VOL. 161
december 27, 2013
NO. 26
PITTSBURGH LEGAL JOURNAL
OPINIONS
a l l e g h e n y c o u n t y c o u rt o f c o m m o n p l e a s
Commonwealth of Pennsylvania v.
Richard Broadus, Williams, J. ..................................................Page 561
Criminal Appeal—PCRA—Ineffective Assistance of Counsel—
Forfeiture of Right to Appeal by Absconding from Jurisdiction
Commonwealth of Pennsylvania v.
John J. Lamonde, Williams, J. ..................................................Page 562
Criminal Appeal—Guilty Plea—Deficient Plea Colloquy—
Withdrawal of Plea
Commonwealth of Pennsylvania v.
Dion Wagner, Ignelzi, J. ............................................................Page 563
Criminal Appeal—Suppression—VUFA—
Reasonable Suspicion to Search
Commonwealth of Pennsylvania v.
Francis Ivan Smith, Rangos, J. ................................................Page 566
Criminal Appeal—Guilty Plea—PCRA—Waiver—
Turner/Finley Letter—Subject Matter Jurisdiction
John A. Scrima and Sylvia V. Scrima v.
UPMC Mercy f/k/a
The Mercy Hospital of Pittsburgh, Wettick, Jr., J. ................Page 568
Document—Requests—Patient Records—Peer Review Protection Act
—Peer Review Committee—“Proceedings and Records”—
Original Sources Exception
In Re: Appeal of Zachary Kaib, Colville, J. ............................Page 569
Polygraph—Polygraph Test—Due Process—
Employment Screening—Right to Public Employment—
Scientific Validity—Firefighter
Danella Bray v.
McKeesport Housing Authority, Friedman, J. ........................Page 571
Miscellaneous—Denial of Application—Subsidized Housing—
No Judicial Review—Cope—Due Process
In Re: I. A., McVay, J. ................................................................Page 571
Dependency
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december 27, 2013
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Commonwealth of Pennsylvania v.
Richard Broadus
Criminal Appeal—PCRA—Ineffective Assistance of Counsel—Forfeiture of Right to Appeal by Absconding from Jurisdiction
No. CC 2010-11050. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Williams, J.—October 23, 2013.
OPINION
This is a post-conviction matter where Mr. Broadus claims entitlement to various forms of relief from his conviction and 5-10
year sentence. In Mr. Broadus’ eyes he is in the present predicament because of his prior lawyer. According to him, that lawyer
was constitutionally defective.
On March 19, 2013, Broadus filed a counseled PCRA Petition. The Commonwealth filed an Answer, which was followed by a
Reply from Broadus on July 19, 2013. These 3 writings have crystalized the issues and the Court feels comfortable in expressing
its view in this writing.
The Court appreciates the segmentation of the issues set forth in the government’s Answer. It will follow that analytical
approach. However, before jumping to those issues, the Court concludes the petition was timely filed and the issues have not been
waived or previously litigated.
Tardy Brief in Support of Suppression
Prior to trial, a suppression hearing was held. Upon its conclusion, the Court issued a briefing schedule. The defense filing was
due no later than September 23, 2011. It was not filed until November 14, 2011. Despite its tardy filing, the Court still considered
the arguments made therein. That is where Broadus’ argument breaks down. A tardy filing is not a non-existent filing. Broadus
got his arguments before the decision maker. While clearly not consistent with the Court’s desired schedule, it did not impact the
consideration of the substantive merits of the claim. The footnote reference is just a comment to the form of the opinion not the
substance of the suppression ruling. As such, the Court sees no merit and no prejudice to this assertion of ineffective assistance
of counsel.
Dismissal of Direct Appeal
Broadus was sentenced on November 30, 2011. He was allowed to report 30 days later. A day before his report date, counsel for
Broadus filed a Notice of Appeal.1 The NOA was docketed on December 29, 2011. The next day – Broadus’ report date – came and
went without him showing up. A bench warrant was ultimately issued on January 9, 2012, for his failure to appear on December
30, 2011. Broadus remained a fugitive until March 18, 2013.
Initially, the Court needs to focus on the impact of Broadus’ fugitive status regarding his rights to direct appeal. A pair of
Pennsylvania Supreme Court decisions resolve the issue. In Commonwealth v. Jones, 610 A.2d 439 (Pa. 1992), the Court articulated
a per se rule that a defendant irrevocably forfeits the right to appeal by being a fugitive at any time after his post-trial proceedings commence. See, Commonwealth v. Hunter, 952 A.2d 1177, 1178 (Pa. Super. 2008). Five years later, that rule was modified
somewhat. Id. In Commonwealth v. Deemer, 705 A.2d 827 (Pa. 1997), the Court explained that, despite having lost the right to
appeal, a fugitive who returns before the appeal deadline can effectively regain his appellate rights and may, therefore, file a timely
appeal. Hunter, 952 A.2d at 1178. Deemer, also added that a fugitive who returns after the appellate deadline is not entitled to a
direct appeal. Id, (emphasis added).
Broadus’ fugitive status began the day after his NOA was filed. It continued for 14 months until March of 2013. In March, 2012,
about 3 months after his NOA was filed, the Superior Court dismissed the appeal. The reason for the dismissal was failure to
complete the rather pedestrian docketing statement as required by Pa.R.A.P. 3517. Based upon Jones, Deemer, and Hunter, this
Court rules Broadus forfeited his right to appeal and his forfeiture trumped his counsel’s below the line performance in handling
his appeal.
The next issue this Court must tackle is what, if any impact, the forfeiture of his direct appeal rights has on his ability to obtain
relief under the Post Conviction Relief Act. Let us begin with some basics. A direct appeal may bring various forms of relief. For
instance, a suppression ruling might be reversed. A new trial may be awarded because inadmissible evidence was relied upon. The
sentence could be deemed too harsh or illegal requiring a new sentencing hearing. These forms of relief may also be granted
through a post-conviction proceeding. The identical forms of relief available on direct appeal and in post-conviction proceedings,
is the background for the following discussion on the applicable law.
In Commonwealth v. Judge, 797 A.2d 250 (Pa. 2002), the petitioner, who previously forfeited his direct appeal rights because of
his fugitive status, filed a petition seeking collateral relief. The PCRA court dismissed the petition and, on the appeal, the petitioner
challenged the PCRA’s court’s determination that he was not entitled to collateral review of his convictions because he fled the
jurisdiction prior to direct appeal. Id., at 257-258. The Supreme Court upheld the denial of PCRA relief. It concluded that the petitioner’s previous forfeiture of his direct appeal rights by reason of his fugitive status rendered him ineligible for collateral relief.
Id., at 259-260. In affirming the dismissal of the petitioner’s PCRA claims, the Supreme Court made the following observation:
“[W]e refuse to permit Appellant to resurrect issues that were raised, or which could have been raised and would have
been addressed, on direct appeal, had Appellant demonstrated some kind of respect for the legal process.” Id, at 260 (footnotes omitted).2
In Commonwealth v. Doty, 48 A.3d 451, 457 (Pa. Super. 2012)(Doty II), Doty asserted, on direct appeal, sentencing based claims.
These same claims appeared in his PCRA. “In Doty [I], we held that Appellant’s fugitive status during the direct appeal period
resulted in forfeiture of his right to direct review of these claims. Because Appellant previously forfeited review of his claims on
direct appeal, he is now ineligible for collateral relief based on these contentions.”
The Court rules all of the present PCRA claims are matters that could have been brought on direct appeal. Based upon Doty I
and Doty II, Broadus forfeited - not waived - his right to appeal those matters and, as such, he is not eligible to raise those claims
in a collateral proceeding. In short, Broadus will not be rewarded for “thumbing his nose” at the Court.
Despite the Court’s blanket ruling, it will address Broadus’ remaining arguments nevertheless.
Hearsay Objections
Broadus claims his previous lawyer should have objected to certain testimony at the suppression hearing. PCRA Petition, pg.
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18 (March 19, 2013). While he identifies it as “blatantly inadmissible”, Id, his reply to the Commonwealth’s answer never takes the
government’s position head on. The government said the statements were “not inadmissible hearsay”, Answer, pg. 6, (June 17,
2013), but offered to show the officer’s course of conduct. The government references Commonwealth v. Jones, 658 A.2d 746, 751
(Pa. 1995) and Commonwealth v. Matthews, 460 A.2d 362, 364 (Pa. Super 1993). The government’s position is correct. That conclusion dooms the meritorious prong of an ineffective assistance of counsel challenge.
Rental Agreement
Broadus also believes his prior lawyer should have objected to the rental agreement being offered as an exhibit. PCRA Petition,
pg. 18. The only justification is a lack of an authentication witness. Id.
The weakness in Broadus’ position is the reasonable basis prong. Broadus’ strategy was that he received an oral extension of
the rental agreement. He had an Enterprise witness testify to that circumstance. However, once the suppression ruling was made,
the rental agreement and its contents faded into the land of inconsequential clutter. Simply put, the record supports an acceptable
inference that his lawyer made a reasoned decision regarding the admission of the rental agreement.
Cross Examination
Broadus also takes issue with how the prior lawyer cross-examined the Commonwealth’s key witness, Officer Boyko. PCRA
Petition, pg. 5. Broadus is now saying his lawyer should have asked questions that would have shown a lack of “due diligence”. Id.
The government’s response was multi-pronged. Answer, pg. 9-10. The Court need only address one – the lack of these questions
would not have been outcome determinative. The record reveals the officer called an Enterprise official and made an inquiry about
the status of this particular vehicle. That was enough to justify the officer’s subsequent actions. His lack of further inquiry or, as
Broadus likes to describe it, his lack of due diligence does not move the meter. The officer did enough for probable cause purposes.
End of story.
Unlawful Arrest and Search
This claim is foreclosed by the Court’s findings of fact and conclusions of law set forth in its opinion of November 16, 2011. The
claim lacks merit.
In conclusion, the Court finds Broadus is not entitled to PCRA relief because he was a fugitive during his direct appeal and that
status contaminates his ability to raise the claims he ahs set forth in his petition. The Court also addressed Broadus’ individual
claims and concludes they are not worthy of anymore judicial attention.
An order consistent with our Rules of Criminal Procedure will be docketed along with this opinion.
BY THE COURT:
/s/Williams, J.
1
Counsel also sought an “Appeal Bond” on January 4, 2012. Interestingly, paragraph 18 of that motion states he “has never missed
any court dates in this case.” Six days earlier, Broadus failed to appear for the beginning of his sentence.
2
See also, Commonwealth v. Doty, 997 A.2d 1184 (Pa. Super. 2010)(Doty I).
Commonwealth of Pennsylvania v.
John J. Lamonde
Criminal Appeal—Guilty Plea—Deficient Plea Colloquy—Withdrawal of Plea
No. CC 2012-01890. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Williams, J.—November 4, 2013.
OPINION
On January 29, 2013 John J. Lamonde (“Lamonde”) resolved his criminal case through negotiation. His plea would be one of
guilt but mentally ill. This Court accepted the plea and imposed the agreed upon sentence of 8-20 years in state prison. Within days
of that event, Lamonde himself penned a letter to this Court seeking to withdraw his plea. The Court interpreted the request as a
Post-Sentence Motion (PSM) and appointed counsel. On April 19, 2013, counsel formalized the request with a Petition to Withdraw
Guilty Plea.1 The Court directed a response from the Commonwealth and received it on August 9, 2013. On August 26th, the PSM
was denied.
On September 16, 2013 a timely Notice of Appeal was docketed. A 1925(b) order was then issued and Lamonde complied by
filing his Concise Statement of Errors on October 10, 2013. His complaint is singular in focus: he should have been allowed to withdraw his guilty plea. Concise Statement, ¶ 5(a), (October 10, 2013). The reasons include the typical: (“pleas was unknowing, involuntary and unintelligent”) and (“innocen[t] of the [r]obbery charge”) and (“failure [equals] manifest [ ] injustice”). Lamonde also
sets forth some facts to support these legal assertions. He claims that he was taking medication and that he had not slept for three
(3) days prior to the plea.” Id.
This is the second time in the past few months where certain shortcomings at a change of plea proceeding have led to the undoing
of a case.2 While the Court will highlight its own deficiencies, it will also take this opportunity to advise future litigants of some
changes that will be instituted to eliminate these issue from appearing in the future.
A review of the record does not allow this Court to sustain its earlier denial of Lamonde’s post-sentence motion where he wanted
to withdraw his plea. This conclusion is reached because this particular change of plea proceeding fails to include some critical
information every citizen should be informed of before a plea is accepted.
Pa.R.Crim.P. 590 suggests a trial court should engage the defendant in a discussion on 6 areas of inquiry. These areas are: (1)
the nature of the charges; (2) the factual basis of the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5) the
permissible range of sentences; and (6) the judge’s authority to depart from any recommended sentence. Despite the rule’s
suggestive language, some deem these areas of inquiry to be mandatory. Commonwealth v. Flick, 802 A.2d 620, 624 (Pa. Super.
december 27, 2013
pa g e 5 6 3
2002)(“[Rule 590] sets forth six mandatory areas of inquiry that must be conducted during a plea colloquy in order to determine
whether a judge should accept a guilty plea…); Commonwealth v. Willis, 369 A.2d 1189, 1190 (Pa. 1977)(“ …the above six questions
are mandatory during a guilty plea colloquy and the failure to ‘satisfy these minimal requirements will result in reversal.’”).; see
also, Commonwealth v. Wholaver, 989 A.2d 883, 905 f.n 17 (Pa. 2010)(affirming the mandatory language from Willis.).
The oral colloquy conducted with Lamonde did not satisfy Rule 590. Lamonde was advised of his right to a jury trial. Transcript,
pg. 6-7 (January 29, 2013). He was advised that he was presumed innocent and what that protection entails. Id., pg. 8. A factual
basis for the plea was more than adequately set forth through the government’s factual recitation. Id., pgs. 10-12. Lamonde was not
advised of the nature of the charges. The permissible range of sentences was not imparted to him. And, finally, he was not told
anything about the Court’s ability to depart from the 3 to 7 year proposed sentence.
The written colloquy does not save the day. Attached to the government’s written opposition to the withdraw request is the actual
document. The written form gives Lamonde information about the Court’s ability to not accept the proposed agreement. See, paragraphs 58, 59. The Court finds this written information is an adequate substitute for an oral discussion on the topic. The document
does not, however, provide adequate information on the remaining two items. Lamonde was charged with two counts of robbery:
(a) serious bodily injury under subsection (a)(1)(i) or (ii); and, (b) financial institution under sub-section (a)(1)(vi). The former
count is a felony of the first degree and the latter a felony of the 3rd degree. The maximum penalty that could have been imposed
was 27 years (20 + 7), 18 Pa.C.S.A. 1103 and a fine of $40,000 (25,000 + 15,000), 18 Pa.C.S.A. 1101. The written colloquy does not
set forth this information. Nor does the written colloquy set forth the elements of each crime he entered his plea to. These omissions are just too much to overlook.
In closing, the Court recognizes its ultimate responsibility to act in a manner consistent with our jurisprudence and, had it been
a more diligent, these matters would have been corrected at their birth, or, at the very least, during post-sentence motions.
However, the internalized call for more diligence, should also be a reminder to both counsel for increased vigilance. The government has the gumption to say “[a]ll of the defendant’s claims are refuted by the transcript of the plea hearing as well as written
plea colloquy …”. Commonwealth’s Opposition to Petition to Withdraw Guilty Plea, pg. 7, (August 9, 2013). Yet, their written argument does not even address the requirements of Rule 590. The failure of this writing to pin-point precisely where its global assertion has factual back-up is troubling. Did the government’s lawyer conduct a review and the shortcomings were not noticed? Or,
after a review was conducted, the shortcomings were noticed but then purposefully ignored? Neither occurrence merits a pat on
the back. The same can be said for defense counsel. If they feel the plea advances their client’s interest, then they should work
with the Court to act consistent with the law in regards to a guilty plea. If that means supplementing the Court’s oral colloquy then
that is what counsel should do. For the reasons set forth in this opinion, Lamonde’s sentence should be vacated, the conviction
reversed and the case should be remanded and placed on the calendar for trial.3
As indicated earlier, the Court’s change of plea process needs an increased level of attention. That will come in the name of a
form that both counsel shall work together to complete. The form will set forth the actual charges/counts to which the accused is
pleading guilty to; the maximum possible sentence (including monetary fines) applicable to each count of conviction, and the
elements of each crime of conviction. Once both counsel have completed the form, the accused shall acknowledge their understanding of its contents through a signature.
BY THE COURT:
/s/Williams, J.
1
Lamonde supplemented his motion with an additional filing on July 16, 2013.
2
Commonwealth v. Jason Henry, 2012 14 582 and 1026 WDA 2013.
3
The phrase, “be careful what you wish for” looms large here. The negotiated resolution appears to have spared Lamonde from
being designated a 3rd strike defendant and triggering a 25 year mandatory minimum.
Commonwealth of Pennsylvania v.
Dion Wagner
Criminal Appeal—Suppression—VUFA—Reasonable Suspicion to Search
No. CP-02-CR 15537-2012. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Ignelzi, J.—August 30, 2013.
OPINION
On May 3, 2013, following a Suppression Hearing in the above-captioned matter, this Court denied the Defendant, Dion
Wagner’s (“Defendant”) Motion to Suppress Evidence from a Warrantless Search of his vehicle.
Mr. Wagner immediately proceeded to a Non-Jury Trial and was convicted at Count 1- Firearms Not to be Carried without a
License. He was acquitted of the three summary charges. Additionally, on May 3, 2013, this Court sentenced Defendant at Count
1 to a period of probation of five (5) years.
On May 31, 2013, Defendant, by and through Appellate Counsel Carrie L. Allman, filed a timely Notice of Appeal. Also, on May
31, 2013, this Court issued an Order directing a Concise Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P.
1925.
The Defendant was thereafter granted an extension of time to file the 1925 Concise Statement, due to a delay in receiving the
Hearing Transcript. On July 16, 2013, Defendant filed his Concise Statement of Errors Complained of on Appeal. The following
issue has been set forth for Appellate Review:
a. The search of Defendant’s vehicle was not supported by the requisite level of suspicion where the Officers failed to
testify to any facts that supported a search other than seeing a driver who had properly pulled over, leaned over and
reached towards the lower right area of the vehicle’s interior. Such actions are not furtive movements, the do not raise
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concerns of Officer’s safety, and, therefore, the search of the interior violated Defendant’s right as provided under the
Fourth Amendment to the U.S. Constitution and Article 1 § 8 of the Pennsylvania Constitution. The Officers did not have
reasonable suspicion that a weapon may be secreted in the vehicle. As such, the search was unlawful.
FACTUAL SUMMARY
At the May 3, 2013 Suppression Hearing, Officer James Goss testified on behalf of the Commonwealth. Officer Goss has been
a Patrolman for the City of McKeesport Police Department for approximately 8 years. He has extensive firearms training from his
career in the Marine Corp. as an Infantry Rifleman, and with the City of McKeesport Police Department. Hearing Transcript
(“H.T.”), May 3, 2013, H.T. at p. 3. Officer Goss testified he also assists the District Attorney’s Narcotics Task Force in details in
the more high crime areas of the City. He indicated he has made close to 100 arrests related to firearms. H.T. at p. 3.
He testified that on the evening in question, August 23, 2012, he was assigned to the District Attorney’s Narcotics Task Force
with the saturation detail. He was working the 3-11 PM Shift.
Officer Goss testified that he was with Officer Kondrosky, Sergeant Ritack, and Detective Sergeant Alfer, in plain clothes, in an
unmarked patrol vehicle, and in a high crime area of the City. The Officers came upon the Defendant operating a green, Dodge
Caravan. H.T. at p. 4. Officer Goss testified they stopped the Defendant when they witnessed him make two or three turns without
signaling. As a result of that, they initiated a traffic stop at the intersection of Soles and Jenny Lind. This is a four way intersection that is well lit with street lights on every other corner. H.T. at p. 5.
Officer Goss indicated that the stop occurred in the evening and the Dodge Caravan had tinted windows. He also testified that
along with the street lights, and their flash lights, they were able to see clearly. Id.
Officer Goss referred to the Police Report and testified that the stop occurred around 11:45 P.M.. Once they had the Defendant
stopped at the intersection of Soles and Jenny Lind, Officer Goss testified that he and Officer Kondrosky were the first two out of
the vehicle. They approached the vehicle on foot. They illuminated the cab and passenger side of the vehicle with their flashlights.
Officer Goss testified that he observed the Defendant, who was the only one in the vehicle, make a suspicious movement towards
the passenger side, front floor area of the vehicle. H.T. at p. 6.
Officer Goss testified that the movement he had observed was not consistent with getting documentation to provide proof of
insurance etc.. He indicated that the glove compartment, from which Defendant recovered his registration and insurance information was on the dashboard, and this was above the area where he had reached. He further indicated the Defendant, in the
driver’s seat, reached down towards the floor and then up to retrieve the documentation from the dashboard of the vehicle.
Based upon the movements, and his vast experience in firearms related arrests and felony traffic stops, it alerted him. H.T. at
p.p. 7-8.
Once Officer Goss received the requested information from the Defendant, he ran it through Allegheny County Dispatch. It was
confirmed that he was 19 years of age at the time. At that point, Officer Goss and his partner removed Defendant from the vehicle
for Officers’ safety due to the fact that he had tinted windows, he was a little bit nervous, indicating that there was possibly some
kind of weapon - - anything that could be a safety threat to them. Once Defendant was removed from the vehicle, they conducted
a Terry pat for weapons. H.T. at p.p.8-9.
According to Officer Goss, he informed the Defendant that he was going to search the front of the vehicle where he observed
him reaching. At that point, the Defendant was detained with Officer Kondrosky, Sergeant Ritack and two other Officers. Officer
Goss testified he went around the vehicle and opened in the passenger side door. With his flashlight, he was able to see that there
was a storage compartment under the front passenger seat of the vehicle. It was partially opened. He illuminated the inside of that
compartment with his flashlight and observed a two-tone semi-automatic handgun. H.T. at p. 9.
Officer Goss then asked the Defendant if he had a permit to carry the weapon. The Defendant responded that he did, and that
it was at the house. According to Officer Goss, due to the fact that they ran Defendant’s information prior to removing him from
the vehicle, they already had knowledge that he was not at the legal age to possess a firearm, which is 21 years old. H.T. at p.p. 9-10.
Officer Goss testified that once the Defendant indicated that he had a permit for the firearm, he was taken into custody by Officer
Kondrosky and Officer Matthews because of their knowledge that he was not legally able to possess a firearm. H.T. at p. 10.
Thereafter, Officer Goss removed the firearm and ran it through Allegheny County Dispatch. The gun was fully loaded, meaning it had a full magazine. H.T. at p. 11.
Officer Goss testified that he and Officer Kondrosky both agreed that the Defendant made suspicious movements, and both were
aware of what was going on at that point. He also testified that the area the Defendant was reaching was within his wing span. H.T.
at p. 24. Officer Goss further testified that the area where the firearm was recovered, was consistent with what he had observed.
He also indicated that he was in fear for his safety based on observing these movements. H.T. at p. 25.
The Defendant testified on his own behalf at the May 3, 2013, Suppression Hearing. The Defendant admitted he committed the
traffic violations, which were the basis of the stop. H.T. at p.p. 31-32, 48 & 64. He indicated he did not make a complete stop at the
stop sign, i.e., a rolling stop, and he did not use his left turn signal when making a turn. Id. According to the Defendant, he did not
give Officer Goss consent to search the vehicle. H.T. at p. 35. Defendant further testified that the compartment underneath the
passenger seat was locked prior to Officer Goss entering the car. H.T. at p. 39. Defendant indicated that one of the Officers told
him he had to give him the keys, because the K-9 Unit was coming. Defendant stated that he gave the keys to a man who was in
the Courtroom on May 3, 2013, with glasses and a blue shirt. The Court directed the Officer to stand up and identify himself, and
he stated he was Officer Steve Kondrosky. H.T. at p. 40.
Finally, Defendant testified, upon questioning from the Court that when he perceived the vehicle behind him, he never made
any movement toward the passenger side of the vehicle. H.T. at p. 44.
On rebuttal, the Commonwealth called Officer Steve Kondrosky to testify on his behalf. According to Officer Kondrosky, on the
evening in question, they conducted a traffic stop upon Defendant’s vehicle for a few traffic violations. Once they conducted a stop,
they noticed there was movement inside the vehicle. He further testified that once they activated the audio and visual warning
systems, the vehicle pulled over and as soon as the vehicle came to a stop, the Defendant placed the vehicle in park. He indicated
that Officers typically do not exit vehicle unless they can see the break lights are not illuminated to prevent someone from pulling
off. He testified that as soon as the vehicle went into park, the driver leans over towards the floor board on the passenger side of
the vehicle as they were exiting their vehicle. This caused Officer Kondrosky to initially unholster his weapon. He indicated he did
not place Defendant at gunpoint, but it drew a concern to him. H.T. at p. 52. The Officer was concerned because the area is both a
high crime and drug area. Id. at p. 53. The Officer stated “At that point, several shootings had taken place in that vicinity of
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McKeesport.” Id.
According to his training and experience, Officer Kondrosky testified that the movements were consistent with somebody
concealing something due to the fact Defendant was not initially anywhere near the glove box of the vehicle. He further testified
that the Defendant leaned down towards the passenger floor. H.T. at p. 53.
Officer Kondrosky testified that at no point did he observe keys being used to unlock a lockbox in the vehicle. He also testified
that he never at any point had a set of keys belonging to the Defendant, and there was never any discussion as to having to unlock
anything in the vehicle. As far as Officer Kondrosky knew, the keys remained in the vehicle. H.T. at p.p. 54-55.
At the conclusion of argument by Counsel, the Court made the following findings:
The Court finds the Commonwealth, because it is a warrantless search, does bear the burden of proof. However, that
burden of proof is only by a preponderance of the evidence because it is a Motion to Suppress. The Court finds that the
Commonwealth has met its burden of a preponderance of the evidence and the purpose of the search was for the protection of the Officers based on the movement and the traffic violations that they had indicated. And so the Court will deny
the Motion for Suppression.
H.T. at p. 67.
After the Court ruled, the Stipulated Non-Jury Trial continued. H.T. at p. 67. The parties had previously agreed to incorporate
the testimony in the Suppression Hearing into the Stipulated Non-Jury Trial. After brief argument, the Court found the Defendant
guilty of Count 1, 18 Pa. C.S.A. § 6106A1. The Court imposed a sentence of 5 years probation, to commence May 3, 2013, the date
of the Suppression Motion and the Stipulated Non-Jury. H.T. at p. 76. The Court found the Defendant not guilty of the Summary
Offenses. H.T. at p. 77.
Defendant’s Appeal to the Superior Court of Pennsylvania was thereafter timely filed.
DISCUSSION
A Motion to Suppress Evidence places both the burden of production as well as the ultimate burden of persuasion upon the
Commonwealth. Pa. R. Crim. Proc. 581(H) & “Comment:” to Rule 581. The standard of proof the Commonwealth must meet is a
preponderance of the evidence. Id.; Commonwealth v. Labron, 543 Pa. 86, 669 A.2d 917 (1995).
At the conclusion of the Hearing, the Court held the Commonwealth met its burden of proof concluding “the purpose of the
search was for the protection of the officers based on the movements and traffic violations that they had indicated.” H.T. at p. 67.
While not explicitly stated on the record, the Court obviously found the Officer’s testimony credible, which allowed the
Commonwealth to meet both the burden of production, as well as the burden of persuasion. The Court noted during argument, if
the Court accepted the Officer’s testimony as credible, it would appear this was a proper wing span search based on the case law
provided. Id. at p. 60.
The Defendant admitted he committed the traffic violations, which were the basis of the stop. H.T. at p.p. 31-32, 48 & 64. Based
on the testimony of the Officers, and the Defendant’s admission, the basis of the stop is undisputed/uncontested. Defendant’s
Counsel conceded the Officers had probable cause to conduct a traffic stop. H.T. at p.p. 64-65. Thus, the only issue which remained
was the basis for the search of the vehicle by the Officers.
On the issue of the reason why the Officers searched the Defendant’s vehicle, the Court found credible the Officers’ version of
events. The Court discredited the Defendant’s version of events in light of the fact the Defendant lied to the Officers at the scene
when he stated he had a permit to carry the weapon, however, the permit was at home. The Defendant was unable to secure a
permit because he was not of legal age to possess a firearm, which is twenty-one (21) years old. H.T. at p.p. 9-10. The Defendant
testified Officer Goss was the first Officer to make contact with him. H.T. at p. 33. Officer Goss requested and obtained the
Defendant’s license, registration and insurance information. H.T. at p.p. 33-34. After Officer Goss returned to the Defendant’s
vehicle with the information, Detective Alfer asked the Defendant if the Officers could search his vehicle. Id. The Defendant was
insistent it was Detective Alfer, not Officer Goss. Id. Defendant testified Detective Alfer repeatedly asked for consent to search the
vehicle. H.T. at p.p. 34-35. Coincidently, Detective Alfer was not present to testify. Id. The Court found the Defendant’s testimony
somewhat suspect on this point.
During argument, the Court addressed the cases provided by Counsel and reviewed by the Court. H.T. at p.p. 63-67. While the
cases were only referred to by name, there is no dispute the four cases were as follows:
(1)
(2)
(3)
(4)
Commonwealth v. Tuggles, 58 A.3d 840 (Pa. Super. 2012)
Commonwealth v. Boyd, 17 A.3d 1274 (Pa. Super. 2011)
In the Interest of O.J., 958 A.2d 561 (Pa. Super. 2008)
Commonwealth v. Murray, 936 A.2d 76 (Pa. Super. 2007)
In all of these cases, the Superior Court held, based on the totality of the circumstances, the Officers had reasonable suspicion to
believe the defendant may have a weapon within reach inside the vehicle justifying a search of the interior of the vehicle.
In reviewing the authority provided by the parties, and addressed at argument, the cases discussed the seminal decisions of
Michigan v. Long, 463 U.S. 1032 (1983) and Commonwealth v. Morris, 537 Pa. 417, 644 A.2d 721 (1994). In Long and Morris, the
respective Supreme Courts promulgated the test for determining whether a Police Officer may conduct a protective search of the
interior compartment of a car for weapons. In Long, the United States Supreme Court applied the test announced in Terry v. Ohio,
392 U.S. 1 (1968), and held that a weapon search may be performed where an Officer has reasonable suspicion that a firearm may
be secreted in the car, and that the search may encompass any area where a weapon could be hidden and accessible to the
Defendant in the vehicle. In Long, the Court made the apt observation that “detentions involving suspects in vehicles are especially
fraught with danger to Police Officers.” Long, at p. 1047. The Long Court stated:
The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed
or hidden is permissible if the police officer possesses a reasonable belief based on specific and articulable facts, which,
taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect
is dangerous and the suspect may gain immediate control of a weapon. The issue is whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Id. at p.p. 1049-50.
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In Morris, the Pennsylvania Supreme Court concluded that the Long Standard comported with the Pennsylvania Constitution.
In that case, the Supreme Court ruled that a protective search of the interior of the car was warranted based on the following facts.
After being detained for a traffic stop, the Defendant leaned down toward the floor of the center console, he briefly placed his hand
between his legs after being ordered to put them on the steering wheel. During the stop, the Police observed a metal pipe in the
vehicle. Our Supreme Court found that the Police Officer did have sufficient facts at his disposal to warrant a reasonably prudent
man to believe that his safety “was compromised” enough to allow the Police intrusion in question. Morris at p.723. The Court
reasoned that the Defendant’s behavior of leaning down and reaching between his legs was consistent with hiding a weapon.
Commonwealth v. Grahame, 607 Pa. 389, 7 A.3d 810 (2010).
It is well established under Pennsylvania Law that the Courts look at the totality of the circumstances facing an officer when
they examine whether an Officer has a reasonable suspicion to search for a weapon. Commonwealth v. Simmons, 17 A.3d 399, 403,
(Pa. Super. 2011).
This Honorable Court finds that the same factors at issue in Simmons also exist in this case against Defendant: a traffic stop at
night, a body movement consistent with hiding a weapon, and the stop occurred in the location where criminal activity regularly
occurred.
In the matter at hand, in determining whether Officers Goss and Kondrosky had reasonable suspicion that they were in
danger, this Court looked at all the facts and circumstances at its disposal. The Officers clearly testified that they were present
in a high crime area, it was night, the vehicle had tinted windows, and they saw Defendant reach to the floor of the passenger
side of the vehicle, as if to conceal a weapon. In addition, Officer Goss abundantly testified as to his extensive firearms training
from his career in the Marine Corp. as an Infantry Rifleman and with the City of McKeesport Police Department. He also assists
the District Attorney’s Narcotics Task Force and Saturation Details in high crime areas of the City, the detail he was on the night
in question.
During argument, Defendant’s Counsel challenged there was only one furtive movement by Defendant when he made a suspicious movement towards the passenger side front floor area of the vehicle. H.T. p.p. 62-65. The Court specifically addressed that
multiple or several movements are not required to justify an Officer’s decision to search for protection of the Officer.
It should be noted, that nothing in Pennsylvania case law requires the existence of multiple hand movements to support an
Officer’s fear that a defendant may have access to a firearm. By way of example, in Commonwealth v. Foglia, 979 A.2d 357 (Pa.
Super. 2009) (en banc), The Defendant performed a single action of patting his waistband, which is an area where weapons are
frequently secreted. The Superior Court concluded that the Police where justified in performing a search of that area for weapons
when it was night and in a high crime area. The Defendant further walked away upon viewing the Police and the Police had
received an anonymous tip that someone matching the Defendant’s description was armed. The pertinent analysis does not involve
the number of actions performed by a person, but rather the nature of those actions. Where a person performs an activity that is
indicative of an attempt to secrete a weapon, that movement, regardless of whether it is singular or multiple, can support a belief
that the person has a gun. Tuggles, at p. 843.
As such, this Court found that the facts presented by Officers Goss and Kondorsky, overwhelmingly established proof that they
may have been in danger and made the circumstances enough to support reasonable suspicion. Therefore, this Court property
concluded that the weapons search conducted herein was not unconstitutional.
CONCLUSION
For the reasons set forth above, this Court committed no errors of Law; the denial of the Defendant’s Motion to Suppress should
be upheld; and Mr. Wagner’s Appeal should be DENIED.
BY THE COURT:
/s/Ignelzi, J.
Dated: August 30, 2013
Commonwealth of Pennsylvania v.
Francis Ivan Smith
Criminal Appeal—Guilty Plea—PCRA—Waiver—Turner/Finley Letter—Subject Matter Jurisdiction
No. CC 201006106, 201006061. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Rangos, J.—November 4, 2013.
OPINION
On March 14, 2011, Appellant, Francis Ivan Smith, pled guilty at two informations to eleven counts of Burglary, three counts of
Forgery, seven counts of Theft by Unlawful Taking, three counts of Theft by Deception, one count of Criminal Mischief, and one
count of Access Device Fraud. In exchange for his plea, the Commonwealth agreed to a sentence of two to four years incarceration, with Appellant being RRRI-eligible. Despite the plea agreement as to sentence, at Appellant’s request, this Court ordered a
Pre-Sentence Report. On June 20, 2011, Appellant orally moved to withdraw his guilty plea. This Court denied the Motion on June
30, 2011 and, after reviewing the Pre-Sentence Report, sentenced Appellant in accordance with the plea agreement on October 4,
2011. Appellant’s Post-Sentence Motion to withdraw his guilty plea was denied on October 19, 2011. Appellant filed a Notice of
Appeal on October 25, 2011. This Court, on April 10, 2012, filed its Opinion and the Superior Court of Pennsylvania affirmed the
judgment of sentence on December 21, 2012. The Supreme Court of Pennsylvania denied the Petition for Allowance of Appeal on
June 12, 2013.
In the interim, on April 5, 2013, Appellant filed, pro se, a Motion to Vacate Judgment, which this Court treated as a Post
Conviction Relief Act (PCRA) Petition. Appointed counsel filed a Turner/Finley letter on July 9, 2013. This Court dismissed the
PCRA on July 30, 2013. Appellant filed a Notice of Appeal on September 24, 2013 and a Concise Statement of Errors Complained
of on Appeal on October 22, 2013.
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ERRORS COMPLAINED OF ON APPEAL
Appellant, through his Statement of Errors Complained of on Appeal, asserts that this Court lacked jurisdiction to enter a
conviction at Count One of CC# 201006106 because the criminal information failed to include information of ownership, occupation or possession of the premises. Likewise, Appellant alleges the Court lacked jurisdiction to enter a conviction at Count One of
CC# 201006061, because the address is listed incorrectly and the information failed to include information of ownership, occupation or possession of the premises. Next, Appellant alleges that this Court erred when it failed to vacate Count Eight based on the
failure to allege ownership, occupancy or possession of the premises in an entity capable of such. Appellant also alleges that the
convictions at Count Two through Eight at CC# 201006106 and at CC# 20106061 are precluded by 18 P.S. § 3502(d). Appellant
further alleges that Count One at CC# 201006106 and Counts One through Ten at CC# 201006061 should be vacated as there is no
allegation as to the time of entry. Lastly, Appellant alleges that this Court erred in relying upon counsel’s Turner/Finley letter which
contained incorrect legal analysis regarding the jurisdictional requirements of the various counts referenced above. (Concise
Statement of Matters Complained of on Appeal, 1-3)
DISCUSSION
Appellant couches his allegations of error in language which suggests he is challenging the jurisdiction of this Court to impose
sentence. Appellant impermissibly attempts to make arguments that would otherwise have been waived for failure to previously
litigate by claiming that as a consequence of these alleged errors, the Court’s jurisdiction is divested. As the underlying claims
(relating to deficiencies within the criminal informations) are not, in fact, jurisdictional, they are waived as they were not raised
in Appellant’s direct appeal. However, in the interest of affording Appellant the opportunity to further develop the record, the
Court will address the allegations raised above.
Appellant’s first three allegations claim various errors in the criminal information divested this Court of jurisdiction to impose
sentences upon Appellant. Appellant’s premise is incorrect. Subject matter jurisdiction exists when the court is competent to hear
the case and the defendant has been provided with a formal and specific notice of the crimes charged. Commonwealth v. Jones,
929 A.2d 205, 208 (Pa. 2007). In the case sub judice, both elements are present.
Clearly, this Court was competent to hear Appellant’s case. The Court of Common Pleas of each judicial district is vested with
“unlimited jurisdiction in all cases except as may otherwise be provided by law.” Constitution of Pennsylvania, Article V, Section
5(b). Furthermore, the Court of Common Pleas has statewide jurisdiction in all cases arising under the Crimes Code.
Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003).
Turning to the notice requirement of subject matter jurisdiction:
[I]t is necessary that the Commonwealth confront the defendant with a formal and specific accusation of the crimes
charged. This accusation enables the defendant to prepare any defenses available to him, and to protect himself against
further prosecution for the same cause; it also enables the trial court to pass on the sufficiency of the facts alleged in the
indictment or information to support a conviction. The right to formal notice of charges, guaranteed by the Sixth
Amendment to the Federal Constitution and by Article I, Section 9 of the Pennsylvania Constitution, is so basic to the
fairness of subsequent proceedings that it cannot be waived even if the defendant voluntarily submits to the jurisdiction
of the court.
Commonwealth v. Little, 314 A.2d 270, 272-273 (Pa. 1974). Appellant asserts that this Court lacked jurisdiction to enter a conviction at Count One of CC# 201006106 because the criminal information failed to include information of ownership, occupation or
possession of the premises. However, the victim is identified in the Affidavit of Probable Cause, which was provided to Appellant
through discovery. Furthermore, the crime of Burglary does not require identification of the owner of the premises. Burglary is
defined as entry into a building with the intent to commit a crime therein when, at the time of entry, the building is not open to the
public and the actor is not licensed or privileged to enter. 18 P.S. § 3502(a).1 Finally, as Appellant and counsel were able to negotiate a favorable plea bargain with the Commonwealth, it is clear that Appellant was well aware of all of the charges, including this
Burglary. See Jones, 929 A.2d at 212.
Similarly, Appellant alleges that Count One of CC# 201006061 of the information incorrectly lists the location of the burglary
as “325 Locust Street, Sewickley, PA 15143.” This address does not exist. However, and once again, the Affidavit of Probable Cause,
which was provided to Appellant, correctly identifies the location as 525 Locust Pl. Sewickley. Both the Affidavit and the information refer to the location as the office of Dr. Wagner. When viewed together, Appellant had sufficient knowledge of the specifics of
the allegation to defend himself fully.2
Appellant next claims that 18 P.S. § 3502(d) prevents this Court from convicting him on the underlying non-burglary counts. At
the time of his conviction, the statute read that “A person may not be convicted both for burglary and for the offense which it was
his intent to commit . . . unless the additional offense constitutes a felony of the first or second degree.” 18 P.S. § 3502(d). (emphasis
added). However, conviction for purposes § 3502(d) refers to the judgment of sentence not the verdict. Commonwealth v. Couch,
731 A.2d 136, 144 (Pa.Super. 1999). This interpretation is reflected in the subsequent amendment to § 3502(d), which became effective September 4, 2012 and replaced the word “convicted” with the word “sentenced.” Therefore, Appellant’s plea on the underlying offenses was valid as he was sentenced only on the burglaries.
Appellant’s final allegation of error is that this Court erroneously relied upon counsel’s no-merit letter. While this Court
reviewed the well-reasoned arguments of counsel contained in the no-merit letter, the law contained therein as reviewed by the
Court, as well as this Court’s independent research, simply does not support Appellant’s arguments. As such, this Court was
required to dismiss the PCRA petition.
CONCLUSION
For all of the above reasons, no reversible error occurred and the findings and rulings of this Court should be AFFIRMED.
BY THE COURT:
/s/Rangos, J.
1
2
Therefore, Appellant’s third allegation of error is also without merit.
This statement applies equally to Appellant’s fifth allegation of error, which is waived as appellant failed to raise this issue prior
to his Concise Statement.
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John A. Scrima and Sylvia V. Scrima v.
UPMC Mercy f/k/a
The Mercy Hospital of Pittsburgh
Document—Requests—Patient Records—Peer Review Protection Act—Peer Review Committee—“Proceedings and Records”—
Original Sources Exception
No. GD-11-019474. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
Wettick, Jr., J.—September 9, 2013.
OPINION
Plaintiffs have requested documents containing information created or compiled by hospital staff relevant to the injuries
sustained by the plaintiff-patient while under the hospital’s care. The request is limited to two documents identified by defendant
as protected by the Peer Review Protection Act, 63 P.S. §§ 425.1-425.4: a timeline/chronology of events prepared by Tammy Vogel,
RN, and a reeducation plan prepared by LaSalle Desmet, RN.
Plaintiffs respond that these documents were not prepared solely for purposes of peer review and contain factual information
otherwise available from original sources, which circumstances obviate the Act’s protections. Thus, they are not protected by the
Peer Review Protection Act.
The Act declares confidential the records and proceedings of a review committee, established for the purpose of reviewing
information related to evaluating and improving patient care. The Act states:
The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or
introduction into evidence in any civil action against a professional health care provider arising out of the matters which
are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such
committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced
or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or
other actions of such committee or any members thereof: Provided, however, That information, documents or records
otherwise available from original sources are not to be construed as immune from discovery or use in any such civil
action merely because they were presented during proceedings of such committee, nor should any person who testifies
before such committee or who is a member of such committee be prevented from testifying as to matters within his
knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him
as a result of said committee hearings. (Emphasis added.)
63 P.S. § 425.4.
The threshold question is whether the subject documents constitute the “proceedings and records of a review committee.” Some
common pleas courts appear to have applied a mechanistic definition of the term “review committee.” See Short v. Pavlides, 33 Pa.
D. & C.4th 118 (Phila. C.P. 1996) (concluding that only information generated by a formal committee, not by individuals, is protected).
However, the Superior Court has implicitly adopted a broader definition. See, e.g., Troescher v. Grody, 869 A.2d 1014, 1022 (Pa.
Super. 2005) (concluding the terms “committee” and “individual” are used interchangeably under the Act, and to adopt a rigid
distinction would undermine the peer review privilege).
For this reason, and because plaintiffs have not challenged this aspect of the peer review, the only question before this
court is whether the two documents “are otherwise available from original sources,” which are not shielded from discovery
by the Act.
Plaintiffs contend that the two documents are relevant hospital records created by hospital staff and, thus, subject to discovery.
Defendant contends that these documents are protected because they were created following receipt of an incident report for
purposes of improving hospital care.
Tammy Vogel was the Unit Director of the unit where plaintiff-husband was a patient.
After receiving a copy of an incident report regarding a deep tissue injury that plaintiff husband sustained, Ms. Vogel compiled
information relating to the care of the patient. Ms. Vogel reviewed the patient’s medical records and discussed his condition with
several of his care providers for the purpose of considering whether to formulate a reeducation plan for the nursing staff. Although
Ms. Vogel did not take notes of individual discussions with plaintiff ’s care providers in the process of her ongoing review, she
created and maintained a document summarizing the facts gleaned from those discussions and from other sources, including the
incident report and plaintiffs medical records (the “timeline/chronology”). Ms. Vogel subsequently asked LaSalle Desmet, RN and
Skin Representative, to assist in preparing a reeducation plan for presentation to the nursing staff (the “reeducation plan”). See
Def.’s Br. in Supp. of Def.’s Resp. to Pls.’ Am. Mot. to Compel at 2-3.
When asked why she performed the investigation, Ms. Vogel testified at page 26 of her Deposition that “it’s assumed that I
review any event on my unit” with or without the direction of a supervisor. Also see Vogel Affidavit ¶ 4 (“After receiving a copy of
the incident report regarding [plaintiffs] deep tissue injury, as Unit Director, I conducted [an investigation] which involved interviewing various nurses on my unit as well as Lori O’Shea, the wound care nurse.”).
Under the Superior Court’s most recent interpretation of the scope of the Peer Review Protection Act, the purpose underlying
the creation of the documents is the most relevant consideration.1 See Piroli v. Lodico, 909 A.2d 846, 852-53 (Pa. Super. 2006);
Dodson v. DeLeo, 872 A.2d 1237 (Pa. Super. 2005); and Troescher v. Grody, 869 A.2d at 1022.
The Peer Review Protection Act culminated from the General Assembly’s determination that “because of the expertise and
level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities.”
Young v. Western Pa. Hosp., 722 A.2d 153, 156 (Pa. Super. 1998). Furthermore, as this court has noted, the honest, potentially
critical evaluation of one care provider by another envisioned under the Act demands the strictest confidentiality of the proceedings to ensure the conclusions reached are not tainted by the fear of future legal repercussions. O’Neill v. McKeesport Hosp., 48
Pa. D. & C.3d 115, 121-22 (Allegheny C.P. 1987). For this reason, the General Assembly, in its effort to encourage meaningful selfcriticism, has sought to shield from external inquiry the findings, evaluations, recommendations and opinions generated in the
internal review process. Id.
Although the Act protects generally the work of a peer review committee, its protections do not extend to documents that
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are available from “original sources.” There are common pleas courts that have adopted an expansive view of the original
source exception, concluding that only the recommendations for action produced by the committee are shielded from disclosure, while documents created in preparation for a review necessarily preexisted the review and, therefore, constitute
separate “original sources.” See, e.g., Resnick v. Hahnemann Univ. Hosp., 28 Phila. Co. Rptr. 561, 1995 WL 1315946 (Phila.
C.P. Jan. 13, 1995). However, almost every court has rejected this distinction, relying instead on the purpose underlying the
document’s creation.
The “original sources” exception covers any documents created by an employee of a hospital who has no responsibility for evaluating the quality of the care and who did not prepare the documents at the request of a professional health care provider evaluating the quality of the care as part of a peer review. See Atkins v. Pottstown Memorial Med. Ctr., 634 A.2d 258 (Pa. Super. 1993).
However, where the document would not have been created but for the initiation of peer review, this document should be considered derived from or part of a peer evaluation.
In the present case, the nurses who prepared and reviewed the documents testified that each was generated for the purpose of
evaluating the conduct of the medical staff and, if necessary, reeducating the staff regarding future procedures. Each was derived
from or part of a peer evaluation or review of staff conduct for the purpose of reeducating the staff. Even if some of the factual
information contained within the subject documents is available through original sources, that alone does not render the documents discoverable. See Dodson v. DeLeo, 872 A.2d at 1244. Plaintiffs remain free to examine the staff concerning their knowledge
of the circumstances surrounding plaintiff ’s injuries, but they may not inquire as to what conclusions or recommendations resulted
from the investigation.
In summary, there is no reason for me to depart from the prior holding and underlying reasoning in O’Neill, supra. To the
contrary, the case law that has developed following O’Neill has given less weight to when the reports were created and by whom
and more weight to the reason or purpose for their creation. Thus, since the documents in question were prepared for purposes of
reviewing the quality of the medical services that were provided, these documents are protected by the Peer Review Protection
Act.
For these reasons, I enter the following Order of Court:
ORDER OF COURT
On this 9th day of September, 2013, it is hereby ORDERED that Plaintiffs’ Motion to Compel Discovery is denied.
BY THE COURT:
/s/Wettick, Jr., J.
1
There is no claim that Ms. Vogel, in undertaking to review “any event on [her] unit,” would do so for any reason other than for
peer evaluation. See Vogel Dep. 26: 5-24.
In Re: Appeal of Zachary Kaib
Polygraph—Polygraph Test—Due Process—Employment Screening—Right to Public Employment—Scientific Validity—Firefighter
No. SA 13-000229. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
Colville, J.—September 11, 2013.
OPINION
This matter comes before this Court following a hearing and argument conducted by the Civil Service Commission of the
City of Pittsburgh on February 4, 2013. That hearing and argument resulted in Findings of Fact and Conclusions of Law and
Order dated February 21, 2013 by the Civil Service Commission in favor of the Respondent, the City of Pittsburgh. The legal
issue presented to the Commission, and to this Court, is a unique one. Fairly stated, the question is whether the city fire chief
may properly exercise his discretion to disqualify a firefighter candidate based solely upon the results of a pre-employment
polygraph screening test.
The facts of the case are simple and materially uncontested in nearly every respect. Zachary Kaib applied for a position as a
candidate firefighter. During the course of Mr. Kaib’s application process, he submitted to a polygraph examination. The City of
Pittsburgh fire chief testified that he reviewed candidate background files, including the file of Mr. Kaib, and selected candidates
for the position of firefighter. The fire chief passed over Mr. Kaib’s application for the sole reason that: “there was indications of
[…] deception in the polygraph exam.” Civil Service Commission Hearing Transcript, (hereinafter “CSCT”), page 15. Upon direct
examination the chief was further asked “What was it about the performance on the polygraph exam that caused you concern?,”
to which the chief responded: “It indicated a couple of things. First, deception indicated in a situation, being less than honest is a
character issue. We want people with fine, upstanding characters to be on the fire bureau. The second one was the specific questions related to drug activity, and whether answering truthfully would disqualify him from the position. That is what raised my
concern.” CSCT page 17. The fire chief answered a single question on cross examination: “Chief other than the reasons you just
stated, there were not any other reasons to disqualify Mr. Kaib, correct?” to which the chief responded: “That’s correct.” CSCT
page 17.
In support of its contention that the fire chief may properly pass over a candidate for a firefighter position based upon the
results of a polygraph examination, the City begins by asserting that there is no entitlement to public employment in Pennsylvania
as a candidate for a position as a firefighter maintains neither a liberty interest nor a property right in his status as a candidate.
Anderson v. City of Philadelphia 845 F.2d 1216, 1221-1222 (1988). The City further argues that the use of polygraph exams as a
pre-employment screening tool has been recognized as valid, particularly for public safety positions. Anderson. The City asserts
that the fire chief has the authority to require candidates for a firefighter position to take a polygraph exam as it is an appropriate
test for determining the suitability of a candidate for a firefighter position City of Pittsburgh v. Wilson 77 Pa D&C 4th245 (2005).1
The City appears to recognize that in order to deny a firefighter candidate consideration, the fire chief must find
just cause sufficient to disqualify the candidate. The City invokes the following definition of just cause: “[Just cause] must
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necessarily be largely a matter of discretion on the part of the head of the department. To be sufficient, the cause should be
personal to the employee and such as to render him unfit for the position he occupies, thus making his dismissal justifiable and for
the good of the service. All the law requires is that the cause not be religious or political but concerned solely with the inefficiency,
delinquency or misconduct of the employee. A wide latitude must be left for the superior officer - in fact a discretion conditioned
on its exercise in good faith and not as a screen for some reason not based upon the fitness of the employee to fill the position. In
re: O’Gorman, 409 Pa 571, 187 A.2d 581, 583-584 (1963).”
The City concedes that decisional case law has long recognized that polygraph exam results are not admissible into evidence in
proceedings implicating liberty interests (see E.G., Commonwealth v. Gee, 354 A.2d 875 (1975); Commonwealth v. Hetzel, 822 A.2d
747 (Pa Super 2003)) or property rights (see E.G. DeVito v. Civil Service Commission, 404 Pa. 354. 172 A.2d 161 (Pa. 1961; Township
of Silversprings v. Thompson, 496 A.2d 72 (Pa Cmwlth 1985). The City argues, however, that there exists no prohibition against
considering the results of polygraph examinations as “just cause” to deny employment to a job applicant. Specifically, the City
argues that job applicants, while entitled to simple due process, do not maintain a liberty interest or property right in their anticipated or hoped for employment.
This Court is compelled to accept the decision of the Civil Service Commission if it is supported by substantial evidence, and
neither violates the Constitution nor constitutes an error of law. Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Bowman v. Commonwealth Department of Environmental Resources, 549
Pa 65, 68 700 A.2d 427, 428 (1997).
In response to the City’s arguments, Petitioner asserts, quite understandably, that Pennsylvania law has long recognized the
unreliability of polygraph examinations through an abundance of decisional case law that has specifically concluded that because
of its unreliability, polygraph examination results are inadmissible as evidence in trials and hearings in a variety of contexts
throughout Pennsylvania. Petitioner’s assertion in this regard is entirely accurate, but this evidentiary prohibition has no direct
application to the fire chief ’s utilization of polygraph results in his consideration of a firefighter candidate. Further, while, as
Petitioner puts it, “Pennsylvania courts have never permitted a fire chief to disqualify a “just cause” protected firefighter applicant based solely upon the results of inadmissible and unreliable polygraph results,” it can be equally well said that Pennsylvania
courts have never precluded a fire chief from disqualifying a “just cause” protected firefighter applicant based solely upon polygraph results.
In this Court’s mind, the most troubling aspect of the chief ’s reliance upon the polygraph results is not the fact that they are
technically (and categorically) inadmissible under the Pennsylvania rules of evidence, but rather because there appears to be a
substantive lack of scientific validity to their usefulness with respect to pre-employment screening. Significantly, while the City’s
expert on the issue of the validity of polygraph testing testified that based upon his experience and training, polygraph results were
generally reliable, he also explicitly agreed “with the National Research Council and their findings in their 2003 report” CSCT page
46, lines 19-22. The Executive Summary of the National Research Council’s meta-analysis of scientific evaluations of the accuracy
of polygraph results includes several findings and conclusions that are quite arguably directly material to their efficacy in the
context of the instant matter. While the Executive Summary acknowledged the validity of some “specific-incident” polygraph test
results, the summary cautioned:
Because the studies of acceptable quality all focus on specific incidents, generalization from them to uses for screening
is not justified. Because actual screen applications involve considerably more ambiguity for the examinee and in determining truth than arises in specific-incident studies, polygraph accuracy for screening purposes is almost certainly lower
than what can be achieved by specific incident polygraph tests in the field.
Executive Summary page 4, Reproduced Record page 82. (Emphasis added.) When specifically applied to the question of the
efficacy of security screening of potential Department of Energy employees, the Executive Summary concluded:
Polygraph testing yields an unacceptable choice for DOE employee security screening between too many loyal employees
falsely judged deceptive and too many major security threats left undetected. Its accuracy in distinguishing actual or
potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security
screening in federal agencies.
Executive Summary page 6, Reproduced Record page 84.
Given that the polygraph expert proffered by the City offered no material additional testimony to bolster the scientific validity
of nonspecific screening polygraph results and because the fire chief appears to have relied solely upon such nonspecific
prescreening polygraph results with respect to his decision to disqualify Petitioner as a firefighter candidate, very serious questions are properly raised with respect to whether the fire chief ’s decision is based upon illusory criteria, a scientifically invalid
premise, or and arbitrary standard.
However, and notwithstanding those serious concerns, because the fire chief enjoys such broad discretion with respect to the
hiring process and decisions related thereto, and because I discern in the record no evidence whatsoever that the fire chief relied
upon his review of the polygraph results in Mr. Kaib’s case in any manner differently than he would have relied upon similar polygraph results in any other firefighter candidate’s consideration, I am unable to conclude that the Civil Service Commission erred
in concluding that the fire chief either deprived Mr. Kaib of due process, and/or disqualified Mr. Kaib without just cause.
BY THE COURT:
/s/Colville, J.
1
Petitioner takes specific issue with the City’s reliance upon the City of Pittsburgh v. Wilson noting that the Court in that case did
not approve of the disqualification of Wilson because of polygraph results, but rather because the City can often glean a candidate’s
inadequate candor, lack of completeness, or perhaps dishonesty by comparing the candidate’s responses on their candidate
processing form against answers provided during the course of the polygraph procedure. In this respect, the City is not relying
upon the actual polygraph results as much as the difference between the candidate’s responses during the polygraph exam and
their prior disclosures. In this case, Petitioner argues that the fire chief is plainly relying directly upon the substantive polygraph
results which indicated that the petitioner was less than fully honest in his responses. This is an admittedly substantive, though
ultimately not controlling, distinction.
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Danella Bray v.
McKeesport Housing Authority
Miscellaneous—Denial of Application—Subsidized Housing—No Judicial Review—Cope—Due Process
No. SA 13-355. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
Friedman, J.—October 15, 2013.
OPINION
The instant case involves the holdings of two prior decisions of the Commonwealth Court, Cope v. Bethlehem Housing Authority,
514 A.2d 295 (Pa. Cmwlth 1986) and McKinley v. Housing Authority of the City of Pittsburgh, 58 A.3d 142 (Pa. Cmwlth 2012). Both
cases concerned the appealability of a housing authority’s decision to deny an application for federally-subsidized housing and both
concluded that rejected applicants were not entitled to have the reasons for their rejection reviewed by a court.
Cope had held that mere applicants for housing or housing assistance have no property interest in such benefits and therefore have
suffered no due process violation which the courts of Pennsylvania should bother addressing. In McKinley, Commonwealth Court reiterated this position and further ruled that there is no need for Pennsylvania to look to the federal cases that were contrary to Cope,
because the United States Supreme Court (which has not yet ruled on this issue) has not yet bound Pennsylvania to do so.
We were involved in the McKinley case and had then stated that Cope alone bound us to refuse to entertain Ms. McKinley’s
appeal. We took then the same position we were compelled to take here, that Cope forecloses our ability to review denials of applications for housing. Until Commonwealth Court changes its mind regarding the value of the federal decisions on point or until the
Pennsylvania Supreme Court grants allocatur and overrules Cope, Courts of Common Pleas must follow Cope even though its holding is contrary to much of the federal case law interpreting the federal regulations that govern housing authorities.
We admit to being disappointed that Commonwealth Court, when they reviewed McKinley, did not reconsider Cope, which may
very well stand alone in denying any judicial review to those who are denied housing benefits that they assert they should have
received. As it now stands, under Cope and McKinley, employees of housing authorities, when reviewing applications for housing
benefits, are free to interpret federal regulations however their fancy strikes them and regardless of the actual purpose or intent
of those regulations.
Without an opportunity for a review by a Court, people in dire straits are at risk of being denied benefits to which they are entitled simply because a clerk or a hearing officer, in good faith or otherwise, misinterpreted a federal regulation. If someone, with
or without a family, is going to be relegated to a shelter or to a cardboard box in an alley, he or she or they should at least be able
to ask a court to review the basis for this potentially tragic type of local agency decision.
We note that just as Commonwealth Court is not bound to follow federal cases, it is also not bound to continue to stand by Cope
simply because the United States Supreme Court has not taken the opportunity to review the current federal precedent. In addition, Commonwealth Court now has the opportunity in this appeal to consider the effect on Cope of the right to judicial review guaranteed by the Pennsylvania Constitution, as well as the right to equal protection under the 14th Amendment to the United States
Constitution, neither of which was raised in McKinley.
We respectfully suggest that Commonwealth Court rule that the captioned matter be given a judicial review on the merits.
BY THE COURT:
/s/Friedman, J.
Date: October 15, 2013
In Re: I. A.
Dependency
1. The trial court placed the child in question in shelter care following his physical assault of his mother. The child was returned
to the mother a few days later with Children, Youth and Families failing to file a dependency petition, which the court believed
should have been filed immediately. A couple of months later, the child was detained in Shuman Center for aggravated assault and
defiant trespass. Two further delinquency petitions were filed a month after that. Following a detention hearing, the court ordered
the child to remain detained at Shuman Center with permission to be admitted to Western Psychiatric Hospital. Allegheny County
Probation filed the dependency petition due to Children, Youth and Families’ reluctance to investigate and help the family in question. The mother was reluctant to assist in the child’s treatment plan. Children, Youth and Families refused to provide transportation to and from the mental health appointments since the child was not dependent and since the evaluations were mostly relevant
to the child’s delinquency case.
2. The court rebuked Children, Youth and Families for refusing to help the child or file a dependency action, even after the court
determined that the matter was a shared case management responsibility case, involving both dependency and delinquency
matters. The child’s mother’s unwillingness to cooperate with the mental health treatment plan and her lack of adequate housing
were issues in the dependency proceeding. An interpreter was made available to the mother, but the mother refused to accept this
service and never advised the court of any difficulty with the interpreter.
3. In the second appeal in this matter, the question of whether the child should continue to be under the jurisdiction of Juvenile
Court was raised as the child had reached the age of eighteen. The child was found to be dependent prior to his reaching the age
of eighteen. Before Juvenile Court can terminate its supervision, however, the court is required to conduct a hearing to ensure that
the child’s best interests are protected. Neither the mother nor any other party had moved to have such a hearing scheduled to
terminate the court’s supervision and, therefore, the court’s jurisdiction was retained.
(Christine Gale)
McVay, J., May 28, 2013
JV-12-2343. In the Court of Common Pleas of Allegheny County, Pennsylvania, Family Division - Juvenile Section.
W.D.A. 1044 of 2013.
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McVay, J., June 26, 2013
JV-12-2343. In the Court of Common Pleas of Allegheny County, Pennsylvania, Juvenile Section.
W.D.A. 1143 of 2013.
OPINION
Allegheny County Office of Children, Youth and Families (CYF) filed a Notice of Appeal on June 13, 2013 and entered on the
docket in this matter on June 19, 2013, appealing this court’s May 20, 2013 order adjudicating I.A. dependent pursuant to the
Pennsylvania Juvenile Act at 42 Pa. C.S.A. § 6302 “Dependent Child” sections (1) and (6). Specifically, CYF’s Concise Statement of
Matters Complained on Appeal avers:
1. The trial court abused its discretion by adjudicating the child dependent when there was insufficient evidence to
support a finding of dependency wherein the circumstances which led to the filing of the petition had been remedied and
the trial court acknowledged that the cultural barriers contributed to those circumstances.
2. The trial court erred as a matter of law when it denied a request for a continuance after it had learned that the court interpreter spoke a different dialect than Mother and Mother’s counsel was having difficulty communicating with his client.
3. The trial court abused its discretion by adjudicating the child dependent when it considered and relied on testimony
and/or evidence presented outside the dependency hearing at previously conducted delinquency proceedings where all
parties were not present and/or represented.
4. The trial court erred as a matter of law when it denied a request for a continuance after the minor’s counsel informed
the court that she had not been able to have a meaningful conversation with her client because of untreated mental health
issues and requested that a Guardian ad Litem be appointed.
HISTORY
This family and child have a history with CYF dating back to November of 2012. CYF filed an ECA on November 6, 2012, alleging
that the child assaulted his mother, punching her in the face and Mother was fearful of and unwilling to allow the child to return home.
On November 6, 2012, the court issued an ECA and placed the child into shelter care at Family Links, Plum. At the shelter hearing on
November 9, 2012, before Hearing Officer Hobson, the court returned the child to Mother’s care and CYF advised the family of Family
Group Decision Making. Judge Ward appointed Kids Voice as the child’s GAL/legal counsel on November 8, 2012, to represent the
child’s best interest and recognized that dependency issues and jurisdiction applied to this case. CYF failed to file a dependency petition after the first court hearing between Mother and the child and this court believes it should have done so immediately and
provided the child with the necessary mental health treatment and Mother the appropriate assistance. This court notes that the only
service offered to this family was Family Group Decision Making when Mother was a refugee with no family in Pittsburgh.
On January 16, 2013, Judge Hens Greco issued a detention order detaining the child in Shuman for aggravated assault and defiant trespass, alleging that the child committed one count of aggravated assault by threatening and pushing Baldwin vice principal,
Jonathan Peeples while on Baldwin School property and one count of defiant trespass, alleging that the child entered Baldwin
school property on 1/16/2013, after being provided notice that he was not permitted to enter Baldwin school grounds. On January
31, 2013, Judge Ward ordered the child to remain detained, continued the adjudicatory hearing and ordered the child to have a
mental health evaluation.
On February 4, 2013, Allegheny County Juvenile Probation filed two additional delinquency petitions alleging that the child
committed five counts of Simple Assault, two counts of Harassment and one count of Disorderly Conduct related to two separate
family incidents in which it was alleged that the child attacked his sister and mother.
At the February 11, 2013, detention hearing, this court ordered the child to remain detained at Shuman Center with permission
to be admitted to Western Psychiatric Hospital. Permission was also granted for the child to be admitted to a mental health stepdown program upon discharge by agreement of all parties. A status conference was scheduled for March 11, 2013.
On March 11, 2013, this court ordered the child released form Shuman Center and ordered him to be admitted to an interim
mental health program, pending RTF placement with an alternative safety plan to be implemented. CYF was ordered to assess the
Mother’s housing status, since evidence was presented that probation had made two referrals to CYF, which resulted in little or no
action by CYF. This court also ordered the continued use of an interpreter, Aweys Mwaliya, for the mother.
On March 18, 2013, probation officer Claire Koval, filed a private petition for dependency, alleging that the child has pending
delinquency petitions before this court and is currently incompetent to participate in his defense and is in need of an RTF placement. It should be emphasized that Allegheny County Probation filed the dependency petition, due to CYF’s reluctance to investigate and help this family. The child was detained at Shuman Center and his mother was residing in a motel, all of which has been
reported to CYF. On March 21, 2013, Judge Cozza, a third judge, appointed Kids Voice as the child’s GAL recognizing the need for
the child’s best interest to be represented and the existence of dependency concerns.
After the detention review hearing on March 21, 2013, this court ordered the child to remain detained at Shuman with permission to place in a mental health program pending an RTF or other appropriate placement. Upon completion of a mental health
program, the child was to be released to Shuman or an appropriate RTF program. An inner county agency meeting with all
parties was ordered to take place. The court also ordered the continued use of the interpreter for the benefit of the mother. At the
time of this hearing, the court ordered Mother to continue to search for housing as she still had not obtained permanent housing
for the child and his siblings.
At the next detention review hearing on April 2, 2013, after Mother obtained housing, this court ordered the child to remain
detained with permission to return to Mother’s care upon EHM connection with permission for the child to have “windows” as per
the probations officer’s discretion, specifically for mental health treatment and school. The child was to have no contact with the
alleged victim. This court ordered probation to continue to explore RTF placement for the child and to notify CYF and the caseworker of the next scheduled hearing. Due to the child’s significant mental health issues and Mother’s reluctance to assist in the
child’s treatment plan, the court appointed attorney, Sharon Profeta the medical/educational guardian for the child. At this time
the court was convinced beyond any reasonable doubt that CYF would not assist this child or family. The April 2, 2013, order
contained the following:
“Status Conference, Competency and Police /Private Petition Hearings are scheduled for 4/22/13 at 9:00 A.M. in front of
Judge McVay. The court has heard testimony regarding child’s behavior, perhaps lack of competency, and Mother’s hous-
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ing and unwillingness to cooperate or get the child appropriate mental health treatment and advised her to obtain counsel.
Probation to provide a copy of this order ASAP to CYF caseworker who again was not present. CYF to assist mom with
obtaining counsel and GAL to work with med/ed guardian and is aware of possible RTF treatment needs according to P.O.
Kovall. THESE CONCERNS ARE AT ISSUE IN THE DEPENDENCY HEARING AND ALL PARTIES ARE ON NOTICE”
(see Judge McVay’s April 2, 2013, detention Review order).
The April 22, 2013, status conference, competency and private dependency petition hearings were continued to May 8, 2013, as
a status conference. Mother was ordered to obtain counsel and an interpreter was ordered to be present in court for the benefit of
the mother. The child was ordered to remain on EHM.
On May 7, 2013, the child’s med/ed guardian, filed her report indicating that all RTF referrals for the child had been denied.
The report also indicated that CYF would not provide any assistance with transporting the child to and from mental health appointments, since the child was not dependent and that the evaluations were most relevant to the child’s delinquency case, essentially
yet again, refusing to help the family in need.
After a status conference on May 8, 2013, this court issued an order scheduling an adjudicatory hearing, competency hearing,
and probation’s petition hearing for May 20, 2013, before this court. In addition, the order contained the following notice:
THIS IS A POTENTIALLY SHARED RESPONSIBILITY CASE AND THE PARTIES ARE ON NOTICE THAT THE
COURT HAS HEARD EVIDENCE OF DEPENDENCY AS TO SECTIONS ONE AND SIX IN PREVIOUS DELINQUENCY
HEARINGS AND WILL CONSIDER IT WHEN DETERMINING THE DEPENDENCY ADJUDICATION.
(See Judge McVay’s May 8, 2013, order)
On May 20, 2013, this court continued the child’s delinquency adjudicatory hearing as the parties had stipulated to the evaluations by Drs. Zerby and Neeper, finding the child not competent at this time to participate in his own defense due to mental health
issues and the need for mental health treatment and possible RTF placement. This court found that Allegheny County Juvenile
Probation presented clear and convincing evidence that the child was dependent under sections one and six of the Juvenile Act 42
Pa. C.S.A. § 6302 “Dependent Child” including judicial notice of the entire record in this case.
On June 19, 2013, CYF filed a Notice of Appeal of this court’s May 20, 2013, order.
DISCUSSION
CYF’s Concise Statement of Matters Complained on Appeal allege this court committed (4) errors. This court will address
CYF’s first and third allegations of error initially, since both allege that this court abused its discretion by adjudicating the child
dependent, where there was insufficient evidence present to support a finding of dependency and/or the court relied on testimony
and/or evidence presented outside the dependency hearing at prior delinquency proceedings where all parties were not present.
First and foremost, the record is abundantly clear in this case that CYF has refused to help this family or file a dependency petition, even after the court had determined that this was a clear, shared case management responsibility case. CYF initially asked
the court to remove the child from the home in November 2012 because the child had assaulted his mother and was clearly viewed
as a dependency matter by CYF. Then in March of 2013, when Mother lacked permanent housing and was living in a motel room
with her children, CYF’s position regarding this matter had now changed to a probation issue and it would not file a dependency
petition or provide services to this family or child. The fact that CYF is appealing this court’s finding of dependency confirms the
court’s finding that CYF’s position is not to aid this family in crisis.
As a result of CYF’s intransigent position regarding this child’s needs, Allegheny County Juvenile Probation filed their own
dependency petition on March 18, 2013, and essentially said this is a CYF case and alleged that the child’s mother was homeless
and living in a motel room, with her children and that the child needs treatment. This court conducted another detention review
hearing on April 2, 2013, and issued an order clearly stating that the child’s mental competency and dependency, and Mother’s
unwillingness to cooperate in assisting with the child’s mental health treatment and her lack of housing were all ISSUES IN THE
DEPENDENCY HEARING AND ALL PARTIES ARE ON NOTICE. Probation was ordered to provide a copy of the order to CYF
and notify the caseworker of the next scheduled hearing on April 22, 2013. It should be emphasized that probation had invited CYF
to participate at the child’s April 2, 2013, detention hearing by sending a group e-mail. Ruth Ann Koss of the Human Services
Administration Organization was present in the courtroom and participated, but no one from CYF appeared at this hearing. During
this hearing, the probation officer testified that Mother had refused to sign necessary releases at the RTF meeting and refused to
sign for an IEP for her child. Mother also testified that she would not sign releases today (April 2, 2013) nor did she believe her
child had any mental health problems (See H.T. April 2, 2013, pp. 23-25).
The court continued the next scheduled hearing on April 22, 2013, due to Mother not obtaining legal counselor having an interpreter present. This court does note that CYF had legal counsel present and a status conference was scheduled for May 8, 2013.
At the May 8th, 2013, status conference, with CYF and all parties present, this court issued an order, which put all parties on
Notice that the court had heard evidence of dependency as to sections one and six in previous delinquency hearings and will be
considered when determining the adjudication. CYF was on Notice that in addition to Mother’s housing problems, that the court
had concerns as Mother’s and child’s unwillingness to obtain appropriate mental health treatment for the child and assist the child
in obtaining an IEP. CYF and all other parties had been repeatedly put on notice of the court’s concerns and CYF refused to act on
the opportunity to obtain transcripts from the prior delinquency hearings and copies of Dr. Zerby’s and Dr. Neeper’s psychological
evaluation reports for the child.
At the May 20th, 2013, dual hearing, the child’s public defender and the Commonwealth stipulated to Dr. Zerby’s and
Dr. Neeper’s evaluations, which found the child not competent at this time, to participate in his own defense due to mental health
problems and he was in need of mental health treatment. This court notes that CYF did not subpoena either Dr. Zerby or Dr. Neeper
to testify regarding the child’s mental health issues nor did CYF obtain its own independent psychological evaluation of this child
to contradict Drs. Zerby’s and Neeper’s findings. Based on the following evidence: the child acting out in court; the courtroom
sheriff ’s request to keep the child handcuffed after a hearing due to the child’s belligerent behavior; the court’s observation and
conversations with the child in prior hearings; the court’s prior findings that the child is in need of mental health treatment and
the child’s exhibiting out of control behaviors, the court found clear and convincing evidence that the child suffers from severe and
untreated mental health issues, all of which resulted in the child’s attorney and the Commonwealth’s stipulation as to the child’s
lack of mental competency.
Probation Officer Koval testified that Mother had obtained housing, but Mother continued to refuse to allow the child to take
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medication for his mental health issues. In addition, P.O. Koval stated that an interpreter was made available to Mother at the
child’s mental health evaluation, but she refused this service. When questioned on cross examination by CYF’s legal counsel,
Ms. Koval made it clear that it was her position that Mother was still refusing medication for the child and for the child to have
mental health treatment. Ms. Koval also indicated that she had concerns because Mother had also refused to sign needed releases
for an IEP for the child or any other mental health evaluations to occur (See H.T., 5/20/2013, P. 24).
The child’s court appointed educational/ medical guardian also testified confirming the child’s untreated mental health issues
and Mother’s reluctance to cooperate and allow treatment of her son (See H.T., 5/20/2013, P. 33-39). Attorney Profeta’s testimony
that Mother was unwilling to permit the child to take medication for his mental health issues clearly convinced the court of
section (1) dependency, further testifying that Mother was either unwilling or unable to assist the child to obtain an I.E.P., which
would permit him to graduate from high school.
This court notes that Mother testified that she would now be willing to help her son get help but did not find it credible based
on Mother’s prior history of denying that her son had a mental health problem and refusing to cooperate with his treatment (See
H.T., 5/2/2013, p. 54-55). This court also notes that Mother still would not admit that the child had mental health issues.
This court also found clear and convincing evidence that the child was out of control supporting its finding that the child was
dependent under section six of the Juvenile Act 42 Pa. C.S.A. § 6302 “Dependent Child”. Probation Officer Koval provided testimony that the child had been exhibiting out of control behavior evidenced by the three outstanding delinquency petitions that had
been filed by Allegheny County Juvenile Probation. All three of the child’s petitions contain allegations that the child assaulted his
family members (sister and mother) and a school official all of which necessitated police intervention with the last assault resulting in the child’s detention at Shuman Center. This court notes that it has taken judicial notice of its prior court orders and other
documents filed in this case to supplement Ms. Koval’s testimony regarding the child’s out of control behaviors. Pa. R.E. Rule 201
Judicial Notice of Adjudicative Facts. This court also considered its observations of the child at prior hearings where he exhibited
out of control behaviors necessitating that he remain handcuffed and shackled during prior hearings see In Re Quick, 559 A.2d 42,
46 (Pa. Super. 1989).
CYF’s third allegation of error contends that this court abused its discretion by adjudicating the child dependent when it
considered and relied on testimony and/or evidence presented outside the dependency hearing and at previously conducted delinquency proceedings where all parties were not present and/or represented.
CYF asserts that because this court presided over a number of prior delinquency proceedings for this child, any testimony that
it may have heard from the child or other witnesses must not be considered when adjudicating the child dependent. This court
provided CYF, along with other parties, Notice that the child’s behavior and mental health problems, along with Mother’s lack of
housing and unwillingness to cooperate to obtain mental health treatment for her son, would be considered at the child’s dependency hearing (see Judge McVay’s April 2, 2013, detention review order). In addition, this court provided CYF Notice that “It was
taking judicial notice of adjudicative facts of evidence of dependency that was part of the record in this child’s delinquency cases.
THE COURT HAS HEARD EVIDENCE OF DEPENDENCY AS TO SECTIONS ONE AND SIX IN PREVIOUS DELINQUENCY
HEARINGS AND WILL CONSIDER IT WHEN DETERMINING THE DEPENDENCY ADJUDICATION” (See Judge McVay’s May
8, 2013, order), which complies with the Pennsylvania Rules of Evidence, Rule 201 (e) Opportunity to Be Heard, Pa. R.E. 201 (e),
“On timely request, a party is entitled to be heard on the propriety of taking Judicial Notice and the nature of the fact to be Noticed.
If the court takes Judicial Notice before notifying a party, the party on request is still entitled to be heard”. CYF had ample time
to obtain transcripts, court orders, psychiatric evaluations and reports prior to the May 20, 2013, hearing and to subpoena Drs.
Zerby and Neeper to testify. This court also notes that CYF was again notified in early March of 2013, of additional dependency
issues in this case and invited by P.O. Koval to attend the child’s April 2, 2013, detention hearing. In light of CYF’s refusal to
participate in this case until the May 8, 2013, status conference, its claim that they were not present or represented at these hearings was intentional. It is abundantly clear to this court that CYF’s absence from these hearings was clearly by its own omission
or affirmative choice and refusal to participate because probation was involved and the child would soon be 18 years of age. The
court must have the authority to adjudicate dependency under these circumstances and had been presented with CYF issues by
the unrepresented probation officer and had all the typical represented parties including the negligent parent and untreated child
being unassisted by CYF because they believed it to be probation’s case.
CYF’s second allegation of error contends that this court erred as a matter of law when it denied Mother’s request for a continuance after it learned that the court interpreter spoke a different dialect than Mother and Mother’s counsel was having difficulty
communicating with his client. The record is clear that the court has always provided Mother with an interpreter. In fact, the
record indicates that Mother had used the same interpreter at three prior hearings in this case. The record is also clear that Mother
never advised this court that Mr. Mwaliya spoke a different dialect or that she had difficulty communicating with this interpreter
or the court. Therefore, this court is skeptical of Mother’s claim that she could not communicate with her legal counsel due to a
dialect deficiency of Mr. Mwaliya, the same interpreter that she had used on at least three prior hearings without complaints. Based
on the court’s own communications with Mother, and what the court finds, is that Mother does have an understanding of matters
greater than portrayed by CYF, and it believes that Mother would have informed the court the first time Mr. Mwaliya had been
employed as interpreter if there was a true dialect problem, not the fourth time. This court also finds it unusual for CYF to present
an alleged error by this court that does not affect its rights, but that of the Mother, who did not raise this issue on appeal.1
CYF’s fourth and last allegation of error contends that this court erred as a matter of law when it denied a request for a continuance after the minor’s counsel informed the court that she had not been able to have a meaningful conversation with her client
because of untreated mental health issues and requested that a Guardian ad Litem be appointed. The record is clear that Kids Voice
was appointed Guardian ad Litem for this child on March 21, 2013, (see Judge Cozza’s order dated 3/21/2013), two months prior
to this hearing. Therefore, CYF’s claim of error based on the lack of the child having a GAL appointed fails. The court also notes
that CYF’s allegation of error essentially concedes that the child has mental health issues i.e. competency concerns and contradicts its claims that the court did not have sufficient evidence to find the child dependent under sections (1) and (6). It should be
noted that this court found the child dependent due to Mother’s failure to seek treatment for her son’s mental health problems, The
other finding of dependency was that the child was exhibiting out of control behaviors due to the untreated mental health issues.
Again, it should be noted that CYF’s alleged error by this court does not adversely affect CYF, but rather the child and/or the GAL
who did not appeal at all
Finally, while acknowledging the lack of statutory or case law authority, this court would opine that when a child is found incompetent to participate in their delinquency hearing due to untreated mental health needs and has committed delinquent acts, this is
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similar to a 42 Pa. C.S.A. § 6302 “Dependent Child” section (7) when a child under the age of 10 years commits a delinquent act or
crime, they are deemed to be dependent. In this case, the child is mentally incompetent, thus lacking mental capacity. The child
who is 10 years or younger, also is presumed to lack capacity and therefore deemed dependent. This court views both children as
lacking capacity and therefore should be treated similarly i.e. dependent.
CONCLUSION
In conclusion, no reversible error occurred and the court’s findings should be affirmed and CYF’s appeal shall be dismissed
with prejudice.
BY THE COURT:
/s/McVay, J.
Date: May 28, 2013
1
Mother filed her own appeal on July 14, 2013, at 1143 WDA 2013, in which she does not raise the issue of not being able to
communicate with her interpreter.
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
JUVENILE DIVISION
In Re: I.A.
Appeal of F.A., Mother
No. 1143 WDA 2013—Docket No: 2343-12
June 26, 2013
OPINION
F.A. is the natural mother of I.A. and appeals this court’s continued jurisdiction of the child’s dependency case after the child
has turned 18. This court found I.A. dependent pursuant to the Pennsylvania Juvenile Act at 42 Pa. C.S.A. § 6302 “Dependent Child”
sections (1) and (6), on May 20, 2013, before the child turned 18. CYF filed an appeal of this court’s finding the child dependent on
June 14, 2013 at No. 1044 WDA 2013. The child also has three pending delinquency petitions before this court which have been
continued due to the child being found incompetent at this time as stipulated by the parties. Specifically, Mother’s Concise
Statement of Matters Complained on appeal avers:
1. The Trial Court abused its discretion by not applying the law when it continued to exercise jurisdiction over I.A. after
he had turned 18 and not signed an affidavit or given any other consent to remain under the Trial Court’s Jurisdiction.
2. The Trial Court abused its discretion by not applying the law and making a decision that was manifestly unreasonable
when it reasoned that a determination of incompetence in a separate delinquency matter justified its exercising jurisdiction over a person of majority age without their consent and outside the scope of the Juvenile Act.
HISTORY
F.A. is the mother of I.A. (D.O.B. 6/6/1995). F.A. and the child have a history with CYF and juvenile court dating back to
November of 2012. The history of this case has been detailed in the court’s prior opinion filed on July 24, 2013, at 1044 WDA 2013,
and therefore will not be repeated, but incorporated by reference.
DISCUSSION
First and foremost, the record is clear that this court found the child dependent pursuant to the Pennsylvania Juvenile Act at
42 Pa. C.S.A.§ 6302 “Dependent Child” sections (1) and (6), by order dated May 20, 2013 and filed June 3, 2013, all of which was
prior to the child’s 18th birthday. Therefore, contrary to Mother’s allegation of error, this court had proper jurisdiction of this child
under the scope of the Juvenile Act, when it found the child dependent, on May 20, 2013.
Mother contends that this court somehow automatically loses its jurisdiction over a dependent child upon the child turning 18.
The Pennsylvania Rules of Juvenile Court Procedure, Pa. R.J.C.P. 1613 E. clearly requires the court to conduct a hearing before
terminating its supervision and thus ensuring that the child’s best interests are protected.
Rule 1613 Termination of Court Supervision:
A. Concluding Supervision. Any party, or the court on its own motion, may move for termination of supervision when
court-ordered services from the county agency are no longer needed:
...
(10) the child is eighteen years of age or older and a hearing has been held pursuant to paragraph (E) for a child who is
age eighteen or older.
...
E. Children eighteen years of age or older.
(1) Before the court can terminate its supervision of a child who is eighteen years of age or older, a hearing shall be
held at least ninety days prior to termination.
(2) Prior to the hearing, the child shall have the opportunity to make decisions about the transition plan and confer
with the county agency about the details of the plan. The transition plan shall, at a minimum, include:
(a) the specific plans for housing;
(b) a description of the child’s source of income;
(c) the specific plans for pursuing educational or vocational training goals;
(d) the child’s employment goals and whether the child is employed;
(e) a description of the health insurance plan that the child is expected to obtain and any continued health or
behavioral health needs of the child; (emphasis added).
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(f) a description of any available programs that would provide mentors or assistance in establishing positive adult
connections;
(g) verification that all vital identification documents and records have been provided to the child; and
(h) a description of any other needed support services.
(3) At the hearing, the court shall review the transition plan for the child. If the court is not satisfied that the requirements of paragraph (E) (2) have been met, a subsequent hearing shall be scheduled.
(4) The court shall not terminate its supervision of the child without approving an appropriate transition plan, unless
the child, after an appropriate transition plan has been offered, is unwilling to consent to the supervision and the
court determines termination is warranted.
F. Cessation of services. When all of the above listed requirements have been met, the court may discharge the child from
its supervision and close the case.
Pa. R.J.C.P. 1613.
The record is clear that Mother, nor any other party, has moved this court to schedule a hearing to terminate court supervision
of this child’s dependency case which is clearly required by Pa. R.J.C.P. 1613 A. In addition, since the child is eighteen years old,
a hearing is required by Pa. R.J.C.P. 1613 E. The purpose of Rule 1613 E. is clearly to ensure that a child has an adequate transition plan. This requires the court to review the child’s proposed transition plan to determine that the child’s needs and welfare will
be met. This court notes that one of the areas to be addressed by the proposed transition plan includes the behavioral needs of the
child specifically provided for in Rule 1613 E (2) (e). It should be emphasized that this court has grave concerns regarding the
child’s mental health issues and his need of mental health treatment. Therefore, this court will not consider terminating court
supervision without a hearing to determine that an adequate plan has been implemented to insure that the needs and welfare of
the child will be met including mental health treatment. In fact, Rule 1613 E (3) empowers the court to schedule another hearing
if the court is not satisfied that the requirements of (E) (2) have not been met. In addition, this court would opine that another
underlying purpose of the Rule 1613 E is to ensure that a child is making a knowing, intelligent and voluntary decision to close
their CYF case.
Moreover, the Juvenile Act requires this court to conduct a hearing whenever a child over 18 years of age requests termination
of their OCYF services, and to ensure that a transition plan has been implemented or offered.
(f.) Matters to be determined at permanency review- at each permanency review hearing, a court shall determine all of
the following:
...
(8.) The services needed to assist a child who is 16 years of age or older to make the transition to independent living.
(8.1) Whether the child continues to meet the definition of “child” and has requested that the court continue jurisdiction pursuant to section 6302 if the child is between 18 and 21 years of age.1
(8.2) That a transition plan has been presented in accordance with Section 475 of the Social Security Act (49 stat. 620,
42 U.S.C. § 675(5) (H)).
42 Pa. C.S.A § 6351 f. (8.1), (8.2).
This court’s retention of jurisdiction over the dependent child after he turned 18 was not an abuse of discretion as a termination hearing has not been requested, scheduled or completed as required by Pa. R.J.C.P. 1613. Therefore, this court’s retention of
jurisdiction over the child complies with the Juvenile Act and Pennsylvania Rules of Juvenile Court Procedure.
Mother’s second averred error asserts that this court abused its discretion by failing to apply the law and making a decision
that was manifestly unreasonable when it reasoned that a determination of incompetence in a separate delinquency matter justified its exercising jurisdiction over a person of majority age without their consent and outside the scope of the Juvenile Act. Again,
the record is clear in this case that this court found the child dependent due to Mother’s failures to seek treatment for her son’s
mental health problems and that the child was exhibiting out of control behaviors due to untreated mental health issues all of which
are detailed in its Opinion filed on July 24, 2013, at No. 1044 WDA 2013. The record is also clear that the court found the child
dependent before his 18th birthday which negates Mother’s allegation that the court extended jurisdiction over a person of majority
age without their consent as patently untrue. In fact, this court would opine that Mother’s second averment of error is a thinly
disguised collateral attack on this court’s May 20, 2013 order in which it found the child dependent. Mothers’ claim of error clearly
refers to evidence considered by this court at the child’s dependency hearing not the review hearing, which is the subject of this
appeal. The record is clear that Mother did not appeal this court’s order finding the child dependent and is now attempting to do
so by appealing this court’s June 25, 2013 order that continued an in- home/permanency review hearing due to the child failing to
appear. Mother had an opportunity to appeal this court’s finding of dependency and failed to do so. Our Supreme Court has held
that “collateral estoppel is good where the party against whom it is asserted has had a full and fair opportunity to litigate the issue
in question in a prior hearing “In re Ellis’ Estate, 333 A.2d 728, 731(Pa 1975). Mother should be estopped from collaterally attacking this court’s May 20, 2013 dependency order by appealing an order to continue an in-home/permanency review hearing.
CONCLUSION
In conclusion, no reversible error occurred and this court’s findings should be affirmed and Mother’s appeal should be
dismissed with prejudice.
BY THE COURT:
/s/McVay, J.
Date: June 26, 2013
1
Section (8.1) was added to the Juvenile Act by Act No. 2012-91 H.B. 75 which also included resumption of jurisdiction for children who are over 18, but under 21 years of age.