author: LASH, J,

text:
    Thomas v. Galgon

      Gregory L. Schell, for plaintiff.

      Frank G. Procyk, for defendant.
    August 25, 2009
   LASH, J,

The matter before this court is the motion of defendant, Edward J. Galgón Jr., for summary judgment. Defendant contends that the within action is barred by the exclusivity provisions of the Pennsylvania Workers’ Compensation Statute. For reasons set forth herein, summary judgment is granted.

According to the complaint filed by plaintiff, Jacqueline Thomas, plaintiff suffered injuries on February 25, 2004, when she was attacked and bitten by a dog owned by defendant. Plaintiff further alleges that the dog was known to exhibit aggressive behavior and that defendant knew or should have known that the dog was of a “dangerous and vicious nature . . . predisposed to attacking human beings.” She also alleges that defendant had failed to properly keep the dog firmly secured by means of a collar or confined sufficiently to prevent the dog from having access to third parties.

The incident occurred on the second floor of a three-story structure owned by defendant. The first two stories were leased by Galgón Inc., a business which operated a restaurant known as “Cab Frye’s Tavern,” which was located on the first floor. Galgón Inc. utilized the second floor for office, storage, and a bed and breakfast. Defendant resided on the third floor.

Defendant was the president of Galgón Inc., and was an employee of the corporation. Plaintiff was also an employee of the corporation and was present on the premises performing job-related duties when the incident occurred.

The dog was the personal property and a pet of defendant. Plaintiff had previous encounters with the dog, with the interaction always being friendly. On the day in question, plaintiff was present on the second floor of the premises doing office work while the dog set nearby. When the dog approached her, she reached out to pet it, then the attack took place. Defendant was present on the first floor restaurant area at the time of the incident and heard plaintiff’s screams, then responded.

In Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001), the Supreme Court restated the standard for granting summary judgment:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which ‘an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ Pa.R.C.P. 1035.2(2). We review 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. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992).”

As stated, defendant argues that plaintiff is barred by the Act from obtaining a judgment against defendant. The applicable provision is section 303 of the Act, 77 P.S. §481, which sets forth:

“(a) The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin, or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c) (1) and (2) or occupational disease as defined in section 108.
“(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request, shall not be liable to a third party for damages, contribution or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.”

Under these provisions, where an employee’s injury is compensable under the Act, the compensation provided by the Act is the employee’s exclusive remedy against an employer and also immunizes his or her fellow employees from liability. Hykes v. Hughes, 835 A.2d 382, 384 (Pa. Super. 2003). Thus, if plaintiff’s injuries are compensable under the Act, she is precluded from bringing suit against defendant.

An injury is compensable under the Act when the injury arose “in the course of employment” and is related to that employment. In Camiolo v. W.C.A.B. (American Bank Notes), 722 A.2d 1173, 1174 (Pa. Commw. 1999), the Commonwealth Court, construing section 301 ofthe Act, 77 P.S. §411, sets forth:

“As stated by our Supreme Court ‘ [a] straight forward reading of the Act demonstrates there are only two requirements for compensability — (1) that the injury arose in the course of employment and (2) that the injury was related to that employment.’ ‘Injuries may be incurred in the course of employment in two distinct situations: (1) where the employee, whether on or off the premises, is injured while actually engaged in the furtherance of the employer’s business or affairs, or (2) where the employee although not actually engaged in the furtherance ofthe ofthe [sic] employer’s business or affairs (a) is on the premises occupied or under the control of the employer, or upon which the employer’s business or affairs are being carried on; (b) is required by the nature of his employment to be present on his employer’s premises; and (c) sustains injuries caused by the condition of premises or by operation of the employer’s business or affairs thereon.’ W.C.A.B. (Slaugenhaupt) v. United States Steel Corp., 31 Pa. Commw. 329, 333, 376 A.2d 271, 273 (1977).”

Accordingly, whether plaintiff was actually engaged in her office duties at the time of the attack or took a break from her duties to pet the dog, her injuries are compensable because they arose in the course of employment. She was present on her employer’s property and was required to be there for her employment. The injuries sustained were caused by the dog, who was present on the employer’s premises due to the actions of a co-employee, a condition of the premises.

We also note that there is no requirement that the negligent acts complained of be acts directly involving employment duties. The Act provides compensation for “all co-employees in all situations where negligent conduct of one employe may cause injury to a fellow employe, provided only that the injury in question is one that is compensable under the Act.” Albright v. Fagan, 448 Pa. Super. 395, 402, 671 A.2d 760, 763 (1996), citing Apple v. Reichert, 443 Pa. 289, 294, 278 A.2d 482, 485 (1971). For example, there is ample case law providing compensation under the Act for injuries stemming from extracurricular actions of a co-employee such as engaging in horseplay. Edwards v. W.C.A.B. (Value-Plus Inc.), 894 A.2d 856 (Pa. Commw. 2006); General Electric Company v. W.C.A.B. (Williams), 50 Pa. Commw. 45, 412 A.2d 196 (1980).

In Hall v. Carnegie Institute of Technology, 170 Pa. Super. 459, 87 A.2d 87 (1952), a college storeroom clerk died as a result of a self-inflicted gunshot wound after being misled by a co-employee that the gun was not loaded. The incident occurred during the course of a discussion between the decedent and a professor about supplies for the professor’s lab. During the discussion, a special police officer employed by the college was present in the professor’s office. The officer was showing the gun to the professor, who was reluctant to handle it. The officer advised the professor that the gun was empty and showed him a handful of bullets from the gun. The decedent took the gun from the officer, placed it to his head, and pulled the trigger, causing his fatal injury. The Superior Court found that the decedent died from injuries suffered in the course of his employment.

In City of New Castle v. W.C.A.B. (Sallie), 118 Pa. Commw. 51, 546 A.2d 132 (1988), the plaintiff’s decedent died from a disease which was contracted from kissing a co-employee. Likewise, the Commonwealth Court determined that the claim was compensable under the Act, stating that the disease arose in the course of employment and was related thereto.

Plaintiff was an employee of Galgón Inc., present on the premises and engaged in office duties when she suffered her injuries. Her claim is that her injuries were caused by the negligence of a co-employee. Galgón Inc. was required to provide a safe workplace for plaintiff and failed to do so by allowing the dog to be present without sufficient safeguards. As such, the injuries were suffered during the course of her employment. The fact that the dog was the personal property of defendant, not owned by the business, and not present on the business premises for any business-related purpose, is not a basis for denying plaintiff compensation under the Act. As her injuries would be compensable, the exclusivity provisions apply and she cannot, therefore, sue defendant for damages.

We enter the following order:

ORDER

And now, August 25,2009, upon consideration of the motion of defendant, Edward J. Galgón Jr., for summary judgment, response thereto, and upon review of the file, summary judgment is granted. Judgment is entered in favor of defendant, Edward J. Galgón Jr., and against the plaintiff, Jacqueline Thomas.

      . 77P.S. §481.

      . Paragraph 6 of plaintiff’s complaint.

      . There is an exception under section 301 when the employee is injured from an attack by a co-employee for personal reasons. The “personal animus” exception to the exclusivity provision is inapplicable under the facts in this case.


source: Caselaw Access Project

author: KISTLER, J.,

license: Public Domain

text:
    Ensor v. Slaybaugh

      Brian K. Marshall, for plaintiff.

      Jeffrey B. Rettig and Andrew P. Dollman, for defendant.
    August 20, 2009
   KISTLER, J.,

Presently before this court is a motion for summary judgment brought by Donald R. Staybaugh Jr., defendant. Briefs were submitted to this court in compliance with its order June 10, 2009. A hearing was held on August 17, 2009. After review of the record, parties’ briefs and hearing arguments on the matter, defendants’ motion for summary judgment is hereby granted.

PROCEDURAL AND FACTUAL BACKGROUND

Dawnell L. Ensor, plaintiff, commenced this action by filing a writ of summons on February 13,2008. Plaintiff then filed a complaint on May 14,2008, naming Donald R. Slaybaugh Jr. and Dorothy J. Engleman as defendants. Defendant Engleman filed preliminary objections on June 19,2008. Subsequently, plaintiff filed an amended complaint naming Donald R. Slaybaugh and Dorothy J. Engleman as defendants on August 1, 2008.

Litigation has proceeded through discovery and both plaintiff and defendant Engleman were deposed on March 27,2009. Additionally, the parties have exchanged interrogatories and requests for production of documents. On June 10, 2009, defendant filed a motion for summary judgment. At the hearing on this motion the following facts were discussed and agreed to by both the parties present.

Plaintiff was waiting for oncoming traffic to clear so that she could make a left-hand turn. Defendant, driving a Pontiac Grand Prix, had come to a complete stop behind her vehicle. Plaintiff was unable to see the grill or headlights of defendant’s car and therefore believed that defendant was stopped very close to her car. Plaintiff and defendant remained stopped in this position for approximately one minute. As plaintiff was preparing to make the turn, defendant Engleman impacted the rear of the vehicle driven by defendant. This caused defendant’s car to strike the rear of plaintiff’s car causing what is known as a telescopic collision.

DISCUSSION

“Pursuant to Pa.R.C.P. 1035.2(2), a trial court shall enter judgment if, after the completion of discovery, an adverse party who will bear the burden of proof at trial fails 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.’” Cochrane v. Kopko, 975 A.2d 1203 (Pa. Commw. 2009). In order to establish a cause of action against defendant, plaintiff must show that defendant owed a duty to the plaintiff, the defendant breached that duty and that plaintiff’s injuries were caused by the defendant’s breach. McCandless v. Edwards, 908 A.2d 900 (Pa. Super. 2006). “In making this assessment, we 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.” Id. (citing Payne v. Commonwealth Department of Corrections, 582 Pa. 375, 383, 871 A.2d 795, 800 (2005)).

Defendant argues plaintiff has failed to adduce any evidence of defendant breaching any duty owed to the plaintiff or causation as to any injuries that the plaintiff allegedly suffered. Defendant relies on plaintiff’s affidavit which states that defendant’s vehicle was stopped behind plaintiff’s vehicle for approximately one minute before she felt defendant’s car strike the rear of her car. Plaintiff asserts that defendant had a duty to stop his car far enough back from plaintiff’s car such that if someone collided with the rear of his car, his car would not then strike the rear of plaintiff’s car. For purposes of this motion, the court will accept as true that defendant was not stopped at a sufficient distance away from plaintiff’s car to prevent a telescopic collision from occurring. Therefore, the only issue is whether a reasonable person, stopped behind another stopped motorist, has a duty to that forward motorist to maintain a sufficient distance such that if his vehicle was struck from behind, his vehicle would not then collide with the vehicle driven by the forward motorist.

In support of imposing such a duty, plaintiff argues that the reasoning and holding in Toff v. Rohde, 208 Pa. Super. 411, 222 A.2d 434 (1966), should be applied to the case at bar. This court does not agree. In Toff, the plaintiff was driving on the expressway when he suddenly saw a line of cars stopped in the road. Plaintiff applied the brakes and came to a sudden stop behind the car in front of him. As a result of plaintiff’s sudden stop, defendant struck the rear of plaintiff’s vehicle, causing plaintiff to collide with the car in front of him. The defendant in that case, the last car in a three-car accident, was denied a contributory negligence charge relating to the plaintiff, the middle car. The Toff court held that the defendant, the last car in the collision, was entitled to a contributory negligence charge.

In making this decision, the Toff court adopts a duty of care discussed in a factually similar Kentucky appellate case. The Toff court adopted the premise that, “A motorist in the midst of a line of rapidly moving vehicles owes an analogous duty to the car following.” Toff v. Rohde, 208 Pa. Super. 411, 414, 222 A.2d 434, 436 (1966) (citing Ellis v. McCubbins, 312 Ky. 837, 229 S.W.2d 992 (1950)). “The realities of modern expressway travel require no less. He must proceed at a reasonably safe distance behind the vehicle ahead of him, that is, a distance which will permit him under the circumstances to avoid a sudden and abrupt stop and a telescopic collision in the rear.” Id.

This court, however, agrees with the defendant that the Toff decision does not apply to the case at bar. The principal difference is that the cars in Toff were in motion and the plaintiff, traveling at highway speeds came to an abrupt stop, which prevented the car behind him from having sufficient time to come to a safe stop. In the instant case, the facts are clearly distinguishable as the record shows that the vehicles were stopped for a full minute before the crash occurred. This is a paramount distinction because the duty determined by the Superior Court applies only to “a line of rapidly moving vehicles.” This court is unwilling to extend the rationale of Toff to vehieles which are at rest. Finally, Toff only addresses the duty the middle driver owed to the car that rear-ended him. In the instant case, the issue is what duty the middle driver owes the driver in front of him, not what duty the middle driver owes to the driver of the vehicle behind him. For these reasons, the court rejects defendant’s argument that the Toff court’s decision is controlling in this case.

Plaintiff’s remaining argument centers on the general duty of care, that of a reasonable person to protect against any reasonably foreseeable harms which may result from his actions. At the hearing on this issue, the parties had a spirited argument regarding whether the occurrence of the third car colliding into the second car was foreseeable. In Pennsylvania, as well as a majority of the other states, the duty owed to a stranger is limited only to those risks which are reasonably foreseeable under the circumstances of the case. Plaintiff argued that the crash of the last vehicle with that of the middle vehicle was foreseeable and therefore plaintiff had a duty to stop his vehicle far enough back from the first vehicle to prevent a telescopic collision from occurring. In support of his argument, plaintiff’s attorney invoked the landmark decision, Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928). Plaintiff’s attorney compared the facts of Palsgraf with that of the facts of the instant case and concluded that if the court in Palsgraf could find the chain of events foreseeable, so too could this court. While plaintiff’s attorney was correct in his recitation of the facts of Palsgraf he was incorrect in his recollection of the holding of the majority, written by Justice Cardozo, which determined that the risk of harm to Mrs. Palsgraf was not foreseeable and therefore no duty of care was owed to her.

“The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ‘Proof of negligence in the air, so to speak, will not do’” Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928).

Perhaps plaintiff’s attorney was referring to Judge Andrew’s dissent in Palsgraf. Indeed, tort law today would be remarkably different had Justice Cardozo not won the day. However, the law today follows the wisdom of Justice Cardozo and thus this court must apply the following rationale to the instant case:

“Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.” Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928).

In the case at bar, it is agreed by the parties that plaintiff and defendant’s vehicles were stopped on a flat road for a period of approximately one minute. For purposes of this summary judgment motion, the court accepts as true that defendant’s car was very close to plaintiff’s car. However, defendant committed no wrong by bringing his car to a stop immediately behind plaintiff’s car. Unlike in Toff, there was no vehicle traveling behind defendant’s car when he brought it to a stop. Defendant’s action certainly does not possess “possibilities of danger so many and apparent” to entitle plaintiff protection and recovery under the laws of this Commonwealth. For these reasons, defendant’s motion for summary judgment is hereby granted.

ORDER

And now, August 20, 2009, defendant’s motion for summary judgment is hereby granted.

      . A man carrying a package jumped aboard a car of a moving train and, seeming unsteady as if about to fall, a guard on the car reached forward to help him in, and another guard on the platform pushed him from behind, during which the package was dislodged and falling upon the rails exploded. The concussion caused scales to fall causing injuries to plaintiff, an intending passenger, who stood on the platform many feet away.

      . The court finds plaintiff’s “driver’s education” argument unconvincing.


author: LUDGATE, J,

text:
    Commonwealth v. Tsopanis-Sellari

      Jason C. Glessner, assistant district attorney, for Commonwealth.

      Eric Winter, for defendant.
    September 22, 2009
   LUDGATE, J,

This is a timely appeal filed by Nikos Tsopanis-Sellari (defendant) to challenge this court’s denial of the defendant’s pretrial motion to suppress physical evidence and imposition of mandatory minimum sentence pursuant to 42 Pa.C.S. §9712.1. The court adopts and incorporates its findings of fact and conclusions of law dated March 18,2009 into this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On December 3, 2008, the defendant was charged in a bill of information with Count 1, possession of a controlled substance with intent to distribute (marijuana), 35 P.S. 780-113(a)(30), Count 2, possession of a controlled substance (marijuana), 35 P.S. 780-113(a)(16), Count 3, possession of drug paraphernalia, 35 P.S. 780-113(a)(32) and Count 4, prohibited weapons offense, 18 Pa.C.S. §908(a).

A hearing was held before this court on February 9, 2009 on the defendant’s omnibus pretrial motion, in which the defendant sought to suppress physical evidence, suppress statements and a writ of habeas corpus as to all counts.

On March 18, 2009, this court issued findings of fact and conclusions of law and order, denying the defendant’s motion for suppression of physical evidence, motion for suppression of statements and motion for pretrial writ of habeas corpus. That document has been incorporated into this opinion.

On June 11, 2009, a stipulated bench trial was held before this court and the defendant was found guilty of all counts. On July 24, 2009, the court sentenced the defendant to the five-year mandatory sentence for Count 1, possession with intent to deliver marijuana, 35 P.S. 780-113(a)(30), in addition to five years state parole for Count 4, prohibited weapons offense, 18Pa.C.S. §908(a), and 12 months state parole for Count 3, possession of drug paraphernalia, 35 P.S. 780-113(a)(32). The defendant, through counsel, filed a timely notice of appeal on August 24,2009 and concise statement on September 2, 2009.

II. ISSUES RAISED BY THE DEFENDANT

The defendant, through counsel, raises the following issues for review on appeal:

“(1) Whether this court erred in denying the defendant’s motion to suppress the seized marijuana, sawed-off shotgun, his statements and the fruit thereof because:
“(a) The probation officers could not legally detain, subject the defendant to an investigative detention or threaten the defendant with a search as he was only on ARD and therefore not subject to their authority.
“(b) The probation officers lacked the reasonable suspicion and/or probable cause necessary to make such a detention, seizure or to threaten a search.
“(c) The statements to the probation officers and the disclosure of the marijuana and sawed-off shotgun were not consensual as the defendant was under duress at the time and his consent was not knowing, intelligent and voluntary as the probation officers had falsely represented their authority.
“(d) Defendant’s statements in the kitchen and the fruits thereof were unlawfully obtained as the defendant was handcuffed in custodial detention and had not been informed of his Miranda rights prior to questioning.
“(2) Whether this court erred in imposing the mandatory sentence under 42 Pa.C.S. §9712.1 because:
“(a) The mandatory language is unconstitutionally vague as it fails to provide a precise definition of the term ‘close proximity.’
“(b) The mandatory should not have been imposed as the Commonwealth failed to prove the sawed-off shotgun was in ‘close proximity’ to the marijuana.
“(c) The mandatory should not be imposed as it is constitutionally overbroad in that it criminalizes possession of weapons that are otherwise lawfully possessed in violation of the United States and Pennsylvania Constitutions.
“(d) Considering the nature of the defendant’s cystic fibrosis, imposition of the mandatory constitutes cruel and unusual punishment in violation of the United States and Pennsylvania Constitutions.
“(e) Imposing the mandatory sentence in this instance is in violation of United States and Pennsylvania Constitutions in that the mandatory sentence is grossly disproportionate to the crime that was committed and the punishment for similar crimes. In particular, the mandatory calls for a sentence 15 times greater than the aggravated range of the Pennsylvania sentence guidelines.
“(f) The mandatory should not have been imposed as the Commonwealth failed to prove that the sawed-off shotgun was a ‘firearm’ for the purposes of the mandatory statute.”

III. ANALYSIS

(1) Discovery of the Marijuana and Shotgun

(a) Authority of Probation Officers

The defendant asked this court to suppress evidence based on alleged lack of authority of the probation officers over individuals on ARD. This argument is based on 61 RS. §331.27b, which provides:

“(a) County probation and parole officers are in a supervisory relationship with their offenders. The purpose of this supervision is to assist the offenders in their rehabilitation and reassimilation into the community and to protect the public.
“(b) County probation and parole officers and, where they are responsible for the supervision of county offenders, state parole agents are authorized to search the person and property of county offenders in accordance with the provisions of this section. County probation officers are authorized to search, in accordance with the provisions of this section, the person and property of any offender who accepts Accelerated Rehabilitative Disposition (ARD) as a result of a charge of a violation of 18 Pa.C.S. ch. 31 (relating to sexual offenses) if the court has determined that the offender shall be subject to personal and property searches as a condition of the offender’s participation in the ARD program. The court shall notify each offender so offered ARD, prior to admission to an ARD program, that the offender shall be subject to searches in accordance with this section. Nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the United States or Section 8 of Article I of the Constitution of Pennsylvania.
“(c) No violation of this section shall constitute an independent ground for suppression of evidence in any probation and parole or criminal proceeding.
“(d)
“(1) A personal search of an offender may be conducted by any officer:
“(i) if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision;
“(ii) when an offender is transported or taken into custody; or
“(iii) upon an offender entering or leaving the securing enclosure of a correctional institution, jail or detention facility.
“(2) A property search may be conducted by any officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.
“(6) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with such case law, the following factors, where applicable, may be taken into account:
“(i) The observations of officers.
“(ii) Information provided by others.
“(iii) The activities of the offender.
“(iv) Information provided by the offender.
“(v) The experience of the officers with the offender.
“(vi) The experience of officers in similar circumstances.
“(vii) The prior criminal and supervisory history of the offender.
“(viii) The need to verify compliance with the conditions of supervision....
“(g) As used in this section, the following words and phrases shall have the meanings given to them in this subsection:...
“ ‘ Offender. ’ Any person released on county probation, intermediate punishment or county parole. The term shall not include any person serving a period of probation pursuant to Accelerated Rehabilitative Disposition, except as authorized under subsection (b) (persons on ARD for sexual offenses).”

Probation officers are empowered by the statute to exercise authority over individuals on probation or parole; the statute specifically excludes individuals on ARD from being subject to this authority. The defendant asserts that this statute does not grant the probation officers authority over him. However, in the facts particular to this case, the probation officers were granted authority by Pa.R.Crim.P. 316, the court of common pleas order dated March 17, 2008 and the defendant’s agreement to ARD conditions on the same day. (N.T., pretrial hearing 2/9/09, pp. 61-62, 68.)

Pennsylvania Rule of Criminal Procedure 316 provides:

“Conditions on the program:
“(A) The conditions of the program may be such as may be imposed with respect to probation after conviction of a crime, except that a fine may not be imposed. In addition, the conditions of the program may include the imposition of costs, the imposition of a reasonable charge relating to the expense of administering the program, and such other conditions as may be agreed to by the parties....”

Under this rule, the court may impose probation conditions on a defendant placed on ARD. That which is a permissible probation condition is also permissible for the person on ARD (other than a fine).

The court of common pleas had authority to issue an order placing a defendant on ARD and authorizing the probation office to determine the specific conditions of the ARD program and board authority to modify the conditions. Commonwealth v. Lebo, 713 A.2d 1158, 1161 (Pa. Super. 1998), appeal denied, 558 Pa. 617, 737 A.2d 741 (1999). The imposition of ARD conditions on a defendant by a county probation office is permissible, even when new conditions are imposed after admission to the ARD program. Id. When the court order placing a defendant on probation or parole does not authorize the county probation/parole office to impose additional conditions, violation of conditions imposed by that officer is not a basis upon which to revoke probation/parole. Commonwealth v. MacGregor, 912 A.2d 315 (Pa. Super. 2006).

Specifically, on March 17, 2008, the judge in the aforementioned case placed the defendant on ARD and ordered, in relevant part:

“(4) You shall submit to urine surveillance and other testing and pay such costs of testing as directed.
“(5) Participate in such special treatment program(s), including any in-patient treatment, as directed by the Berks County Adult Probation Office and pay such costs for said treatment programs as directed....
“(7) You shall not violate any penal law in Pennsylvania or in any other jurisdiction.
“(8) You shall comply with such additional conditions as may be imposed by the Berks County Adult Probation Office.” (N.T. 2/9/09 pp. 61-62; Commonwealth’s exhibit 1.)

Pursuant to subsection (8) of the court order placing the defendant on ARD, the defendant signed a form entitled “Conditions Governing Probation & Parole” which was signed by the defendant on March 17, 2008, acknowledging he read, understood and agreed to follow the conditions. This document provides, in relevant part:

“(7) I acknowledge that the probation office has the authority to conduct a search of my person, home, or vehicle without a search warrant. I will notify all person [sic] in my residence that the probation office has that authority to conduct a warrantless search.
“(8) I will comply with the following special conditions: ...
“(d) I will comply with urine testing as directed by the Berks County Adult Probation and Parole Office. I understand that a positive urine and/or missed appointments may result in violation of my probation....
“ARD cases only:
“(13) If you are admitted into the Accelerated Rehabilitation Disposition Program (ARD) and fail to comply with the conditions governing ARD probation including payment of costs and restitution, you are subject to removal from the ARD program and your case may be returned to the criminal trial list for prosecution.” (N.T. 2/9/09 pp. 68-69; Commonwealth’s exhibit 3.)

Based on Lebo, the court ruled the ARD conditions were validly imposed by court order and corresponding conditions imposed by the probation office. MacGregor is inapplicable because the court order did authorize the additional conditions imposed by the Berks County Adult Probation Office. The probation officers possessed authority pursuant to these conditions.

(b) Reasonable Suspicion and “Duress”

Even when probation conditions allowing for warrant-less searches of a defendant are agreed to by a defendant, probation officers cannot search a probationer at any time for any reason. Interpreting 61 P.S. §331.27b(d)(l)(i), the Superior Court has said “a personal search of an offender may be conducted by any officer... if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision.” Commonwealth v. Moore, 805 A.2d 616, 620 (Pa. Super. 2002); see also, Commonwealth v. Hunter, 963 A.2d 545 (Pa. Super. 2008); Scott v. Pennsylvania Board of Probation and Parole, 548 Pa. 418, 427-28, 698 A.2d 32 (1997), rev’d on other grounds, 524 U.S. 357 (1998); United States v. Baker, 221 F.3d 438 (3d Cir. 2000). Accordingly, “a parolee and a probationer have limited Fourth Amendment rights because of a diminished expectation of privacy . . . the requirement that a parole [or probation] officer obtain a warrant based on probable cause before conducting a search does not apply.” Moore, 805 A.2d at 620 (citing Commonwealth v. Williams, 547 Pa. 577, 584, 692 A.2d 1031, 1035 (1997). Essentially, the probationer/parolee agrees to endure warrantless searches based only on reasonable suspicion (rather than probable cause) in exchange for their early release from prison. Commonwealth v. Curry, 900 A.2d 390, 394 (Pa. Super. 2006).

In Commonwealth v. Scott, 916 A.2d 695 (Pa. Super. 2007), the defendant was visiting the home of his uncle, who was on probation at the time. Probation officers told the defendant to stop and stated they had the right to search his backpack. This claim prompted the defendant to hand the officers his backpack. Officers opened the backpack upon the return of the uncle to discover marijuana and scales. The trial court granted suppression, finding the officer’s claim of authority was false as the officer only possessed authority to search the uncle; the Superior Court affirmed.

Reasonable suspicion in the context of a search of a probationer, parolee or person on ARD (subject to probation conditions by consent) is governed by 61 P.S. §331.27b(d)(6), stated above. In this case, the probation officers needed to verify the compliance with the conditions of the defendant’s ARD supervision, namely that he was actually living at the address and was not in possession of contraband. Both probation officers observed the defendant’s nervous and evasive behavior of pacing throughout the kitchen, not acknowledging the officers and not making eye contact. His suspicious conduct continued after entry into the defendant’s bedroom, where he sat with his head down looking at the floor, his hands between his legs and still refusing to make eye contact with the officers. A.P.O. Starr, an experienced officer, found this behavior peculiar for someone on ARD supervision.

Based on the applicable factors and case law, the court concluded no search occurred; A.P.O. Starr accurately indicated his authority as stated in the ARD conditions, signed by the defendant. Because A.P.O. Starr possessed reasonable suspicion, his claim of authority to search the room was valid; the defendant was not under duress.

(c) Miranda — Custodial Interrogation

The defendant requested this court suppress his statements because the statements were made during custodial interrogation without the benefit of Miranda warnings. This argument is flawed because the defendant’s statement was not the product of custodial interrogation. The handcuffing was done for purposes of officer safety. A.P.O. Starr’s question regarding anything else the officers should know about was not reasonably likely to elicit an incriminating response. See Commonwealth v. Clinton, 905 A.2d 1026 (Pa. Super. 2006) (finding an officer’s question regarding “anything else he should be aware of” during a traffic stop would not normally be interpreted as an invitation for a criminal to confess his crimes and was a minimally intrusive means of protecting the safety of the officer). Immediately upon securing the scene, the probation officers ceased questioning and referred the matter to township police and county detectives, who proceeded to obtain a search warrant.

Assuming for the sake of argument that the defendant was subject to custodial interrogation, suppression of the sawed-off shotgun is not the remedy in this case. See Commonwealth v. Hoffman, 403 Pa. Super. 530, 541, 589 A.2d 737, 743 (1991) (“If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . .. then the deterrence rationale [of suppression] has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.”); Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. 2002). The shotgun would have inevitably been found upon execution of the search warrant, which permitted search of the defendant’s bedroom. The shotgun was hidden under a couch cushion in the defendant’s bedroom.

(2) The Mandatory Minimum Sentence

42 Pa.C.S. §9712.1(a) provides:

“Mandatory sentence.- — Any person who is convicted of a violation of section 13(a)(30) of the Act of April 14, 1972 (P.L. 233, no. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person’s accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person’s accomplice or within the actor’s or accomplice’s reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.”

(a) Constitutionality of “Close Proximity”

The “void for vagueness” doctrine requires penal statutes to define criminal conduct with sufficient definiteness such that ordinary people can understand what conduct is prohibited and in such a manner to discourage arbitrary and discriminatory enforcement. Commonwealth v. Costa, 861 A.2d 358 (Pa. Super. 2004). When a defendant’s conduct is clearly prohibited by statute, that defendant cannot complain of the vagueness of the statute as applied to the conduct of others. Id.

As stated in greater detail in section III(2)(b) of this opinion, the defendant’s conduct was clearly within the mandatory minimum statute. Accordingly, the court declines to address hypothetical scenarios regarding the outer limits of “close proximity.”

(b) Proof of “Close Proximity”

Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008), provided an expansive definition of “close proximity”; the defendant need not be in physical possession or control of the weapon, nor must the firearm be “within reach.” Rather, Sanes ruled a firearm located in a closet approximately six to eight feet from a dresser where drugs were found was in “close proximity” for purposes of the mandatory minimum sentence. Id. at 376. Similarly, in Commonwealth v. Zortman, the Superior Court ruled that a gun found in a bedroom was in “close proximity” to drugs found in the kitchen of the same residence, 2009 WL 2142360 (Pa. Super. 2009).

In the instant case, the adult probation officers testified the defendant retrieved the bag of prepackaged marijuana from a dresser in his bedroom, and then later told the officers of a sawed-off shotgun under a cushion of a couch in the same bedroom. (N.T., 2/9/09 pp. 35-36.) Under Zortman and Sanes, the items were proven to be in close proximity.

(c) Overbreadth

The defendant avers that the mandatory minimum statute is unconstitutionally overbroad in that it penalizes otherwise lawful firearm possession, the right of gun possession being a protected right under the United States Constitution. District of Columbia v. Heller, 128 S.Ct. 2783 (U.S. 2008). Heller struck down a District of Columbia statute against possession of all handguns and requiring any other firearm lawfully possessed in the home to be rendered inoperable; Heller pronounced the Second Amendment is not violated by laws prohibiting the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings. Id. at 2816-17, 2821 -22. The list of permissible regulations on firearms provided by the Heller opinion was not intended to be exhaustive. Id. at 2817 n.26.

Contrary to counsel’s argument, the firearm in this case was not lawfully possessed but for the mandatory minimum. A sawed-off shotgun is a prohibited weapons offense. 18 Pa.C.S. §908(a). The issue is not ripe for review, as the overbreadth challenge is based solely upon hypothetical facts not present in the instant case, i.e., possession of a non-prohibited weapon in close proximity to controlled substances. See Van Doren v. Mazurkiewicz, 695 A.2d 967, 971 (Pa. Commw. 1997) (stating that “[t]he ripeness doctrine [is] premised on the notion that ‘judicial machinery should be conserved for problems which are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote.’”).

(d) Cruel and Unusual Punishment Due to Defendant’s Health

The defendant argues the sentence imposed is cruel and unusual punishment because, due to his cystic fibrosis, it may in fact be a life sentence. The contention is without merit. The incarceration of a physically infirm individual does not per se constitute cruel and unusual punishment. Commonwealth v. O’Neil, 393 Pa. Super. 111, 573 A.2d 1112 (1990). Concerning a defendant infected with the Human Immunodeficiency Virus (HIV), the Superior Court has said “[t]hat appellant may not live to see the end of his term of imprisonment does not, without more, make his sentence [of imprisonment] unconstitutional. We recognize the gravity of appellant’s situation, but cannot and will not make the sweeping pronouncement he seeks.” Id. at 116, 573 A.2d at 1115. Similar pronouncements have been made regarding other health conditions. See Commonwealth v. Carr, 375 Pa. Super. 168, 543 A.2d 1232 (1988) (defendant was elderly and mentally ill); Commonwealth v. Vosburg, 393 Pa. Super. 416, 574 A.2d 679 (1990) (defendant suffered mental retardation); Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980) (defendant was paraplegic).

(e) “Grossly Disproportionate” Sentence

The defendant further opposes imposition of the mandatory minimum sentence by claiming the sentence is constitutionally infirm due to a penalty which is disproportionate to the criminal conduct. However, “[a] punishment authorized by [statute] violates the proscription against cruel and unusual punishment only if it is so disproportionate to an offense as to offend evolving standards of decency or a balanced sense of justice.” Commonwealth v. Carr, 375 Pa. Super. 168, 175, 543 A.2d 1232, 1235 (1988). Fixing of prison terms for specific crimes involves a substantive judgment, properly within the province of the legislature, not the courts. Commonwealth v. Parker, 718 A.2d 1266 (Pa. Super. 1998). The guarantee against cruel punishment contained in the Pennsylvania Constitution provides no broader protections against cruel and unusual punishments than those afforded by the Eighth Amendment of the United States Constitution. Commonwealth v. Spells, 417 Pa. Super. 233, 612 A.2d 458 (1992).

Section 9712 recognizes the seriousness of felonies committed with firearms and encompasses a determination to protect the public from those armed with firearms, to deter violent crime and the illegal use of firearms and to vindicate the legislature’s interest in punishing those who commit serious crimes while armed with firearms. Commonwealth v. Wright, 508 Pa. 25, 40-41, 494 A.2d 354, 362 (1985). Accordingly, the five-year mandatory sentence is not disproportionate to the crime committed. Commonwealth v. Ehrsam, 355 Pa. Super. 40, 62, 512 A.2d 1199, 1210 (1986); Commonwealth v. Green, 406 Pa. Super. 120, 593 A.2d 899 (1991).

(f) Statutory Definition of “Firearm”

This contention is wholly meritless. See Commonwealth v. Zortman, 2009 WL 2142360 (Pa. Super. 2009) (holding a gun, while inoperable due to the absence of a firing pin, did constitute a firearm for purposes of section 9712.1, based upon the definition of “firearm” provided in 42 Pa.C.S. §9713). The Commonwealth need not prove operability of the weapon.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied.

      . On this date, the court allowed the defendant to remain on bail pending disposition of this appeal, in part due to the defendant’s health condition.

      . Although individuals on ARD for certain sexual offenses are included as offenders, this exception is inapplicable to this case.


author: LUNSFORD, J.,

text:
    Commonwealth v. McKown

      Carolyn Larrabee, for Commonwealth.

      Jason Dunkle, for defendant.
    October 21, 2009
   LUNSFORD, J.,

Presently before this court is defendant’s omnibus pretrial motion in the nature of a petition for writ of habeas corpus. For the following reasons, defendant’s petition for writ of habeas corpus is denied.

Preliminarily, this court reminds defendant of Centre County Local Rule 205.2(a)(3): papers and other documents filed with the court must be double-spaced, with the exception of long quotations.

BACKGROUND

Defendant was charged with carrying a firearm without a license under 18 Pa.C.S. §6106 and possession of firearm or other dangerous weapon in a court facility under 18 Pa.C.S. §913. As established on the record, through the testimony of Centre County Sheriff Denny Nau, defendant’s license to carry a firearm in Pennsylvania was revoked by Sheriff Nau. In a letter to defendant dated April 16, 2008, Sheriff Nau informed defendant that his license to carry a concealed weapon was revoked in connection with a citation for harassment, disorderly conduct and public drunkenness after defendant punched a student on the Penn State University Park Campus in State College, Centre County, Pennsylvania. At the time of the incident, defendant was asked by the officer if he had anything on his person that would hurt the officer. Defendant replied “no.” A subsequent search revealed he was carrying a loaded Kel-Tec 380. Rather than appeal the revocation properly to the Court of Common Pleas of Centre County pursuant to 18 Pa.C.S. §6109(i), defendant obtained a permit to carry a firearm in New Hampshire. On September 2, 2008, defendant proceeded to carry a concealed, loaded firearm into a magisterial district judge building in Centre County, Pennsylvania when he appeared in connection with the above-described incident.

At approximately 1 p.m. on September 2, 2008, the day of his court proceeding, defendant telephoned Magisterial District Judge Grine’s office and spoke with Jennifer Carlson. Tr. prelim, hrg. 9/10/2008, p. 6. He inquired whether lock boxes were available for him to check his firearm. Id. He was told that there were no lock boxes and that he should not bring a weapon into the building. Id. at 6-7. Approximately one hour after speaking with Ms. Carlson, she observed defendant run into the magisterial district judge building with a camera, take photo(s), and run back out. Id. at 7-8. Ms. Carlson believed that defendant took photo(s) of the posted weapons notice. Id. Defendant returned to the building and took additional photos inside the lobby area and appeared to be examining the area. Id. at 7-9. He also asked staff for a copy of the court schedule for that day. Id. at 9. The police were informed of the matter as it was deemed unusual. Id. at 17-18. About two hours later, defendant again appeared at the magisterial district judge building for his proceeding. Id. 10-11, 18. Defendant was approached by Officer Bradley when he walked inside the “lobby.” Id. at 23-24. The lobby area adjoins the courtroom. See id. at 11-12. Officer Bradley asked defendant if he was armed. Id. at 18. Defendant was initially unresponsive but then responded by asking the officer if he was “acting in the capacity of a check station” under 18 Pa.C.S. §913(e). Id. at 18-19, defendant’s omnibus pretrial motion, 11/17/2008, p. 2 unnumbered. Officer Bradley advised defendant that he needed to check for weapons and defendant surrendered his firearm. Id. at 19-20. Officer Bradley found the Kel-Tec 380 to be loaded including a bullet in the chamber. Id. at 20-21. Defendant then advised Officer Bradley that he had a valid New Hampshire permit in his vehicle. Id. at 21. Officer Bradley arrested defendant. Defendant’s omnibus pretrial motion, 11/17/2008, p. 2 unnumbered.

At all relevant times, defendant was, and remains, a resident of Centre County, Pennsylvania.

I. Carrying a Firearm Without a License Under 18Pa.C.S. §6106

Defendant argues the Commonwealth failed to establish a prima facie case for carrying a firearm without a license under 18 Pa.C.S. §6106 because Officer Bradley and Sheriff Nau failed to identify defendant at the preliminary hearing. Defendant did not raise the identification issue until filing his supplemental brief in support of petition for a writ of habeas corpus filed on October 2, 2009.

“The basic principles of law with respect to the purpose of a preliminary hearing are well established. The preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual’s right against an unlawful arrest and detention. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). At this hearing the Commonwealth bears the burden 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. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Pa.R.Crim.P. 141(d). It is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt. Commonwealth v. Rick, 244 Pa. Super. 33, 366 A.2d 302 (1976). In order to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983).” Commonwealth v. McBride, 528 Pa. 153, 157-58, 595 A.2d 589, 591 (1991).

Although Officer Bradley and Sheriff Denny Nau did not identify defendant in court, Jennifer Carlson did identify defendant in court. Ms. Carlson identified defendant as the individual who ran into the building with a camera and returned later that afternoon around 4 p.m. for his court proceeding. Officer Bradley built upon the earlier identification by Ms. Carlson by testifying that the individual who called earlier about bringing a gun came back at 4 p.m. for a proceeding scheduled with Magisterial District Judge Grine. Furthermore, defendant has previously admitted in his brief in support of his omnibus pretrial motion that he carried a weapon into the building. Omnibus pretrial motion, 11/17/2008, p. 2 unnumbered. This court determines that the Commonwealth established a prima facie case that the accused committed the offense. This court also agrees with the Commonwealth that the issue has been waived.

Section 6106(a) of the Firearms and Other Dangerous Articles statute generally provides that it is unlawful for any person to carry a firearm in any vehicle or on their person in a concealed manner without a valid and lawfully issued license. Section 6109 “Licenses” is the relevant section. Section 6109(a) provides a license to carry a firearm shall be for the purpose of carrying a firearm concealed on or about one’s person or in a vehicle throughout this Commonwealth. Section 6109(b) provides,

“Place of application — An individual who is 21 years of age or older may apply to a sheriff for a license to carry a firearm concealed on or about his person or in a vehicle within this Commonwealth. If the applicant is a resident of the Commonwealth, he shall make application with the sheriff of the county in which he resides or, if a resident of a city of the first class, with the chief of police of that city.” (emphasis added)

Defendant relies on the exception at 6106(b)(l 5), which provides that subsection 6106(a) regarding the necessity of having a license to carry a concealed firearm does not apply to any person who possesses a valid and lawfully issued license or permit to carry a firearm issued under the laws of another state. Defendant argues that he had a valid “permit” to carry a firearm issued by New Hampshire. Defendant further argues Pennsylvania has a reciprocity agreement with New Hampshire which provides for mutual recognition of a license to carry a firearm issued by the other state. Defendant does not dispute that he was at all relevant times and remains a resident of Centre County.

Although defendant attempts to create confusion regarding the use of the word “may” in the first sentence of section 6109(b), it is quite clear the statute means to provide at what age an individual is permitted to apply for a license. Under the second sentence in section 6109(b), a resident of the Commonwealth must apply to the sheriff in the county he resides or, if a resident of a city of the first class, with the chief of police. Defendant would have this court apply an exception to a rule first and ignore the very unambiguous rule at section 6109(b). He would have this court interpret the statute to allow him to forum shop after his license was revoked in Pennsylvania rather than properly appeal the revocation to the court of common pleas. Because the statute is clear, residents of Pennsylvania must apply for a license with the sheriff of the county in which they reside, or if a resident of a city of the first class, with the chief of police. Defendant admits the Commonwealth established a prima facie case of non-licensure. Defendant’s supplemental brief in support of petition for a writ of habeas corpus, 10/2/2009, p. 3 unnumbered. This court agrees with the Commonwealth, once it is established that defendant is a Commonwealth resident, any perceived entitlement to an exception under the statute is trumped by the statutory requirement that he apply for a license to cany a concealed firearm with his county sheriff or chief of police. Therefore, defendant’s petition for writ of habeas corpus is denied.

II. Possession of Firearm or Other Dangerous Weapon in Court Facility, 18 Pa.C.S. §913(a)(l)

Defendant again argues the Commonwealth has failed to present evidence, via in-court identification, that defendant carried a weapon into a court facility. For the reasons discussed above, this court finds the evidence presented by the Commonwealth sufficient to establish aprima facie case that it was the accused who committed the offense.

Defendant presented the argument that the Commonwealth must prove “defendant knowingly possessed a firearm in an area that the defendant knew was a court facility ... and that the public entrance of courthouse or building containing the court facility was posted in accordance with subsection (e) and (a) of 913.” Defendant’s supplemental brief in support of petition for a writ of habeas corpus, 10/2/2009, p. 4 unnumbered. Defendant argues because the magisterial district judge building failed to have lockers or similar facilities for the temporary checking of firearms, the Commonwealth cannot present evidence that the building contained a conspicuous notice of the requirements. Defendant further argues “[i]f the lockers or similar facilities are permitted to be housed without the building or courthouse, it is clear that the legislature is granting permission to a citizen to enter the courthouse or building containing a court facility in order to check their weapons ... [t]he legislature clearly would not draft a law that permitted the construction of lockers or similar facilities within a courthouse, thereby requiring a person to enter the courthouse or building to check their weapons, and then immediately prosecute the individual for entering the courthouse or building in order to check the weapon.” Defendant’s supplemental brief in support of petition for a writ of habeas corpus, 10/2/2009, p. 4 unnumbered.

Under 18 Pa.C.S. §913(a), aperson commits an offense if he:

“(1) knowingly possesses a firearm or other dangerous weapon in a court facility or knowingly causes a firearm or other dangerous weapon to be present in a court facility; or
“(2) knowingly possesses a firearm or other dangerous weapon in a court facility with the intent that the firearm or other dangerous weapon be used in the commission of a crime or knowingly causes a firearm or other dangerous weapon to be present in a court facility with the intent that the firearm or other dangerous weapon be used in the commission of a crime.” 18 Pa.C.S. §913(a).

Under section 913(d):

“Posting of notice. — Notice of the provisions of subsections (a) and (e) shall be posted conspicuously at each public entrance to each courthouse or other building containing a court facility and each court facility, and no person shall be convicted of an offense under subsection (a)(1) with respect to a court facility if the notice was not so posted at each public entrance to the courthouse or other building containing a court facility and at the court facility unless the person had actual notice of the provisions of subsection (a).” 18 Pa.C.S. §913(d). (emphasis added)

Furthermore, under section 913(e):

“Facilities for checking firearms or other dangerous weapons. — Each county shall make available at or within the building containing a court facility by July 1, 2002, lockers or similar facilities at no charge or cost for the temporary checking of firearms by persons carrying firearms under section 6106(b) or 6109 or for the checking of other dangerous weapons that are not otherwise prohibited by law. Any individual checking a firearm, dangerous weapon or an item deemed to be a dangerous weapon at a court facility must be issued a receipt. Notice of the location of the facility shall be posted as required under subsection (d).” 18 Pa.C.S. §913(e). (emphasis added)

Under section 913(f), Definitions, “court facility” is defined as follows:

“The courtroom of a court of record; a courtroom of a community court; the courtroom of a magisterial district judge; a courtroom of the Philadelphia Municipal Court; a courtroom of the Pittsburgh Magistrates Court; a courtroom of the Traffic Court of Philadelphia; judge’s chambers; witness rooms; jury deliberation rooms; attorney conference rooms; prisoner holding cells; offices of court clerks, the district attorney, the sheriff and probation and parole officers; and any adjoining corridors. ”18 Pa.C.S. §913(f). (emphasis added)

In Minich v. County of Jefferson, 869 A.2d 1141 (Pa. Commw. 2005), plaintiffs sued the County of Jefferson along with several county officials arguing that an ordinance enacted by the county providing that the sheriff subject every person entering the Jefferson County Court House to a point of entry search using metal detectors was unlawful. Id. at 1143. The county posted a sign at the entrance to the Jefferson County Court House warning the public against carrying firearms into the building. Id. Plaintiffs attempted to enter the court house to go to the assessor’s office located on the first floor. Id. They carried concealed weapons pursuant to valid permits. Id. Plaintiffs refused to submit to the point of entry search and were denied entry by the sheriff. Id. Plaintiffs argued that the Commonwealth preempted the regulation of firearm possession in a court facility by the enactment of section 6120 of the Crimes Code, 18 Pa.C.S. §6120. The trial court agreed with plaintiffs and entered a decree nisi declaring the county’s ordinance null and void. The Commonwealth Court provided the following regarding section 913, “[bjased on the clear and unambiguous language of section 913, we conclude that the first floor hallway of the Jefferson County Court House is an ‘adjoining corridor.’ Thus, the first floor hallway also is a ‘court facility’ under section 913 of the Crimes Code. Inasmuch as the first floor hallway is a ‘court facility,’ state criminal law prohibits the possession of a firearm in that hallway. This means that the county’s ordinance does not regulate the lawful possession of firearms. For that reason, section 6120 of the Crimes Code does not preempt the county’s ordinance.” Id. at 1144. (emphasis in original)

In the present matter, there is no doubt defendant entered a court facility because he entered the lobby area adjoining the courtroom. Furthermore, defendant has admitted to entering a court facility. Omnibus pretrial motion, 11/17/2008, p. 2 unnumbered, ¶¶12-13. Under the Minich case, defendant admitted that he entered a “court facility” when he entered the “adjoining corridors” of the courtroom. Defendant’s omnibus pretrial motion, 11/17/2008 p. 2 unnumbered. Specifically, defendant admitted that he entered the building and encountered Officer Bradley in the “lobby.” Defendant’s omnibus pretrial motion, 11/17/2008 p. 2 unnumbered, ¶¶12-13. Defendant argues that the notice regarding weapons was improper and further argues he was justified because there should have been lock boxes for him to check his firearm. This court points out that lock boxes for temporary checking of firearms as provided for by section 913(e) are for persons carrying firearms under section 6106(b) or 6109, or for the checking of other dangerous weapons that are not otherwise prohibited by law. 18 Pa.C.S. §913(a). As discussed above, defendant did not have a valid license or permit under sections 6106(b) or 6109 to carry a concealed firearm; therefore, his concerns about there not being lock boxes is a non-starter.

This court determines the Commonwealth has established a prima facie case for possession of firearm or other dangerous weapon in court facility, 18 Pa.C.S. §913(a)(l). The Commonwealth has provided sufficient evidence that defendant knowingly possessed a firearm in a court facility as required by the statute. In calling the office to inquire about taking a firearm to his court proceeding and inquiring about facilities to check his firearm, defendant undoubtedly had actual notice that weapons were not to be possessed in court facilities under section 913(d). Furthermore, notice was posted in two locations. Id. at 26. Defendant took photos of the weapons notices which he presented at the preliminary hearing. Id. at pp. 14-15.57. Also, defendant demonstrated his awareness of the law when he inquired with Officer Bradley whether he was acting in the capacity as “check station.” Therefore, defendant’s petition for writ of habeas corpus is denied.

This court cannot disagree with defendant that the legislature did not intend to immediately prosecute an individual for entering a courthouse in order to check a validly carried concealed weapon. This court is perplexed as to why the legislature provides for facilities for persons with valid licenses to carry concealed firearms to check their firearms, but defines court facility so broad that a person entering a building containing a courtroom with the intention to check the firearm could be in violation of the statute upon entry. In the Centre County Courthouse and the Courthouse Annex, there are doors separating the vestibule area (where lockers for checking firearms are located) from the corridors connecting the courtrooms/“court facilities.” Although the doors are always propped open, this court believes the design of the structure is such that a person entering the courthouse with the intention to check a validly carried concealed firearm could check the weapon without violating 18 Pa.C.S. §913. However, in courthouses with different layouts or very small vestibule areas, where it is impractical to locate check stations/lockers outside of the “court facility,” a person with a validly carried concealed firearm could be in immediate violation of the statute when stepping through the door. Because of this confusion, this court certifies that the below order involves a controlling question of law about which there exists substantial ground for difference of opinion and that an immediate appeal may materially advance ultimate termination of the matter. See Kramer v. Zoning Hearing Board of Upper Saucon Township, 163 Pa. Commw. 559, 641 A.2d 685 (1994).

ORDER

And now, October 21, 2009, defendant’s omnibus pretrial motion in the form of a petition for writ of habeas corpus is hereby denied and certifies that the below order involves a controlling question of law about which there exists substantial ground for difference of opinion and that an immediate appeal may materially advance ultimate termination of the matter.

      . The letter providing defendant notification that his license was revoked was dated April 16,2008 which according to Sheriff Nau, was a typographical error that occurred when portions of the letter were cut and pasted. The letter providing defendant notification that his license was revoked was drafted on April 14,2008 and mailed on April 15,2008. Id. at 30-33,40. Defendant signed for the letter on April 29, 2008. Id

      . According to the testimony at the preliminary hearing, there was a weapons notice posted on the interior double doors that empty into the lobby area. Tr. prelim, hrg. 9/10/2008, p. 26. There was also a weapons notice posted inside the lobby. Id. When first entering the building, there are double doors that lead to a small vestibule area. Id. at 11-12. Proceeding into the building, there is a second set of double doors on which a weapons notice was posted, these interior double doors empty into a lobby area which adjoins the courtroom. Id. 11-12, 14,26. There is a window in the lobby area where visitors can approach to speak to staff. Id. at 12.


author: ASHWORTH, J,

text:
    Commonwealth v. Welk

      Charles Rieck IV, assistant district attorney, for Commonwealth.

      Vincent J. Quinn, for defendant.
    August 17, 2009
   ASHWORTH, J,

Richard Nelson Welle has filed an amended petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46. For the reasons set forth below, the amended petition will be denied without hearing.

I. BACKGROUND

On November 2,2005, a criminal complaint was filed against Welk charging him with aggravated indecent assault, indecent assault and corruption of minors. The basis for these charges was an allegation that between September 2 and 3,2005, Welk engaged in sexual contact with his niece, B.C., who was 9 years of age at the time the offenses occurred and developmentally disabled. These offenses occurred at Welk’s residence in Mount-ville, Pennsylvania.

The child victim, B.C., was interviewed on September 8, 2005, by Detective C. Michael Phenneger of the Manor Township Police Department, along with Emily Bingeman and Colleen Regan, Lancaster Children and Youth Agency (C&YA) caseworkers. During this interview, B.C. disclosed that while staying the previous weekend at the residence of her “Uncle Richard,” he had inappropriate sexual contact with her.

On September 13, 2005, Welk was interviewed by Detective Phenneger concerning the allegations made by B.C. After being advised of his Miranda rights and waiving those rights, Welk provided a statement to Detective Phenneger in which he admitted that it was possible that he had touched B.C.’s buttocks, breasts and vaginal area during the time period that B.C. had reported.

The child victim was next interviewed and physically examined by Dr. Cathy J. Hoshauer, an expert in pediatrics and child abuse, on September 25, 2005. B.C. disclosed inappropriate sexual contact by “Uncle Richard” to Dr. Hoshauer consistent with that described to Detective Phenneger, Emily Bingeman and Colleen Regan. Dr. Hoshauer also found physical evidence supporting B.C.’s statements.

Charges were filed against Welle on November 2,2005, and he was arrested in St. Louis, Missouri, on December 2,2005. Apreliminary hearing was scheduled for February 15, 2006, but was continued indefinitely pending a ruling on the Commonwealth’s motion to allow a child witness to testify under the “Pennsylvania Uniform Child Witness Testimony by Alternative Methods Act,” 42 Pa.C.S. §5985. A hearing on that motion was held on March 16, 2006, before the Honorable Paul K. Allison. On March 20,2006, Judge Allison signed an order granting the Commonwealth’s motion. Thereafter, the preliminary hearing was held on May 10, 2006, at which time a prima facie case was established, and all charges were bound over to the court of common pleas.

Several defense continuances ensued. On October 13, 2006, an appointment was made with Kerri Stanley at the Lancaster County Children’s O.A.S.I.S., regarding another matter involving the victim, B.C. When Ms. Stanley, a forensic interviewer, questioned B.C. about allegations of photographic exploitation, B.C. disclosed that her “Uncle Richard” had inappropriate sexual contact with her.

On February 5,2007, the Commonwealth filed a petition to admit out-of-court statements under the “Tender Years Hearsay Exception,” 42 Pa.C.S. §5985.1. A hearing was held on the Commonwealth’s petition on March 2.2007, before the Honorable Joseph C. Madenspacher. On March 5,2007, Judge Madenspacher entered an order granting the petition, having found that the statements made by the child victim to Dr. Cathy Hoshauer, Kerri Stanley, Emily Bingeman and Detective Phenneger were relevant, and that the time, content and circumstances of the statements provided sufficient indicia of reliability for their admission pursuant to 42 Pa.C.S. §5985.1.

Following a jury trial before the undersigned on March 7 and 8, 2007, Welk was found guilty of all charges. A pre-sentence investigation report was ordered. The court also ordered that a sexual offender assessment be completed prior to sentencing. The Sexual Offenders Assessment Board determined that Welk did not meet the criteria to be classified as a sexually violent predator, as set forth in 42 Pa.C.S. §9795.5 et seq.

At the sentencing hearing on June 11, 2007, the court imposed a sentence of seven to 14 years incarceration on the aggravated indecent assault charge, plus concurrent sentences of 16 to 32 months each on the indecent assault (victim under 13 years) charge and the corruption of minors charge. A timely post-sentence motion was filed on June 20,2007, in which Welk claimed the verdicts in this case were against the weight of the evidence and requested the court grant judgment of acquittal of all charges against him. This request was denied on June 21.2007. Welk was represented at the trial and sentencing by the public defender’s office of Lancaster County, specifically, Daniel E. Kaye, Esquire.

A notice of appeal was timely filed by Welk on July 20, 2007. On June 25, 2008, a three-judge panel of the Superior Court affirmed the judgment of sentence in an unpublished memorandum opinion. A petition for allowance of appeal was denied by the Pennsylvania Supreme Court on December 17, 2008. Welk was represented on direct appeal by the public defender’s office, specifically, Mary Jean Glick, Esquire.

On January 15,2009, Welk filed a timely pro se petition for post-conviction collateral relief raising issues of ineffective assistance of trial counsel, violation of his constitutional rights, imposition of an illegal sentence, and improper obstruction by government officials of his right to appeal. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, Vincent J. Quinn, Esquire, was appointed to represent Welk on his collateral claims.

On June 26, 2009, Attorney Quinn filed an amended petition in which he raised three issues: (1) trial counsel was ineffective in his cross-examination of the child victim; (2) trial counsel was ineffective for failing to request a competency hearing of the child victim; and (3) trial counsel was ineffective for failing to file a motion in limine or to object to the introduction of that portion of petitioner’s statement that referred to prior bad acts. A timely response to the amended petition was received from the Commonwealth on July 27, 2009. This matter is now ripe for disposition.

II. ELIGIBILITY FOR PCRA RELIEF

A petitioner seeking relief pursuant to the PCRA is eligible only if he pleads and proves, by a preponderance of the evidence, that (1) he has been convicted of a crime under the laws of this Commonwealth and is currently serving a sentence of imprisonment, probation or parole for the crime, (2) his conviction has resulted from one or more of the enumerated errors or defects found in section 9543(a)(2) of the PCRA, (3) he has not waived or previously litigated the issues he raises, and (4) the failure to litigate the issue prior to and during trial, or on direct appeal could not have been the result of any rational, strategic, or tactical decision by counsel. 42 Pa.C.S. §9543(a)(2)-(4).

A petitioner has previously litigated an issue if (1) the highest appellate court in which a petitioner could have had review as a matter of right has ruled on the merits of the issue, Commonwealth v. Romero, 595 Pa. 275, 287, 938 A.2d 362, 369 (2007), or (2) the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. §9544(a); Commonwealth v. Jones, 932 A.2d 179, 180 (Pa. Super. 2007). With respect to claims that have not been previously litigated, a petitioner must also demonstrate that the claims have not been waived. A petitioner has waived an issue if the petitioner could have raised the issue but failed to do so before trial, on appeal, or in a prior state post-conviction proceeding. 42 Pa.C.S. §9544(b); Jones, 932 A.2d at 180. Waiver, however, will be excused under the PCRA if the petitioner can meet the conditions of section 9543(a)(3)(h) or (iii) or by making a showing of ineffective assistance of counsel.

III. DISCUSSION

A. Ineffective Assistance of Counsel

Petitioner claims that he is entitled to relief for the reason that he was denied the effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article V, Section 9 of the Pennsylvania Constitution. See 42 Pa.C.S. §9543(a)(2)(ii). See also, Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). In a collateral attack on the effectiveness of counsel, the courts presume counsel is effective and the petitioner has the burden of proving otherwise. Commonwealth v. Rios, 591 Pa. 583, 599, 920 A.2d 790, 799 (2007); Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

To overcome this presumption, the petitioner must establish three factors: (1) the underlying claim has arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Collins, 598 Pa. 397, 408-409, 957 A.2d 237, 244 (2008); see also, 42 Pa.C.S. §9543(a). The failure to satisfy any of these prongs will cause the entire claim to fail. Commonwealth v. Bridges, 584 Pa. 589, 596, 886 A.2d 1127, 1131 (2005).

In determining whether counsel’s action was reasonable, “we do not question 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.” Commonwealth v. Washington, 592 Pa. 698, 712-13, 927 A.2d 586, 594 (2007). To demonstrate prejudice, the petitioner must show that there is a reasonable probability that “but for counsel’s error or omission, the result of the proceeding would have been different.” Collins, supra at 409, 957 A.2d at 244.

1. Cross-Examination of Child Victim

Initially, petitioner claims trial counsel was ineffective in his cross-examination of the child victim. Within his petition, Welk complains that his victim was not confronted with some inconsistencies between her testimony at the preliminary hearing and her testimony at trial.

At trial, the child victim testified that petitioner touched her inside her private parts. (N.T., trial at 73, 75.) She claimed that she actually remembered petitioner performing the acts on her. (Id. at 84.) At the preliminary hearing, the child victim claimed that she was asleep at the time petitioner performed the acts upon her and that her 5-year-old cousin told her that petitioner had touched her in the inappropriate way. (N.T., preliminary hearing at 30-31, 34-35.) The transcript of the preliminary hearing was available at time of trial and the testimony was admissible as a prior inconsistent statement. Accordingly, petitioner claims counsel was ineffective for failing to introduce the preliminary hearing transcript into evidence.

Contrary to petitioner’s assertions, trial counsel did confront the child victim on cross-examination with these inconsistencies in the preliminary hearing transcript.

“Q. . . . Now, [B.C.], I asked you a few minutes ago if you remember if you were awake or asleep, and I believe your answer was that you were awake when this happened; right?
“A. Yes.
“Q. Do you remember a few months back coming to the courthouse, and you were sitting in that room where you are now? Do you remember that?
“A. Yes.
“Q. And you were telling us what happened just the way you are today, looking in a camera and talking to us, and you could see us in the monitor there? Do you remember that?
“A. Yes.
“Q. And do you remember [the assistant district attorney] asked you some questions and you answered them? Do you remember that?
“A. Yes.
“Q. And then I asked you some questions?
“A. Yes.
“Q. And we might have told you, I don’t remember, but we might have, that there was a court reporter who was taking down all of the questions and all of the answers? Did we tell you that?
“A. I don’t remember.
“Q. Okay. Do you know that there’s a court reporter today who is writing down all of the questions and all of the answers?
“A. I don’t know.
“Q. Okay. [B.C.], I think I was asking you some questions that day when you came to the courthouse before. A question I asked you was, Were you asleep when it happened, when Uncle Richard touched you, or were you awake? And—
“A. Awake.
“Q. And your answer at that time was asleep. Do you remember saying that?
“A. I don’t remember.
“Q. Okay. Is it possible at some time during this you were awake and some time you were asleep?
“A. Yes.
“Q. Yes, it’s possible?
“A. Yes.
“Q. Now, I think at some point your cousin G., Little G., told you what happened; is that right?
“A. Yes.
“Q. And I think I had asked you at that hearing, is what you are saying here today, do you remember that, or is it because Little G. told you something happened?
“A. I remember that.
“Q. And everything you are telling us today you remember; right?
“A. Yes.” (N.T., trial at 88-90.)

The conflicting preliminary hearing testimony of the child victim was certainly introduced to the jury through this cross-examination. Thus, it cannot be said that petitioner suffered any prejudice from the failure of trial counsel to introduce portions of the preliminary hearing transcript into evidence. Trial counsel was able to effectively demonstrate to the jury that the child victim had told a different story at the preliminary hearing which took place approximately 10 months before the trial. Thus, this issue lacks merit.

2. Need for a Competency Hearing

Next, petitioner contends that trial counsel was ineffective for failing to request a full competency hearing of the child victim at the time of trial. It is well-settled that the determination of whether a child is competent to testify is within the sound discretion of the trial court, and an appellate court should not interfere with the lower court’s ruling absent a manifest abuse of discretion. Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005). In making such a determination, the court should be guided by the following principles:

“Competency of a witness is presumed, and the burden falls on the objecting party to demonstrate incompetency. When the witness is under 14 years of age, there must be a searching judicial inquiry as to mental capacity, but discretion nonetheless resides in the trial judge to make the ultimate decision as to competency. In making its determination, the court must inquire whether the child possesses: (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth.” Id. (quoting Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa. Super. 2002) (citations and quotations omitted)).

Petitioner’s child victim — less than 10 years of age at the time the sexual assault occurred and 11 years of age at the time of trial — satisfied these requirements, not only at trial, but also at numerous prior hearings.

At trial, B.C. testified that she understood the duty to speak the truth (N.T., trial at 68-69), and demonstrated the ability to communicate and observe and remember the sexual assault. As such, there was no need to conduct a further colloquy.

Furthermore, B.C. testified previously. She testified at a Pennsylvania Uniform Child Witness Testimony by Alternative Methods hearing on March 16, 2006. Judge Allison conducted an on-the-record colloquy at that hearing wherein B.C. demonstrated that she understood what an oath was, and demonstrated the ability to communicate and remember the assault. (See N.T., Pennsylvania Uniform Child Witness Testimony by Alternative Methods hearing at 31-34.) B.C. also testified at a preliminary hearing on May 10,2006. At that hearing a colloquy was conducted to determine her competency and she demonstrated again that she was competent to testify. (N.T., preliminary hearing at 4-9.)

By the time of trial it was clear to the undersigned that B.C. was competent to testify and no purpose would be served by an additional formal colloquy. As such, petitioner’s claim of counsel ineffectiveness for failing to request a full competency colloquy is without merit.

3. Prior Bad Acts Evidence

Lastly, petitioner charges trial counsel with ineffectiveness for failing to file a motion in limine or to object to the introduction of that portion of petitioner’s statement that allegedly referred to prior bad acts. During the testimony of Detective Michael Phenneger, he introduced petitioner’s statement to the police. A portion of the statement which was introduced into evidence at trial reads as follows:

“Question, is anything else going to be revealed by A. about her being touched inappropriately by you?
“Answer, I dried her off, and I dried everything. If she would say something, it would have happened either then or when she was on my lap.
“Question, are there any other allegations that might come to light concerning these three children?
“Answer, not unless it has something to do with the drying off after the bath. When J. takes baths, I dry him off, too.” (N.T., trial at 159.)

Petitioner contends that this statement contains irrelevant and highly prejudicial evidence of prior bad acts committed by petitioner against other children. The Commonwealth argues that this statement cannot be classified a prior bad act. I must agree.

Pennsylvania Rule of Evidence 404(b)(1) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” The testimony in question — petitioner’s reference to the accidental touching of another child while giving the child a bath — does not fall within this prohibition as it is not evidence of a crime, wrong or an act which the Commonwealth sought to use “to show action in conformity therewith.”

The fact that petitioner gave the victim’s brother and sister, his niece and nephew, a bath is not a crime, nor can it be classified as a wrong. Therefore, the testimony clearly did not fall within the prohibition of Pa.R.E. 404(b). While bathing children is certainly an act, it cannot be said that the Commonwealth sought to use this evidence to prove the allegations at hand. The testimony regarding the bathing of children involved two different children than the victim. Furthermore, petitioner’s assault of his victim did not occur during bath time. Finally, petitioner’s statement was that there may have been accidental touching immediately following these baths. (N.T., trial at 159.) Petitioner was convicted of a nighttime, intentional assault of a different child than the children mentioned in the testimony. Petitioner’s crime and the testimony complained of share no common characteristics, other than both involve children.

As it cannot be said that the alleged improper testimony fell within the exclusion provided for by Pa.R.E. 404(b)(1), trial counsel will not be deemed ineffective for failing to raise a meritless claim.

B. After-Discovered Evidence

Petitioner’s final claim is that he is entitled to a new trial to consider Lorraine Welk’s affidavit of June 15, 2009, in which his ex-wife asserts that she observed no improper conduct by her then husband toward the child victim in this case while she baby-sat her sister’s three children on September 2 and 3, 2005. When seeking a new trial based on after-discovered evidence, the petitioner must establish that the evidence: (1) could not have been obtained at or prior to trial through reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely compel a different verdict if a new trial were granted. Commonwealth v. Johnson, 600 Pa. 329, 359-60, 966 A.2d 523, 541 (2009); Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 (2008).

At the time of the alleged assault, Lorraine Welk was married to and living with petitioner. At the time of trial, Ms. Welk was residing outside of the Commonwealth and petitioner contends that he “could not have located her and determine [sic] the substance of her testimony even through due diligence.” (See amended motion at ¶38.) In the affidavit attached as exhibit “B” to petitioner’s amended motion, Ms. Welk states:

“During the overnight hours of September 2,2005 and on September 3,2005, the children were in the apartment with me and Richard. While the children were at our apartment, I witnessed no improper conduct by Richard. I saw him have no inappropriate contact with any of the children. Richard Welk was never alone with the children while they were in our apartment. I was up most of the night with A. since she had a bad nosebleed. I was asleep for no more than an hour or two the entire evening.
“From December of 2005 until July of 2008,1 was residing in the states of Arkansas and Missouri. Neither Richard nor any of my family members knew where I was living during that period of time.” (See Welk affidavit, attached to petitioner’s amended motion as exhibit “B”.)

Petitioner claims that this eyewitness testimony of his wife is after-discovered evidence. I cannot agree. Obviously, petitioner was aware of his wife’s presence in the residence where his assault of the minor victim occurred. Affidavits of witnesses whose identities were known at trial are not after-discovered evidence. Commonwealth v. Hayward, 437 Pa. 215, 216-17, 263 A.2d 330, 331 (1970). Moreover, even assuming the veracity of Ms. Welk’s affidavit, there is nothing contained therein that petitioner either was not aware of, or could not have been aware of, prior to trial. As such, the claim must fail as an after-discovered evidence claim.

III. CONCLUSION

For the reasons noted above, Welk’s amended petition of post-conviction collateral relief will be denied without a hearing.

Accordingly, I enter the following:

ORDER

And now, August 17, 2009, it is hereby ordered that Richard Nelson Welk’s Post Conviction Relief Act petition is dismissed without a hearing. There are no genuine issues concerning any material fact; petitioner is not entitled to post-conviction collateral relief; and no purpose would be served by any further proceedings.

Pursuant to Pa.R.Crim.P. 907(4), this court advises petitioner that he has the right to appeal from this order. Petitioner shall have 30 days from the date of this final order to appeal to the Superior Court of Pennsylvania. Failure to appeal within 30 days will result in the loss of appellate rights.

      . Under Rule 907 of the Pennsylvania Rules of Criminal Procedure, a PCRA court may dispose of post-conviction collateral relief petitions without a hearing if it is satisfied after reviewing the materials submitted that no genuine issues of material fact exist and that petitioner is not entitled to post-conviction relief. Pa.R.Crim.P. 907. See Commonwealth v. Camps, 772 A.2d 70, 75 (Pa. Super. 2001) (there is no absolute right to an evidentiary hearing on a PCRA petition).

      . 18 Pa.C.S. §3125(b), 18 Pa.C.S. §6301(a)(l), 18 Pa.C.S. §3126(a) (7), respectively.

      . Because of the nature of the offenses in this case, we will refer to the victim by her initials only.

      . O.A.S.I.S. is a child advocacy center where investigations of child abuse are conducted through forensic interviews of children between the ages of 4 and 14 who have been referred either by Lancaster County C&YA or a law enforcement agency. (N.T., trial at 134-36.)

      . Welk filed a Rule 1925(b) statement which set forth seven bases for appeal: (1) the court erred in finding that the child victim would be permitted to testily by contemporaneous alternative method; (2) the court erred in ruling that the testimony of Stanley and the videotape of her interview with the child victim was admissible; (3) the court erred in refusing to dismiss juror no. 7 for cause; (4) the court erred in permitting Bingeman to testily regarding hearsay statements of B.C.’s brother and Lorraine Welk, which were made to her by B.C.; (5) the court erred in denying defense counsel’s motion for judgment of acquittal; (6) the jury’s verdicts of guilty were against the weight of the evidence; and (7) the court erred in giving a “consciousness of guilt” instruction to the jury.

      . We note that petitioner’s PCRA petition was filed within one year of the date his judgment became final. As such, his petition was filed in a timely manner. 42 Pa.C.S. §9545(b).

      . Section 9543(a)(3) provides:
      “[T]hat the allegation of error has not been previously litigated and one of the following applies:... (ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual, (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a state procedural default barring federal habeas corpus relief.” 42 Pa.C.S. §9543(a)(3).

      . The Pennsylvania Constitution Article V, Section 9 guarantees: “There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be provided by law; and there shall be other such rights of appeal as may be provided by law.”

      . The after-discovered evidence provision of the PCRA provides that:
      “(a) General rule. — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
      “(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
      “(i) currently serving a sentence of imprisonment, probation or parole for the crime;
      “(ii) awaiting execution of a sentence of death for the crime; or
      “(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
      “(2) That the conviction or sentence resulted from one or more of the following:...
      “(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S. §9543(a).

      . Furthermore, Ms. Welk’s account of her supposed unavailability is not credible. She absents herself from the Commonwealth just months after these charges are brought against her husband, apparently with the knowledge that she could clear him. Ms. Welle clearly knew of petitioner’s criminal proceedings in the fall of 2005, but did not come forward with this alleged exculpatory evidence until 2009.