author: YATRON, J,

text:
    Commonwealth v. Aviles

      Brian Gerald McDonnell, for Commonwealth.
    Lara Christine Glenn Hoffert, for defendant.
    April 24, 2009
   YATRON, J,

PROCEDURAL HISTORY

On August 15,2006, a jury found the defendant guilty of simple assault, 18 Pa.C.S. §2701(a)(2); recklessly endangering another person, 18 Pa.C.S. §2705; firearms not to be carried without a license, 18 Pa.C.S. §6106(a) (1); possession of instrument of crime — concealed deadly weapon, 18Pa.C.S. §907(b); and receiving stolen property, 18 Pa.C.S. §3925(a). Then, on September 19, 2006, the defendant pled guilty to persons not to possess, use, manufacture, control, sell or transfer firearms, 18 Pa.C.S. §6105(a)(l). After accepting the defendant’s plea, this court immediately sentenced the defendant on all of the above counts to serve an aggregate term of eight years and four months to 22 years in a state correctional facility.

On July 27,2007, counsel was appointed to represent the defendant with regard to his post conviction claim. However, due to unforeseen difficulties, a formal PCRA petition was not filed until October 22, 2008. After reviewing the defendant’s claims, PCRA counsel filed a “ ‘no merit’ letter pursuant to Finley and Turner requesting leave of court to withdrawal as counsel,” on November 26, 2008, in which she asserted that the defendant’s claims lacked any merit and requested to withdraw from the case. This court agreed with her representations and granted her request to withdrawal from the case. We also gave the defendant the appropriate notice that we intended to dismiss his petition as a result of the representations of PCRA counsel. On January 2,2009, this court dismissed the defendant’s PCRApetition. Then, on February 2, 2009, the defendant filed the following appeal.

The defendant’s concise statement of errors complained of on appeal reads as follows:

“(1) Trial counsel failed to litigate a motion to suppress petitioner’s statements that were not knowing and intelligent;
“(2) Trial counsel failed to properly cross-examine and impeach C.I. Jeffrey Reichart as to the procedures used to obtain petitioner’s statement;
“(3) Trial counsel was ineffective for failing to adequately investigate the procedures of C.I. Jeffrey Reich-art used in obtaining petitioner’s statement;
“(4) Trial counsel failed to object to the introduction at trial of petitioner’s statement, obtained in violation of petitioner’s constitutional [sic] rights.
“(5) Trial counsel failed to litigate a motion to suppress the statements of witness Jose Hernandez-Martinez alleging that petitioner gave him the gun.
“(6) Trial counsel failed to request that an instruction regarding accomplice be given to the jury; and
“(7) Trial counsel failed to request that an instruction regarding a corrupt source be given to jury regarding witness Martinez.
“(8) Trial counsel failed to properly cross-examine and impeach Jose Hernandez-Martinez to show bias where Martinez hoped for leniency in exchange for testimony against petitioner; and
“(9) Trial counsel was ineffective for failing to adequately investigate the Commonwealth’s offering of leniency to Martinez in return for Martinez [sic] testimony against petitioner.
“(10) Trial counsel was ineffective for failing to adequately prepare for the presentation of petitioner’s claim of self-defense at trial.
“(11) Trial counsel was ineffective for failing to put petitioner on the stand regarding petitioner’s claim of self-defense.
“(12) Trial counsel was ineffective for misadvising petitioner to take a plea by telling petitioner that his sentence would run concurrent and that the jury would convict petitioner should he proceed to trial.”

DISCUSSION

When reviewing a PCRA court’s denial of a petition for post-conviction relief, the appellate court must examine whether the PCRA court’s determination is supported by the record and is free from legal error. Commonwealth v. Hall, 867 A.2d 619, 628 (Pa. Super. 2005). The appellate court’s scope of review is limited by the parameters of the PCRA. Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005). The Superior Court “grants great deference to the findings of the PCRA court if the record contains any support for those findings.” Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, the Superior Court “may affirm the decision of the trial court if there is any basis on the record to support the trial court’s action; this is so even if [the Superior Court relies] on a different basis in [its] decision to affirm.” Heilman, 867 A.2d at 544.

Each of appellant’s 12 claims alleges the ineffectiveness of his trial counsel. When reviewing such matters we are guided by our Supreme Court which stated: whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis. . . . Finally, appellant must establish that he has been prejudiced by counsel’s ineffectiveness; in order to meet this burden, he must show that but for the act or omission in question, the outcome of the proceedings would have been different... .A claim of ineffectiveness may be denied by a showing that the petitioner’s evidence fails to meet any of these prongs.... In the context of a PCRA proceeding, appellant must establish that the ineffective assistance of counsel was of the type which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt of innocence could have taken place.” Commonwealth v. Washington, 592 Pa. 698, 712-13, 927 A.2d 586, 594 (2007) (internal quotations and citations omitted). With this in mind, we now address defendant’s averments.

“In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. ... To overcome this presumption, appellant must establish three factors. First, that the underlying claim has arguable merit.... Second, that counsel had no reasonable basis for his action or inaction. ... In determining whether counsel’s action was reasonable, we do not question

A. The Admissibility of Defendant’s Statements

In averments one through four, the defendant essentially argues that trial counsel failed to suppress, investigate or generally challenge the admissibility of the statements he made to the police. Due to the similarity of these arguments, some will be addressed concurrently.

1. Trial Counsel’s Alleged Failure To Suppress the Defendant’s Statements Pursuant to Miranda

The defendant first argues that his trial counsel should have filed a motion suppressing his statements because he did not knowingly, intelligently, and voluntarily waive his Miranda rights. However, the facts of this case demonstrate that this allegation is meritless.

Our courts recognize that a valid waiver of Miranda must be made knowingly, voluntarily, and intelligently. Commonwealth v. Ellis, 700 A.2d 948, 955 (Pa. Super. 1997). When determining whether the defendant voluntarily waived his rights, “we must ascertain whether the waiver was the result of an intentional choice that was not subjected to undue governmental pressure.” Id. Whereas, when determining whether the waiver was knowing and intelligent, “we focus upon the defendant’s cognitive processes, i.e., whether the defendant was aware of the nature of the choice that he made in relinquishing his Miranda rights.” Id.

In the instant matter, the facts clearly demonstrate that the defendant voluntarily waived his Miranda rights. At trial, Officer Reichart testified that it only took two hours to take the defendant’s statement. N.T., 8/15/06, p. 127. During this time, the defendant was offered water, food, and bathroom breaks whenever he required one. N.T., 8/15/06, p. 128. The officer also testified that the defendant was never offered anything in return for his statement, nor was he coerced at any time. Id. The defendant, however, also fails to proffer any evidence tending to show that he was coerced in any way into giving his statement. Therefore, there can be no question that his waiver was voluntary.

The facts adduced at trial also demonstrate that the defendant’s waiver was knowing and intelligent. For example, Officer Reichart testified that he informed the defendant that he wanted to speak with him about the shooting of the victim in this case. N.T., 8/15/06, p. 124. The defendant responded affirmatively, and the officer read the defendant his Miranda rights. N.T., 8/15/06, pp. 124-25. The officer then asked the defendant three questions which are printed at the top of the statement form:

“Question: Do you understand your rights as I have explained them?
“Answer: Yes — and he initialed that answer, ‘C.A.’
“Next question: Are you willing to give a statement?
“His answer was: Yes. He initialed that ‘C.A.’
“Last question: Do you want to consult an attorney prior to giving a statement and have him present during any questioning?
“His answer was: No. He initialed that ‘C.A.’” N.T., 8/15/06, p. 125, see also, exhibit no. 37, p. 258 (defendant’s statement).

During the questioning, the defendant had no problem understanding English and did not appear to be under the influence of any mind-altering substances. N.T., 8/15/06, pp. 126-27. The defendant also never requested an attorney. N.T., 8/15/06, p. 126. Again, the defendant fails to proffer any evidence that would bring into doubt whether he knowingly, and intelligently understood and waived his Miranda rights. Moreover, the facts show that defendant acknowledged his statement by initialing each paragraph. N.T., 8/15/06, pp. 258-62, exhibit no. 37. These facts, clearly demonstrate that he was aware of the consequences of his actions and that he knowingly, voluntarily and intelligently waived his Miranda rights.

The defendant specifically argues that his waiver of Miranda was not valid because he thought he was being questioned with regard to a separate unrelated offense. However, the expected topic of questioning is irrelevant and does not impact the propriety of the Miranda waiver. The officer, when reading the defendant his Miranda rights, explained that he had “the right to consult an attorney prior to answering any questions . . . .” N.T., 8/15/06, p. 125. The officer also stated that “any statement you make can and will be used as evidence against you in a court of law.” Id. The facts presented above demonstrate that the defendant understood these rights and knowingly waived them. The fact that he thought they were going to ask him about a different incident did not disturb his knowledge that he could request the assistance of an attorney at any time and that his statement may be used against him. Therefore, his argument fails and there can be no question that he knowingly waived his Miranda rights.

Based on the above, a motion to suppress the defendant’s statements would have been meritless. Our courts have long recognized that “counsel can never be found ineffective for having elected not to raise a meritless claim.” Commonwealth v. Tilley, 528 Pa. 125, 149, 595 A.2d 575, 587 (1991). Therefore, trial counsel cannot be held ineffective for this reason, and the defendant’s claim must fail.

2. Trial Counsel’s Alleged Failure To Investigate Whether the Defendant Properly Waived His Miranda Rights

In his third averment, the defendant argues that trial counsel failed to properly investigate the nature of his Miranda waiver. Our courts recognize that “[cjounsel has a general duty to undertake reasonable investigations or make reasonable decisions that render particular investigations unnecessary.. . .” Commonwealth v. Johnson, 966 A.2d 523, 535 (Pa. 2009). (citations omitted) “Counsel’s unreasonable failure to prepare for trial is an abdication of the minimum performance required of defense counsel. . . .” Id. (internal quotations and citations omitted)

This claim goes part and parcel with the defendant’s first claim. As noted above, there was no evidence suggesting that the waiver was improper. In fact, the evidence overwhelmingly demonstrates that-his Miranda waiver was valid. Moreover, the defendant fails to present any evidence that would even suggest that counsel should have further investigated the nature of his waiver. Instead, he proffers a boilerplate claim of ineffectiveness with no facts to support such an allegation. Accordingly, his claim lacks merit, because he cannot demonstrate that counsel’s act or omission “so undermined the truth-determining process that no reliable adjudication of guilt of [sic] innocence could have taken place.” Washington, 592 Pa. at 711, 927 A.2d at 594.

3. Trial Counsel’s Failure To Cross-Examine the Police Officer Regarding the Nature of Defendant’s Waiver of Miranda and Trial Counsel’s Failure To Object to the Introduction of Defendant’s Statement at Trial

Lastly, in points two and four, the defendant argues that his trial counsel failed to cross-examine the police regarding the nature of his Miranda waiver and object to the introduction of the statements at trial. Unfortunately, the defendant fails to suggest a basis upon which counsel would have been justified to undertake either of these actions. This is most likely due to the fact that there is no legal basis allowing such action. However, we will briefly address the defendant’s averments.

We begin by noting that a determination regarding the admissibility of the defendant’s statement must be undertaken at a pretrial hearing. See Pa.R.Crim.P. 578. Thus, at the time of trial, this issue is waived and is no longer relevant. Therefore, counsel properly declined to cross-examine on this issue.

This court is also unable to discern any applicable objection relevant to the introduction of his statement which would have been proper under these circumstances. For the sake of review, we note that there can be no question that this testimony was relevant in accordance with Pa.R.E. 401-403. We also recognize that the defendant’s statement cannot be considered hearsay as it is the admission of a party-opponent, which is an exception to hearsay rule. See Pa.R.E. 803. Therefore, the defendant’s claim completely lacks merit and must fail. See Washington, 592 Pa. at 712, 927 A.2d at 594.

B. Trial Counsel’s Alleged Failure To Suppress Mr. Hernandez-Martinez ’ Testimony

The defendant next argues that trial counsel was ineffective for failing to file a pretrial motion to suppress Jose Hernandez-Martinez’ statement that the defendant gave him the gun used in this incident. N.T., 8/15/06, p. 202. After reviewing the record, this court is unable to discern a basis for the filing of such a motion, and the defendant fails to provide an argument justifying his position. However, an abundance of caution compels us to review the possible legal theories which may be presented.

Initially, we note that Article I, Section 8 of the Pennsylvania Constitution as well as the Fourth Amendment of the United States Constitution ensure each individual’s right to privacy. See Commonwealth v. Black, 758 A.2d 1253, 1259 (Pa. Super. 2000). However, our courts have long recognized that this right is personal to the individual and cannot be asserted on another’s behalf. Id. As a result, even if the defendant believed that Mr. Hemandez-Martinez’ privacy rights had been violated at some point in the investigation, he would be powerless to invoke those rights.

Secondly, and much more likely, the defendant may believe that his attorney should have invoked Mr. Hernandez-Martinez’ Fifth Amendment right to not incriminate himself. Mr. Hernandez-Martinez testified that he took and kept the gun used in this incident from the defendant. N.T., 8/15/06, p. 202. Due to the incriminatory nature of this evidence, Mr. Hernandez-Martinez consulted with his attorney regarding his Fifth Amendment rights prior to testifying. N.T., 8/15/06, p. 199. However, even though he was aware that his testimony may incriminate him, he wished to waive his Fifth Amendment privilege and wanted to testify. Id. Thus, there can be no question that Mr. Hernandez-Martinez knowingly and voluntarily waived his Fifth Amendment privilege.

Additionally, our Supreme Court has held that “Fifth Amendment rights are personal to the individual and may not be asserted by another.” Hull v. Hannahstown Mutual Insurance Co., 451 Pa. Super. 164, 170, 678 A.2d 815, 818 (1996) (quoting Commonwealth v. L.E. Wilson Co., 458 Pa. 470, 473 n.2, 328 A.2d 502, 504 n.2 (1974)). Therefore, the defendant was powerless to invoke this witness’ Fifth Amendment privileges. As a result, the defendant lacked standing to suppress the testimony of this witness, and the filing of any such motion would have been frivolous. See Tilley, 528 Pa. at 149, 595 A.2d at 587.

C. Trial Counsel’s Alleged Failure To Investigate and Cross-Examine Mr. Hernandez-Martinez ’ Possible Bias

There is no dispute that Mr. Hernandez-Martinez had pending drug-related charges at the time of this trial. In fact, he admitted as much at the beginning of his direct examination. N.T., 8/15/06, p. 198. However, he immediately explained that he had not been promised anything in return for his testimony. N.T., 8/15/06, p. 199. In averments eight and nine, the defendant argues that his counsel should have investigated and impeached Mr. Hernandez-Martinez regarding bias he may have resulting from any possible favorable treatment he received from the district attorney. However, the defendant’s claim fails because there was an obvious reasonable basis for his attorney’s actions. See Washington, 592 Pa. at 712, 927 A.2d at 594.

As noted above, the defendant provided a statement to the police in which he admitted to shooting his gun in self-defense. N.T., 8/15/06, p. 258, exhibit no. 37. In fact, in the statement he even apologized to the victim’s parents and hoped that they could forgive him. N.T., 8/15/06, p. 261, exhibit no. 37. This statement was read to the jury. N.T., 8/15/06, pp. 131-38.

Mr. Hemandez-Martinez’ testimony largely corroborated the defendant’s own version of the events as described by his written statement. Trial counsel’s cross-examination of this witness highlighted these similarities and bolstered the defendant’s self-defense argument. Consequently, there was no tactical reason to attack Mr. Hemandez-Martinez’ credibility. In fact, doing so would have undermined the defendant’s case. Therefore, counsel had a sound reason to decline challenging this witness and cannot be deemed ineffective for this reason. See Washington, 592 Pa. at 712, 927 A.2d at 594.

D. Trial Counsel s Alleged Failure To Request That This Court Charge the Jury With an Accomplice Liability and a Corrupt Source Instruction

In averment six, the defendant alleges that his trial counsel was ineffective for declining to request an “accomplice” instruction. Similarly, in averment seven, the defendant claims “that an instmction regarding a corrupt source” should have been read to the jury. At first blush, the defendant seems to be making two separate allegations of error. However, after further review, this court believes that the defendant is actually alleging that his attorney failed to request the accomplice testimony jury instruction. We base this conclusion on the fact that an “accomplice” jury instruction has no applicability in this case, because there were no allegations that he acted as an accomplice in the commission of any of the charged crimes. Instead, he is the sole individual charged. Secondly, the defendant’s seventh averment makes reference to a “corrupt source” instruction, which is contained within the accomplice testimony instruction. For these reasons, this court believes that the defendant is essentially arguing that his counsel was ineffective for failing to ask that the accomplice testimony jury instruction be read to the jury. Regardless of this fact, the defendant’s argument still fails for the following reasons.

The proper use of the accomplice testimony jury instruction was summarized by our Superior Court in, Commonwealth v. Manchas, infra, when it stated that:

“It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effect after being specifically requested to do so— The justification for the instruction is that an accomplice witness will inculpate others out of a reasonable expectation of leniency.... An accomplice charge is necessitated not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference. . . . Thus if the evidence is sufficient to present a jury question with respect to whether the prosecution’s witness was an accomplice, the defendant is entitled to an instruction as to the weight to be given to that witness’ testimony.... Where, however, there is no evidence that would permit the juiy to infer that a Commonwealth witness was an accomplice, the court may conclude as a matter of law that he was not an accomplice and may refuse to give the charge. . . . This is so because a trial court is not obliged to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at trial.” Commonwealth v. Manchas, 430 Pa. Super. 63, 80-81, 633 A.2d 618, 627 (1993). (citations omitted) (internal quotations omitted) (internal corrections omitted)
“An accomplice is one who actively and purposefully engages in criminal activity and is criminally responsible for the criminal actions of his/her co-conspirators which are committed in furtherance of the criminal endeavor.” Commonwealth v. Rega, 593 Pa. 659, 689-90, 933 A.2d 997, 1015 (2007). (internal quotations omitted) Our Crimes Code defines an accomplice as:
“(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
“(1) with the intent of promoting or facilitating the commission of the offense, he:
“(i) solicits such other persons to commit it; or
“(ü) aids or agrees or attempts to aid such other person in planning or committing it; or
“(in) his conduct is expressly declared by law to establish his complicity.” Id. at 689, 933 A.2d at 1014-15 (citing 18 Pa.C.S. §306(c)). The Rega court further explained that:
“[T]wo prongs must be satisfied for a person to be labeled an ‘accomplice’.... First, there must be evidence that the person intended to aid or promote the underlying offense. . . . Second, there must be evidence that the person actively participated in the crime by soliciting, aiding, or agreeing to aid the principal. . . . Further, a person cannot be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene.... There must be some additional evidence that the person intended to aid in the commission of the underlying crime, and then aided or attempted to aid.” Id. at 690, 933 A.2d at 1015. (internal citations omitted)

This court, after reviewing the record, is unable to find any evidence that would even begin to suggest that Mr. Hemandez-Martinez acted as an accomplice for any of the charged offenses. In fact, the only testimony that touches upon the relationship between these individuals comes from Mr. Hemandez-Martinez himself.

During the trial, Mr. Hemandez-Martinez testified that the defendant told him he had some problems with a black male and then the defendant left the house. N.T., 8/15/06, p. 201. A few hours after this conversation the defendant returned and told Mr. Hemandez-Martinez that he had had to defend himself. N.T., 8/15/06, p. 202. He then gave the gun to Mr. Hernandez-Martinez, who took the weapon and placed it in his room. Id. This testimony reveals that the witness did not have any knowledge about the defendant’s criminal activity until after it had already taken place. Furthermore, it fails to show that he promoted or had any active participation in any of the underlying offenses. Instead, it demonstrates that Mr. Hernandez-Martinez merely knew about the defendant’s commission of the crime, which is not enough to suggest that he in any way acted as the defendant’s accomplice. See Rega, 593 Pa. at 690, 933 A.2d at 1015.

Additionally, the fact that Mr. Hernandez-Martinez admitted to having pending charges is also not enough to show that he was an accomplice in this case. It is true that the witness’ charges stem from criminal activity that was committed over two succeeding days after the crimes charged in this case. N.T., 8/15/06, p. 198. However, these charges were mostly drug related and bore no relation to the underlying charges in this case. Furthermore, there is no testimony that would lead a juror to believe that these charges were in any way connected with the present matter. Therefore, the jury could not have believed that Mr. Hemandez-Martinez was an accomplice to the crimes charged in this matter, and a request for the accomplice testimony instruction would have been frivolous. See Tilley, 528 Pa. at 149, 595 A.2d at 587.

The defendant may argue that Mr. Hernandez-Martinez’ acceptance of the handgun in this case makes him an accomplice after the fact. However, The Supreme Court of Pennsylvania recently held that the accomplice testimony jury instruction was improper in such a situation. See Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997 (2007). In Rega, a prosecution witness testified that he had initially lied to the police in order to provide the defendant with an alibi. However, he recanted shortly thereafter and told the truth. On appeal, the defendant argued that the trial court erred when it refused to give the accomplice testimony instmction with regards to this witness. The Supreme Court disagreed and held that “Pennsylvania does not consider an accomplice after the fact to be an accomplice.” Id. at 689, 933 A.2d at 1014 (citing 18 Pa.C.S. §306(c)). Based upon our Supreme Court’s holding in Rega as well as the above jurisprudence, Mr. Hemandez-Martinez cannot be considered an accomplice. Therefore, any request for the accomplice testimony instruction would have been frivolous and defense counsel cannot be held ineffective for declining to do so. See Tilley, 528 Pa. at 149, 595 A.2d at 587.

E. Trial Counsel’s Alleged Ineffectiveness for Failing To Adequately Prepare Petitioner’s Self-Defense Claim

In his tenth averment, the defendant argues that his trial counsel failed to adequately prepare for the presentation of his self-defense case. We begin our analysis by noting that counsel is presumed effective, and it is the defendant’s burden to prove that counsel’s error “so undermined the truth-determining process that no reliable adjudication of guilt of [sic] innocence could have taken place.” Washington, 592 Pa. at 711, 927 A.2d at 594.

The defendant has failed to present any evidence supporting his claim. Instead, he proffers a generalized claim of ineffectiveness. Our courts have held that an undeveloped and generalized claim of ineffective assistance of counsel cannot satisfy the prejudice prong of the three-part test enunciated above, and must fail. See Commonwealth v. Pierce, 567 Pa. 186, 216, 786 A.2d 203, 221 (2001).

It is also important to note that the record reflects trial counsel’s diligent efforts in preparing and presenting this matter. For example, trial counsel was able to elicit statements from Mr. Hernandez-Martinez during cross-examination that significantly bolstered the defendant’s written statement which claimed that he acted in self-defense. N.T., 8/15/06, pp. 204-207. Trial counsel also argued strenuously during her closing that the defendant acted in self-defense when he shot the victim in this case. N.T., 8/15/06, pp. 6-19. Lastly, this court granted trial counsel’s request that the self-defense instruction be read to the jury. N.T., 8/15/06, pp. 56-59. Based on the above, it is clear that trial counsel thoroughly prepared and presented the defendant’s self-defense claim. Furthermore, the defendant has failed to meet his burden proving otherwise. Therefore, for both of the above stated reasons, his claim must fail.

F. Trial Counsel Was Allegedly Ineffective for Failing To Have the Defendant Testify

In his eleventh allegation of error, the defendant argues that his trial counsel was ineffective for failing to have him testify during his trial. The record in this case contradicts the defendant’s allegation. First, the defendant knowingly and voluntarily waived his right to testify during a colloquy held for this specific purpose. N.T., 8/15/06, pp. 3-5. In fact, at the beginning of his colloquy, this court was not satisfied that the defendant fully grasped his rights and allowed him to confer with his trial counsel on this matter. N.T., 8/15/06, p. 4. Then, upon reconvening, the defendant explained that he was aware of his right to testify and knowingly waived this right. N.T., 8/15/06, p. 5. Therefore, the defendant cannot now claim that his trial counsel was ineffective, when there can be no question that it was his decision to not take the stand in his case.

Furthermore, as noted above, the defendant has failed to meet his burden on this claim. The defendant has again proffered a generalized claim of ineffectiveness without presenting any supporting evidence. Therefore, for the above reasons, this claim of ineffectiveness must fail.

G. Trial Counsel’s Alleged Ineffective Assistance for Misadvising the Defendant To Accept the Plea Offer

Prior to trial, this court granted defense counsel’s motion severing Count five to be held for a separate jury trial. However, after the jury found the defendant guilty on the remaining counts, the defendant elected to enter an open plea of guilty to Count five on September 19, 2006. The defendant now claims that his counsel was ineffective because she misadvised him to enter a plea based on the fact that his sentence on Count five would run concurrent with his other convictions. In effect, the defendant argues that his counsel’s advice caused him to enter a plea of guilty.

In order to succeed on such a claim, the defendant must show that “the underlying claim is of arguable merit, that counsel’s actions had no reasonable basis designed to effectuate his interests, and that counsel’s actions prejudiced [him].” Commonwealth v. Patterson, 456 Pa. Super. 202, 205, 690 A.2d 250, 252 (1997).

“Claims of counsel’s ineffectiveness in connection with a guilty plea will provide a basis for relief only if the ineffectiveness caused an involuntary or unknowing plea. This is similar to the ‘manifest injustice’ standard applicable to all post-sentence attempts to withdraw a guilty plea. The law does not require that appellant be pleased with the outcome of his decision to enter a plea of guilty: ‘All that is required is that [the defendant’s] decision to plead guilty be knowingly, voluntarily, and intelligently made.’” Commonwealth v. Lewis, 708 A.2d 497, 500-501 (Pa. Super. 1998) (quoting Commonwealth v. Yager, 454 Pa. Super. 428, 436-37, 685 A.2d 1000, 1004 (1996) (en banc).

Furthermore, the fact that defense counsel told the defendant that he may receive a more lenient sentence does not make a plea unknowing and involuntary when he has been informed of the maximum possible sentence that could be imposed by the court. See Patterson, 456 Pa. Super. at 206, 690 A.2d at 252-53.

The record in this case clearly reflects that the defendant knowingly, voluntarily, and intelligently pled guilty to Count five. On September 19, 2006, prior to his plea colloquy, the defendant reviewed with his counsel a form titled “statement accompanying defendant’s request to enter a guilty plea.” On question 18 of this form, the defendant acknowledged that this court may sentence him to the maximum amount allowed by law and may make this sentence consecutive with any other sentence imposed by this court. The defendant then signed and dated this form and in doing so he acknowledged that all of his answers are true and that he is pleading guilty of his own free will because he committed the offense listed.

The defendant then engaged in a comprehensive plea colloquy in which he reaffirmed the information contained within the above form. First, the defendant acknowledged that he had completed, signed and dated the “statement accompanying defendant’s request to enter a guilty plea” which was in the court’s possession. N.T., 9/19/06, p. 5. Fie also stated that he had answered each of the questions contained on that form truthfully. Id. The defendant then acknowledged that he was entering an open plea of guilty, “which means that the judge can, in his discretion, sentence you to the maximum permissible sentence.” Id. He then recognized that this court could sentence him on to a maximum of 10 years in prison and/or a $25,000 fine. N.T., 9/19/06, p. 6. Furthermore, our courts have held that “a plea is not rendered involuntary merely because it is prompted by a belief that it will enable [the] defendant to obtain a more lenient sentence.” Commonwealth v. Dosch, 348 Pa. Super. 103, 108, 501 A.2d 667, 670 (1985).

Based on the above, there can be no question that the defendant knowingly and voluntarily entered his plea of guilty. While the defendant may have hoped for leniency, it is obvious that he was aware of the maximum amount of time that he could receive on Count five and knew that this sentence could run consecutively to any other sentence imposed by this court. Therefore, the defendant’s claim on this issue lacks any merit and fails the first prong of our three-pronged test for ineffective assistance of counsel. Washington, 592 Pa. at 712, 927 A.2d at 594.

Lastly, the defendant claims that his counsel is ineffective for explaining to him that if he went to trial on Count five the jury would convict him. The defendant’s final claim is without merit, because counsel was entirely correct. The jury had convicted the defendant of firearms not to be carried without a license — 18 Pa.C.S. §6106(a)(1). As a result, the jury found that the defendant was in possession of a firearm. Furthermore, the defendant’s own statement admitted to being in possession of a weapon as did Mr. Hemandez-Martinez’ testimony. The defendant had also previously been adjudicated delinquent on two felony drag charges, which meant that he could no longer legally carry a firearm in Pennsylvania in accordance with 18 Pa.C.S. §6105(a)(l). Guilty plea, 9/19/06, p. 6. These prior adjudications would have been made known to any jury hearing the case. Based on the above, it is hard to imagine how the defendant could prevail on such a charge before a jury. Therefore, this court believes that the defendant was wise to follow counsel’s sage advice and cannot show any prejudice as a result.

CONCLUSION

Based on the above, we respectfully request that the defendant’s appeal be denied and our judgment be affirmed.

      . The jury found the defendant not guilty on Count one, aggravated assault — 18 Pa.C.S. §2701(a)(l); Count two, simple assault — 18 Pa.C.S. §2701(a)(l); and Count seven, possession of an instrument of crime — 18 Pa.C.S. §907(a).

      . PCRA counsel was initially appointed prior to the defendant filing a formal PCRApetition. The defendant then delayed filing a formal petition until the aforementioned date. As a result, this court was unable to move forward with this matter until this was perfected.

      . See the defendant’s “concise statement of errors complained of on appeal,” which was filed on February 24, 2009.

      . See N.T. p. 258, exhibit no. 37 (defendant’s statement).

      . See “no merit letter” p. 4.

      . See Pennsylvania Standard Jury Instruction 4.01, accomplice testimony.

      . See Pennsylvania Standard Jury Instruction 8.306(a)(1), accomplice.

      . Mr. Aviles was charged with: aggravated assault — 18 Pa.C.S. §2702(a)(l); simple assault — 18 Pa.C.S. §2701(a)(l); simple assault — 18 Pa.C.S. §2701(a)(2); recklessly endangering another person — 18 Pa.C.S. §2705; firearms not to be carried without a license — 18 Pa.C.S. §6106(a)(l); possession of an instrument of crime — 18 Pa.C.S. §907(a); possession of an instrument of crime — 18 Pa.C.S. §907(b); and receiving stolen property — 18 Pa.C.S. §3925(a).
      See verdict of the jury, filed August 16,2006. This document omits the charge of person not to possess, use, manufacture, control, sell, or transfer firearms — 18 Pa.C.S. §6105(a)(1); because this charge was severed from this trial and the jurors had no knowledge of its existence. As a result, this charge has no bearing on whether the jury could have considered Mr. Hernandez-Martinez to be an accomplice.

      . Mr. Hemandez-Martinez was charged with receiving stolen property — 18 Pa.C.S. §3925(a), based upon the allegation that he accepted and kept the defendant’s handgun after the shooting.

      . See this court’s order dated June 23, 2006. Count five charged the defendant with person not to possess, use, manufacture, control, sell or transfer firearms, 18 Pa.C.S. §6105(a)(l). This court severed this charge because the presentation to the jury of the defendant’s prior convictions, which are a natural element of this offense, would have caused him undue prejudice.

      . Question 18 reads as follows:
      “(18) I understand the maximum possible sentence for each type of the charges against me, and I understand that is this is an open or charged agreement, the judge may sentence me to the maximum sentence allowed by law, and may impose the sentence for each count to which I am pleading guilty consecutive for a total possible sentence of: 10 years/$25,000 (handwritten by defendant).”
      See defendant’s statement accompanying defendant’s request to enter a guilty plea, p. 2 question 18, filed September 19,2006.

      . See statement accompanying defendant’s request to enter a guilty plea, p. 3.


source: Caselaw Access Project

author: LESKINEN, J.,

license: Public Domain

text:
    Commonwealth v. McNair

      Michelle Kelley, assistant district attorney, for Commonwealth.

      Samuel J. Davis, for defendant.
    April 23, 2009
   LESKINEN, J.,

This matter comes before the court on an omnibus pretrial motion filed by the defendant, Carl H. McNair III, asking the court to grant a motion to suppress evidence and issue a writ of habeas corpus. Upon consideration of defendant’s omnibus pretrial motion, the hearing held on the said motion, and the authority submitted by the defendant, the court finds that the motion to suppress evidence must be denied and the writ of habeas corpus must be denied.

BACKGROUND

On or about March 14, 2008, at around 11 p.m. Trooper John Nathan Peters responded to a two-vehicle hit-and-run collision that occurred in the parking lot of the Mountain View Plaza in North Union Township, Fayette County, Pennsylvania. James Jozefick, owner of the vehicle hit in the plaza parking lot, testified at the preliminary hearing in front of District Judge Wendy Dennis that the accident occurred between 8 p.m.-10 p.m. that evening. Upon being dispatched, Trooper Peters learned that both vehicles involved in the accident proceeded to 29 Birch Street, also located in North Union Township.

When Trooper Peters arrived at 29 Birch Street he spoke with Jozefick. Trooper Peters accompanied by Trooper Tagmeyer then knocked on the door of the residence of the defendant, Carl McNair III. A girl around the age of 16 or 17 answered the door and asked if they had come for her dad. Trooper Peters testified at the preliminary hearing that he knew the girl to be McNair’s daughter and that she lived at the residence. McNair’s teenage daughter consented to the police officers’ request to enter the residence. Neither an arrest nor search warrant was obtained before the troopers entered McNair’s residence.

Proceeding pursuant to the daughter’s consent, the troopers found McNair unconscious in his bedroom. When the troopers woke McNair, they observed that he had bloodshot eyes, slurred speech, had urinated on his leg and was unable to stand without assistance. The troopers proceeded to arrest McNair for DUI and transported him to Uniontown Hospital where blood was drawn at 12:15 a.m.

DISCUSSION

Motion To Suppress Evidence

The court agrees that the defendant had a constitutional right to expect privacy in his own home. Normally, that privacy right could only be overcome on the basis of probable cause. However, probable cause is not required when there is consent to search. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citing Commonwealth v. Shelly, 703 A.2d 499, 502 (Pa. Super. 1997)).

In Commonwealth v. Graham, 949 A.2d 939 (Pa. Super. 2008), the Superior Court held that a third party with “apparent” authority over the area to be searched may provide police with proper consent to search the premises. This third party consent is valid when police reasonably believe the third party has the authority to consent. This is determined by examining the facts available to the police at the moment of consent that would lead a person of reasonable caution to believe the third party had authority over the premises. Since Trooper Peters knew the girl to be McNair’s daughter and that she lived at the residence, the troopers had reason to believe McNair’s daughter had apparent authority to give consent to search the residence.

Trooper Peters testified he entered the house and found McNair in his bedroom. The bedroom is normally thought to be an “uncommon area” in the home, in which a third party cannot give valid consent to search. However, the court in Commonwealth v. Jones, 427 Pa. Super. 345, 629 A.2d 133 (1993) held that warrantless searches of a defendant’s bedroom made pursuant to voluntary consent of another family member living in the household, who had common authority over the family home, was valid, absent evidence that the defendant made efforts to exclude other family members from the bedroom. McNair failed to offer any evidence that his bedroom was off limits to other members of the family. Therefore, since McNair’s daughter had authority to consent to the search of his residence, the troopers’ warrantless entry is valid. The motion to suppress must be denied.

Petition for Habeas Corpus Relief

In an omnibus pretrial petition for habeas corpus relief, this court must determine whether the Commonwealth has established a prima facie case. Commonwealth v. Packard, 767 A.2d 1068, 1070 (Pa. Super. 2001). A prima facie case consists of evidence viewed in the light most favorable to the Commonwealth that sufficiently establishes both the commission of a crime and that the accused is most likely the perpetrator of that crime. Commonwealth v. Lopez, 439 Pa. Super. 625, 654 A.2d 1150 (1995). The prima facie case in support of a defendant’s guilt consists of evidence presented by the Commonwealth that “if accepted as true, would warrant the trial judge to allow the case to go to a jury.” Commonwealth v. Austin, 394 Pa. Super. 146, 151, 575 A.2d 141, 143 (1990) (citing Commonwealth v. Wojdak, 502 Pa. 359, 367, 466 A.2d 991, 995 (1983)).

McNair was charged under 75 Pa.C.S. §3802(a)(l) which provides in relevant part that:

“An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safe driving, operating or being in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §3802(a)(l) — General impairment.

McNair avers the Commonwealth failed to meet its burden of proof because it did not produce any evidence as to the time of McNair’s alleged consumption of alcohol that evening in connection with the time of the accident. On reviewing the records and pertinent case law, this court disagrees.

In Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), the court held that, the fact that evidence establishing the defendant’s participation in a crime is circumstantial does not preclude conviction where evidence coupled with reasonable inferences drawn therefrom overcomes the presumption of innocence. Id. Although Jozefick testified he did not witness McNair consume any alcohol while at the pool hall, he did state that McNair appeared to be slouched over on a table and looked drunk. Jozefick also testified that he observed McNair unable to fully balance on his feet. Furthermore, after McNair hit Jozefick’s car, Jozefick witnessed McNair get out of his van and stagger around his vehicle.

Trooper Peters’ observations when he found McNair in his bedroom provided the officers with probable cause to arrest him. When taken to the hospital for a blood test, McNair had a 0.223 percent BAG. For these reasons, it can be reasonably inferred, through the evidence presented at the preliminary hearing that McNair was under the influence of alcohol at the time of the accident to a degree that he was incapable of driving safely, and therefore violated 75 Pa.C.S. §3802(a)(l).

McNair also avers the Commonwealth has failed to establish a prima facie case that he violated 75 Pa.C.S. §3802(c), which states:

“An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16 percent or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.” Section 3802(c) — Highest rate of alcohol.

McNair argues that since the accident occurred between 8 p.m.-10 p.m. that evening and his blood was not drawn until 12:14 a.m., the Commonwealth has failed to satisfy their burden under section 3802(c). The Commonwealth avers that the facts indicate that McNair’s blood was drawn within the two hours as evidence proves McNair was operating a motor vehicle on the highways after 10:15 p.m. that night. The court holds that even if the evidence of time remains questionable, there is an exception to the two-hour rule under section 3802(g), which the Commonwealth can present to the fact-finder at trial.

Section 3802(g) states:

“Evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances: (1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and (2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.” Section 3802(g) — Exception to two-hour rule.

The Commonwealth has sufficient evidence to meet this burden. First, the Commonwealth established good cause why the blood test occurred at 12:14 a.m. Jozeficlc testified that he estimated the time of the accident to be between 8 p.m.-10 p.m., however, there was a delay as to the time the police were called since both parties left the plaza after the accident and proceeded to 29 Birch Street. Jozefick testified he was at 29 Birch Street for 10 to 15 minutes before he called the police. Trooper Peters testified that as soon as he received the dispatch call about the accident around 11:04 p.m., he responded to 29 Birch Street and began investigating the scene.

Furthermore, Trooper Peters testified that when the troopers found McNair, he was passed out on his bed. The troopers proceeded to arrest McNair and take him to the police car where he was then transported to Union-town Hospital for a blood test. After McNair was arrested he remained in police custody and therefore, did not imbibe any alcohol or use any controlled substances during this time.

Wherefore, the court enters the following order:

ORDER

And now, April 23, 2009, upon consideration of the defendant’s omnibus pretrial motion, the arguments of counsel and for the reasons set forth above, the motion to suppress evidence must be denied and, the petition for habeas corpus relief must be denied.


author: ASHWORTH, J.,

text:
    Commonwealth v. Rolf

      Susan Moser, assistant district attorney, for Commonwealth.

      MaryJean Glick, senior assistant public defender, for defendant.

      April 7, 2009
   ASHWORTH, J.,

Chad Andrew Rolf has filed a direct appeal to the Superior Court of Pennsylvania from his judgment of sentence imposed on December 4, 2008, as finalized by the court’s denial of his post-sentence motion on January 26, 2009. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

I. BACKGROUND

On September 25, 2006, defendant was arrested and charged with arson, burglary and risking catastrophe in connection with a fire that occurred at the Holy Trinity Lutheran Church parsonage at 167 East Main Street in Ephrata, Pennsylvania on September 25, 2006. An omnibus pretrial motion was filed on May 1, 2007 and an addendum was filed on February 7,2008. A suppression hearing was held on these motions on September 8,2008, immediately prior to trial. At that time, the motions were denied in their entirety. (N.T., suppression hearing at 82.) The case proceeded to trial and concluded on September 12,2008, with a jury verdict of guilty on all counts. Following the guilty verdict, the court ordered a pre-sentence investigation report.

On December 4, 2008, defendant received an aggregate sentence of three and one-half to 10 years incarceration in a state correctional institution. (N.T., sentencing at 33-34.) The court set restitution at $463,508.75 for the subrogation amount claimed by the insurance company for Holy Trinity Lutheran Church, and $11,551.19 for the workers’ compensation lien for medical expenses incurred by a firefighter injured while fighting the fire set by defendant. (Id. at 25-26.)

Defendant filed a timely post-sentence motion to vacate the jury verdict as against the weight of the evidence or, alternatively, to reduce defendant’s prior record score and modify the sentence. This motion was denied by order and opinion dated January 26, 2009. A timely appeal to the Superior Court of Pennsylvania was filed on February 24, 2009.

Pursuant to this court’s directive, appellant furnished a statement of error complained of on appeal which raised four issues: (1) the trial court erred in denying defense counsel’s motion to suppress appellant’s statements to the police; (2) the trial court erred in determining that appellant’s prior record score was two; (3) the trial court erred in denying defense counsel’s request for a restitution hearing; and (4) the jury’s verdict of guilty of arson, burglary, and risking catastrophe were against the weight of the evidence. The Commonwealth filed a timely response to appellant’s statement on March 30, 2009.

II. DISCUSSION

A. Denial of Suppression Motion

Initially, appellant contends that the trial court erred in not suppressing his statements to the police which were allegedly the product of custodial interrogation. (See appellant’s statement of errors at ¶1.) Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h); Commonwealth v. Ruey, 586 Pa. 230, 239-40, 892 A.2d 802, 807 (2006). It is the province of the suppression court to make findings of fact and conclusions of law as to whether evidence was obtained in violation of an accused’s constitutional rights. Commonwealth v. Nester, 443 Pa. Super. 156, 160, 661 A.2d 3, 4 (1995).

The appellate court is bound by the suppression court’s findings of fact if those findings are supported by the record and will reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa. Super. 2008). Thus, if sufficient evidence is of record to support the suppression court’s ruling and that court has not misapplied the law, the appellate court will not substitute its credibility determination for that of the suppression court judge.

Here, appellant argues that his inculpatory statements to the police were the result of custodial interrogation by the police where they failed to apprise him of his Miranda rights. This court determined, based upon the testimony at the hearing, that the initial brief inquiries of appellant regarding the alleged threats being made against him did not, under the totality of the circum-. stances, amount to custodial interrogation.

The testimony at the suppression hearing established the following facts. At approximately 2:24 a.m. on September 25,2006, members of the Ephrata Police Department were summoned to the Holy Trinity Lutheran Church parsonage for a structure fire. (N.T., suppression at 28.) At 2:55 a.m., the Ephrata Police received a “threat’s call” from Lancaster County Dispatch which advised that the reporting person was at the Ephrata Police Station using the outside contact phone. (Id. at 6.) Officer Brandon Bartholomew, who was actively involved in the fire scene with evacuating residents from adjacent buildings, advised County Dispatch that he would respond back to the “threat’s call” as quickly as possible. (Id. at 6-7.)

Upon his arrival at the station at approximately 3:41 a.m., Officer Bartholomew saw appellant Chad Rolf sitting on the ground outside. (N.T., suppression at 7-8, 21.) Appellant was observed wearing shorts, and his right pants’ leg had a bum mark on it. (Id. at 8, 10, 24; see also, 27,30, 37.) Appellant was smoking Newport cigarettes and he had a pack of matches with him. (Id.)

Almost immediately thereafter, Officer Paul Moore had also arrived back at the station. (N.T., suppression at 10, 26.) Appellant proceeded to tell the officers that there were approximately 20 people from the Mafia or mob after him who wanted to harm him because of an unpaid debt. (Id. at 11, 22, 28, 35.) Appellant also explained to the police that his car, which was parked around the corner at the Ephrata Flea Market, was “bugged.” (Id. at 11,23,35-36.) Appellant indicated that he would like to be in police custody as it would be safer for him than being out in public. (Id. at 28,37-38.) Appellant further related that the dispatcher told him that his church, the Holy Trinity Lutheran Church, was on fire. (Id. at 11,31.) Appellant later recanted this statement and explained that the dispatcher did not tell me that the church was on fire but that he just assumed it. (Id. at 12.)

Appellant asked the officers if he could go into the police station and get a cup of coffee. (N.T., suppression at 12,29.) Officer Moore advised appellant that the police station was a secure area and he would be safe there. (Id. at 29.) The officers took appellant into an unsecured interview room located next to the lobby area. (Id. at 12-13,14, 30.) They both smelled an odor of alcohol on appellant at that time and observed that his eyes were bloodshot. (Id. at 24, 30, 37.)

Once in the police station, Officer Bartholomew left the room to get appellant a cup of coffee. (N.T., suppression at 15, 31.) After sitting down at the table in the interview room, appellant continued to recount for Officer Moore his story regarding threats being made against his life. (Id. at 31.) At one point in the conversation, appellant placed his hands on his head and blurted out, “I burned my church tonight.” (Id.) Officer Moore responded by asking appellant if he was at the church that evening. Appellant replied that he was not there but that he had heard the church was burning from the dispatcher. (Id. at 31-32, 40.) Officer Moore left the interview room to notify his supervisor of appellant’s inculpatory statement. (Id. at 32-33.) Later, as appellant lay on the floor resting, he continued to periodically make unsolicited remarks to Officer Bartholomew. At one point, he stated that he was at the Ephrata Flea Market all night with the owner, Faith Fisher. (Id. at 18.)

At approximately 5 a.m., Detective Bradley Ortenzi and his immediate supervisor, Sergeant Timothy Davis, entered the interview room where appellant lay on the floor resting. (N.T., suppression at 43.) The door to the interview room had been left open and the light off while appellant rested. (Id.) The officers turned the light on and introduced themselves to appellant. (Id. at 44.) At that time, appellant asked for some coffee and said he needed to wash his face in the restroom. (Id. at 44-45.) With that, he got up, exited the room and headed toward the restroom in the lobby while Detective Ortenzi got him another cup of coffee. (Id. at 45-46.) Sergeant Davis stayed in the interview room and waited for appellant to return. (Id. at 45.)

Detective Ortenzi returned with the coffee for appellant and closed the door to the interview room. At that time, he detected an odor of alcohol on appellant. (N.T., suppression at 54.) Detective Ortenzi also smelled the odor of gasoline emanating from appellant and observed what appeared to be a burn mark on appellant’s nylon shorts. (Id. at 49.)

The officers began the interview by asking appellant about the threats being made against him. (N.T., suppression at 47.) Appellant repeated for Sergeant Davis and Detective Ortenzi his concerns regarding the mob or Mafia from the New Orleans area being after him because of his undercover drug work and because of an unpaid debt. {Id. at 47, 53.) He told the police he did not feel safe outside. {Id. at 54.) Appellant also advised the officers that he was living out of his van which was parked at the Ephrata Flea Market but that it had run out of gas. (Id.)

At one point in the conversation, appellant asked to smoke a cigarette. (N.T., suppression at 47.) Initially, Sergeant Davis advised appellant that there was a no smoking policy inside the building. (Id.) Sergeant Davis then asked the lieutenant on duty whether appellant could be accommodated and the lieutenant gave permission for appellant to smoke in the processing room where there were large fans. (Id.)

At approximately 5:27 a.m., the officers and appellant left the interview room and proceeded through the police station to the processing room so that appellant could smoke. (N.T., suppression at 48, 55.) Up to this point in the interview, appellant had not been told he could not leave the interview room or the police station; nor had his movements been restricted in any way. (Id.) He had still not been patted down or searched by the police. (Id.)

Once in the processing room, Detective Ortenzi advised appellant that he wanted to speak to him about the fire and began reading appellant his Miranda rights. (N.T., suppression at 49.) Appellant became “agitated and upset” and said, “F**k that, you think I did that,” and then requested to speak to his attorney, Christopher Patterson. (Id.) Appellant was provided with a telephone book and a telephone and he made a call to counsel. (Id.) At that point, the interview ended and Sergeant Davis advised appellant he was under arrest. (Id. at 50.) Because of appellant’s invocation of his right to counsel, the officers did not continue with the Miranda warnings.

At the suppression hearing, appellant sought to exclude his statements on the basis that he was in police “custody” without benefit of Miranda warnings when the statements were made.

“The warnings articulated by Miranda v. Arizona, 384 U.S.436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), become mandatory whenever one is subjected to custodial interrogation. The United States Supreme Court has defined custodial interrogation as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. ’. . . ‘Police detentions only be-, come custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest.’.. . Whether a person is in custody for Miranda purposes depends on whether the person is physically (deprived) of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by the interrogation. Moreover, the test for custodial interrogation does not depend upon the subjective intent of the law enforcement officer interrogator. Rather, the test focuses on whether the individual being interrogated reasonably believes his freedom of action is being restricted.... The factors a court utilizes to determine, under the totality of the circumstances, whether a detention has become so coercive as to constitute the functional equivalent of arrest include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions. The fact that a police investigation has focused on a particular individual does not automatically trigger ‘custody,’ thus requiring Miranda warnings. . . .” Commonwealth v. Baker, 963 A.2d 495, 500-501 (Pa. Super. 2008). (citations omitted) (internal quotations omitted)

In the instant case, I found that, under the totality of the circumstances, appellant’s interview with Officers Bartholomew and Moore did not become the functional equivalent of an arrest. Of particular significance is the fact that it was appellant who sought out police assistance in his three telephone calls to the 9-1-1 dispatcher while sitting immediately outside the Ephrata Police Station. In the calls and in his conversations with the responding officers, appellant specifically requested admittance to the police station for his own safety and protection. The police did nothing to compel appellant to enter the police station. (N.T., suppression at 13, 29.) Nor did they pat him down, search him, manhandle him, handcuff or shackle him, or otherwise restrict his movements in any way prior to his entering the police station. (Id.) Thus, appellant freely and voluntarily accompanied Officers Moore and Bartholomew into the police station to explain the alleged threats being made against him by the Mafia from New Orleans.

Once inside the station, appellant was escorted to an interview room off the lobby. He was not patted down or searched at that time. (N.T., suppression at 13, 29.) No weapons were drawn, and no restraints were used on appellant. (Id.) The door to the interview room was left open, and appellant exercised freedom to move about the station. (Id. at 33, 45.) Officers Moore and Bartholomew testified that at no time did they block the door to the interview room to prevent appellant from leaving, tell appellant he could not leave the station, or deny any request made by appellant. (Id. at 17-18,34.) They further noted that appellant made no attempt to leave the interview room, and made no requests for use of the bathroom, coffee, food, or anything else. (Id. at 18, 34.)

Officer Moore testified that he did not force appellant to make the statement regarding his burning of the church, nor did he promise him anything to get him to make the statement. (Id. at 33.) Lastly, the officers stated that they did not preclude appellant from doing anything inside the room and, in fact, appellant said he needed to rest and did lay down on the floor for a period of time. (Id. at 17, 34.)

It is well-established that a defendant’s spontaneous statements not made in response to police conduct or questioning are not subject to suppression. Common wealth v. Avondet, 439 Pa. Super. 421, 425, 654 A.2d 587, 589 (1995) (citing Commonwealth v. Odrick, 410 Pa. Super. 245, 599 A.2d 974 (1991)).

“Thus, the absence of Miranda warnings does not require suppression of a suspect’s custodial statement if, for example, the suspect spontaneously ‘blurts out’ the statement, ... or makes an incriminating statement in the course of ‘small talk’ with authorities, ... or is merely responding to biographical questioning, ... or makes an incriminating statement after voluntarily initiating communication with the authorities,... or makes an incriminating statement in response to a declaration, rather than an inquiry, on the part of the authorities.” Commonwealth v. Sepulveda, 579 Pa. 217, 239-40, 855 A.2d 783, 796-97 (2004) (Castille, concurring), (citations omitted) Under the totality of the circumstances in this case, appellant was not in police custody at the time he blurted out to Officer Moore that he “burned [his] church” and this incriminating statement, which was given freely and spontaneously without any compelling influences, was clearly admissible at trial.

Alternatively, appellant claims his statements to the 9-1-1 operator and to the police should have been suppressed, as “their admission violated the rules of testimonial capacity.” (See appellant’s statement of errors at ¶1.) Appellant claims that he established at the suppression hearing that he “was not competent to make the statements, and that the statements were the products of his psychotic illness.” (Id.)

At the suppression hearing, a psychiatric witness for the defense, Dr. Jerome Gottlieb, testified that, in his opinion, appellant suffered from schizoaffective disorder and that, in the early morning hours of September 25, 2006, he was “actively psychotic,” “not in touch with reality,” and suffering from a “fixed delusion” that he was a confidential informant being chased by the mob. (N.T., suppression at 66-67.) His professional conclusion was that appellant’s psychosis “would affect his actions [and] his behavior,” as well as “[h]is ability to reason.” (Id. at 67.) Based upon this expert opinion, defense counsel argued that appellant “wasn’t mentally competent” to make an admission. (Id. at 75.)

The standard for determining whether mental capacity existed to make admissions is “whether [at the time of his admissions, the defendant’s] memory, his thinking processes or his orientation to reality made it likely that his admissions were untrue.” Commonwealth v. Mozzil lo, 443 Pa. 171, 176, 278 A.2d 874, 877 (1971). In Mozzillo, the defendant was institutionalized as incompetent to stand trial at the time the admissions were made. The Supreme Court held that under such circumstances the presumption of competency is reversed and the Commonwealth has the burden of establishing that the defendant was testimonially competent at the time the admissions were made. The Commonwealth failed to meet its burden in the Mozzillo case because the evidence presented was irrelevant to the defendant’s competency at the time of his admissions.

In the instant case, Dr. Gottlieb conceded on cross-examination that, despite being psychotic, on three separate occasions he found appellant competent to stand trial; that is, appellant consistently demonstrated an understanding of the nature of the charges against him and the criminal proceedings, and an ability to participate with his attorney in his defense. (N.T., suppression at 68-69.) Moreover, the Commonwealth presented the testimony of Officer Moore, who observed appellant at or near the time the inculpatoiy statements were made. He testified that appellant was oriented to time and place, and knew who he was and who the officers were. (N.T., suppression at 40-41.) Appellant was also clear and coherent in his description of his van, its location and the name of his church. (Id.)

Our Supreme Court has held that “[w]hile internal elements impinging upon a defendant’s will, such as his physical and psychological condition, may render a confession which follows interrogation involuntary, neither the Pennsylvania nor the United States Constitution protect a defendant from statements which originate entirely from internal compulsion resulting from a mental disease.” Commonwealth v. Bracey, 501 Pa. 356, 369, 461 A.2d 775, 781-82 (1983). As noted above, at the conclusion of the suppression hearing I found that the inculpatory statements spontaneously uttered by appellant were not the result of police custodial interrogation. Accordingly, I did not need to address appellant’s mental capacity for waiving his constitutional rights.

The evidence at the suppression hearing established that (1) appellant was oriented as to time, date and place, (2) he recognized the police officers with whom he was conversing, and (3) he knew who he was. Most importantly, when confronted by the police about the fire, appellant responded very rationally by invoking his right to counsel and then looking up the attorney’s name in the telephone book and calling him.

Appellant’s motion to suppress was properly denied and this appellate issue lacks merit.

B. Prior Record Score

Appellant next claims the court erred in determining that appellant’s criminal record (including in-state and out-of-state convictions) supported a prior record score of two. This issue was raised in appellant’s post-sentence motion and was adequately addressed in this court’s opinion of January 26,2009; thus, the analysis need not be repeated here. Suffice it to say that this court did conduct an inquiry into the circumstances of appellant’s prior convictions, in-state and out-of-state, did indicate on the record which facts it deemed accurate, and did determine from those facts the appropriate prior record score for appellant to be, at a minimum, two.

C. Request for Restitution Hearing

Appellant further claims the trial court erred in denying defense counsel’s request for a restitution hearing following his sentencing on December 6, 2008. At the sentencing, restitution was ordered in the subrogation amounts of $463,508.71 for Brotherhood Mutual Insurance Company, which insured the Trinity Lutheran Church, and $11,551.19 for Delaware Valley Workers’ Compensation Trust, which covered the medical expenses for an injured firefighter. (N.T., sentencing at 25.) In his petition, appellant noted that “[pjroof of how restitution was calculated was not provided to petitioner or his counsel at the time of hearing.” (See petition for restitution hearing at ¶4.)

The transcript from the sentencing hearing indicates that the assistant district attorney did discuss the restitution amounts with defense counsel prior to the hearing. (See N.T., sentencing at 25.) Defense counsel acknowledged receipt of the sum totals but noted that he was “probably gonna file for a restitution hearing to get the documentation to support it.” (Id. at 26. (emphasis added)) When pressed by the court, defense counsel stated he would be filing a restitution petition within the next 10 days “just to preserve the right and then when documentation comes, if it’s all in order, obviously it will — there will be no need for a restitution hearing.” (Id. at 26-27.) Accordingly, the court ordered restitution but noted: “[Rjestitution is ordered with the understanding that the defense has the right to receive documentation of that and to have a restitution hearing, if necessary, to contest the amount.” (Id. at 33-34.)

Thereafter, defense counsel filed a timely petition for a restitution hearing and the Commonwealth filed its response on December 30,2008. Attached to the response were the documents supporting the subrogation amounts due Brotherhood Mutual Insurance Company and Delaware Valley Workers’ Compensation Trust. (See Commonwealth’s response to defendant’s petition for restitution hearing, exhibits “A” and “B”.) The assistant district attorney noted that, while said documentation was in the possession of the restitution advocates in the district attorney’s office at least four weeks prior to the sentencing in this matter, neither appellant nor his counsel had requested to view it prior to the sentencing hearing or prior to the filing of their petition.

Having found the documentation sufficient to support the restitution amounts owed by appellant, this court denied appellant’s petition for a restitution hearing, in part based upon defense counsel’s representation that there would be no need for an actual hearing if documentation existed to support the subrogation amounts. On appeal, appellant claims the court erred in denying defense counsel’s request for a restitution hearing because, “[a]t the sentencing hearing, the Commonwealth provided no evidence to support its claims regarding the restitution owed.” (See statement of errors at ¶3. (emphasis added)) Appellant fails to acknowledge that sufficient evidence was presented after the sentencing to obviate the need for another hearing. Accordingly, there was no trial court error and this appellate issue lacks merit.

D. Weight of the Evidence

Lastly, appellant raises a weight of the evidence challenge. The Commonwealth’s evidence presented at the trial in this matter was thoroughly summarized in this court’s opinion of January 26, 2009, and will not be repeated here. In his post-sentence motion, appellant argued that he “presented evidence that it would be impossible for her [sic] to be the perpetrator of the arson, burglary, and also risking a catastrophe” and that the Commonwealth did not rebut this evidence. (See appellant’s motion to vacate jury verdict at ¶6.) Each of appellant’s arguments was comprehensively addressed in the January 26, 2009 opinion, and I rely upon that opinion for purposes of this appeal. I will simply note that a thorough review of the record in the instant matter showed that the totality of the evidence presented in this case, as received, evaluated and judged by the jury, was clearly of adequate weight to support the verdicts of guilty on all counts.

I do need to address, however, appellate counsel’s comments regarding this court’s observations relative to defense counsel’s rendition of the facts in the post-sentence motion. Specifically, I wrote:

“This court must express its concern that defense counsel is playing ‘fast and loose’ with the record in this case, first by creating facts out of whole cloth (with respect to Ms. Fisher), and second by distorting facts to arrive at the desired conclusion (with respect to Mr. Wagner). [Appellant’s] post-sentence motion was filed on December 12,2008 and the trial transcripts were filed on October 30,2008, so there is really no excuse for such a distortion of the record.” (See January 26,2009 opinion at 18.)

Appellate counsel apparently took offense to these remarks directed toward defense counsel and offered the following comments. First, “[i]n the post-sentence motion, defense counsel specifically notes that he has prepared the motion from memory and has documented the facts to the best of his knowledge. This statement was added at the suggestion of appellate counsel because the public defender’s office did not have a copy of the transcripts when the post-sentence motion was prepared.” (See statement of errors at ¶4. (emphasis in original)) Appellate counsel then recounts the timetable involved: post-sentence motion filed December 12,2008; sentencing transcript received in public defender’s office on December 17, 2008; trial transcripts e-mailed to public defender’s office on December 19, 2008; and hard copies of trial transcripts received in public defender’s office on December 30, 2008. (Id.) Second, appellate counsel notes that “appellate staff was not aware that trial transcripts had already been produced until December 17, 2008, after the post-sentence motion had been filed.” (Id. (emphasis added)) From these facts, appellate counsel concludes that “trial counsel did not have access to the transcripts when he prepared the post-sentence motion.” (Id. (emphasis added))

Appellant was convicted on September 12, 2008, at 1:30 p.m. Less than two hours later, the court entered an order directing the court reporter to transcribe the notes of testimony from the suppression hearing and the jury trial in this case. (See order of September 12,2008.) The court further directed that the transcripts were to be filed on or before October 3, 2008. (Id.) A copy of this order was delivered to defense counsel, Matthew Bomberger. The transcripts were not, in fact, lodged until October 6, 2008, and were not filed until October 30, 2008. Still, this was a full five weeks before appellant’s sentencing on December 6,2008, and six weeks before the filing of appellant’s post-sentence motion.

The fact that “the public defender’s office did not have a copy of the transcripts when the post-sentence motion was prepared” (see statement of errors at ¶4), is irrelevant to the question of whether defense counsel had access to the transcripts. Exactly when e-mailed copies and hard copies of the transcripts were received by the public defender’s office begs the question of when defense counsel requested them, based upon his knowledge that they would be available in early October 2008. A simple check of the criminal docket would have told defense counsel and the public defender’s office that the transcripts were available for review. Thus, the fact that “appellate staff” in the public defender’s office was unaware that trial transcripts had been filed on October 30, 2008, has no bearing on trial counsel’s knowledge of the filing. Nor does it diminish trial counsel’s obligation to obtain a copy of the produced record so as to accurately present the facts to the court in a “weight of the evidence” argument in a post-sentence motion.

Accordingly, defense counsel’s failure to obtain a copy of the transcript, which was readily available, is no excuse for his misrepresentation of the facts to this court. And my comment in the January 26,2009 post-sentence opinion, objected to by appellate counsel, was appropriate and well-deserved under the circumstances.

III. CONCLUSION

For the reasons set forth above, appellant’s issues on appeal are meritless and his conviction should be affirmed.

Accordingly, I enter the following:

ORDER

And now, April 7,2009, the court hereby submits this opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

      . 18 Pa.C.S. §3301(a)(l)(i), 18 Pa.C.S. §3502(a), and 18 Pa.C.S. §3302(b), respectively.

      . The church was also identified in the record as the “Evangelical Lutheran Church of the Holy Trinity.”

      . Defendant was sentenced to three and one-half to 10 years on the arson charge. He received a concurrent sentence of one to two years for the burglary. The sentence of risking a catastrophe merged with the arson.

      . The church waived its right to a claim of restitution of the $ 1,000 deductible. (N.T., sentencing at 25.)

      . There is a monitor on the wall next to the outside entrance to the Ephrata Police Station. If you press the button, it rings in the police station. If no one is there to answer the call, it is transferred to 9-1-1 county dispatch. (N.T., suppression at 9.) This is what happened in the instant case.

      . Officer Bartholomew was able to immediately identify the appellant as he had attended Ephrata High School with him. (N.T., suppression at 10,24.)

      . Jerome Gottlieb M.D., a psychiatrist, who as part of his evaluation of appellant, listened to the 9-1-1 calls, used the word “pleading” to describe appellant’s effort to get into the police station. (N.T., suppression at 65.)

      . This issue of testimonial capacity was raised in appellant’s pretrial suppression motion (see motion to suppress at ¶¶6, 8), and suppression was denied after a hearing. (N.T., suppression at 82.) However, Pa.R.Crim.P. 581 which governs pretrial suppression of evidence only applies to evidence allegedly “obtained in violation of the defendant’s rights.’’ See Pa.R.Crim.P. 581(A), (H), (I), and the comment to the rule, (emphasis added) Appellant’s challenge here is to his own competency to make the admissions. Our Supreme Court has ruled the issue of competency to make admissions to be one for the determination of the trial court. See Commonwealth v. Scarborough, 491 Pa. 300, 310, 421 A.2d 147, 151 (1980); Commonwealth v. Cunningham, 457 Pa. 397, 403, 322 A.2d 644, 647 (1974). Thus, this issue was not such as could be properly raised or heard at a pretrial suppression proceeding. See Scarborough, supra; Cunningham, supra; Pa.R.Crim.P. 581(A) and the comment to the rule. Since appellant failed to object to the admission of his statements at trial on the ground of his testimonial incapacity (see N.T., trial at 102, 120), the issue is technically waived.

      . Our Supreme Court has consistently held that defendants with proven psychological defects are capable of waiving their constitutional rights and giving voluntary confessions. See Commonwealth v. Logan, 519 Pa. 607, 618-19, 549 A.2d 531, 537 (1988) and cases cited therein. In Bracey, supra, the court noted that “a person with [a] mental illness including a history of hallucinations and delusions may be capable of waiving her constitutional rights.” 501 Pa. at 370 n.7, 461 A.2d at 782 n.7. Thus, the appellate case law is clear that the fact that mental illness distorts a defendant’s perceptions of reality does not establish per se that a defendant’s waiver of constitutional rights is defective.

      .1 have taken the time to address appellate counsel’s comments only because she included them in the statement of errors to be addressed on appeal before the Superior Court and because I wanted the reader to understand the context in which my statements were made.


author: KISTLER, J.,

text:
    Commonwealth v. Brant

      Karen Kuebler, for Commonwealth.

      Deborah Lux, for defendant.
    May 12, 2009
   KISTLER, J.,

Presently before this court is the petition for writ of habeas corpus filed by Gina A. Brant (defendant) on October 21,2008, challenging the magisterial district judge’s decision to bind the defendant over for court on all charges. Defendant and Commonwealth also ask the court to dismiss certain counts in the criminal complaint because they were duplicates of other counts and therefore erroneously filed.

For the following reasons, defendant’s petition for writ of habeas corpus is granted in part and denied in part.

DISCUSSION

As a threshold matter, both the defendant and the Commonwealth request that this court dismiss Counts 7, 8, 9, and 10 of the criminal complaint because they are duplicates of other counts. The court has reviewed the criminal complaint and notes that many of the counts for conspiracy reference the wrong counts in the information provided under the statute. For example, in Count 7, the statute cited in the charge refers to conspiracy to commit simple assault. However, the description of the charge states that defendant “acted with the intent of promoting or facilitating the commission of the crime charged in Count 4.” The crime charged in Count 4 is receiving stolen property, not simple assault. The court would also note that the information under the statute in Counts 9 and 10 refer to the crime charged in Count 7. Based on this language, it would seem that the Commonwealth is charging the defendant with conspiracy to commit conspiracy. Rather than grant the defendant’s and Commonwealth’s motion to dismiss, the court would strongly urge the Commonwealth to amend the information so that all the charges are correct.

Turning to the petition for writ of habeas corpus, defendant argues that the Commonwealth has failed to show all the necessary elements for the crime of burglary and conspiracy. For purposes of deciding a petition for writ of habeas corpus, “the Commonwealth bears the burden at a preliminary hearing of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it.” Commonwealth v. Gettemy, 404 Pa. Super. 504, 510, 591 A.2d 320, 323 (1991). The Commonwealth establishes aprima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). The prima facie standard does not require proof beyond a reasonable doubt; rather, the standard requires the existence of evidence for each element of the crime charged. Id. Further, as set forth by the Superior Court, “[wjhen deciding whether a prima facie case was established, we must view the evidence in the light most favorable to the Commonwealth, and we are to consider all reasonable inferences based on that evidence which could support a guilty verdict.” Commonwealth v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004) citing Commonwealth v. Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001).

As to the charge of burglary, defendant argues that the Commonwealth failed to establish any evidence which would permit a reasonable inference that defendant entered the complaining witness’ residence with the intent to commit a crime therein. Defendant asserts that she had entered the house merely to continue an argument that had occurred earlier that day and therefore entered the residence without the specific intent to commit a crime as required by the statute. See 18 Pa.C.S. §3502.

The court has reviewed the transcript of the preliminary hearing and determines that there was sufficient evidence to permit a reasonable inference that defendant entered the residence with the intent to commit a crime therein. This is based on the following alleged facts gleaned from the complaining witness’ testimony at the preliminary hearing: (1) Defendant and two other women arrived at the complaining witness’ residence at approximately 2:30 a.m. and knocked on the door. (2) Shortly after entering the residence without the complaining witness’ permission, defendant punched the complaining witness in the face. The short passage of time between the alleged entry and assault refutes the defendant’s contention that she had entered the residence merely to continue an argument and events spiraled out of control. It seems to this court that a reasonable inference exists, based on the defendant’s actions, to support the Commonwealth’s argument that the defendant entered the residence with the intent to assault the complaining witness. As a result, the court finds that the Commonwealth has established aprima facie case of burglary and therefore defendant’s petition for writ of habeas corpus as to the count of burglary is denied.

The remaining issue is whether the Commonwealth has established aprima facie case for each of the remaining counts of conspiracy. Defendant asserts that the Commonwealth has failed to establish that there was any agreement between the three women who allegedly entered the residence and assaulted the complaining witness. Defendant asserts the group of women arrived at the apartment and the situation quickly spiraled out of control, without any premeditated agreement between them to commit any criminal offense.

“In order to prove criminal conspiracy, the Commonwealth must show an agreement between or among co-conspirators.” Commonwealth v. Lawson, 437 Pa. Super. 521, 530, 650 A.2d 876, 880 (1994). The existence of such an agreement need not be demonstrated by direct evidence, but may be “inferentially established by showing the relation, conduct or circumstances of the parties.” Id., 437 Pa. Super, at 530, 650 A.2d at 880. Mere association or presence at the scene of the crime is insufficient to establish conspiracy. Id. However, these factors may, in combination with others, establish conspiracy. Id. Due to the confusion in the criminal information, the court will address the issue of conspiracy by dividing the underlying crimes into two groups. The first group of conspiracy crimes is for burglary and simple assault while the second group includes the crimes of theft.

Addressing the first group of conspiracy crimes, upon review of the transcript, the court believes that there is sufficient evidence resulting from the conduct of the three women to establish a conspiracy to commit assault and conspiracy to commit burglary. The court bases this determination on the testimony of the complaining witness that the three women entered the residence uninvited and started yelling at the defendant. N.T. 9/24/08 p. 23. As the complaining witness was talking on the phone, the three women allegedly surrounded the complaining witness. N.T. 9/24/08 p. 23. Defendant is alleged to have struck the complaining witness and pushed her backwards and they both ended up on the floor. N.T. 9/24/08 pp. 9-10. While on the floor complaining witness rolled on top of the defendant and incurred three or four strikes to the back of the head by one of the other two women. N.T. 9/24/08 pp. 10 and 24.

Based on the above referenced conduct, it seems to this court that the group of women acted to first surround the complaining witness and during the fight between the defendant and complaining victim, one of the two women took advantage of her position relative to the complaining witness to strike her three or four times in the back of the head where she was unable to protect herself. Based on this information, the court finds that the Commonwealth has established prima facie evidence of an agreement based on the conduct of the three individuals before and during the assault. Defendant’s petition for writ of habeas corpus as to the counts of criminal conspiracy to commit burglary and assault are hereby denied.

As to the charges for criminal conspiracy to commit theft by unlawful taking, the court determines that the Commonwealth has failed to establish any agreement among the three women to steal the complaining witness’ purse. There is no evidence based on the conduct or behavior of the three women which would permit this court to reasonably infer that an agreement existed. Therefore, the defendant’s petition for writ of habeas corpus as to the counts of criminal conspiracy to commit theft by unlawful taking is granted.

ORDER

And now, May 12, 2009, the following shall be the order of the court:

(1) Counts 7, 8, 9 and 10 are dismissed by agreement between the Commonwealth and the defendant.

(2) Defendant’s petition for writ of habeas corpus pertaining to Count 1, burglary is hereby denied.

(3) Defendant’s petition for writ of habeas corpus pertaining to counts dealing with conspiracy to commit burglary and simple assault are hereby denied.

(4) Defendant’s petition for writ of habeas corpus pertaining to the counts of conspiracy to commit crimes of theft are hereby granted.

      . Although the criminal information is incorrect in many places, for purposes of deciding this petition the court understands the essential charges brought by the Commonwealth and this did not hinder the court in deciding this petition.


text:
    Chase Bank USA v. Rader

      Benjamin R. Bibler, for plaintiff.

      Shawn P. McLaughlin, for defendant.
    March 17, 2009
   ASHWORTH, J.,

This is a debt collection action against a credit card debtor. The matter is before the court on plaintiff’s motion for summary judgment. For the reasons set forth below, this motion must be denied.

I. BACKGOUND

Plaintiff filed its complaint on January 30,2008, seeking to collect past due payments on a credit card issued to defendant. Plaintiff alleges the remaining balance due, owing and unpaid on defendant’s account is $14,282.28. (Complaint at ¶4.) Interest has also accrued at the statutory rate of six percent per annum from January 21,2008. (Id. at ¶8.) Attached to plaintiff’s complaint are two documents, neither of which are referred to in the complaint. The first is a one-page document entitled “exhibit ‘1’,” which appears to be a MasterCard account summary showing a balance due, as of June 29, 2007, of $13,783.79. The second attachment, marked “exhibit ‘2’,” is entitled “cardmember agreement.” Defendant filed an answer to the complaint that generally denied the allegations on lack of information and belief, and sets forth several affirmative defenses under Pa.R.C.P. 1030. Plaintiff filed a timely response to the new matter.

On June 18, 2008, plaintiff served upon defendant a set of requests for admissions and requests for production of documents. Defendant filed a response to these discovery requests on July 28,2008. By way of his response, defendant denies knowledge of whether he applied for the credit card at issue and denies the accuracy of the statements attached to plaintiff’s discovery demands and the balance plaintiff avers to be due and owing on the account.

On August 18,2008, plaintiff filed a motion for summary judgment, and brief in support thereof, claiming that (1) defendant has neither raised nor supported a single meritorious defense to this action; (2) the pleadings filed of record show no genuine issue of material fact exists to be tried; and (3) plaintiff is entitled to summary judgment as a matter of law. Defendant filed a brief in opposition to plaintiff’s motion on September 2,2008. On December 1,2008, plaintiff filed a praecipe to assign the motion to the court for disposition. This matter was eventually forwarded to the undersigned on January 6, 2009.

II. STANDARD OF REVIEW

Summary judgment is properly granted as a matter of law “if, after the completion of discovery relevant to the motion . . ., an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.R 1035.2. The adverse party who bears the burden of proof at trial must come forward with evidence essential to preserve his cause of action. Id., note. If such a party fails to produce such essential evidence, the moving party is entitled to judgment as a matter of law. Grandelli v. Methodist Hospital, 777 A.2d 1138, 1143-44 (Pa. Super. 2001). However, “we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Evans v. Sodexho, 946 A.2d 733, 738 (Pa. Super. 2008). (quotation omitted)

III. DISCUSSION

The issue of what documentation is required in a credit card collection action has been recently considered by the Pennsylvania Superior Court in Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 345 (Pa. Super. 2003). In Atlantic Credit, the plaintiff filed a complaint in which it alleged that the defendants were indebted to GM Card and that the plaintiff had purchased the defendants’ account from GM Card. The plaintiff, however, failed to attach to the complaint any contract or cardholder agreement between GM Card and the defendants, or any contract or agreement between GM Card and itself regarding the assignment. Atlantic Credit did attach a single sheet which appeared to be a monthly statement from GM Card addressed to the defendants, which listed the total due on the account and the interest rate.

The Superior Court stated that the plaintiff’s “failure to attach the writings which assertedly establish [the creditor’s] right to a judgment... is fatal to the claims set forth in [the creditor’s] complaint.” Atlantic Credit, supra at 345. Thus, the plaintiff’s failure to produce a cardholder agreement and statement of account, as well as evidence of the assignment, established a meritorious defense to the action.

The Honorable R. Stanton Wettick, administrative judge with the Court of Common Pleas of Allegheny County, has also addressed what documentation is required to support a credit card collection action. In Worldwide Asset Purchasing LLC v. Stern, 153 Pitts. L. J. 111 (2004), Judge Wettick held that a complaint to recover credit card balances must contain “sufficient documentation and allegations to permit a defendant to calculate the total amount of damages that are allegedly due by reading the documents attached to the complaint and the allegations within the complaint.” 153 Pitts. L. J. at 112. (citations and footnote omitted) Included should be “the amounts of the charges that are part of the claim, the dates of the charges, credits for payments if any, dates and amounts of interest charges, and dates and amounts of other charges.” (Id.)

The record in the instant case does include an alleged copy of the applicable credit card agreement which was allegedly mailed to defendant with the Chase Bank credit card at issue in this case. However, this generic, undated “card agreement” has a copyright date of 2006 and defendant’s credit card has an account history that extends from at least 2002. Thus, plaintiff has failed to attach the original contract or cardholder agreement between defendant and plaintiff, or a facsimile thereof.

Nor has plaintiff produced a sufficient statement of activity on the account. Exhibit “1” to plaintiff’s complaint is an undated one-page statement that appears to be a MasterCard account summary showing a balance due, as of June 29,2007, of $13,783.79. Attached to the motion for summary judgment, however, are multiple monthly statements dating back to September 2002. (See exhibit “D” attached to motion for summary judgment.) On the September 2002 statement it shows a previous balance of $4,406. Id. Plaintiff provides no undisputed facts to establish how that pre-existing balance was arrived at or how it was calculated. Clearly, this is insufficient documentation to permit defendant to calculate the total amount of damages that are now allegedly due.

Plaintiff has the burden of proving the terms of the contract with the defendant. It has not done so. Plaintiff has the burden of proving that the debt purchased was the correct amount defendant owed. It has not done so. Any ruling in favor of plaintiff would have to be based on conjecture and speculation. The court refuses to make these unsupported assumptions.

Essentially, plaintiff would have us take, on faith, the accuracy of its claims without the necessary supporting documentation. This is not the standard for deciding a motion for summary judgment. Only where no material facts are at issue and the law is so clear that a trial would be a fruitless exercise, may the court grant summary judgment. See Government Employees Insurance Co. v. Ayers, 955 A.2d 1025, 1028 n.1 (Pa. Super. 2008).

IV. CONCLUSION

Plaintiff’s failure to produce a cardholder agreement and complete statement of account establishes a meritorious defense to this action and, consequently, requires the dismissal of plaintiff’s motion for summary judgment. Plaintiff is on notice that this court will require all the evidence identified above to establish its claim. If at the time of the pretrial conference, plaintiff is unable to produce said evidence, the court will entertain a motion for summary judgment on behalf of defendant.

Accordingly, we enter the following:

ORDER

And now, March 17, 2009, upon consideration of the motion for summary judgment of plaintiff Chase Bank USAN. A., and the briefs filed by the parties, it is hereby ordered that said motion is denied.