author: TUCKER, J,

text:
    Greenwood v. Mangini

      Robert A. Gelinas, for plaintiffs.

      Scott A. Portner, for defendants.
    November 22, 2010
   TUCKER, J,

I. Facts and Procedural History

This premise liability matter came before this court by jury trial on August 9, 2010. On August 12, 2010, the jury found in favor of plaintiffs and against defendants Frank Mangini, Dorothy Boyle, and Daniel Mangini in the amount of $27,279.00 to be reduced by 40% as a result of plaintiff Kristina Greenwood’s comparative negligence after sustaining injuries from falling on the defendants’ sidewalk. N.T. Trial (8/12/2010) at 102-105. Plaintiffs’ counsel polled the jury and ten (10) of the twelve (12) jurors agreed with the verdict. Id. at 105. Plaintiffs’ counsel then stated that the verdict may be recorded; the court recorded the verdict and the jury was discharged. Id. at 107.

On August 20, 2010, plaintiffs filed post-trial motions alleging the two (2) identical issues raised below in this appeal. This court scheduled a rule to show cause hearing concerning alleged jury misconduct and weight of the evidence and denied the post-trial motion at the conclusion of the hearing on September 2,2010. Plaintiffs then filed a notice of appeal on September 22,2010. The court ordered plaintiffs to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) Statement”). On October 13,2010, plaintiffs timely filed a 1925(b) statement wherein alleging:

1. the trial judge erred and abused his discretion by refusing to schedule an evidentiary hearing when, after the jury rendered its verdict and the jury was dismissed, Juror Number One told plaintiffs that while she was in the hallway, other jurors “continued to deliberate” without her and “decided two or three issues” on the verdict sheet; and
2. the verdict against the weight of the evidence when the jury disregarded the uncontroverted evidence that plaintiffs’ recoverable medical expenses totaled $19,360.70 and only awarded plaintiffs the sum of $8,500.00 for medical expenses.

II. Legal Analysis

a. This court did not schedule an evidentiary hearing concerning juror number one ’s alleged statement because jurors are incompetent to testify as to what occurred among the jurors during deliberations.

It is well settled that jurors shall not be called to testify regarding their deliberations. Pratt v. St. Christopher’s Hospital, 581 Pa. 524, 528, 866 A.2d 313, 315 (2004). Jurors are in fact incompetent to testify regarding their deliberations in this Commonwealth. See Pa.R.Evid. 606(b).

Pennsylvania follows the majority rule in providing an evidentiary prohibition against the admissibility of testimony of a discharged juror as to what occurred among the jurors during deliberations. Pratt v. St. Christopher’s Hospital, 581 Pa. at 528. This is called the “no-impeachment rule” and precludes jurors from testifying about all mental processes connected with deliberations. Id. The “no impeachment rule” is buttressed by an overall concern with protecting the integrity of the process; the desire to avoid harassment of discharged jurors by disappointed parties; the strategy of insulating private deliberations of jurors from public scrutiny in order to facilitate their open and franlc discussions; and a practice of preventing minority or equivocating jurors from subsequently impugning verdicts. Id. at 536 (emphasis added). Furthermore, this rule has been codified in Pennsylvania Rule of Evidence 606(b), which states:

(b) Inquiry into validity of verdict. Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. § 9711 (relating to capital sentencing proceedings), a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotion in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

Therefore, under the “no impeachment” rule, jurors are incompetent to testify to the substance and manner of the deliberations and are not permitted to impeach a verdict rendered.

The narrow exception to this rule allows jurors to testify about extraneous influences which might have influenced deliberations such as impermissible outside evidence or contact with outside sources. Pittsburgh Nat’l Bank v. Mutual Life Ins. Co. of NY, 493 Pa. 96, 100, 425 A.2d 383, 385 (1981). In this case, the narrow exception does not apply. The allegations of improper juror deliberations refer only to the alleged manner and content of the jurors’ deliberations: that the jury allegedly continued deliberating, at some point, without the presence of juror number one. After the trial concluded, juror number one approached plaintiffs’ and plaintiffs’ counsel outside the courthouse. N.T. Motion (9/2/2010) at 6. At this time she allegedly told plaintiffs and plaintiffs’ counsel that she felt there was some type of impropriety in deliberation because the majority of the jurors had decided two or three issues while she was out of the room. Id. at 7. At no time did juror number one allege that there were any extraneous influences on the jury. The “no impeachment” rule precludes jurors from offering testimony to the manner of their deliberations after the jury has been discharged. The entire jury deliberated for approximately five (5) hours after a three (3) day trial. At the end of deliberations, ten (10) of the twelve (12) jurors agreed on the verdict and after being polled, no juror expressed any alleged misconduct, including juror number one. N.T. Trial (8/12/2010) at 106. Pa. R. Evid. 606(b) is explicit. Clearly, this court cannot elicit incompetent testimony from jurors concerning the manner of their deliberations. Therefore, plaintiffs’ request for an evidentiary hearing was properly denied simply because there is no possible competent testimony that can be presented regarding the alleged misconduct.

Plaintiffs’ position is that if one juror was outside the jury room during deliberations the plaintiffs’ right to a jury of twelve (12) have been violated because the absence of any one vote invalidates the jury’s verdict. N.T. Motion (9/2/2010) at 34. Plaintiff also contends that if one juror leaves the room, the jury is not deliberating and therefore the jurors can be questioned as to what happened when the juror left the room. Id. Furthermore, plaintiffs’ argue that the court can pose specific questions to the jurors without asking about what occurred during deliberations. Id. This court disagrees. Under these circumstances, it is impossible to receive testimony from any juror without delving into the occurrences in the deliberation room and violating the “no-impeachment” rule. Once jurors are subpoenaed and questioned as to the manner of their deliberations, the veil of sanctity that protects our American jurisprudence will be pierced. Even if plaintiffs’ position is correct, the court cannot test the veracity and credibility ofanyjuror’stestimonywithoutcross-examining the remaining jurors regarding the alleged conduct during deliberation. Furthermore, assuming these allegations are true, juror number one cannot testify as to what issues were decided in her absence without testifying as to how, upon returning to the jury room, she discovered they were already decided. Such an inquiry is clearly protected by the sanctity of the juror room and Pa.R.Evid. 606(b). Jurors are forbidden from testifying about deliberations to protect the integrity of the process and prevent this exact situation here: minority or equivocating jurors impugning verdicts. See Pratt, 581 Pa. at 528. The trial record reflects that juror number one disagreed with the verdict. N.T. Trial (8/12/2010) at 106. The court cannot now allow this self-interested testimony to impugn the verdict and require the unwarranted expenditure of judicial resources. Therefore, this court has no choice but to deny plaintiffs’ request for an evidentiary hearing regarding the deliberations of the jury.

b. Plaintiffs ’ weight of the evidence claim to medical expense damages is waived because plaintiffs failed to object when verdict was recorded.

In Dilliplaine v. Lehigh Valley Trust Co., 475 Pa. 255, 259, 322 A.2d 114, 117, the Pennsylvania Supreme Court set forth the doctrine of waiver and the underlying policy considerations which are:

First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.

Pennsylvania courts have extended the waiver rule to include cases involving inconsistent verdicts. In Picca v. Kriner, 645 A.2d 868 (Pa. Super. 1994). the Pennsylvania Superior Court applied the waiver rule when a party failed to object to a jury verdict that was obviously inconsistent. In Picea, as here, the appellant waited until after the trial court dismissed the jury to raise an objection. Id. at 871. Since the trial court could no longer re-instruct the jury in order to clarify the verdict, a new trial would have been required. Id. Therefore, the Superior Court found the right to ask for a new trial was waived because the appellant failed to timely object when the problem could have been easily corrected. Id. As the Pennsylvania Superior Court explained:

The main purpose of the familiar waiver rule announced in Dilliplaine and interpreted by Gray, is to avoid holding new trials through timely, specific objections which give the trial judge an opportunity to recognize errors and correct them. When a party seeks a new trial because the jury returned an inconsistent, irrational, incredible, or otherwise problematic verdict, Dilliplaine would logically require that the party point out the verdict problems to the trial judge before the jury is dismissed. That way the judge can explain to the jury why its verdict is problematic and that judgment cannot be entered upon it. The jury can then resume deliberations in light of the court’s instructions, and return an error-free verdict. Picca. 645 A.2d at 871.

In the instant case, the evidence concerning medical expenses was uncontroverted and the court instructed the jury: “plaintiff is entitled to be compensated in the amount of all medical expenses reasonably incurred... amounting] to $19,360.70.” N.T.Trial (8/12/2010) at 48. The jury returned its verdict specifically awarding $8,500 for economic loss. Id. at 104. Immediately after the verdict, the court explicitly asked: “Is there any reason why this verdict should not be recorded?” and plaintiffs’ counsel requested that the jury be polled. Id. at 105. The court polled the jury. Id. After the jury was polled and counsel had the opportunity to reflect on the verdict, the court again asked if there is any reason why the verdict should not be recorded. Id. at 107. Plaintiffs’ counsel then responded, “You can record the verdict, Your Honor.” N.T. Trial (8/12/2010) at 107. The court then recorded the verdict. Id. The jury’s verdict was inconsistent with this court’s jury instructions and the uncontroverted evidence presented; however, the this court should not compensate the unprepared trial lawyer for omissions that could have been easily corrected with a timely objection. See Dilliplaine, 457 Pa. at 259; Picca, 645 Pa. at 871-872. If counsel stated he was not satisfied with the verdict and voiced an objection, this court would have further instructed the jury in reaching a proper verdict. Plaintiffs’ failure to object regarding medical damages must not be the basis of a new trial. A new trial would allow plaintiffs a second bite of the proverbial apple simply because counsel failed to object; and therefore plaintiffs’ weight of the evidence claim is waived.

III. Conclusion

Plaintiffs allege this court erred by refusing to schedule an evidentiary hearing due to alleged juror misconduct and that the weight of the evidence was inconsistent with the jury’s verdict. These allegations have no merit. Plaintiffs’ request for an evidentiary hearing was properly denied because there is no competent testimony that can be presented regarding the jury’s deliberations. Furthermore, plaintiffs’ weight of the evidence claim is waived due to failure to object when the verdict was recorded. For the above reasons this court did not err and its judgment should stand.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Hohmann v. Webb

      C.P. of Lawrence County,
    no. 10899 of 2010.

      Ronald W. Coyer, for plaintiff.

      Jonathan R. Miller, for defendants.
    November 17, 2010
   COX, J.,

Before the court for disposition are the preliminary objections filed on behalf of the defendants Robert L. Webb, Jr., and Sharyn Webb, which assert the following arguments:

I. The court lacks subject matter jurisdiction over the current case as the plaintiff has failed to provide proper notice as set forth in “Act 6” or, more specifically, 41 P.S. § 403;

II. The plaintiff has failed to state a claim upon which relief may be granted as the defendants have cured any alleged default prior to receiving the notice of intent to foreclose;

III. The complaint is insufficiently specific regarding allegations of a verbal agreement because the plaintiff has failed to alleged the date, terms and consideration for the agreement and the alleged date of the breach; and

IV. The plaintiff’s demand for attorney’s fees should be stricken as the plaintiff has failed to aver any contractual or statutory basis for attorney’s fees.

The plaintiff Dona Joan Hohmann has fee simple title to real property located at 4098 Harlansburg Road, Slippery Rock, Lawrence County, Pennsylvania, as recorded in Lawrence County Deed Book Volume 452, page 48. On April 27, 2002, the plaintiff and her husband Paul E. Hohmann, now deceased, entered into an unrecorded article of agreement (hereinafter “the agreement”) with the defendants regarding the property located at 4098 Harlansburg Road. Initially, the agreement establishes that the plaintiff agreed to sell the house and real property located at 4098 Harlansburg Road for the sales price of $120,000.00. The agreement required that the defendants make a down payment of $5,000.00 and make monthly payments of$810.00 due on the first day of each month for a period of 25 years, commencing June 1,2002. Furthermore, the agreement also set a fixed interest rate of 6 percent to commence on June 1,2003. The defendants were required to provide and pay for homeowner’s insurance beginning December 1, 2002. The cost of insurance for the period of December 1, 2001, to December 1, 2002, was prorated and the defendants were required to pay $233.31 for the remaining seven months of 2002. Additionally, the agreement permitted the plaintiff to evict the defendants immediately if they failed to make timely payments.

The payments for December of 2009, January of 2010 and April of 2010 were made after the first of the month. Moreover, the defendants have failed to provide the plaintiff with proof that they have valid homeowner’s insurance for the property. As a result, on January 7,2010, the plaintiff sent a letter via certified mail to the defendants notifying them that they had 30 days to vacate the property based upon their breach of the agreement. The defendants refused to vacate the property and remain there currently. The plaintiff then filed an action in ejectment.

First, the defendants claim that the plaintiff has failed to provide adequate notice as required by 41 P.S. § 401 et seq., otherwise known as Act 6, which covers the procedure for filing suit for a breach of a residential mortgage. In response, the defendants argue that the agreement is a lease and is not subject to the requirements set forth in 41 P.S. § 403.

41 P.S. §101, defines residential mortgage as:

An obligation to pay a sum of money in an original bona fide principal amount of the base figure or less, evidenced by a security document and secured by a lien upon real property located within this Commonwealth containing two or fewer residential units or on which two or fewer residential units are to be constructed and shall include an obligation on a residential condominium unit.

Additionally, security document “means a mortgage, deed of trust, real estate sales contract or other document creating upon recordation a lien upon real estate.” Id.

Moreover, security documents have also included an installment land contract, land contract or lease purchase agreement. 10 Pa. Code § 7.2.

An installment land contract includes the following:

Every executory contract for the purchase and sale of a dwelling situate in any city of the first class or county of the second class whereby the purchaser is obligated to make six or more installment payments to the seller after the execution of the contract and before the time appointed for the conveyance of title to the dwelling. 68 P.S. § 903(1).

Typically, an installment land contract occurs when a buyer takes possession of the property and makes periodic payments to the seller until the contract price is paid. Stillwater Lakes Civic Ass’n, Inc. v. Krawitz, 772 A.2d 118,120 (Pa. Cmwlth. 2001) (Citing Anderson Contracting Company v. Daugherty, 417 A.2d 1227 (Pa. Super. 1979)). Upon signing the contract, the buyer becomes the equitable or beneficial owner of the property and the seller retains legal title to the property as security for the buyer’s performance of the contract until the buyer satisfies the terms of the contract. Id. (citations omitted).

In the current case, the agreement states that the defendants agreed to purchase the property at 4098 Harlansburg Road for $120,000.00 to be paid in monthly installments of $810.00, due on the first day of each month, for a period of 25 years. Additionally, an interest rate of six percent was to be applied to any unpaid balance beginning on June 1, 2003. Once the agreement price was satisfied, the defendants would receive a free and clear deed. However, if the defendants failed to make the payments on time, the plaintiff had the right to break the agreement and evict the defendants from the property. The agreement also permitted the defendants to make double payments, if a payment was not made timely. Moreover, the defendants were permitted to make additional payments and could pay the total price prior to the expiration of 25 years. These terms and conditions are inconsistent with a lease agreement as they require the defendants to pay a stated amount for the purchase of the real property and they would receive a free and clear deed to the same. It is important to note that the agreement refers to the defendants as “buyers” and the plaintiff and her deceased husband as “sellers.” This indicates that the parties did not intend to create a landlord tenant relationship. The sole purpose of this contract was to effectuate a transaction in which the defendants would purchase the property from the plaintiff.

Clearly, the agreement satisfies the definition provided for an installment land contract as the defendants are required to make more than six payments after the execution of the contract and before the time appointed for conveyance of title, which in this matter is a period of 25 years. Moreover, the defendants have taken possession of the property and agreed to make monthly payments to the plaintiff until the contract price is satisfied. Hence, the defendants became the equitable or beneficial owner of the property and the plaintiff retains legal title to the property as a security interest, which gave her the right to evict the defendants if they did not make timely payments.

In Anderson Contracting Co. v. Daugherty, 417 A.2d 1227 (Pa. Super. 1979), the court ruled that an installment land contract is included in the definition of residential mortgage as defined by Act 6. In that case, the appellee, which was a contracting company, filed an action in ejectment against the appellants for failure to make their monthly payments. Ajudgment in ejectment was confessed against the appellants in accordance with a warrant of attorney contained in the installment land contract and the trial court denied the appellants’ petition to cure default, to stay execution and to open or strike the judgment. The appellants claimed that the appellee refused to accept their payment of a sum sufficient to cure all prior defaults under the contract, which was permitted pursuant to Act 6.

The Daugherty court noted that section 404(a) of Act 6 permits the breaching party to cure the default up to one hour before the commencement of bidding at a sheriff sale or other judicial sale. Id., All A.2d 1229 (citing 41 P.S. § 404(a)). Hence, it was incumbent upon the court to decide whether the installment land sales contract met the requirements of a residential mortgage as defined by Act 6, which provides residential mortgage debtors with certain protections that includes the ability to cure defaults. Id. The Daugherty court stated that the following four elements must be met for a contract to be a residential mortgage: “(1) an obligation to pay an original bona fide principal amount of $50,000 or less, (2) evidenced by a ‘security document,’ (3) secured by a lien upon real property in Pennsylvania, and (4) containing two or fewer residential units or on which two or fewer residential units are to be constructed.” 417 A.2d 1230. The court also noted that installment land contracts are included in the Department of Banking’s definition of a security document. Id., 417 A.2d 1230. Furthermore, the court quoted the Supreme Court of Indiana, which reasoned, ‘’’conceptually, therefore, the retention of the title by the vendor is the same as reserving a lien or mortgage. Realistically, vendor-vendee should be viewed as mortgagee-mortgagor. To conceive of the relationship in different terms is to pay homage to form over substance.’” Id., 417 A.2d 1232 (quoting Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641, 646 (1973)). As a result, the Daugherty court adopted that reasoning and ruled that installment land contracts should be treated as a residential mortgage for purposes of Act 6 because the vendor retains legal title as security for payment of the contract price. Id., 417 A.2d 1232.

In the case sub judice, it has been determined that the agreement is an installment land sales contract as defined by 68 P.S. § 903(1). In accordance with the court ruling Daugherty, the plaintiff was required to provide the proper notices set forth in act 6. However, the plaintiff has failed to do so, which deprives this court of subject matter jurisdiction over the current matter. Bankers Trust Co. v. Foust, 621 A.2d 1054, 1055-1056 (Pa. Super. 1993). As a result, the court sustains the defendants’ first preliminary objection and the plaintiff must provide the defendants with the proper notices set forth in Act 6. Additionally, the plaintiff must proceed with an action in mortgage foreclosure and follow the proper procedure pursuant to Pa.R.C.P. No. 1141 et seq. Moreover, the court is devoid of subject matter jurisdiction and will not address the remaining preliminary objections filed on behalf of the defendants.

For the reasons set forth in this opinion, the court sustains the defendants’ first preliminary objection and will not address the remaining preliminary objections as the court does not have subject matter jurisdiction over the current matter because the plaintiff has failed to file the proper notices as required by Act 6.

ORDER OF COURT

Now, November 17, 2010, this case being before the court on October 25, 2010, for oral argument on the preliminary objections filed by the defendant, with both parties appearing through their counsel, the plaintiff, Donna Joan Flohmann, represented through counsel, Ronald W. Coyer, Esquire and the defendants, Robert L. Webb, Jr. and Shaiyn Webb, represented through counsel, Jonathan R. Miller, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the preliminary obj ection for lack of subj ect matter jurisdiction and/or failure to conform to rule of law or court is hereby sustained.

2. The remaining preliminary objections shall not be reached by this court as the ruling on the first preliminary objection shall dismiss the complaint - action in ejectment and those remaining preliminary objections are now moot.

3. The complaint-action in ejectment is hereby dismissed, without prejudice, to re-file in accordance with this order of court and attached opinion.

4. The prothonotary is directed to serve a copy of this order of court upon counsel of record, Ronald W. Coyer, Esquire and Jonathan R. Miller, Esquire.

      . The requirement that the principal amount be less than $50,000.00 was removed by Pennsylvania Legislative Act 57 of 2008, which became effective on September 8,2008.


author: FORD, J.,

text:
    Weidemoyer v. Pomer

      C.P. of Lehigh County,
    no. 2000-FC-0861.

      Thomas M. Joachim, for plaintiff.

      James C. Sommar, for defendant.
    November 24, 2010
   FORD, J.,

This custody dispute involves two decent, unmarried young adults and their two-year-old daughter, Claire. The parties lived together in Pennsylvania before Claire’s birth and for a period of time after her birth. They separated and resided in different locations in Pennsylvania. Recently, defendant, Colin Pomer (Father), relocated from Pennsylvania to Vermont to pursue an employment opportunity. He filed petitions for relocation and to modify an earlier custody order. In his petitions, he asks that he be granted either primary physical custody or shared physical custody of Claire. Father’s trial presentation was directed toward his receiving shared physical custody.

Plaintiff, Sarah Weidemoyer (mother), filed a complaint for custody. She also filed a pleading objecting to father’s petition to relocate with Claire. She is seeking to be named Claire’s primary physical custodian.

After a trial on the various petitions of the parties, conducted on October 20, 21, and 22, 2010,1 concluded that Claire’s best interests require that the parties share legal custody of Claire, that mother be the primary physical custodian and that father be given meaningful partial custody.

Findings of Fact

1. Mother and father are both 22 years of age. Both matriculated at DeSales University in Center Valley, Pennsylvania, to begin their freshman year in the fall of 2006. They met during freshman orientation. After a period of dating each other, they moved from campus and lived together in one and then another apartment in Coopersburg, Lehigh County, Pennsylvania.

2. While they resided together, mother became pregnant. She delivered Claire Pomer on December 30, 2007. The parties had plans to marry, but they later cancelled their wedding plans. They resided together until September of 2009 when father moved from the second Coopersburg apartment to an apartment that he rented alone in Hellertown, Northampton County, Pennsylvania. Mother’s Coopersburg apartment was approximately twenty minutes driving time from father’s Hellertown apartment.

3. At a conference with Lehigh County’s custody hearing officer, the parties reached an interim agreement for custody of Claire whereby they shared legal custody of Claire and they shared physical custody by exchanging Claire every day. Claire also attended daycare during this time. The schedule was difficult and confusing for Claire.

4. Mother moved from the second apartment in Coopersburg to the home of the maternal grandmother’s cousin, Laura Gross, and her family in Bethlehem, Pennsylvania in July, 2010. Mother remained in Ms. Gross’s home until October, 2010. In that home, mother had her own room that she shared with Claire. Approximately one week before the trial in this case, mother moved from Ms. Gross’s home to her parents’ home in Perkiomenville, Montgomery County, Pennsylvania. Mother’s move to Ms. Gross’s Bethlehem home was motivated by mother’s employment plans and by a desire to make the joint physical custody that existed at that time easier for both parties and Claire. Her move to her parents’ home was motivated by a combination of factors including family support, employment, and her education plans.

5. Mother works as a waitress at Applebee’s Restaurant in Quakertown, Pennsylvania with hours that vary each week between 25 and 45. She began that employment in the fall of 2010. For the summer of 2010, she worked at a sandwich shop. Before that, she worked at a daycare center for approximately one and a half years. Mother has plans to begin studies in early 2011 for a career in nursing. She has narrowed her search to two nursing programs.

6. In addition to her parents, mother lives with her two siblings, Maria Weidemoyer who is a seventeen-year-old high school senior and Molly Weidemoyer who is ten years old. Molly is a special needs child who has severe developmental delays due to low muscle tone. Mother’s parents provide financial and emotional support for mother.

They also support mother in her plans in regard to education and employment. The home in which mother presently lives is happy and healthy in all respects.

7. Father graduated from DeSales University in May 2010 with a bachelor of science degree in accounting.

8. Father had various part-time jobs, work-study positions, and internships during his four years at DeSales. In 2009, he began a serious job search with the goal of securing employment in the accounting field. His efforts were concentrated in the New England and Pennsylvania areas. Father received only one offer of employment which came from National Life Insurance Company (“National Life”) in Montpelier, Vermont. Father accepted the offer in July, 2010. He now works there as a staff accountant at an annual salary of $40,000. He has a benefit package which includes Claire as a beneficiary.

9. Since S eptember 2,2010, father resides in Waterbury Center, Vermont where he lives with Claire. The home is part of an old farmhouse that was recently converted to an apartment building. It is pleasant, comfortable, and in a fine setting in all respects. The drive time from father’s home to mother’s home is approximately six and one half hours.

10. FatherwasraisedinLyndeborough,NewHampshire. He has a sister, Alyssa, who resides in Binghamton, New York, where she is a graduate student. Father’s mother is deceased. His father, John Pomer, resides inLyndeborough with Ellen Pomer, father’s step-mother. John Pomer and mother have had a falling out primarily over the wedding plans and the ill feelings continue. A substantial portion of father’s family resides in Vermont and New Hampshire. Several of father’s aunts and his maternal grandparents live approximately 15 to 20 minutes away from him. These relatives provide emotional support for father. They have already done some babysitting of Claire and have convincingly offered their services to assist father in taking care of Claire. They also offered help for father when any need arises.

11. Father took the position in Montpelier because of what it had to offer in terms of salary, benefits, work in his field of study, and proximity to his family of origin. Father intends that his position will be permanent with National Life.

12. At present, father does not have a girlfriend. Mother has a boyfriend, Christopher Morrotto, since July of 2010. Mr. Morrotto attends a community college and works part-time at a local country club. He lives with his parents.

13. Mother’s family assists in babysitting Claire when the need arises. Mother also uses daycare for Claire. Claire has adjusted well to this daycare and is happy there. Father plans on using a daycare in Vermont during custodial times when he will have Claire.

14. Since father has moved to the Vermont area in August of 2010, Claire has lived with him for 18 days (to the date of trial). This included the period when mother went on a vacation with Mr. Morrotto and his family to North Carolina.

15. During her pregnancy, mother engaged in considerable self-education, primarily by reading and talking with others, about how to take care of a young child. She also underwent formal parenting education. Father recently completed a six-week parenting education course. Both parties completed Lehigh County’s COPE (co-parenting dducation) program.

16. Mother scheduled doctors’ appointments for Claire. Father scheduled doctors’ appointments if mother asked him to do that. While the parties resided together, both parents attended doctors’ appointments for Claire. After the separation, Father did not attend any appointments. Mother consistently advised father of the information about all doctors’ appointments for Claire in advance of them. It was not father’s practice to call mother after the doctors’ appointments to inquire about what occurred at them. On the other hand, it was mother’s practice to contact father to advise him of events at the appointments.

17. In large part, father does not give information to mother on significant topics that parents need to know. Father often did not respond to specific questions by mother about Claire. At other times, he gave one word answers to mother’s inquiries about Claire or father changed the subject when mother asked questions about Claire. On many days when father had custody of Claire, father would not put Claire on the phone with mother to say hello despite requests by mother to talk with Claire. Father has infrequently called mother from Vermont to speak with Claire. Since separation, mother regularly contacted father and has been forthcoming to father with important information about Claire during mother’s custodial time. During father’s custodial time, mother consistently contacts father, asks information about Claire, and she attempts to speak with Claire to extend a greeting.

18. Father’s job search took place over a period of one year from July of 2009 to July of 2010. During that period of time, father did not advise mother that he was looking for positions in New England. The letter containing the offer of employment to father from National Life was dated July 14,2010. Father accepted that offer on July 19, 2010. Father filed his “notice of oroposed relocation” on July 30,2010. He advised mother of the National Life job in late July just before the filing of the relocation notice. He told mother he had just been offered a position at National Life in Vermont, that he accepted the position, and that he and Claire would be moving. Approximately one week later, father moved to Vermont.

19. Mother has said some things in the presence of Claire about other adults that are not appropriate. The parties have engaged in inappropriate arguments in front of Claire.

20. Before father’s securing the position with National Life, Claire had medical insurance through Medicaid.

21. Both parties love Claire. They want to be involved in Claire’s life to the fullest extent possible

Discussion and Conclusions of Law

Counsel for the parties have cited most of the applicable legal principles for decision in this matter. As the court and counsel recognize, the paramount consideration in a custody case is the best interests of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). In my attempts to determine Claire’s best interests, I considered “all factors which legitimately impact upon the child’s physical, intellectual, moral and spiritual well-being.” Zummo v. Zummo, 51A A.2d 1130, 1137 (Pa. Super. 1990).

As an aid in focusing on what is in the best interests of a child in a relocation situation, the Pennsylvania Superior Court set forth factors for the trial court to consider. The factors are:

First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent.....
Next, the court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it....
Finally, the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent Gruber v. Gruber, 583 A.2d 434, 439 (Pa. Super. 1990).

In Thomas v. Thomas, 739 A.2d 206 (Pa.Super. 1999), the Superior Court commented on the proper considerations for a trial court when addressing a request for a change of custody and relocation in the context of an equally shared custody arrangement. (An equally shared custody arrangement was not the setting in the Gruber case.) The Superior Court stated as follows:

[W]e are reviewing a request for change of custody and relocation in the context of an equal shared custody arrangement. As such, Gruber’s mandate that the court is to focus on the primary physical custody family, and what is “advantageous to the primary unit is obviously in the best interests of the children,” is not applicable in this case. Here, there exists two primary family units, and, as such, we conclude that “both must be scrutinized similarly in the examination of competing custodial environments....Id. at 210-11 (citations omitted).

The Superior Court further explained in Thomas that,

[i]n considering the prospective advantages to the move, a court shall not limit itself solely to enhanced economic opportunities for the custodial parent, but must also assess other possible benefits of the location... We emphasize...that courts are not free to ignore or discount non-economic factors which are likely to contribute to the well-being and general happiness of the custodial parent and children. Id. at 211.

Subsequently, the Superior Court, citing Thomas, held that, in analyzing the two competing custodial environments, the trial court should consider each parent’s job stability, employment opportunities, housing, neighborhoods, other relevant factors and, of course, the best interests of the children. McAlister vs. McAlister, 747 A.2d 390, 392 (Pa.Super. 2000).

Father has not met his burden of proof in trying to establish the first Gruber factor. Fíe has not established that moving Claire to Vermont under the physical custody arrangement that he suggests or any shared physical custody arrangement would significantly improve the quality of life for him and Claire. In considering the first Gruber factor, I took into account not only the economic opportunities but all other possible benefits and detriments.

Mother proposes that she be made the primaiy physical custodian of Claire. She suggests that she have physical custody for four weeks in a repeating six-week cycle, that father have custody of Claire for the other two weeks, and that father have reasonable visits with Claire in Pennsylvania when he is able to travel from his home to mother’s home.

Father’s position is that the parties should equally share physical custody under a schedule whereby there is a repeating ten-week cycle. Under father’s proposal, he would have physical custody for five weeks and mother would have physical custody of Claire for the other five weeks of the cycle. Father proposes that the third weekend in each five-week period be for the non-custodial parent to spend time with Claire so that she does not go too long without seeing both parents.

Father made an understandable decision in accepting the employment in Vermont based upon his yearlong frustrating employment search in a tough job market, the proximity of his family of origin, his comfort in living in Vermont and the benefits of his job.

Since Claire’s birth, she has always had nurturing parents. Her every need has been satisfied when the parties both lived in Pennsylvania. Now that one parent lives in Pennsylvania and one parent lives in Vermont, any custody arrangement that is put in place that keeps both parents involved in Claire’s life will provide her the same excellent quality of life that she has always experienced. This is due to economic factors and a number of non-economic considerations including the relative responsibility practiced by both parents, the many levels of support given by both families of origin, the periodic cooperation of the parties in tending to the needs of Claire, the parents’ realistic plans for career improvement and the steady employment of both parties including the recent increase in income by Father.

There is another non-economic factor which I find to be crucial. Despite his many positive points, father frequently refuses to share information with mother about Claire or, alternatively, he provides only minimal information. If father continues in this practice, which has existed for more than a year since the separation of the parties, mother can count on finding out little about her daughter during any substantial custody time that Claire would spend with father in Vermont. To allow such an arrangement is to create a circumstance for ineffective co-parenting. Mother’s communications practice bas been, commendably, just the opposite of father’s practice. She consistently advises father of what is going on in Claire’s life. She attempts to get his input on key decisions. He is often not receptive to any of this. There is no evidence that mother is annoying in her attempts to keep father informed.

It has been mother who has taken the lead on a number of important subjects in Claire’s life such as deciding when there should be healthcare appointments, making sure they are scheduled, healthcare follow-up, and informing the other parent of all significant healthcare events. Father has assisted, to be sure, but mother has been the coordinator. Mother’s family is immediately available to her. Father’s family, although a relatively short driving distance away, is available when needed.

Father’s shortcoming is the communications problem. Mother has a shortcoming too. She has said inappropriate things about one of father’s relatives in the presence of Claire. While there is a question as to whether Claire understood any aspect of that because of her young age, mother must keep comments like those to herself when she is in the presence of the child, particularly if the person about whom mother is speaking is someone dear to Claire. There were allegations of physical acting out. Each party accused the other of being the aggressor. Because of the conflicting perceptions on this, it is difficult to determine who was primarily at fault. I conclude that both parties acted inappropriately at some point during these events.

Although custody details have been made more difficult by father’s moving to Vermont, he had no ill motive in making that move. Similarly, mother does not oppose father’s shared physical custody proposal to frustrate his plans. Mother and father, with their respective proposals, believe that they are acting in the best interests of Claire.

As to the final Gruber factor, fortunately, father’s home in Vermont is not so distant that it precludes either parent from having a meaningful relationship with Claire. After reflection on this factor, I believe I have chosen a custody arrangement which best facilitates the opportunities to foster the child’s overall relationship with both parents.

Under all of the circumstances, Claire’s best interests require that a shared physical custody arrangement be rejected. Her best interests require that mother be the primary physical custodian. Her best interests also require that the court adopt the rather liberal custody arrangement that she suggests for father.


author: LASH, J.,

text:
    Wade v. Krause

      C.P. of Berks County,
    no. 08-6716.

      Michael J. Salek, for plaintiff.

      Jaime L. Wertz, for defendant.
    December 2, 2010
   LASH, J.,

This court held a custody trial on November 30, 2010. Plaintiff, Donald Wade, is seeking partial custody of the parties’ minor child. The court enters the following findings of fact;

I. FINDINGS OF FACT

1. Plaintiff, Donald Wade (hereinafter “father”), is an adult individual who currently resides at 1233 Sandy River Road, Axton, Virginia 24054.

2. Father and his fiancée, Nicole Howell, who is employed as a respiratory therapist, are planning to be married on December 11, 2010. Father then intends to relocate to his fiancée’s residence, owned by her mother, located at 3 50 Pervie Bowlick Street, Eden, North Carolina, in January 2011. He states that he and his bride will reside there. His mother-in-law, though the owner of the home, will not be residing there.

3. Defendant, Nicole Krause (hereinafter “Mother”), is an adult individual who currently resides at 2693 West Philadelphia Avenue, Oley, Berks County, Pennsylvania 19547.

4. The parties are the natural parents of a minor child, Tyler Lee Wade, bom March 10,2007, (hereinafter “minor child”).

5. The parties were never married but resided together sporadically until April 18, 2009. Since that date, the parties have lived separate and apart.

6. Mother resides in the Oley School District.

7. Father currently resides with his father and his grandmother, in his grandmother’s house. Father has another child, Ethan Wade, born October 31, 2003, who resides with his mother in Arizona, but who visits with father during the summer months and during the Christmas holiday, through an informal agreement reached between father and Ethan’s mother.

8. Mother resides with her paramour, Guy Rudy, the subject minor child, mother’s daughter from another relationship, Elizabeth Krause, bom September 16, 2000, and Mr. Rudy’s children, Guy Rudy, III, born January 1, 2004, and Jaedon Rudy, born September 21, 2006.

9. Father is currently employed by Roll About Skating Center in Eden, North Carolina, on weekdays from 5:00 p.m. to 10:00 p.m., and Domino’s Pizza in Martinsville, Virginia, on Fridays and Saturdays from 5:00 p.m. to 10:00 p.m. or to closing.

10. Mother is unemployed, staying at home to care for the children.

11. The minor child is not enrolled in a school program currently; however, he has been recently tested through BCIU, who recommended that he participate in a speech therapy program. He is also on a waiting list for HeadStart.

12. The within action was commenced by father on October 15, 2009. A temporary order was entered on January 19, 2010 providing that the parties would share legal custody, that mother would have primary physical custody, and that father would have supervised visits on alternate weekends in Berks County on Saturday from 12:00 noon to 5:00 p.m. and Sunday from 12:00 noon to 5:00 p.m., to be supervised by Kids First Visitation Services.

13. Father participated in the supervised visitation on four (4) occasions during the course of 2010 for approximately three (3) to four (4) hours each visit. The visits included a trip to Chuck E Cheese, a petting zoo, a park, and otherwise in his hotel room.

14. Other than the supervised visits, father has had no contact with the minor child since the parties’ separation, other than a brief ten (10) minute visit when father was in Berks County for a support conference. That visit was not initially agreed to by mother and was conducted in the presence of a police officer. There has also been no phone contact.

15. The parties reside approximately seven (7) to eight (8) hours apart, one (1) way.

II. DISCUSSION

In making a determination, this court considered the testimony of the parties, the maternal grandmother, Denise Taroski, and the exhibits submitted by mother.

Father filed the within action for partial custody, seeking to “see his son as much as possible.” He states that since the parties’ separation in April of 2009, mother has denied him access to the minor child. With the exception of a ten (10) minute visit with the help of a police officer, father has not had contact with the minor child, except for four (4) supervised visits through the Kids First Agency, pursuant to the temporary custody order entered by this court. While the visits were helpful, they were impractical. Father had to travel from his home in Virginia, a seven (7) or eight (8) hour drive, and stay in a hotel, one (1) or two (2) nights, to enable him to participate in the visitation. There was also a cost of forty dollars ($40.00) per hour for the visits. Father states he was not able to take advantage of all the visits permitted to him under the order because he was financially unable to do so. He believes that mother’s resistance stems from father’s requesting a paternity test at a child support conference.

There have also been no phone contacts. Father states he has called mother’s home several times but was never able to make contact. He states he did not leave a message. He also did not contact her by e-mail, stating he does not have her e-mail address. Father believes he is capable of caring for the minor child. He cites his agreement with the mother of his other child, Ethan, receiving Ethan for nearly the entire summer and on Christmas holidays. According to father, there have never been any problems with this arrangement.

Father states he has adequate coverage to care for the minor child when he is working. Father’s father and grandmother are available and willing to care for the minor child in his absence.

Mother agrees that father should be permitted to have unsupervised visits with the minor child, but that the visits should take place in Berks County, not in Virginia or North Carolina. For one, father has never been alone with the minor child for more than three (3) or four (4) hours. According to mother, when the parties resided together, father was extremely inattentive to the minor child, refusing to provide any caretaking when mother or some other person was available. He would not change diapers or feed the minor child, nor take the minor child to a doctor visit. In fact, when the minor child was hospitalized for three (3) days, father never went to the hospital, even though, according to mother, the minor child needed to have a family member present at all times.

Mother provided an example of the extent of father’s laxity through his lack of care of his other child, Ethan. During the time when the parties resided together, Ethan would periodically come to visit. Mother and the maternal grandmother would take Ethan on trips, such as to the Kutztown Fair. Father would not participate. Additionally, on one (1) occasion when it was time for father to return Ethan to his mother in Virginia, father refused, forcing mother to drive Ethan back herself.

Mother also states that father would make himself unavailable to care for the minor child. When he was not working, he would be away from home playing cards, shooting pool, or being involved in other activities. When he was home, he would often lock himself in the bathroom and remain in there for several hours, running water, and relying on the comfort of a space heater, oblivious to the needs of the minor child.

Mother is also concerned with father’s inappropriate use of the computer. On one (1) occasion, father took explicit nude photographs of himself and sent them via computer to another woman. Additionally, he has allowed a pornographic video to remain visible on the computer and, apparently, watches pornography on a frequent basis. Mother points out that these activities were conducted while her elder child, Elizabeth, 7 or 8 at the time, was present in the house. In fact, the camera in which father used to take his explicit pictures was Elizabeth’s camera. Mother believes that father does not appreciate the inappropriateness of these materials in the presence of children and was not concerned about their welfare.

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).

We also note that when restrictions are requested, our appellate courts have established that such restrictions should be imposed sparingly. As stated by the Superior Court in Fatemi v. Fatemi, 489 A.2d 798, 801 (Pa.Super 1985), restrictions should be phrased in the least intrusive language reasonably necessary to safeguard the child.

In essence, according to father, the reason he is not seeing the minor child is because mother is withholding the minor child from him. According to mother, father has not shown any interest or capacity to be a parent. There is some truth in both positions. We agree that mother has not been accommodating, particularly after father requested a paternity test. She admits she was angry and decided to deny him access at that time. Since that time, father has had very little contact. Further, the contacts were supervised, mother appeared to be comfortable with these restrictions, making no effort on her part to expand father’s times or rights.

That being said, this court finds the primary problem to be father’s inability to assert himself as a proper parent. According to mother’s depiction of him, father was almost inert, performing little or no parenting duties when the parties resided together. While father contests this, there is other independent evidence regarding his parenting with Ethan, which confirms his lack of investment in his children. Father was unable to discuss Ethan’s grades or status at his school, appearing to have very little knowledge. The fact that he would delegate Ethan’s parenting responsibilities to mother, failing to participate in activities with him when he was in Pennsylvania and refusing to return him to Virginia where his mother resided at the time, forcing mother, who was not Ethan’s parent, to transport him, is significant, establishing father to be sluggish and unmotivated, particularly in the area of parenting. This court believes the maternal grandmother when she states that she came to the house on one occasion while mother was unavailable and found father watching the minor child but not attending to his immediate needs, particularly changing his very full diaper.

Respect is earned. Before mother or this court will respect father’s abilities to parent, he will have to establish a track record that shows he is willing to do more than just see his son and interact as a buddy, performing the necessary details, including proper supervision, being attentive regarding educational and medical needs, and overseeing day-to-day needs such as feeding the minor child, clothing the minor child, and making sure the minor child is always clean. Up to this point, mother is the only parent willing to perform any of these duties.

We agree with father that supervised visits, particularly with an agency who charges, is impractical and unnecessary. On the other hand, this minor child has not spent any significant time with father, residing with mother almost exclusively. This creates an issue, for father cannot have frequent, short periods of contact with the minor child, as the parties reside several hours apart. Providing father with longer blocks of time would also be problematic, as it would remove the minor child from his stable home, into the care of a person who has not established that he has the capacity to meet his responsibilities.

As a result, for the time being, this court finds that it is appropriate to modify the current order to allow unsupervised partial custody, but only on a limited basis, for three (3) weeks of the year, with two (2) weeks being in the summer months, at father’s residence. If father wants additional time with the minor child and is willing to travel to Berks County to see the minor child, that is also acceptable. The two (2) weeks in the summer can be consecutive or non-consecutive, at mother’s discretion. Hopefully, father will establish a suitable track record which will permit the order to be modified to provide father extended time during the summer for this minor child, as most children would benefit from having two (2) parents invested in his upbringing.

We enter the following order:

ORDER

And now, December 2, 2010, after trial held, custody of the parties’ minor child, Tyler Lee Wade, born March 10, 2007, (hereinafter “minor child”), is as follows:

1. The parties shall share legal custody of the minor child.

2. Defendant, Nicole Krause (hereinafter “mother”), shall have primary physical custody of the minor child.

3. Plaintiff, Donald Wade (hereinafter “father”), shall have partial custody for three (3) weeks of each year, with two (2) weeks being during the summer months and the third week to be at father’s discretion, either in the summer or during the school year, but over the Christmas or spring break holidays, so as not to conflict with the minor child’s school schedule. If father chooses the Christmas holiday, the proposed dates shall not include Christmas Day. The weeks in the summer can be consecutive or nonconsecutive at mother’s discretion. Father shall make a written request to mother at least ninety (90) days prior to the proposed dates, and mother shall consent to the dates and times, unless there is a conflict in her schedule which is substantial warranting alternate dates, in which case, she shall notify father, also notifying him, if he so requests, whether she will agree to consecutive weeks in the summer.

4. If father desires additional partial custody time with the minor child, he may secure such time by requesting same from mother. All additional visits shall be in Berks County, Pennsylvania, unless otherwise agreed by mother in writing. Further, these visits shall be on weekends and shall not exceed once per month.

5. The parties shall share transportation, with father picking up the minor child to commence his visits and mother retrieving the minor child at the expiration of father’s visits.

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

7.This order shall be considered a final order finally resolving the issues raised in father’s complaint in custody.


author: PICCIONE, J,

text:
    Commonwealth v. Rozier

      C.P. of Lawrence County,
    nos. 650, 651, and 656 of 1996, C.R.

      Diane Shaffer, for Commonwealth.

      Jonathan R. Miller, for defendant.
    December 2, 2010
   PICCIONE, J,

This opinion is issued pursuant to Pa.R.A.P. 1925(a) in support of the February 7, 2006 order of court granting the commonwealth’s motion to dismiss and finding that this court lacked jurisdiction to hear the merits of defendant’s motion for post conviction collateral relief. On appeal, defendant asserts that the court erred in denying defendant’s motion as untimely. The relevant background of this case follows.

On March 14,1997, defendant pled guilty to the charges of possession with intent to deliver, felony delivery, and delivery of a controlled substance. He was sentenced on August 21, 1997 to three consecutive terms of 15 months to 120 months incarceration. Defendant subsequently filed a motion to modify sentence on August 29, 1997, which was denied on September 3,1997, and a pro se petition for reduction of sentence on September 19, 1997, which was denied on September 25, 1997. No appeals were taken from the denials of defendant’s motions.

Defendant did not file a petition for relief under the Post Conviction Relief Act (“PCRA”) until September 8, 2005. However, the criminal docket entries indicate that the prothonotary received correspondence from defendant on December 1, 1997, requesting paperwork to file an appeal. Further, the docket entry for September 8, 1999 indicates that defendant requested leave to proceed in forma pauperis, which was granted. Despite this activity, no PCRA petition was filed prior to the expiration of the one-year time limit for such petitions.

On September 8, 2005, defendant filed a motion for post conviction collateral relief, arguing that the court imposed an illegal sentence on him and that his counsel was ineffective for failing to file an appeal of the denial of defendant’s petition for reduction of sentence. The commonwealth responded with a motion to dismiss, claiming that defendant’s sentence was statutorily authorized, that defendant waived the claim by failing to raise it on direct appeal, that defendant’s motion was untimely, and that the commonwealth had been prejudiced by defendant’s nine-year delay. The court held a hearing on defendant’s motion on February 1, 2006. In the order dated February 7, 2006, the court concluded that it was without jurisdiction to address the merits of defendant’s claims because his motion was untimely.

No further action was taken in this matter until September 14,2009, when defendant filed another motion for post conviction collateral relief. Defendant claimed that this second PCRA petition was timely because he. filed it within 60 days of the date he discovered that his previous attorney failed to pursue an appeal of the court’s February 7, 2006 order. A hearing was scheduled for September 8, 2010 to give defendant the opportunity to demonstrate that his second PCRA petition met one of the exceptions to the PCRA’s timeliness requirement. During the hearing, the commonwealth agreed to the reinstatement of defendant’s PCRA appeal rights nunc pro tunc and the parties entered the following stipulation:

[Defendant’s] counsel at the time was ineffective for failing to file an appeal of that February...7th, 2006 order;
That [defendant] was incarcerated in the Lawrence County Jail until March 30, 2006, when he was transported back to S.C.I. Camp Hill. The order denying the...February 7, 2006 P.C.R.A. petition was mailed to [defendant] at the S.C.I. Camp Hill address and not the Lawrence County Jail;
That upon his return to S.C.I. Camp Hill on or about March 30, 2006 and after receiving his back mail, [defendant] discovered that the court had denied his P.C.R.A. petition, and during that period of time, thought an appeal had been filed by his counsel.
...The docket will reflect that on May 25, 2006, the defendant did send correspondence inquiring about his appeal and P.C.R.A. petition;
That [defendant] would testify that he received no response from counsel to that May 26, 2006 correspondence;
...[Defendant], the Commonwealth would stipulate, believed that an appeal was ongoing with respect to that February 7, 2006 order for a period of approximately three years, until September of2009, when [defendant] was informed by a paralegal at his place of incarceration that, in fact, an appeal had not been filed after it was checked on, and on that basis, [defendant] filed his September 2009 P.C.C.R. petition, the one that’s before the court today.
...[Defendant] did take timely action as required under the timeliness exception to the one-year limit on filing P.C.R.A. petitions, he exercised due diligence when he found out an appeal was not filed and that his belief that an appeal was filed was reasonable under the circumstances.N.T., 9/8/10, at 4-6. result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the constitution or laws of the United States;

The court subsequently granted defendant’s second PCRA motion, permitting defendant to appeal nunc pro tunc the order of court dated February 7, 2006.

On appeal, defendant argues that the court erred in denying his original, September 8, 2005 motion for post conviction collateral relief as untimely. The timeliness requirements of the PCRA are mandatory and jurisdictional in nature. Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). “Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010). A timely PCRA petition must be filed within one year of the date that the judgment becomes final, unless one of the following exceptions applies:

(i) the failure to raise the claim previously was the
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b). A petition invoking one of the above exceptions must be filed within 60 days of the date that the petition could have been presented. Id. at §9545(b) (2). “[I]t is the petitioner who bears the burden to allege and prove that one of the timeliness exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citing Commonwealth v. Abu-Jamal, 941 A.2d 1263,1267 (Pa. 2008)).

There is no dispute that defendant’s September 8, 2005 motion for post conviction collateral relief was untimely. The judgment became final, at the latest, on October 25, 1997, meaning defendant’s motion was filed almost seven years after the expiration of the one-year time limit. Therefore, defendant needed to satisfy one of the three exceptions to the timeliness requirement in order for this court to have jurisdiction over the matter. In his motion, defendant claims that his “trial counsel was ineffective in as far as he failed to file an appeal after the defendant timely requested that the case be appealed.” Def.’s Pet., 9/8/05, at 3. Defendant does not specify which exception to the timeliness requirement he is invoking, but a review of his claim and similar cases suggests that he is relying on subsection (ii), the “after-discovered evidence” exception to the one-year jurisdictional time limitation.

Section 9545(b)(i)(ii) requires a petitioner to “establish that: 1) ‘the facts upon which the claim was predicated were unknown'’ and 2) ‘could not have been ascertained by the exercise of due diligence.’” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citing 42 Pa.C.S. § 9545(b)(1)(h)). “This rule is strictly enforced.” Monaco, 996 A.2d at 1080. “If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.” Bennett, 930 A.2d at 1272 (citing Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005)).

The court determined that defendant failed to meet any of the exceptions to the filing requirement, including the “after-discovered evidence” exception. A review of defendant’s motion, his response to the commonwealth’s motion to dismiss, and the hearing transcript confirms this court’s conclusion. In his motion, defendant merely indicates that his previous attorney failed to file an appeal. He does not, however, make any attempt to explain why his motion is untimely. For example, defendant does not allege that he was unaware that his attorney failed to file an appeal, and he neglects to indicate when he learned that an appeal was not taken. Assuming he was unaware of the lack of an appeal, defendant also fails to explain why he could not have learned this through the exercise of due diligence before the one-year time limit expired. Defendant’s response to the commonwealth’s motion to dismiss similarly omits the necessary information to satisfy an exception to the timeliness requirement. In the response, defendant only mentions that he “did not have the opportunity to appeal Judge McCracken’s denial of the petition for reduction of sentences” and that he “has not waived the claims in his P.C.R.A. Application.” Def.’s Resp., 2/1/06, at 1. During the hearing on his motion, defendant chose to “rest on the response” to the commonwealth’s motion to dismiss rather than present any evidence or testimony. N.T., 2/1/06, at 5. Because defendant failed to allege and prove that one of the timeliness exceptions applied, the court concluded that it lacked jurisdiction to address the merits of defendant’s claim.

ORDER OF COURT

And now, December 2, 2010, the court having received defendant’s statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), with Assistant District Attorney Diane Shaffer, Esquire, appearing and representing the commonwealth, and Jonathan R. Miller, Esquire, appearing and representing the defendant, it is hereby ordered and decreed as follows:

1. The order of court dated February 7,2006 addresses the issues raised on appeal. Flowever, the court issues the attached supplemental opinion pursuant to Pa.R.A.P. 1925(a).

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


author: LESIONEN, •/.,

text:
    Commonwealth v. Palo

      C.P. of Fayette County,
    no. 1130 of 2009.

      Robert Eugene Grimm, assistant district attorney, for Commonwealth.

      Dianne Zerega, for defendant.
    December 1, 2010
   LESIONEN, •/.,

Before this court are the “concise issues under Pa.R.A.P. 1925(b)” filed by defendant, Richard Jason Palo (“Palo”). Palo was convicted by a jury of burglary and theft by unlawful taking. After the jury’s verdicts, this court found Palo guilty of the summary charge of criminal mischief. A timely appeal followed.

The complaints contained in the “concise issues under Pa.R.A.P. 1925(b)” are:

1. The evidence presented was insufficient to establish that the defendant was guilty of the crimes charged beyond a reasonable doubt, in that the Commonwealth presented only testimony of a disgruntled former girlfriend to testify that the defendant was in any way connected with this crime.
2. The trial court erred when it permitted the introduction of the prior conviction of a witness, when that conviction was more than ten years old, the Commonwealth had provided no prior written notice that it intended to use the prior conviction, and the use of the prior conviction was extremely prejudicial to the defendant.

The evidence was clearly sufficient for the jury to find Palo guilty of the charges of burglary and theft by unlawful taking. This court believes it properly exercised its discretion in admitting the remote prior conviction of Palo’s mother/alibi witness because the probative value of that evidence outweighed the prejudicial effect and the notice of intent to use the prior conviction was sufficiently timely under the circumstances of this case to prevent unfair prejudice.

Background

The Commonwealth presented testimony to show that on April 4, 2009, Lizza’s Apothecare Pharmacy, a retail pharmacy located in Uniontown, Fayette County, Pennsylvania was burglarized by Palo and his uncle Scott Sullivan (hereinafter “Sullivan”). The burglars broke into and entered the Pharmacy using the “drive-through” window, causing extensive damage to the window and frame. Lizza testified that it cost “around fifteen hundred dollars” to repair the window and frame (Tr. 07/07/10, pp. 23). While inside the burglars ransacked the shelves, and used black garbage bags to haul away selected items. Lizza determined with reasonable certainty that the controlled substances taken from his pharmacy were fairly valued in an amount of $7,004. Lizza estimated that the non-controlled substances that were taken were in the approximate amount of $ 1,10 8. The day after the burglary Lizza prepared a “theft report” for the Drug Enforcement Agency itemizing the loss of the controlled substances, which was marked as Exhibit 2 and admitted.

Lizza reviewed the surveillance camera video, which showed the burglary. Lizza knew Sullivan as a person who had been in the pharmacy, and recognized him despite the mask he was wearing. On April 5, 2009 Officer Thomas Kolencik arrested Sullivan based on the identification made by Lizza. A search incident to arrest yielded pills and bulk pill bottles on Sullivan’s person. At trial, Exhibit 3 was a list of the items found on Sullivan. The list includes: Exhibit 4, Lorazepam tablets, Exhibit 5, Hydrocodone tablets, and Exhibit 6, Lonox tablets. Exhibit 2 (the theft report that Lizza provided the Drug Enforcement Agency) was consistent with Exhibits 3, 4, 5, and 6. Sullivan ultimately plead guilty to the charges, but not until after the trial in this case.

Palo was tied into the burglary as the result of the statements and testimony of his former girlfriend and the mother of his child, Charlotte Thorpe (hereinafter “Thorpe”). She testified that she saw Palo and Sullivan together on April 4, 2009, at around 4:30 p.m. Thorpe testified that “[h]e (Palo) just pretty much came over and I was outside, and he was telling me that he wanted to rob a pharmacy, and I told him that there were other ways of earning money” (Tr. 07/07/10, pp. 28). Later in the evening, after the burglary occurred, Thorpe testified that she saw Palo again, at her mother’s house. Thorpe testified that “Um, he came there (Thorpe’s mothers house) and he told me to come out to the car and he showed me the pills, they were in black garbage bags” (Tr. 07/07/10, pp. 31). Sullivan again was in the can Thorpe saw Palo take a prescription bottle out of the black trash bag. Lastly, Thorpe testified that Palo told her he burglarized the Apothecare Pharmacy (Tr. 07/07/10, pp. 36)

Palo, as part of his defense, put on the stand Catherine Whetzel (hereinafter “Whetzel”), who was Palo’s girlfriend at the time of the burglary. Whetzel testified about threats that Thorpe made against Palo, specifically:

“....she did clearly say to me that if she couldn’t have him, that no one else could, that she would do what she needed to do. She would call the cops and tell them that he has hit her to put him in jail, and if she needed to put him in jail, she would make up any lie that she needed to do to put him there” (Tr. 07/07/10, pp. 64).

Palo’s mother, Rosemary Frazee, (hereinafter “Frazee”) was called as an alibi witness. Specifically, Frazee testified that“....Igetoff5:00 o’clock everyday, and by the time that I get home, it is somewhere between 5:30 and 6 o’clock, and I remember coming home because I stopped to put my cards out, and my son and his son were at the house....” (Tr. 07/07/10, pp. 75). Frazee further testified that she was with Palo and his son from the time she got home until the time she left to go to bingo at 10 p.m. Lizza testified that on April 4, 2009 he was notified by his Pharmacy’s alarm that there was activity at “9:00 o’clock, 9:30” (Tr. 07/07/10, pp. 21). Thus, the time frame that Frazee says she was with Palo was the same time that the pharmacy was burglarized.

After Frazee testified, for purposes of impeaching Frazee’s testimony, the Commonwealth offered evidence of Frazee’s previous convictions for crimen falsi (crimes of falsehood). The defense objected because of the age of the convictions. After argument over the lunch recess, this court ruled that the convictions could be presented as impeachment evidence pursuant to Pennsylvania Rules of Evidence (Pa.R.E.) 609(b). Thereafter, the Deputy Clerk of Courts for Fayette County testified “that on April 8, 1992, Rosemary Palo (Rosemary Frazee) pled guilty to criminal conspiracy to commit robbery, theft by unlawful taking and receiving stolen property” (Tr. 07/07/10, pp. 102).

Palo was convicted of burglary, theft by unlawful taking and criminal mischief on July 8, 2010. On July 15, 2010, this court sentenced Palo to not less than one year nor more than three years in a state correctional institution. On August 11, 2010, Palo, through his attorney, Dianne H. Zerega, filed the notice of appeal currently at issue.

Discussion

In evaluating a challenge to the sufficiency of the evidence, the court must view the evidence in the light most favorable to the Commonwealth, as verdict winner, together with all reasonable inferences therefrom, and determine whether the trier of facts could have found that each and every element of the crime charged was established beyond a reasonable doubt. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (Pa. 1983). The test requires that the court make a finding that the evidence supporting the verdict of guilt is so weak and inconclusive that a factfinder could not be satisfied as to the guilt of the defendant beyond a reasonable doubt. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (Pa. 1973). Commonwealth v. Anthony, 546, 453 Pa. 481, A.2d 1222 (Pa. Super. 1988).

Further, it matters not whether the appellant finds a witness’s testimony lacking credibility; matters of credibility are solely within the province of the jury as trier of fact, and, as such, “will not be assailed on review....” Commonwealth v. Jackson, 645 A.2d 1366 (Pa. Super. 1994).

The relevant question is “whether accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed, the jury could properly have based its verdict; it would be nonetheless insufficient in the law to find beyond a reasonable doubt that the appellee is guilty of the crime charged.” Commonwealth v. Ponder, 393 A.2d 1235 (Pa. Super. 1978) citing Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (Pa. 1974).

Here, Palo asserts that the evidence presented was insufficient to establish that he was guilty of the crimes charged beyond a reasonable doubt, in that the Commonwealth presented only testimony of his former girlfriend, Thorpe, to testify that Palo was connected with this crime.

Palo points out that Catherine Whetzel testified that Thorpe admitted she would lie to get Palo in jail. In addition, Palo had an alibi provided by Frazee, as noted in the authorities cited above, however, the evidence must be viewed in the light most favorable to the verdict winner. Conflicts in the testimony and the credibility of each witness’s testimony was for the jury to decide, and they evidently accepted Thorpe’s testimony despite the opposing evidence.

Accepting as true all of the Commonwealth’s evidence and all reasonable inferences derivable therefrom, the jury had ample evidence to support its verdicts of guilty of burglary and theft by unlawful taking. Under the Pennsylvania Crimes Code, burglary occurs when a person enters a building or occupied structure, or separately secured or occupied portion thereof, with the intent to commit a crime therein. Here, the burglars pried the drive through window of the pharmacy open and entered the pharmacy with the intent to commit theft by unlawful taking, and did so. The pharmacy was not open to the public, as they entered the pharmacy around 9 p.m. which was after business hours (Tr. 07/07/10, pp. 28).

Under the Crimes Code a person is guilty of theft by unlawful taking if he unlawfully takes, or exercises control over, moveable property of another with intent to deprive him thereof. Under the evidence, Sullivan and Palo took drugs from Lizza. After the burglary, Thorpe saw Palo in possession of the drugs dividing them up for some purpose, which is circumstantial evidence of intent to permanently deprive (Tr. 07/07/10, pp. 34). Thus, the convictions of burglary and theft by unlawful taking were supported.

Lastly, under the Crimes Code a person is guilty of criminal mischief if he damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe). Here, as mentioned above, the burglars intentionally pried open the drive through window of the pharmacy causing extensive damage of approximately fifteen hundred dollars.

Palo’s second assertion is that it was error to permit the introduction of the remote prior conviction of his mother/ alibi witness, when that conviction was more than ten years old and the use of the prior conviction was extremely prejudicial to Palo.

Pa.R.E. 609(b) provides that:

“Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.”

The record suggests Frazee was released “from the confinement imposed for that conviction” in 1993, therefore it was more than ten years before she testifed.

In Commonwealth v. Bighum, 452 Pa. 554,307 A.2d 255 (Pa. 1973), the Pennsylvania Supreme Court implemented a balancing approach to replace the prior rule of automatic admissibility for all prior convictions. In Commonwealth v. Randall, 515 Pa.410,528A.2d 1326 (Pa. 1987), the Supreme Court reinstated a rule of automatic admissibility for convictions less than ten years old, but retained the balancing test for convictions over ten years old. The common law balancing test enunciated in Bighum provided that a conviction would be excluded if its probative value was outweighed by the risk of unfair prejudice. Pa.R.E. 609(b) provides that the conviction must be excluded unless the court finds that the probative value substantially outweighs the prejudicial effect of the conviction. This court applied the balancing test when it admitted Frazee’s prior conviction.

Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (Pa. 1978), lists the factors to be used in applying the balancing test. The factors listed in Roots are not exclusive, but illustrate the types of considerations that should guide the decision. One of the factors listed is “the strength of the prosecution’s case and the prosecution’s need to resort to this evidence compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented.”

This court held:

“the court had made the ruling based on a balancing test that since Mrs. Frazee’s testimony was very strong for the defense and that the Commonwealth did not have much of anything to impeach her testimony with other than the fact that she is the mother of the defendant, the court concluded that the probative value does outweigh the potential prejudicial effect, but more so since the witness is not the defendant, it is in fact the alibi witness” (Tr. 07/07/10, pp. 96).

As noted above, the defense also presented strong testimony by Whetzel directly impeaching the principal Commonwealth witness. The Commonwealth had no evidence to impeach Whetzel except for her admitted intimate relationship with Palo. The defendant could have provided his own alibi testimony, or could have avoided presenting alibi testimony altogether. He had strong defense testimony without calling his mother to provide an alibi. In retrospect, his chances for exoneration would probably have been better without his mother’s testimony and the impeachment that followed it.

Without the remote convictions, it would have appeared to the jury that the only witness tying Palo to the crimes was directly contradicted by two credible and unimpeachable witnesses. The remote convictions were very damaging to the defense, and in that sense, prejudicial — but use of the remote convictions was not unfairly prejudicial. Admitting that evidence merely allowed the jury to balance that impeachment of the alibi witness against the strong impeachment evidence the defense presented against the principal Commonwealth witness. Under the circumstances here, denying the Commonwealth the ability to impeach Frazee would not have been fair to the prosecution.

Palo also asserts independently that this court erred when it permitted the introduction of Frazee’s prior convictions because the Commonwealth did not provide prior written notice that it intended to use the prior conviction. Pa.R.E. 609(b) provides that:

“...evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.”

“Comment 6” to Pa.R.E. 609(b) provides that “Paragraph 609(b) codifies a discretionary rule.” This court ruled:

“Mrs. Frazee’s name was listed in the notice of alibi given to the prosecution, however, the prosecution was unaware that Mrs. Frazee was the defendant’s mother, based on that notice, and did not have her Social S ecurity Number or maiden name in order to do a record check. Flowever, this is now approximately 1:35, and the potential for impeaching Mrs. Frazee’s testimony with this prior conviction was discussed with counsel at about noon, a little over an hour and half ago, and a written notice of intent to use such evidence has not been given, and [but] the court is of the opinion that the adverse party has had a fair opportunity to contest the use of such evidence in that it has been discussed [and argued]” (Tr. 07/07/10, pp. 95-96).

What the undersigned meant was that the admissibility of the evidence was, in fact, contested on its merits prior to admission; therefore, adequate advance notice must have been given even if not given in writing. The Commonwealth did not have advance knowledge of the witness’ prior criminal record because the name she used at the time of those crimes was not provided in the alibi notice. The only reason the Commonwealth even knew her name is because she was an alibi witness — had her testimony been on any other issue, the Commonwealth wouldn’t even have known her name until after she testified. The rule does not require an advance written notice that is impossible or impracticable to give.

No issue of authenticity of the criminal record has been raised, so more time and a written notice would not have made any difference. By calling a witness with a significant criminal record, even an old one, the defense took the risk that the criminal record would be used to impeach. Under the circumstances of this case, the court could not allow the defense a free hand to attack the credibility of the witness for the prosecution while unfairly tying the Commonwealth’s hands.

CONCLUSION

For the reasons discussed above, this court found that the evidence was sufficient to allow the jury to find Palo guilty of all charges. Similarly, this court also found that the remote conviction was appropriate impeachment of the alibi witness pursuant to Pa.R.E. 609.

      . At Sullivan’s guilty plea proceedings, which occurred after this trial, he denied that Palo was involved in the burglary, and specifically named two other individuals as participants. The following is an excerpt from Scott Sullivan’s Plea Proceedings:
      The court: Alright. But you did with a co-conspirator or two co-conspirators did break into that pharmacy and take the drugs?
      Mr. Sullivan: Yes, sir. (Plea Proceedings 07/28/10, pp. 28).

      . Controlled substances are labeled with a “C-Stamp.” The “C-Stamp” identifies the contents as drugs that have a high potential for abuse.