author: BANACH, J.,

text:
    Commonwealth v. Castillo

      C.P. of Lehigh County,
    no. 62/2010.

      Steven Luksa, for Commonwealth.

      Karen Schular, for defendant.

      November 1, 2010
   BANACH, J.,

On February 17, 2010, the above-captioned defendant was arraigned on one count of criminal homicide, one count of robbery, one count of theft by unlawful taking, and one count of receiving stolen property. Timely omnibus pretrial motions were filed on March 19,2010, including a motion to suppress results of search warrant issued November 19, 2009, motion to suppress search warrant issued November 20, 2009, motion to suppress court orders pursuant to 18 Pa.Con.Stat.Ann. §5721.1 (b)(2) and (6), motion to dismiss robbery charge, motion to suppress defendant’s statements, and motion to bar Commonwealth from seeking death penalty. A pretrial motion hearing was held before this court on July 20,2010. At the conclusion of the hearing, the court took the omnibus pretrial motions under advisement.

On September 9, 2010, the defendant submitted a brief in support of omnibus pretrial motions, specifically addressing the motions to suppress the search warrants issued November 19, 2009 for the defendant’s person, the motion to suppress the court orders authorizing the defendant’s electronic records, and the motion to suppress the search warrant issued for the defendant’s arrest, a cellular telephone and cellular telephone accessories. On September 23, 2010, the commonwealth submitted its response to the defendant’s pretrial motions.

Upon consideration of the defendant’s omnibus pretrial motion, the briefs submitted by the defendant and the commonwealth, relevant case law and the applicable statutes, the defendant’s omnibus pretrial motion is denied.

SUMMARY OF THE FACTS

On November 17, 2009, members of the Allentown Police Department were summoned to 516 North Park Street in the City of Allentown, Lehigh County, Pennsylvania. Upon their arrival, police observed an unresponsive male lying on the ground in the vestibule area of the home, approximately ten feet from the front door. Police observed a bleeding head laceration. The victim was identified as Mr. Delfino Sanchez-Villaneueva.

In addition to Mr. Sanchez’s body, Detective Pedro Cruz of the Allentown Police Department, who responded to the scene, observed what appeared to be blood stain that had been attempted to be cleaned on the wall where Mr. Sanchez was laying. Further, police officers found part of a brick and a blood-soaked white, black and gold Pittsburgh Steelers sweatshirt/sweater in the trash container in the kitchen area of the residence. These items were secured and taken into evidence.

An autopsy was performed by Dr. Sara Funke. The cause of death was blunt force head trauma and the manner of death was ruled a homicide.

Through investigation, police determined that Mr. Sanchez and the owner of the residence, Mr. Francisco Garcia, were the only individuals living at the residence. However, the defendant formerly resided at the home and had recently moved out. Additional police investigation established that Mr. Sanchez had withdrawn money from his bank account hours before his death (approximately $4,400) and wired a portion of the money (approximately $1,000) to the Dominican Republic at Mundo Satellite, Inc., located at 607 North 7th Street, Allentown, Lehigh County, Pennsylvania. Approximately one hour following the victim’s transaction at Mundo Satellite, the defendant wired money (approximately $1,000) to the Dominican Republic, also from Mundo Satellite.

Although no video surveillance from November 17, 2009 was obtained, police were able to obtain video from Mundo Satellite that reflected the defendant’s prior transactions. Two weeks before the victim’s death, video captured the defendant making a transaction wearing a white Pittsburgh Steelers shirt similar to the blood-covered shirt recovered from the murder scene.

Police also obtained surveillance video from locations in the general vicinity of 516 North Park Street on the day of the murder. Both the victim and defendant were identifiable as being in the same general area at roughly the same time.

On November 19, 2009, Detective Cruz applied for a search warrant for the body of the defendant, seeking items including the defendant’s blood, fingerprints and buccal swabs. On the same date, court orders were issued, authorizing electronic records pertaining to two cellular telephone numbers used by the defendant.

On November 20, 2009, the defendant was taken into custody for the purposes of executing the search warrant for his body. At that time, the defendant was given Miranda warnings, signed a waiver of his rights and was interviewed in Spanish by Detective Cruz, in the presence of Detective Glenn Granitz, Jr. During the interview, the defendant told Detective Cruz that he was present at the victim’s residence on November 17, 2009 and that while there, he and the victim argued over money the victim owed to the defendant. The defendant related that a struggle eventually ensued in the kitchen area, resulting in the defendant going to the basement, retrieving a brick and striking the defendant in the back of the head multiple times. The defendant removed a large amount of money from the victim’s pocket, attempted to clean up the blood, and discarded his Pittsburgh Steelers shirt in the kitchen garbage can.

DISCUSSION AND CONCLUSIONS OF LAW

The defendant’s omnibus pretrial motion contains a motion to suppress results of search warrant issued November 19, 2009, a motion to suppress search warrant issued November 20, 2009, a motion to suppress court orders (for the electronic records) pursuant to 18 Pa.Con. Stat.Ann. §5721.1 (b)(2) and (6), a motion to dismiss robbery charge, a motion to suppress defendant’s statements, and a motion to bar commonwealth from seeking death penalty.

Motion to Suppress the November 19, 2009 and November 20, 2009 Search Warrants

First, the defendant argues that the search warrant issued on November 19,2009 for the body of the defendant ought to be suppressed because probable cause was not shown within the four comers of the affidavit. Specifically, the warrant in question listed “items to be seized” as “buccal swabs, fingernail scraping, blood, fingerprints, clothing, body inspection for cuts and bruises, photograph of [defendant] and house keys.” OPTMEx. C-14. Second, the defendant argues that the four comers of the affidavit attached to the November 20, 2009 search warrant does not contain specific information connecting the defendant to the victim’s death. The defendant argues that based on the facts put forth in the affidavits attached to each warrant, no probable cause was substantiated and the warrants were improperly granted.

Article 1, Section 8, of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

The Fourth Amendment of the United States Constitution states:

The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, Section 8, was drafted to protect persons from unreasonable searches and seizures conducted pursuant to general warrants. See Commonwealth v. Edmunds, 526 Pa. 374, 393, 586 A.2d 887, 896-97 (Pa. 1991). See also Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d 896 (Pa. 1989). “The linch-pin [sic] that has been developed to determine whether it is appropriate to issue a search warrant is the test of probable cause.” Edmunds at 899 (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191 (Pa. 1986)). “Probable cause exists where the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted.” Commonwealth v. Jones, 605 Pa. 188, 199, 988 A.2d 649, 655 (Pa. 2010) (citing Commonwealth v. Thomas, 448 Pa. 42, 52, 292 A.2d 352, 357 (Pa. 1972)).

Probable cause is determined based on the totality of the circumstances and such “determinations must be based on common sense non-technical analysis.” See Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (Pa. 1985). “The determination of probable cause must be based on facts described within the four corners of the supporting affidavit.” Commonwealth v. Way, 492 A.2d 1151, 1154 (Pa. Super. 1985). “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 484, 503 A.2d at 925. (citing Jones v. United States, 362 U.S. 257, 271,(1960)).

The defendant argues that the affidavit attached to the November 19, 2009 search warrant application contained insufficient probable cause for the magistrate to authorize the search warrant of the defendant. Specifically, the defendant argues that “[n]othing was stated [in the affidavit]...that DNA, hair or blood was sent to the laboratory for testing and/or any link indicating that there was evidence to be compared to the defendant.” Def. Br. OPTM, 6. Further, he argues that the only facts linking the defendant to the homicide were that he a) wore a Steelers shirt two weeks prior the homicide and b) that he sent money to the Dominican Republic, which he had done previously. Id. at 6-7. The commonwealth highlights the probable cause affidavit by its reference to the fact that the warrant was issued within two days of the homicide, the police determination that there was a struggle within the residence (i.e. blood smears on the walls, injuries determined to be indicative of a struggle), there was no observable indicia of a forced entrance into the victim’s residence, the defendant was a prior roommate of the victim, that the victim had withdrawn a large sum of money from his bank account and had wired money to the Dominican Republic the morning of his demise, and that the defendant wired money from the same location (Mundo Satellite, Inc.) to the Dominican Republic within an hour of the victim’s death. Further, police had viewed surveillance video taken from Mundo Satellite eleven days prior to the murder, depicting the defendant wearing a Pittsburgh Steelers sweatshirt similar in style to the bloody one recovered at the murder scene.

We believe that the magistrate had sufficient probable cause to issue the warrant in this case, based on the information provided within the four corners of the affidavit attached to the search warrant application. The magistrate was presented with evidence that a struggle between the victim and his assailant took place in the victim’s residence, absent indicia of forced entry. A subsequent autopsy noted the wounds on the victim’s body, including bruising on the victim’s neck and back and lacerations to the victim’s neck consistent with having been made by fingernails during a struggle. The police learned that the defendant was the victim’s former roommate. The police also noted evidence of blood smears on the walls, blood in the kitchen sink drain, and in the basin of a water cooler in the kitchen. The bloodied Pittsburgh Steelers sweatshirt found in the victim’s residence was also consistent with the surveillance footage depicting the defendant wearing a similar item during prior transactions at Mundo Satellite. Viewing the facts presented in the warrant, a magistrate employing a “practical” and “common sense” approach to the evidence could reasonably conclude that there is a fair probability that contraband or evidence of a crime will be found in a particular place (i.e. the defendant’s person).

The defendant argues that there was insufficient probable cause within the four corners of the affidavit to issue the November 20, 2009 search warrant, which authorized the seizure of the defendant, his T-Mobile cellular telephone and accessories, all located at 711 North 8th Street, Allentown, Lehigh County, Pennsylvania. Specifically, the defendant contends that the affidavit “does not specify, in any way, how the defendant was connected to the crime of the victim’s homicide.” Def. Br. OPTM, 9.

After review of the affidavit of probable cause (Attachment A) for the November 20, 2009 warrant, the court disagrees with the defendant, finding sufficient probable cause within the four corners of the document. Magistrate David Leh was presented with information that the victim’s was found deceased at 516 N. Park Street, Allentown, Pennsylvania with a deep laceration to his head. Asubsequent autopsy concluded that the victim’s homicide was a result of blunt force trauma to the head and that there were wounds on the victim consistent with a struggle. The affidavit also referred to the November 19, 2009 sealed search warrant for buccal swabs, fingernail scrapings, and a search of the body of the defendant and the court orders authorizing the monitoring of the defendant’s cellular telephone’s location. Also, the result of the monitoring concluded that the defendant’s cellular telephone was consistently located in the immediate vicinity of 711 N. 8th Street, Allentown. Further information included the fact that the defendant’s girlfriend, Elvira Betances-Lora, was believed to live in the area of North 8th Street, in the vicinity of Washington and Tilghman Streets and she listed the defendant as being present at 711 N. 8th Street as recently as September 2009, according to a police report. Investigation confirmed that the defendant was still in possession of the cellular telephone as of 10 p.m. on November 19, 2009.

Again, viewing the information available within the four corners of the affidavit would allow the magistrate to make a “common sense” and “practical” determination that execution of the November 20, 2009 warrant would result in a fair probability that contraband or evidence of a crime will be found in a particular place (i.e. the 711 North 8th Street). Therefore, the court declines to suppress the results of the November 20, 2009 search warrant.

Motion to Suppress the November 19, 2009 Court Orders regarding Electronic Records

On November 19, 2009, Allentown Police Detective Glenn Granitz, Jr. applied for two court orders regarding the defendant’s cellular telephone numbers, 484-951-1144 and 484-619-7813, pursuant to 18 Pa.Cons.Stat. §5743 and in accordance with 18 U.S.C. § 2703(d) (2009). On the same date, each court order was signed by the Honorable William H. Platt. Both court orders permitted the commonwealth to obtain detailed cellular records, including text messages sent and received, subscriber information and the capability to employ “pinging and cell site tower triangulation to locate the ‘real time’ of the cellular phone(s) location(s).”

Pursuant to §5743 (d), a court order for such information shall “be issued only if the investigative or law enforcement officer shows that there are specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” Therefore, the court must determine whether the affidavits attached to the court orders presented to Judge Platt exhibited a reasonable belief that the information would be relevant and material to the investigation concerning Mr. Sanchez.

In the case at bar, each court order provided that on November 17, 2009, Mr. Sanchez was found deceased in his home without signs of forced entry and that he had recently received a retirement fund payout in excess of $4,000. According to the victim’s daughter, Mr. Sanchez was going to withdraw money on the morning of November 17,2009 to make payments on debts. Via video surveillance, detectives were able to confirm that Mr. Sanchez went to Mundo Satellite at approximately 9:20 am to send approximately $700.00 to family members abroad. Police were able to determine that the victim left Mundo Satellite and appeared to walk towards his home. At approximately 10:21 am, the defendant arrived at Mundo Satellite in possession of $1,000.00. At Mundo Satellite, the defendant provided his telephone number as 484-951-1144 during several transactions previously made at Mundo Satellite. Additional information was provided that the defendant had also made telephone calls from cellular telephone number 484-619-7813.

This information included in the affidavit attached to the court orders, provided “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” Therefore, the issuing of these court orders was valid and the information and evidence obtained from them is not suppressed.

Motion to Dismiss: Robbery

The defendant argues that the commonwealth did not present a prima facie case for the offense of robbery at the time of the preliminary hearing and that it also failed to establish the corpus delecti for the offense of robbery. After review of the facts of the instant case and relevant case law, the defendant’s motion to dismiss is denied.

“In Pennsylvania, a person accused of a crime, with certain exceptions...has a right to a preliminary hearing.” Commonwealth exrel. Buchanan v. Verbonitz, 525 Pa. 413, 416, 581 A.2d 172, 173 (Pa. 1990). “The

principal reason for a preliminary hearing is ‘to protect an individual’s right against unlawful arrest and detention.” Id., citing Com. ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (Pa. 1964). The Commonwealth bears the burden at a preliminary hearing of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. See Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (Pa. 1978); Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (Pa. 1975). To sustain that burden, it is well settled that the Commonwealth must produce evidence, such as to present “‘sufficient probable cause to believe that the person charged has committed the offense stated;’ in other words, it should make out a prima facie case of guilt. It should be such that if presented at the trial in court, and accepted as true, the judge would be warranted in allowing the case to go to the jury.” Commonwealth ex rel. Scolio v. Hess, 27 A.2d 705, 707 (Pa. Super. 1942) (citation ommited). Such evidence will be read in the light most favorable to the Commonwealth. See Commonwealth v. Keller, 823 A.2d 1004, 1010 (Pa. Super. 2003).

The prima facie standard requires that the commonwealth’s evidence must establish that the crime has been committed. Commonwealth v. Devlin, 440 A.2d 562 (Pa. Super. 1982); Commonwealth v. Beatty, 421 A.2d 1159 (Pa. Super. 1980). To satisfy this requirement, the evidence must show the existence of each of the material elements of the charge. See Hess at 707. While the weight and credibility of the evidence are not factors at this stage, and the commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense, the absence of evidence as to the existence of a material element is fatal. See Commonwealth v. Wojdak, 502 Pa. 359, 369-70, 466 A.2d 991, 997 (Pa. 1983). Thus where the commonwealth’s case relies solely upon a tenuous inference to establish a material element of the charge, it has failed to meet its burden of showing that the crime charged was committed. Id. (emphasis in the original). However, “[inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect.” Commonwealth v. Owen, 580 A.2d 412, 414 (Pa. Super. 1990).

While the commonwealth’s prima facie burden may be established with wholly circumstantial evidence, “before the Commonwealth may introduce a defendant’s confession, it must first establish by independent evidence that a crime has in fact transpired.” Commonwealth v. Herman, 431 A2d 1016, 1022 (Pa. Super. 1991); see also Commonwealth v. Stasiak, 451 A.2d 520, 523 (Pa. Super. 1982). Such a rule “is fundamental to our criminal judicial process. ‘The grounds on which the doctrine rests is 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.’” Herman at 1022 (citing Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (Pa. 1940)). “In establishing a criminal case, it is incumbent upon the Commonwealth to show: ‘(1) that a loss has occurred; (2) that the loss occurred through a criminal agency, and (3) that the accused was, in fact, the perpetrator of the deed.’” Id. (internal citations omitted). “The corpus delicti of a crime consists of the first two factors or elements.” Id. (internal citations omitted). “These two elements are, therefore, the ones to be proven prior to and independent of the [defendant’s] confession. However, these elements need not be proven directly; it is sufficient that the evidence offered to establish a corpus delicti is circumstantial.” Id. (citing Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (Pa. 1967). “The Commonwealth need not prove the existence of a crime beyond a reasonable doubt as an element in establishing the corpus delicti of a crime, but the evidence must be more consistent with a crime than with accident.” Commonwealth v. Dupre, 866 A.2d 1089 (Pa. Super. 2005)(citing Commonwealth v. McMullen, 745 A.2d 683 (Pa. Super. 2000)).

One exception to the corpus delecti rule is what is commonly referred to as the closely related crimes exception, which states:

where a defendant’s confession relates to two separate crimes with which he is charged, and where independent evidence establishes the corpus delicti of only one of those crimes, the confession may be admissible as evidence of the commission of the other crime. Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003).

“This exception applies only where the relationship between the crimes is sufficiently close so as to ensure that the purpose underlying the corpus delicti rule, i.e., to prevent conviction where no crime has occurred, is not violated.” Dupre at 1099. In Commonwealth v. Bardo, 575 Pa. 140, 709 A.2d 871 (Pa. 1998), the defendant gave a statement to police confessing to killing and sexually assaulting a three-year-old victim. The trial court allowed the statement to be admitted regarding both crimes although the commonwealth introduced no evidence of sexual assault prior to introducing the confession. The court deemed the crimes sufficiently close and allowed the admission of the confession.

The defendant is charged with robbery, pursuant to 18 Pa.Con.Stat.Ann. §3701 (A)( 1 )(i), which provides:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another

In the instant case, when reviewing the evidence presented at the preliminary hearing, absentthe defendant’s statement, it is apparent that the commonwealth has presented a prima facie showing regarding the charge of homicide. At the preliminary hearing, Detective Cruz testified that it became apparent at the crime scene that a struggle had taken place involving the deceased victim, who was lying in the vestibule area with head laceration. Detective Cruz observed that someone had attempted to clean blood from the wall in the immediate vicinity of where the victim was found and the victim’s body was bruised. Further, a blood-soaked brick and blood-stained Pittsburgh Steelers sweatshirt were found in the trash container in the victim’s kitchen. Dr. Funke opined that the manner of death was homicide.

Detective Granitz testified at the OPTM hearing that a withdrawal of $4,400 was made by the victim on the morning of his demise. Minutes later, the victim sent approximately $672.75 via a wire transfer at Mundo Satellite. On that same date, approximately one hour later, the defendant wired $1,035 at Mundo Satellite. Further investigation revealed that the defendant wore a Pittsburgh Steelers sweatshirt similar to the one recovered from the murder scene when he visited Mundo Satellite weeks prior to the alleged homicide.

The commonwealth has clearly established the corpus delecti of the crime of homicide via testimony taken at the preliminary hearing and the OPTM. It is also clear that the charges of homicide and robbery in this instant are sufficiently close to allow the defendant’s statement to police to be admitted. This statement, coupled with the testimony taken at both hearings, establishes a prima facie charge of robbery.

Motion to Suppress Defendant’s Statements

The defendant argues that after he was taken into custody via the November 20, 2009 search warrant, he made various statements regarding the charged offenses but that this statement was not made knowingly, voluntarily, or intelligently.

At the Preliminary hearing and at the OPTM hearing, Detective Pedro Cruz testified that he interviewed the defendant, in the presence of Detective Glenn Granitz, Jr., on November 20,2009. When the defendant was taken into custody, Detective Cruz, speaking in Spanish, identified himself to the defendant. The defendant told Detective Cruz that he knew what this was about, that he had made a mistake, and that he wanted to give his side of the story.

At police headquarters, Detective Cruz began to speak with the defendant in English until the defendant told the detective that his primary language was Spanish. Subsequently, Detective Cruz and the defendant spoke in Spanish. The defendant was taken to the detective bureau where he was given a drink. Detective Cruz spoke in a calm, friendly tone. The defendant too was calm and appeared eager to speak with police. The defendant was informed as to why he was being booked and interviewed and was told about the search warrant. The defendant replied that the victim was like a father to him and that the defendant cared deeply for him.

The defendant was given his Miranda warnings, signed a waiver of rights form, and agreed to have the interview audio taped. The defendant was told that because Detective Granitz did not speak Spanish, Detective Cruz would be translating the conversation for him. The defendant appeared to understand the detective’s questions.

First, the defendant told the police that he arrived at the victim’s home, went into the home via the kitchen entrance and saw the victim lying on the ground, bleeding and having trouble breathing. Ele stated that he then moved the victim by putting his hands on Mr. Sanchez’ neck, became panicked and left for New York. Later in the conversation, the defendant’s story changed. He told the police that Mr. Sanchez owed him money so when he saw that Mr. Sanchez was bleeding, he took some money from him. Further along in the conversation, the defendant changed his story again. He told Detectives Cruz and Granitz that Mr. Sanchez owed him money and that he went to Mr. Sanchez’s home to collect the money. The two began to argue when the victim became aggressive towards the defendant. The defendant went to the basement and retrieved a brick, hit the victim in the head multiple times and moved the victim to the living room area. The defendant then removed approximately $1,250.00 from the victim’s body.

Detective Cruz recalled that the defendant was cooperative and answered the questions posed appropriately. At no point did the defendant ask to speak to a lawyer, or decline to speak to the police. He was given a break to use the restroom, and later gave consent to the officers to go back to his residence to retrieve certain items. At the conclusion of his oral interview, the defendant gave a written statement.

“A constitutional burden is upon the Commonwealth to show voluntariness of a confession by a preponderance of the credible evidence.” Commonwealth v. Moore, 454 Pa. 337, 341, 311 A.2d 620, 622 (Pa. 1973). “While there is of course no single litmus-paper test for determining constitutionally impermissible interrogation,... the ultimate test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice by its maker.” Commonwealth v. Alston, 456 Pa. 128, 133, 317 A.2d 241, 243 (Pa. 1974). “An evaluation seeking to determine whether a confession is involuntary because of psychological coercion must consider those elements impinging upon a defendant’s will such as: the duration, and the methods of interrogation; the conditions of detention, the manifest attitude of the police toward the defendant, the defendant’s physical and psychological state and all other conditions present which may serve to drain one's powers of resistance to suggestion and undermine his self-determination.” Id. at 133-34, 317 A.2d at 244.

It is apparent from the testimony at the preliminary hearing and the OPTM hearing that the police interaction with the defendant was appropriate and the interrogation was constitutionally permissible. There was no suggestion that the police employed tactics to overcome the will of the defendant or to undermine his self-determination. Therefore, the court denies the defendant’s motion to suppress his statement.

Motion to Bar Commonwealth from Seeking Death Penalty

The defendant alleges that the commonwealth filed its notice to pursue the death penalty based upon the allegation that the murder of Mr. Sanchez was perpetrated during the commission of a felony, namely robbery. He avers that because the commonwealth was unable to sustain a prima facie case of robbery, pursuing the death penalty would expose the defendant to excessive punishment. We disagree.

For the reasons stated in a previous section of this opinion, it is the belief of this court that the commonwealth has established a prima facie case of robbery and that the defendant’s confession is admissible at trial. The confession itself is “sufficient evidence that the killing was perpetrated in the course of a felony.” See Bardo at 875. Therefore, if a jury were to impose the death penalty after a finding of guilty on the charge of homicide and finding that the killing “occurred in the course of a felony” said imposition of the death penalty would be permissible. The commonwealth will be permitted to pursue the death penalty based upon the allegation that the murder was perpetrated during the commission of a felony.

CONCLUSION

Based on the foregoing analysis, the briefs submitted by the defendant and the commonwealth, relevant statute and case law, the defendant’s omnibus pretrial motion is denied.

ORDER

And now, November 1, 2010, upon consideration of the defendant’s omnibus pretrial motion, including a motion to suppress results of search warrant issued November 19, 2009, motion to suppress search warrant issued November 20, 2009, motion to suppress court orders pursuant to 18 Pa.Con.Stat.Ann. §5721.1 (b)(2) and (6), motion to dismiss robbery charge, motion to suppress defendant’s statements, and motion to bar commonwealth from seeking death penalty, filed on March 19, 2010.

It appearing that the defendant has submitted a brief in support of his omnibus pretrial motion and the commonwealth has submitted a brief in response, and upon consideration of both briefs, relevant statutes and case law precedent;

It is ordered that the defendant’s motion is hereby denied.

      . 18 Pa.Con.Stat.Ann. §2501

      . 18Pa.Con.Stat.Ann. §3701 (A)(1)

      . 18 Pa.Con.Stat.Ann. §3921

      . 18 Pa.Con.Stat.Ann. §3925

      . Detective Cruz testified that he and the defendant were speaking Spanish to each other during the interview. Detective Cruz would explain the exchange, in English, to Detective Granitz.

      . See Commonwealth v. Madison, 462 A.2d 228 (Pa. 1983) (suggesting that DNA collection via a warrant could provide evidence of a struggle) and Commonwealth, v. Robson, 337 A.2d 573 (Pa. 1975) (suggesting that the collection of a sample of the defendant’s pubic hair based upon probable cause of sexual activity based on the nudity of the decedent and condition of the bed in the home was proper).

      . The court agrees with the Commonwealth that the defendant’s reliance on Commonwealth v. Riffert, 549 A.2d 566 (Pa.Super. 1988) and Commonwealth v. Doty, 498 A.2d 870 (Pa.Super. 1985) for the notion that the Commonwealth must demonstrate probable cause to obtain court orders pursuant to §5743 is in error. These cases dealt with police application for a contemporaneous listening of a live conversation, distinguishable from the instant case.

      . The court would also find that the commonwealth has sustained its prima facie burden regarding the homicide charge but this aspect was not challenged by the defendant.


source: Caselaw Access Project

author: BAER, Member,

license: Public Domain

text:
    In the Matter of Malone

      Disciplinary Docket no. 131 DB 2004.
    October 4, 2010
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

BAER, Member,

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

I. HISTORY OF PROCEEDINGS

By order of April 25, 2006, the Supreme Court of Pennsylvania suspended Andrew F. Malone from the practice of law for a period of five years, retroactive to September 1, 2004. On November 17, 2009, Mr. Malone filed a petition for reinstatement. Office of Disciplinary Counsel filed a response to petition on February 16, 2010.

A reinstatement hearing was held on April 7, 2010, before a District II Hearing Committee comprised of Chair Dennis D. Brogan, Esquire, and Members Paul C. Troy, Esquire, and Albert P. Massey, Jr., Esquire. Petitioner was represented by Samuel D. Miller, III, Esquire. Petitioner presented the testimony of eight witnesses and testified on his own behalf. He presented five letters of reference.

The Hearing Committee filed a report on June 3, 2010 and recommended that the Petition for Reinstatement be granted.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on July 17, 2010.

II. FINDINGS OF FACT

The board makes the following findings of fact:

1. Petitioner is Andrew F. Malone. He was born in 1947 and was admitted to the practice of law in Pennsylvania in 1972. His business address is 1000 N. Providence Road, Media, Pa. 19063. He is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

2. By order of the Supreme Court of Pennsylvania dated April 25, 2006, petitioner was suspended for a period of five years, retroactive to September 1, 2004.

3. The underlying misconduct was petitioner’s criminal conviction for criminal attempt to commit involuntary deviate sexual intercourse. Petitioner was arrested after engaging in Internet contact with an agent of the Pennsylvania Attorney General’s Office who posed as a mother of two minor girls who then arranged a meeting which was to involve this individual and the two minors for purposes of sexual activity.

4.Petitioner was sentenced to 12 months less one day to 24 months less one day imprisonment with immediate parole after completion of the minimum sentence, credit for good time and five years consecutive probation thereafter.

5. Petitioner complied with all aspects of his sentence and his probation was terminated early as of June 25, 2009.

6. At the reinstatement hearing, petitioner provided evidence that he is rehabilitated from the sexual addiction that led to his arrest and conviction. In petitioner’s prior disciplinary proceeding, this sexual addiction was found to be a causal factor in his misconduct.

7. Alyson Nerenberg, Psy.D, is a licensed psychologist since 1997 and is a certified specialist in treating sexual addictions.

8. Petitioner was referred to Ms. Nerenberg on June 6, 2006. Ms. Nerenberg evaluated petitioner individually and as part of group therapies she conducts. Petitioner is a regular attendee of the group sessions. He has accepted responsibility for his conduct and criminal conviction, and has expressed remorse, contrition and sorrow for his actions.

9. Ms. Nerenberg opined that so long as petitioner continues to attend 12-step meetings on a regular basis and group therapy she sees no risk of him returning to the same behavior or committing an offense such as in the past.

10. Ms. Nerenberg opined that petitioner did not have a sexual attraction to pre-adolescent children and was not a pedophile.

11. Nicholas Honyara is a supervisor with Montgomery County Adult Probation and has a specialized case load of sex offenders. Mr. Honyara supervised petitioner for approximately two years.

12. This supervision included visits with petitioner four times per month including unannounced home visits where Mr. Honyara would conduct computer searches.

13. Petitioner complied with all directives and assignments given him including undergoing periodic polygraph examinations.

14. Petitioner volunteered for a special project involving a training video for probation officers who monitor sex offenders.

15. Petitioner provided extensive testimony as to his rehabilitation.

16. Petitioner described his actual relief when he was arrested due to his inward feelings of turmoil. Petitioner initially had residential in-patient treatment for six weeks in 2003, started on a 12-step program to recovery and has been involved with a number of group therapies, including an initial sex offender program and then with the program supervised by Dr. Nerenberg. He has remained in continuous treatment since his arrest.

17. Petitioner described the support groups as providing hope to allow him to recover and interact appropriately. He believes that his treatment has improved his interaction with his wife and children and he wants to continue with ongoing therapy.

18. Petitioner acknowledged his wrongdoing and criminal conduct and continues to express remorse, guilt, and shame over these incidents. He testified that “with everything in me” he will do all that he can to forever avoid similar conduct.

19. Petitioner described an incident of relapse that occurred in 2006. He attributed it to anxiety over an employment situation which led him to look at pornography over the Internet. It was a one-time event. Petitioner immediately told his therapy group, his probation officer and his wife. Since that time, petitioner has not had any setbacks.

20. Petitioner’s testimony was credible and convincing that he accepted responsibility for his actions, that he was remorseful for having engaged in the actions which resulted in his criminal conviction and that he has rehabilitated himself so that he would not engage in the type of misconduct which led to his criminal conviction.

21. Petitioner presented the testimony of character witnesses.

22. David T. Videon, Esquire, David Feldheim, Esquire, and Andrew Cantor, Esquire, have all known petitioner in his professional capacity for many years. These witnesses described petitioner’s legal work as excellent. These witnesses have observed that petitioner is rehabilitated and prepared to resume his professional career.

23. Edward Lodge is a long-standing friend of petitioner and has witnessed petitioner’s great remorse and significant rehabilitative efforts. Mr. Lodge fully supports petitioner’s resumption of the practice of law.

24. Edward Motley, Jr., is a member of the same sex offenders group as petitioner and permitted his name to be used for this proceeding. He testified credibly to petitioner’s acceptance of responsibility, contrition and remorse.

25. Deborah Malone is petitioner’s wife. She has stood by his side and supported him through these very difficult times. She described petitioner’s repeated expressions of remorse for the impact of his actions on the Malone family. Mrs. Malone feels certain that petitioner will avoid any similar conduct in the future.

26. Petitioner presented five letters of support for his return to the practice of law, further attesting to his good character, integrity, remorse, recovery, and commitment to his recovery.

27. During his suspension, petitioner held different jobs, but has been employed primarily as a paralegal for David Videon, Esquire. Mr. Videon ensured thatpetitioner’s conduct was in compliance with the Rules of Disciplinary Enforcement pertaining to suspended lawyers.

28. Petitioner fulfilled his continuing legal education requirements necessary for reinstatement and reviewed the Delaware County Legal Journal to stay apprised of the current law.

29. If reinstated, petitioner plans to engage in a general practice of law in Delaware County.

30. Office of Disciplinary Counsel does not oppose reinstatement.

III. CONCLUSIONS OF LAW

1. Petitioner demonstrated by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice law in the Commonwealth of Pennsylvania. Pa.R.D.E. 218(c)(3).

2. Petitioner demonstrated by clear and convincing evidence that the resumption of the practice of law within the Commonwealth of Pennsylvania will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Pa.R.D.E.218(c)(3).

IV. DISCUSSION

Petitioner is a suspended attorney who seeks readmission to the practice of law in Pennsylvania. In support of his reinstatement, he filed a reinstatement questionnaire. He testified on his own behalf and provided the testimony of eight witnesses and five letters of reference.

Petitioner was suspended for a period of five years by order of the Supreme Court of Pennsylvania dated April 25, 2006, retroactive to September 1, 2004. Pursuant to Rule 218(a)(1), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice nor be subversive of the public interest. Rules 218(c)(3), Pa.R.D.E.

A reinstatement proceeding is a searching inquiry into a lawyer’s current professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehábilitative efforts the lawyer has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia News, Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (Pa. 1976).

Petitioner’s suspension was the result of his conviction for criminal attempt to commit involuntary deviate sexual intercourse. In petitioner’s underlying disciplinary action, which culminated in the order of suspension issued in 2006, the Disciplinary Board concluded that petitioner proved he suffered from sexual addiction which caused his misconduct. In the instant reinstatement proceeding, petitioner presented clear and convincing evidence that he has been rehabilitated from his addiction and is fit to resume the practice of law.

Petitioner immediately and fully admitted his criminal conduct and since his arrest in December 2002 has been involved in extensive treatment. His treatment to address his sexual addiction has involved in-patient treatment, closely monitored conduct while on probation, and continued therapy to the present. The credible and persuasive testimony of Dr. Alyson Nerenberg established that so long as he continues with group therapy, petitioner will not return to the conduct which led to his criminal conviction and suspension from the practice of law.

Petitioner’s testimony is equally credible and persuasive as to his commitment to recovery. His dedication to his recovery led to an early release from his criminal sentence, and voluntary participation in a training video for probation officers who monitor sex offenders. Petitioner is fully supported in his recovery efforts by his wife and adult children, as well as friends and colleagues, in addition to the structured support he receives through group therapy. Petitioner revealed one incident of relapse in 2006 and described how he handled the situation by fully disclosing it to his probation officer, therapy group and his wife. He has not had any other relapses. Petitioner is fully remorseful and contrite for his past actions.

Petitioner presented strong evidence corroborating his remorse and recovery. He also presented strong evidence pertaining to his excellent legal skills. All of the witnesses support petitioner’s readmission to practice and believe he will be an asset to the bar.

The record supports the conclusion that petitioner has met the requirements of Rule 218(c)(3) and should be reinstated to the practice of law in Pennsylvania.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Andrew F. Malone, be reinstated to the practice of law.

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

ORDER

And now, October 4, 2010, upon consideration of the report and recommendations of the Disciplinary Board dated August 19, 2010, the petition for reinstatement is granted.

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


author: JELIN, J.,

text:
    McConnell v. Dunfee

      Joseph L. Messa Jr., for plaintiffs.

      John F.X. Monaghan Jr., for defendant Dunfee.
    November 5, 2010
   JELIN, J.,

This was a medical malpractice action brought by the Estate of James C. McConnell, who had congenital heart problems and died on February 12, 2005. The approximately four-week trial commenced before the Honorable Sheldon C. Jelin on October 2, 2009.

On October 30, 2009, the jury returned a $660,000.00 verdict in favor of plaintiffs and against defendants Dr. Dunfee (20%) and Hahnemann Univ. Hosp. (30%), with 50% comparative negligence found against decedent. With respect to the eight remaining defendants, the jury returned a defense verdict. Plaintiffs filed a motion for post-trial relief, which was denied on March 8, 2010.

Plaintiffs now appeal the trial court’s order of March 8, 2010, denying plaintiffs’ motion for post-trial relief.

FACTS

Plaintiffs’ decedent had congenital heart problems and died at age 29. Decedent had a history of heart problems. He had had three heart surgeries by the time he was 12 years of age. He had been instructed and knew he should have constant follow-up care for his heart condition.

Yet, by his own admission, he did not have any followup care since he was 16 years old. Decedent was a smoker and suffered from asthma.

In October, 2004, decedent was playing football without any contact equipment. During this football game, decedent injured his right shoulder.

Several days after his injury he went to the emergency room at Frankford Hospital and complained of the injury to his shoulder. X-rays were taken and studies were made of his shoulder.

Decedent then saw Dr. Dunfee. From decedent’s first visit with Dr. Dunfee, he told Dr. Dunfee he had not seen a heart physician since he was a teenager, although he knew he was supposed to see one and did not.

Dr. Dunfee continuously told decedent to see a heart doctor or cardiothoracic surgeon and follow up on a yearly basis.

Thereafter, decedent had several more visits to various hospitals and doctors complaining only of pain in the area of his injury.

In February, 2005, decedent had heart surgery by Dr. Entwistle at Hahnemann Hospital. The doctor thought the surgery went well and cleared the decedent for discharge.

Unfortunately, at home, a few days after his discharge from the hospital, he died.

Decedent’s estate then brought this lawsuit against the hospitals and doctors who treated decedent from the onset of the football injury until his death.

PLAINTIFFS’ MATTERS COMPLAINED OF ON APPEAL

Plaintiffs complain of several matters on appeal. The court will address them as follows:

1. “The trial court erred when it permitted the defendants/appellees to introduce decedent’s Death Certificate into evidence to establish cause of death. ”

Plaintiffs contend that the court erred when it denied plaintiffs’ motion in limine to preclude the introduction of decedent’s death certificate. Plaintiffs assert that the doctor who signed the death certificate had no basis for his conclusions regarding the cause of decedent’s death since there had been no autopsy and the certifying doctor had not reviewed decedent’s medical records. Plaintiffs argue further that the death certificate was inadmissible hearsay as it was signed by an unidentifiable non-treating physician, who was unfamiliar with the medical records and could only speculate as to cause of death. The court found this argument to be completely wrong. The death certificate was signed by decedent’s last treating cardiothoracic surgeon, Dr. Entwistle. Though plaintiffs made much of the fact that the signature on the death certificate was illegible, Dr. Entwistle’s identity was confirmed by his medical license number. As decedent’s last treating physician, Dr. Entwistle was familiar with the medical records and had the requisite personal knowledge to determine the cause of death. Moreover, Dr. Entwistle was a named defendant, who was deposed and subject to cross-examination.

Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Leonard v. Nichols Homeshield Inc., 557 A.2d 743, 745 (Pa. Super. 1989).

Under the Vital Statistics Law, a duly certified record filed with the Department of Health is prima facie evidence of its contents. 35 P.S. §450.810. A properly authenticated death certificate is generally admissible as proof, though not conclusive, of both the facts and cause of death. Kubacki v. Metropolitan Life Ins. Co., 164 A.2d 48, 53 (Pa. Super. 1960). Thus, while the cause of death may be shown by a death certificate, it is open to explanation and contradiction. Id.

The death certificate listed the cause of death as cardiac arrhythmia. Dr. Entwistle, who signed the death certificate, was not only decedent’s treating cardiothoracic surgeon, but the physician last in attendance on the deceased, and as such, he was well aware of decedent’s medical history and heart condition. Plaintiffs’ own expert, Dr. Grossi, opined that he agreed with Dr. Entwistle on the cause of death. N.T. 10/07/09, p. 173 lines 10-21.

2. “The trial court erred when it refused to allow cross-examination concerning topics contained in medical texts and journals that had been properly authenticated and established as authoritative in the appropriate fields of medicine. ”

Under Pa.R.C.P. 227.1(b) defendants waived this issue. Pa.R.C.P. 227.1(b) provides:

...[P]ost-trial relief may not be granted unless the grounds therefor, (1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and (2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds Pa.R.C.P. 227.1(b) (2010).

In the post-trial motion, plaintiffs made vague, unspecific claims that the court improperly precluded plaintiffs’ from cross-examining defendants and their experts throughout the trial. Defendants failed to satisfy the requirements of Pa.R.C.P. 227.1(b) because the motion for post-trial relief did not specifically state the ways in which the grounds had been asserted at trial. Thus, the issue has been waived.

“The admission or exclusion of evidence, including the admission of testimony from an expert witness, is within the sound discretion of the trial court.” McClain v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000). Atrial court will only be reversed “upon a showing that the trial court clearly abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.” Id.

Plaintiffs failed to identify which of the defendants, which of the many defense experts, and which medical texts and journals they were precluded from using in cross-examination. Not only did plaintiffs fail to explain how the court erred, but it also failed to demonstrate how the rulings were harmful or prejudicial to the plaintiffs.

Notwithstanding plaintiffs’ waiver, in an abundance of caution, this court will address the issue, which was specified in a sub-paragraph of plaintiffs’ matters complained of on appeal.

Plaintiffs claim that it was improper for the court to preclude “plaintiffs’ counsel from cross-examining the defendants and their experts concerning topics contained in medical texts and journals that had been properly authenticated and established as authoritative in the appropriate fields of medicine.” Plaintiffs then cite, as an example, the court’s refusal to permit plaintiffs’ counsel to cross-examine defendant Frankford’s expert, Dr. Karras, with respect to Harrison’s Textbook of Internal Medicine. Plaintiffs claim that Dr. Karras admitted that the textbook was authoritative in the field of internal medicine and that the court erred when it refused to permit plaintiffs’ counsel to cross-examine Dr. Karras with the text. N.T. 10/22/09 pp.152-154.

During the cross-examination of defense expert Dr. Karras, plaintiffs attempted to introduce Harrison’s Principles of Internal Medicine. Defense counsel raised an objection on the basis of hearsay, lack of foundation. Contrary to plaintiffs’ assertion that the expert admitted the text was authoritative in the field of internal medicine, the expert stated, “I considered it reliable when I practiced internal medicine...Nineteen years ago...I have no knowledge of how authoritative it is currently considered. But I will concede that I considered it authoritative in 1990.” N.T. 10/22/09 p. 153. The witness, who was no longer board certified in internal medicine, was familiar with the text only insofar as he was merely aware of its existence. Defense counsel raised a second objection, which the court sustained on the basis that the text had not been authenticated.

“The law in this Commonwealth is well-settled that an expert witness may be cross-examined on the contents of...any other publication which the expert acknowledges to be a standard work in the field. In such cases, the publication or literature is not admitted for the truth of the matter asserted, but only to challenge the credibility of the witness’ opinion and the weight to be accorded thereto. Learned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury.” Majdic v. Cincinnati Machine Co., 537 A.2d 334, 339 (Pa. Super. 1988). (citations omitted)

Here, the expert did not acknowledge the text as a standard work in the field. Not only was the expert no longer a member of the field, but he admitted that he had no knowledge of the current authority of the text. Without having authenticated the alleged treatise, there was no basis to permit the use of the text with regard to cross-examination. Therefore, the court’s refusal to allow plaintiffs’ counsel to cross-examine Dr. Karras with the text was appropriate.

3. “The trial court erredbypermittinghearsay testimony to be read into evidence. ”

The use of deposition testimony at trial is governed by Pa.R.C.P. 4020, which provides:

(a) At the trial, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions:
(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a party or a person designated under Rule 4004(a)(2) or 4007.1(e) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose.
(5) A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify. Pa.R.C.P. 4020.

Based on the provisions of Pa.R.C.P. 4020(a)(2), the deposition of a party may be used by an adverse party for any purpose. The use of the deposition testimony of Dr. Entwistle, who was a party, was therefore appropriate. Moreover, Pa.R.C.P. 4020(a)(5) provides that the deposition of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify. Therefore, the testimony read from the deposition of Dr. Entwistle, a named defendant, was properly admissible.

4. “The trial court erred when it permitted the defendants/appellees to introduce evidence and unsubstantiated testimony that decedent was drug seeking. ”

To constitute reversible error, a ruling on evidence must be shown not only to have been erroneous, but also harmful to the party complaining. Schroeder v. Jaquiss, 580 Pa. 381, 390, 861 A.2d 885, 891 (Pa. 2004).

Dr. Emmerich included “drug seeking” as a part of his differential diagnosis when decedent presented to the emergency room on January 14, 2005. Dr. Emmerich then testified that “[a]fter further evaluation of Mr. McConnell, rechecking his CAT scan, doing his physical exam, obviously it was found that I did not believe that he was drug seeking because I sent him home with pain medicine.” N.T. 10/19/09, p. 246, lines 18-22.

Although Dr. Emmerich testified that he initially included the possibility that the decedent was drug seeking in his differential diagnoses, he also testified that, upon further evaluation, he did not believe that Mr. McConnell was drug seeking. N.T. 10/19/09, p. 246, lines 18-22; N.T. 10/20/09, pp. 70-71. This testimony completely negated any reference to drug seeking and plaintiffs cannot show any prejudice.

Additionally, the court initially granted plaintiffs’ motion to preclude evidence of drug seeking at trial. N.T. 10/5/09, p. 60, lines 14-19. However, plaintiffs then sought to introduce the issue of drug seeking to establish negligence against Dr. Emmerich. N.T. 10/5/09, pp. 56-81. At plaintiffs’ request, the court reversed its ruling and permitted the allegation of drug seeking to come into evidence. N.T. 10/5/09, pp. 65-67, 77-79.

5. “The trial court erred when it permitted the defendants/appellees to introduce unsubstantiated evidence and testimony that decedent took too many narcotic pain pills. ”

Evidence related to drug use was both relevant and probative to the issues of causation nd damages since Dr. Entwistle considered an overdose of pain medication as a possible cause of death. Therefore, the evidence was admissible. Obviously, it had very little impact on the jury since the jury found in favor of the plaintiff for $660,000.00.

6. “The trial court erred when it permitted the defendants/appellees to introduce evidence that decedent was non-compliant and failed to follow up with a cardiologist. ”

Plaintiffs’ contention that there was no evidence of required follow-up care is completely inaccurate, misleading, and untrue. There was substantial evidence of Mr. McConnell’s need for follow-up care and his longstanding history of non-compliance. Such evidence was relevant to the issue of contributory negligence.

The testimony elicited from Dr. Grossi, plaintiffs’ cardiothoracic surgery expert, was that in his report, he had stated that Mr. McConnell did not have any “cardiologic follow-up during his adult life.” Dr. Grossi, plaintiffs’ expert, characterized this as noncompliance on the part of Mr. McConnell. N.T. 10/07/09, pg. 145.

Plaintiffs also argue that this evidence was not relevant. However, during the course of the trial, there were issues with respect to Mr. McConnell’s refusal to follow recommendations of his primary care physician to be treated by a cardiologist. Mr. McConnell’s non-compliance with recommendations for cardiac follow-up during his adult life were relevant to the issue of comparative negligence.

It is hornbook law that if there is any evidence that a plaintiff was at fault for his own injuries then that issue should be given to a jury to apportion fault. Pascal v. Carter, 647 A.2d 231, 233 (Pa. Super. 1994). In this case, it was abundantly clear from the medical records and the testimony at trial, that the decedent did not pursue his required treatment.

Dr. Dunfee then gave him a list of adult cardiothoracic surgeons delineated geographically and by hospital affiliation and asked him to see one. N.T. 10/13/09, pp. 18-19; p. 56, lines 14-18.

Plaintiffs’ internal medicine expert, Dr. Bell, testified that it would have been important for Mr. McConnell to have returned to CHOP in 2000 if he was having arrhythmias because an individual who had three prior surgeries is prone to them and arrhythmias could cause death. N.T. 10/14/09, p. 116, lines 14-25; p. 117 lines 1-20.

7. “The trial court erred when it permitted defendants/ appellees to introduce evidence that decedent failed to return to the Emergency Room prior to his death through unsubstantiated evidence and hearsay testimony. ”

The introduction of the deposition testimony of a physician at trial is permissible pursuant to Pa.R.C.P. 4020(a)(5), which provides:

(a) At the trial, any part or all of a ‘deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions:
(5) A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify. Pa.R.C.P.4020(a)(5).

During the trial, excerpts from the deposition of Dr. Cassano were read into the record to establish that Dr. Cassano called Mr. McConnell on Saturday, February 12, 2005, and advised him to come to the Emergency Department for evaluation, that Mr. McConnell refused, that Dr. Cassano spoke with Mr. McConnell’s grandfather and advised him to bring Mr. McConnell back to the Emergency Department, that his grandfather refused and that Dr. Cassano called to check on Mr. McConnell the next day, February 13, 2005. These contacts were supported by other sources, including correspondence from Dr. Entwistle and the depositions of Mr. McConnell’s grandparents and the visiting nurse. While plaintiffs’ counsel challenged the truth of these events, the issue of Dr. Cassano’s credibility was one to be weighed by the jury in determining the consideration to be given to this testimony.

Plaintiffs’ own expert cardiothoracic surgeon, Dr. Grossi, conceded that if a patient chose not to return to the emergency room despite instructions to do so, he would be non-compliant. N.T. 10/07/09, pp. 223-225.

Plaintiffs argue that Dr. Cassano’s deposition testimony should have been precluded because defendants failed to produce a document. Specifically, Dr. Cassano testified that his telephone conversation with the McConnell family was documented in a patient contact form, which was not produced by defendants.

The patient contact form was a document belonging to the CT surgery office, in the control of Drexel University College of Medicine, a non-defendant in the case. N.T. 10/05/09, pp. 39-40. Defendants cannot be charged with spoliation of documents over which they had no control.

At trial there was ample evidence to support a finding by the jury that Mr. McConnell was instructed, but refused, to return to the emergency room prior to his death.

Under Pa.R.C.P. 4020(a)(5), the introduction of testimony at trial of a physician by deposition is permissible, therefore, the court did not err in allowing Dr. Cassano’s deposition testimony to be read into evidence.

8. “The trial court erred when it precluded relevant testimony of a meeting between decedent’s family members and Frankford Hospital defendants when Frankford defendants failed to admit decedent to the hospital. ”

Evidence that is not relevant is not admissible. Pa.R.E. 402 (2010). Evidence of an alleged meeting between Mr. McConnell’s family and Frankford Hospital administrators, which is alleged to have taken place at least one month after Mr. McConnell’s death, was irrelevant to the issues of negligence and causation.

The meeting, which occurred after Mr. McConnell’s death, was wholly irrelevant to the events leading up to his death. Therefore, the court did not abuse its discretion in precluding the introduction of evidence of the meeting at trial.

9. “The trial court erred when it precluded relevant testimony from fact witness, friend andfiance of decedent, Amy Holewinski. ”

Plaintiffs’ claim that the court erred when it precluded the testimony of Amy Holewinski is totally without merit. Ms. Holewinski had been held in contempt of court by the Honorable Howland H. Abramson for failure to obey valid subpoenas for her deposition testimony. Having failed to appear for her deposition and having been found in contempt of court, any testimony by Ms. Holewinski would have resulted in extreme prejudice to the defendants. Moreover, there has been no offer by plaintiffs that her testimony would have been helpful to their case. The court properly granted defendants’ motion to preclude the testimony of Amy Holewinski.

In actuality, this complaint is meritless. Plaintiffs had tried to get this witness to cooperate but were unable to do so. She had been a former girlfriend of decedent, they had a falling out, and it is highly unlikely that she would have been helpful to plaintiffs’ case.

10. “The trial court erred when it permitted improper comments during opening statements made by defense counsel. ”

Plaintiffs allege that the court erred when it permitted improper comments during opening statements and failed to give a cautionary or curative instruction. This issue was waived by plaintiffs’ failure to assert a timely objection.

Plaintiffs’ counsel failed to object at the time the comments were made and did not object until after closing argument had been completed and the jury had been excused for a break. Only after requesting a break to set up the first witness did plaintiffs’ counsel mention that it found the statements by counsel to be inappropriate. Plaintiffs’ failure to raise the objection at an appropriate time resulted in a waiver of the issue.

“A new trial is not required where the remarks made by counsel were neither inflammatory or prejudicial.” Mansour v. Linganna, 787 A.2d 443, 449 (Pa. Super. 2001). Here, the opening remarks by defense counsel were neither inflammatory nor prejudicial. The court instructed the jury that opening arguments are not facts, they are merely an outline. N.T. 10/05/09, p. 19, lines 14-24. Plaintiffs had the opportunity to object in a timely manner and did not do so. Plaintiffs’ claim of not wanting to interrupt defense counsel does not excuse the untimely objection. Plaintiffs interrupted defense counsel throughout the course of the trial.

11. “The trial court abused its discretion in refusing to permit plaintiffs/appellant to use demonstrative exhibits, including animations, at trial. ”

The video animation at issue had not been produced before trial, and defense counsel had not had an opportunity to review it in advance. The first time plaintiffs counsel advised defense counsel of the animation was the moment before he intended to use it at trial. Defendants immediately objected on the basis of prejudice, timing, and accuracy.

Without having had prior knowledge of the animation’s existence or the opportunity to submit it for expert review, the defendants would have been severely prejudiced. The plaintiffs should have produced the exhibit within the discovery deadlines.

“[T]o constitute reversible error, a ruling on evidence... must not only be erroneous, but it must also be harmful or prejudicial to the complaining party.” Johnson v. Hyundai Motor Am., 698 A.2d 631, 637 (Pa. Super. 1997). It was well within the sound discretion of the court to refuse to permit the plaintiffs to use the demonstrative evidence. Even without the use of the animation, plaintiffs went on to win the case and can hardly complain they suffered prejudice.

12. “The trial court abused its discretion by precluding testimony by plaintiffs’ experts that was necessary to support vital opinions concerning causation and standard of care, while permitting such testimony from defendants ’/ appellees ’ experts. ”

Plaintiffs statement of matters complained of on appeal is incorrect because Dr. Bell did testify about causation. Dr. Bell did opine that the care provided by Dr. Dunfee caused a delay in the diagnosis and worsened the process. N.T. 10/14/09 p. 102.

With respect to Dr. Omalu, plaintiffs’ counsel agreed to limit Dr. Omalu to causation and stated that Dr. Omalu would not render any opinion as to standard of care. N.T. 10/19/09 pp. 17-18,22. Plaintiffs agreed to limit the testimony of the expert and cannot now complain of error.

Plaintiffs claim the court erred when it granted defendant Dr. Singhal’s motion in limine to preclude Dr. Grossi from testifying on the standard of care against Dr. Singhal. Pursuant to the MCARE Act, an expert testifying as to a physician’s standard of care must “[pjractice in the same subspecialty as the defendant physician....” 40 P.S. 1303.512(c)(2). Dr. Singhal was an emergency medical specialist. Dr. Grossi was a cardiothoracic surgeon. Dr. Singhal and Dr. Grossi did not practice within the same subspecialty. Therefore, Dr. Grossi’s testimony regarding the standard of care for Dr. Singhal was precluded by the MCARE Act.

Plaintiffs claim the court erred when it granted defendant Dr. Dunfee’s motion in limine to preclude Dr. Grossi from testifying on the standard of care against Dr. Dunfee. As stated above, the MCARE Act requires that an expert testifying as to a physician’s standard of care practice in the same subspecialty as the defendant physician. 40 P.S. 1303.512(c)(2). Dr. Dunfee was a family doctor. Dr. Grossi was a cardiothoracic surgeon. Dr. Dunfee and Dr. Grossi did not practice within the same subspecialty. Therefore, Dr. Grossi’s testimony regarding the standard of care for Dr. Dunfee was precluded by the MCARE Act.

Plaintiffs claim the court erred when it granted defendant Frankford Hospital’s motion in limine to preclude Dr. Grossi from testifying on the standard of care for emergency room doctors. As stated above, the MCARE Act requires that an expert testifying as to a physician’s standard of care practice in the same subspecialty as the defendant physician. 40 P.S. 1303.512(c)(2). The Frankford Hospital defendants were emergency room doctors. Dr. Grossi was a cardiothoracic surgeon. The Frankford Hospital doctors and Dr. Grossi did not practice within the same subspecialty. Therefore, Dr. Grossi’s testimony regarding the standard of care for emergency room doctors was precluded by the MCARE Act.

Plaintiffs claim the court erred when it granted Dr. Wagner’s motion in limine to preclude Dr. Williams from testifying on the standard of care against Dr. Wagner. Dr. Wagner was a radiologist. Dr. Williams was an emergency room physician. The doctors did not practice within the same subspecialty. Therefore, Dr. Williams’ testimony regarding the standard of care against Dr. Wagner was precluded by the MCARE Act.

Plaintiffs claim the court erred when it granted Dr. Dunfee’s motion in limine to preclude Dr. Williams from testifying on the standard of care against Dr. Dunfee. Dr. Dunfee was a family care doctor. Dr. Williams was an emergency room physician. The doctors did not practice within the same subspecialty. Therefore, Dr. Williams’ testimony regarding the standard of care for Dr. Dunfee was precluded by the MCARE Act.

Plaintiffs claim the court erred when it granted Frankford Flospital’s motion in limine to preclude Dr. Berg from testifying on the standard of care for emergency doctors. The doctors at Frankford Flospital were emergency medicine physicians. Dr. Berg was an internal medicine and infections disease expert. Dr. Berg, having a different subspecialty, was not permitted to testify to the standard of care of emergency medicine physicians pursuant to the MCARE Act.

13. “The trial court erred by permitting inappropriate expert testimony by defendants ’/appellees’ experts. ”

Plaintiffs claim the court erred by permitting inappropriate expert testimony by defendants’ expert, Dr. Kelly. This is completely misleading and wrong. Dr. Kelly never testified. Plaintiffs had filed a motion in limine to preclude the testimony of this witness, which the court denied, but the matter became moot when defense never called Dr. Kelly to testify.

Therefore, this matter complained of on appeal has no basis whatsoever.

With respect to defendants’ expert, Dr. Wetli, plaintiffs’ statement of matters complained of on appeal is incorrect because plaintiffs’ motion in limine to preclude Dr. Wetli was granted in part and denied in part. The court excluded the portions of Dr. Wetli’s report that addressed the drug seeking issue. More importantly, this matter is moot because defense never called Dr. Wetli to testify.

Plaintiffs claim the court erred in denying plaintiffs’ motion in limine to preclude Dr. Newman from testifying as to the standard of care of Dr. Dunfee.

This issue is also moot because defense never called Dr. Newman to testify. Nevertheless, his testimony would have been relevant. Plaintiffs intended to call Dr. Steinfield, an orthopedic surgeon, who saw decedent one time, to criticize the care rendered by Dr. Dunfee. Dr. Dunfee intended to call Dr. Newman, an orthopedic surgeon, to refute the testimony of Dr. Steinfield. This amounts to an orthopedic surgeon being offered to refute the testimony of another orthopedic surgeon. This is proper evidence for the jury to consider.

The court did not permit Dr. Newman to testify concerning the treatment rendered by Dr. Dunfee.

Defense expert, Dr. Manion, a pathologist, was called to refute the testimony of plaintiffs’ pathologist, Dr. Omalu, and his testimony was limited to causation. By agreement of counsel, Dr. Manion was not permitted to testify as to standard of care. N.T. 10/23/09 p. 148-149.

14. “The trial court abused its discretion by making improper statements in front of the jury. ”

A trial judge possesses broad power and discretion to control the course of the trial. In the case at bar, there is no evidence of impartiality, unfairness, or prejudice exhibited by the court. The court acted objectively, in an effort to move the case forward and prevent undue delays. The court was fair and impartial in front of the jury and plaintiffs’ claims in this regard are meritless.

It is interesting to note that plaintiffs did not make mention of any judicial misconduct at oral argument for their post-trial motion.

Plaintiffs cannot justify any prejudice in view of the fact they won a verdict in the amount of $660,000.00.

15. “The trial court erred when it charged the jury in a manner which was inconsistent with the law. ”

Plaintiffs complain thatthe court improperly emphasized plaintiffs burden of proof to the jury. Plaintiffs do not specifically state which particular charges were erroneous, but claim they suffered prejudice because the court reiterated that “plaintiff must prove” and “plaintiff has the burden of proving” several times. Plaintiffs’assertion that the court’s recitation of the jury charges highlighted plaintiffs’ burden is without merit.

“A trial court has broad discretion in phrasing jury instructions, and may choose its own wording as long as the law is clearly, adequately and accurately presented to the jury for its consideration...A jury charge is erroneous if the charge as a whole is inadequate, unclear, or has a tendency to mislead or confuse the jury rather than clarify a material issue. Therefore, a charge will be found adequate unless the issues are not made clear to the jury or the juiy was palpably misled by what the trial judge said.” Vallone v. Creech, 820 A.2d 760, 764 (Pa. Super. 2003). (citations omitted)

“In reviewing a claim regarding error with respect to a specific jury charge, we must view the charge in its entirety taking into consideration all the evidence of record and determine whether or not error was committed and, if so, whether that error was prejudicial to the complaining party.” Carpinet v. Mitchell, 853 A.2d 366,371 (Pa. Super. 2004). (citations omitted)

Here, the instructions read to the jury were an accurate statement of the law. The court read Suggested Standard Jury Instruction 11.03 and did not deviate from the standard charge. The explanation of the law was correct and proper.

16. “The trial court erred by including released defendants on the verdict sheet. ”

At trial, there was sufficient evidence to support that the settled defendants were negligent, and that their negligence caused decedent’s harm. Therefore the inclusion of settled defendants on the verdict sheet was proper.

17. “The trial court erred, and showed its bias against the plaintiffs/appellants, by granting virtually all of defendants’/appellees’motions in limine while improperly denying virtually all of plaintiffs ’/appellants ’ motions in limine. ”

It appears that plaintiffs claim the court should grant or deny the same number of motions for the plaintiffs and the defendants. That is completely wrong.

The court grants or denies a motion based on merit. It makes no difference how many motions are filed by one side or the other.

If all the motions filed by one side have merit, they will be granted regardless of how many are granted or denied on the other side.

Decisions are made on merit, not bias.

CONCLUSION

As a result of the foregoing, this court respectfully requests that the order dated March 8,2010, which denied plaintiffs’ motion for post-trial relief, be affirmed.


author: LASH, J.,

text:
    Kline v. Yanick

      C.P. of Berks County,
    no. 03-6555.

      James D. Wolman, for plaintiff.

      Theodore S. Yanick III and Tracey G. Yanick, pro se.
    November 9, 2010
   LASH, J.,

The matter before this court is the complaint of plaintiff, Kathy S. Kline (hereinafter “grandmother”), seeking partial custody of her two (2) grandchildren. Trial was held on November 5, 2010. The court enters the following findings of fact:

I.FINDINGS OF FACT

1. Plaintiff, Kathy S. Kline (hereinafter “grandmother”) is an adult individual who currently resides at 76 Heister Street, Box 304, Strausstown, Berks County, Pennsylvania 19559.

2. Defendant, Theodore S. Yanick, III (hereinafter “father”) is an adult individual who currently resides at 673 Benjamin Franklin Highway, Douglassville, Berks County, Pennsylvania 19518.

3. Defendant, Tracey G. Yanick (hereinafter “mother”) is an adult individual who currently resides at 718 Birch Street, Reading, Berks County, Pennsylvania 19604.

4. Father and mother are the natural parents of two (2) minor children, Alexandria Yanick, born January 8,1999, and Timothy Yanick, born November 14, 2001, (hereinafter “minor children”). Grandmother is the paternal grandmother of the minor children.

5. Mother and father were formerly married, separating in 2003 and receiving a divorce in June of 2006.

6. Grandmother currently resides with her husband, Charles H. Kline, Jr.

7. Father currently resides with his wife, Terry Yanick, and her daughter.

8. Mother currently resides with the minor children.

9. There were several custody orders entered addressing the rights and duties of father and mother, the first order being entered on January 28, 2004. The latest order is dated February 24, 2010. That order was entered by agreement of the parties and set forth, among other things, that mother and father would share legal custody of the minor children, with mother to have primary physical custody and father to have partial physical custody every other weekend from Friday at 5:00 p.m. until Sunday at 7:00 p.m.

10. The order of February 24, 2010 also provided, in paragraph 12, the following:

The children shall not be in the presence of father’s mother, Kathy Kline, until such time as father provides a letter from his counselor to mother or to mother’s attorney stating that father is capable of protecting the children’s safety while they are in the presence of father’s mother and that he is present and supervising the children in the presence of his mother.

11. In response and in objection to paragraph 12 of the February 24, 2010 order, grandmother filed the within complaint for custody on or about March 8, 2010. Grandmother seeks to have partial custody of the minor children every sixth weekend and for one week every summer for vacations.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties and grandmother’s husband, Charles H. Kline, Jr. By agreement, the minor children were not required to testify. Additionally, the parties stipulated to all terms and conditions of a recommended order prepared by the custody master, with the exception of the clauses relating to grandmother’s time for partial custody. Accordingly, all the other terms of that recommended order shall be incorporated into the within order.

In essence, grandmother is requesting that this court restore her ability to have contact and custody time with the minor children. Grandmother testified that, prior to some issues arising between she and mother, grandmother and the minor children enjoyed an excellent relationship, with the minor children spending a good amount of time with grandmother at her house, particularly on certain weekends. Grandmother stated that when the minor child, Timothy, was a toddler, grandmother had custody of him from Sunday evening through Friday evening every week continuing for several months, while mother and father were working. This continued until the minor child was able to be enrolled in the daycare where mother works.

Grandmother states that she wants a normal grandmother/grandchild relationship, wants to have the minor children spend time at her house, and believes that she can adequately provide for their supervision during these periods. She is requesting one weekend every sixth week, along with a week during the summer for vacation.

Grandmother acknowledges that the minor children are enrolled in activities, listed by mother to include football, cheerleading, softball, and baseball. Grandmother requests that on her weekends, that the minor children be permitted to spend the time with her rather than attend these scheduled activities.

In accordance with paragraph 12 of the current court order, grandmother obtained a letter from Daniel R. Smith, M.S.S., L.C.S.W., opining on her capacity to be a safe caretaker. Mr. Smith found grandmother to be a “genuine and very gentle woman,” believing that she would not bring harm to the minor children in any way. Mr. Smith recommended that grandmother have unsupervised visitation, effective immediately.

Mother objects to grandmother’s request. Mother acknowledges that grandmother should be permitted to visit with the minor children, but that this should occur during father’s periods of partial custody, that grandmother should not have an independent schedule. She states that she has several concerns with grandmother’s care. She cited an incident occurring in 2006, when grandmother treated one of the minor children for head lice, by using a mixture of diesel fuel and water to clean the lice from the minor child’s head. While father was present and allowed this to happen, mother, who found out about it later, objected, believing this to be unsafe. Mother also has concerns with the sleeping arrangements, believing that there are not enough beds for the minor children at grandmother’s house, and that Timothy sleeps with Mr. Kline and Alexandria sleeps with grandmother. Mother also objects to any deviation from the minor children’s scheduled activities. Mother pays for these activities, believes they are important, and should not be interfered with by grandmother.

Father has no objection to grandmother having every sixth weekend and a week in the summer. However, he agrees with mother that the minor children’s activities should not be disrupted. He testified that Timothy has ADHD and that Timothy’s therapist directed that Timothy be kept on a consistent schedule. If his schedule is disrupted, such as by missing a practice because he is at grandmother’s house, this could affect his capacity to function. Father stated that when Timothy is not properly on his medications or not properly in a routine, he can become unruly.

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

Under 23 Pa. §5312, a court may grant reasonable partial custody or visitation rights to a grandparent if it finds that the request would be in the best interests of a child and would not interfere with the parent-child relationship. In making this determination, the court is to consider the amount of personal contact “between the parents or grandparents of the parties and the child prior to the application.”

The clear catalyst for this dispute is the hard feeling between mother and grandmother. Mother argued that grandmother was a substantial factor in the dissolution of the marriage between her and father. Although not stated, there is an implication that grandmother was meddling in the parents’ affairs. Combining this with the diesel fuel incident, mother has taken a hard line, restricting grandmother from having access to the minor children, including obtaining the aforesaid clause in the current court order. Father has apparently acquiesced to these restrictions, although he testified that he has no concerns about grandmother’s care of the minor children.

We find that grandmother should have partial custody with the minor children. Further, the visits need not be supervised. Grandmother was actively involved in spending time with the minor children and caring for them in previous years. Grandmother is quite capable of properly supervising the minor children. We expect that the minor children will enjoy time with grandmother and her husband, enjoying their company and the activities and trips that will be planned. Mr. Smith’s statement corroborates the evidence presented. Additionally, mother saw no problem at this juncture with grandmother having time with the minor children in an unsupervised setting, although she wanted the time to come during father’s scheduled visits. Finally, there is the general consideration that children should have the opportunity to spend time with grandparents whenever possible. Grandmother’s request that she have one weekend every six weeks, plus a week during the summer, is reasonable.

That being said, the court agrees with the parents that grandmother’s time with the minor children should not interfere with the minor children’s scheduled activities. The points raised by mother and father are well taken. In addition, grandmother is foreclosed from objecting to this decision of the parents, for the scheduling of a child’s activities is a matter of legal custody. The parents share legal custody under the current court order, and grandmother, in her complaint for custody, did not request that she be permitted to also share legal custody. Further, granting a voice in making legal custody decisions to a grandparent under these circumstances would be highly unusual.

We enter the following order:

ORDER

And now, this November 9, 2010, after trial held, custody of the minor children, Alexandria Yanick, born January 8, 1999, and Timothy Yanick, bom November 14, 2001, (hereinafter “minor children”) shall be as follows:

1. The parents, Theodore S. Yanick, III, and Tracey G. Yanick, shall share legal custody of the minor children.

2. Defendant, Tracey G. Yanick (hereinafter “mother”), shall have primary custody of the minor children.

3. Defendant, Theodore S. Yanick, III (hereinafter “father”), shall have partial custody every other weekend from Friday at 5:00 p.m. until Sunday at 7:00 p.m.

4. Mother and father shall alternate custody on the following holidays: Mother shall always have custody on July 4th and Labor Day. Easter, Memorial Day, and Thanksgiving shall be divided by one parent having custody from 9:00 a.m. until 2:00 p.m. and the other parent having custody from 2:00 p.m. until 8:00 p.m. Mother shall have the morning periods in odd-numbered years and father shall have the mornings in even-numbered years. 5. Mother shall have custody for Mother’s Day and father shall have custody for Father’s Day each year. Custody shall be from 10:00 a.m. until 7:00 p.m.

6. The parties shall share custody for the Christmas holiday with one parent having custody from noon on December 24 until noon on December 25 and the other parent having custody noon on December 25 until noon on December 26. Mother shall have custody from Christmas Eve to Christmas morning time period in even-numbered years, father shall have custody from Christmas Eve to Christmas morning time periods in odd-numbered years. The parties shall equally divide any remaining school vacation days over the Christmas break.

7. When the parties take the minor children out of Pennsylvania, they shall provide the other party with the address and phone number where the minor children can be located.

8. The parents shall have the right to two nonconsecutive weeks of vacation each year, each week shall be seven consecutive days. Each party shall provide the other party with notice of their choice of weeks under this paragraph by April 15 of each year. Mother’s choice of weeks shall take priority in even-numbered years, and father’s choice of weeks shall take priority in the odd-numbered years.

9. Commencing on December 3, 2010, and every sixth weekend thereafter, paternal grandmother, Kathy Kline, shall have partial physical custody of the minor children from Friday at 7:00 p.m. until Sunday at 7:00 p.m. Mother shall deliver the minor children to paternal grandmother, or her husband, on Friday, and grandmother shall return the minor children to mother, or her parents, on Sunday. Paternal grandmother may have one week (seven consecutive days) of summer vacation. Said vacation shall not interfere with the parents’ choice of vacation time, which shall take first priority. Mother shall send along the appropriate amount of prescription medication for the minor child with instruction for administration. Paternal grandmother shall administer the prescription medication.

10. The parents shall equally share transportation of the minor children. Unless otherwise agreed, the parent ending their custodial period shall deliver the minor children to the other parent.

11. All parties shall ensure that the minor children’s homework is completed on time. In the event that any extra-curricular activity is scheduled during father or paternal grandmother’s period of partial custody, except in cases of emergency, father and paternal grandmother shall ensure that the minor children attend. Mother shall ensure that father and paternal grandmother are provided a schedule of extra-curricular activities at the beginning of every month and give father and paternal grandmother as much notice as possible of any change to the schedule.

12. The custodial party shall make reasonable efforts to maintain an open phone line in his/her residence from 7:40 p.m. until 8:00 p.m. each evening so that the minor children may place calls to or receive calls from the noncustodial party. In the even a child is unavailable during that time, the party having custody shall use an answering machine/voicemail to receive message from the other party. The parent having custody shall ensure that the minor children are aware of any missed call and returns any missed call as soon as possible. Neither party shall use caller ID, call block, or any other device or service which limits telephone access to the minor children. Each child shall be permitted to speak for a minimum of 10 minutes with the other parent, unless the minor child chooses to conclude the call at an earlier time.

13. Any party having custody of either of the minor children shall ensure that the minor children shall receive their medication as prescribed.

14. At no time shall anyone be permitted to use diesel fuel in treatment for head lice or for any other medical condition of the minor children.

15. This order shall be considered a final order finally resolving the issues raised in the complaint filed by grandmother.

16. The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

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

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

A. The right to reasonable telephone contact with the children when they are in the other parent’s custody.
B. The right to be fully informed concerning the progress of the children in school and the children’s medical status, including the right to obtain the necessary information directly from the children’s school or medical practitioner; and
C. The right to be informed in advance before any important decisions are made concerning the children and the opportunity to participate in those decisions.

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

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

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

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

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

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

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

9. Weekend and evening visitation shall be subject to:

A. Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.
B. Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor children.
C. If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children to unnecessary apprehension and failure of expectations.
D. The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.
E. If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the children.
F. If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

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