complaint as it relates to her on the basis that she was not a party to contract from which the action arises, thus plaintiffs have failed to set forth a cause of action upon which relief can be granted. Plaintiffs filed an amended complaint on March 26, 2010, in which they allege Ms. Fenton is involved in the operation of the construction business with her husband, defendant Robert H. Fenton, and, therefore, is properly named in the complaint.

On April 22,2010, defendants filed an answer and new matter to amended complaint. On same, defendants filed preliminary objections to the amended complaint in the nature of a demurrer to the count against Ms. Fenton on the basis that Ms. Fenton was not a party to the contract, and, therefore, plaintiffs fail to allege a cause of action against her. Plaintiffs filed an answer to the preliminary objections on June 3, 2010, asserting that Ms. Fenton was a party to the contract because she “brought plaintiff[s] and defendants] together” and “sold” the plaintiffs on using Mr. Fenton for the construction project. Both parties have submitted briefs regarding their respective positions and we are now ready to dispose of this matter.

DISCUSSION

Ms. Fenton’s preliminary objections are brought pursuant to Pa.R.C.P. 1028, which provides in pertinent part:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

“(4) legal insufficiency of a pleading (demurrer).”

A demurrer is a preliminary objection asserting that “the pleadings fail to set forth a cause of action upon which relief can be granted under any theory of law.” Sutton v. Miller, 405 Pa. Super. 213, 221, 592 A.2d 83, 87 (1991). “Upon demurrer, a reviewing court must regard as true all well-pleaded facts and reasonable inferences deducible therefrom.” Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983). “[T]he court need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Company v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995). “Since sustaining the demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.” Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 619, 702 A.2d 850, 853 (1997).

We begin our analysis with a recitation of the pertinent facts as set forth in the various pleadings. While talking with plaintiffs about work they wanted to have done on their home, Ms. Fenton informed them that Mr. Fenton could perform the desired improvements. Accordingly, on October 15,2008, defendants submitted a work proposal to plaintiffs. The proposal was submitted under the name “Fenton and Robert.” Plaintiffs accepted the proposal and Mr. Fenton performed the work detailed in the contract. Plaintiffs allege that shortly after they paid for the completed improvements, they became aware of deficiencies in either the materials used and/or the installation of the materials.

On March 26, 2010, plaintiffs filed a two-count amended complaint against defendants. The complaint set forth the aspects of the construction that were unsatisfactory to plaintiffs as follows:

“[F] ailing to install water resistive barrier behind siding as required by International Residential Code R703.2 and per Alcoa installation guide. All windows were not properly flashed to shed water and sealed to be airtight per installation guide. Water was leaking around all windows and doors. The header over the garage door was rotted along with all windows. Insulation was getting wet from rain hitting the home and was causing mold problems with [sic] resulted in an odor inside the home. Siding behind the chimney was not removed with [sic] the home was re-sided. At the front porch corner, where porch posts meet the house, there was no flashing or seal to prevent water from running behind siding. Water was coming around and behind all light fixtures and outlets on the exterior of the home. Siding was loose and falling off because of not being properly installed to manufacturer specs. All aluminum fascia was not properly nailed causing fascia to buckle and come loose. Ridge vent on the main roof and garage was loose and falling off due to the wrong size nails being used to fasten ridge vent. The garage walls had the same problems as the home. The garage roof plywood at fascia line was not even; drip edge was faced nailed to try to close off space. As the nails were end nailed into the plywood, not only were they not holding, they cause the plywood to de-laminate.”

In addition to the allegations of substandard workmanship, plaintiffs’ complaint attempts to involve Ms. Fenton in the action on the following bases:

“It is believed and therefore averred that in addition to essentially selling the job to plaintiffs for her husband, the “Fenton” of “Fenton and Robert” stands for Joan L. Fenton....
“It is believed and therefore averred that all of the funds went into a joint account or at least an account defendant Joan L. Fenton had access thereto.
“It is further believed that defendant Joan L. Fenton is involved with her husband, defendant Robert H. Fen-ton in the operation of the business and receives the benefit therefrom.”

Defendants’ answer to the amended complaint specifically denies that Ms. Fenton informed plaintiffs that Mr. Fenton could perform the desired work on the home. Further, the answer asserts that the work proposal was submitted solely by Mr. Fenton and he alone operates “Fenton and Robert.”

After reviewing the record before us, we believe a cause of action against Ms. Fenton has not been established. The basis for the complaint is the substandard construction work performed by Mr. Fenton, and plaintiffs do not provide any evidence that Ms. Fenton participated in such. Nowhere does the complaint contend that Ms. Fenton provided any physical labor to the construction project, nor does it suggest that she assisted in purchasing and installing materials. While plaintiffs allege that she was involved in the formation of the contractual relationship between them and Mr. Fenton, they do not provide a contract, proposal, or invoice on which Ms. Fenton’s signature appears. Finally, plaintiffs do not offer any actual evidence suggesting that Mr. and Ms. Fenton are partners in the construction business. They merely preface their contention that defendants operate the business together with the phraseology, “It is believed and therefore averred.”

Accordingly, we find that plaintiffs have not established a cause of action against Ms. Fenton and defendants’ preliminary objections in the form of a demurrer are sustained.

And now, June 16, 2010, defendants’ preliminary objections in the nature of a demurrer are sustained.

      . Plaintiffs assert, after a reasonable search, they have found that “Fenton and Robert” is not listed as a registered business entity with the Pennsylvania Department of State.


author: STALLONE, J,

text:
    Commonwealth v. Castro

      Dennis J. Skayhan and Kelly S. Kline assistant district attorneys, for Commonwealth.

      Richard A. Joyce and JIolly B. Feeney, assistant public defenders, for defendant.

      Osmer S. Deming, PCRA counsel for defendant.
    July 12, 2010
   STALLONE, J,

On June 24, 2008, the defendant, Antonio Bones Castro, was arrested and charged with first-degree murder, third-degree murder, aggravated assault manifesting extreme indifference to the value of human life, possessing instruments of crime, tampering with or fabricating physical evidence and criminal conspiracy to commit first-degree murder, all arising out of the shooting death of Oscar Sanabria in the early morning hours of June 22,2008. Mr. Sanabria was the boyfriend of Clarissa Castro, the defendant’s sister. She was also arrested in connection with this incident, with charges docketed to criminal action no. CP-06-CR-0003777-2008.

In the criminal complaint, the Commonwealth alleged that the shooting took place inside a black Ford Escort GT owned and operated by Clarissa Castro, while the defendant was seated in the right front passenger seat and Oscar Sanabria was sitting in the rear seat. The Commonwealth further alleged that, after shooting Mr. Sanabria, the defendant poured gasoline inside the vehicle but unsuccessfully attempted to light it on fire.

After the defendant’s preliminary arraignment, the Commonwealth filed a written notice of intent to seek the death penalty in accordance with section 9711(d) of the Judicial Code. The defendant then proceeded to file a series of pretrial motions with this court, consisting of (1) a total of four motions challenging the Commonwealth’s intent to seek the death penalty, each on different grounds, (2) a motion to suppress statements and other physical evidence and (3) an application for habeas corpus relief, in the form of a dismissal of all charges for lack of sufficient evidence. All were denied by this court, after hearings held during the week of February 2, 2009.

On March 13, 2009, the defendant entered a plea of guilty to the charge of first-degree murder, pursuant to a plea bargain entered into with the Commonwealth. This plea bargain was conditioned upon the Commonwealth’s agreement to withdraw its request for the death penalty. In connection with the entry of his guilty plea, the defendant submitted a three-page written colloquy, which contained his answers to a series of questions with his acknowledgment and signature on each page. This was followed by an oral colloquy between the defendant, the assistant district attorney and this court. That same date, this court sentenced the defendant to life in prison, without parole, in a state correctional facility, with credit for 262 days time served. Although the defendant was advised and indicated his understanding of his appeal rights, in writing, by way of a written “acknowledgment of post-sentence procedure following guilty plea” filed of record, he did not file any post-sentence motion with this court or an appeal from the judgment of sentence to the Superior Court of Pennsylvania.

Instead, he filed a timely first petition for PCRA relief on January 12, 2010. Upon being advised of the filing, this court appointed Osmer S. Deming, Esquire to represent him. With Attorney Deming’s assistance, the defendant filed an amended first petition for PCRA relief, setting forth three separate claims in support of his request for leave to withdraw his guilty plea and proceed to trial. After a hearing held, we now file this opinion in disposition of those claims.

The defendant’s first contention is that he did not enter his guilty plea knowingly, intelligently and voluntarily, inasmuch as he was taking medication for depression at the time that he entered his plea. For the reasons which follow, we disagree.

In Pennsylvania, it is well-settled that, after sentence has been imposed, a defendant may be permitted to withdraw a guilty plea only to correct what the law perceives to be “manifest injustice.” Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983); Commonwealth v. Leonhart, 358 Pa. Super. 494, 517 A.2d 1342 (1986). Here, the record does not support such a finding.

At the outset, we note that the record demonstrates that the defendant clearly understood the nature of the proceeding, the charge to which he was entering his plea and the rights which he was giving up by entering the plea (N.T., guilty plea and sentencing hearing, pp. 8-10):

“Mr. Skayhan: Do you understand that you are presumed innocent until proven guilty beyond a reasonable doubt?
“Antonio Bones Castro: Yes, sir.
“Mr. Skayhan: Do you understand you have an absolute right to a trial by jury in this matter?
“Antonio Bones Castro: Yes, sir.
“Mr. Skayhan: Do you understand you have the right to file various pretrial motions including a writ of habeas corpus and a motion to suppress physical evidence?
“Antonio Bones Castro: Yes, sir.
“Mr. Skayhan: After you plead guilty you have only certain limited rights. You have a right to challenge whether or not the guilty plea was valid, whether your attorney was effective in representing you, the jurisdiction of the court and that you can appeal any sentence imposed on you to a higher court. Do you understand these rights?
“Antonio Bones Castro: Yes, sir.
“The Court: All right. Just let me interrupt. And do you also understand that those are the limited rights that you have?
“Antonio Bones Castro: Yes, sir.
“The Court: You do not have the right if you change your plea to guilty to appeal any of the decisions that this court made with regard to your petition to preclude the death sentence. You are aware of that, are you not—
“Antonio Bones Castro: Yes, sir.
“The Court: That then terminates that matter. You can’t raise that later on, and the same with regard to your motion to suppress evidence and statements in this case. That matter is also determined to be at an end. It is not appealable if you change your plea to guilty. Do you understand that?
“Antonio Bones Castro: Yes, sir.
“The Court: Do you have any questions about either of those?
“Antonio Bones Castro: No, sir.
“The Court: All right. Go ahead, Mr. District Attorney.
“Mr. Skayhan: Yes, sir. I would now refer you to the written colloquy that the judge has in his possession at this time. Is that your signature on each of those page?
“Antonio Bones Castro: Yes, sir.
“The Court: Do you want the original?
“Mr. Joyce: Yeah.
“Mr. Skayhan: And are those your answers to the questions contained on each one of those three pages?
“Antonio Bones Castro: Yes, sir.
“Mr. Skayhan: And did you answer those questions truthfully?
“Antonio Bones Castro: Yes, sir.
“The Court: Mr. Castro, I understand from our previous proceedings that you do understand English and speak English very very well; is that correct?
“Antonio Bones Castro: Yes, sir.
“The Court: All right. And, therefore, when you went over that written colloquy with your attorney Mr. Joyce, you had no trouble with the questions and the way you answered them?
“Antonio Bones Castro: No, sir ...
“The Court: And I’m also assuming that you did not have any alcoholic beverages or any drugs of any kind or you’re not under any kind of medication that precludes you from clearly understanding what the court is doing today and what you are doing today, correct?
“Antonio Bones Castro: Yes, sir.
“The Court: Okay.
“Mr. Joyce: Just so the court is aware, he is on medication but it actually aids probably in proceeding today.”

Immediately thereafter, this court gave the defendant the opportunity to respond to that statement, to which he clearly agreed (Id. at 11):

“The Court: Is that correct?
“Antonio Bones Castro: Yes, sir.”

Furthermore, we saw nothing either in the defendant’s demeanor, his answers to the questions posed to him or the manner in which he answered those questions which would have given this court any reason to believe that the defendant was not knowingly, intelligently and voluntarily entering his plea. And on that issue, we made the following statement on the record at the hearing held on the amended first petition (N.T., PCRA hearing, pp. 27-28):

“The long and short of it is that back in March of last year, at the guilty plea hearing, you did not say one word indicating . . . that you cannot comprehend what was going on, or that you had any difficulty one way or the other either understanding, reading, writing or whatever.
“I said to you then, and I say to you now, you’re an educated young man, you could read this transcript, you are not under any kind of stress or anything else, even though you were under a very serious charge at that particular time. You were very pleased with the bargain that was entered into, the plea bargain that was entered into between your lawyer and a district attorney to take the plea that you did, and that would only give you a life sentence rather than death and that your sister would get a much lighter sentence, even though she was present.”

And perhaps most importantly, this court then asked the defendant “Wasn’t that the way it went?”, to which the defendant replied “Yeah.” Id. at 28.

And so, for these reasons, we find that the defendant has failed to meet his burden of proving that he did not enter his guilty plea knowingly, intelligently and voluntarily and, therefore, that “manifest injustice” requires us to allow him to withdraw his guilty plea.

The defendant further contends that Attorney Joyce was ineffective for misleading him into believing that he was pleading guilty to a “20 to 40 years and not a life offense.” Essentially, the defendant claims that Attorney Joyce told him that he would receive a 20 to 40 year sentence if he entered the plea of guilty. For the reasons which follow, we conclude that the record likewise does not support this claim.

In evaluating a claim of ineffective assistance of counsel, this court must presume that counsel’s assistance is effective. In order to overcome that presumption, the defendant must prove (1) that his underlying claim has arguable merit; (2) that his counsel had no reasonable basis for his alleged action or conduct and (3) that he sustained prejudice as a result of the alleged ineffective assistance of counsel. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215 (2007); Commonwealth v. Lynch, 820 A.2d 728 (Pa. Super. 2003); Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002). A failure by the defendant to prove any one of these three elements must necessarily result in the dismissal of his claim. Id.

Beginning with the defendant’s written guilty plea colloquy, we note that the following appears on page 1:

The Defendant Desires To Plead Guilty To The Following Offenses:

Maximum Plea/Charge
Agreement
Count Offense Opcn Pica
(Circle one of the above)

Moreover, the transcript of the guilty plea hearing demonstrates the defendant’s understanding that he was pleading guilty to the charge of first-degree murder and would be sentenced to life in prison (N.T., guilty plea and sentencing hearing, pp. 8, 12 and 13):

“Mr. Slcayhan: Thank you, your honor. Do you understand that you are here today before Judge Stallone charged with murder of the first degree?
“Antonio Bones Castro: Yes, sir....
“Mr. Slcayhan: A plea agreement has been negotiated between your attorney and the Commonwealth of Pennsylvania for docket 3778 of 2008. Do you understand that the judge is not bound by that plea agreement and does not have to follow it?
“Antonio Bones Castro: Yes, sir.
“Mr. Slcayhan: And do you further understand that if the judge does not sentence you in accordance with the plea agreement, you may withdraw your guilty plea and proceed further?
“Antonio Bones Castro: Yes, sir.
“Mr. Slcayhan: Do you understand — ■
“Mr. Slcayhan: Do you understand that the maximum permissible sentence for the charge of first-degree murder is death?
“Antonio Bones Castro: Yes, sir.
“Mr. Slcayhan: In light of your answers to the questions on the record and in light of your answers in the guilty plea colloquy, is it your intention to plead guilty and to be sentenced in accordance with the plea agreement?
“Antonio Bones Castro: Yes, sir.
“Mr. Slcayhan: By pleading guilty you admit that on or about June 22nd of the year 2008, you were in a car in Berks County, Pennsylvania with the victim Oscar Sanabria in the early morning hours of that day. You fired multiple shots in the body of Oscar Sanabria, emptying the gun, with the intent to kill Oscar Sanabria, and you did in fact kill him. After killing him you drove the vehicle to a location where you attempted to burn both the body and the vehicle. Do you agree to those facts?
“Antonio Bones Castro: Yes, sir.
“The Court: And with regard to the statement or the confession that you tried to suppress and which we had the hearing with regard to it. Was that a truthful statement at that time?
“Antonio Bones Castro: Yes, sir.
“The Court: With regard to what occurred?
“Antonio Bones Castro: Yes, sir.
“The Court: Okay.”

Finally, the record shows that at no time after the sentence was imposed did the defendant object on the basis that it was his understanding that he was only supposed to receive a 20 to 40 year sentence (N.T., guilty plea and sentencing hearing, pp. 47-48):

“The Court: All right. With regard to Antonio, you want to stand, please, Antonio. All right, this is CR-3778-08, Count 1, the charge of murder in the first degree, 18 Pa.C.S. §2502(a). And now, this 13th day, the sentence is that the defendant here, Antonio Bones Castro, be committed for a period of life in imprisonment without parole, and that sentence is to be Bureau of Corrections for confinement in a state correctional facility. This sentence shall be effective this date in accordance with the stipulation of counsel for both the defense and the Commonwealth. It is ordered that the defendant receive credit for 262 days time served. The court also directs that the defendant shall pay the court costs together with restitution which includes the funeral expenses of Oscar Sanabria in the sum of $4,914, and that will be paid jointly and severally with co-defendant Clarissa Castro.
“All right. Now, with regard to the post-sentence rights, I see that you have sent up to me the defendant’s acknowledgment of post-sentence procedure following a guilty plea.
“Mr. Joyce: That’s correct, your honor. I’ve reviewed the post-sentence procedures form with Mr. Castro. I’ve provided him a copy for his records and you have his signed acknowledgment of receipt of that copy.
“The Court: Did you have any questions with regard to that, Mr. Castro?
“Antonio Bones Castro: No, sir.”

We must also note that Attorney Joyce testified at the hearing on the amended first petition that he did have a discussion with the defendant concerning a possible 20 to 40-year sentence, but only in the context that such a sentence might be imposed in the event that the defendant were to proceed to trial and be found guilty of third-degree murder, as opposed to first-degree murder. N.T., PCRAhearing, pp. 40-41. Significantly, Attorney Joyce’s testimony was not rebutted in any way by the defendant. And certainly, given the fact that the defendant was charged with first-degree murder, which carries a mandatory sentence of life in prison or death under the Pennsylvania Crimes Code, we cannot conceive of any logical reason, nor has the defendant provided us with any, as to why Attorney Joyce, an experienced criminal defense attorney, would have made such a representation to the defendant. And so, for all of these reasons, we find that the defendant is not entitled to post-conviction relief on this claim, as it is without any arguable merit.

The defendant’s third and final claim is that he was threatened into pleading guilty and that, according to his amended petition, “if he hadn’t pleaded guilty, he would be hurt.” This threat allegedly came from an individual named Sammy Cruz, which had been communicated to him through other inmates at Berks County Prison, whose identities were unknown to him.

In Pennsylvania, the communication of a threat may be a basis for permitting a defendant to withdraw a guilty plea. See Commonwealth v. Porreca, 528 Pa. 46, 595 A.2d 23 (1991). However, it is also well settled that a defendant is bound by statements made in a written guilty plea colloquy. Commonwealth v. Stork, 737 A.2d 789 (Pa. Super. 1999). In this case, the defendant admitted that he never advised Attorney Joyce or anyone else, including the officials at Berks County Prison where he was incarcerated at the time, of this alleged threat. N.T., PCRA hearing, p. 59. This testimony was corroborated by Attorney Joyce, who indicated that the defendant never told him about any such alleged threat or expressed any concern about his safety at Berks County Prison N.T., PCRA hearing, p. 51. That leaves us with nothing more than the defendant’s unsubstantiated claim, which is directly contradicted by the following statement which appears in paragraph 15 on page two of his written guilty plea colloquy:

“No one has forced me to plead guilty or has threatened me to do so. I am pleading guilty of my own free will to the offenses listed on page one because I committed them.”

In view of that statement, and considering the fact that the defendant has failed to provide this court with any evidence whatsoever to support this claim, we must conclude that the defendant has not met his burden of proof that “manifest injustice” requires this court to allow him to withdraw his guilty plea, as it relates to this particular claim as well.

Accordingly, we enter the following attached order.

ORDER

And now, July 12,2010, the defendant’s amended first petition for relief under the Post Conviction Relief Act is denied.

      . Title 18, 18 Pa.C.S. §2502(a) (Supp. 2010).

      . Title 18, 18 Pa.C.S. §2502(c) (Supp. 2010).

      . Title 18, 18 Pa.C.S. §2702(a)(l) (Supp. 2010).

      . Title 18, 18 Pa.C.S. §907(b) (Supp. 2010).

      . Title 18, 18 Pa.C.S. §4910(1) (Supp. 2010).

      . Title 18, 18 Pa.C.S. §903(a)(l)(2) (Supp. 2010).

      . Clarissa Castro was charged with first-degree murder, third-degree murder, aggravated assault manifesting extreme indifference to the value of human life and criminal conspiracy to commit first-degree murder.

        On March 13,2009, in accordance with a “charge bargain” entered into with the Commonwealth, she entered a plea of guilty to the charge of criminal conspiracy to commit first-degree murder and was sentenced by this court to serve a period of two years to 59 months at Berks County Prison, with credit for 254 days time served. She was also ordered to pay the funeral expenses for Oscar Sanabria, jointly and severally with her brother, Antonio Bones Castro, in the amount of $4,914.

      . This court filed an opinion and order on February 19,2009 denying the defendant’s suppression motion, along with separate orders that same date (without opinions) denying his four motions challenging the Commonwealth’s intent to seek the death penalty and his application for habeas corpus relief.

      . N.T., guilty plea and sentencing hearing, pp. 47-48.

      . At the hearing, the defendant expressly indicated his understanding that, in the event that this court were to grant the relief which he is seeking, on any or all of his claims, he would be subject to the possible imposition of the death penalty if found guilty at trial of the charge of first-degree murder. N.T., PCRA hearing, pp. 4, 15.

      . He claims to have been taking three separate medications, including Sinequan and two others, the identity of which was unknown to him. N.T., PCPA hearing, p. 8.

      . As noted, Attorney Joyce, the defendant’s guilty plea counsel, did advise this court, in the defendant’s presence, that the defendant was taking medication for depression. (N.T., guilty plea and sentencing hearing, p. 11.)
      See also, questions 7 and 8 on the guilty plea colloquy, and the defendant’s answers thereto, as follows:
      “7.1 _X_ have_have not consumed alcohol, medication, or illegal drugs in the last 48 hours. Explain all consumption: Sinequan.
      “8.1JL do_do not currently suffer from mental illness. Explain any current illness: major depression.”

      . This court has not been able to find any case law defining what is meant by the term “arguable merit.”

      . Under Pennsylvania law, the PCRA court cannot find counsel to be ineffective if it determines that the particular course chosen by counsel had some reasonable basis designed to effectuate the client’s interest. Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060 (2006). If the court finds that counsel’s chosen course had some reasonable basis, the inquiry ends and counsel’s assistance is deemed to be constitutionally effective. Id.

      . To demonstrate prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s alleged ineffective assistance, he would not have pleaded guilty and would have instead gone to trial. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (quoting Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). The term “reasonable probability” has been defined as a probability sufficient to undermine confidence in the outcome. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067 (2006). The “reasonable probability” standard has been further defined as something less than the preponderance of the evidence standard. Commonwealth v. Hickman, supra at 141 (accord, Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986)).

      . This precedes the statement which then appears at paragraph 14 of the guilty plea colloquy, in which the defendant states:
      “I understand the nature ofthe charge to which I am pleading guilty.”

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