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    Commonwealth v. Hines

      John T. Adams, district attorney, for Commonwealth.

      Michael D. Dautrich, for appellant.
    April 22, 2008
   BUCCI, J,

PROCEDURAL HISTORY

The appellant, Craig Ryan Hines, was charged with criminal homicide, murder of the first degree, murder of the third degree, aggravated assault, persons not to possess, use, manufacture, control, sell or transfer firearms, firearms not to be carried without a license, possessing instrument of crime, recklessly endangering another person, conspiracy to commit criminal homicide, conspiracy to commit murder of the first degree, conspiracy to commit murder of the third degree, conspiracy to commit aggravated assault, and conspiracy to commit recklessly endangering another person. The charges arose out of a shooting that occurred near midnight on July 1, 2000 at the intersection of Schuylkill and Buttonwood Streets, in the City of Reading, Berks County, and which resulted in the death of Lowell Nicholas.

Appellant’s case was consolidated with that of co-defendants Jesus Adames, Carlos Holguin, and Christopher Ferreil. The jury found each of the four co-defendants guilty of two counts of aggravated assault, one count of firearms not to be carried without a license, one count of possession of instruments of crime, and two counts of recklessly endangering another person. This court sentenced appellant to an aggregate sentence of not less than 15 years nor more than 30 years incarceration in a state correctional facility.

Appellant, through his trial counsel, Kurt B. Geishauser, Esquire, filed a timely notice of appeal and a concise statement of matters complained of on appeal. However, Mr. Gieshauser failed to file a brief in the Superior Court on appellant’s behalf and the appeal was dismissed on July 20, 2006.

OnNovember 29,2006, appellant filed a pro se PCRA petition. This court appointed Michael Dautrich, Esquire to represent appellant, and on December 26, 2007, he filed an amended PCRA petition requesting the reinstatement of appellant’s right to direct appeal. On January 25, 2008, this court granted appellant leave to appeal his judgment of sentence nunc pro tunc. On February 21, 2008, appellant filed a notice of appeal to the Pennsylvania Superior Court. On March 5, 2008, this court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure § 1925(b). Appellant filed his concise statement on March 24, 2008, raising 23 issues.

STATEMENT OF FACTS

At trial, the Commonwealth presented the testimony of five eyewitnesses who on July 1, 2000, saw a white van pull next to the passenger side of a vehicle driven by Felix Cruz with the victim, Lowell Nicholas, riding in the passenger seat. (Notes of testimony, 5/2/05-5/6/05, at 498-587.) All five of the witnesses heard gunshots, two of them saw glass breaking between the two vehicles and one witness actually saw gunfire between the two cars. Id. One of the eyewitnesses, William Morales, was able to identify at trial the four occupants of the white van.

Later, the Commonwealth recovered spent .40 caliber bullet shells from the street and from the white Honda Accord station wagon in which Lowell Nicholas was a passenger. (NT, 5/12/05, at 889.) They also recovered a bullet fragment from the brain of the victim. (NT, 5/12/05, at 901.) At trial, the Commonwealth’s expert testified that this evidence came from at least two different guns. (NT, 5/16/06, at 174-75.)

Ten days after the incident, on July 11, 2000, Jesse Vargas took a white Chevy Ventura van to Cindy Rowe Auto Glass Repair Shop to have the windshield and a driver’s side window replaced, as well as to have the interior of the van cleaned. (NT, 5/2/05-5/6/05, at 694, 707.) Vargas came into Cindy Rowe’s in the afternoon of July 11,2000 and spoke to the manager about the work requested. Later that evening, after business hours, an unknown person delivered the van to Cindy Rowe’s. (NT, 5/9/05-5/11/05, at 17-18.) In the course of repairing the van, an employee of Cindy Rowe’s found a bullet slug at the base of the van’s windshield and found a empty bullet shell casing on the floor behind the driver’s seat. (NT, 5/2/05-5/6/05, at 695-96.) These items were later given to Criminal Investigator Cabrera.

Vargas (also known as Luis Jesse Martinez) testified at trial that he rented the van from Kulp Auto Rentals and that he did so as a favor for a friend, defendant Carlos Holguin. (NT, 5/9/05-5/11/05, at 350-52.) He further testified that Holguin accompanied him to pick up the van, gave him money for the rental, and took possession of the van after exchanging cars with him. (NT, 5/9/05-5/11/05, at 352-53.) Vargas did not see the white van again until July 11, 2000, the day he contacted Cindy Rowe’s Auto Glass to have the van windows replaced.

Commonwealth witness Angel Rivera testified that on July 1,2000, the night Lowell Nicholas was shot, he was at Jesus Adames’ house with the appellant and his three co-defendants, Carlos Holguin, Jesus Adames and Christopher Ferreil. Rivera testified that he left Adames’ house with appellant and that appellant drove him to McKnight’s Cafe in a white van. (NT, 5/9/05-5/11/05, at 45-48.) After stopping at McKnight’s and picking up Joanny Arroyo, appellant drove Rivera and Arroyo to the Econolodge in Wyomissing. (NT, 5/9/05-5/11/05, at 48.) Arrangements were made for Rivera to call appellant when he was ready to be picked up from the Econolodge later that evening. However, no one answered the phone the first few times Rivera called. Finally, Christopher Ferreil answered the phone and told Angel Rivera that no one could pick him up. (NT, 5/9/05-5/11/05, at 49-51.)

Angel Rivera further testified that he was again at Adames’ house the following day. Rivera testified that he heard appellant say that he was stopped at a red light on Buttonwood and that a Honda Accord pulled up next to them in the left-hand turning lane to turn onto Schuylkill Avenue. Appellant then looked over at the Honda Accord and began firing into the car. (NT, 5/9/05-5/11/05, at 55.) Appellant also said he was hiding between the front and rear driver’s side windows while he was firing and that he could feel the heat from a co-defendant’s gun on his face. (NT, 5/9/05-5/11/05, at 56-57.)

Earlier that day, on July 1, 2000, while at Adames’ house, Rivera saw appellant in possession of a .40 caliber Sig Sauer. (NT, 5/9/05-5/11/05, at 62.) Commonwealth witness William Morales testified that on July 1, 2000, he saw a white van pull up next to the passenger side of another white car at the corner of Schuylkill and Buttonwood which was in the left turning lane. (NT, 5/9/05-5/11/05, at 572-73.) The witness heard someone say, “What the fuck are you looking at?,” saw both sliding doors of the van open, and then heard gunshots coming from the white van. (NT, 5/9/05-5/11/05, at 575.) When the van drove past him, the witness recognized all four defendants, Christopher Ferreil, Carlos Holguin, Craig Hines and Jesus Adames, as the occupants of the van.

DISCUSSION

I. Jurisdiction

Appellant first claims that this court did not have jurisdiction in this case “because the defendant was charged with numerous violations of the Pennsylvania Crimes Code (Purdon’s title 18) rather than alleging violations of the true law of Pennsylvania, which is Pennsylvania Pamphlet Law.”

There are “two requirements for subject matter jurisdiction as it relates to criminal defendants: the competency of the court to hear the case, and the provision of formal notice to the defendant of the crimes charged in compliance with the Sixth Amendment of the United States Constitution and Article I, Section 9, of the Pennsylvania Constitution.” Commonwealth v. Jones, 593 Pa. 295, 304, 929 A.2d 205, 210 (2007).

“[T]he courts of common pleas have statewide jurisdiction in all cases arising under the Crimes Code ....” Id. (emphasis added) This court believes that such a statement by the highest court in this Commonwealth makes it clear that reference to the Crimes Code rather than Pamphlet Law is perfectly acceptable and this court was not deprived of jurisdiction in this matter “because the defendant was charged with numerous violations of the Pennsylvania Crimes Code (Purdon’s title 18) rather than alleging violations of the true law of Pennsylvania, which is Pennsylvania Pamphlet Law.”

Furthermore, as long as a defendant receives formal notice, even the lack of a proper criminal indictment will not deprive the trial court of subject matter jurisdiction. Id. Therefore, even if appellant is correct that there is something inappropriate about referring to the Crimes Code, the defendant still received clear notice of the charges against him. Accordingly, appellant’s first issue is devoid of merit.

II. Rule 600 Violation

Appellant next claims that this court erred in failing to dismiss the case against appellant due to a violation of Rule 600 of the Pennsylvania Rules of Criminal Procedure.

It appears that appellant’s trial counsel raised this issue several days into the jury selection process at the request of his client, but also stated that he had investigated the issue and found it to be meritless. NT, 5/2/05-5/6/05, at 267. Under these circumstances, this court did not err in refusing to grant the motion.

III. Judge Keller’s Grant of a Mistrial

Thirdly, appellant alleges that the Honorable Judge Scott Keller erred by granting a mistrial in the first trial of this case.

The denial of a motion for a mistrial is assessed on appellate review according to an abuse of discretion standard. Commonwealth v. Sanchez, 589 Pa. 43, 66, 907 A.2d 477, 491 (2006). The central tasks confronting the trial court upon the making of the motion were to determine whether misconduct or prejudicial error actually occurred, and if so, to assess the degree of any resulting prejudice. Id. “Whether to grant the extreme remedy of a mistrial is a matter falling into the discretion of the trial court. ‘A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial.’” Commonwealth v. Boczkowski, 577 Pa. 421, 454, 846 A.2d 75, 94 (2004). “Further, the grant of a mistrial is unnecessary where a cautionary instruction is adequate to overcome any possible prejudice.” Commonwealth v. Johnson, 846 A.2d 161, 166 (Pa. Super. 2004). “Courts must consider all surrounding circumstances before finding that curative instructions were insufficient and the extreme remedy of a mistrial is required.” Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa. Super. 2003).

Here, according to an order dated May 12, 2004, Judge Keller granted a mistrial upon the “motions of defendants, unopposed by the Commonwealth.” Unfortunately, because the relevant proceedings were never transcribed, this court has no idea what occurred during the first trial that made it necessary to declare a mistrial. This court notes that it is appellant’s responsibility to timely order those transcripts necessary for meaningful appellate review. Commonwealth v. Steward, 775 A.2d 819, 833 (Pa. Super. 2001); Pa.R.A.P. 1911. However, as it appears that the mistrial was requested by the defendants, presumably including appellant, appellant should not now be allowed to claim that Judge Keller erred by granting him the relief he requested.

Furthermore, the grant of a mistrial did not violate appellant’s constitutional protections against double jeopardy since “[a] defendant’s motion for a mistrial constitutes ‘a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact. ’ ” Commonwealth v. Simone, 712 A.2d 770, 774 (Pa. Super. 1998).

Nor does this court find any merit to appellant’s vague and undeveloped claims that the mistrial violated his right to due process or to “a trial of his choice.”

Lastly, appellant’s claim that his trial counsel was ineffective for failing to object to or challenge the grant of a mistrial is not properly before this court since “[a]s a general rule a [defendant/jpetitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002).

VI. Right to Counsel

Appellant also claims that this court denied him his constitutional right to counsel of his choice by denying him a continuance to hire a different attorney.

Granting or denying a motion for continuance is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. McAleer, 561 Pa. 129, 135, 748 A.2d 670, 673 (2000). Furthermore, “the constitutional right to counsel of one’s own choice is not absolute. Rather, ‘the right of the accused to choose his own counsel. . . must be weighed against and may be reasonably restricted by the state’s interest in the swift and efficient administration of criminal justice.’” Commonwealth v. Randolph, 582 Pa. 576, 584, 873 A.2d 1277, 1282 (2005).

Here, appellant asked for a continuance on the morning of the first day of trial in order to obtain private counsel. This request was made during a discussion on the motions for severance raised by counsel for all four co-defendants. (NT, 5/2/05-5/6/05, at 11.) Private counsel was not present, nor had he entered his appearance for appellant. In preparation for the trial, which involved three additional defendants besides appellant, the Commonwealth had already subpoenaed numerous witnesses and summoned approximately 150 jurors. Granting a continuance would have caused incredible expense to the Commonwealth, as well as considerable inconvenience to the witnesses and potential jurors. As appellant had more than ample time between his arrest and the commencement of trial to retain counsel of his choosing, his request for a continuance was untimely and this court did not err in refusing to grant it.

IV. Discovery Violation

Appellant next alleges that the Commonwealth failed to timely turn over the statement of a “Yahira Mendez.”

This court believes that appellant may be referring to a Yaritza Mendez listed on the Commonwealth’s amended witness list filed on January 7, 2005; however, this court was unable to find where appellant raised this issue among the thousands of pages of records. Ms. Mendez was never called as a witness by either party nor does it appear she was even mentioned by any of the witnesses that did testify. Absent additional information, this court is unable to address this issue.

V. Questioning of Allan Mapp

Appellant next claims that the assistant district attorney erred in questioning Commonwealth witness Allan Mapp regarding whether he agreed to take a lie detector test.

The standard of review for a claim of prosecutorial misconduct is limited to “whether the trial court abused its discretion.” Commonwealth v. DeJesus, 567 Pa. 415, 438, 787 A.2d 394, 407 (2001), cert. denied, 37 U.S. 1028 (2002).

“Generally speaking, a prosecutor’s comments do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward [appellant] so that they could not weight the evidence objectively and render a true verdict. Prosecutorial misconduct, however, will not be found where comments were based on evidence or proper inferences therefrom, or were only oratorical flair. In order to evaluate whether comments were improper, we must look to the context in which they were made. Finally, when a trial court finds that a prosecutor’s comments were inappropriate, they may be appropriately cured by a cautionary instruction to the jury.” Id. at 407-408.

This court acknowledges that the ADA was mistaken in believing that she could question Mr. Mapp about whether or not he took a polygraph exam; however, this court does not believe that this question so prejudiced the jury that they were unable to render a fair verdict.

Furthermore, this court instructed the jury to disregard any reference to the polygraph test. (NT, 5/17/05, at pp. 310-11.) “The law presumes that the jury will follow the instructions of the court.” Commonwealth v. Spotz, 587 Pa. 1, 57, 896 A.2d 1191, 1224 (2006) (citing Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961, 971 (2001) (Brown II)). See also, Commonwealth v. O’Hannon, 557 Pa. 256, 262, 732 A.2d 1193, 1196 (1999) (“Absent evidence to the contrary, the jury is presumed to have followed the trial court’s instructions.”). Consequently, this court considered the curative instruction a sufficient remedy for the Comm on - wealth’s error.

Appellant also alleges that this court should have granted a mistrial after the defense objected to the Commonwealth’s questioning of Mr. Mapp.

As this court discussed, supra, the denial of a motion for a mistrial is assessed on appellate review according to an abuse of discretion standard. Commonwealth v. Sanchez, 589 Pa. 43, 66, 907 A.2d 477, 491 (2006). The central tasks confronting the trial court upon the making of the motion were to determine whether misconduct or prejudicial error actually occurred, and if so, to assess the degree of any resulting prejudice. Id. “Whether to grant the extreme remedy of a mistrial is a matter falling into the discretion of the trial court. ‘A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial.’” Commonwealth v. Boczkowski, 577 Pa. 421, 454, 846 A.2d 75, 94 (2004). “Further, the grant of a mistrial is unnecessary where a cautionary instruction is adequate to overcome any possible prejudice.” Commonwealth v. Johnson, 846 A.2d 161, 166 (Pa. Super. 2004). “Courts must consider all surrounding circumstances before finding that curative instructions were insufficient and the extreme remedy of a mistrial is required.” Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa. Super. 2003).

As this court discussed above, the question at issue did not so prejudice the jury that they were unable to render a fair verdict.

Furthermore, this court instructed the jury to disregard any reference to the polygraph test. (N.T., 5/17/05, at 310-11.) “The law presumes that the jury will follow the instructions of the court.” Commonwealth v. Spotz, 587 Pa. 1, 57, 896 A.2d 1191, 1224 (2006) (citing Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961, 971 (2001) (Brown II)). See also, Commonwealth v. O’Hannon, 557 Pa.256, 262, 732 A.2d 1193, 1196 (1999) (“Absent evidence to the contrary, the jury is presumed to have followed the trial court’s instructions.”). Consequently, this court considered the curative instruction a sufficient remedy for the Commonwealth’s error, making a mistrial unnecessary.

VI. Testimony of William Morales

Appellant’s next issue alleges that the Commonwealth “committed prosecutorial misconduct by presenting and relying upon the perjured testimony from William Morales to file the charges against defendant in this case and then present that testimony at trial.”

First of all, appellant’s allegation that Mr. Morales committed perjury is merely his opinion. Just because appellant objects to Mr. Morales’ version of events does not mean that Mr. Morales was lying.

While Mr. Morales is hardly an upstanding citizen, it is unrealistic to expect that every witness to a crime will be an honest and law-abiding individual. Defense counsel was allowed to extensively cross-examine Mr. Morales, and ultimately, Mr. Morales’ credibility was a question for the jury. “The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine credibility of the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). (internal citations omitted)

Furthermore, the mere fact that there are some inconsistencies in a witness’ testimony is not enough to destroy the Commonwealth’s case or render the evidence insufficient to support the verdict. Commonwealth v. Long, 425 Pa. Super. 170, 185, 624 A.2d 200, 208 (1993), appeal denied, 535 Pa. 645, 633 A.2d 150 (1993).

Accordingly, this court finds nothing improper in the Commonwealth’s decision to present Mr. Morales’ testimony.

VII. Alleged Coercion of Gregory Burns

Appellant also contends that the Commonwealth “committed prosecutorial misconduct when Criminal Investigator Angel Cabrera used coercion to attempt to influence Gregory Burns to testify that defendant admitted to him that defendant killed Burns’ friend, Lowell Nicholas.”

Again, appellant’s claim that C.I. Cabrera coerced Mr. Burns is simply his opinion. C.I. Cabrera adamantly denied that he coerced any witness and it does not appear that Mr. Burns made any allegation of coercion to the appropriate authorities. NT, 5/16/05-5/20/05, at 73-74, 336-44. However, defense counsel was permitted to question both C.I. Cabrera and Mr. Burns regarding the alleged coercion and thereafter, the matter was one of credibility for the jury to decide. “The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine credibility of the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). (internal citations omitted)

Furthermore, even assuming that C.I. Cabrera had behaved inappropriately, there is no evidence that he did so at the instigation of the district attorney’s office or that the district attorney’s office was ever aware of any misconduct.

Thus, for all the above reasons, this court finds this issue to be without merit.

VIII. Expert Firearms Testimony

Appellant also claims that this court erred in permitting the Commonwealth to introduce testimony from a firearms expert.

“[A]n appellate court may reverse atrial court’s ruling regarding the admissibility of evidence only upon a showing that the trial court abused its discretion.” Commonwealth v. Johnson, 874 A.2d 66, 72 (Pa. Super. 2005), citing Commonwealth v. Minerd, 562 Pa. 46, 54, 753 A.2d 225, 229 (2000). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill will or partiality, as shown by the evidence or the record.” Johnson, 874 A.2d at 72.

To be admissible, evidence must be competent and relevant. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003). Here, the testimony at issue was both. While appellant claims that the expert’s testimony was “inconclusive,” such a claim goes to the weight of the evidence, not its admissibility. It was for the jury to determine what conclusions to draw from the firearms evidence. Accordingly, appellant’s claim is without merit.

IX. Sentencing

Appellant next alleges that this court “violated defendant’s procedural due process rights and his right to a jury trial ensured by the Fifth Amendment to the United States Constitution because the court failed to hold an evidentiary hearing and no notice was given to defendant that the court would rely on particular facts when imposing on all charges outside the PA sentencing guidelines. The court’s findings of fact at sentencing not found by the jury violated the protections affirmed in Apprendi v. NJ and Blakely v. Washington.”

This court has reviewed the transcript of the sentencing hearing and cannot find any facts that it relied on in sentencing appellant that were not supported by the jury’s verdict or acceptable under the Sentencing Code. This court carefully considered the information contained in appellant’s pre-sentence investigation report, including appellant’s prior criminal record; the arguments of defense counsel regarding appellant’s rehabilitative needs and mitigating factors; the serious nature of the crimes; the impact of the crimes on the victim and the community; the need to protect the community from future acts of violence; and appellant’s demeanor.

While appellant’s sentence was in the aggravated range of the sentencing guidelines, his sentence complied with the statutory limits and was not unreasonable given the serious nature of his crimes. The conduct of appellant and his accomplices killed one person and endangered numerous innocent bystanders. Furthermore, appellant is a poor candidate for rehabilitation given his lack of remorse and his repeat offending. Accordingly, this court did not err in sentencing appellant as it did.

X.Former Felon Not To Possess

Appellant next argues that “the charge of former felon not to possess is an unconstitutional limitation on a citizen’s right to bear arms....”

While appellant was charged with, and convicted of, several offenses relating to the possession of a firearm, including firearms not to be carried without a license and possessing instruments of a crime, the charge of persons not to possess was withdrawn prior to trial. Accordingly, the constitutionally of that particular offense is utterly irrelevant to these proceedings.

XI.Ineffective Assistance of Counsel

Appellant also claims that his trial counsel was ineffective for failing to talk to and call numerous witnesses, including Nelson Rodriguez, Melissa Dierdorf and Mamadu SaiT.

“As a general rule a [defendant/Jpetitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002). Therefore, this court will not address these issues.

XII.Merger

Appellant next argues that his convictions for recklessly endangering another person should merge with his convictions for aggravated assault.

In order to determine if two offenses merge for sentencing purposes, the sentencing court must “assess whether the charges arose out of a single set of facts and whether all the statutory elements of one offense coincide with the statutory elements of the other offense.” Commonwealth v. Martz, 926 A.2d 514, 526 (Pa. Super. 2007). (emphasis in original) However, where more than one person is threatened or injured by a single act of the defendant, the defendant is criminally liable for the harm done to each victim. Commonwealth v. Yates, 386 Pa. Super. 282, 285, 562 A.2d 908, 910 (1989). As the Superior Court stated in Yates,

“There is no ‘two for one discount ’in the Pennsylvania Crimes Code, and we will not permit criminals to imply one through distortion of the common-law merger doctrine. It shall not be a defense to liability that an indiscriminant force employed by a criminal injured or placed at risk more or different persons than intended. To the contrary, the only effective way for a criminal to limit potential liability in that respect is to choose more discriminant tools for achieving the criminal objective(s) sought, i.e., to stop usingfirearms and other instruments of crime which place bystanders at risk." Yates, supra at 288, 562 A.2d at 911. (emphasis in original)

Here, appellant was convicted of two counts of recklessly endangering another person, one count for the victim Lowell Nicholas and the other count for the driver of the vehicle Felix Cruz. He was also convicted of two counts of aggravated assault for the injury to Lowell Nicholas. The recklessly endangering another person charge related to Lowell Nicholas did merge into the most serious aggravated assault charge for sentencing purposes. However, there was no greater charge into which the recklessly endangering another person charge related to Felix Cruz could merge. Appellant must accept responsibility for the harm he did to both Lowell Nicholas and Felix Cruz. He is not entitled to a “discount” because his reckless conduct threatened multiple victims. Therefore, his claim that this court erred in imposing separate sentences for recklessly endangering another person and aggravated assault is without merit.

XIII. Jury’s Findings

Appellant also alleges that “the juiy failed to follow the court’s instructions by finding defendant guilty of crimes as set forth in their verdict because the convictions were based upon speculation and conjecture due to the fact that they thought that defendant’s alibi was ‘too perfect’ to be true and that he must have been involved despite no evidence that he was.”

This court is confused at to what issue appellant is attempting to raise. As this court was not present during the jury’s deliberations, we cannot say whether the jury believed appellant’s alibi was “too perfect.” However, this court is confident that the jury conscientiously considered the law and the facts in this case and that their verdict was the product of careful deliberation, not speculation and conjecture as appellant contends. To the extent that appellant appears to be challenging the sufficiency of the evidence supporting his convictions, that issue will be addressed below.

XIV. Weight of the Evidence

Appellant also complains that the verdict was contrary to the weight of the evidence presented at trial.

“A motion for new trial on the grounds that the verdict is contraiy to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). The determination of whether a verdict is contrary to the weight of the evidence is vested in the sound discretion of the trial court, and will not be overturned absent abuse of discretion. Id. Therefore the decision may be reversed only if the verdict is so contrary to the evidence as to shock one’s sense of justice. See e.g., Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995); Commonwealth v. Davidson, 860 A.2d 575 (Pa. Super. 2004); Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003).

Appellant attempted to establish an alibi by presenting the testimony of Mark Williams, who in 2000 was part owner of a recording studio called Mike Murders Records. Williams testified that he was with the defendant on the evening of July 1, 2000. Defense exhibit 11 was a time tracking sheet used at Mike Murders Records. This tracking sheet indicated that on July 1, 2000 both the witness and appellant were present in the studio completing a “track search” from 11 p.m. to 1:13 a.m. (NT, 5/16/05-5/20/05, at 434-35.) However, the Commonwealth attacked the authenticity and hence the credibility of this document.

Conflicting testimony alone does not entitle the defendant to a new trial. See Bennett, 827 A.2d at 481. This is because “the weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine credibility of the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). (internal citations omitted) Clearly the jury was free to disbelieve appellant’s alibi witnesses and to accept the Commonwealth’s version of events. Therefore, this court submits that it did not abuse its discretion in denying a new trial based on appellant’s assertion that the verdict was contrary to the evidence.

XV. Sufficiency of the Evidence

Appellant also raises several challenges to the sufficiency of the evidence supporting his convictions for aggravated assault, recklessly endangering another person, firearms not to be carried without a license and possessing instruments of a crime.

Aggravated Assault

To support a guilty verdict for aggravated assault under 18 Pa.C.S. §2702(a)(l), the Commonwealth must prove beyond a reasonable doubt that appellant attempted to cause serious bodily injury to another or caused such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. §2702(a) (1).

“The law is settled in this Commonwealth that in reviewing the sufficiency of the evidence, the appellate court is required to review all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth as verdict winner.” Commonwealth v. Dobrinoff 784 A.2d 145, 146 (Pa. Super. 2001). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct, so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa. Super. 453, 458, 636 A.2d 1173, 1176 (1994). Furthermore, the trier of fact is free to believe any portion of the evidence presented. Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986). This includes credibility determinations, and if a jury believes a witness, then the appellate court is bound by that determination where it is not wholly unreasonable. Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986).

The Commonwealth’s evidence has been summarized above. The jury was presented with sufficient evidence to conclude beyond a reasonable doubt that appellant participated in the shooting at Schuylkill Avenue and Buttonwood Street and either caused or attempted to cause serious bodily injury to the victim under circumstances manifesting extreme indifference to the value of human life.

Serious bodily injuiy is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. §2301. Shooting a firearm at another individual undoubtedly creates a substantial risk of death and may cause serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Because the circumstantial evidence presented at trial puts appellant in the white van on the evening of July 1, 2000 with a firearm in his hand, which he fired pointblank at the victim, and because the victim died on the evening of July 1, 2000, there is sufficient evidence to support the jury’s verdict in that appellant is guilty of aggravated assault under 18 Pa.C.S. §2702(a)(l).

Furthermore, even if the jury chose not to believe that appellant actually fired a gun at the victim, nevertheless, there was still sufficient evidence to find appellant guilty beyond a reasonable doubt on the charge of aggravated assault on the basis of accomplice liability. “[Ojne person may be the actual perpetrator of the crime; however, another person is equally criminally liable if he aids that person with the intent of promoting that person’s act.” Commonwealth v. Causey, 833 A.2d 165, 172 (Pa. Super. 2003) (citing Commonwealth v. Everett, 297 Pa. Super. 320, 327, 443 A.2d 1142, 1145 (1982)). (internal citations omitted) The evidence at trial showed that appellant was, at the very least, the driver of the vehicle during commission of the crime. Therefore, the evidence presented at trial was sufficient for the jury to find that each element of aggravated assault was proven beyond a reasonable doubt under a theory of accomplice liability. See id. at 173.

While appellant argues that he lacked the necessary mens rea because he lacked the specific intent to kill, appellant need only have acted knowingly or recklessly to satisfy the requirements of section 2702(a)(1). Even if appellant did not intend to kill anyone, his conduct in firing a firearm at an occupied vehicle on a public street was certainly reckless. Therefore, for all the above reasons, the evidence was sufficient to support appellant’s convictions for aggravated assault.

Recklessly Endangering Another Person

Appellant is guilty of recklessly endangering Lowell Nicholas and Felix Cruz if it is proved that he recklessly engaged in conduct that placed the victims in danger of death or serious bodily injury. 18 Pa.C.S. §2705. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that serious bodily injury will result from his conduct. 18 Pa.C.S. §302(b)(3). The risk must be of such nature and degree that, considering the nature and intent of the individual’s conduct, and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct a reasonable person would have observed in the individual’s situation. Id.

As discussed above, the Commonwealth presented considerable evidence that appellant discharged an operable firearm at the car occupied by the victims. Such conduct surely demonstrates a reckless disregard of the likelihood that the passengers of the car, or for that matter, innocent bystanders, would suffer serious bodily injury as a result of his gunfire.

Firearms Offenses

In order to find appellant guilty of possessing an instrument of a crime, the jury must be satisfied beyond a reasonable doubt that appellant possessed a handgun, pistol, or other firearm, that this item was an instrument of a crime; and that appellant possessed this item with the intent to attempt to commit or commit a crime. 18 Pa.C.S. §907(b).

The Commonwealth presented testimony from Angel Rivera and William Morales that appellant possessed a gun at some point prior to the incident and that he had a .40 caliber gun that he used in the shooting of Lowell Nicholas. A gun is an object that is commonly used for criminal purposes and the evidence suggests that appellant’s gun was possessed by him under circumstances inconsistent with any lawful uses a gun has. The jury could reasonably find that on the night of the shooting, appellant possessed a gun with the intent to engage in the shooting of Lowell Nicholas.

In order to prove appellant is guilty of carrying a firearm without a license, the Commonwealth must establish that appellant carried a firearm either in a vehicle or concealed on or about his person; that the firearm was in operating condition; that appellant was not in his home or place of business; and that appellant did not have a license for carrying a firearm. 18 Pa.C.S. §6106(a).

It was established at trial that appellant does not have a license for carrying a firearm. Additionally, there was testimony at trial from Angel Rivera and William Morales that appellant possessed a gun at some point prior to the incident and that he had a .40 caliber gun that he used in the shooting. This testimony, if believed by the jury, is sufficient to support a conviction on the charge of firearm not to be carried without a license.

XVI. Testimony of Angel Rivera

Appellant next claims that the Commonwealth “committed prosecutorial misconduct by presenting the testimony of Angel ‘Billy’ Rivera at trial because he was originally charged in this murder and then committed perjury to become a Commonwealth witness....”

Appellant’s allegation that Mr. Rivera committed perjury is merely his opinion. While Mr. Rivera was originally charged with the murder, he denied his involvement in the crime and presented an alibi for the murder which was supported by circumstantial evidence including hotel receipts and taxi records. N.T., 5/9/05-5/11/05, at 45-52, 246-55, 261-65. Defense counsel was allowed to extensively cross-examine Mr. Rivera, and ultimately, Mr. Rivera’s credibility was a question for the jury. “The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine credibility of the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). (internal citations omitted)

Accordingly, this court finds nothing improper in the Commonwealth’s decision to present Mr. Rivera’s testimony.

XVII. Jury Instructions

Appellant’s last issue alleges that this court erred by failing to instruct the jury that mere presence at the scene of the crime is not sufficient evidence to convict him of any crimes.

First of all, this court has been unable to find where appellant raised this issue at trial or in his post-sentence motions. “Issues not raised to the trial court are waived and cannot be raised for the first time on appeal. In order to preserve an issue for review, a party must make a timely and specific objection.” Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa. Super. 2003). See also, Pa.R.A.P. 302(a).

Furthermore, while this court did not give a general instruction to the jury that mere presence at the scene of the crime is not enough to support a conviction, when instructing the jury on both conspiracy and accomplice liability, this court explicitly explained to the jury that appellant was not guilty of conspiracy, nor was he an accomplice simply because he was present at the scene of the crime. N.T., 5/16/05-5/20/05, at 637-39. Thus, this court is confident that the jury understood that additional evidence beyond mere presence at the scene ofthe crime was necessary to find appellant guilty of the charges against him.

CONCLUSION

For all the above reasons, the court respectfully requests that the defendant’s appeal be denied and his sentence affirmed.

      . 18 Pa.C.S. §2501(a). Withdrawn by the Commonwealth.

      . 18 Pa.C.S. §2502(a).

      . 18 Pa.C.S. §2502(c).

      . Two counts. 18 Pa. C.S. §§2702(a)(l), (a)(4).

      . 18 Pa.C.S. §6105. Severed prior to the commencement of trial and subsequently withdrawn by the Commonwealth.

      . 18 Pa.C.S. §6106(a).

      . 18 Pa.C.S. §907(b).

      . Two counts. 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §903(a)(l)(2).

      . 18 Pa.C.S. §903(a)(l)(2).

      . 18 Pa.C.S. §903(a)(l)(2).

      . 18 Pa.C.S. §903(a)(l)(2).

      . 18 Pa.C.S. §903(a)(l)(2).

      . 18 Pa.C.S. §§2702(a)(l), (a)(4).

      . 18 Pa.C.S. §6106(a).

      . 18 Pa.C.S. §907(b).

      . 18 Pa.C.S. §2705.

      . Given the excessive number of issues raised by appellant in his concise statement, this court will not attempt to reproduce them.

      . An instrument of a crime is anything specially made or specially adapted for criminal use or anything commonly used for criminal purposes and possessed by the defendant under circumstances not manifestly appropriate for lawful uses it may have.


source: Caselaw Access Project

author: RUBENSTEIN, J,

license: Public Domain

text:
    Metzer v. Metzer

      Thomas E. Coval, for plaintiff.

      Alison Boothby Long, for defendant.
    April 3, 2008
   RUBENSTEIN, J,

— Father John A. Metzer and Mother Diane Pfeil Metzer both appeal from this court’s order of January 14, 2008 ordering Mother to pay $608 per month for support of their two children, Jake, age 11, and Sean, age 7.

Mother and Father were divorced on October 25,2006, and Father was awarded primary physical custody of the children. On July 26, 2007 Mother and Father signed a property settlement agreement which stated in part in paragraph 15 (Support) verbatim:

“Husband agrees to waive child support from Wife for the parties’ minor children. This waiver is not to be interpreted as Husband waiving the children’s right to child support; rather the waiver is due to contents (sic) of this agreement and Wife waiving payments she may be entitled to with regard to alimony and Husband’s pension.

“Father agrees to maintain health coverage for the minor children and take care of all of their day-to-day needs with exception of their meals when they are with Mother.” Exhibit M-l.

On September 10,2007 Father filed a petition for child support. A support conference was conducted on October 23, 2007. After a hearing, the court determined that Father’s monthly net income was $6,010.22 and Mother’s was $1,351.37. An interim order was entered by Judge Susan Devlin Scott of this court ordering Mother to pay $464 per month in support and $20 in arrears. This support obligation was based upon a presumed reasonable child-care expense pursuant to Pa.R.C.P. 1910.16-6(a) of $165 per week.

Mother’s net income was based upon her employment three days a week as a restaurant waitress, with a base pay of $2.83 gross per hour plus tips, which average $200 net per week, and $10 per hour gross as a hostess on Friday nights, plus unemployment compensation of $426 for the month of January when the restaurant is closed. A wage attachment was issued on October 29, 2007 to Mother’s employer in accordance with this order. An order was also issued scheduling a further support hearing.

This support hearing was conducted on January 14, 2008. This court modified the prior order and directed Mother to pay $608 per month for the support of Sean and Jake and $50 per month upon any arrears. Health care insurance coverage was to be provided by Father and unreimbursed medical expenses exceeding $250 annually per child were to be allocated at 25 percent to Mother and 75 percent to Father. A wage attachment was also issued to Mother’s employer pursuant to this order.

The following evidence was presented at the January 14, 2008 hearing:

Father resides in Furlong, Bucks County, Pennsylvania with the parties’ two sons, Sean and Jake. Father is employed as an engineer program manager with the United States Naval Surface Warfare Center in Philadelphia. He leaves for work at 5:30 a.m. and returns home “sometime between 4 and 5 o’clock.” N.T. January 14,2008, pp. 4, 8.

Father has employed an “au pair” since September 2006 to help with the care of his two sons. Father testified that the au pair provides care “the entire day” when the children are off from school. Pursuant to her contract with Father, the au pair can provide up to 45 hours of child care per week. Her duties include preparing the children for school, picking them up at the school bus and helping with their homework. Father testified that after considering the cost of the before and after school daycare provided by the Central Bucks Community School, he concluded “[t]hat I’m getting my best value with the au pair agency and the most coverage.” N.T. January 14, 2008, pp. 7-13.

In addition to preparing the children for the arrival of the school bus at 8:20 a.m., the au pair also does housework and laundry, but only for the children. N.T. January 14, 2008, pp. 19-20, 23.

Father testified that he cooks dinner and does the grocery shopping but provides the au pair with a Ford Taurus to run errands. Father testified that as long as she completes her duties, the au pair is essentially free to do as she wishes during the time the children are in school. Father testified that in accordance with State Department requirements for a visa, the au pair attends three credit hours each semester at Bucks County Community College. Father testified that he paid a total of $18,535 for au pair services for 2006-2007 which he was seeking to include as reasonable child care expenses in the child support calculations. N.T. January 14, 2008, pp. 19-25.

Father admitted that he receives six weeks of paid vacation per year. He has worked for the government for 25 years, and has been paying into the Civil Service Retirement System during that time. He earns approximately $ 100,000 per year. Father agreed that the cost for full-time before and after-school care through the Central Bucks Community School would be $490 per month for both sons. Father testified that he has primary custody of their sons, and admitted that he had told Mother that he would “spend every penny he had” fighting Mother for custody of the children. N.T. January 14, 2008, pp. 25-32.

Father testified that his “core” work hours are “from 9 in the morning until 3 in the afternoon,” but he chooses to leave for work at 5:30 a.m. to avoid “traffic at a bad time.” N.T. January 14, 2008, pp. 41-42.

Father testified that he “occasionally has some cash flow issues” and that was why he was seeking support from Mother. Father testified that he recently spent $35,000 renovating his house, which included the installation of a cathedral ceiling, a bathroom renovation and replacement of windows and exterior siding. N.T. January 14, 2008, p. 46.

Father testified that Mother is a waitress at the Inn at Phillips Mill in New Hope, Bucks County. He related that she had been previously employed by the “Defense Printing Service” earning $40,000 to $50,000 per year. Father admitted that Mother left that job “because we felt it was important for one parent to be home to raise our children.” He believed that she was capable of resuming that employment because “she still has the same qualifications and skill set.” N.T. January 14, 2008, pp. 14-16.

Father estimated that Mother earns $529 per night in tips as a waitress. He derived his estimate as follows: Father reviewed the menu from the Inn at Phillips Mill which he obtained from the Internet. After carefully examining that menu, (including their offering of “les hors d’oeuvres,” “les salades,” “soupe du jour,” “les entrees,” and “les desserts”), Father extrapolated that the average price of an appetizer, soup, salad, entree, dessert and coffee was $49 per person. He further assumed that the average number of patrons per table was three, and that during four and one-half hours per evening Mother was able to wait on four tables per hour, thus serving approximately 54 customers per evening. Based upon these assumptions, all of which are contained in Father’s self-designed chart (exhibit F-7), Father calculated that the “total take” per evening was $2,646. Utilizing this figure, Father further estimated that a 20 percent gratuity based upon this “total take” would average $529.20 per evening. N.T. January 14, 2008, pp. 16-18; exhibit F-7.

Mother testified that in October 2007 she purchased a house in Doylestown, Bucks County, Pennsylvania for $284,500. In order to qualify for the mortgage loan of $209,500, for which she makes monthly payments of $1,553.47, Mother stated that she was advised by the loan officer to indicate earnings of $4,166 per month, an amount which the loan officer filled in on her loan application. N.T. January 14, 2008, pp. 54-58.

Mother testified that she had received $125,000 from the marital property settlement for the “buy-out” of her share of the marital residence and $10,000 for the “equitable distribution of the vehicles.” She testified that she used $75,000 for a down payment on her new house and the remainder to pay off her car and “subsidize her living.” N.T. January 14, 2008, pp. 59-60.

Mother further testified that she works part-time (approximately four days per week) as a waitress and hostess at the Inn at Phillips Mill and earns $2.83 per hour plus tips as a waitress and $ 10 per hour as a hostess. The waitstaff “pools” the tips which equate to approximately 10 percent of the gross of the restaurant each day. Mother admitted that some of her tip income is not reflected in her pay stubs, and estimated that she earns “between 16 and 18 percent” of “the sales” in tips. N.T. January 14, 2008, pp. 60-63.

Mother testified that she does not receive any alimony and did not receive a share of Father’s pension in her divorce settlement. Mother utilizes the proceeds of her property settlement to assist her in paying her mortgage and other household expenses. Mother stated she began paying child support in November 2007 upon receipt of a letter from the court of common pleas directing her to do so. N.T. January 14, 2008, pp. 64-68.

Mother testified that she had worked for the “Defense Automated Printing Service” but left in 1999 to raise her son and “extend our family.” Mother testified that after September 11, 2001 many of her prior government/administrative functions had been outsourced to private contractors. Mother stated that when she left her job after 14 years with the defense agency she had been earning $36,000 to $38,000 per year. N.T. January 14, 2008, pp. 68-69, 71-72.

In 2001, Mother began work as a waitress at Giuseppe’s Restaurant in Richboro, Bucks County. Mother stated that she attended a trade school in 2005 and obtained a “cosmetician license” but has never worked as a cosmetician. N.T. January 14, 2008, pp. 69-70.

Mother testified that she agreed to waive her right to alimony “because it was a trade for the child support.” She confirmed that Father had threatened to “spend every penny to fight her for custody” and stated that Father would not consent to the divorce if she sought alimony or a portion of his pension. Mother admitted that she was not coerced into signing the marital property settlement, and agreed that she does not declare all of her income to the Internal Revenue Service. She testified that she has not applied for any full-time employment because she believed that she did not have to pay child support and likes her current job where she intends to assume additional hours. She admitted that she could work full-time, and estimated her hourly wage rate including tip income was $14.93 per hour. N.T. January 14, 2008, pp. 73-85.

Mother testified that she has partial custody of her sons every Tuesday evening and every other weekend from Friday at 5 o’clock until Sunday at 3 o’clock. N.T. January 14, 2008, pp.78-79.

Natalie Haritonow, a German citizen, testified that she has been employed as an au pair by Father for the children, Jake and Sean, since September 2006. She testified that she wakes the children at 7 a.m., prepares their breakfast and lunch, and either drives or walks them to the bus stop or school which begins at 8:30 a.m. Haritonow testified that her duties include cleaning, washing dishes, doing the children’s laundry and helping Father with the food shopping. She picks up the children from school in the afternoon and makes snacks and helps them with their homework. She testified that Father arrives home from work at approximately 5 p.m. and that he prepares dinner. N.T. January 14, 2008, pp. 88-92.

Flaritonow also attends one three-credit class at Bucks County Community College per semester. She is paid $ 165 per week in cash by Father for these duties. Her automobile insurance is provided by her au pair agency. She has a separate bedroom in Father’s house and Father provides her food. N.T. January 14, 2008, pp. 92, 95.

Janet Kratzke testified that she is an independent contractor for “Au Pair America.” As a “senior counselor” she supervises 48 “au pairs that are in my cluster” including Natalie Haritonow. Kratzke testified that reasonable estimates for Father’s au pair expenses include: $2,400 for room and board, $600 per year for auto insurance, $500 for tuition assistance, $7,800 for an annual stipend for the au pair, $ 170 per year transportation costs, a onetime $350 program application fee, a “SEVIS” fee (a visa renewal charge) in 2006 of $3 5 and in 2007 of $ 198, and a $6,600 program fee. Kratzke testified that the au pair provides a maximum of 45 hours of child care per week or 10 hours per day, and that the au pair is “allowed to perform any duty that is child care related.” N.T. January 14, 2008, pp. 105-11.

At the conclusion of this hearing, this court determined that Mother’s net income was $2,050.15 per month. This conclusion was based upon full-time employment at 40 hours per week and an imputed wage of $15 per hour. Father’s net income remained unchanged at $6,010.22 per month. The combined total monthly net income of $8,060.37 resulted in a basic child support obligation of $1,642. Mother’s portion of that basic support obligation was determined to be $417.56, which was based upon her proportionate share of25.43 percent of the combined total net income. Adjustments of $101.72 for child care expenses and $89.14 for health insurance premiums resulted in a total obligation to Mother of $608.42 per month. It is from this award that both parties appeal.

Father filed his notice of appeal from this court’s order on February 8, 2008. On February 11, 2008 this court ordered Father to file a concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) (1). Father filed his statement of matters complained of on appeal on February 29, 2008. On February 13, 2008 Mother filed her notice of appeal. On February 20,2008 this court ordered Mother to file a concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Mother filed her statement of matters complained of on appeal on March 12, 2008.

In his concise statement of matters complained of on appeal, which according to Father “is made in general terms because the court did not state the basis for its decision,” Father asserts that the “court erred, abused its discretion and made a finding unsupported by the record” when it “failed to give full credit to the costs of the child care program provided through the nanny service,” “failed to give proper credit for [Mother’s] income,” and “failed to find [Mother’s] income to be in the amount she represented to be her income under penalty of federal law in her mortgage application and statement provided at settlement.” Statement of matters complained of on appeal.

Mother asserts in her concise statement that the trial judge “erred in entering an order of child support against Mother when Father waived his right to child support in the parties’ property settlement agreement, and when the children’s needs were able to be met without entry of such an order,” “erred by failing to consider Father’s waiver of child support as a basis for deviating from the guidelines when the children are able to be adequately provided by Father,” and “erred in assigning an earning capacity to [Mother] that is unsupported by the evidence of record.” Statement of matters complained of on appeal.

It is well-established in the Commonwealth of Pennsylvania that:

“The applicable standard of review with respect to support awards is abuse of discretion; the amount of support awarded is largely within the sound discretion of the trial court. ‘A finding that the court abused its discretion requires proof of more than a mere error in judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice or partiality.’ Thus, this court may reverse the trial court’s determination only if the court’s order cannot be sustained on any valid ground.” Chapman-Rolle v. Rolle, 893 A.2d 770, 773 (Pa. Super. 2006) (citing Spahr v. Spahr, 869 A.2d 548, 551 (Pa. Super. 2005)). (citations omitted)

“Hence, the calculation of a support order largely is within the discretion of the trial court.” Woskob v. Woskob, 843 A.2d 1247, 1251 (Pa. Super. 2004).

In responding to Father’s initial claim that this “court did not state the basis for its decision,” we note that this court placed the following statement of record when we entered our order:

“We will note the presence of the parties and their counsel. I will enter an order, but I feel constrained to place at least of record some of the reasons for that order.

“I’ve read the case law provided by counsel and the memorandum provided by Husband’s counsel. There is no serious issue as to Husband’s income. We do however find, and the testimony confirms, that Wife is underemployed. We base our decision upon her working 40 hours per week at $15 per hour.

“We also find that while the child care expense with the au pair is certainly [a] quality child care expense, it does not meet the definition of [a] reasonable child care expense. It seems to be worth the money and it is money well spent because it’s for the benefit of the children. But we do not believe that Wife should foot the entire bill for what we see as excessive.

“The children need child care. The au pair provides much more than that at a great cost. Father has the absolute right to spend whatever he wishes for the benefit of his children. Wife is only responsible for the reasonable share based upon their respective incomes.

“We believe that the child care expenses which are fair and reasonable total $500 per month. Therefore, utilizing that number plus the agreed health care premiums, we enter the following order: Effective as of the filing date, Wife shall pay the sum of $608 per month for the support of the two children. This includes the health care premium, as well as reasonable child care. We’ll also direct that any arrears occasioned by the order be paid at the additional rate of $50 per month.

“Husband and Wife are responsible in proportionate shares as follows: For any medical expenses which exceed the first $250 per child, 25 percent for Wife and 75 percent for Husband. That’s all.” N.T. January 14,2008, pp. 134-36.

We address Father’s next assertion that this court “failed to give full credit to the costs of the child care program provided through the nanny service,” by noting that within this Commonwealth, child support is to be awarded pursuant to statewide guidelines established by general rule of the Supreme Court of Pennsylvania. See Pa.R.C.P. 1910.16-1; 23 Pa.C.S. §4322(a). “The support guidelines are to be considered both in entering the original support order, and in entering a modified order.” Shutter v. Reilly, 372 Pa. Super. 251, 256, 539 A.2d 424, 426 (1988).

The relevant portion of 23 Pa.C.S. §4322, Support Guidelines, mandates that:

“The guideline shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.” 23 Pa.C.S. §4322(a).

Furthermore, Pa.R.C.P. 1910.16-6 states in pertinent part:

“Rule 1910.16-6. Support guidelines. Adjustments to the basic support obligation. Allocation of additional expenses

“Additional expenses permitted pursuant to this Rule 1910.16-6 may be allocated between the parties even if the parties’ incomes do not justify an order of basic support.

“(a) Child care expenses. Reasonable child care expenses paid by either parent, if necessary to maintain employment or appropriate education in pursuit of income, shall be allocated between the parties in proportion to their net incomes and added to his and her basic support obligation....” Pa.R.C.P. 1910.16-6(a). (emphasis added)

In the instant case, while it was acknowledged that child care expenses were necessary for Father to maintain employment, we determined that the full cost of the au pair service was excessive and not a “reasonable” child care expense. Here, the cost of the au pair service of $678.58 bi-weekly, or $ 1,357.16 per month, included the following annual expenses for 2007-2008: “SEVIS” extension $ 198; program fee $5,045; transportation $ 120; plan and service charge $200; tuition assistance $500; stipend $8,5 80; auto insurance $600; and room and board $2,400. Exhibit F-4.

We also determined that the cost of comparative child care provided by the Central Bucks Community School Before and After School Program within the community where Father resides was $490 per month for two children. Exhibit F-6. This is in marked contrast to the $1,357.16 per month that Father pays for his au pair service.

While the Central Bucks Community School program obviously does not provide assistance with laundry, shopping, errands, and housecleaning, this court concluded that it would be unreasonable and unjust to compel Mother to contribute to those additional household benefits and advantages which are provided by the au pair service. Accordingly, a more “reasonable” value of $500 per month for child care expenses was used in calculating the adjustment to Mother’s share of the child support obligation, which was then determined to be $101.72.

Father appears to presume that Mother can be compelled to contribute to any and all child care expenses that Father incurs, regardless of the amount. Fie has cited no case law to substantiate his position, and this court has declined to effectuate such a result.

Father next asserts that this court “failed to give proper credit for [Mother’s] income” and “failed to find [Mother’s] income to be in the amount she represented to be her income under penalty of federal law in her mortgage application and statement provided at settlement.” Father in essence demands that this court utilize Mother’s indicated earnings of $4,166 per month on her mortgage loan application, and/or his calculated estimate of $529 per night that Mother supposedly earns as a waitress at the Inn at Phillips Mill, as the true value of her income when calculating her support obligation. We have declined to do so.

The Superior Court of Pennsylvania has consistently declared that when the “the trial court sits as fact-finder, the weight to be assigned the testimony of the witnesses is within its exclusive province as are credibility determinations, [and] the court is free to choose to believe all, part, or none of the evidence presented.” Stokes v. Gary Barbera Enterprises Inc., 783 A.2d 296, 297 (Pa. Super. 2001). See also, Hoffman v. Hoffman, 762 A.2d 766, 770 (Pa. Super. 2000), citing McKolanis v. McKolanis, 435 Pa. Super. 103, 105, 644 A.2d 1256, 1257 (1994) (assessment of the credibility of witnesses is within the province of the trial court).

In calculating support obligations, the Superior Court of Pennsylvania has also noted that:

“[A] person’s support obligation is determined primarily by the parties’ actual financial resources and their earning capacity. Hoag v. Hoag, 435 Pa. Super. 428, 646 A.2d 578 (1994). Although a person’s actual earnings usually reflect his earning capacity, where there is a divergence, the obligation is determined more by earning capacity than actual earnings. See DeMasi v. DeMasi, 408 Pa. Super. 414, 597 A.2d 101 (1991). Earning capacity is defined as the amount that a person realistically could earn under the circumstances, considering his age, health, mental and physical condition, training, and earnings history. Gephart v. Gephart, 764 A.2d 613 (Pa. Super. 2000).” Woskob, 843 A.2d at 1251.

In this case, it was this court’s sole province to determine the credibility of the parties’ testimony and arrive at a proper valuation of Mother’s imputed income. Mother submitted two pay stubs for the pay periods December 10, 2007 to December 23, 2007, which reflected total earnings of $290.99 and tips of $151, and December 24, 2007 to January 6, 2008, which reflected earnings of $267.21 and tips of $249. Exhibit M-2. If Mother’s income, in accordance with these pay stubs, is estimated to be approximately $500 every two weeks, her projected annual income is $13,000. This court also noted that Mother’s Federal Income Tax Return Form 1040 for 2006 revealed adjusted gross income of $14,134.

If Father’s “estimate” of $529 per night in tip income for Mother was used in calculating her support obligation, Mother, working part-time, four days per week, would have gross income of over $ 110,000 per year. This is clearly an unrealistic result unsupported by the evidence. By properly adhering to the Superior Court’s directive to a trial court “to refrain from relying on hypothetical paper calculations and determine appellant’s actual monthly income based on the reality of appellant’s financial situation,” Fitzgerald v. Kempf, 805 A.2d 529, 532 (Pa. Super. 2002), we declined to acknowledge the validity of Father’s estimate which was based upon speculation and conjecture.

Similarly, Mother’s declared gross income of $4,166 per month on her mortgage loan application results in an annual income of approximately $50,000. After carefully considering the circumstances surrounding the parties, as well as Mother’s testimony concerning her income and employment as a waitress, we determined that this amount did not accurately reflect Mother’s income or her present actual earning capacity.

Father asserts that this court erred in failing to utilize as the true amount of Mother’s income the amount she declared upon her mortgage loan application. Although Mother misrepresented her income on the application in an effort to qualify for a specific loan amount, this court has no authority to, and indeed must not, perpetuate that misrepresentation.

This court does have, however, a responsibility to accurately determine Mother’s support obligation based upon her actual financial resources and earning capacity. As a result, after recognizing that a person’s support obligation is to be determined by his or her assessed earning capacity when the person “assumes a lower paying job or willfully fails to obtain appropriate employment,” Woskob, 843 A.2d at 1254, this court imputed an annual income of $31,200 to Mother. This value was predicated upon the recognition that Mother was capable of full-time employment and assumed a 40-hour work week with a wage rate of $15 per hour, which is commensurate with wages for clerical functions similar to those Mother previously performed in her employment with the U.S. government.

In responding to Mother’s complaints that this court “erred in entering an order of child support against Mother when Father waived his right to child support in the parties’ property settlement agreement,” and “erred by failing to consider Father’s waiver of child support as a basis for deviating from the guidelines,” we note that the Superior Court of Pennsylvania has consistently held that:

“[PJarents have a positive duty to provide care, control and subsistence for their children, as well as a duty to love, protect, and support the child. Petition of Lutheran Children and Family Service of Eastern Pennsylvania, 456 Pa. 429, 321 A.2d 618 (1974); Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa. Super. 32, 457 A.2d 98 (1983). This duty to support applies to both parents; both parents bear an equal responsibility for supporting their children in accordance with the capacity and ability of each to do so. Shindel v. Leedom, 350 Pa. Super. 274, 504 A.2d 353 (1986); Fee v. Fee, 344 Pa. Super. 276, 496 A.2d 793 (1985); Sutliff v. Sutliff 339 Pa. Super. 523, 489 A.2d 764 (1985).

“Furthermore, it is well-settled that one parent cannot contract away the right of his or her child to seek adequate support from the other parent. Hollman v. Hollman, 347 Pa. Super. 289, 500 A.2d 837 (1985); Abarbanel v. Weber, 340 Pa. Super. 473, 490 A.2d 877 (1985); Commonwealth ex rel. Shoemaker v. Coulson, 355 Pa. Super. 626, 485 A.2d 70 (1984); Oman v. Oman, 333 Pa. Super. 356, 482 A.2d 606 (1984).” Miesen v. Frank, 361 Pa. Super. 204, 208, 522 A.2d 85, 87 (1987). (emphasis in original)

See also, Commonwealth v. Cameron, 197 Pa. Super. 403, 406, 179 A.2d 270, 272 (1962) (holding that “neither the mother nor anyone else can bargain away the right of a minor child to adequate support from her father”); Kost v. Kost, 757 A.2d 952, 954 (Pa. Super. 2000) (holding that the “[t]rial court correctly noted that neither party may bargain away a minor’s child’s right to adequate support”); Leonard v. Leonard, 353 Pa. Super. 604, 608, 510 A.2d 827, 829 (1986) (recognizing that “it has long been the rule in this jurisdiction that parents cannot bargain away the right of support for their children despite the validity and legality of the contract”); Domestic Relations Section for Diehl v. Mulhern, 406 Pa. Super. 422, 427-28, 594 A.2d 692, 695 (1991) (holding that “[t]he obligation of a parent to support his or her child is an unwavering one, and one parent will not be permitted to contract away the right of his or her child to seek support from the other parent”).

This principle was reaffirmed by the Supreme Court of Pennsylvania in Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503 (1991) when it held that:

“Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests. Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). They have no power, however, to bargain away the rights of their children, Sonder v. Sonder, [378 Pa. Super. 474, 549 A.2d 155 (1988)]. Their right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short. Their bargain may be eminently fair, give all that the children might require and be enforceable because it is fair. When it gives less than required or less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court’s wide and necessaiy powers to provide for that best interest.” Id. at 86, 588 A.2d at 505.

The Superior Court recently relied upon Knorr in Kraisinger v. Kraisinger, 928 A.2d 333 (Pa. Super. 2007) when it invalidated a provision in a marriage settlement agreement waiving a wife’s right to seek additional child support in exchange for part of an equitable distribution award, after concluding “it left the children without sufficient support.” Id. at 341.

We are, however, also aware that the Superior Court will enforce a child support agreement “in which one parent releases the other from the duty of support... so long as it is fair and reasonable, was made without fraud or coercion, and does not prejudice the welfare of the children involved.” Roberts v. Furst, 385 Pa. Super. 530, 532, 561 A.2d 802, 803 (1989) (citing Commonwealth v. Cameron, 197 Pa. Super. 403, 179 A.2d 270 (1962)).

Here, Mother and Father signed a “property settlement agreement” on July 26,2006, in which Father, pursuant to paragraph 15 (Support) “agrees to waive child support from [Mother] for the parties’ minor children.” Exhibit M-l. While the drafters of this agreement apparently attempted to circumvent the impropriety of waiving child support by further declaring that “[t]his waiver is not to be interpreted as Husband (Father) waiving the children’s right to child support; rather the waiver is due to contents (sic) of this agreement and Wife (Mother) waiving payments she may be entitled to with regard to alimony and Husband’s pension,” the plain and unmistakable intent of this provision was to relieve Mother of her obligation to provide child support. Mother apparently bargained away any right to alimony and a portion of Father’s pension in exchange for Father’s relieving Mother of her duty to pay child support.

While such an agreement might have been enforceable if it arguably did not prejudice the welfare of the children, there is nothing in the language of this provision to suggest that the welfare of the children was protected in Mother’s bargained-for relief from providing child support. Therefore, this provision is unenforceable and contrary to public policy.

We note parenthetically that Roberts and Furst, supra, which upheld similar waiver of child support provisions, are distinguished from the case sub judice in that they involved third-party stepparents who assumed via written agreements the status of in loco parentis to the children. In each case, the Superior Court held that the agreements were enforceable after reasoning that the mother and stepfather were able to adequately support the children, but cautioned that should they become financially unable to support the children, or should “the cost of maintenance of the children become a burden on the public,” the natural father’s “obligation to contribute to their support” would resume. Roberts, 385 Pa. Super. at 534, 561 A.2d at 804; Cameron, 197 Pa. Super. at 209, 179 A.2d at 273. See also, Klein v. Sarubin, 324 Pa. Super. 363, 471 A.2d 881 (1984) (finding no error in trial court’s refusal to recognize that mother’s second husband had assumed the status of in loco parentis to the children, which would have relieved father of his legal support obligation, because inter alia neither mother nor second husband had executed an agreement releasing father from his support obligation). Here, there is no suggestion that the children have been adequately provided for via a written agreement with a third party stepparent who has assumed Mother’s obligations of child support.

Based upon the foregoing discussion and an overriding awareness that “both parents bear an equal responsibility for supporting their children in accordance with the capacity and ability of each to do so,” Miesen, supra, we concluded that Mother was not relieved of her obligation to contribute to her children’s support, despite the child support waiver in the property settlement agreement. We also concluded that Mother was underemployed working only part-time, and therefore in accordance with Woskob, supra (“where a party assumes a lower paying job or willfully fails to obtain appropriate employment, the support obligation is determined by his assessed earning capacity”), this court assessed Mother’s annual earning capacity at $31,200, which resulted in her present child support obligation of $608 per month.

We also note parenthetically that while the property settlement agreement between Mother and Father was inartfully drawn, Father intended to clearly convey to Mother that she would not be responsible for child support if she waived her right to alimony and to share in Father’s government pension. Mother apparently believed that Father was a man of his word and that this property settlement agreement was enforceable. She was wrong in both assumptions.

Because we believe that the “waiver of support” provision in paragraph 15 of the property settlement agreement was not enforceable, Mother’s assertion that this court erred in failing to consider it in determining Mother’s support obligation is without merit.

Mother’s final assertion that this court “erred in assigning an earning capacity to [Mother] that is unsupported by the evidence of record” has been previously addressed. This court determined from the evidence presented at the hearing that Mother was underemployed, and consequently assessed her an annual earning capacity of $31,200 in compliance with 23 Pa.C.S. §4322(a) and Woskob, supra.

We believe the foregoing discussion addresses the issues raised by both parties.


author: HOBERG, J,

text:
    In re Adoption of E.M.S.

      Andrew Shaw, for petitioners.

      Cindy Gorman, guardian ad litem.

      David Natan, forLCC&YSSA.
    January 7, 2008
   HOBERG, J,

— The matter presently before the court stems from the filing of a report of intention to adopt E.M.S. [redacted] by petitioners T. D. and R. D. [redacted], husband and wife. E.M.S. is a 9-year-old boy who was bom on May 10,1998. He suffers from Hunters Syndrome, a genetic disorder which affects E.M.S.’s speech and mental functioning. E.M.S. is currently in the custody of the Lancaster County Children and Youth Social Service Agency, which has not consented to the adoption of E.M.S. by the petitioners. The agency asserts that the petitioners lack standing to adopt. Petitioners assert that the agency’s refusal to consent to the adoption does not deny them standing and that they are entitled to adopt E.M.S., assuming that the court finds the adoption in the best interests of E.M.S.

On October 18, 2007 this court held a hearing to determine whether the petitioners are entitled to standing. This court finds, for reasons more fully set out below, that the petitioners do not have standing, despite the agency’s failure to consent to the adoption. Therefore, this court dismisses the report of intention to adopt filed by petitioners.

The facts in this case are straightforward and, on a whole, not disputed by the parties. In fact, the petitioners, the agency and the guardian ad litem, who serves as representative for this child through her appointment in the dependency proceeding, all signed a joint stipulation setting forth almost all of the facts. See court exhibit 1.

E.M.S. was placed with the petitioners, by the agency, on or about November 17, 2004. At that time, the agency believed that the petitioners were a pre-adoptive home for E.M.S. The parental rights of E.M.S.’s biological parents were terminated by this court on February 2, 2006.

At the time of the termination, the petitioners had begun the process of adopting E.M.S., a process then supported by the agency and the Bair Foundation.

However, on August 28,2006, other foster children in petitioners’ home made a report of abuse. This alleged abuse was perpetrated by one of the petitioners against E.M.S. and another foster child in the home. As a result of the report, the agency removed E.M.S. from the home that day.

The Department of Public Welfare investigated the report and determined it to be unfounded. On October 3, 2006, which was subsequent to the unfounded report, the agency notified the petitioners that they would not be returning E.M.S. to their home. See petitioners’ exhibit no. 1. On October 4, 2006, the Bair Foundation caseworker met with the petitioners and informed them that their residence would be closed as a foster home. See agency’s exhibit no. 3. By correspondence dated October 5, 2006, the Bair Foundation confirmed this decision in writing. See agency’s exhibit no. 2.

As of the time of the October 18, 2007 hearing, petitioners had not filed any administrative appeals of the agency’s refusal to return E.M.S. to their care. Petitioners had not filed any appeals of the closing of their residence as a foster home by the Bair Foundation. Petitioners have not seen E.M.S. since he was removed from their care eight months prior to the filing of their report of intention to adopt.

The agency did not consent to the petitioners’ report of intention to adopt filed in April 2007. Petitioners assert that the agency’s refusal to consent to the report of intention to adopt does not deny the petitioners’ standing to seek an adoption of E.M.S. Petitioners seem to assert that they would have standing to adopt E.M.S. but for the agency’s refusal to give consent.

The court agrees with petitioners that, in light of In re Adoption of J.E.F., C.J.U., N.G.F., 587 Pa. 650, 902 A.2d 402 (2006), the agency’s withholding of consent does not bar petitioners from proceeding with an adoption. “A withheld consent [by the agency] alone does not destroy a party’s standing under traditional standing doctrine.” Id. at 669, 902 A.2d at 413. The trial court is to “determine what role a conferred, or withheld, consent should have upon the adoption proceedings.” Id. at 667, 902 A.2d at 412. Flowever, “under both the [Adoption] Act and traditional notions of standing, it is not the consent of the agency that determines the preliminary question of standing to be heard under the Adoption Act, but the existence of a substantial, direct and immediate interest in the proceeding.” Id. at 672, 902 A.2d at 415. Therefore, the petitioners must also demonstrate that they maintain standing in the traditional sense of the legal phrase.

In re Adoption of J.E.F. the court sets forth in great detail how a party is determined to have standing.

“At its most basic level, standing merely ‘denotes the existence of a legal interest.’ Traditionally, to have standing, a party must be aggrieved — that is, the party must have a substantial interest in the subject matter of the litigation that must be direct and immediate, rather than remote, and which distinguishes his interest from the common interest of other citizens.

“With respect to this requirement of being aggrieved, an individual can demonstrate that he is aggrieved if he can establish that he has a substantial, direct and immediate interest in the outcome of the litigation in order to be deemed to have standing. An interest is ‘substantial’ if it is an interest in the resolution of the challenge which ‘surpasses the common interest of all citizens in procuring obedience to the law.’ Likewise, a ‘direct’ interest mandates a showing that the matter complained of ‘caused harm to the party’s interest,’ i.e., a causal connection between the harm and the violation of law. Finally, an interest is ‘immediate’ if the causal connection is not remote or speculative.” Id. at 668, 902 A.2d at 412-413. (citations omitted)

Determining whether the petitioners have standing is paramount to whether the adoption may proceed.

Prior court decisions have expanded the rights of grandparents and aunts or uncles to adopt children, even where the rights of the biological parents have been terminated. See In re Adoption of J.E.F. However, the support for standing in those actions stems from the blood relationship that exists even after the termination of parental rights. “[F] or purposes of the mere preliminary question of standing, a child’s blood aunt and uncle who indicate an interest in adoption clearly have an interest which surpasses that of the ordinary, unrelated citizen.” In re Adoption of J.E.F., at 671, 902 A.2d at 414. In the present action, petitioners bear no blood relationship to E.M.S.

Where third parties seek to adopt, standing is conferred if the proposed adopters can establish that they stand in loco parentis to the child. In re Adoption of Baby Boy Wims, 454 Pa. Super. 498, 502, 685 A.2d 1034, 1036 (1996), citing Chester County CYS v. Cunningham, 431 Pa. Super. 421, 636 A.2d 1157 (1994), affirmed, 540 Pa. 258, 656 A.2d 1346 (1995). A person who acts in loco parentis: “puts himself into the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of ‘in loco parentis’ embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.” In re Wims, at 502, 685 A.2d at 1036, citing Cardamone v. Elshoff, 442 Pa. Super. 263, 275, 659 A.2d 575, 581 (1995).

The instant action before the court bears significant resemblance to the matter before the Superior Court in Wims. The Nelsons, who were serving as foster parents to baby boy Wims, filed an intent to adopt petition five months after the child was removed from their care and placed with another family. At the time of the filing of the petition to adopt, the Nelsons no longer had physical custody of the child, they had no contact with the child and they were no longer responsible for any decisions made on the child’s behalf. For these reasons the Superior Court found that the Nelsons “had no parental relationship with the child.” Id. at 502, 685 A.2d at 1036. Of further significance in the Wims case was the time delay between the removal of the child from the Nelson home and their filing of the intention to adopt as well as the record being devoid of any attempts by the Nelsons to contest the removal of the child by the agency at the time of the replacement.

When E.M.S. was in the physical custody of the petitioners, Mr. and Mrs. D. obviously enjoyed the status of acting in loco parentis. However, upon the removal of E.M.S. by the agency, the parental relationship with E.M.S. ceased as did their status. At the time the petitioners filed their report of intention to adopt, they, as third parties, were not acting as in loco parentis and do not have standing to proceed in the adoption.

During the hearing, petitioners introduced as exhibits correspondence from two of the foster daughters in their home at the time E.M.S. was removed. See petitioners exhibit nos. 2 and 3. These exhibits, dated April 21,2007, assert that any reports made by the daughters to their caseworker were only made in an attempt to re-unify with their biological father. The court presumes that the correspondence was introduced to evidence no wrongdoing on the part of petitioners as to E.M.S. These documents are of little consequence in this action. Petitioners are attempting to litigate the removal of E.M.S. from their home over a year ago. The time to address this issue has passed and cannot be reopened. Why E.M.S. was removed from the home is not as important as the fact that petitioners were not acting as in loco parentis at the time of the filing of the report of intention to adopt.

This court cannot expand In re Adoption J.E.F. to bestow foster parents with standing to proceed in an adoption where they no longer have physical custody of the child, they are not blood relatives to the child and they do not stand in loco parentis to the child. While I can sympathize with the fact that the petitioners do feel an emotional connection to E.M.S., the time frame in which to resolve their separation from E.M.S. has long passed. Petitioners do not have standing to adopt and their report of intention to adopt should be dismissed. Therefore, the court enters the following order:

ORDER

And now, January 7, 2008, upon the completion of a hearing conducted on October 18, 2007, and review of the briefs submitted in support of, and in opposition to, the adoption of E.M.S. [redacted], the court hereby determines that the petitioners, T. D. and R. D. [redacted], do not have standing to proceed in the adoption of E.M.S. [redacted]. Therefore, the court orders that the report of intention to adopt in the above captioned case be dismissed.

      . The correspondence was sent to counsel for the petitioners, Mr. Andrew Shaw.