author: LASH, J.,

text:
    Cross v. Cross

      Anne L. Carroll and Sharon L. Gray, for plaintiff.

      Ron Creazzo, for defendant.
    August 14, 2008
   LASH, J.,

This court held a child custody trial on July 1, and August 8, 2008. We make the following findings:

I. FINDINGS OF FACT

(1) Plaintiff, Scott Cross (Father), is an adult individual who resides in Mount Aetna, Berks County, Pennsylvania 19544, in the Tulpehocken School District.

(2) Defendant, Debora Cross (Mother), is an adult individual who currently resides at 126 37th Street NE, Cedar Rapids, Iowa, within the Cedar Rapids School District.

(3) The parties are the natural parents of five children: Elisha Cross, bom December 13, 1992, Abigail Cross, bom November 16,1994, Montgomery Scott Cross, bom October 7, 1996, Marissa Cross, bom August 14, 1998, and Annika Cross, bom September 8,2000, (minor children).

(4) The parties were married in 1991, residing together until their separation in August 2007.

(5) From 1996 through the parties’ separation in 2007, the parties resided in the marital residence, which is now Father’s residence in Mount Aetna, except for a one and one-half year period in 1999 and 2000 when the parties resided in California.

(6) There is currently a divorce action pending in Berks County Court, filed by Father.

(7) Mother is also the parent of two adult children from her first marriage, James Cleland and Vana Goddard, both of whom resided with the parties for a period of time.

(8) Father is currently employed at R R Games in Birdsboro, Pennsylvania 19508, having been employed full-time until recently when he was placed on partial layoff, now working Tuesdays and Thursdays. As a result, he has supplemented his income through independent contracts with other companies, including Shay’s Vending in Lebanon in Pennsylvania and Keysource Technologies in Kutztown, Pennsylvania.

(9) With the exception of some minor jobs, Mother has been employed as a homemaker.

(10) The parties’ marriage quickly deteriorated and ultimately broke down after the parties engaged in a practice called “polyamory”, commonly known as wife swapping, in which the parties and another couple, named the Pimlotts, who reside in Iowa, convened at the marital residence and engaged in consensual sexual acts with each other.

(11) The parties met the Pimlotts on the internet. While it is unclear which of the parties initiated the contact, both parties agreed to participate and did participate.

(12) After engaging in the group sex, Mother and Jason Pimlott formed a bond.

(13) The parties and the Pimlotts discussed the parties moving to Iowa to cohabit at the Pimlotts’ residence. However, Father and Mrs. Pimlott apparently did not bond, so the suggestion was then made to have Father reside in a separate residence near the Pimlott residence while Mother would reside with the Pimlotts.

(14) The proposed arrangement would include the parties’ children residing in the Pimlotts’ residence, as well as the Pimlotts’ two children, ages 6 and 4.

(15) Father declined to move to Iowa. Mother then chose to move to Iowa without Father and did so on August 18, 2007.

(16) When Mother moved to Iowa, she took the minor children, Abigail and Annika. Apparently, the parties had offered the children the option on whether they would move to Iowa or stay in Pennsylvania. Elisha, Scotty and Marissa chose to stay in Pennsylvania, Abigail chose to move to Iowa, and Annika did not choose and ultimately moved with Mother.

(17) The aforesaid custody arrangement remained in place until December 30, 2007, when Mother returned to Pennsylvania and retrieved the other three children, moving to Iowa to reside with her other two children and the Pimlott family.

(18) Since December 30,2007, all five children have resided with Mother in Iowa, except for a short period during the spring break, when the children returned to Berks County to visit with Father. Additionally, the parties agreed that Elisha and Scotty would spend the entire summer of 2008 with Father, and Abigail, Marissa and Annika would reside with Father from July 1, 2008 until the end of the summer.

(19) Currently, Mother resides with her paramour, Jason Pimlott, the five minor children, the Pimlott children, Joseph, born September 26,2001, and Caleb, born October 23, 2003. Jason Pimlott’s wife, Jaime, also resides in the house, however, Mr. and Mrs. Pimlott currently maintain no relationship as husband and wife. Mrs. Pimlott remains in the home for financial reasons only.

(20) Father currently resides in the marital residence, residing alone when the subject minor children are not also present.

II. DISCUSSION

The issue is primary physical custody. In making disposition, this court considered the testimony of the parties, an in camera conference with three of the minor children, Elisha, Abigail, and Montgomery or “Scotty”, testimony from Mother’s other children, James Cleland and Yana Goddard, Mother’s paramour, Jason M. Pimlott, a home assessment with an update of the marital residence conducted by Open Door International Inc., the custody questionnaires submitted by the parlies at the court’s direction, and the exhibits submitted.

Father presented first. He advised the court that he believes he is a good parent to the minor children. He is active with them in computer activities and playing board games. He is quite involved in the day-to-day maintenance of the minor children, as well as committed to working on the marital residence, which was bought several years ago and is a “fixer upper.” If Father retains custody, the minor children’s continuity and stability would be preserved, as they would continue to live in the marital residence, and have the same friendships.

In discussing Mother, Father wonders why she moved to Iowa. He believes she is being used as a housekeeper and a “nanny” for the Pimlott children. While he initially concedes that he was willing to move to Iowa with his wife and the Pimlotts, the other three adults were cool to the concept, as Father and Mrs. Pimlott did not “hit it off.” The plan was to have Father residing in a separate residence somewhere nearby the Pimlott residence while Mother would reside with the Pimlotts.

Father questioned some of Mother’s parenting skills. He believes she is too lenient with the minor children, that his method of discipline is much more appropriate. He questioned her commitment to the day-to-day care-taking responsibilities, including homemaking, food preparation, cleaning and the like. The care of the marital house was substandard. Father agrees that he shares in this responsibility, but also states that he had to work at his employment, and do the renovation work at the house and did not have time for the day-to-day cleanup.

Mother provided a very different perspective. She states that the house was livable when she was there, as she did provide the necessary housekeeping. She also homeschooled the minor children, which took up a great deal of time. On the other hand, Father was inattentive to the needs of the minor children or the needs of the house, preferring to remain on his computer for long periods of time. Mother also had serious concerns about Father’s driving ability, as he has been involved in several serious accidents.

Mother believes her new home is far superior. The minor children now reside in a clean house with adequate space for each child. They receive good meals, instead of fast food that Father cooks them when they are with him. The school districts are superior. Mother also has the ability to attend college based on the lower tuition rates in Iowa and the fact that she has access to an automobile.

Mother believes her relationship with Jason Pimlott is stable. Mr. Pimlott will obtain a divorce from his wife. In the meantime, his wife continues to reside at the Pimlott residence for financial reasons. She keeps to herself. Mother is solely involved in the housekeeping and in the care of the minor children, including the Pimlott children.

Mother is extremely concerned about the condition of the marital residence. The marital residence was never a showplace, requiring extensive work from the time the parties moved in, even regarding such basics as building walls and installing appropriate plumbing and electric. The renovations never reached a satisfactory standard. Mother relates that even now there are exposed electrical wires, broken windows which are not being replaced, and remodeling that is incomplete. More importantly, since she has left, the housekeeping has become nonexistent. The residence is extremely cluttered, unsanitary, and dangerous. There is animal feces and animal smells everywhere. There are pet rats who have died and their carcasses remain in the cages. The kitchen and bedrooms are totally disheveled. The above-ground swimming pool has not been cleaned, resulting in stagnant green water.

In the home assessments conducted by Open Door, the investigator listed several areas of concern. These included, among other things, stacked cinder blocks being used as front steps to an entry to the home, a strong odor of urine, no bed linens for the minor children, exposed wiring on the second floor bathroom and basement, untested drinking water, outlets and light switches without switch plates, multiple broken windowpanes, some covered by boards, and no fence around the pool.

Mother believes that the minor children have adapted to their home in Iowa. While the minor children miss their Father, their clear preference is to remain in Iowa. They are now happy and content. The minor child, Scotty, has a disability which Mother perceives could be Asberger’s syndrome. He is limited in his ability to be social. He has some difficulty in learning. He cannot tolerate music, particularly loud music. Mother notes that Scotty’s ability to function has improved since the move to Iowa. The school in Iowa appears well equipped to address Scotty’s needs.

The fundamental issue in all custody cases is the best interest of the children. Richards v. Hepfer, 764 A.2d 623 (Pa. Super. 2000). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

In the case of Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), the Pennsylvania Superior Court established the following factors for the trial court to consider on relocation matters:

“(1) The potential advantage of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;
“(2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and
“(3) The availability of realistic, substitute arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.” Richards v. Hepfer, supra at 626. (internal quotations and citations omitted)

We must observe a distinction from the Gruber analysis on the issue of burden of proof. Unlike Gruber, where the relocating party sought to modify an existing custody order, in the within matter no order was entered prior to Mother’s relocation. Accordingly, we are guided by the analysis of the Superior Court in Collins v. Collins, 897 A.2d 466, 472 (2006), where the court states:

“We emphasize that the Gruber factors, while important, are but one aspect of the overall best interest analysis that is required when the court is formulating a primary physical custody order as well as deciding a petition for relocation.
“ [I]t seems to appear that if a trial court merely applies the specified Gruber factors to a case in which it has not yet awarded primary physical custody to one of the parents, that court has abused its discretion. This is because the Gruber factors take into account only those best interest concerns related to relocation: a small comer of the best interest cosmos. Kirkendall v. Kirkendall, 844 A.2d 1261, 1265 (Pa. Super. 2004).
“When, as in the case sub judice, there was no final custody order in place at the time that a parent filed a petition to relocate, then the trial court must scrutinize the custodial environment offered by each parent, without favoring one over the other, as part of the requisite best interest analysis. Landis [v. Landis, 869 A.2d 1003, 1012 (Pa. Super. 2005)]; Kirkendall, supra at 1265-66 (quoting Marshall v. Marshall, 814 A.2d 1226, 1230 (Pa. Super. 2002)); see also, Thomas v. Thomas, 739 A.2d 206, 211 (Pa. Super. 1999) (en banc). In the absence of a pre-existing custody order, both parents stand on equal footing, sharing the burden of production and persuasion. Landis, supra at 1012 (citing Hurley v. Hurley, 754 A.2d 1283, 1286 (Pa. Super. 2000)); Burkholder v. Burkholder, 790 A.2d 1053, 1058-59 (Pa. Super. 2002) (citing Hurley, supra at 1286-87). In other words, when the court fashions an initial custody order under circumstances where one parent wishes to relocate, the relocating parent does not have a greater burden of proof with regard to establishing the best interest of the child than does the parent who does not intend to move. Hurley, supra at 1286. The focus of the court must be on determining which parent and which living situation provides a familial setting that better serves the children’s best interests. Kirkendall, supra at 1263-64; Marshall, supra at 1234.” (footnotes omitted)

Initially, we note that the catalyst for the parties’ separation consisted of grossly inappropriate conduct. Mother is now living with a man the parties met through the internet and who willingly engaged in group sex. Mr. Pimlott’s wife continues to reside in the house which, at best, is difficult to explain and is likely a source of embarrassment for the minor children.

That being said, the blame for the marital breakdown and resulting circumstances must be borne equally by the parties. Father also willingly engaged in the alternate lifestyle. It appears that he would have moved to Iowa if he and Mrs. Pimlott would have formed a couple.

Secondly, we find that the living conditions in the marital home, where Father continues to reside, is abysmal. The reports by Open Door, the photographs, and the testimony all point to the fact that the house, in its current state, is not suitable to rear children, or to inhabit at all. If Father is to provide a suitable household, he must immediately address the safety and sanitary concerns first, then, working within his budget, make appropriate renovations. He must come to realize that some “stop gap” measures must be taken in lieu of long-range planning, for he does not appear to have financial ability to meet the long-range goals he has set for the home.

Third, her moral and marital status issues notwithstanding, Mother appears to have the capacity to provide a good household for the minor children. She is motivated to keep a clean and safe household with the Pimlotts. She is a good caretaker for the minor children. She is very active in their education and social welfare. She appears to have been renewed by her odyssey, now taking pre-engineering classes, which could ultimately lead to her obtaining a degree, a well-paying career, and improvement of her self esteem.

The minor children appear to be doing very well in Iowa. Mr. Pimlott is a good provider, and from all indications, the household appears to run well, despite the fact that there are three adults and seven children under one roof.

We find that Mother’s motives in moving to Iowa were not designed to keep the minor children from Father. In fact, initially, the parties left the decision on where the minor children would reside to the minor children. Additionally, as stated, the initial plan was for Father to also move to Iowa.

The quality of the minor children’s life has substantially improved. The current custody arrangement, therefore, should remain intact.

It is important that Father continue to have extensive contact with the minor children. For that reason, the minor children should reside with Father during the summer months. However, for that to take place, Father will have to improve the quality of his residence sufficient to provide the minor children with a safe and sanitary home. As he has several months to accomplish this pending the minor children’s arrival in the summer of 2009, there is no reason why this cannot be accomplished. This court shall require that Open Door inspect Father’s residence one month prior to the minor children’s arrival to assess whether the house is suitable for the minor children. If there is a concern, this court shall entertain a petition to determine whether Father’s time with the minor children should be limited.

We enter the following order:

ORDER

And now, August 14, 2008, after trial held, this court orders that custody of the parties’ minor children, Elisha Cross, bom December 13, 1992, Abigail Cross, born November 16, 1994, Montgomery Scott Cross, born October 7, 1996, Marissa Cross, born August 14, 1998, and Annika Cross, bom September 8,2000, (minor children), shall be as follows:

(1) The parties shall share legal custody of the minor children.

(2) Defendant, Debora Cross (Mother), shall have primary physical custody of the minor children during the school year. The school year shall be defined as one week prior to the start of school to one week following the end of the school year.

(3) Plaintiff, Scott Cross (Father), shall have custody of the minor children during the summer months. However, Father’s custody time with the minor children is contingent upon him providing a safe and sanitary residence for the minor children. In that regard, Father shall submit his residence to an assessment to be conducted by Open Door International Inc., to be performed approximately one month prior to the minor children’s scheduled arrival. Costs for the assessment shall be borne by Father. If there is a substantial concern raised by Open Door or through other evidence, Mother may file a petition with this court to determine whether this order shall be modified. Additionally, in subsequent years, if the condition of the home is determined to be substandard, this order may be modified on that basis.

(4) Father shall also have time with the minor children during the Christmas and spring breaks from school, the times to be arranged by the parties. Additionally, Father may visit with the minor children in Iowa, upon giving suitable notice to Mother of his intentions to travel there.

(5) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

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

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

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the children in school and the children’s medical status, including the right to obtain the necessary information directly from the children’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the children and the opportunity to participate in those decisions.

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

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

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

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

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

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

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

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor children.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children to unnecessary apprehension and failure of expectations.

(D) The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the children.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

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


source: Caselaw Access Project

author: HODGSON, P.J.,

license: Public Domain

text:
    Commonwealth v. Watson

      Bryan Tiley, for Commonwealth.

      Samuel Lassoff and Timothy Peterwile, for defendant.
    August 13, 2008
   HODGSON, P.J.,

Nancy Watson (appellant) appeals to the Superior Court of Pennsylvania from the judgment of sentence imposed on her by this court on June 19, 2008.

FACTS AND PROCEDURAL HISTORY

On June 29,2007 Officers Joseph Regan and Richard Wayock of the Lower Merion Township Police Department were conducting a DUI checkpoint near Lancaster Avenue and Lankenau Drive in Montgomery County, Pennsylvania. At approximately 11 p.m. that evening, appellant operated her vehicle through the checkpoint whereupon she came into contact with Regan, who began speaking with her and explaining the purpose of the stop. During their conversation, Regan detected a strong odor of alcohol on appellant’s breath and noticed that her eyes were glassy and her speech was mumbled. Suspecting that appellant was intoxicated, Regan requested that she exit her vehicle. Upon doing so, appellant began staggering and needed assistance to walk. Regan then directed appellant to a separate area whereby Wayock administered a series of standard field sobriety tests. Unable to successfully perform the tests, appellant was handcuffed and informed that she would be transported to Lankenau Hospital for a blood test. Upon reaching the hospital however, appellant began protesting and then placed her foot on the wall to prevent herself and the officers from entering. She was thereafter accompanied back to the police vehicle where she was explained the concept of implied consent and was advised that if she failed to comply with the test, her license would be suspended for one year. The officers then presented appellant with a document to this effect, which she refused to sign.

Appellant was thereafter taken into custody and charged with driving under the influence of alcohol in violation of 75 Pa.C.S. §3802(a)(l). After filing amotion to suppress which she later withdrew, the matter proceeded to a trial in which a jury found appellant guilty of the charge against her. She was thereafter sentenced to a term of imprisonment of one to two years to be served at a state correctional institution. Appellant now appeals her judgment of sentence. In accordance with section 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed appellant to file a concise statement of errors complained of on appeal no later than July 21, 2008. Appellant filed said statement on July 16, 2008.

LEGAL DISCUSSION

I. Motion To Suppress

Appellant argues that this court erred in denying her motion to suppress the relevant physical and testimonial evidence arising from her vehicle stop. A review of the record reveals that appellant filed a motion to suppress on September 27,2007 yet it was later withdrawn. (N.T. April 9,2008 at pp. 6-10.) There were no other documents or motions to this effect subsequently filed. On this basis, any other issues raised in appellant’s suppression motion are waived and we are therefore unable to address appellant’s grievance.

II. Sufficiency of Evidence

Appellant argues that there is insufficient evidence to support the jury’s verdict that she violated 75 Pa.C.S. §3802(a)(1) as there was no evidence presented which indicated that she was operating her vehicle in an unsafe manner or that she was under the influence of alcohol. Although there was testimony presented regarding appellant’s performance of various field sobriety tests, such evidence is indicative of an individual’s balance and therefore is irrelevant as it pertains to a person’s ability to safely drive a vehicle. Moreover, the admission of said evidence violated appellant’s right against unreasonable search and seizure.

In determining whether there is sufficient evidence to support a verdict, the relevant test is:

“[WJhether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined all the elements of the crime have been established beyond a reasonable doubt.” Commonwealth v. O’Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003).

Therefore, in considering whether there is sufficient evidence to support appellant’s conviction, we must review 75 Pa.C.S. §3802(a) which governs driving under the influence of alcohol or a controlled substance. The statute states that “[a]n 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 safely driving, operating or being in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §3802(a)(l).

After reviewing the above referenced statute as well as the relevant testimony, we find that there is sufficient evidence to support appellant’s conviction. At trial, Regan testified that upon interacting with appellant, he noticed that her speech was slurred and that she had an odor of alcohol on her breath. Regan further remarked that appellant was unable to walk on her own and needed his assistance in doing so. His testimony was supported by that of Wayock who stated that appellant was unable to successfully complete the field sobriety tests that were administered to her. Based on these testimonies, we find that there was sufficient evidence upon which the jury could find, beyond a reasonable doubt, that appellant was intoxicated to the point that she was incapable of safely operating her vehicle.

We also find that evidence of appellant’s performances of the various field sobriety tests was properly admitted and did not violate her Fourth Amendment right against unreasonable searches and seizures. It has been held that where there are “specific and articulable” facts giving rise to a reasonable suspicion of criminal activity, the police may restrict an individual’s freedom for a limited period of time in order to conduct an investigation. Commonwealth v. Toanone, 381 Pa. Super. 336, 341, 553 A.2d 998, 1000 (1989). In Toanone, a police officer was investigating an accident scene and asked the defendant to step outside of the car. In doing so, the officer noticed that the defendant had an odor of alcohol and was unsteady. He asked the defendant to perform a series of field sobriety tests, which he failed. As a result, the defendant was arrested and subsequently filed a motion to suppress arguing that his constitutional rights were violated. The Superior Court held that because the officer had a reasonable belief that the defendant may have been intoxicated, “he was justified in asking the defendant to perfonnfield sobriety tests.” Id. at 341, 553 A.2d at 1000. Similarly in the instant case, Regan was also justified in requesting appellant to submit to field sobriety tests based on his suspicion that appellant was intoxicated as a result of her slurred speech, glassy eyes and odor of alcohol. On this basis, we find that appellant’s right against unlawful searches and seizure was not violated.

TIT. Error in Considering Appellant’s Failure To Submit to Chemical Testing

Appellant asserts that this court erred in considering her failure to submit to chemical testing as a refusal pursuant to 75 Pa.C.S. §3804(c) since she was denied her guaranteed right to counsel when she was asked to take said test. We disagree upon finding that appellant was not denied such a right.

The Pennsylvania Superior Court has held that a defendant’s right to counsel attaches at critical stages of a proceeding or prosecution. A “critical stage” of the prosecution is defined as “any stage of the prosecution, formal or informal, in or out of court, where counsel’s absence might derogate from the accused’s right to a fair trial.” Commonwealth v. McCoy, 895 A.2d 18, 29 (Pa. Super. 2006) citing U.S. v. Wade, 388 U.S. 218 (1967).Notwith-standing this however, the court has held that “the decision of whether to submit to chemical testing” when “made during an encounter involving the gathering of evidence” is not a critical proceeding “for the purposes of right to counsel.” Id. at 28. Applying McCoy to the instant case, we find that appellant was not improperly deprived of her right to assistance of counsel when she was presented with the officers’ request to submit to a blood-alcohol test. Appellant maintains however, that the Supreme Court is currently reconsidering this issue to determine whether the right to counsel does apply in such circumstances. Although it is true that the Pennsylvania Supreme Court has granted an allowance of appeal with regard to this matter, a decision has not yet been rendered. Therefore for the purposes of the instant case, we are bound by the Superior Court’s ruling and find that appellant was not entitled to counsel and as such, we did not err in considering appellant’s failure to submit to a blood-alcohol test.

IV. Sentencing of Appellant to State Institution

Appellant lastly maintains that this court erred in sentencing appellant to a state correctional institution and by failing to provide an explanation for its decision.

When evaluating the imposition of a sentence, the Superior Court has held that such a decision is vested within the discretion of the sentencing court and, absent a manifest abuse of discretion, will not be disturbed by an appellate court. Commonwealth v. Stafford, 932 A.2d 214, 216 (Pa. Super. 2007). In the instant case, appellant’s conviction was considered to be her third DUI offense. An individual who violates 75 Pa.C.S. §3802(a), who has committed his or her third or subsequent offense and who has refused blood or alcohol testing, may receive a mandatory minimum sentence of imprisonment for not less than one year, a minimum fine of $2,500 and compliance with all drug and alcohol treatment requirements imposed under 75 Pa.C.S. §3814 and 75 Pa.C.S. §3815. See 75 Pa.C.S. §3804.

Appellant was convicted of driving under the influence of alcohol or a controlled substance, in violation of 75 Pa.C.S. §3802(a) and was found to have refused to submit to chemical testing. In determining her sentence, we considered the fact that her conviction was her third offense since 2002 and she had previously served two sentences in various county correctional facilities. We further took note of the fact that appellant had failed to take any corrective steps to rectify her behavior. Based on these factors, which we placed on the record, we find that appellant was properly sentenced to a term of imprisonment to be served at a state correctional institution.

CONCLUSION

Based on the foregoing, the undersigned respectfully requests that the instant appeal be dismissed.

      . Appellant testified contrary to this, she felt a pain in her wrist when the handcuffs were being placed on her and that despite her requests for medical attention, she was never taken to the hospital.

      . Commonwealth v. McCoy, 951 A.2d 264 (Pa. 2008).


author: COX, J,

text:
    Walker v. Winner International Inc.

      Joshua Perlman, for plaintiff.

      Albert N. Peterlin, for defendants.
    August 4, 2008
   COX, J,

Before the court for disposition are the motion for judgment on the pleadings filed on behalf of defendants Winner International Inc. and Winner Hotel Corporation and the cross-motion for judgment on the pleadings filed on behalf of plaintiff Carbis Walker LLP. Both motions raise the issue of whether the statute of limitations bars plaintiff’s claims based on invoices created prior to June 7, 2002. Plaintiff asserts that the contract between the parties is a continuing contract and defendants sent plaintiff a letter acknowledging the debt and promising payment, which tolled the statute of limitations. Defendants contend that the contract between the parties was not a continuing contract and the acknowledgment doctrine does not apply; thus, the four-year statute of limitations period has expired.

Defendants hired plaintiff, a certified public accounting and consulting firm, to prepare its income tax returns and perform other tax advisory services. This agreement was formalized through engagement letters, which provided that “billings are due upon submission, and invoices not paid after 30 days will be subjected to a 1-1/4 percent service charge.” Plaintiff performed all the services required under the agreement and attempted to claim any outstanding amounts due from defendants in August 2002. Plaintiff sent multiple invoices during the period of June 15,2000 until May 10,2002. Defendants’ CFO Charles R. Miller made assurances in a letter and e-mail that the past due amounts owed to plaintiff would be paid. Defendants have failed to pay the amount owed and plaintiff filed suit on June 7,2006, asserting breach of contract and unjust enrichment claims.

Pa.R.C.P. 1034(a) permits any party to move for judgment on the pleadings after the relevant pleadings are closed, but within such time as not to unreasonably delay the trial of the case. Amotion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. Kelly v. Hazleton General Hospital, 837 A.2d 490 (Pa. Super. 2003); Miller v. Nelson, 768 A.2d 858 (Pa. Super. 2001). The opposing party’s well-pleaded allegations are viewed as true, but only those facts that are specifically admitted by the objecting party may be weighed against him. Goldsmith v. City Council of the City of Easton, 817 A.2d 565 (Pa. Commw. 2003); Kerr v. Borough of Union City, 150 Pa. Commw. 21, 614 A.2d 338 (1992). Such amotion may only be granted in cases where no material facts are at issue and the law so clear that a trial would be a fruitless exercise. Kerr v. Borough of Union City, supra.

The first issue raised by defendants is that the agreement reached by plaintiff and defendants is not a continuing contract. Plaintiff asserts that the agreement is a continuing contract and the statute of limitations has been tolled.

The statute of limitations period for a breach of contract claim is four years. 42 Pa.C.S. §5525. “Where the contract is a continuing one, the statute of limitations runs from the time when the breach occurs or when the contract is in some way terminated.” Cole v. Lawrence, 701 A.2d 987, 989 (Pa. Super. 1997) (citing Thorpe v. Schoenbrun, 202 Pa. Super. 375, 378, 195 A.2d 870, 872 (1963)). A continuing contract occurs where services are rendered over a continuous period of time. In re Koonce’s Estate, 105 Pa. Super. 539, 542, 161 A. 578, 579 (1932). In order for a contract to be continuing the services have to be provided with no fixed time for payment or were rendered under multiple separate contracts. Thorpe v. Schoenbrun, 202 Pa. Super. 375, 378, 195 A.2d 870, 872 (1963). For the purposes of computing the statute of limitations, a contract is continuing when there is no fixed time for payment or termination of the services. Id.

Clearly, the courts have extended the continuing contract concept to professional service contracts. In Dean v. Township of Bensalem, 26 D.&C.3d 154 (1983), the court held that it was appropriate for the trial court to instruct the jury that a contract for services between a solicitor and a township was a continuing contract, even though the solicitor was reappointed on a yearly basis. Also, in Thorpe, supra, the court held that it was appropriate for the jury to decide that a contract between a doctor and patient for medical services was a continuing contract as the doctor provided several medical treatments for various ailments and later sent out invoices stating the amount that the patient owed. The court reasoned that the doctor was hired for an extended period of time for continuous services to preserve the patient’s eyesight, so the treatments were related; thus, a continuing contract had been formed between the parties. Thorpe, 202 Pa. Super. at 380, 195 A.2d at 873.

In the case sub judice, the parties entered into a professional services agreement, which mandated that plaintiff provides tax advisory and preparation services to defendants. Plaintiff was to provide defendants with invoices declaring the payment amount due for services rendered and defendants were to pay that amount within 30 days or incur a 1-1/4 percent service charge. Defendants claim that the date on the invoice demonstrates that there was a fixed time for performance and the contract was not continuing; however, the date on the invoice indicates the date when the invoice was published by plaintiff and not the date on which defendants’ performance was required. In fact, defendants could have made payments after the 30-day time limit, but would have incurred the service charge. Moreover, there was no fixed time for performance as plaintiff had to perform its obligations first and then it would send an invoice indicating the work done and the payment due. This is the type of professional services contract that the courts in Dean and Thorpe held were continuing contracts. Therefore, a continuing contract was formed, which tolls the statute of limitations period.

The next issue presented is whether the acknowledgment doctrine applies to further toll the statute of limitations in the current matter. “To toll the statute of limitations, there must be a clear and unequivocal acknowledgement of the debt, and a specification of the amount or reference to something by which the amount can be definitely ascertained, coupled with an express or implied promise to pay.” Markee v. Reyburn, 258 Pa. 277, 282, 101 A. 993, 994 (1917) (citing Ward v. Jack, 172 Pa. 416, 33 A. 577 (1896)). In order for the acknowledgment doctrine to apply, there must be a new promise that plainly identifies the amount of the debt in question or makes reference to something from which the amount can be precisely ascertained. Hazlett v. Stillwagen, 23 Pa. Super. 114 (1903). There can be no uncertainty in the acknowledgment and identification of the debt. Gurenlian v. Gurenlian, 407 Pa. Super. 102, 114, 595 A.2d 145, 151 (1991). It must be noted that the acknowledgment must be similar to a promise to pay on demand, not just a mere willingness to pay. Id. “A simple declaration of an intention to discharge an obligation is not the equivalent of a promise to pay, but is more in the nature of a desire to do so, from which there is no implication of a promise.” Id.

The application of the acknowledgment doctrine is demonstrated in S. T. Hudson Engineers Inc. v. Camden Hotel Development Associates, 747 A.2d 931 (Pa. Super. 2000). In that case, the appellee performed various engineering services at the direction of, and on behalf of, the appellants. The appellants were billed regularly for the services and perpetually carried an unpaid balance. Eventually, the appellants received an invoice demanding payment on the outstanding balance. The appellants sent a reply letter acknowledging the debt and proposed a modification of the payment terms, which was accepted and relied upon by the appellee. The appellee later demanded payment, but the appellant did not provide the same. The court held that the statute of limitations was tolled as the acknowledgment doctrine was applicable because it was clear that the appellants promised to pay the debt and that was relied upon by the appellee. Id., 747 A.2d at 935.

In the case at hand, defendants sent a letter and an email stating that plaintiff would be paid for the past due amount for the tax services and invoices sent during calendar years of 2001 and 2002. In fact, Charles R. Miller declared that plaintiff would be paid according to a timetable that he would later discuss with plaintiff. This is a clear and unequivocal indication that defendants were willing to pay the debt owed in accordance with the timetable that would be enacted by the parties. The amount to be paid was readily ascertainable from reviewing the past invoices and applying the accelerated interest rate for the late payments. There can be no uncertainty that defendants acknowledged the debt and clearly indicated a willingness to pay the same. Thus, plaintiff’s claims are not time barred as the acknowledgment doctrine tolls the four-year statute of limitations period in this case.

In accordance with the reasons set forth in this opinion, defendants’ motion for judgment on the pleadings is denied and plaintiff’s cross-motion for judgment on the pleadings is granted.

ORDER

Now August 4, 2008, this case being before the court on June 30, 2008, for oral argument on the motion for judgment on the pleadings filed by the defendants and the cross-motion for judgment on the pleadings filed by the plaintiff, with both parties appearing, the plaintiff, Carbis Walker LLP, represented by counsel, Joshua Perlman, Esquire and the defendants, Winner International Inc., a Pennsylvania corporation and Winner Hotel Corporation, a Pennsylvania corporation, represented by counsel, Albert N. Peterlin, Esquire and after consideration of the arguments and briefs presented and submitted by counsel, and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the motion for judgment on the pleadings filed by the defendants is hereby denied.

(2) The court grants the cross-motion for judgment on the pleadings filed by the plaintiff and against the defendants strictly as to the issue of the statute of limitations defense, as pleaded.

(3) The court finds that the plaintiff timely filed its continuing contract and unjust enrichment claims in June 2006.

(4) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Joshua Perlman, Esquire and Albert N. Peterlin, Esquire.

      . It must be noted that in the cross-motion for judgment on the pleadings plaintiff initially argued that a six-year statute of limitations period applied to the case at hand; however, plaintiff reversed its thinking on this matter and now agrees that a four-year statute of limitations period applies.

      . The e-mail was dated December 10,2002.


author: RUEST, J.,

text:
    Remit Corporation v. Miller

      Laurinda J. Voelcker, for plaintiff.

      Carl Mollica, for defendant.
    August 15, 2008
   RUEST, J.,

Presently before the court are the preliminary objections of defendant Terry L. Miller. Upon receipt of defendant’s objections, the court ordered this matter to be decided on briefs. Both parties submitted briefs. The court determines the preliminary objections of defendant are sustained.

BACKGROUND

Plaintiff initiated this cause of action by filing a complaint on October 29,2007. Defendant filed preliminary objections to the complaint. The complaint arises out of a Bank of America credit card allegedly issued to defendant. Defendant is alleged to have made his last payment on the account on or about December 15, 2003 and to have accumulated an unpaid balance of $4,679.06.

DISCUSSION

I. Failure of a Pleading To Conform to Law or Rule of Court Pa.RC.P. 1028(a)(2)

In a credit card suit, a creditor must “attach the writings which assertedly establish [the creditor’s] right to a judgment.” Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 345 (Pa. Super. 2003). Defendant maintains plaintiff’s complaint should be dismissed because it does not include the writings which form the alleged contractual relationship between the parties and doesn’t explain their absence. Plaintiff maintains it has satisfied the requirements of Pa.R.C.P. 1019(i) by attaching a copy of the cardholder agreement to the complaint. Pa.R.C.P. 1019(i) states “when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing.” Under this rule, written agreements are considered “writings.” Plaintiff maintains its claim is based upon the attached credit agreement. Defendant maintains this “agreement” is neither signed by defendant nor reflective of the original agreement between defendant and Bank of America. The agreement is dated 2004. Plaintiff avers defendant entered into the agreement with Bank of America in 2002.

Plaintiff has not attached the relevant writing to establish its claim against defendant, instead attaching a copy of the cardholder agreement from four years ago. Plaintiff has not attached defendant’s original credit application, any of the periodic mailings detailing changes to the terms of the contract, or a statement averring that it lacks access to any or all of the relevant writings. Plaintiff has not attached any writings showing the agreement between defendant and plaintiff’s assignor, The Sagres Company, and its assignor, Bank of America. The undated and unsigned cardholder agreement, dated 2004, may reflect the terms of the original agreement between defendant and Bank of America, but the unsigned cardholder agreement is insufficient to establish plaintiff’s claim.

II. Lack of Standing To Sue/Non-Joinder of a Necessary Party Pa.R. C.P 1028(a)(5)

Defendant maintains plaintiff Remit Corporation is not the true party in interest. Plaintiff maintains it received the right to pursue this action through an assignment from The Sagres Company, which was the successor in interest to the original party in interest, Bank of America. Several Pennsylvania Court of Common Pleas cases hold that an assignment must be attached to the complaint. The Centre County case of Flanagan v. Hill, Fitzgerald and Erie Insurance Group, 78 D.&C.4th 487 (Kistler, J.) holds that Pa.R.C.P. 1019 requires that an assignment be attached to a complaint. This holding is in accord with an Allegheny County case, Worldwide Asset Purchasing LLC v. Stern, 153 Pitts. L.J. 111, 112 (Allegheny Cty. 2004), which specifically addressed assignments in credit card cases. This court concurs with these holdings and determines Pa.R.C.P. 1019 requires that, in a credit card case based upon an assignment, the relevant assignments showing the chain of ownership for the account from originator to current holder must be attached to the complaint.

Plaintiff has attached an affidavit from Jerry Greenblatt, VP/CIO of The Sagres Company, purported successor in interest to Bank of America. This affidavit, while appearing on its surface to satisfy the requirements of Pa.R.C.P. 1019(i) for lost or unavailable writings, does not clearly establish the assignment of rights between Bank of America, The Sagres Company, and Remit Corporation. Nor does it explain or clarify the terms of the original agreement entered into by defendant and Bank of America or reflect the final terms of the agreement after various amendments that may have been made over the course of the agreement.

Pa.R.C.P. 2002 requires that all actions be prosecuted by and in the name of the real party in interest. The court determines there is no assignment from Bank of America to The Sagres Company attached to the complaint and there is no sufficient factual allegation concerning how and when The Sagres Company became a valid successor in interest to Bank of America. Without that allegation, plaintiff has not pled how it has become the real party in interest in this case. Clearly, an assignee may sue as the real party in interest, but it must first “trace in [its] pleading the derivation of [its] cause of action from [its] assignor.” Brown v. Esposito, 157 Pa. Super. 147, 149, 42 A.2d 93, 94 (1945). Plaintiff has not done so.

III. Insufficient Specificity in a Pleading Pa.R.C.P 1028(a)(3)

Defendant argues plaintiff’s complaint is insufficiently specific because it does not meet the requirements of Pa.R.C.P. 1019(a) and (f). Plaintiff maintains it has pled facts with sufficient specificity to allow defendant to answer the complaint.

In determining sufficiency of the pleading in a complaint, the court will consider “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). Pa.R.C.P. 1019(a) states that “ [t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(f) states that “[a]verments of time, place and items of special damage shall be specifically stated.”

Plaintiff avers that defendant owes $4,679.06 for charges made under a credit agreement with a credit card. Plaintiff has attached nothing more than an affidavit from a corporate officer of a collection agency. There has not been an averment or attachment of information concerning the specifics of the alleged purchases or charges. The court concurs with the holding of the Erie County court in Marine Bank v. Orlando, 25 D.&C.3d 264 (Erie Cty. 1982), where that court sustained preliminary objections for failure to comply with Pa.R.C.P. 1019(f), holding that “[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest.” Id. at 268. This information must be included in the pleading for it to comply with Pa.R.C.P. 1019(f).

Defendant additionally argues plaintiff must provide a breakdown of charges, payments, items purchased, and interest such that defendant can formulate a response or assert a counterclaim or a defense. Plaintiff argues that the requirement of Pa.R.C.P. 1019(f), that averments of time, place and items of special damages be specifically pleaded, does not extend to the requirement that every transaction on an account be detailed in the complaint. Plaintiff cites Delligatti v. Mt. Pleasant Borough, 76 D.&C. 200 (Westmoreland Cty. 1951), for the proposition that “the requirement that time and place be averred specifically does not require exact precision. The rule is satisfied if the time and place are sufficiently identified so that there is no uncertainty between the parties as to what time or place is intended.” Id. at 202, quoting 2 Anderson’s Pa. Civil Practice 389. Plaintiff then argues it is sufficient to provide the time frame of December 31, 2002 through April 3, 2004, as the period in which the card was issued and the balance incurred, and that this accurately identifies the time of the agreement, and there can be no uncertainty as to what time plaintiff intends.

The court determines Delligatti is distinguishable from the case at bar. Delligatti involved a trespass action as a result of an injury sustained by a minor who fell in the street. The preliminary objection there dealt with the plaintiff’s failure to state what part of the street had fallen into disrepair, how long the condition existed prior to the date of accident, where the plaintiff fell, the amount of expenses incurred for medical care, medicines etc., and the name of the person or persons to whom amounts were paid or owing. The Delligatti court held that a plaintiff is not required to fix a definite period of time as to how long the street had been in disrepair, that the location of the accident was sufficiently identified, and that general damages may be proved without being specially pleaded. Clearly, the defendant in Delligatti would know exactly what was being alleged and where it was alleged to have occurred. In the case at bar, defendant is faced with a specific amount owed, $4,679.06, and nothing more. Plaintiff did subsequently attach several account statements dated October 28, 2003 through January 28, 2004. These statements do not detail any specific charges or sufficient specific accounting information to allow the court or defendant to calculate what defendant owes or how that amount was reached.

Defendant also cites to a case, Premium Assignment Corp. v. City Cab Company Inc., 2005 WL 1706976, 2005 Lexis 311 (C.P. Philadelphia 2005), for the proposition that “[t]he specific calculations are necessary pieces of information that are known by the plaintiff and are relatively simple to aver. The addition of those specific calculations will enable the defendant to prepare its defense and address the issues without forcing the defendant to engage in unnecessary discovery.” Defendant needs this information both to be able to fully and accurately answer the complaint, to make any necessary counterclaims or defenses, and to avoid unnecessary discovery.

Accordingly the following is entered:

ORDER

And now, August 15, 2008, the following is ordered:

(1) Defendant Terry L. Miller’s preliminary objections are sustained.

(2) Plaintiff shall have 20 days from the date of this order to amend its pleading.


author: ASHWORTH, J,

text:
    Commonwealth v. Fuentes-Flores

      Christopher Larsen, for Commonwealth.

      Douglas A. Conrad and Merrill Spahn, for defendant.
    May 21, 2008
   ASHWORTH, J,

Before the court is defendant Pedro Fuentes-Flores’ motion for reconsideration of this court’s order denying in part defendant’s motion to quash notice of the aggravating circumstance at 42 Pa.C.S. §9711(d)(7). For the reasons set forth below, this motion will be granted and the notice of aggravating circumstance will be quashed.

I. BACKGROUND

On May 23,2007, at 12:27 a.m., Officer Lisa Gehr of the East Lampeter Township Police Department was dispatched to the 400 block of Greenland Drive, East Lampeter Township, for a reported hit-and-run accident. There she met with a witness who described a red Jeep Cherokee as being the vehicle involved in the accident. The witness stated he recognized the Jeep as belonging to a neighbor and directed Officer Gehr to a male subject walking in front of 413 Greenland Drive as one of the people associated with the Jeep.

Officer Gehr approached the subject and identified him as the defendant, Pedro Fuentes-Flores. Officer Gehr was familiar with defendant from previous encounters involving him and Karen Crowley. Defendant Fuentes-Flores was observed talking on a cellular telephone, which he closed quickly upon Officer Gehr’s approach. Officer Gehr asked defendant if she could speak with him. Defendant responded, “My friend died.” Officer Gehr asked defendant if they could go inside to talk. Defendant proceeded into the residence at 413 Greenland Drive, followed by Officer Gehr.

Officer Gehr knew that Karen Crowley also resided at 413 Greenland Drive. Officer Gehr asked defendant whether Karen was home, to which defendant responded, “she is here.” As Officer Gehr reached the top of the steps, she observed the victim, Karen Crowley, lying naked on the floor of the apartment. The officer observed a pool of blood to the left side of the victim’s head and what appeared to be a purple/black bruise on the left side of the ribs. Ms. Crowley’s skin was pale, gray and waxy. The victim was unresponsive and did not appear to be breathing. Officer Gehr found no respirations or pulse. Officer Gehr also observed an empty clear glass bottle positioned upright between the victim’s upper legs.

Detective S cott Eelman of the East Lampeter Township Police Department arrived at the scene and examined the victim. He noted bum marks on the victim’s body and the carpet beneath her, specifically, the carpet between the left upper arm and the left side of Ms. Crowley’s chest. There was soot transfer and discoloration of the skin consistent with a burn on the left side of Ms. Crowley’s chest. The victim also had several bums in the inner aspect of her left upper arm. Finally, he observed a bottle labeled “Olive Oil” between the victim’s legs and a second bottle labeled “Lemon Oil” near the victim’s head. A strong odor of lemon emanated from Ms. Crowley’s body, and Detective Eelman observed a clear liquid substance in the victim’s naval and on the hair in her pubic region. There were obvious stab wounds to the victim’s chest. Detective Eelman further detected a strong odor of natural gas or propane in the apartment and discovered that the controls for the four surface burners of the stove and the oven were in the “on” position and that a hissing sound was coming from the range. There was no pilot light in the stove or oven.

On May 23, 2007, defendant Fuentes-Flores gave a statement to the police in which he admitted stabbing the victim in the chest with a knife multiple times. He also admitted to pouring a liquid on her in order to accelerate a fire after turning on the gas at the stove in an attempt to ignite a fire.

The victim’s residence, 413 Greenland Drive, is located inside an apartment complex. The apartment is on the second floor of a two-story building. There are a total of eight apartments located in the same building as 413 Greenland Drive, occupied by approximately 13 tenants. The apartments span the width of the building. Each apartment has an entrance on the front of the building and a patio or exterior balcony in the back. The apartments below and next to 413 Greenland Drive exhibited signs of habitation on May 23,2007, and a police canvas revealed that several apartments were occupied on the night in question.

On May 24,2007, Trooper Brian Herr, who is the fire marshal with the Pennsylvania State Police, examined the victim’s residence and concluded that the fire was intentionally ignited and, therefore, considered an incendiary or arson fire. On May 24, 2007, the Lancaster County Forensic Pathologist, Wayne Ross M.D., conducted an autopsy on Karen Crowley and concluded that she was murdered and that her death was caused by stab wounds to her chest.

As a result of the investigation, defendant was arrested and charged with criminal homicide in the stabbing death of Karen Crowley. He was also charged with arson and creating a risk of catastrophe for intentionally starting a fire in the apartment of Karen Crowley by placing oil on the victim and turning on the gas burners and the gas oven and extinguishing the pilot light before igniting afire.

Pursuant to Pa.R.Crim.P. 802, the Commonwealth filed a notice of intent to seek sentence of death on July 19, 2007. Specifically, the Commonwealth believed it could prove two statutory aggravating circumstances: (1) the creation of a grave risk of death to another person in addition to the victim of the offense, 42 Pa.C. S. §9711 (d) (7); and (2) a killing while in the perpetration of a felony, 42 Pa.C.S. §9711(d)(6).

On December 27, 2007, defendant filed a motion to quash those aggravating circumstances on the ground that no evidence existed to support them. Specifically, he asserted that the Commonwealth would not be able to offer prima facie evidence that the victim was alive at the time that defendant committed the offense of arson, the activity relied upon by the Commonwealth to support both aggravating circumstances. On January 18, 2008, the Commonwealth filed an answer to defendant’s motion conceding the inapplicability of the aggravating circumstance set forth at section 9711(d)(6), but contesting defendant’s motion with respect to the applicability of the (d)(7) aggravator.

On February 15, 2008, the court entered an order granting defendant’s motion in part and denying the motion in part. Specifically, the motion was granted as to the aggravating circumstance set forth at section 9711(d) (6), but denied with respect to the applicability of the (d) (7) “grave risk of death” aggravator.

On March 4,2008, defendant filed a motion for reconsideration of the court’s order of February 15,2008, and requested oral argument. Defendant’s request was granted and oral argument was heard in-chambers on April 3, 2008, and again on May 5,2008. Supplemental briefs having been filed by the parties, this matter is now ripe for disposition.

II. DISCUSSION

In considering whether a matter is properly designated as a capital case by the prosecution, the trial court’s inquiry under Commonwealth v. Buck, 551 Pa. 184, 191, 709 A.2d 892, 896 (1998), is limited to a determination of whether the Commonwealth’s notice of aggravating circumstances “includes at least one aggravating factor that is supported by any evidence . . . .” (emphasis added) To that end, the Supreme Court formulated the following standard of review for assessing whether the Commonwealth has abused its discretion in designating a case as capital:

“A defendant who claims that there is no evidence supporting the notice of aggravating circumstances bears the burden of proving that contention. If the defendant fails to meet this burden and evidence exists to create a factual dispute regarding whether the aggravating factor(s) exists, the defendant’s motion should be summarily denied as no abuse of discretion by the prosecutor is apparent. To the contrary, however, if the defendant makes a showing that no evidence exists to support the aggravating circumstance alleged, the trial court may require minimal disclosure by the Commonwealth. If no evidence is presented in support of any aggravating circumstance, the trial court may rule that the case shall proceed non-capital. This ruling shall be without prejudice to the Commonwealth to file an amended... notice if it subsequently becomes aware of evidence in support of an aggravating factor.” Id. at 192, 709 A.2d at 896-97. (footnotes omitted)

Instantly, defendant Fuentes-Flores contends that no evidence exists to support the (d)(7) aggravator, that is, that “in the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.” 42 Pa.C.S. §9711(d)(7). (emphasis added) According to this statutory language, the grave risk of death to the other people in the multi-unit apartment building must have occurred “in the commission” of Karen Crowley’s murder.

Defendant has raised two arguments in support of his claim for the inapplicability of the (d)(7) aggravator under the circumstances of this case. First, defendant contends that “the 9711(d)(7) aggravating circumstance is inapplicable to any situation in which the ‘other persons’ are endangered by activity that is distinct from the activity that was the cause of death on [sic] the murder victim, [sic] In this case, arson was not the cause of death. Stabbing was the cause of death. The activity of arson— whether are [sic] not it followed the death of the murder victim — does not have the requisite nexus to the murderous activity to engender the 9711(d)(7) aggravating circumstance. Accordingly, in the first instance, defendant asserts that the 9711(d)(7) aggravating circumstance is inapplicable whether or not the victim was dead when defendant commenced the activity constituting the offense of arson.” (See defendant’s motion for reconsideration at ¶10.) (emphasis in original)

Alternatively, and “[i]n an abundance of caution,” defendant avers that assuming, for the sake of argument, that the law would apply the (d)(7) aggravator to some situations in which the defendant endangered others by engaging in activity distinct from the murderous activity, it must be prior to the death of the murder victim. Id., citing Commonwealth v. Bolden, 562 Pa. 94, 753 A.2d 793 (2000).

A thorough review of this Commonwealth’s case law leads to the disquieting conclusion that the Supreme Court has inconsistently construed the phrase, “in the commission of the offense.” While most of the decisions have strictly held that the grave risk must be in the actual commission of the murder, others have found the grave risk in the entire criminal episode that includes the murder.

As argued by defendant, “[tjhere is clear authority that limits the section 9711(d)(7) aggravating circumstance to situations in which the other persons are in the ‘zone of danger’ that the defendant created by killing the actual murder victim. Pursuant to that authority, the section 9711(d)(7) aggravating circumstance requires a strict temporal nexus between the activity that constitutes the murder and the activity that constitutes a danger to persons other than the murder victim. The section 9711(d) (7) aggravating circumstances [sic] does not apply to situations in which the conduct that endangers other persons occurs after the death of the murder victim.” (See defendant’s memorandum of law in support of motion to quash at 4.)

The Pennsylvania Supreme Court announced this “nexus” principle in Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439 (1995):

“[I]t is clear that sufficient evidence to support this particular aggravating circumstance arises only in those factual situations where a nexus exists connecting the ‘other persons’ to the zone of danger created by the defendant’s actions in killing the victim....
“The risk of harm to others must occur or be imminent at the time of the acts leading to the death of the victim, for this aggravating circumstance to be applicable to a penalty determination.” Id. at 82, 665 A.2d at 457.

Thus, the court held that the (d)(7) aggravator is applicable only in those instances where “other persons are ‘in close proximity’ to the decedent ‘at the time’ of the murder, and due to that proximity are in jeopardy of suffering real harm.” Id. at 80, 665 A.2d at 456. Accord, Commonwealth v. Stokes, 532 Pa. 242, 260, 615 A.2d 704, 713 (1992) (plurality) (grave risk aggravator “applies to situations where the defendant in the course of killing his particular victim acts in a manner which endangers the lives of others close in proximity to the intended or actual victim”).

The defendant in Paolello beat two individuals. One of the victims received medical treatment and survived. The other victim refused medical treatment; rather the defendant kept the victim in his bedroom and fed him large quantities of vodka. At trial the cause of death was attributed equally to the trauma from the beating and to alcohol poisoning. The Supreme Court held that the evidence was insufficient to support the jury’s finding of the grave risk aggravator. Specifically, the alcohol was not administered to the second beating victim until after the first beating victim had left the defendant’s room. Thus, at the time the defendant was engaged in the process of murdering the second beating victim, the first beating victim was no longer within the “zone of danger.” 542 Pa. at 82, 665 A.2d at 457. The Supreme Court applied the nexus principle from Paolello five years later in Commonwealth v. Bolden, 562 Pa. 94, 753 A.2d 793 (2000), when it again reversed the trial court’s application of the (d)(7) aggravator. Bolden involved a situation in which the defendant entered a sporting goods store with the intent to commit a robbeiy. He shot and killed one of the employees, John Calabro. While the defendant was still present at the murder/robbery scene, another employee, Michael Elder, entered the building from the parking lot. The defendant shot Elder, but did not kill him. At trial, the jury was presented with the (d)(7) aggravator and found that it was proven in that case.

On appeal, the Supreme Court reversed. The court, relying on its earlier decision in Paolello, held that the (d)(7) aggravator is limited to those situations where the “other persons are in ‘close proximity’ to the decedent ‘at the time’ of the murder, and due to that proximity are in jeopardy of suffering real harm.” 562 Pa. at 104, 753 A.2d at 798. Specifically, the Supreme Court concluded that because Elder was not nearby or within the zone of danger when Calabro was killed and, presumably, Calabro was already dead when Elder entered the store, it was error for the trial judge to instruct the jury that it could find as an aggravating circumstance that the defendant placed Elder in a grave risk of death when he killed Calabro. Id. at 104, 753 A.2d at 798-99.

In a concurring opinion, Justice Nigro further explained this “nexus” or “zone of danger” principle:

“In the instant case, the majority correctly concludes that there was insufficient evidence to support the Commonwealth’s theory that appellant’s fatal shooting of Mr. Calabro within the sporting goods store placed Mr. Elder in grave risk of death because there was simply no showing that Mr. Elder was put in danger at the time of Mr. Calabro’s murder. To be sure, Mr. Elder was put in danger later, when appellant shot him- — -but that shooting simply did not occur ‘in the commission of the offense,’ i.e., during Mr. Calabro’s murder .... I believe that it would undermine the plain meaning and unambiguous intent of the statute in question to find that (d)(7) applies to cases such as the instant one, where there is no indication that a third party was placed in grave risk of death during the murder of the intended victim due to that third party’s temporal and spatial proximity to the victim.” Id. at 106, 753 A.2d at 800 (Nigro, J., concurring), (emphasis in original) (footnotes omitted)

These two decisions by the Supreme Court, Paolello and Bolden, suggest that the phrase “in the commission of the offense” means “during the murder” or “at the time of the murder” and not following the murder. A review of the over one dozen cases since Paolello in which the (d)(7) aggravator has been upheld by the Supreme Court supports this position. See for example, Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178 (2006) (grave risk of death to another person found when defendant shot his daughter while she held an infant in her arms); Commonwealth v. DeJesus, 584 Pa. 29, 880 A.2d 608 (2005) (grave risk of death to another person found when defendant, while standing on a rooftop, opened fire with an assault rifle on a car passing through a street in a residential area); Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277 (2005) (grave risk of death to another person found when defendant drove by a bar and opened fire on a group of bystanders, killing two and seriously injuring several others); Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d 26 (2005) (grave risk of death to another person found when defendant set fire to his home, killing his daughter, while his girlfriend was present in the home); Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892 (2004) (grave risk of death to another person found when defendant shot and killed one of a group of people being robbed in a parking lot adjacent to a night club); Commonwealth v. Dougherty, 580 Pa. 183, 860 A.2d 31 (2004) (grave risk of death to another person found when defendant set fire to his row home killing his two sons); Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202 (2003) (grave risk of death to another person when defendant fired shots at a large crowd, killing two and wounding three others); Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060 (2002) (grave risk of death to another person when defendant fired shots at his intended victim on a street where three young children were playing); Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556 (2002) (grave risk of death to another person found when defendant repeatedly shot at his intended victim while her two children were standing right next to her at an elevator); Commonwealth v. Philistin, 565 Pa. 455, 774 A.2d 741 (2001) (grave risk of death to another person found when defendant emerged from his vehicle during a routine traffic stop and started shooting at the two approaching officers, killing one and critically wounding another); Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116 (2001) (grave risk of death to another person found when defendant fired three shots at the victim with an individual only a few feet away, and at the time of the murder, the person was asleep on a bed adjacent to the victim); Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284 (1998) (grave risk of death to another person found when defendant murdered his three children by house fire which endangered his wife, neighbors and firefighters); Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025 (1996) (grave risk of death to another person found when defendant fired a fatal bullet at the victim lying on the floor of the bedroom while another person was on the floor near the victim and two others were on a nearby bed); Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996) (grave risk of death to another person found when defendant opened fire at police officer while he was handcuffing the co-defendant); Commonwealth v. Speight, 544 Pa. 451, 677 A.2d 317 (1996) (grave risk of death to another person found when defendant opened fire on a group of people standing on the sidewalk, killing two and wounding two others).

The nexus principle enunciated in Paolello in 1995 followed a series of earlier decisions by the Supreme Court which affirmed the (d)(7) aggravator where the grave risk arose during the course of the murderous act itself. See for example, Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90 (1995) (grave risk of death to another person found when defendant fired shots at victim sleeping on a couch while another person slept on a nearby couch); Commonwealth v. Jones, 539 Pa. 222, 651 A.2d 1101 (1994) (grave risk of death to another person found when defendant bound, gagged and set on fire two women in the basement of a row home in the City of Philadelphia); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994) (grave risk of death to another person found when defendant fired gunshots into a crowded bar, killing the victim and endangering 15 other patrons); Commonwealth v. Meadows, 534 Pa. 450, 633 A.2d 1081 (1993) (grave risk of death to another person found when defendant killed his intended victim with the victim’s wife and two children in the room); Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119 (1993) (grave risk of death to another person found when defendant shot and killed a robbery victim lying on the floor next to two others); Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992) (grave risk of death to another person found when defendant fired into a car containing several persons); Commonwealth v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992) (grave risk of death to another person found when defendant shot and killed his victim in a public bar); Commonwealth v. Watson, 523 Pa. 51, 565 A.2d 132 (1989) (grave risk of death to another person found where the victim’s son was hiding inside of a closet when the defendant randomly fired a bullet into the closet which missed the young boy and lodged into the door frame); Commonwealth v. Logan, 519 Pa. 607, 549 A.2d 531 (1988) (grave risk of death to another person found when ax-wielding defendant attacked stranger on a public bus in the midst of other passengers); Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986) (grave risk of death to another person found when defendant shot the intended victim at a crowded party). However, we are mindful of those cases where the Supreme Court has permitted the aggravating circumstance to be applied where the endangerment was not proximate in time or in location to the act that caused the death of the homicide victim. Most notably, in Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97 (1995), the Supreme Court upheld the (d)(7) aggravator where the defendant and his co-conspirators fired shots at a pursuing eyewitness to the murder that happened several blocks away. Specifically, in Johnson, the defendant shot his victim six times, including once in the back of the head. The murder occurred on a public sidewalk in sight of several bystanders. The defendant and his co-defendants then fled the scene in a vehicle. The victim’s uncle, who had witnessed the shooting, “followed the vehicle for several blocks until shots were fired at him from the passenger side of the vehicle.” 542 Pa. at 393, 668 A.2d at 101. The jury found the aggravating circumstance of grave risk, and the Supreme Court affirmed. Although the shots fired at the uncle were neither spatially nor temporally related to the fatal shots, and he was clearly not within the “zone of danger” at the time of the actual murder, the Supreme Court nonetheless found sufficient evidence to support the (d)(7) aggravator and concluded: “appellant and his co-defendants created a grave risk of death to [the uncle] when they fired shots at him as he attempted to pursue them as they fled the scene.” 542 Pa. at 409, 668 A.2d at 109. The shots may indeed have caused a grave risk of death to the pursuing uncle, and they were part of one criminal episode, but they were not “in the course of killing” the victim, as required by the nexus test set forth some years later in Paolello.

In Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991), the defendant was convicted of the murder of a counselor at the Children’s Home of York. The defendant entered the home at night with three juvenile runaways, one of whom was left on the second floor with a knife and instructions to “kill any resident who woke up and attempted to help the victim.” Id. at 552, 599 A.2d at 627. The defendant and the other two co-conspirators then proceeded downstairs to the victim’s bedroom and stabbed him to death, after waking him first. Id. On appeal, the defendant challenged the jury’s finding of grave risk claiming there existed only the possibility of grave risk of death to others. Id. at 554, 599 A.2d at 628. The Supreme Court upheld the (d)(7) aggravator, stating that the defendant “through his overt conduct, knowingly created a grave risk of death to the other residents of the home, by his pre-conceived plan to have them killed if they awoke during the perpetration of the victim’s murder.” Id. at 555, 599 A.2d at 628. The Mitchell court thus considered the grave risk from the entire criminal episode as there was no evidence that the actual stabbing of the victim subjected any other person to any grave risk.

Similarly, the Supreme Court considered the entire criminal episode in Commonwealth v. Robinson, 554 Pa. 293, 315, 721 A.2d 344, 355 (1998), cert. denied, 528 U.S. 1082 (2000), when it found the (d)(7) aggravating circumstance applicable where the grave risk occurred before the murder. In Robinson, the defendant arrived at the apartment of his ex-girlfriend and discovered that her current boyfriend was taking a shower. The defendant shot his ex-girlfriend in the front room of the apartment while her boyfriend was showering in the bathroom. Before the ex-girlfriend lost consciousness, she heard three shots and then the defendant ran past her. When she regained consciousness, she went into the bathroom where she discovered the dead body of her boyfriend in the shower stall. Despite the fact that the defendant murdered the victim after he shot his ex-girlfriend, and that the victim and the ex-girlfriend were not even in the same room at the time of either shooting, the Supreme Court held that there was sufficient evidence to support the (d) (7) aggravator.

Likewise, in Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), the Supreme Court held that a house fire set after the defendant had killed the residents was sufficient to support the application of the (d)(7) aggravating circumstance. In Hardcastle, the defendant stabbed the victims to death and then set fire to their residence. The Supreme Court found this action, which was part of the entire criminal episode, created a grave risk to others.

While this case law suggests that the (d)(7) aggravator does not apply only to cases where innocent bystanders are located directly near the intended victim as that person is being murdered, this court believes that the Supreme Court has most consistently interpreted the meaning and intent of the statute to be that the (d)(7) grave risk aggravator applies to cases where there is some evidence that a third party was placed in grave risk of death during the murder of the intended victim due to that third party’s spatial and temporal proximity to the victim. Hence, our inquiry turns on the point in time at which the commission of the murder of Ms. Crowley started and ended. “A first-degree murder commences when the defendant possesses the specific intent to kill, takes some affirmative act to bring about the death of the victim, and the actions of the defendant eventually result in the death of the victim.” Commonwealth v. Drumheller, 570 Pa. 117, 146, 808 A.2d 893, 910 (2002).

In the instant case, the Commonwealth has made the following three acknowledgments relative to the commission of the murder: (1) the victim, Karen Crowley, died from the multiple stab wounds to her chest; (2) defendant could not have believed Ms. Crowley was alive after the stabbings that he inflicted upon her; and (3) defendant’s attempt to set a fire inside the apartment of the victim was intended “to conceal his crime” of murder. (See Commonwealth’s memorandum of law in opposition to defendant’s motion for reconsideration at 4 and 5.) Given this posture of the case, we must conclude that the activity that arguably endangered other persons occurred only after the commission of the murder.

In light of the Commonwealth’s acknowledgments and the decisional case law set forth above, we are loathe to employ a more expansive view of the (d)(7) aggravator that looks beyond the actual commission of the murder to the entire criminal episode that includes the murder. For even though there may be other offenses that “are logically and temporally related and share common issues of law and fact” and “are part of a single criminal episode,” these offenses cannot support grave risk unless they are part of the murder itself. Commonwealth v. Watson, 523 Pa. 51, 72, 565 A.2d 132, 142-43 (1989) (Zappala, J., concurring and dissenting) (wherein the court distinguishes 42 Pa.C.S. §9711(d)(7) from other statutes, where the focus may be on a criminal “episode”).

In the instant case, the Commonwealth has failed to present any evidence to support its theory that defendant’s fatal stabbing of Ms. Crowley within her apartment placed her neighbors in grave risk of death at the time of Ms. Crowley’s murder. To be sure, the neighbors were put in danger later, when defendant intentionally acted to set the apartment on fire in a desperate attempt to conceal his crime. However, this arson simply did not occur “in the commission of the offense,” i.e., during Ms. Crowley’s murder. The grave risk of harm to persons other than the intended victim was substantially removed in time from the commission of the murder.

III. CONCLUSION

For the reasons set forth above, defendant’s motion to quash notice of the aggravating circumstance at 42 Pa.C.S. §9711(d)(7) will be granted.

Accordingly, we enter the following:

ORDER

And now, May 21,2008, upon consideration of defendant Pedro Fuentes-Flores’ motion for reconsideration of this court’s order denying in part defendant’s motion to quash notice of the aggravating circumstance at 42 Pa.C.S. §9711 (d)(7), the briefs filed by the parties, and oral argument of counsel, it is hereby ordered that said motion is granted and the notice of aggravating circumstance will be quashed.

      . The facts are gleaned from a review of the criminal record in this case, as well as the briefs of the parties.

      . Section 9711 of the Judicial Code provides in relevant part:

        “(d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following:...

        “(6) The defendant committed a killing while in the perpetration of a felony.
      “(7) In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.” 42 Pa.C.S. §§9711(d)(6) and (7).

      . The Commonwealth conceded that Pennsylvania case law has never defined the language “in perpetration of” found in section 9711 (d) (6) to include activity that occurs following the killing. It further acknowledged that Pennsylvania’s death penalty statute is to be strictly construed. See Commonwealth v. Stallworth, 566 Pa. 349, 373, 781 A.2d 110, 124 (2001) (“[I]n the context of a statute defining a category of persons against whom it is permissible to impose a sentence of death, such strict construction should militate in favor of the least inclusive interpretation.” (citing Zant v. Stephens, 462 U.S. 862, 877 (1983) (stating that aggravating factors must “genuinely narrow the class of death-eligible persons” in a way that reasonably “justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder”))). Accordingly, given the fact that the Commonwealth conceded that the felony followed the killing, it was not “in perpetration of’ the killing and this aggravator is not applicable in the instant case.

      . In Stokes, three persons were murdered; two died when the defendant opened the walk-in refrigerator where he had confined four people, firing into the group, killing two persons, and wounding two others; the third victim was shot while alone in a different room. The application of the (d)(7) aggravating circumstance was upheld in relation to the victims within the refrigerator; but vacated as to the third victim, as no other persons were within the zone of danger at the time he was shot.

      . During the trial in this matter, the prosecutor argued that, in addition to the danger posed to the surrounding neighbors, the defendant knowingly created a grave risk of death to one or both of the victims when he set the fire because he did not know for sure that either of the victims was dead from the stabbings he had inflicted on them. The defendant argued in a later post-conviction collateral relief proceeding that this argument was improper because the medical examiner testified that both of the victims were dead before the fire started. The Commonwealth responded that the prosecutor was focusing on the defendant’s state of mind at the time he set the fire, not on whether the victims were in fact dead. The Supreme Court found that, based upon the record evidence, this argument by the prosecutor was not objectionable. See Commonwealth v. Hardcastle, 549 Pa. 450, 462, 701 A.2d 541, 547 (1997).

      . Defendant gave a statement to the police shortly after the murder in this case in which he commented on his state of mind at the time he committed the offense of arson:
      “[Question] What happened after you stabbed her?
      “[Answer] I wanted to set the apartment on fire.
      “[Question] Did you try to help Karen after you stabbed her?
      “[Answer] Yes.
      “[Question] What did you do?
      “[Answer] I took the knife out.
      “[Question] What else?
      “[Answer] She was already dead then.” (See defendant’s motion to quash aggravating circumstances and bar imposition of a sentence of death at ¶12.)

      . These acknowledgments by the Commonwealth distinguish this case from Commonwealth v. Solano, 588 Pa. 716, 906 A.2d 1180 (2006). Solano addressed a shooting situation in which the defendant fired several shots at the victim. The shooting happened in a park. The defendant then got closer and fired several more shots into the victim. At that point, the defendant fled. In the process of fleeing, the defendant turned around and fired several more shots toward the crowded park. The (d)(7) aggravator was based on the action of turning around and firing additional shots into an area that was occupied by numerous other people.
      The Commonwealth suggests from these facts that the Solano murder victim was dead at the time that the fleeing defendant fired additional shots into the crowded park. However, there is no reference in the Solano opinion as to whether the victim was dead at the time the defendant engaged in the activity that endangered others. There is no discussion of whether those shots fired by the fleeing defendant occurred before or after the actual death of the victim. In the instant action, the Commonwealth has acknowledged that the victim died from the stab wounds to her chest, that the defendant could not have believed that the victim was still alive when he attempted to set her on fire, and, in fact, that the actions taken by the defendant were an attempt to conceal the murder, rather than complete it.