VOL. 160
november 16, 2012
NO. 23
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
Pittsburgh Logistics Systems, Inc. v.
Gregg A. Troian, Ward, J. ........................................................Page 463
Miscellaneous—Arbitration—Irregularity—
Due Process—Discovery
Commonwealth of Pennsylvania v.
Lamon Street, McDaniel, P.J. ..................................................Page 479
Criminal Appeal—Homicide (1st Degree)—Juvenile Defendant—
Life Without Parole—Illegal Sentence
Red Oak Water Transfer NE, LLC v.
Countrywide Energy Services, LLC,
David Lloyd and Kelly Blackburn, Ward, J. ..........................Page 466
Miscellaneous—Non-compete—Consideration—
Stock Options—Irreparable Harm
Commonwealth of Pennsylvania v.
Terrie Greene, McDaniel, P.J. ..................................................Page 480
Criminal Appeal—Homicide (3rd Degree)—Sufficiency—
Self Defense—Sentencing (Discretionary Aspects)—
Malice—Spontaneous Statements
Commonwealth of Pennsylvania v.
Marcaius Butler, Borkowski, J. ................................................Page 474
Criminal Appeal—Suppression—Shackling of Defendant—
Terry Pat Down
Commonwealth of Pennsylvania v.
Tyree Gaines, McDaniel, P.J ....................................................Page 483
Criminal Appeal—Homicide (2nd Degree)—
Evidence—Photograph—Codefendant’s Statement—
Failure to Grant Counsel Time to Prepare—Recusal—Severance
Commonwealth of Pennsylvania v.
Thomas Wayne Bidek and Jake Thomas Wicks,
Borkowski, J. ..............................................................................Page 476
Criminal Appeal—Restitution—
Joint and Several Liability—Speculative Amount—
Damages Not Timely Produced
Commonwealth of Pennsylvania v.
Richard McCracken, McDaniel, P.J. ......................................Page 487
Criminal Appeal—SVP—Weight of the Evidence—Waiver—
Rape of a Child—Juror Note Taking—Expert Witnesses—
Prosecutorial Misconduct
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november 16, 2012
pa g e 4 6 3
Pittsburgh Logistics Systems, Inc. v.
Gregg A. Troian
Miscellaneous—Arbitration—Irregularity—Due Process—Discovery
No. GD 12-002768. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
Ward, J.—July 17, 2012.
OPINION
Appellant, Pittsburgh Logistic Systems, Inc. (“PLS”), appeals an Order of this Court, dated April 18, 2012, denying its Petition
to Vacate Arbitration Award.
INTRODUCTION
On January 13, 2012, PLS filed a Petition to Vacate Arbitration Award with the Court of Common Pleas of Butler County against
its former Chairman of the Board of Directors and President, Appellee, Gregg A. Troian (“Troian”). Troian’s Motion to Assign
Matter to Commerce and Complex Litigation Center in the Court of Common Pleas of Allegheny County, dated February 13, 2012,
was granted by this Court on March 21, 2012.
PLS and Troian were parties to several employment agreements arising from Troian’s employment by PLS. Based on events
in 2009, PLS placed Troian on paid administrative leave. Subsequently, Troian tendered his resignation and, under a mandatory
provision in the employment agreements, requested arbitration with the American Arbitration Association (“AAA”) for, inter alia,
his unpaid incentive compensation, severance benefits and attorneys’ fees and expenses. Domenic A. Bellisario was designated as
arbitrator (“Arbitrator”).
After arbitration proceedings lasting nearly nineteen (19) months, the Arbitrator issued an Interim Award of Arbitrator finding
in favor of Troian and against PLS awarding $318,874.42 “plus costs and reasonable attorney fees to be determined.” Furthermore,
the Arbitrator directed PLS to provide consolidated financial statements for PLS and its affiliates from September 2009 through
November 2011 and consolidated audited financial statements for PLS and its affiliates for the fiscal years ending September 30,
2009 through September 30, 2011.
After issuing the Interim Award, the Arbitrator spent four (4) months considering the issue of attorneys’ fees and costs. During
those months, the Arbitrator ordered the production of documents and accepted at least eight (8) separate filings relative to the
attorneys’ fees issue. After those proceedings, the Arbitrator issued his Final Award on December 14, 2011, revising Troian’s award
to $255,099.37 plus interest of $25,500.76, and awarding an additional $325,000 for “costs and reasonable attorney fees” for a total
of $605,600.13.
Oral argument on PLS’s Petition to Vacate Arbitration Award was heard on April 17, 2011. Upon consideration of PLS’s
Petition to Vacate Arbitration Award, its respective responses, along with the entire record in this case, this Court issued an Order
dated April 18, 2011, denying PLS’s Petition to Vacate Arbitration Award and confirming the Interim and Final Awards of the
Arbitrator.
MATTERS COMPLAINED OF ON APPEAL
Pursuant to this Court’s Order on May 15, 2012, and Pa.R.A.P. 1925(b), PLS filed a Concise Statement of Errors Complained of
on Appeal on May 31, 2012, with the following questions:
1) Whether the trial court erred in denying [PLS’s] Petition to Vacate Arbitration Award.
2) Whether the substantial award of attorney [sic] fees and costs against [PLS] by the Arbitrator without affording PLS
discovery and a hearing on the nature and extent of fees claimed was a deprivation of PLS’s right to due process and a
fair adjudication of claims raised against it.
3)Whether an arbitrator’s award of attorneys [sic] fees and costs should be vacated when it is rendered contrary to law
guiding the award of such fees and costs.
This opinion sets forth reasons why the matters complained of on appeal are meritless.
FINDINGS OF FACT
A. The Dispute in Arbitration and Interim Award
On or about December 16, 2009, Troian, PLS’s former Chairman of the Board of Directors and President, commenced an arbitration proceeding against PLS in accordance with a mandatory arbitration provision in his employment agreement. See Pet. to
Vacate Arbitration Award (hereinafter “Pet.”), ¶¶ 4, 6-9, Ex. B, Ex. E; See also Answer to Pet. to Vacate Arbitration Award, ¶ 4. In
the arbitration, Troian sought, among other employment-related and compensation claims, attorneys’ fees and costs. See Pet., Ex.
B, Ex. D, Ex. E, Ex. K; See also Answer to Pet., ¶ 9.
Over the course of these arbitrator proceedings, the parties engaged in discovery, including interrogatories and requests for
production of documents and depositions. See generally Pet. After this discovery, the arbitration hearing was held over ten (10)
days: January 11-14, 2011, February 21-25, 2011 and March 30, 2011. The transcript of the testimony at the arbitration hearing
spans 2,229 pages. Pet., Ex. E, ¶ 23, at 8.
On July 8, 2011, the Arbitrator issued an Interim Award, awarding compensatory damages to Troian in the amount of
$318,874.42. Pet. Ex. D, at 20-21. The Arbitrator also required PLS to provide consolidated financial statements for PLS and its
affiliates for each month from September 2009 through November 2011, and consolidated audited financial statements for PLS and
its affiliates for the fiscal years ending September 30, 2009 through September 30, 2011. The Arbitrator retained jurisdiction over
the dispute to determine costs and attorneys’ fees to which Troian was entitled as the prevailing party and required Troian to
submit a petition for costs and attorneys’ fees within fifteen (15) days. The Arbitrator afforded PLS fifteen (15) days after receipt
of Troian’s petition to file any objection to the amount sought. Id. at 21.
B. The Attorneys’ Fees Issue at Arbitration
After prevailing on the merits of the arbitration, Troian timely submitted his Petition for Attorneys’ Fees and Costs (hereinafter
“Fees Petition”) on July 22, 2011. See Pet., Ex. E. With it, Troian provided detailed invoices for the attorneys’ fees and costs that
he incurred which totaled $343,288.06. Id. On July 29, 2011, PLS submitted a Motion for Expedited Discovery asking for discov-
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ery relating to Troian’s Fees Petition in order to have a full and fair opportunity to contest Troian’s fee demand. See Pet., Ex. F,
prayer for relief (unpaginated). Nine (9) days later, on August 8, 2011, PLS submitted its Brief in Opposition to Claimant’s Petition
for Attorney’s [sic] Fees and Costs, requesting, in addition to the previously requested discovery in its Motion for Expedited
Discovery, Troian’s Fees Petition be adjusted to reflect reasonable fees and costs as set forth in PLS’s Brief. Pet., Ex. H., prayer for
relief, at 20.
In response to PLS’s submissions, the Arbitrator conducted a conference call with all counsel on September 1, 2011 to address
PLS’s requests concerning Troian’s Fees Petition. See Pet., Ex. G. Following that hearing, the Arbitrator entered the following
Order:
A conference call was held on September 1, 2011, with [all counsel], Arbitrator Bellisario and the undersigned and the
following arrangements were made:
• On or before September 7, 2011, [Troian] shall submit to [PLS] all back up documents for his attorney [sic] fees
claim petition;
• On or before October 3, 2011, [PLS] may raise any other issues as to the reasonableness of [Troian’s ] attorney [sic]
fees claim petition and may submit a response to any Reply to [PLS’s] Motion to Reconsider filed by [Troian]; and
• On or before October 11, 2011, [Troian] may file a response to any issues raised by PLS as to the reasonableness of
[Troian’s] attorney [sic] Fees Petition.
Pet., Ex. G. Pursuant to the arrangements ordered by the Arbitrator, Troian complied and produced additional documentation in
support of his Fees Petition on September 7, 2011. See Pet. ¶ 18.
Troian further submitted a Supplemental Petition for Attorneys’ Fees, Costs, And Post-Award Interest on October 11, 2011. See
Pet. ¶ 21, Ex. J. Troian’s Supplemental Petition requested post-award interest of $6,028.04 on the $318,874.42 Interim Award and
supplemental attorneys’ fees and costs of $27,755.50 on top of the previously submitted $343,288.06 attorneys’ fees and costs. PLS
responded on October 24, 2011 with its Respondent’s Supplement to its Opposition to Claimant’s Petition for Attorney’s [sic] Fees
and Costs, requesting Troian’s Fees Petition be adjusted to reflect reasonable fees and costs. See Pet., Ex. I. PLS further responded
with Respondent’s Second Supplement to its Opposition to Claimant’s Petition for Attorney’s [sic] Fees and Costs also dated
October 24, 2011, requesting the same relief as PLS’s first Supplement. Id.
Over the course of nearly four months after the issuance of the Interim Award the parties had exchanged at least eight (8)
submissions and had at least one (1) conference addressing the Fees Petition.
C. The Arbitrator’s Final Award
The Arbitrator issued his Final Award on December 14, 2011. Pet, Ex. K. In the Final Award, the Arbitrator concluded that
Troian’s fees and costs for his counsel were “reasonable for the services provided.” Id. However, the Arbitrator noted,
[A] tremendous amount of time was expended on a case that should have been completed in a much more expeditious
manner. Given the number of pre-hearing disputes and the protracted hearing conducted in the matter, it is clear to
the [Arbitrator] that both parties were engaged in litigation tactics that drove up the costs in the case. . . . [F]or the
purposes of fee shifting many of the tasks could have been completed in a more expeditious manner or perhaps avoided
altogether and therefore, PLS should not be responsible for all such fees, even if Troian is.
Id. The Arbitrator concluded that $325,000 represented fair and reasonable attorneys’ fees and costs for the work performed by
Troian’s counsel—a $46,043.56 reduction from the $371,043.56 Troian submitted. Also, the Arbitrator reduced the Interim Award
to $255,099.37 but added $25,500.76 interest. The combined total of the Award for Troian was $605,600.13. Any other “claims not
expressly granted” were denied. Id.
DISCUSSION
A. The Standard of Review of this Arbitration Is Pursuant to Common Law.
The arbitration was conducted under the rules of the AAA pursuant to a written agreement that did not specify the application of the Uniform Arbitration Act. Pet., Ex. B, § 20. An agreement to arbitration that does not provide for statutory arbitration is governed by common law. 42 Pa.Cons.Stat.Ann. § 7302(a) (West 1998); Gentile v. Weiss, 477 A.2d 544, 545-46
(Pa.Super. 1984). The arbitration process is a “system designed to provide an expeditious and inexpensive method of resolving disputes with the further winning attribute of helping to ease congested court calendars.” Allstate Ins. Co. v. Fioravanti,
299 A.2d 585, 589 (Pa. 1973)
Although governed by common law, “[j]udicial review of . . . arbitration is very narrow.” Hade v. Nationwide Ins. Co., 546 A.2d
615, 616 (Pa. 1988). Arbitrators are the final judges of both law and fact, and a common law arbitration award is not reviewable on
the basis of error of law or fact. Runewicz v. Keystone Ins. Co., 383 A.2d 189, 191-92 (Pa. 1978); Fioravanti, 299 A.2d, at 588-89;
Giant Markets, Inc. v. Sigma Marketing Systems, Inc., 459 A.2d 765, 769 (Pa.Super. 1983).
B. The Appellant Bears the Burden on Appeal of an Arbitration Award.
The Appellant bears the burden on appeal of an arbitration award to establish both the underlying irregularity of the arbitration proceedings and the resulting inequity of the award by clear, precise, and indubitable evidence. 42 Pa.Cons.Stat.Ann. § 7341
(West 1998); McKenna v. Sosso, 745 A.2d 1, 4 (Pa.Super. 1999); 19 Standard Pennsylvania Practice 2d § 103:143 (emphasis added).
Every presumption favors the validity of the arbitration award. Reinhart v. State Auto. Ins. Ass’n, 363 A.2d 1138, 1142 (Pa.Super.
1976).
First, PLS alleges an irregularity in the evidence offered by Troian in support of the attorneys’ fees and costs submitted in
its Fees Petition. In its Brief in Support of Petition to Vacate Arbitration Award, PLS cites “[i]t is possible to hypothecate [sic]
an arbitration award which imports such bad faith, ignorance of the law and indifference to the justice of the result as to cause
us to give content to the phrase ‘other irregularity’ since it is the most definitionally elastic of the grounds for vacatur.”
Fioravanti, 299 A.2d, at 589. Although “irregularity” is definitionally elastic under Fioravanti, nothing in the record suggests
that an irregularity, if any, took place during the arbitration proceedings that rose to the level of fraud, misconduct or corruption that was committed by Troian or the Arbitrator. “To set aside an award the court must find fraud, misconduct, corruption,
or similar irregularity, leading to an unjust, inequitable, or unconscionable result. Mellon v. Travelers Ins. Co., 406 A.2d 759, 761
november 16, 2012
pa g e 4 6 5
(Pa.Super. 1979) (emphasis added).
Second, even if the alleged irregularity was present during the arbitration proceedings, it did not “[cause] the rendition of an
unjust, inequitable or unconscionable award.” § 7341. Actually, in the Final Award, the Arbitrator reduced the Interim Award on
the merits for Troian from $318,874.42 to $255,099.37. Furthermore, despite finding that the hourly rates billed by Troian’s counsel
were “reasonable for the services provided,” the Arbitrator reduced Troian’s request for $371,043.56 in attorneys’ fees and costs
to $325,000. Pet, Ex. K. Altogether PLS effectively pleaded the attorneys’ fees and costs down a total of $84,317.85, despite the
Arbitrator finding that “both parties were in engaged in litigation tactics that drove up the costs in this case.” Id.
Lastly, despite the reduction in attorneys’ fees and costs awarded to Troian, PLS alleges that the Final Award is excessive. PLS’s
argument is meritless. It does not provide any clear, precise or indubitable evidence to support the inequity or unconscionability
of the Final Award. Merely claiming an award as excessive is insufficient to justify setting aside the award. Cargill v. Northwestern
Nat. Ins. Co. of Milwaukee, Wis., 462 A.2d 833, 835 (Pa.Super. 1983). On the contrary, the Arbitrator found that the attorneys’ fees
and costs awarded to Troian were “not excessive and . . . in line with rates routinely approved by . . . judges . . . in employment
cases.” Pet., Ex. K.
C. PLS Was Not Denied Due Process.
PLS alleges that it was denied a request for discovery during the arbitration proceedings regarding the Fees Petition. See Pet.
But the Arbitrator, in accordance with to the parties’ conference call arrangement, ordered discovery on the Fees Petition and
gave both sides a full opportunity to submit briefs. The Arbitrator requested that Troian submit all “back up documents” for his
attorneys’ fees and costs. Pet., Ex. G. Per the parties’ arrangement, Troian submitted the documents. Pet. ¶ 18. Subsequently, PLS
submitted an Opposition to Claimant’s Petition for Attorney’s [sic] Fees and Costs, a Supplement to its Opposition to Claimant’s
Petition for Attorney’s [sic] Fees and Costs, and a Second Supplement to its Opposition to Claimant’s Petition for Attorney’s [sic]
Fees and Costs.
PLS also alleges that it was denied a hearing on the Fees Petition. “A hearing which comports with procedural due process must
be full and fair and must be held before impartial and disinterested arbitrators.” Donegal Ins. Co. v. Longo, 610 A.2d 466, 468
(Pa.Super. 1992). However, PLS never expressly requested a live evidentiary hearing on the issue of attorneys’ fees and costs.
Nonetheless, PLS was given full and fair opportunities during arbitration proceedings to present its side and rebut Troian’s Fees
Petition in front of a neutral arbitrator. See generally, Pet. Ex. F, Ex. G, Ex. H, Ex. I.
But even if PLS’s alleged deprivation of its right of due process occurred during the arbitration proceedings,
[c]ontractual arbitration is a voluntary dispute resolution process. Prior to entering the contract, neither party
is obligated to submit a dispute to arbitration, as is the case with the normal judicial process. Thus, the due
process guarantees of the Constitution, although desirable in the eyes of many, are not mandatory in an arbitration proceeding.
Morris Lapidus Associates v. Airportels, Inc., 361 A.2d 660, 663 (Pa.Super. 1976) (emphasis added).
Also, by never expressly requesting a live evidentiary hearing during the arbitration proceedings, PLS waived the issue.
PLS cannot now properly claim, let alone establish by the requisite clear, precise and indubitable evidence standard, that the
arbitrator denied PLS a hearing on the issue of attorneys’ fees and costs. See Jefferson Woodlands Partners, L.P. v. Jefferson
Hills Borough, 881 A. 2d 44, 50 (Pa.Cmwlth. 2005) (affirming arbitrator’s decision based upon the parties’ written motions after
concluding that a party waived the issue of evidentiary hearing when it cancelled a scheduled hearing). In Jefferson
Woodlands, the Commonwealth Court held that a party had waived the issue because it “did not challenge that arbitrator’s
authority until after the fact” and “never objected to the arbitrator’s authority to decide that case based upon a motion for
summary judgment.” Id.
Here, PLS neither challenged the Arbitrator’s authority in awarding attorneys’ fees and costs nor objected to the Arbitrator’s
decision solely based on the written petition and responses. PLS merely requested in its submission on the issue of attorneys’ fees
and costs that (1) “discovery to the fee [sic] petition be granted” and that (2) “Claimant’s fee [sic] petition be adjusted to reflect
reasonable fees and costs.” Pet., Ex. H, prayer for relief, at 20, Ex. I, prayer for relief (unpaginated). Both of these requests were
granted by the Arbitrator. Pet., ¶ 18, Ex. K.
PLS points to no case law from Pennsylvania that requires an arbitrator to conduct a separate live evidentiary hearing on a
prevailing party’s petition for attorneys’ fees and costs, after the arbitrator conducted a hearing on the underlying claim.
D. PLS’s Claims Are Barred by Contract.
In addition to its meritless claim of lack of due process, PLS is barred from its claims by the law of contracts. “Arbitration agreements are contracts and should be interpreted using contract principles.” Bucks Orthopaedic Surgery Associates, P.C. v. Ruth, 925
A.2d 868, 872 (Pa.Super. 2007). Here, the parties, by contract, agreed to be bound by the rules of the AAA. Troian’s employment
agreement with PLS contained the following Dispute Resolution clause which stated:
[A]ny dispute, controversy or claim (“Dispute”) arising out of or relating to this Agreement, or breach thereof, shall
be resolved by binding arbitration by the [AAA] in accordance with the then current rules in effect governing
arbitration of such matters.
Pet., Ex. B. The operative AAA Employment Arbitration Rules and Mediation Procedures—binding on PLS by contract—defeat
PLS’s arguments.
The AAA Employment Arbitration Rules place discovery issues squarely within the Arbitrator’s discretion. Rule 9,
“Discovery,” gives the Arbitrator the authority to order discovery as he “considers necessary to a full and fair exploration of the
issues in dispute, consistent with the expedited nature of arbitration . . . .” See Employment Arbitration Rules and Mediation
Procedures: Rules Amended and Effective November 1, 2009, American Arbitration Association, http://www.adr.org/ (follow “Rules
& Procedures”; then follow “Search Rules”; then scroll down and follow “Employment Arbitration Rules and Mediation
Procedures: Nov 01, 2009”). Given that a primary purpose of arbitration is to reduce time and expense, this Court grants extraordinary deference to the judgment of arbitrators during arbitration proceedings as the final judges of law and facts—which are not
reviewable upon appeal. Wingate Const. Co. v. Schweizer Dipple, Inc., 213 A.2d 275, 277 (Pa. 1965); see also Fioravanti, 299 A.2d,
at 589.
Here, the Arbitrator, vested with wide discretion over discovery as provided by AAA Rules, granted PLS’s request for discovery
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on the Fees Petition. PLS apparently was not satisfied with the content of the discovery which it received. It argued that, based on
this discovery, Troian could not sustain his burden of proof. The Arbitrator rejected that argument—and that legal conclusion is
immune from appellate scrutiny. Id.
PLS’s complaint about the absence of a live hearing is also barred by the AAA rules. First, those rules do not mandate a live
hearing on a prevailing party’s fee petition. See Employment Arbitration Rules, supra. To the contrary, Rule 28 gives the Arbitrator
wide discretion in the “Order of Proceedings.” That discretion includes the authority to allow for the presentation of evidence by
“alternative means,” including by “means other than in-person presentation of evidence.” Id. Pennsylvania law similarly defers
to an arbitrator’s discretion to adapt the proceedings to the nature of the case. See, e.g., Fiorvanti, 299 A 2d., at 588 (affirming
arbitrator’s award where arbitrator merely precluded a form of argument, but not the argument itself).
Even if PLS had been entitled to a live hearing on the fee petition, PLS waived any objection to the absence of a live hearing.
Rule 36 provides that
[a]ny party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has
not been complied with, and who fails to state objections thereto in writing or in a transcribed record, shall be deemed
to have waived the right to object.
Employment Arbitration Rules, supra (emphasis added).
Here, PLS never expressly requested a separate live evidentiary hearing on the Fees Petition. To the extent that PLS
actually believed that it was entitled to such a hearing, Rule 36 required PLS “to state those objections . . . in writing or in
a transcribed record.” PLS failed to do either. As a result, PLS “waived the right to object” to the absence of a live evidentiary hearing. Employment Arbitration Rules, supra; see also Wark & Co. v. Twelfth & Sansom Corp., 107 A.2d 856 (Pa. 1954)
(enforcing a similar AAA rule after party failed to properly object to arbitrators’ reopening of proceedings to receive additional evidence).
CONCLUSION
Troian has met his burden to show cause as to why PLS is not entitled to its Petition to Vacate Arbitration Award in its Answer
to Petition to Vacate Arbitration Award.
On the other hand, PLS has not met its burden to establish any underlying irregularity of the arbitration proceedings and the
resulting inequity of the award by the clear, precise, and indubitable evidence standard. PLS was not denied due process, and even
if it were, the due process guarantees of the Constitution are not mandatory in a private contractual arbitration proceeding.
Further, PLS’s claims are barred by the law of contracts as both parties contractually agreed to be bound by the Employment
Arbitration Rules issued by the AAA. This Court is loathe to disturb the findings and conclusions of the Arbitrator. Pursuant to
Pennsylvania law and policy, arbitrators are the final judges of both law and fact and their determinations cannot be subject to a
reversal on appeal even for a mistake of law or fact.
Therefore, the findings and determinations of this Court should be affirmed.
BY THE COURT:
/s/Ward, J.
Dated: July 17, 2012
Red Oak Water Transfer NE, LLC v.
Countrywide Energy Services, LLC,
David Lloyd and Kelly Blackburn
Miscellaneous—Non-compete—Consideration—Stock Options—Irreparable Harm
No. GD 11-17598. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
Ward, J.—July 16, 2012.
MEMORANDUM
A. SUMMARY
On August 26, 2011, Red Oak Water Transfer NE, LLC (hereinafter “Red Oak LLC”) filed a Motion for Preliminary Injunction
against Defendants, Countrywide Energy Services, LLC (hereinafter “Countrywide”), David Lloyd (hereinafter “Lloyd”) and Kelly
Blackburn (hereinafter “Blackburn”), pursuant to confidentiality, non-solicitation and non-competition agreements (hereinafter
“Non-Competes”) signed by Blackburn and Lloyd while in Red Oak LLC’s employ and prior to Blackburn and Lloyd accepting
employment at Countrywide. The Non-Competes were signed subsequent to employment, and were requested with the alleged consideration of stock options offered by Red Oak LLC to the employees who entered into the Non-Competes. The Non-Competes
restricted Blackburn and Lloyd from accepting employment with any competing company within one (1) year of terminating
employment with Red Oak LLC, from sharing any confidential or proprietary information about Red Oak LLC and from soliciting
employees of Red Oak LLC. Blackburn was fired from Red Oak LLC in March of 2011, and accepted employment at Countrywide
one month later. Lloyd resigned from Red Oak LLC in August of 2011 and began working for Countrywide the same month. Red
Oak LLC filed a Motion for Preliminary Injunction, requesting that Lloyd and Blackburn be enjoined from working at Countrywide
due to their breach of the Non-Competes. Red Oak LLC specifically alleged that both Lloyd and Blackburn had used customer
information and business relationships to steal business from Red Oak LLC and had solicited employees from Red Oak LLC to
come and work for Countrywide.
The taking of testimony and the introduction of documentary evidence occurred during multiple days of hearing on Red Oak
LLC’s Motion for Preliminary Injunction before this Court. At the hearing, Red Oak LLC’s witnesses were: (1) David Isaac, Senior
Vice President at Rockwater Energy Solutions, Inc., (2) William Ardisson, President of Bit-x-bit, (3) Robert George, Chief
Operating Officer for Countrywide, (4) Alan Bennett, President and CEO of Red Oak Water Transfer, Inc., (5) Keith Ryals,
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Regional Vice President of Red Oak Water Transfer, Inc., (6) Chris Cassella, Pump Crew Supervisor at Red Oak LLC, (7) Tim
Ullom, Pump Crew Supervisor at Red Oak LLC, and (8) Matthew Smiley, District Manager at Red Oak LLC. Countrywide’s
witness was Lane Hofstetter, a Countrywide employee responsible for computer system maintenance. Blackburn and Lloyd
testified on their own behalf.
Upon consideration of the testimony and evidence offered by the parties at the hearing, this Court finds that the preliminary
injunction requested is unnecessary, that the Non-Competes were entered into without valid consideration, and that Red Oak LLC
has not met its burden of proving each of the six prerequisites necessary to the issuance of a preliminary injunction.
B. FACTUAL BACKGROUND
1. The Parties
Rockwater Energy Solutions, Inc. (hereinafter “Rockwater”) is a Texas corporation that is engaged in a variety of businesses
through its subsidiaries, including fluids management, environmental services, well testing and flowback services and fluid sales,
storage, transport, pumping and recovery. Defendant’s Exhibits 3-4 (hereinafter “D. Exs. ___.”). Red Oak Water Transfer, Inc.
(hereinafter “Red Oak, Inc.”) is one of Rockwater’s subsidiaries and is also a Texas corporation engaged in the business of providing pumps and pipes for the transfer of water, from water sources, to oil and gas drilling sites. D. Ex. 4. Red Oak Inc. has transferred water in all or portions of the states of Arkansas, Lousiana, Maryland, Montana, New York, North Dakota, Ohio,
Pennsylvania, Texas, and West Virginia. D. Ex. 1, 4.
In 2007, in response to the rapid expansion of Marcellus Shale drilling activity, Red Oak Inc. established a subsidiary business,
Plaintiff, Red Oak LLC, to conduct water transfer operations for drillers in Pennsylvania, West Virginia, and Ohio. Hearing
Transcript at 121-122, 193 (hereinafter “H.T. at ___.”). The water transferred by Red Oak LLC is used for hydraulic fracturing, also
known as “fracking.” H.T. at 175, 250. Red Oak LLC is a Texas limited liability company with headquarters in Canonsburg,
Pennsylvania. H.T. at 175, 177-178. Prior to the date of this hearing, Red Oak LLC employed approximately 350 individuals. H.T.
at 271.
Defendant, Blackburn, is a 30 year-old resident of Washington, Pennsylvania. H.T. at 343. He dropped out of high school in the
12th grade, and obtained a General Education Diploma (G.E.D.) in 1999. H.T. at 345. He has taken courses at the Pittsburgh
Technical Institute, and has limited work experience, having worked as a laborer at a golf course and as a construction worker
prior to his employment with Red Oak LLC. H.T. at 346. Blackburn is married and has two young children. H.T. at 343. His wife
only works one night a week. H.T. at 344. He provides the sole source of income for his family, and his family’s health insurance
comes solely from his employment at Countrywide. Id. Blackburn has debts in the form of mortgage, car and student loans, and
his income provides the sole source for payment of those debts. H.T. at 345. On August 10, 2009, Blackburn was hired as a laborer
by Red Oak LLC. Amended Complaint, ¶ 22; H.T. at 348. He subsequently held positions as a pump crew supervisor, and as an operations supervisor. H.T. at 353, 355. Blackburn was never involved in sales while working for Red Oak LLC. H.T. at 358.
Defendant, Lloyd, is a 31 year-old resident of Marianna, Pennsylvania. H.T. at 447. He dropped out of high school in the 12th
grade and obtained a G.E.D. in 1998. H.T. at 451-52. He has limited work experience, having worked as a laborer for a plastics company, a cook in a restaurant, a supervisor at an ice cream warehouse, and an assistant manager for an auto auctioneer prior to his
employment with Red Oak LLC. H.T. at 447-56. Lloyd lives with his fiance and their two young children. H.T. at 447. He is the sole
source of income for his family and his fiance relies on him for health insurance due to her serious health problems. H.T. at 447-50.
Lloyd has debt in the form of mortgage and car loans, and his income provides the sole source for payment of those debts. H.T. at
450. On December 8, 2008, Lloyd was hired as a laborer by Red Oak LLC. Amended Complaint, ¶ 18; H.T. at 457. He subsequently
held positions as a pump crew supervisor, field supervisor, and operations supervisor. H.T. at 456-57, 459.
Countrywide Energy Services, LLC (hereinafter “Countrywide”) is a Pennsylvania limited liability corporation that has its principal place of business in Canonsburg, Pennsylvania. It is a relatively new business, having only formed in 2010. H.T. at 79.
Countrywide provides a variety of services to the oil and gas drilling industy, including water transfer, liner installation, well hookups, supply of heavy equipment, well-site maintenance, trash pickup, road repair, installation of signs, and cleaning drilling rigs.
Answer to Amended Complaint at ¶ 16. Countrywide currently employs both Blackburn and Lloyd. H.T at 383, 500.
2. The Non-Competes
On July 20, 2010, an equity investment firm called SCF Partners (hereinafter “SCF”) agreed to purchase 75% of Red Oak, Inc.,
and paid $12 million for 120,000 shares of stock valued at $100 a share. H.T. at 26. After acquiring Red Oak, Inc., SCF decided to
implement a stock option program, granting various employees of Red Oak stock options in exchange for their execution of noncompetition, nonsolicitations and nondisclosure covenants. H.T. 131, 145-46, 187, 193-95, 234, 324, 371, and 484. Alan Bennett
(hereinafter “Bennett”), the President of Red Oak, asked Keith Ryals (hereinafter “Ryals”), Red Oak’s Vice President, to come up
with a list of employees to whom he wished to offer stock options and seek restrictive covenants. H.T. 123. On August 3, 2010,
Bennett, Ryals and Theresa Eaton (Vice President of Marketing for SCF) (hereinafter “Eaton”) held a group meeting with the
selected employees (eight in total) at Red Oak LLC’s office in Hickory, Pennsylvania. H.T. at 125-26, 363. Defendants Blackburn
and Lloyd were invited to this meeting. H.T. at 364. The group meeting occurred outside of the office at a small gravel area. H.T.
at 126. The selected employees were congratulated for their hard work and informed by Bennett that SCF had bought out the
majority of Red Oak. H.T. at 126-27, 148, 202, and 363. Eaton gave the employees a brief overview of SCF. H.T. at 202-03, 363.
Each employee was then taken into Ryal’s office for an individual meeting with Bennett, Ryals, and Eaton, lasting between five
and fifteen minutes per employee. H.T. at 127, 148, 189, 203, 363-64. At this meeting, each employee was handed two documents:
a “Notice of Grant of Stock Option” (hereinafter “Notice”) and a “Confidentiality, Non-Solicitation and Non-Competition
Agreement” (the “Non-Competes”). H.T. at 203, D. Ex. 15, 16, 17, and 18. The documents were briefly explained to each employee.
H.T. 129-30.
The employees were told that the Stock Option afforded them the right to purchase stock at $100 per share (the strike price).
H.T. at 129. The employees were also told that the options vested over three years, and that once vested, if the company was sold
or went public, the benefit to the employee would be the difference between the stock price and the strike price they paid. Id. The
Notice stated, in bold, “Note: To accept the grant of this Option, you must execute this form and return an executed copy to Alan
Bennett, Jr. (“the Designated Recipient”) by August 3, 2010. Failure to return the executed copy to the Designated Recipient will
render this Option invalid.” D. Ex. 17, 19. The Notice stated that the stock options were being granted pursuant to “the terms and
conditions of the Red Oak Water Transfer, Inc. 2010 Long Term Incentive Plan, attached as Appendix A (the “Plan”), and the associated Stock Option Agreement, attached as Appendix B (“the Option Agreement”).” D. Ex. 17, 19. The Notice further stated that
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the Plan and the Option Agreement were “incorporated...by reference.” D. Ex. 17, 19. The employees were not given the Option
Agreement or the Plan. H.T. at 135, 153, 293, 367, 370, and 482. The Notice also contained two kinds of stock options, incentive
stock options and non-statutory stock options, and neither option was selected on the notice. H.T. at 151. Both Blackburn and Lloyd
signed their Notice and Non-Compete before leaving their individual meeting that day. H.T. at 372, 516.
The relevant portions of the Non-Compete are, as follows:
2. Confidential Information. The Company agrees that it shall provide Employee with, and provide Employee with access
to, certain Confidential Information which is above and beyond any Confidential Information that Employee may have
previously received as of the date that Employee enters into this Agreeement.
a) Confidential Information. For purposes of this Agreement, “Confidential Information” means any and all confidential or proprietary information and materials, as well as all trade secrets, belonging to the Company, its affiliates, its
customers, or other third parties who furnished such information, materials, and/or trade secrets to the Company
with expectations of confidentiality. Confidential Information includes, regardless of whether such information
or materials are expressly identified or marked as confidential or proprietary, and whether or not patentable: (1)
technical information and materials of the Company, its affiliates, its customers, or other third parties; (2) business
information and materials of the Company, its affiliates, its customers, or other third parties; (3) any information or
material that gives the Company an advantage with respect to its competitors by virtue of not being known by those
competitors; and (4) other valuable, confidential information and materials and/or trade secrets of the Company, its
affiliates, its customers, or other third parties. Notwithstanding the foregoing, Confidential Information shall not
include information that (1) is already properly in the public domain or enters the public domain with the express
consent of the Company, or (2) is intentionally made available by the Company to third parties without any expectation of confidentiality.
b) Protection of Confidential Information. In return for the Company’s promise to provide Employee with Confidential
Information, Employee promises to keep the Confidential Information, and all documentation and information relating thereto, strictly confidential and to refrain from making any unauthorized disclosure of Confidential Information.
4. Noncompetition and Nonsolicitation. In consideration of the Company’s promise to provide Employee with
Confidential Information and the Company’s providing Employee with the benefits set forth in the Option Agreement, and
so as to protect the Company’s legitimate business interests and enforce Employee’s promises regarding Confidential
Information contained in Section 2 of this Agreement, Employee agrees that while employed or otherwise engaged by the
Company or its affiliate, and thereafter for a period of twelve (12) months immediately following the termination of
Employee’s employment or engagement for whatever reason, Employee will not directly or indirectly:
a) carry on or engage in Competitive Duties (as a director, employee, consultant or otherwise) within the Restricted
Area for any Competing Business;
b) (i) solicit (or assist another in soliciting) any Covered Client for Competitive Products or Services, or (ii) provide
(or assist another in providing) Competitive Products or Services to any Covered Client or Prospective Client; or
c) (i) encourage (or assist another in encouraging) any employee, contractor, consultant, supplier, or vendor of the
Company or its affiliate to terminate his or her relationship with the Company or its affiliate, or (ii) engage, employ
or solicit or contract for employment or engagement (or assist another in such activity) any employee, contractor or
consultant of the Company or its affiliate or any person who was an employee, contractor, or consultant of the
Company or its affiliate at any time during the last twelve (12) months of Employee’s employment or engagement with
the Company or its affiliate.
Amended Complaint, Ex. A and B.
3. Blackburn’s Termination and Lloyd’s Resignation
A number of issues arose regarding the quality of Mr. Blackburn’s work prior to March of 2011, including complaints about his
attitude problem and defiance. H.T. at 298, 301; D. Ex. 25-30. In March of 2011, a non-party employee at Red Oak LLC was being
investigated on the suspicion that he had been stealing from the company. H.T. at 179, 180, 376, 410. Employees at Red Oak LLC,
including Blackburn, were told about the investigation. Id. The employee being investigated was Blackburn’s neighbor, and
Blackburn’s children often played with the neighbor’s children in the past. After learning about the thefts, Blackburn went to the
neighbor’s home to tell the neighbor that he did not want his children to be exposed to a thief. The neighbor was not home, however, so Blackburn conveyed the message to the neighbor’s girlfriend. H.T. at 176-79, 378. On March 21, 2011, Red Oak LLC
terminated Blackburn’s employment, contending that he was being fired for disclosing confidential information to a non-employee about an employee who was being investigated for theft. H.T. at 179-80, 224, 376. At the time of his termination, Blackburn
returned all Red Oak LLC property and provided Red Oak LLC with his personal cell phone so that the company could delete any
records of phone calls made for a business purpose. H.T. at 382, 502. At the time of Blackburn’s termination, none of his stock
options had vested. H.T. at 224.
In July of 2011, Lloyd attended a meeting with Ryals and Matthew Smiley (hereinafter “Smiley”), Red Oak LLC’s General
Manager, where Lloyd was informed that his performance at the company was unsatisfactory. H.T. at 227-28, 303-04, 490-92. He
was told by Smiley, “David this is your last chance.” H.T. at 188, 306. On August 3, 2011, Lloyd resigned from Red Oak LLC. H.T.
at 500. He returned all Red Oak LLC property upon his resignation. H.T. at 231, 308, 501. He did not become aware that his stock
option had partially vested until it was too late to exercise his option. D. Ex. 44.
4. Blackburn and Lloyd’s Employment with Countrywide
In April of 2011, Blackburn was hired by Countrywide as a Water Operations Manager. H.T. at 383. His job responsibilities
include purchasing equipment such as pipe, pumps, valves, fittings and anything else used in the water transfer business. H.T.
383-84. He also performs supervisorial responsibilities for Countrywide. Id.
In August of 2011, Lloyd was hired by Countrywide. H.T. 349-50. He performs sales and customer service work for Countrywide,
including customer outreach and location visits. H.T. 504.
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5. Motion for Injunctive Relief
On August 26, 2011, Red Oak LLC filed a Motion for Preliminary Injunction against Blackburn, Lloyd, and Countrywide,
contending that Blackburn and Lloyd have violated their Agreements by accepting employment with Countrywide and disclosing
confidential and proprietary information and soliciting employees of Red Oak LLC for employment at Countrywide.
C. PROCEDURAL POSTURE
On August 26, 2011, Red Oak LLC filed a Motion for Preliminary Injunction and Complaint at GD-11-017598. Red Oak LLC filed
an Amended Complaint on September 21, 2011. Countrywide filed its Answer and New Matter on September 23, 2011. Red Oak
LLC replied to Countrywide’s New Matter on October 13, 2011. Blackburn and Lloyd filed their Answers to the Amended
Complaint on December 9, 2011. A hearing on Red Oak LLC’s Motion for Preliminary Injunction occurred on December 14-15,
2012 and was continued on December 21, 2012 before the undersigned. On February 6, 2012, Red Oak LLC filed a Motion for a
Negative Inference, Fees and Costs With Respect to Spoliation of Evidence.1
D. DISCUSSION
In Warhime v. Warhime, the Supreme Court of Pennsylvania set out the necessary prerequisites that a party must establish in
order to obtain preliminary injunctive relief.
There are six ‘essential prerequisites’ that a party must establish prior to obtaining preliminary injunctive relief. The
party must show: 1) that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately
compensated by damages; 2) that greater injury would result from refusing an injunction than from granting it, and,
concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings; 3)
that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged
wrongful conduct; 4) that the activity is seeks to restrain is actionable, that its right to relief is clear, and that the wrong
is manifest, or, in other words, the moving party must show that its claims are likely to prevail on their merits; 5) that the
injunction it seeks is reasonably suited to abate the offending activity; and 6) that a preliminary injunction will not
adversely affect the public interest. The burden is on the party who requested preliminary injunctive relief. …
Id., 860 A.2d at 46-47 (citation omitted).
Here, this Court has evaluated each of the preliminary injunction prerequisites set forth in Warehime. We find that Red Oak
LLC has not met its burden of proving each and every element necessary to establish entitlement to preliminary injunctive relief
to enjoin Lloyd and Blackburn from continued employment with Countrywide. Further, for the reasons set forth below, based on
the evidence and testimony offered at trial, it appears to this Court that neither Blackburn nor Lloyd was contractually bound by
the terms of the Non-Competes upon which Red Oak LLC relies for its requested injunction as there was no legitimate business
purpose for which the Non-Competes were sought and neither Blackburn nor Lloyd was offered sufficient consideration in
exchange for the restrictions they accepted to their ability to seek gainful employment.
1. No Immediate and Irreparable Harm
The courts have long recognized that the purpose to be achieved by the issuance of a preliminary injunction is the avoidance of
immediate and irreparable injury or gross injustice until the legality of the challenged action can be determined. All-Pak, Inc. v.
Johnston, 694 A.2d 347, 350 (Pa. Super. Ct. 1997). As a request for a preliminary injunction is based on an immediate and urgent
need, a long delay in seeking relief can serve as evidence that the need is not immediate. Skehan v. Board of Trustees of Bloomsburg
State College, 353 F. Supp. 542 (M.D. Pa. 1973). In order to constitute irreparable harm, the conduct complained of must be harmful in a way that cannot be adequately compensated in money damages. The York Group, Inc. v. Yorktowne Caskets, et. al, 924 A.2d
1234, 1242 (Pa. 2007) (additional citations omitted).
Here, Red Oak LLC has failed to demonstrate an immediate harm. Blackburn has worked for Countrywide since April of 2011,
but Red Oak LLC did not bring the present action until August of 2011. Red Oak LLC contends that it has lost four (4) projects to
Countrywide Range Resources, AB Resources, Triana, and Grenadier. At the same time, there is no evidence that Red Oak LLC
has suffered a significant financial harm due to the loss of these projects or that the loss of these projects was directly related to
the employment of Blackburn and Lloyd at Countrywide. In fact, in deposition, Ryals testified that the revenues for Rockwater,
which were originally estimated to be about $800 million were actually projected to hit $1.2 billion. Additionally, when called as a
witness by Red Oak LLC, Robert George (Countrywide’s Chief Operating Officer) (hereinafter “George”) testified that the projects obtained by Countrywide in 2011 were the result of a bidding procedure in which Countrywide simply provided the best bid
and proved to the companies that Countrywide was a good fit to do the work. H.T. at 106-07.
Additionally, Red Oak LLC has failed to demonstrate that the harms alleged are not compensable in the form of money damages. Red Oak LLC contends that it has lost various water transfer projects as a result of Blackburn and Lloyd accepting employment at Countrywide and competing with Red Oak LLC. At the same time, testimony from Ryals demonstrates that the harms
alleged can, in fact, be compensated by money damages. On the issue of actual and measurable damages, Ryals testified as follows:
Q: Now, based on your testimony and the testimony of other Red Oak witnesses, it’s my understanding that Red Oak
is contending that it lost business as a result of Mr. Blackburn’s and Mr. Lloyd’s employment with Countrywide?
A: That is correct.
Q: And Red Oak is able to calculate the profits that it has lost on the work that Red Oak believes it has lost?
A: Yes.
Q: What Red Oak needs to do is simply multiply its standard profit margin by the revenues generated on a contract.
Is that true?
A: By a bid that we submitted. Or I’m guessing that’s how you would do it.
Q: Red Oak is able to calculate the profits that Red Oak has lost as a result of losing work to Triana, AB Resources,
Range and Grenadier. Is that true?
A: On specific jobs, yes.
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H.T. at 231-32. Since the losses alleged by Red Oak LLC can be compensated by money damages, a preliminary injunction is not
an appropriate remedy here.
2. Balance of the Hardships Tips in Favor of Defendants
Generally, a court’s determination of the reasonableness of a restrictive covenant involves a balancing of the competing interests of the employer’s need for protection against the hardship of the restriction to be imposed upon the former employee.
Insulation Corp. of America v. Brobston, 667 A.2d 729, 734 (Pa. Super. Ct. 1995). “… Restrictive covenants have been historically
viewed as a trade restraint that prevents former employees from earning a living.” Hess v. Gebhard & Co., Inc., 808 A.2d 912, 917
(Pa. 2002). The Hess Court reiterated that equitable enforcement of these covenants is permitted “only as far as reasonably
necessary for the protection of the employer’s protectable business interest.” Id.
In Brobston, the Superior Court of Pennsylvania was “… called on to determine whether enforcement of a two-year, three
hundred mile ‘non-competition’ covenant in a employment contract is reasonable where the former employee was terminated for
poor performance....” Id. at 730. The Superior Court reversed the trial court’s decision to enforce the non-competition covenant of
the agreement. Id. at 731. The Superior Court found the employee’s firing to be an important factor, stating:
[t]he employer who fires an employee for failing to perform in a manner that promotes the employer’s business interests deems the employee worthless. Once such a determination is made by the employer, the need to protect itself from
the former employee is diminished by the fact that the employee’s worth to the corporation is presumably insignificant. Under such circumstances, we conclude that it is unreasonable as a matter of law to permit the employer to
retain unfettered control over that which it has effectively discarded as worthless to its legitimate business interests.
Id.
The Brobston court further stated:
It bears noting that there is a significant factual distinction between the hardship imposed by the enforcement of a
restrictive covenant on an employee who voluntarily leaves his employer and that imposed upon an employee who is
terminated for failing to do his job. The salesman discharged for poor sales performance cannot reasonably be perceived to pose the same competitive threat to his employer’s business interests, as the salesman whose performance
is not questioned, but who voluntarily resigns to join another business in direct competition with the employer.
Id. at 735-36. The Brobston court instructed that, in deciding a request for preliminary injunctive relief, a court should consider
the circumstances surrounding the former employee’s termination, a factor which affects both the legitimacy of the employer’s
interests and the degree of hardship imposed upon the departing employee. Id. at 737.
In All-Pak v. Johnson, 694 A.2d 347 (Pa. Super. Ct. 1997), the Superior Court further explained its holding in Brobston: “We held
that the fact that the employee was terminated, rather than quit voluntarily, was an important factor when considering the enforceability of a restrictive covenant … We emphasized, however, that the reasonableness of enforcing such a restriction is determined
on a case by case basis.” Id. at 352.
Recent caselaw has made it clear that Brobston does not create a per se, absolute bar to the enforcement of non-competition
covenants against a terminated employee, but is rather one factor to be considered along with others. See, e.g. All-Pak, supra;
Missett v. Hub Int’l Pennsylvania, LLC, 6 A.3d 530, 539 (Pa. Super. Ct. 2010); Sheperd v. Pittsburgh Glass Works, 25 A.3d 1233, 1246
(Pa. Super. Ct. 2011). However, Brobston does seem appropriate to apply here, where Blackburn was terminated from his employment, prior to the vesting of his stock options, the purported consideration he was offered for his inability to work in his chosen
field. Red Oak LLC contends that this matter can be distinguished from Brobston insofar as Blackburn, here, was not fired for poor
performance, but rather for revealing confidential information regarding another employee. This Court fails to see to see the
distinction, here, particularly where the evidence shows that Red Oak LLC deemed the keeping of confidences an element of
Blackburn’s responsibilities as a supervisor. Handwritten notes from Blackburn’s employee file, created by Carol Byce (Red Oak
LLC’s Human Resources Manager) (hereinafter “Byce”) on March 11, 2011, describe the incident leading to Blackburn’s termination in detail, explaining that Blackburn had admitted to talking to the employee’s girlfriend and telling her that the employee was
being investigated for theft. Byce notes:
I informed Kelly this is ROWT [Red Oak Water Transfer] confidential info & was not to be shared w/ anyone including anyone outside of the company...You discussed confidential information with a non-employee. This action may
have interfered w/ the progress & outcome of the investigation. You were informed to keep the investigation confidential... A supervisor or mgr. is expected to maintain the confidentiality of company information & follow all policies and
procedures.
D. Ex. 26. If confidentiality was required of supervisors, Blackburn performed poorly as a supervisor by sharing confidential information. His termination was, therefore, for poor performance. Additional evidence of Blackburn’s defiance of orders and attitude
problem, also contained in notes from Blackburn’s employees file, raises a valid question under the holding in Brobston about
whether Blackburn was, in fact, a valuable asset of Red Oak LLC, and whether it was necessary and reasonable to restrict him
from competing in the future. D. Exs. 24-25.
Finally, the balance of hardships weighs in Blackburn’s favor. Red Oak LLC’s alleged harms include the loss of various projects
due to the relationships Blackburn and Lloyd formed while at Red Oak LLC, and the potential solicitation of Red Oak LLC employees, most of whom did not end up working at Countrywide. Were this Court to grant the requested injunctive relief and disallow
Blackburn from continuing his employment at Countrywide, it would deprive him of the ability of providing an income for his family. Additionally, it would deprive his family, including his wife and two children, of health insurance. Finally, it would deprive
Blackburn of the ability to pay back the money he owes in the form of mortgage, car and student loans. These hardships far outweigh the alleged loss of projects, particularly since there was no evidence that the projects were, in actuality, lost due to any action
by Blackburn or Lloyd.
The Court notes that Brobston clearly does not apply to Lloyd in this case, as Lloyd willingly resigned from his employment with
Red Oak LLC. The testimony and evidence, however, clearly demonstrates that Lloyd will suffer greater harm if he is not allowed
to continue to work for Countrywide than Red Oak LLC will suffer if the preliminary injunction is denied. Were the injunction
granted, Lloyd would lose the ability to provide for his fiance and his two young children. Additionally, he would be unable to pay
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back his car and mortgage loans. Finally, and most importantly, he would lose the health insurance Countrywide provides him,
which is the sole source of health insurance for his kids and his ailing fiance.
The balance of the hardships weighs clearly in the favor of Blackburn and Lloyd, as they would suffer greater harm if the
injunction were granted than Red Oak LLC alleges to suffer in the absence of said injunctive relief.
3. Status Quo Will Not Properly Be Restored
The third prerequisite is that a preliminary injunction will properly restore the parties to their status, as it existed immediately
prior to the alleged wrongful conduct. The challenged conduct here is that Blackburn and Lloyd are allegedly wrongfully competing
with Red Oak LLC, diverting customers and employees from Red Oak LLC. The evidence does not demonstrate that Blackburn and
Lloyd obtained confidential information while working at Red Oak LLC, or that, if there was confidential information from
Blackburn and Lloyd’s employment at Red Oak LLC, the information was shared with Countrywide. There is no evidence that the
projects that Red Oak LLC contends to have lost to Countrywide (Range Resources, Triana, Grenadier, and AB Resources) were
lost because Countrywide employs Blackburn and Lloyd. The evidence does not demonstrate that Red Oak LLC employees were
solicited by Blackburn and Lloyd to work at Countrywide, but rather that the employees that left Red Oak LLC and went to work
at Countrywide did so on their own volition.
Moreover, for reasons explained in more detail below, the Non-Competes sought to be enforced do not appear to be legally binding on Blackburn and Lloyd for lack of consideration. Accordingly, an injunction is not necessary to preserve the status quo.
4. Likelihood of Success on the Merits
The purpose of Red Oak LLC’s request for injunctive relief is to obtain a judicial determination that the Non-Competes signed
by Lloyd and Blackburn are enforceable. This Court finds that these covenants are likely not enforceable, as they do not shield any
legitimate protectable business interests, were not formed upon a meeting of the minds, and are not supported by adequate
consideration. Additionally, this Court finds that the covenants are overbroad and unduly restrictive.
A covenant not to compete is a restrictive covenant “relied upon by employers to shield their protectable business interests.”
Hess v. Gebhard & Co., Inc., 808 A.2d 912, 917 (Pa. 2002). Pennsylvania courts have found that protectable business interests giving rise to valid non-competition agreements include the protection of customer relationships, the securing of confidential information, and the protection of the investment made in offering specialized training to employees. Thermo-Guard, Inc. v. Cochran,
596 A.2d 188, 193-94 (Pa. Super. Ct. 1991). However, Pennsylvania courts have also clearly distinguished what interests are legitimate and protectable. See, e.g. Gilbert v. Otterson, 550 A.2d 550 (Pa. Super. Ct. 1988) (a customer list, not compiled through any
special work on the part of the employer and not confidential was not a protectable interest); Mettler-Toledo, Inc. v. Acker, 908
F.Supp. 240, 247 (M.D. Pa. 1995) (employee’s general knowledge of customer information which was also accessible from public
sources was not a protectable interest).
Here, the evidence and testimony demonstrates that Red Oak LLC did not have a legitimate protectable interest necessitating
the restrictive covenants it seeks to enforce, in that the purpose for seeking the Non-Competes was merely to retain valuable
employees.2 These employees were not given any confidential or proprietary information, and there was no special skills or training given to the employees asked to sign the Non-Competes. During cross-examination, Ryals testified that the purpose of the noncompetes was to retain employees that he deemed valuable, stating:
Q: And isn’t it true that SCF Partners invested $70 million in Rockwater?
A: I don’t know how much they’ve invested in Rockwater.
Q: And after the acquisition, SCF Partners wanted to make sure that it was able to retain key management in Red Oak;
is that correct?
A: They wanted to retain what I consider the most valuable people, the ones we had the most training in and relationships building with our customers, yes.
H.T. at 193. At a later point in his cross-examination, Mr. Ryals further admitted that employees with the same title and responsibilities, access to alleged confidential information, and access to customers, were not asked to sign Non-Competes. H.T. at 211. This
Court finds that this evidence demonstrates that, at the very least, Red Oak LLC’s primary reason for the Non-Competes, with
respect to these two employees, was not to protect confidential information, to protect its investment in the specialized training of
its employees, or to protect customer relationships.
Additionally, while Red Oak LLC contends that its pricing list, what goes on during its employee meetings, it’s management
plan, and its customer contact lists are confidential information that Red Oak LLC needs to protect, this Court finds that Red Oak
LLC’s own testimony disputes the confidential nature of any of these documents. During testimony, Smiley admitted that the pricing list for Red Oak regularly changes, making it unlikely that Blackburn and Lloyd could accurately divulge pricing information
to Countrywide. H.T. at 282-83. Additionally, Smiley admitted in testimony that the employee meetings, where alleged confidential
information was discussed, were regularly attended by employees not governed by restrictive covenants. H.T. at 285-86. Further,
Smiley testified that Red Oak LLC regularly hands out its management plan to potential customers, clearly demonstrating that the
information in it is not confidential. H.T. at 287-89. Finally, Smiley testified that its customer contact lists would not have ever been
given to Blackburn and Lloyd. H.T. at 290-91. This Court finds that the evidence demonstrates that Red Oak LLC likely did not
have legitimate confidential information to protect.
The evidence and testimony further demonstrates that neither Blackburn nor Lloyd received any specialized training or
obtained any specialized knowledge or skills that Red Oak skills and any training by Red Oak LLC, Blackburn stated, as follows:
Q: Were you ever involved in sales at Red Oak?
A: No, sir.
Q: Did Red Oak provide you any training?
A: Absolutely not.
Q: How did you learn to perform the job, then?
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A: Hands-on. I went out and started laying pipe in the field with a pipe trailer and run through the field grabbing pipe
and putting it together.
H.T. at 358. In response to direct examination on his skills and any training by Red Oak LLC, Lloyd stated, as follows:
Q: We talked briefly about training. Did Red Oak provide you with any training to help you perform your different
positions with the company?
A: Not to perform the different positions. There was some MSHA training that everybody had, which was pretty much
CPR. There was some mining training. A company called CNX, which is Console (sic) Energy, if you wanted to work
on a location, it was mandatory to have this training. It’s not just for Red Oak. It was for every vendor.
Q: Now, as part of your positions at Red Oak, you needed to run pumps; is that correct?
A: Absolutely.
Q: And how did know how to run pumps?
A: It’s not rocket science. If you can start your car in the morning, you can run a pump. I mean, if you want something
to go faster, you push on the gas. If you want it to stop, you pull back on the brake. I mean, if you want it to start, you
turn the key. It’s not rocket science.
H.T. at 469. This Court finds it unlikely that Red Oak LLC provided any specialized training that would necessitate the restrictive
covenants that it seeks to enforce.
Finally, the evidence and testimony demonstrates that any alleged customer information that might have been deemed worthy
of protecting by Red Oak LLC, was general information that was readily available to the public. In fact, both Ryals and George testified that customer information in the water transfer business is readily available to the public. H.T. at 104, 223. Additionally,
George made it clear in his testimony that the developing of positive customer relationships, or knowledge about a customer’s preferences, does not guarantee one water transfer company exclusive work for that company, stating that:
A: In my experience, operators tend to use more than one water transfer business or company and more than one
roustabout company. Just because some companies have expertise in certain areas and other companies don’t. And
some operators have so much work that one company can’t handle all the work.
Q: And how is Countrywide able to win the business that its won over the past year or more that it’s been in the water
transfer business?
A: The initial work that we’ve gotten with new customers has been by the bids we provided them, by the comfort level
they’ve gotten by talking to myself and Jake and Kelly [Blackburn] and Dave [Lloyd] about how we can do the work
and how well we do our work. Work is subsequent to that. Because work is never guaranteed. If you do one job for a
customer, there is no guarantee you’re going to get the second or third or fourth....
H.T. at 106-07. This Court finds it unlikely that the Non-Competes at question here were necessary to protect customer relationships or customer information.
A Non-Compete is a contract between an employee and an employer. As such, basic contract law applies to its formation. In
order for a contract to be valid and enforceable, there must be a meeting of the minds on all of the essential terms of the contract.
Schreiber v. Olan Mills, 627 A.2d 806, 808 (1993) (an enforceable contract requires an offer, acceptance, consideration and a mutual
meeting of the minds). Additionally, “[i]f an employment contract containing a restrictive covenant is entered into subsequent to
employment, it must be supported by new consideration which could be in the form of a corresponding benefit to the employee or
a beneficial change in his employment status.” Modern Laundry & Dry Clean v. Farrer, 536 A.2d 409, 411 (Pa. Super. Ct. 1988).
Here, the alleged new consideration came in the form of stock options, which were never fully explained to Blackburn and Lloyd
and never provided any added benefit to Blackburn and Lloyd. While Blackburn and Lloyd were both provided with the NonCompetes and the Notice of the Grant of Stock Option (without a specific option selected), neither was given the Stock Option
Agreement or the Long Term Incentive Plan, although both were incorporated by reference in the Notice of Grant of Stock Option.
Notably absent from the information provided to Blackburn and Lloyd were provisions in the Stock Option Agreement and Long
Term Incentive Plan requiring Red Oak LLC employees to pay attorneys’ fees, requiring litigation in Texas, and allowing for a
potential forfeiture of the stock options provided. This Court is convinced that these are, in fact, material terms of the contract
between Blackburn and Lloyd and Red Oak LLC, making it unlikely that, in the absence of their inclusion, a meeting of the minds
occurred.3
Additionally, this Court is hard pressed to find that the stock options granted were, in fact, additional consideration for the signing of the Non-Competes. At the time that Blackburn and Lloyd were asked to sign the Non-Competes, both had worked at Red Oak
LLC for at least a year. Pursuant to the language of the Non-Competes, Red Oak LLC agreed to “provide Employee with, and provide Employee with access to, certain Confidential Information which is above and beyond any Confidential Information that
Employee may have previously received.” The evidence and testimony demonstrates that there was no new confidential information provided to Blackburn or Lloyd following the Non-Competes. Both men were operations supervisors prior to the signing of the
Non-Competes, and they remained operations supervisors after signing the Non-Competes. There was no testimony given that
demonstrated that any confidential information became suddenly available to either man after the Non-Competes were signed on
August 3, 2010.
Pursuant to the language of the Non-Competes, the only other consideration given for the execution of the Non-Competes was
“the Company’s providing Employee with the benefits set forth in the Option Agreement.” The parties, however, never received
the Stock Option Agreement. Even had the parties received and signed the Stock Option Agreement, this Court is not convinced
that stock options that have not vested are adequate consideration. This is particularly true here where, under the Stock Option
Agreement, the employer (Red Oak LLC) retained the full right to prevent the options from ever vesting by terminating the
employee. As such, Blackburn and Lloyd were not given anything of measurable value as consideration, and were merely given a
potential future benefit, which was not granted in actuality to either man. Absent sufficient consideration, the Non-Competes here
are likely unenforceable.
november 16, 2012
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Even if the evidence and testimony demonstrated that the Non-Competes were necessary to protect a legitimate business interest and that sufficient consideration was given to Blackburn and Lloyd, this Court finds that the Non-Competes here are likely
unreasonably restrictive and overbroad. Pennsylvania courts are called upon to examine the reasonableness of the scope of a
restrictive covenant in light of the employer’s interests that the covenant is meant to protect. Boldt Machinery & Tools, 366 A.2d
902, 907.
While Red Oak LLC is in the business of water transfer and conducts its business in counties in Pennsylvania, Ohio and West
Virginia, the Non-Competes in question restrict Blackburn and Lloyd from working for Red Oak LLC’s affiliates, which are located
throughout North America and engage in more varied types of business, including environmental services, well-testing and flowback services, and the manufacture and distribution of specialty chemicals, hydraulic fracturing fluid components, and pipeline
additives. Additionally, the Non-Competes prohibit Blackburn and Lloyd from working for any company that provides or offers
products or services provided by Red Oak LLC or any of its affiliates, and any company that competes with Red Oak LLC or its
affiliates, in any geographic region in which Red Oak LLC or its affiliates conduct business. These restrictions are overbroad in
that, if enforced, they would prohibit Blackburn and Lloyd from working in a number of fields and geographic regions in which
they never worked. In light of this Court’s finding that there is insufficient evidence that Red Oak LLC had a legitimate business
interest necessitating the Non-Competes, the scope of the Non-Competes is likely overbroad and the Non-Competes are, therefore,
likely invalid.
As this Court finds that it is unlikely that Red Oak LLC would prevail on the merits of its claim, the injunctive relief should be
denied.
5. Not Reasonably Suited to Abate the Offending Activity
The fifth prerequisite is that the moving party must show that the injunction it seeks is reasonably suited to abate an offending
activity. Because neither Blackburn nor Lloyd is subject to a valid non-compete, not having been offered adequate consideration
for the employment restrictions, there does not appear to be any offending activity in this case. Additionally, the injunction sought
here appears to be overbroad and unduly restrictive. Therefore, under these facts, the Court finds that the grant of preliminary
injunctive relief would not be reasonably suited to abate any offending activity.
6. Public Interest Will Not Be Adversely Affected
The Court finds no evidence in the record that substantially supports a claim that a denial of preliminary injunctive relief in
this case will in any way adversely affect the public interest. The public does not have an interest in preventing Blackburn and
Lloyd from working in their chosen trade or profession. The public does not have an interest in restricting Blackburn and Lloyd’s
ability to make a living and provide for the health and well-being of their family. The public does not have an interest in restraining competition in the water transfer business. Therefore, we find that the final prerequisite required for a grant of preliminary
injunctive relief is not satisfied.
D. CONCLUSIONS
We conclude that denying the preliminary injunction would not cause Red Oak LLC to suffer immediate and irreparable harm
incapable of being compensated by monetary damages. On the other hand, granting the proposed preliminary injunction would
have a significant detrimental impact on Blackburn and Lloyd, while denying the injunctive relief would visit only a minimal
impact on Red Oak LLC. The status quo would not be maintained by the injunction. The evidence demonstrates that Red Oak LLC
did not have valid, binding non-compete agreements with Blackburn and Lloyd, as it did not have a legitimate business purpose
for requiring the non-competes, offer adequate consideration for the restrictions it sought, or structure the non-competes in a reasonable way. Finally, Red Oak LLC has not met its burden of establishing all of the prerequisites necessary to obtain preliminary
injunctive relief.
BY THE COURT:
/s/Ward, J.
DATED: July 16, 2012
ORDER
AND NOW, this 16th day of July, 2012, upon consideration of Plaintiff, RED OAK WATER TRANSFER NE, LLC’s Motion for
Preliminary Injunction against Defendants, COUNTRYWIDE ENERGY SERVICES, LLC, KELLY BLACKBURN, and DAVID
LLOYD, the pleadings, the memoranda, all matters of record, and in accord with the Opinion filed of record, it is hereby
ORDERED that the Motion is DENIED.
BY THE COURT:
/s/Ward, J.
1
After considering the testimony of William Ardisson and Lane Hofstetter, and the briefs on this issue, the Court denies the Motion.
The evidence demonstrates that, while it is true that a software that deletes files (CCleaner) was placed on the Countrywide computers and has been run since Blackburn and Lloyd accepted employment at Countrywide, the placement and running of CCleaner
was done completely outside of the control of Blackburn and Lloyd, and was done pursuant to Countrywide policy and procedures.
The evidence demonstrates that the program was installed and run on the Countrywide computers on the dates the computers were
issued to Blackburn and Lloyd. Furthermore, there is no evidence demonstrating that any litigation-related material was on the
Countrywide computers. As such, the Court denies the Motion for Negative Inference, Fees and Costs With Respect to Spoliation
of Evidence.
2
As discussed further above, the fact that Blackburn was fired seven (7) months later for an inadvertent infraction would seem to
indicate that Blackburn was not considered a very valuable employee of Red Oak LLC.
3
The evidence also demonstrates that at the time of their individual meetings, neither Blackburn nor Lloyd knew what the NonCompetes were. H.T. at 361-62, 478. Further, the evidence demonstrates that at the time of their individual meetings, neither
Blackburn nor Lloyd knew what stock options were. H.T. at 368, 483. It is difficult for this Court to imagine that a meeting of the
minds could have occurred absent a basic understanding by all parties as to the terms of the agreements.
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no. 23
Commonwealth of Pennsylvania v.
Marcaius Butler
Criminal Appeal—Suppression—Shackling of Defendant—Terry Pat Down
No. CC 201004664. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 17, 2012.
OPINION
Procedural History
Marcaius Butler (Appellant) was charged by Criminal Information (201004664) with one count of Possession Of Firearm
Prohibited1 and one count of Firearms Not To Be Carried Without License2. Appellant filed an Omnibus Motion To Suppress
Evidence which was heard and denied on February 15, 2011. A jury trial followed and Appellant was found guilty on both counts
on February 16, 2011.
On May 16, 2011, Appellant was sentenced at the Possession of a Firearm to a period of three and one-half to seven years imprisonment and to no further penalty at the Firearms Not to be Carried Without a License. Post-Sentencing motions were filed and
denied. This appeal followed.
Matters Complained of on Appeal
Appellant raises the following errors on appeal set forth exactly as Appellant states them:
a. The Trial Court erred in denying Mr. Butler’s Omnibus Motion to Suppress Evidence. There were no specific, articulable facts establishing reasonable suspicion to warrant the belief that Mr. Butler was presently armed and dangerous.
The McKeesport Police were dispatched to 1402 Carnegie Street for a report of a “man outside with a gun.” However,
upon failing to find anyone at that location, the police encountered Mr. Butler nearly a block away sitting in his wheelchair. The immediate pat down was not valid, as it was not conducted pursuant to a warrant, incident to arrest, nor was
it based upon valid consent.
b. The Trial Court erred in refusing to dismiss ten already-selected jurors whose perception of Mr. Butler may have been
tainted by seeing Mr. Butler shackled during jury selection. Although the leg shackles may not have been apparent while
Mr. Butler was sitting at the table during voir dire, the shackles would have been visible when Mr. Butler was pushed
across the room in his wheelchair in view of the selected and remaining prospective jurors. The sheriff ’s deputies were
negligent in their duty to ensure that the jury would not see Mr. Butler in restraints, especially since Mr. Butler is paralyzed from the chest downward and confined to a wheelchair. The Trial Court attempted to remedy this situation by conducting voir dire of all ten already-selected jurors, but the Court’s questioning was too vague to determine whether the
jurors had actually seen Mr. Butler’s shackles. The deputies’ oversight, coupled with the Trial Court’s handling of this
matter, deprived Mr. Butler of the presumption of innocence and the right to a fair trial.
Facts
At approximately midnight on February, 17 2010, Officer Joshua Alfer (Alfer) of the McKeesport Police Department responded
to a dispatch call for a male with a gun outside of a residence located at 1402 Carnegie Street. (T.T. 81, 95, 113)3. Alfer arrived at
the address approximately three to four minutes later and found no one in the immediate vicinity. (T.T. 81-82, 96). Using his marked
vehicle’s spotlight, he searched the surrounding areas and encountered Appellant, Marcaius Butler (Butler), approximately a block
away on Versailles Avenue. (T.T. 82-84, 97-98). Butler was wheeling his wheelchair down the street away from Alfer and was the
only person outside at that time. (T.T. 84, 98-99).
Alfer stopped his marked vehicle approximately ten feet away from Butler, who turned his wheelchair sideways. (T.T. 85, 100).
Alfer got out of the car and ordered Butler to show his hands after Butler began reaching for his waistline/groin area. (T.T. 85, 100).
Butler complied by raising his hands up above his shoulders, but then began to reach for his waistline again. (T.T. 86). Alfer drew
his service weapon and gave him several more commands to keep his hands up. (T.T. 86, 102). As Alfer continued to give Butler
commands to keep his hands up, Butler would initially comply but then continued to reach down to his waistline area. (T.T. 86-87).
Officer Frank Durante arrived as backup and drew his firearm while Alfer was approaching Butler. (T.T. 86-87, 103, 113).
The officers converged on Butler and twice asked him if he had any weapons on his person; both times he responded that he
did not. (T.T. 88, 104). Alfer then performed a pat-down search of Butler while Officer Durante held Butler’s hands behind his head.
(T.T. 88, 104, 114). Alfer felt a bulge consistent with a firearm along Butler’s inner thigh, and used his free hand to retrieve the
weapon from within Butler’s sweatpants. (T.T. 88-89, 106, 114-115).
Butler was placed under arrest and taken to the McKeesport Police station. (T.T. 91). During investigation, McKeesport Police
determined that Butler did not have a license to carry a firearm. (T.T. 91). The recovered weapon, a .25 auto caliber handgun, was
tested and found to be in good working order. (T.T. 93).
Butler was charged as set forth hereinabove.
Discussion
I.
In his first issue Appellant claims the Trial Court erred when it denied Appellant’s Omnibus Motion to Suppress Evidence.
Specifically, Appellant argues that his motion to suppress should have been granted because there were no specific, articulable
facts establishing reasonable suspicion to warrant the belief that Mr. Butler was armed and dangerous. This claim is without merit.
The role of the Trial Court in that procedural circumstance has been stated thusly,
Our standard of review in addressing a challenge to the denial of suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from
those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in
the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we
are bound by these findings and may reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
november 16, 2012
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At the conclusion of the suppression hearing the Trial Court made the following findings of fact and conclusions of law:
That on February 17, 2010, Police Officer Alfer, who had been employed by the City of McKeesport for five years as
of that date, was working in a patrol vehicle in a uniformed capacity in a marked vehicle and at 11:59 p.m. received a
dispatch for a man outside 1402 Carnegie Avenue or street, man with a gun outside that residence.
He was familiar with that particular residence and this particular defendant’s nexus to that residence by virtue of
numerous domestic calls involving the defendant and a female resident of 1402 Carnegie. Upon dispatch, he proceeded
immediately to the area of 1402 Carnegie.
He arrived there approximately two to three minutes after the call had been dispatched. There was no one in the area
around 1402 Carnegie. He searched the area in his car with the assistance of a spotlight from the vehicle itself. He
expanded his search from 1402 Carnegie to approximately a block away, where he encountered the defendant, who
was known to him, again by virtue of prior domestics.
The officer’s also aware of the defendant’s history of carrying a firearm, which, of course, would have increased his
sensitivity to the possibility and presence of a firearm in conjunction with the actual dispatch. The total time that had
elapsed from the original broadcast to the officer encountering the defendant was approximately three to four minutes.
When he ordered the defendant to – when he arrived at the area in the police car, the defendant had stopped his wheelchair, which he is in today and was in at the time. The officer exited his vehicle. Upon approach, beginning to approach
the defendant, the defendant started reaching for his waistband or waist area.
The officer instructed the defendant to show his hands. He issued that command on multiple occasions. Each time the
defendant began to comply or complied but then began to lower his arms again into his waist area. After approximately the
fourth time, the officer drew his weapon and told the defendant that he needed to – again instructed to show his hands.
During the course of these events, he received backup from another uniformed officer on the McKeesport police force.
They both approached the defendant, secured him insofar as possible under the circumstances and asked if he had a
firearm or any instruments that could pose a danger to the officers.
The defendant said no twice, but he then lowered or attempted to lower his arms to the waist area. Based on that
particular course of conduct and history known to Officer Alfer, the defendant’s arms were secured and a pat-down
was conducted wherein he felt a bulge in the defendant’s pants. Of course, all of this was conducted in a seat, as the
defendant was seated at his wheelchair.
A firearm was recovered from the inside thigh area once the officer felt a bulge in that area consistent with his experience and training, which included behaviors and physical manifestations related to the concealment of firearms.
The Court finds in this instance that there is no infirmity under the Constitution of this Commonwealth nor the
Constitution of the United States of America. The officers acted reasonably and under reasonable suspicion under
these circumstances that the defendant may have possessed a firearm and conducted a pat-down consistent with the
law, both federally and in this state.
Consequently, the motion and each and every one of its particulars is denied.
(T.T. 51-54).
Concerning a police pat-down of a person suspected of possessing a weapon, the Superior Court of Pennsylvania has stated:
Police cannot initiate a detention based solely upon an anonymous tip that a person matching a defendant’s description in a
specified location is carrying a gun. However, if the person described by the tipster engages in other suspicious behavior, such
as flight, reasonable suspicion justifying an investigatory detention is present. Evasive behavior also is relevant in the reasonable-suspicion mix. Nervous, evasive behavior such as flight is a pertinent factor in determining reasonable suspicion. Whether
the defendant was located in a high crime area similarly supports the existence of reasonable suspicion. Finally, if a suspect
engages in hand movements that police know, based on their experience, are associated with the secreting of a weapon, those
movements will buttress the legitimacy of a protective weapons search of the location where the hand movements occurred.
Commonwealth v. Foglia, 979 A.2d 357, 360-361 (Pa. Super. 2009)(internal citations and quotations ommitted).
Here Appellant: (1) was found in a high crime area; (2) was the only male in the area; (3) was known by the officer to be a
person who carried a firearm; (4) was acting contrary to the officer’s commands to keep his hands up; and (5) consistently
engaged in hand movements that the officer recognized as associated with hiding a firearm. (T.T. 51-54, 83-86, 88-89, 99). Based
on the totality of the circumstances that confronted Officer Alfer at the time he approached Appellant to investigate his conduct,
it was reasonable for him to conclude that Appellant was unlawfully in possession of a firearm, and also that officer safety was
potentially in jeopardy. Consequently the detention and search of Appellant was justified. See Foglia, 979 A.2d at 361 (officer had
reasonable suspicion to pat-down an individual where there was a dispatch call of a “male in dark clothing with a gun” standing
on a street corner, a male fitting that description was found near the street corner in a high-crime area, and the male reached for
his waist when the officer exited his vehicle to approach him).
Appellant’s claim is without merit.
II.
In his second issue Appellant claims the Trial Court erred when it failed to dismiss ten already-selected jurors who possibly
saw leg shackles on the Appellant during jury selection. This claim is without merit.
Regarding this issue, the Superior Court of Pennsylvania has stated, “The failure through an oversight to remove shackles from
a prisoner for a short time after proceedings have commenced, or any technical violation of the rule prohibiting shackling, not prejudicial to him, is not grounds for a new trial.” Commonwealth v. Carter, 219 Pa. Super. 280, 284 (Pa. 1971)(citations omitted).
Here Appellant was transported out of the jury room with shackles still attached to his legs. (M.T. 3)4. Ten already-selected
jurors were present and could have possibly seen the shackles briefly as Appellant was being escorted out, though the shackles
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no. 23
were not visible while Appellant was seated. (M.T. 3-4). The Court conducted a voir dire of all ten jurors asking: (1) if they had
seen anything unusual about the Appellant other than he was confined to a wheelchair; and (2) if there was any reason that they
could not be impartial jurors for the trial. (M.T. 5-16). All of the ten jurors answered no to both questions. (M.T. 5-16).
Here there is no indication that Appellant suffered any prejudice from the Court’s refusal to dismiss the jurors. During the voir
dire, the Court narrowly tailored its questions excluding any reference to the shackles. The fact that none of the jurors mentioned
seeing anything unusual about the Appellant during jury selection indicates that they had not seen the shackles. Further, even if a
juror had seen the shackles and did not think it important or unusual enough to disclose to the Court, said juror confirmed that
they could nonetheless be fair and impartial. Therefore Appellant was not prejudiced, and the Trial Court did not err when it
refused to dismiss ten impaneled jurors. See Commonwealth v. Evans, 348 A.2d 92, 94 (Pa. 1975)(the trial court acted properly both
in conducting a voir dire concerning an incident where jurors possibly saw defendant handcuffed for a brief period and in concluding that the hearing established the harmless nature of the incident)(internal citations omitted).
Appellant’s claim is without merit.
CONCLUSION
For the aforementioned reasons, the judgment of the sentence imposed by the Trial Court should be affirmed.
BY THE COURT:
/s/Borkowski, J.
Date: July 17, 2012
1
18 Pa.C.S. § 6105(a)(1).
2
18 Pa.C.S. § 6106(a)(1).
3
“T.T.” followed by numerals refers to pages of the Suppression/Trial Transcript of February 15-16, 2011.
4
“M.T.” followed by numerals refers to pages of the Motions Transcript of February 16, 2011.
Commonwealth of Pennsylvania v.
Thomas Wayne Bidek and Jake Thomas Wicks
Criminal Appeal—Restitution—Joint and Several Liability—Speculative Amount—Damages Not Timely Produced
No. CC 201008852, 201011667. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 17, 2012.
OPINION
PROCEDURAL HISTORY
Appellants, Thomas Bidek and Jake Wicks, were each charged by Criminal Information (CC 201008852; CC 201011667) with
one (1) count of Institutional Vandalism/Place of Worship1, one (1) count of Theft By Unlawful Taking2, one (1) count of Burglary3,
two (2) counts of Theft By Unlawful Taking–Immovable Property4, and two (2) counts of Theft By Unlawful Taking5.
On January 20, 2011, as part of a negotiated plea deal, Appellants pled guilty to one (1) count of Institutional Vandalism/Place
of Worship6, one (1) count of Theft By Unlawful Taking7, and one count of Burglary8. Immediately following the entry of their
respective pleas, Appellants proceeded to sentencing. Appellants were sentenced to three (3) years of probation at the burglary
count; no further penalty as to the remaining counts; restitution in an amount to be agreed upon by the parties or to be determined
at a hearing; the costs of prosecution, and any measures put in place by probation.
Restitution hearings were held on March 14, 2011, April 14, 2011, and May 11, 2011. On May 24, 2011, the Trial Court found
Appellants to be jointly and severally liable for restitution in the amount of $65,453.
Appellant Wicks filed a post sentence motion which was denied, and this appeal followed.
STATEMENT OF ERRORS ON APPEAL
Appellants raise the following issues on appeal, and they are set forth exactly as Appellants frame them:
I. The trial court erred in finding Mr. Bidek and Mr. Wicks jointly and severally liable for $65,453. This sentence was illegal
in that the Commonwealth failed to make a recommendation to the court at or prior to the time of sentencing as to the
amount of restitution to be ordered, and the trial court, in turn, failed to specify the amount and method of restitution at
the time of sentencing, in violation of the mandates of 18 Pa. C.S.A. 1106(c).
II. The trial erred as a matter of law and/or abused its discretion in finding Mr. Bidek and Mr. Wicks jointly and severally
liable for restitution in the amount of $65,453. This restitution order was illegal in that it was speculative, excessive, and
unsupported by a factual basis on the record.
FACTS
A. Guilty Plea
On January 20, 2011, the prosecutor gave the following summary of the facts to the Trial Court:
MR. MELADA: Thank you, Your Honor. Had these two cases gone to trial, the Commonwealth would have called
Detective Steve Colucci of the Indiana Township Police Department, two other officers with that department and Pastor
Brian Smith of the Jerusalem Church of God in Christ in Indiana Township. The testimony would have been substantially
as follows: that on May 20, 2010, the co-defendants were arrested after breaking into the aforementioned church with the
intent to steal copper. When they tried to remove pipes, the water line burst causing physical damage to the upstairs of
the church. That figure we know exceeds $5,000 today, but we don’t have a definitive estimate. Defendant Bidek executed
a full confession. And with that the Commonwealth would have rested.
(P.T. 6-7)9
november 16, 2012
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B. Restitution Hearings
The damage to the church was significant, encompassing both the structure of the building as well as tangible property located
within the building. (R.H. 7, 9, 19)10. The structural damage included broken glass along with damaged pews and carpet. (R.H. 7).
Some copper piping was taken out of the basement, and consequently, there was evidence of water damage to tile floors, carpet,
and the walls. (T.T. 10). The damage to tangible property included: an inoperable organ, various scratches on the piano, a broken
fan, a broken desk lamp, multiple broken ceiling lights and covers, a scratched podium, an inoperable drum set, a broken communion table, and four damaged fire extinguishers. (R.H. 22, 25-31, 34-36). Additionally, several items were stolen from the church
including two video cameras and a wireless microphone system. (R.H. 32-33).
In August 2010, Disaster Restoration Services (DRS) visited the church to assess the damage and provide an estimate of what it
would cost to repair the damage to the structure of the building. (R.H. 6). DRS inspected each area that was damaged, took measurements, and noted what needed to be repaired. (R.H. 7). Pastor Brian Smith of the church accompanied DRS to make certain that
the estimate did not include any pre-existing damage or shortcomings of the church. (R.H. 64). The DRS Estimate Report contains
a very detailed cost analysis for each room in the church; this document was admitted as Commonwealth Exhibit 1. (R.H. 7, 11-12).
According to the DRS estimate, the cost of structural damage was: $11,731.35 for the Sanctuary (Church Area), $2,438.36 for
the Pastor’s Office, $14,536.04 for the Fellowship Hall (Recreation Room), $1,570.10 for the Kitchen, $4,490.17 for the Restrooms
and Hallway, $1,342.50 for the Cleanup (General), and $7,445.26 for Overhead and Profit charges.11 (Commonwealth Exhibit 1).
Meanwhile, the church proceeded to seek estimates on the tangible property that was damaged as a result of Appellants’ actions.
(R.H. 19). Two experts were called to inspect the organ. (R.H. 23, 53). Both experts came to the conclusion that it would cost more
to repair the organ than to replace it with a brand new model. (R.H. 23, 42, 46, 54). The original organ was a rare model that was
no longer in production. (R.H. 23). The experts recommended replacing the organ with a brand-new, similar model, specifically
the Hammond model B-3 with Leslie speaker. (R.H. 23, 43, 53-54, Defense Exhibits A and B). One expert, Gerrero & Kirk Classic
Organs, Inc., priced the comparable replacement organ at $25,445. (R.H. 24, 57, Defense Exhibit A). The other expert, Modern
Piano, LLC., priced the replacement organ at $28,990; however, this dealer offered the organ at the discounted church price of
$18,995. (R.H. 47-48, 55, Defense Exhibit B).
Another item of tangible property that needed to be repaired or replaced was the podium. (R.H. 31). The original cost of one a
podium of that type was about $8,000. (R.H. 31). An expert went to the church to assess the damage and needed repair. (R.H. 31).
It was determined that the podium would not need to be replaced, and could be repaired at a cost of $2,500. (R.H. 31).
The church also had to replace the stolen microphone system (R.H. 32). The microphone system had been purchased four or
five years prior to its theft. (R.H. 33). The church was unable to find the exact same item in its search for a replacement. (R.H.
32). However, the church was able to find a similar system made by the same maker. (R.H. 33, 51). This item was priced at $2,600.
(R.H. 32-33). There were also several parts of the equipment to a drum set that needed to be replaced. (R.H. 34). The church was
able to find the exact same set of drum equipment. (R.H. 34). This equipment was priced at $400. (R.H. 34). Finally, the church
had to replace the wooden communion table. (R.H. 35-36). A furniture company estimated that this communion table would cost
$2,000 to replace. (R.H. 36).
Upon review of the evidence presented at the restitution hearing, the Trial Court found that restitution was proper in the amount
of $65,453, jointly and severally attributable to Appellants. (R.D. 4)12. In reaching this total, the Trial Court incorporated the costs
of the following: (1) $43,553 for the structural damage to the building (R.D. 3-4); (2) $18,000 for the organ (R.D. 4); (3) $1,200 for
the podium (R.D. 4); (4) $1,300 for the microphone system (R.D. 4); (5) $400 for the drum equipment (R.D. 4); and, (6) $1,000 for
the communion table (R.D. 4).
DISCUSSION
I.
Appellants claim that restitution was illegal because the Commonwealth failed to make a recommendation to the Court at or
prior to the time of sentencing as to the amount of restitution to be ordered, and that the Trial Court, in turn, failed to specify the
amount and method of restitution at the time of sentencing. This claim has no merit.
The Superior Court has stated the applicable standard of review as follows:
Imposition of sentence is vested in the discretion of the sentencing court and will not be disturbed by an appellate court
absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the
trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.”
Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004) (citation omitted)
18 Pa.C.S. §1106(c)(2) states that “at the time of sentencing the court shall specify the amount and method of restitution.” 18
Pa.C.S. §1106(c)(2). §1106(c)(3)(i) provides that “It shall be the responsibility of the district attorneys of the respective counties to
make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered.” 18 Pa.C.S.
§1106(c)(3)(i).
§1106(c) is important because it provides the defendant with certainty as to what the sentence will be. Commonwealth v.
Dietrich, 970 A.2d 1131, 1134 (Pa. 2009). This section ensures that defendants are not blindsided with an amount of restitution that
they could not have foreseen. Id. The amount of restitution is to be determined under the adversarial process with considerations
of due process. Commonwealth v. Ortiz, 854 A.2d 1280, 1282 (Pa. Super. 2004). It is well-established that orders of restitution that
are left open are disfavored by the courts. Dietrich, 970 A.2d at 1133-34. Again, this is because of the degree of uncertainty left to
the defendant as to what his or her financial obligation will be at the time of sentencing. Id. at 1134. However, the Dietrich Court
indicated that all sentencing situations lend themselves to the hoped for finality. Dietrich, 970 A.2d at 1134 (no error where sentencing court originally set restitution based on information available at that time, while an open issue remained as to whether the
amount constituted full restitution).
While the final restitution amount was not determined at sentencing, Appellants were not entirely left in an uncertain situation.
Unlike an order of restitution left open, Appellants did not have an expectation of any particular amount that they must pay, only
to have that amount changed subsequently. Appellants were involved in the process of determining the final amount of restitution.
The Commonwealth, because of the extent of the damage was unable to provide the Court with a definitive restitution amount on
the day of the guilty pleas. (P.T. 2-3). However, Appellants agreed to the Commonwealth’s proposal to provide time for either a meet-
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ing of the minds as to the amount of restitution, or a restitution hearing for the amount to be determined by the Court. Appellants
agreed to this disposition when they agreed to enter into the guilty plea, with the agreement stated in open court. (P.T. 2-3, 10).
It is well recognized that the guilty plea and the frequently concomitant plea bargain are valuable implements in our
criminal justice system. The disposition of criminal charges by agreement between the prosecutor and the accused is
an essential component of the administration of justice. Properly administered, it is to be encouraged. In this
Commonwealth, the practice of plea bargaining is generally regarded favorably, and is legitimized and governed by
court rule. […] [T]he desirability of disposing of criminal charges through plea bargaining is based on the premise
that a plea agreement is advantageous to all concerned.
Commonwealth v. Parsons, 969 A.2d 1259, 1267 (Pa. Super. 2009) (citation omitted)
Plea agreements are acceptable when they are plainly set forth on the record, understood and agreed to by the parties, and
approved by the trial court. Id. “Assuming the plea agreement is legally possible to fulfill, when the parties enter the plea agreement on the record, and the court accepts and approves the plea, then the parties and the court must abide by the terms of the
agreement.” Id. at 1268.
Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under
contract-law standards. Furthermore, disputes over any particular term of a plea agreement must be resolved by
objective standards. A determination of exactly what promises constitute the plea bargain must be based upon the
totality of the surrounding circumstances and involves a case-by-case adjudication.
Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010).
Here there was an agreement by all parties. Appellants consented to the restitution matter to be resolved in this manner. Just
because they are not satisfied with the outcome of the restitution decision does not mean that there was trial court error.
This claim is without merit.
II.
Appellants claim that the restitution order was illegal in that it was speculative, excessive, and unsupported by a factual basis
on the record. Appellants’ claim has no merit.
When reviewing the Trial Court’s decision regarding an order of restitution, the Court applies the aforementioned abuse of
discretion standard. Ortiz, 854 A.2d at 1282. The Superior Court of Pennsylvania has held that an imposition of restitution must not
be speculative or excessive. Commonwealth v. Rush, 909 A.2d 805, 810 (Pa. Super. 2006).
The Supreme Court of Pennsylvania has explained the role restitution plays in the criminal justice system:
It is well established that the primary purpose of restitution is rehabilitation of the offender by impressing upon him or
her that his criminal conduct caused the victim’s loss or personal injury and that it is his responsibility to repair the
loss or injury as far as possible. Thus, recompense to the victim is only a secondary benefit, as restitution is not an
award of damages. Although restitution is penal in nature, it is highly favored in the law and encouraged so that the
criminal will understand the egregiousness of his or her conduct, be deterred from repeating the conduct, and be
encouraged to live in a responsible way. Thus, restitution, at its core, involves concepts of rehabilitation and deterrence.
Commonwealth v. Brown, 981 A.2d 893, 895-896 (Pa. 2009) (citations omitted).
In this case, a restitution hearing was held in which witnesses testified and evidence was presented regarding the amount of
damage to the church. The Trial Court has set forth a detailed recitation of facts hereinabove (Facts) and respectfully incorporates
that by reference for purposes of the present discussion. Briefly stated however, here the Trial Court found that restitution was
proper in the amount of $65,453, jointly and severally attributable to each of the Appellants. (R.D. 4). In reaching that total, the
Trial Court incorporated the costs of the following: (1) $43,553 for the structural damage to the building (R.D. 3-4); (2) $18,000 for
the organ (R.D. 4); (3) $1,200 for the podium (R.D. 4); (4) $1,300 for the microphone system (R.D. 4); (5) $400 for the drum equipment (R.D. 4); and, (6) $1,000 for the communion table (R.D. 4).
Commonwealth Exhibit 1 contains a very detailed estimate of all of the damage to the structure of the building. A representative of DRS explained the process by which he came to the total structural damage figure of $43,553.78. The Trial Court found this
testimony to be the most credible and thus, incorporated that estimate in the total restitution. The amount for the structural
damage was well established by the evidence. (Commonwealth Exhibit 1).
Regarding the organ, there were two experts that provided estimates as evidence; one was for $25,445, and the other was for
$18,995. (Defense Exhibits A and B). Appellants argued during the restitution hearing that there were several cheaper organs
available on eBay at a lesser price. (R.H. 44). However, one cannot simply compare a seller on eBay to a reputable organ dealer.
No evidence was presented as to who exactly the eBay sellers were and whether or not an organ so purchased would be of the quality
and carry the guarantee of one purchased from a reputable local dealer. Additionally, as an auction website, prices on eBay can
increase drastically in a matter of seconds until bidding has ended. Appellants did not provide sufficient evidence as to the eBay
prices being credible estimates. The Trial Court incorporated in the restitution an amount that was slightly lower than the lowest
estimate from one of the reputable organ dealers. (Defense Exhibit B).
As to the estimates for the podium, microphone system, and communion table, the Trial Court incorporated in the restitution
an amount that was roughly half of the amount presented during the restitution hearing by witnesses for the church. The Trial
Court allocated $1,200 for the podium compared to the $2,500 presented at the hearing, $1,300 for the microphone system compared to the $2,600 presented at the hearing, and $1,000 for the communion table compared to the $2,000 presented at the hearing. Finally, the Court ordered $400 for the drum equipment, the same estimate presented during the hearing. These figures can
hardly be said to be speculative, excessive, or unsupported by the record.
The Trial Court also did not award as part of the total restitution several figures that were presented in the hearing, such as
estimates for video cameras, fire extinguishers, and an air conditioner.
The total restitution sum of $65,453 jointly and severally attributable to Appellants was well-supported by the record and
evidence presented to the Court.
This claim is without merit.
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CONCLUSION
For the aforementioned reasons, the designation of the imposed by the Trial Court should be affirmed.
BY THE COURT:
/s/Borkowski, J.
Date: July 17, 2012
1
18 Pa.C.S.A. §3307(a)(1).
2
18 Pa.C.S.A. §3921(a). Appellant Wicks was charged under subsection (c)(1), Appellant Bidek was charged under subsection (c)(2).
3
18 Pa.C.S.A. §3502.
4
18 Pa.C.S.A. §3921(b).
5
18 Pa.C.S.A. §3921(b).
6
33 Pa.C.S.A. §3307(a)(1).
7
18 Pa.C.S.A. §3921(a).
8
18 Pa.C.S.A. §3502. Appellant Bidek pled guilty to subsection (c)(2). Appellant Wicks pled guilty to subsection (c)(1).
9
“P.T.” refers to the Guilty Plea/Sentencing Transcript of January 20, 2011.
10
“R.H.” refers to the Restitution Hearing Transcript of May 11, 2011.
11
The “overhead/profit” category refers to the fee paid to the general contractor for the labor performed to restore the Church. See R.H. at 12.
12
“R.D.” refers to the Restitution Decision Transcript of May 24, 2011.
Commonwealth of Pennsylvania v.
Lamon Street
Criminal Appeal—Homicide (1st Degree)—Juvenile Defendant—Life Without Parole—Illegal Sentence
No. CC 200911095. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
McDaniel, P.J.—July 23, 2012.
OPINION
The Defendant has appealed from the judgment of sentence entered on February 29, 2012. A review of the record reveals that
the sentence imposed was illegal, and therefore the judgment of sentence should be vacated and the case remanded for further
proceedings.
The Defendant was charged with Criminal Homicide,1 Criminal Homicide of an Unborn Child,2 Carrying a Firearm Without a
License3 and Recklessly Endangering Another Person (REAP)4 for events which occurred when he was 17 years old. Following a
non-jury trial held before this Court on February 27-29, 2012, the Defendant was convicted of First-Degree Murder, First-Degree
Murder of an Unborn Child, Carrying a Firearm Without a License and one (1) count of REAP. He was immediately sentenced to
a mandatory term of life imprisonment at the First Degree Murder conviction.
Timely Post-Sentence Motions were filed and were denied on March 8, 2012. This appeal followed.
The Defendant initially filed a timely Concise Statement of Matters Complained of on Appeal at this Court’s direction, raising
weight, sufficiency and evidentiary issues. However, while this Court’s review was pending, the United States Supreme Court
issued its decision in Miller v. Alabama, 132 S.Ct. 2455 (US. 2012), holding that mandatory life sentences without the possibility of
parole were illegal for those offenders who committed their crime prior to the age of 18.
There is now an ongoing discussion between the Courts and criminal bar in Allegheny County regarding the procedural resolution of those offenders in question whose appeals have already been heard and their appellate rights exhausted, and it this
Court’s understanding that the Pennsylvania legislature is crafting statutory direction for the courts in this regard.
However, Mr. Street’s initial appeal from the judgment of sentence has just been filed; none of his rights have been exhausted,
none of his issues litigated or waived. Procedurally, he is a “clean slate” and it only makes sense to review all of his issues at once,
rather than having the appellate courts review his current issues, then remand for the now necessary re-sentencing and begin the
process all over again. Thus, this Court feels that for reasons of procedural efficiency and judicial economy, the best course of
action in this case would be for the appellate court to simply vacate the judgment of sentence and remand the case for re-sentencing without reaching a substantive discussion of any of his other issues. In this way, he will receive the benefit of the Miller decision, none of his claims of error will be waived and judicial economy will be served.
Accordingly, this Court requests that the judgment of sentence be vacated and the case remanded for re-sentencing.
BY THE COURT:
/s/McDaniel, P.J.
1
18 Pa.C.S.A. §2501(a)
2
18 Pa.C.S.A. §2603
3
18 Pa.C.S.A. §6106
4
18 Pa.C.S.A. §2705 – 6 counts
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Commonwealth of Pennsylvania v.
Terrie Greene
Criminal Appeal—Homicide (3rd Degree)—Sufficiency—Self Defense—Sentencing (Discretionary Aspects)—Malice—
Spontaneous Statements
No. CC 201102807. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
McDaniel, P.J.—July 10, 2012.
OPINION
The Defendant has appealed from the judgment of sentence entered on December 5, 2011. A review of the record reveals that
the Defendant has failed to present any meritorious issues and, therefore, the judgment of sentence must be affirmed.
The Defendant was charged with one (1) count of Criminal Homicide1 in relation to the stabbing death of her daughter.
Following a bench trial held before this Court, she was adjudicated guilty of third-degree murder. She appeared before this Court
on December 5, 2011 and was sentenced to a term of imprisonment of seven and one half (7 ½) to fifteen (15) years. Post-Sentence
and Supplemental Post-Sentence Motions were filed and were denied on January 19, 2012. This appeal followed.
Briefly, the evidence presented at trial established that on February 23, 2011, the Defendant was staying with her daughter
Whitley at Whitley’s apartment on Deraud Street in the Hill District section of the City of Pittsburgh. The Defendant also had two
(2) other daughters, Felicia and Aszurdee. The Defendant had been babysitting her grandson Dylan, who was Felicia’s son, for a
few days. During Dylan’s visit, the Defendant, Whitley and Aszurdee noticed that Dylan had bruises on his face and body and that
he seemed fearful to be touched. During the visit, Dylan said that his mother had been hitting him and allowing her boyfriend to
hit him. As a result of Dylan’s statements, the Defendant and Whitley called CYF to report the abuse. Around mid-afternoon on
February 23rd, the CYF caseworker called Whitley to tell her that she had made contact with Felicia and that Felicia would be
coming to her apartment to pick up Dylan pending further investigation.
When Felicia arrived at the apartment, she was angry at the Defendant and Whitley for contacting CYF. Felicia started a
verbal argument with the Defendant by calling her names and using profanity, then spit in the Defendant’s face. At that point,
Felicia and the Defendant began a physical fight. Felicia pulled the Defendant down the stairs by her hair and the two continued
brawling. Eventually the fight ceased and the Defendant went back up the stairs to the kitchen, where she spoke to Whitley and
Aszurdee, then went in her bedroom to look for the pocket knife she usually carried with her. When she could not find the pocket
knife, she went back to the kitchen and picked up a knife and a baseball bat. She then went back down the stairs and exited the
building, as Felicia was already on the street. The Defendant stabbed Felicia in the stomach and, according to the testimony of two
(2) eye-witnesses, beat her repeatedly and with great force with the baseball bat. Eventually, she picked up the bat and went back
inside the building and up to her bedroom, where the police found her. She was taken to Mercy Hospital and was treated for various
injuries. While at the hospital, she admitted to stabbing and beating Felicia.
On appeal, the Defendant has raised a number of claims which are addressed as follows:
1. Sufficiency of the Evidence
Initially, the Defendant challenges the sufficiency of the evidence to support her conviction of third-degree murder. Particularly,
she avers that the facts did not support a finding of the malice required for third-degree murder. This claim is meritless.
Generally, “[i]n determining whether the evidence was sufficient to support a conviction [the appellate court] review[s] the evidence admitted during the trial along with any reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth as the verdict winner. If [the appellate court] conclude[s], based on that review, that the finder of fact
could have found every element of the crime beyond a reasonable doubt, [the appellate court] must sustain the conviction…
Additionally, it is the responsibility of the trier of fact to assess the credibility of the witnesses and weight all of the evidence
presented… ‘In doing so, the trier of fact is free to believe all, part or none of the evidence.’” Commonwealth v. James, 2012 WL
1994821, p. 3 (Pa.Super. 2012).
Our Crimes Code defines third-degree murder as follows:
§2502. Murder
(a) Murder of the first degree. – A criminal homicide constitutes murder of the first degree when it is committed by an
intentional killing.
(b) Murder of the second degree. – A criminal homicide constitutes murder of the second degree when it is committed
while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree. – All other kinds of murder shall be murder of the third degree.
18 Pa.C.S.A. §2502.
Our courts have further defined and elaborated on the definitions of third-degree murder and malice. “‘The elements of thirddegree murder, as developed in case law, are a killing done with legal malice but without the specific intent to kill required in firstdegree murder’… ‘Malice is the essential element of third-degree murder’…‘and is the distinguishing factor between murder and
manslaughter.’” Commonwealth v. Cruz-Centeno, 668 A.2d 536, 539 (Pa.Super. 1995). “‘Legal malice exists where there is particular
ill will or where there is wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and
a mind regardless of social duty’… Malice may be inferred from the use of a deadly weapon upon a vital part of the body… Further,
the malice necessary to support a third-degree murder conviction may also exist where the accused acts in gross deviation from
the standard of reasonable care, failing to perceive that such actions might create a substantial and unjustifiable risk of death or
serious bodily injury… Finally, malice may be inferred from all the circumstances surrounding the conduct of the accused.”
Commonwealth v. Mercado, 649 A.2d 946, 955 (Pa.Super. 1994), internal citations omitted.
The facts of this case are clearly sufficient to support the finding of malice. After freeing herself from the initial altercation, the
Defendant went upstairs, retrieved a knife and baseball bat, went back downstairs and outside, stabbed her daughter in the stomach
and then beat her numerous times with the baseball bat. The two (2) eyewitnesses testified that the victim had her hands up in a
defensive position and yet the Defendant continued to beat her and yell profanity at her. Not only can malice be inferred from the
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Defendant’s use of the knife on a vital part of the victim’s body, but the particular circumstances of this case, where when the altercation had ended, the Defendant went upstairs to retrieve a weapon and returned to continue the altercation and ultimately kill
her daughter, are particularly indicative of the hardness of heart and wickedness of disposition that embody the legal definition of
malice in Pennsylvania.
It is quite clear that the evidence was more than sufficient to establish the elements of the crime of third-degree murder.
Accordingly, the conviction is valid and should not be reversed. This claim must fail.
2. Weight of the Evidence/Castle Doctrine
Next, the Defendant argues that the verdict was against the weight of the evidence. Again, this claim must fail.
“The weight of the evidence is exclusively for the finder of fact who is free to believe all, part or none of the evidence and to
determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus [the
appellate court] may only revers the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim.” Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012). “A
motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence
to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Moreno,
14 A.3d 133, 136 (Pa.Super. 2011).
Because the Defendant properly raised her weight of the evidence claim on Post-Sentence Motions, the appellate court’s review
is only directed to this Court’s discretion in denying the motion. See Shaffer, supra. Given the evidence presented at trial, there is
no question that the verdict was appropriate and not “shocking” to the conscience.
To the extent that the Defendant’s weight claim implicates the “Castle Doctrine”, this claim must also fail.
The “Castle Doctrine” or the “Stand-Your-Ground Law”, as it has become known in recent events, is memorialized in 18
Pa.C.S.A. §505(b)(2.3):
§505. Use of force in self-protection
(a) Use of force justifiable for protection of the person. – The use of force upon or towards another person is justifiable
when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of
unlawful force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force. –
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to
protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor
is it justifiable if:
(i) the actor knows that he can avoid the necessity of using such force with complete safety by retreating,
except the actor is not obligated to retreat from his dwelling or place of work, unless he was the initial
aggressor is assailed in his place of work by another person whose place of work the actor knows it to be.
(2.3) An actor who is not engaged in criminal activity, who is not in illegal possession of a firearm and who is attacked
in any place where the actor would have a duty to retreat under paragraph (2)(ii) has no duty to retreat and has the
right to stand his ground and use force, including deadly force, if:
(i) the actor has a right to be in the place where he was attacked;
(ii) the actor believes it is immediately necessary to do so to protect himself against death, serious bodily
injury, kidnapping or sexual intercourse by force or threat; and
(iii) the person against whom the force is used displays or otherwise uses:
(A) a firearm or replica of a firearm as defined in 42 Pa.C.S. §9712 (relating to sentences for offenses
committed with firearms); or
(B) any other weapon readily or apparently capable of lethal use.
CREDIT(S) 1972, Dec. 6 P.L. 1482, No. 334 §1, effective June 6, 1973. Amended 2011, June 28, P.L. 48, No. 10 §2, effective
in 60 days [August 29, 2011].
18 Pa.C.S.A. §505, emphasis added.
As reflected in the legislative history of the statute, Section (b)(2.3) was not enacted until June 28, 2011 and was not effective
until August 29, 2011. The instant events occurred on February 23, 2011, before the applicable date of the statute. Because the
legislature did not make Section (b)(2.3) retroactive, our Courts have declined to apply the Castle Doctrine to killings which
occurred before the effective date but whose resulting legal proceedings occurred after. See Commonwealth v. Williams, 2012 WL
1593040, p.8, FN6 (Pa.Super. 2012).
Therefore, because the Castle Doctrine was not in effect at the time of the killings, this Court need not reach a substantive
discussion of whether the Defendant’s actions satisfied the elements of the claim. Rather, the Defendant’s claim of self-defense
should be analyzed through the common-law definition, which includes the duty to retreat as well as to be free from provocation:
“Before a slayer can successfully invoke the defense of self-defense, he must have been free from fault in provoking or continuing the difficulty which resulted in the killing, he must have reasonably believed that he was in imminent danger of death, great
bodily harm, or some felony, and that there was necessity for him to kill in order to save himself therefrom, and he must not have
violated a duty to retreat or avoid danger.” Commonwealth v. Arce, 416 A.2d 1098, 1099 (Pa.Super. 1979).
The evidence presented here showed that the Defendant was neither free from fault in continuing/provoking the killing nor was
she compliant with her duty to retreat. The initial altercation involved only the two women using their bodies to fight with each
other; no weapons were involved. Once that altercation ended, the Defendant was able to leave the scene and go upstairs to her
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daughter’s apartment. At that point, she could have locked the door and called the police if she had reasonably feared that her
daughter might attempt to re-enter the apartment.2 Instead, she got a knife and a baseball bat and went back downstairs and outside, re-engaged the fight with her daughter, stabbed her and beat her with the bat. The Defendant’s actions are NOT consistent
with the defense of self-defense, and do not support a claim that the verdict was against the weight of the evidence.
As such, this Court was well within its discretion in denying relief on the Post-Sentence Motion, and this decision must be
affirmed. This claim must fail.
3. Miranda Violation
The Defendant also argues that her statements on two (2) separate occasions were obtained in violation of her Miranda rights
and should have warranted a mistrial. This claim is meritless.
Upon his arrival at the scene, Officer Woodhall entered the Defendant’s bedroom, where she had gone after the stabbing and
beating ceased. Upon his entry into the room, the Defendant made a spontaneous confession to him:
Q. (Ms. Auld): And Officer Woodhall, do you know approximately what time of day, when you arrived?
A. (Officer Woodhall): Around 12:35, 12:37.
Q. In the afternoon, correct?
A. Yes.
Q. And where did you make contact with the defendant?
A. In an upstairs – it was a small bedroom I believe.
Q. Okay. And was she there by herself?
A. Yes.
Q. And what was she doing?
A. She was seated on the bed.
Q. Did she say anything to you?
A. Yeah. She started speaking and said that, you know, she stabbed her daughter, and she pointed to a knife on a little table…
(Trial Transcript, p. 11).
Later, at the hospital, she made a confession to the doctor in the presence of the homicide detectives:
Q. (Ms. Auld): After she was admitted to Mercy did she make any initial statements to the two of you?
A. (Det. Smith): Well – she did. Once she was admitted, I had called the homicide office requesting a fax copy of the
Pittsburgh pre-interrogation warning form. I received a copy.
But prior to reading her her Miranda rights, while she was in the hospital bed in the back of the emergency room, the
resident doctor, named Dr. Vincent, came up to assess her. He started talking to the defendant, asked her what happened.
She told him that she got into a fight with her daughter and that she didn’t stab her until she, her daughter, jumped on her.
(T.T. p. 84).
“Not every statement made by an individual during a police encounter constitutes and interrogation… Miranda rights are
required only prior to a custodial interrogation… Custodial interrogation is ‘questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of [his] freedom of action in any significant way’… Furthermore,
volunteered or spontaneous utterances by an individual are admissible without the communication of Miranda warnings… ‘when
a defendant gives a statement without police interrogation, we consider the statement to be ‘volunteered’ and not subject to suppression… Interrogation is police conduct calculated to, expected to, or likely to evoke admission.’” Commonwealth v. Garvin, 2012
WL 1940219, p. 3 (Pa.Super. 2012), internal citations omitted, emphasis added. See also Commonwealth v. Baez, 720 A.2d 711, 720
(Pa. 1998).
It is clear from the record above that both statements were made spontaneously, and were not the product of an illegal interrogation. In the first case, the Defendant spoke to Officer Woodhall spontaneously when he entered her room. In the second case, the
statements were made at the hospital, in response to the Doctor’s inquiries for treatment and evaluation purposes. However, with
regard to the doctor’s questioning, even though the detectives had not gone through the written pre-interrogation warning form
with her, the Defendant testified that she had been Mirandized before leaving the house on Deraud Street:
Q. (Mr. Foreman): And what did you do in the kitchen, if anything?
A. (The Defendant): I was crying, telling Whitley and them I’m sorry that that even happened and, you know, I didn’t
mean for none of that to happen. You know, I was just – he had handcuffed me and read me my rights, and I didn’t say
anything from that point on.
(T.T. p. 123-4). Neither statement was the product of police interrogation and neither was intentionally elicited without a Miranda
warning.
It bears mention that neither statement was the subject of a pre-trial suppression motion. To this Court’s mind, this is reflective of the spontaneous nature of the statements as well as their clear admissibility. Additionally, inasmuch as the Defendant did
eventually make a full, written confession after completing the Pre-Interrogation Warning form, the statements in question are,
essentially, cumulative.
Because the statements in question were spontaneous, and not made in response to police interrogation, this claim must fail.
4. Sentencing Claims
Finally, the Defendant argues that her sentence was excessive. This claim is meritless.
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It is well-established that “sentencing is a matter vested in the sound discretion of the sentencing court, and a sentence will not
be disturbed on appeal absent a manifest abuse of discretion. In this context, and abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied
the law, exercised its judgment for reasons of partiality, prejudice, bias or ill-will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Mastromanno, 2 A.3d 581, 589 (Pa.Super. 2010).
The record reflects that the sentence imposed, seven and one half (7 ½) to fifteen (15) years, was a standard range sentence and
did not exceed the sentencing guidelines. This Court further placed its reasons for imposing that sentence on the record during the
hearing. It stated:
THE COURT: Okay. Ms. Greene, having read the presentence report, I do understand that you have had a difficult life
and a difficult background. You, however, seem to have in general persevered and raised your children to the best of your
ability, and except for the victim in this case, they obviously continue to support you. However, I am concerned because
the victim in this case was the victim in a prior assault case. I’m also concerned because you pursued the victim out of
the door and followed her when the homicide occurred.
I have to agree with the recommendation of the Commonwealth, and I order the cost of prosecution to be waived. I order
you to serve seven and a half to 15 years with credit for any time you’ve been in.
(Sentencing Hearing Transcript, p. 11).
As the record reflects, this Court considered the testimony of the Defendant’s daughters as well as the information contained
in the pre-sentence report. Given the facts of the case discussed at length above, the standard range sentence imposed was appropriate, not excessive and well within this Court’s discretion. This claim is meritless.
Accordingly, for the above reasons of fact and law, the judgment of sentence entered on December 5, 2011 must be affirmed.
BY THE COURT:
/s/McDaniel, P.J.
Date: July 10, 2012
1
18 Pa.C.S.A. §2501(a)
2
This Court finds the testimony of the Aszurdee Greene and the Defendant, that they tried to call 911 but it was “busy” and that
they heard Felicia calling to have someone bring her a gun to be lacking in credibility.
Commonwealth of Pennsylvania v.
Tyree Gaines
Criminal Appeal—Homicide (2nd Degree)—Evidence—Photograph—Codefendant’s Statement—Failure to Grant Counsel Time to
Prepare—Recusal—Severance
No. CC 201012297. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
McDaniel, P.J.—July 23, 2012.
OPINION
The Defendant has appealed from the judgment of sentence entered by this Court on December 15, 2011. A review of the record
reveals that the Defendant has failed to raise any meritorious issues and, therefore, the judgment of sentence must be affirmed.
The Defendant was charged with Criminal Homicide,1 Criminal Attempt,2 Assault of a Law Enforcement Officer,3 Aggravated
Assault of a Police Officer,4 Robbery,5 Burglary,6 Carrying a Firearm Without a License,7 Recklessly Endangering Another Person,8
Criminal Conspiracy9 and Aggravated Assault.10 Prior to trial, the Aggravated Assault, Aggravated Assault of a Police Officer,
Assault of a Law Enforcement Officer and Criminal Attempt charges were withdrawn. Following a jury trial, the Defendant was
found guilty of second-degree murder and the remaining charges.
On December 15, 2011, the Defendant appeared before this Court and was sentenced to a mandatory term of life imprisonment.
Post-Sentence Motions were timely filed and were denied by operation of law on April 20, 2012. This appeal followed.
The evidence presented at trial established that Arika Hainesworth and her four (4) year old son, Kyere, lived at 2340 East Hills
Drive in the City of Pittsburgh. Ms. Hainesworth’s boyfriend, Anthony Lemon, stayed at the house occasionally, but was known to
keep drugs and money in the house.
In the early morning hours of July 11, 2010, the Defendant, Tyree Gaines, along with two other men, co-Defendants Amir
Ferguson and Richard Woodward, broke into Hainesworth’s residence for the purpose of stealing the drugs and money they knew
to be in the house. The three (3) men initially approached the front door and knocked, then left. Hainesworth, who was at home
watching movies with her friends and son, looked out of the peep-hole in the door and saw the men wearing black clothing and
scarves over their faces. She called another friend, Terry Johnson, who had just left, and asked him to look around the area.
Johnson did not see anyone and returned to Hainesworth’s residence.
Approximately fifteen minutes later, the three men knocked again. This time Johnson looked out the peep-hole and after seeing
the three (3) men, he instructed everyone to go upstairs and hide and to call the police. The group hid in Kyere’s room, some inside
the closet and some behind the bed. Hainesworth was on the phone with 911 when the men broke the front door down and entered
the house. The men searched the downstairs level of the home, but were unable to find the drugs and money. The Defendant and
Ferguson went upstairs and broke down the door of the bedroom where everyone was hiding. They demanded that Hainesworth
tell them where the drugs and money were, and when she did not, they grabbed Kyere, put the gun to his head and asked him where
the items were. Kyere directed them to an air vent, where they found some money. They then let Kyere go, but put the gun to
Hainesworth’s head and forced her to take them to the drugs. Hainesworth and the men were downstairs, when the Woodward,
who had been standing by the patio door with an assault rifle, yelled that the police had arrived. The men ran upstairs.
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Shots were fired at the police from inside the house and the officers returned fire. The Defendant ran back downstairs, where
he was able to escape out the front door.
Downstairs, City of Pittsburgh Police Officer Steven Sywyj had entered the house in pursuit of the men. He encountered
Hainesworth and told her to get out of the house. As she fled, she was hit with a bullet fired from the house. Johnson came out of
the room in an attempt to find and aid Hainesworth and was shot in the hand. Eventually, the Defendant and Ferguson were able
to escape the police, but were apprehended several days later.
On appeal, the Defendant raises a number of issues which are addressed as follows:
1. Admission of Sweatshirt/Photograph
Initially, the Defendant argues that this Court erred in admitting into evidence a sweatshirt with a screen-printed photograph
of the Defendant and co-Defendant Amir Ferguson. This claim is meritless.
At trial, the Commonwealth introduced into evidence, over the Defendant’s pre-trial objection, a sweatshirt which had a screenprinted photograph of the Defendant and Ferguson. In the photograph, the Defendant was holding an assault rifle and Ferguson
was carrying a Glock semi-automatic gun with an extended ammunition clip which appeared to be similar to the weapons used in
this shooting:
MR. ZUR: Your Honor, the defense and Commonwealth have a stipulation that Commonwealth’s Exhibit 153 is a sweatshirt which was seized by the Allegheny County Police Department by Detectives Carpico and Kinavey, that this sweatshirt was seized in an unrelated investigation of February 20, 2011, and that this sweatshirt was ultimately forwarded to
the City of Pittsburgh Police Department. And I would offer 153.
THE COURT: It will be admitted.
Q. (Mr. Zur): Detective, are you familiar with the sweatshirt that’s on this table? You don’t have to take it –
A. (Detective Sherwood): I am.
Q. And it came into your possession, correct?
A. Yes. Detective Kinavey turned it over.
Q. And on the sweatshirt, is there a photograph imprinted on it?
A. There is.
Q. I’ll show you what’s marked as Commonwealth’s Exhibit 154 –
MR. SHEETS: I’ll ask the Court to note my continuing objection to this exhibit.
THE COURT: Overruled.
MR. SHEETS: Thank you.
Q. Can you identify Exhibit 154?
A. Exhibit 154 is a photograph of the sweatshirt with the photograph ironed onto the sweatshirt.
Q. And Exhibit 155?
A. This is a close-up of the photograph that was emblazoned on the front of the sweatshirt.
MR. ZUR: I would offer 154 and 155, Your Honor?
THE COURT: They will be admitted.
Q. So this is the sweatshirt with the photograph on it, correct? 154?
A. It is.
Q. And then 155 is a close-up?
A. Yes.
Q. Can you identify the individuals in that photograph?
A. Yes. This is a photograph of Tyree Gaines. Now this is the same photograph. They’re standing next to each other.
This is Tyree Gaines wearing a ball cap with some type of red on it (indicating). He is holding in this photograph a – an
assault rifle that is very similar if not, in fact, the firearm that we collected at 2340 East Hills Drive.
Q. And the individual next to Mr. Gaines?
A. This individual is Amir Ferguson, who’s sitting with the braids over at defense counsel. He’s wearing a black and red
baseball cap with a Cardinal logo.
He’s holding a Glock – I don’t know what caliber it is. I know it’s a Glock because that’s what I carry, semi-automatic
pistol with an extended clip.
(T.T. p. 507-9).
It is well-established that “[t]he admissibility of evidence is at the discretion of the trial court and only a showing of an abuse
of that discretion and resulting prejudice, constitutes reversible error… Evidence is relevant if it tends ‘to make the existence
of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the
evidence.’ Pa.R.Evid. 401. But, ‘although relevant, evidence may be excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless pres-
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entation of cumulative evidence.’ Pa.R.Evid. 403. A determination of whether photographic evidence alleged to be inflammatory is
admissible involves a two-step analysis. ‘First, the court must decide whether a photograph is inflammatory by its very nature. If
the photograph is deemed inflammatory, the court must determine whether the essential evidentiary value of the photograph outweighs the likelihood that the photograph will improperly inflame the minds and passions of the jury.’” Commonwealth v. Sanchez,
36 A.3d 24, 48-9 (Pa. 2011).
As with all evidence presented by the Commonwealth, the photograph was necessarily prejudicial. However, its evidentiary
value – establishing a link between the Defendant and Ferguson – was clearly probative of the identity of the perpetrators and the
existence of a conspiracy. In his statement, the Defendant stated that he became involved in the incident because people “came
and got [him],” (T.T. p. 432). He admitted that the gun he used in the robbery was his, but stated that he had bought it only a few
days prior to the incident. (T.T. p. 438-9). Ferguson stated that he didn’t remember the names of the other two (2) men involved.
(T.T. p. 457). The photograph rebuts the statements of both men, in that it establishes that the Defendant was in possession of the
firearm long enough to have a photograph taken and printed onto a sweatshirt – more than a few days, in this Court’s estimation –
and that the two men knew each other well. To this end, the photograph’s probative value greatly outweighed its prejudice. As such,
the photograph was properly admitted and this claim must fail.
2. Admission of Co-Defendant’s Recorded Statement
Next, the Defendant argues that this Court erred in admitting the recorded statement of co-Defendant Ferguson. This claim is
meritless.
The Confrontation clause guarantees a criminal defendant the right to cross-examine witnesses. Ordinarily, a witness
whose testimony is introduced at a joint trial is not considered a witness ‘against’ a defendant if the jury is instructed
to consider the testimony only against a co-defendant… The Bruton court held that if a non-testifying co-defendant’s
confession directly and powerfully implicates the defendant in the crime, than an instruction to the jury to consider
the evidence only against the co-defendant is insufficient, essentially as a matter of law, to protect the defendant’s confrontation rights.
The US Supreme Court examined the per se Bruton rule in Richardson, supra, and emphasized its narrow scope. Therein,
the court held that the ‘confrontation clause is not violated by the admission of a non-testifying co-defendant’s confession
with a proper limiting instruction when… the confession is redacted to eliminate not only the defendant’s name, but any references to his or her existence… Consistent with the High Court’s pronouncement and our own line of case, we have held
that substituting the neutral phrase “the guy” or “the other guy” for the defendant’s name is an appropriate redaction.
Commonwealth v. Cannon, 22 A.3d 210, 217-8 (Pa. 2011), internal citations omitted.
During the trial, the Commonwealth played recorded statements made by the Defendant and by Amir Ferguson. Prior to the
introduction of the first statement – from the Defendant - this Court confirmed with the Commonwealth that the statements had
been appropriately redacted, then denied counsel’s objection to them:
MR. SHEETS: I’m going to ask on the record for an offer of proof.
MR. ZUR: Detective Boose took a statement from Tyree Gaines.
MR. SHEETS: Your Honor, at this point I have to come up here to put this on the record. I have to object to Mr. Boose
testifying about my client’s statement or any of the statements given.
Under Bruton, all three of these Defendants are protected from any remarks made by a co-Defendant in their statement.
Because the Court was not willing to sever these trials – and I respect that ruling, I do. I’m just saying at this point, in
light of that ruling, I would object to any of the statements being introduced under Bruton, Lee versus Illinois and
Commonwealth – State of New York versus Cruz.
THE COURT: Would I be correct in assuming the statements have been redacted appropriately?
MR. ZUR: Yes.
THE COURT: The objection is overruled.
MR. SHEETS: Okay.
(Trial Transcript, p. 424-5).
Later, Detective Leheny testified regarding his interrogation of the co-Defendant Amir Ferguson. During Detective Leheny’s
testimony, the Commonwealth played Ferguson’s statement for the jury. See Trial Transcript. pp. 460-471. In that statement,
Ferguson testified that he and other “males” were driven to the house by an unknown woman, that he served as a lookout while the
others were inside the house, and that “they” never meant it “to come out as a homicide. It was only supposed to be to extort drugs.”
(T.T. p. 463).
In his recorded statement, Ferguson does not mention the Defendant’s name or provide any identifying information about him.
The statement does not “powerfully implicate” the Defendant, nor does it contain any information that was not already revealed
to the jury: that three (3) men went to Hainesworth’s house to steal drugs and money, that the police arrived and a shootout ensued.
The statement complied with our Supreme Court’s ruling in Cannon, and was not in error. As such, this Court did not err in admitting it. This claim must fail.
3. Continuance
Next, the Defendant argues that this Court erred in failing to continue the trial for “more than thirteen days” due to his retention of new counsel. Again, this claim is meritless.
The Defendant was initially represented by Robert Foreman, Esquire of the Public Defender’s Office. However, in the early
afternoon on the day jury selection was originally scheduled to begin (jury selection was ultimately delayed until the next day),
James Sheets, Esquire telephoned this Court and advised its staff that he would be entering his appearance the next day and that
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he intended to ask for a continuance. Mr. Sheets then appeared on the morning of jury selection, entered his appearance and sought
a continuance because he was not prepared.
“A decision to grant or deny a continuance rests within the sound discretion of the trial court… [The Appellate Court] will not
reverse a trial court’s decision absent a showing of abuse of that discretion or prejudice to the defendant. ‘An abuse of discretion
is not merely an error in judgment. Rather, discretion is abused when the law is override or misapplied or the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record’… ‘In
reviewing the denial of a continuance, [the appellate court has] regard for the orderly administration of justice as well as the right
of a criminal defendant to have adequate time to prepare his defenses.’” Commonwealth v. Flor, 998 A.2d 606, 620 (Pa. 2010).
Between this Court’s crowded trial schedule and administrative duties, the busy schedules of three active trial attorneys and
speedy trial considerations, finding a mutually available and agreeable trial date was, in itself, a feat of gigantic proportions. At
the time of the scheduled trial date, the case had been pending for over one (1) year. The co-Defendants had no reason to waive
their speedy trial rights further, nor should they have been asked to. The Defendant certainly had ample time to retain counsel or,
if he did not have the funds, to file a motion seeking the appointment of new counsel. He did neither. Instead, on the day jury selection was scheduled to begin, a new attorney advised the Court that he would be entering his appearance and asking for a continuance the following day.
The Defendant now makes much of this Court’s comments in the on-the-record discussion of Mr. Sheets’ postponement request,
both in this issue and in his recusal claim, below. However, his focus on this Court’s – justified – distress, fails to take into account
the other considerations discussed above. This case was about three defendants, all of whom had Constitutional rights to be protected. Their family members and friends arranged their schedules to be present for the trial. Their attorneys spent additional time
finalizing their preparations for this case, when other matters required their attention. The Commonwealth subpoenaed many
witnesses who were present for the start of the trial, including police officers, who had either come to Court on their regularlyscheduled work shift when they could have been protecting our citizenry, or they were appearing outside their shift, in which case
they were being paid additional money from an already-strapped budget. Mr. Sheets could have avoided all of this disruption by
simply filing his request for a continuance on the day he was retained. He chose not to, and so this Court’s ire was entirely justified.
In the end, this Court did give Mr. Sheets a two (2) week continuance to prepare. Mr. Sheets appeared to have used the time
well, as he seemed to this Court to be as well prepared as the other defense counsel. Mr. Sheets’ representation of the Defendant
was perhaps the most effective of the three (3) defense counsel, with well-thought out questions and thorough cross-examinations.
Ultimately, the guilty verdict was a reflection of the overwhelming evidence against the Defendant and the other co-Defendants,
not a result of any failings or lack of preparation on Mr. Sheets’ part. This claim is meritless.
4. Recusal
Next, the Defendant argues that this Court erred in failing to grant his motion for recusal. He contends this Court’s comments at
the argument on the postponement request raised “an appearance of impropriety” which required recusal. This claim is meritless.
The Appellate Court’s “standard of review of a trial court’s determination not to recuse from hearing a case is exceptionally
deferential. [The appellate court] recognize[s] that our trial judges are ‘honorable, fair and competent’ and although [the appellate
court] employ[s] an abuse of discretion, [it does] so recognizing that the judge himself is best qualified to judge his ability to preside impartially… It is the burden of the party requesting recusal ‘to produce evidence establishing bias, prejudice or unfairness
which raises a substantial doubt as to the jurist’s ability to preside impartially.’” Commonwealth v. Harris, 979 A.2d 387, 391-2 (Pa.
Super. 2009).
The crux of the Defendant’s argument is that Mr. Sheets’ feelings were hurt by this Court’s comments during the postponement
request. As discussed above, defense counsel brought those comments on himself by failing to avoid an entirely avoidable situation.
This Court remained able to preside impartially and, in fact, did so. The Defendant cannot point to any examples of bias, prejudice
or unfairness during the trial, and instead relies entirely on comments made during the argument on the request for a postponement
– which this Court ultimately granted.
Because the Defendant has shown no evidence of bias, prejudice or unfairness, this claim must fail.
5. Severance
Finally, the Defendant argues that this Court erred in failing to sever the Defendant’s case from that of his two (2) co-defendants. This claim is meritless.
Joinder and Severance are controlled by Rules 582 and 583 of the Pennsylvania Rules of Criminal Procedure which state:
Rule 582. Joinder – Trial of Separate Indictments or Informations
(A) Standards
…(2) Defendants charged in separate indictments or informations may be tried together if they are alleged to have
participated in the same act or transaction or in the same series of acts or transactions constituting an offense or
offenses.
Pa.R.Crim.Pro. 582(A)(2).
Rule 583. Severance of Offenses or Defendants
The Court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any
party may be prejudiced by offenses or defendants being tried together.
Pa.R.Crim.Pro. 583.
“The decision to sever co-defendant’s trials is within the trial court’s discretion and will not be disturbed absent an abuse thereof…
Joint trials are favored when judicial economy will be served by avoiding the expense and time-consuming duplication of evidence
and where the defendants are charged with conspiracy.” Commonwealth v. Birdsong, 24 A.3d 319, 336 (Pa. 2011). “Where… the
crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to all defendants, joint rather
than separate trials are to be preferred.” Commonwealth v. Childress, 680 A.2d 1184, 1187 (Pa.Super. 1996).
“Under Rule 583, the prejudice the defendant suffers due to the joinder must be greater than the general prejudice any defendant suffers when the Commonwealth’s evidence links him to a crime… The prejudice of which Rule 583 speaks is, rather, that
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which would occur if the evidence tended to convict the appellant only by showing his propensity to commit crimes, or because the
jury was incapable of separating the evidence or could not avoid cumulating the evidence. Additionally, the admission of relevant
evidence connecting a defendant to the crimes charged is a natural consequence of a criminal trial, and is not grounds for severance by itself.” Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010).
As discussed above, all three (3) co-defendants arrived at the scene together, broke into the house together and participated in
the robbery together. They all carried guns. They were all charged with conspiracy. The fact that co-Defendant Amir Ferguson had
additional charges for firing at the police officers while the Defendant and Woodward fled did not change the facts against the
Defendant or otherwise render the jury incapable of separating Ferguson from the Defendant. The charges against all three (3)
men arose out of the same incident and it was logical, appropriate and non-prejudicial for the men to be tried together. This claim
must fail.
Accordingly, for the above reasons of fact and law, the judgment of sentence entered on December 15, 2011 must be affirmed.
BY THE COURT:
/s/McDaniel, P.J.
Date: July 24, 2012
1
18 Pa.C.S.A. §2501(a)
2
18 Pa.C.S.A. §901(a) – 5 counts
3
18 Pa.C.S.A. §2702.1A – 3 counts
4
18 Pa.C.S.A. §2702(a)(2) – 5 counts
5
18 Pa.C.S.A. §3701(a)(1)(I)
6
18 Pa.C.S.A. §3502(c)(1)
7
18 Pa.C.S.A. §6106(a)(1)
8
18 Pa.C.S.A. §2705 – 4 counts
9
18 Pa.C.S.A. §903(a)(1)
10
18 Pa.C.S.A. §2702(a)(2)
Commonwealth of Pennsylvania v.
Richard McCracken
Criminal Appeal—SVP—Weight of the Evidence—Waiver—Rape of a Child—Juror Note Taking—Expert Witnesses—
Prosecutorial Misconduct
No. CC 201108518. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
McDaniel, P.J.—July 24, 2012.
OPINION
The Defendant has appealed from the judgment of sentence entered on March 13, 2012. A review of the record reveals that the
Defendant has failed to present any meritorious issues for review and, therefore, the judgment of sentence must be affirmed.
The Defendant was charged with Rape of a Child,1 Unlawful Contact with a Minor,2 Indecent Assault – Person Under 13 Years,3
Statutory Sexual Assault,4 Endangering the Welfare of a Child5 and Corruption of Minors.6 Following a jury trial held before this
Court from December 13-14, 2011, the Defendant was convicted of one (1) count of Rape of a Child and the remaining charges.
Pursuant to this Court’s Order, an evaluation by the Sexual Offenders Assessment Board (SOAB) was conducted, and the
Defendant was found to be a sexually violent predator. Pursuant to the Commonwealth’s Praecipe, a Sexually Violent Predator
(SVP) hearing was held prior to sentencing on March 13, 2012, and this Court held that the Defendant was a Sexually Violent
Predator. The Defendant was then sentenced to two (2) consecutive terms of imprisonment of ten (10) to twenty (20) years at the
Rape of a Child and Unlawful Contact with a Minor charges, and a consecutive term of imprisonment of two and one half (2 ½) to
six (6) years. A timely Post-Sentence Motion (captioned Post-Verdict Motion) was filed and was denied on March 15, 2012. This
appeal followed.
Briefly, the evidence presented at trial established that until she was almost ten (10) years old, Brionna Thompson lived with
her mother Brenda and two (2) younger brothers, Xavier and Wykiem, in the Leetsdale area. The Defendant, who was Brenda’s
boyfriend and Xavier’s father, lived with another woman but would visit several times a week and occasionally spend the night
Often, during his daytime visits, Brenda would leave him to babysit Brionna and her brothers, though Brenda did not work. Brionna
testified that on several occasions, beginning when she was eight (8) years old and ending when she was almost ten (10) years old,
the Defendant would tell her to pull down her pants and underwear and bend over a piece of furniture or a chair, etc. He would
stand behind her and Brionna would then feel pain in her “girlie parts” that felt like something pushing in and out. She was not
able to see what was happening. She told the Defendant to stop, but he would not.
On appeal, the Defendant raises 137 claims of error. For ease of review, this Court has combined several and re-numbered them,
as follows:
1. Weight of the Evidence
“The weight of the evidence is exclusively for the finder of fact who is free to believe all, part or none of the evidence and to
determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus [the
appellate court] may only reverse the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice.
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Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim.” Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012). “A
motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence
to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Moreno,
14 A.3d 133, 136 (Pa.Super. 2011).
Because the Defendant properly raised his weight of the evidence claim on Post-Sentence Motions, the appellate court’s review
is only directed to this Court’s discretion in denying the motion. See Shaffer, supra. Given the evidence presented at trial, there is
no question that the verdict was appropriate and not “shocking” to the conscience.
The Defendant directs his argument on this issue primarily to his averment that “this court allowed testimony that a ruptured
hymen can regrow and reheal itself.” Not only is this an unfair characterization of the medical testimony, it has no bearing on the
weight of the evidence. As Dr. Wolford testified, 90% of sexual abuse victims have a normal exam. (T.T. p. 151). The fact that
Brionna presented with a normal exam over two (2) years after the assaults ended does not mean that the guilty verdict was against
the weight of the evidence.
Rather, to the contrary, review of the evidence reveals that the verdict was appropriate and not “shocking” to the conscience.
This claim must fail.
2. Note-Taking by Jurors
Next, the Defendant argues that because “this trial took three days,” this Court erred in not allowing the jurors to take notes.
Note-taking by jurors is controlled by Rule 6448 of the Pennsylvania Rules of Criminal Procedure. It states, in relevant part:
Rule 644. Note Taking by Jurors
(A) When a jury trial is expected to last for more than two days, jurors shall be permitted to take notes during the trial for
their use during deliberations. When the trial is expected to last two days or less, the judge may permit the jurors to take notes.
Pa.R.Crim.Pro. 644.
Reference to the record indicates that the jury was sworn at 9:50 a.m. on December 13, 2011 and the verdict was entered and
court recessed by 2:20 p.m. on December 14, 2011. According to this Court’s humble math skills, this trial did not even last two (2)
full days, let alone the three (3) days averred in the Concise Statement. Nevertheless, this is not a case where the testimony was
so complex or the exhibits so numerous as to necessitate note-taking. The jurors were clearly able to distinguish the evidence and
evaluate each charge separately, as proven by the one (1) not-guilty verdict. Note-taking was not necessary here, and this Court
did not err in not letting the jurors take notes. This claim must fail.
3. Expert Witness Issues
The Defendant also raises several claims in relation to the testimony of Dr. Jennifer Wolford. He argues that this Court improperly allowed her to testify in place of Dr. Kim, that this Court improperly allowed her expert opinion testimony and that this Court
erred in denying his request for a continuance to obtain his own expert witness in rebuttal. All of these claims are meritless.
In the course of the police investigation, Brionna underwent a forensic interview and physical examination at Children’s Hospital.
Between the time of the exam and trial, Dr. Evan Kim, who performed the physical examination, took a new job out of the
Commonwealth and was unavailable to testify. (T.T. p. 142). In his place, his colleague Dr. Jennifer Wolford, appeared to testify
regarding Dr. Kim’s examination and findings. This is entirely appropriate and the Court did not err in permitting her testimony.
At the beginning of her testimony, Dr. Wolford detailed her education and work history, which included her medical degree,
details of her internship and residency, her appointment as a chief resident at Children’s Hospital, her board certification in pediatrics, her current position as an attending physician at Children’s Hospital and the number of sexual assault evaluations she has
performed. (T.T. p. 143-6). Defense counsel was then given the opportunity to voir dire her regarding her qualifications, but
declined:
THE COURT: Any voir dire as to the expertise?
MR. DONOHUE: If she’s being offered as an expert in pediatric medicine, we have no questions and will accept her as a
board-certified physician.
THE COURT: Dr. Wolford will be qualified as an expert.
MS. CAREY: Thank you, Your Honor.
(Trial Transcript, p. 146-7).
Defense counsel was aware that the Commonwealth intended to qualify Dr. Wolford as an expert and solicit opinion testimony
from her. (See T.T. p. 5-7). He passed on the opportunity to question her qualifications, though she would have been qualified as an
expert regardless. He had in his possession Dr. Kim’s report, which indicated a normal exam, with no lesions, lacerations, bruising
or redness and a hymen with no lacerations or tears. (See T.T. p. 150).
The Defendant now argues that his counsel was “taken by complete surprise” when Dr. Wolford testified that it is a “misconception” that the hymen can be used as an indicator of whether a girl or young woman “is sexually active, consensual or against
her will.” (T.T. p. 152). In fact, the record reflects defense counsel engaged in a spirited and articulate cross-examination, most of
which concentrated on the issue of the hymen.
It bears mention at this point that it is somewhat disingenuous for counsel to complain that Dr. Wolford gave improper opinion
testimony regarding the hymen’s – as counsel puts it – ability to “regrow” itself, when a close examination of her testimony reveals
that this testimony was elicited by defense counsel on cross-examination. (T.T. p. 163). Defense counsel made his own bed; he must
now lie in it.
As Dr. Wolford noted, 90% of the exams of sexual abuse victims are normal; this does not mean that the abuse did not occur, it
simply means exactly what it says - that at the time of the evaluation, the victim’s exam was normal. Being an experienced criminal
defense attorney in possession of Brionna’s medical records, Mr. DeFazio should have known or anticipated that such testimony
would be elicited from Dr. Wolford. He had ample time to obtain an expert witness to rebut the testimony prior to trial, and the fact
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that he did not choose to do so until the trial had already begun is not a sufficient justification for this Court to grant a continuance.
Ultimately, the record reflects that the Commonwealth appropriately presented the testimony of Dr. Wolford in place of Dr. Kim,
that Dr. Wolford presented fair and appropriate expert testimony, that this Court did not err in allowing her testimony and that this
Court did not err in denying the Defendant’s request for a continuance to obtain an opposing expert. These claims must fail.
4. Prosecutorial Misconduct
Next, the Defendant raises several claims directed to prosecutorial misconduct. All are meritless.
First, the Defendant argues that Ms. Carey committed prosecutorial misconduct – and this Court erred in allowing them – during
her closing argument. She stated:
MS. CAREY: Put yourselves in Brionna’s shoes when you recall her testimony. You recall her saying that Richard
McCracken said, let’s go. Meaning get in your bedroom. Richard McCracken said, pull down your pants. Pull down your
underwear. Turn around. Put your hands on the bed. Put your hands on the chair. And he brutally raped her from behind.
This is an eight-year old child. I have an eight-year old child right now.
MR. DeFAZIO: Objection.
THE COURT: Overruled.
MS. CAREY: I have an eight-year old child. She doesn’t know what sex is. If I said the word sex to her, I know that she
would believe it means male or female. She would believe the word sex only to mean gender. She doesn’t know what sex
is. And she is not going to be able to create these kinds of details.
Bend over. To realize that you can be vaginally raped from behind. The details that this child gave are not something that
most eight, nine, ten, eleven year olds can come up with. Brionna had nothing to gain. What she had to lose is half of her
family, who chose to believe her mother’s boyfriend, a convicted liar. They chose to believe her mother’s boyfriend over
a little girl.
(T.T. p. 263-4).
What the Defendant does not say, however, is that Ms. Carey’s comments were in direct response to his counsel’s closing
argument, where he argued that Brionna had fabricated the accusations and they perhaps were the product of hallucinations
from her medication:
MR. DeFAZIO: I don’t know why she is making these allegations. If it’s an attempt for attention or maybe the medication.
It was too strong for her. Maybe hallucinations. I don’t know. I don’t know. But we do know there are times when she told
her story that created some questions.
(T.T. p. 250).
It is well-established that “a prosecutor has considerable latitude during closing arguments and his arguments are fair if they
are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their
minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a
true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.” Commonwealth v. Judy, 978 A.2d 1015, ¶10
(Pa.Super. 2009). “In determining whether the prosecutor engaged in misconduct, [the appellate court] must keep in mind that
comments made by a prosecutor are to be examined within the context of defense counsel’s conduct. It is well-settled that the prosecutor may fairly respond to points made in the defense closing. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.” Commonwealth v. Manley, 985
A.2d 286, 269 (Pa.Super. 2009).
In his closing argument, defense counsel repeatedly argued that Brionna had fabricated her allegations of abuse. Ms. Carey’s
comments – that a child of that age simply would not have the knowledge or capacity to somehow fabricate the narrative of being
raped from behind – were simply a response to Mr. DeFazio’s arguments. Her use of oratorical flair was entirely appropriate, and
given the not-guilty verdict to one (1) of the two (2) rape charges, there is no viable argument that her comments were so prejudicial as to prevent the jury from reaching a fair verdict. This claim is meritless.
Also meritless is the Defendant’s argument that this Court erred in allowing Ms. Carey to ask argumentative questions during
cross-examination:
Q. (Ms. Carey): Why should the jury believe anything you are saying?
MR. DeFAZIO: Objection; argumentative.
THE COURT: I’ll allow it. It’s cross.
A. (The Defendant): Because I’m getting up here and telling the truth. I got no reason to lie about raping an eight-year
old kid, nine-year old child.
(T.T. p. 218-9).
“Where a defendant in a criminal case takes the witness stand in his own defense, he occupies the same status as any other
witness and his credibility is in issue… The reason is that if a defendant offers himself as a person worthy of belief the jury has a
right to know what kind of man he is – to aid in assessing his credibility.” Commonwealth v. Showers, 681 A.2d 746, 751 (Pa.Super.
1996). “A prosecutor is allowed to convey to the jury that, based on the evidence, the witness’ credibility may legitimately be called
into question.” Commonwealth v. LaCava, 666 A.2d 221, 234 (Pa. 1995). Error will only be found when the defendant has been
deprived of a fair trial. Id.
As this Court noted in its ruling, this was cross-examination, which is, by its nature, argumentative. By testifying, the Defendant
placed his credibility at issue, and Ms. Carey was entitled to question that credibility. Her question was not overly argumentative,
nor did it deprive the Defendant of a fair trial. This claim must fail.
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5. Crimen Falsi
Next, the Defendant argues that this Court erred in allowing the admission of two (2) of his prior convictions as crimen falsi.
This claim is meritless.
At trial, the following occurred:
Q. (Ms. Carey): You are not a liar?
A. (The Defendant): No, I’m not a liar.
Q. You were not a liar when you were –
MS. CAREY: May we approach, briefly?
THE COURT: You may.
(Sidebar discussion held on the record.)
MS. CAREY: I’m just being extra cautious. He has crimen falsi that the defense is aware of and he knows what they are.
They opened the door.
THE COURT: It’s less than ten years.
MS. CAREY: Disposition date of September of 2001 for robbery.
MR. DeFAZIO: Was he a juvenile?
MS. CAREY: No. No, he was not. This was in adult court.
THE COURT: If it was, it counts as an adult conviction.
MS. CAREY: In December of ’99. He also has criminal conspiracy to commit felony one robbery.
THE COURT: What did he get for that?
MS. CAREY: County prison and costs. For the 2001 case, he got two to four years and costs.
THE COURT: He had to be serving that sentence in the last ten years so that, in fact would not be admissible unless he
was on probation for five years or something.
MS. CAREY: SCI Camp Hill. It says admission date 10/12/01. And that applies to –
THE COURT: That’s the robbery, though.
MS. CAREY: The OTN at the ’99 conviction, the new one must have violated the old one. He was serving that at SCI.
THE COURT: He would be technically still serving that sentence. They are both admissible.
MR. DeFAZIO: Okay.
(T.T. p. 219-20).
Rule 609 of the Pennsylvania Rules of Evidence states, in relevant part:
Rule 609. Impeachment by evidence of conviction of crime.
(a). General rule. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted
of a crime, whether by verdict or by plea of guilty or nolo contendre, shall be admitted if it involved dishonesty or false
statement.
(b). Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever
is the later date…
Pa.R.Evid. 609, emphasis added.
As noted in the sidebar discussion, one (1) of the convictions was less than ten (10) years old at the time of trial and although
the other conviction was older, the Defendant was still serving its sentence in 2001, within ten (10) years of trial. Accordingly, both
convictions were properly admitted pursuant to Pa.R.Evid. 609. This claim must fail.
6. Sexually Violent Predator Determination
Next, the Defendant argues that this Court erred in finding that the Defendant was a sexually violent predator. This claim is not
reviewable.
In his Concise Statement, the Defendant references the SVP hearing and the testimony of Dr. Alan Pass. However, counsel did
not order a copy of the SVP/Sentencing Hearing transcript, and so the hearing was not transcribed for any of the parties, including this Court. Because this issue concerns testimony and evidence presented at the SVP hearing, the transcript is necessary for
this Court to properly address the issue for the Superior Court.
Without the transcript, this Court is impeded in performing a meaningful legal analysis of the Defendant’s claims. See
Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006). Inasmuch as the Defendant has failed in his responsibility to provide the
transcript, this Court cannot review his issue and he is not entitled to relief.
7. Time of the Offenses
Next, the Defendant argues that the Commonwealth violated his rights by failing to provide him with the exact dates of the
offenses, so that he could prepare an alibi defense. He also argues that this Court erred in denying his request for a Bill of
Particulars in this regard. This claim is meritless.
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The sexual assaults in question occurred when Brionna was eight (8) and nine (9) years old. She was able to provide a starting
date for the abuse as the fall of the year she was eight (8) and an end-date of the spring in the year she was nine (9). She was unable
to provide any more specific dates of the events, and defense counsel’s repeated badgering of her during cross-examination was
fruitless, as she clearly could not do the math necessary to identify the years of the offense. (See T.T. p. 111).9
Rule 560 of the Pennsylvania Rules of Criminal Procedure states, in relevant part:
Rule 560. Information: Filing, Contents, Function
(b) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
(3) the date when the offense is alleged to have been committed if the precise date is known, and the day of the week
if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a
continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of
limitations shall be sufficient;
Pa.R.Crim.Pro. 560, emphasis added.
It is the duty of the prosecution to ‘fix the date when an alleged offense occurred with reasonable certainty’… The
purpose of so advising a defendant of the date when an offense is alleged to have been committed is to provide him
with sufficient notice to meet the charges and prepare a defense.
However, ‘due process is not reducible to a mathematical formula,’ and the Commonwealth does not always need to prove
a specific date of an alleged crime… Additionally, ‘indictments must be read in a common sense manner and are not to
be construed in an overly technical sense’… Permissible leeway regarding the date varies with, inter alia, the nature of
the crime and the rights of the accused…
Case law has further ‘established that the Commonwealth must be afforded broad latitude when attempting to fix the date
of offenses which involve a continuous course of criminal conduct’… This is especially true when the case involves a
sexual offense against a child victim.
Commonwealth v. Brooks, 7 A.3d 852, 857-8 (Pa.Super. 2010).
Under the circumstances, the Commonwealth fixed the dates of the offenses with as much certainty as was possible. The
Commonwealth provided a time frame – fall of the year Brionna was eight (8) to the spring of the year she was nine (9) – which
was specific enough under the circumstances.
The Defendant avers that without the particular dates, he was unable to provide an alibi defense. However, this claim is belied
by his own testimony and that of his witnesses. At trial, the Defendant testified that when he went to Brenda’s house, he was usually with his brothers, and that he “[n]ever. Not once,” babysat Brionna or her brothers. (T.T. p. 201). He also presented the testimony of Aubri Morris, Brionna’s aunt, who testified that Brionna was never alone with the Defendant. (T.T. p. 224). If the
Defendant and Ms. Morris are to be believed, that the Defendant never babysat for Brionna and was never alone with her, then an
alibi witness would be unnecessary.
Regardless, the Commonwealth satisfied its duty to fix the time of the offenses with as much specificity as it could, given the
very young age of the victim. There is no error here. This claim must fail.
8. Denial of Omnibus Pretrial Motion
The Defendant next argues that this Court “erred in denying the defendant’s Omnibus Pre-Trial Motion.” He provides no detail
as to his claim(s) of error.
The Defendant’s Omnibus Pretrial Motion was a combination of five (5) motions: (1) Notice of Alibi Defense (actually a motion
for extension of time to file a list of alibi witnesses; (2) Motion to Quash pursuant to Commonwealth v. Devlin; (3) Objection to
Complainant’s Competency to Testify; (4) Motion to Conduct Taint Hearing During Competency Hearing of Child Complainant;
and (5) Motion for Leave to File Additional Motion [sic] Nunc Pro Tunc. Because the Defendant has failed to specify the alleged
error(s) he is complaining of, this Court has no idea which motion(s) it should address.
“When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review… ‘When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues’… In other words, a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all.” Commonwealth v.
Dowling, 778 A.2d 683, 686-7 (Pa.Super. 2001).
Because the Defendant has failed to identify with specificity his claims of error regarding the Omnibus Pretrial Motion, this
Court is unable to address it. This claim must fail.
9. Prosecutor’s Conference with Witness
The Defendant also argues that this Court erred in “allowing the prosecutor to talk to the witness outside the hearing of defense
counsel during cross examination.” This claim is meritless.
During defense counsel’s cross-examination of Brionna, he asked confusing and poorly-phrased questions with words she didn’t
understand and repeatedly badgered her regarding the year of the assaults when she clearly could not compute the math – to the
point that she was unable to respond. Even when she was unable to respond, defense counsel continued to question her to the point
where this Court believed Brionna was in distress. (See T.T. p. 103-6). This Court called a recess, had the jury taken out and had
the courtroom cleared. Ms. Carey then asked this Court’s permission to approach and speak with Brionna, which this Court granted.
(See T.T. p. 106).
The prosecutor is permitted to speak with the witness during a break in the testimony. Here, the witness was a young child who
was the victim of sexual abuse, and who has been diagnosed with Post-Traumatic Stress Disorder and an anxiety disorder. She
takes medication for her anxiety. She was clearly having trouble understanding Mr. DeFazio’s questions, and yet he persisted in
his questioning until she was unable to speak. Under these circumstances, Ms. Carey was certainly permitted to speak with
Brionna to calm her down and allow her to finish her testimony. There is no indication – and in fact no averment - that Ms. Carey
instructed Brionna on what to say, and absent any proof thereof, there was no harm in allowing the brief discussion in order to
permit Brionna to compose herself and finish her testimony. This claim must fail.
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10. Batson Challenge
Finally, the Defendant argues that this Court erred in denying his Batson challenge. This claim is also meritless.
During jury selection, the Defendant challenged two (2) peremptory challenges used by the Commonwealth to strike the only
two (2) African-Americans in the jury pool. He argues that the Commonwealth was improperly excluding African-Americans from
the jury because the Defendant is African-American.
“In Batson, the US Supreme Court held that a prosecutor’s challenge of potential jurors solely on account of their race violates
the Equal Protection Clause… The High Court set forth a three-part test for examining a criminal defendant’s claim that a prosecutor exercised peremptory challenges in a racially discriminatory manner… First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race…
Second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for the striking of the juror(s) at issue. Third, the trial court, who has observed the prosecutor’s demeanor during voir dire, then makes the
ultimate determination of whether the defense has carried its burden of proving purposeful discrimination.” Commonwealth v.
Hanible, 30 A.3d 426, 475 (Pa. 2011). When “there is little evidence bearing on the issue of the prosecutor’s discriminatory intent,
and the best evidence is the demeanor of the attorney who exercises the challenge, the trial court’s determination will turn on the
court’s assessment of the prosecutor’s credibility… Accordingly, [the appellate court] may overturn the trial court’s decision only
if it is clearly erroneous.” Commonwealth v. Sanchez, 36 A.3d 24, 45 (Pa. 2011).
When defense counsel voiced his Batson challenge during jury selection, this Court heard a brief argument on the matter:
MR. DeFAZIO: Yesterday’s panel of 25, there was one African-American and the Commonwealth used their peremptory
challenge C2 to strike that prospective juror. And just now, a few moments ago, in a new panel which we are doing today,
December 7, we had an African-American female juror, number 21, which has just been struck with the Commonwealth’s
seventh peremptory challenge, apparently African-American. And I believe this is raising a Batson issue.
THE COURT: For the record, I will point out that the defendant in this case appears to be African-American. The victim
is perhaps biracial or African-American. I’m not sure. I am just judging that from yesterday’s hearing. Ms. Carey.
MS. CAREY: Your Honor, I do know the victim to be biracial. Her father was present in the courtroom yesterday. He is clearly
Caucasian. And her mother is African-American. And I did take that – actually, that’s why race was not so much an issue in
my decision at all because we have both races as very important parties in this case. In the jury pool yesterday seat No. 13
was my second peremptory strike. I have no other notes other than she was a CYF caseworker. In my mind that social-work
type of background is not someone that I think would be beneficial to the Commonwealth. That was my only reason for striking her. And today my seventh strike was in seat number 21. And the reason for that strike was that she said she attended one
year of law school in the past, but – she did complete a criminal law course. She answered all no’s on the questionnaire and,
therefore, I had a difficult time getting any kind of read on her. I thought she was a wild card. That’s why I used that strike.
THE COURT: Okay. I do not see any violation of Batson. We’ll resume selection.
(Jury Selection Question Transcript, p. 2-3).
This Court was well within its discretion in denying the Defendant’s Batson challenge. Initially, the Defendant failed to identify
the race of every venire person; though in the motion he notes that the first panel had only one African-American, he does not indicate as to the second panel whether the prospective juror who was stricken was the only African-American in the panel.
Regardless, the Commonwealth has presented a race-neutral reason for striking both prospective jurors, as the record reflects,
above. This Court found Ms. Carey’s demeanor in her explanation to be completely credible and this Court has no reason to doubt
her credibility or challenge her proffered reasons for the strikes. This Court was well within its discretion in denying the
Defendant’s Batson challenge, and this claim must fail.
Accordingly, for the above reasons of fact and law, the judgment of sentence entered on March 13, 2012, must be affirmed.
BY THE COURT:
/s/McDaniel, P.J.
Date: July 24, 2012
1
18 Pa.C.S.A. §3121(c) – 2 counts
2
18 Pa.C.S.A. §6318(1)
3
18 Pa.C.S.A. §3126(a)
4
18 Pa.C.S.A. §3122.1
5
18 Pa.C.S.A. §4304
6
18 Pa.C.S.A. §6301(a)(1)
7
Reference is made to the oft-cited quote from Judge Aldisert: “With a decade and a half of federal appellate court experience
behind me, I can say that even when we reverse a trial court, it is rare that a brief successfully demonstrates that the trial court
committed more than one or two reversible errors… When I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not
loquaciousness.” Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility – a View from the
Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).
8
The Defendant cites to Pa.R.Crim.Pro. 223.2 as his justification for allowing the jurors to take notes. However, Rule 223 pertains
to “Administering Oath to Stenographer” and there is no Rule 223.2. The correct citation is Rule 644.
9
Although Brionna could not do the math to calculate back to the dates, the Defendant and his counsel should have been able to
make the calculations themselves.