VOL. 160
november 2, 2012
NO. 22
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
Howard Trail, individually and as Administrator of the Estate of
Jessica Trail, deceased, Sue Trail, Tammie Grice, individually
and as Administratrix of the Estate of William Grice, deceased,
Michael Trail, and Amanda Delval v.
Timothy Lesko and Pittsburgh Lodge No. 11 Benevolent
and Protective Order of Elks, a Pennsylvania Corporation,
t/d/b/a B.P.O.E. Pittsburgh Lodge 11, Wettick, J. ..................Page 433
Personal Injury—Discovery—Facebook
Jarrod D. Shaw v. Township of Upper St. Clair
Zoning Hearing Board v. 1800 Washington Road Associates
Jarrod D. Shaw and Moira E. Cain-Mannix v.
Township of Upper St. Clair v. 1800 Washington Road Associates,
James, J. ......................................................................................Page 438
Zoning—Text Amendment—Jurisdiction—Timeliness
E.S. Management v. Timothy Kolman, et al., Friedman, J. ......Page 439
Landlord/Tenant—Collection Costs (Attorney Fees)—
Security Deposit—Guarantors
Commonwealth of Pennsylvania v.
Stanley Cotton, Machen, J. ......................................................Page 440
Criminal Appeal—PCRA—3rd Petition—
After Discovered Evidence—Recantation
Commonwealth of Pennsylvania v.
Ricco Turner, Borkowski, J. ....................................................Page 443
Criminal Appeal—Homicide—Sufficiency—
Expert Psychiatric Testimony—Diminished Capacity
Commonwealth of Pennsylvania v.
Jonathan Simmons, Borkowski, J. ..........................................Page 445
Criminal Appeal—Sufficiency—Robbery—
Waiver—Jury Instruction—Adverse Inference—
Failure to Object
Commonwealth of Pennsylvania v.
Thomas Albert, Borkowski, J. ..................................................Page 449
Criminal Appeal—Sufficiency—SVP—
Waiver—Timing of SVP Hearing
Commonwealth of Pennsylvania v.
Terrance Andrews, Borkowski, J. ............................................Page 450
Criminal Appeal—Sufficiency—Homicide—
Weight of the Evidence—Diminished Capacity—
Malice—Photographs—Expert Testimony
Commonwealth of Pennsylvania v.
Dayron Malloy, Borkowski, J. ..................................................Page 454
Criminal Appeal—Homicide—Sufficiency—
Conspiracy—Hearsay—Waiver—Accomplice Liability—
Missing Witness—Continuance—Mistrial
Commonwealth of Pennsylvania v.
Jennifer Anthony, Borkowski, J. ..............................................Page 459
Criminal Appeal—Restitution—Untimely Modification—
Failure to Prove Amount
PLJ
OPINION SELECTION POLICY
The Pittsburgh Legal Journal Opinions are
published fortnightly by the
Allegheny County Bar Association
400 Koppers Building
Pittsburgh, Pennsylvania 15219
412-261-6255
www.acba.org
©Allegheny County Bar Association 2012
Circulation 6,535
Opinions selected for publication are based upon
precedential value or clarification of the law. Opinions are
selected by the Opinion Editor and/or committees in a specific practice area. An opinion may also be published upon
the specific request of a judge.
Opinions deemed appropriate for publication are not
disqualified because of the identity, profession or community status of the litigant. All opinions submitted to the PLJ are
printed as they are received and will only be disqualified or
altered by Order of Court.
PLJ EDITORIAL STAFF
Hal D. Coffey ..........................Editor-in-Chief and Chairman
Jennifer A. Pulice ............................................................Editor
David A. Blaner ..........................................Supervising Editor
Sharon Antill ................................................Typesetter/Layout
section EditorS
Civil Litigation: Cecilia Dickson
Criminal Litigation: Victoria Vidt
Family Division: Reid Roberts
Probate and Trust: Mark Reardon
Real Property: Ken Yarsky
Civil litigation opinions committee
Cecilia Dickson
Austin Henry
Harry Kunselman
Dennis Kusturiss
Bethann Lloyd
Bryan Neft
Criminal litigation opinions committee
Marc Daffner
Mark Fiorilli
Deputy D.A. Dan Fitzsimmons
Bill Kaczynski
Anne Marie Mancuso
Patrick Nightingale
James Paulick
Melissa Shenkel
Dan Spanovich
Victoria Vidt
family law opinions committee
Reid B. Roberts, Chair
Mark Alberts
Christine Gale
Mark Greenblatt
Margaret P. Joy
Patricia G. Miller
Sally R. Miller
Sophia P. Paul
David S. Pollock
Sharon M. Profeta
Hilary A. Spatz
Mike Steger
William L. Steiner
OPINIONS
The Pittsburgh Legal Journal provides the ACBA
members with timely, precedent-setting, full text opinions,
from various divisions of the Court of Common Pleas. These
opinions can be viewed in a searchable format on the ACBA
website, www.acba.org.
november 2, 2012
pa g e 4 3 3
Howard Trail, individually and as Administrator
of the Estate of Jessica Trail, deceased,
Sue Trail, Tammie Grice, individually and as Administratrix
of the Estate of William Grice, deceased,
Michael Trail, and Amanda Delval v.
Timothy Lesko and Pittsburgh Lodge No. 11 Benevolent and Protective Order of Elks,
a Pennsylvania Corporation, t/d/b/a B.P.O.E. Pittsburgh Lodge 11
Personal Injury—Discovery—Facebook
No. GD-10-017249. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
Wettick, J.—July 3, 2012.
OPINION and ORDER of COURT
I.
The subjects of this Opinion and Order of Court are the motion of Michael Trail seeking access to defendant Timothy Lesko’s
Facebook profile and defendant’s motion seeking access to plaintiff Michael Trail’s Facebook profile.
I am responsible for discovery disputes in General Docket cases that are not on a trial list. Within the past year, defendants are
far more frequently presenting motions seeking access to the plaintiffs’ Facebook profiles.1
Usually, I have disposed of these motions through rulings from the Bench (frequently acceptable to both parties).
In order that I may provide a context for the arguments presented by counsel and the implications of my rulings involving the
discovery of Facebook content, I have included, at Part II of this Opinion, a brief discussion of what Facebook is, how it is used,
and what information is available to its users.
In Part III of this Opinion I identify and discuss the Pennsylvania cases in which parties have requested access to information
on Facebook.2
In Part IV of this Opinion I discuss selected opinions of other state courts and federal courts pertaining to the discovery of
Facebook content.
In Part V of this Opinion I deny plaintiff ’s and defendant’s motions, which are the subject of this Opinion and Order of Court,
because of the protections that Pa.R.C.P. No. 4011(b) affords Facebook content.
II.
Social networking sites3 are web-based services that allow individuals to construct a public or semi-public profile within a
bounded system, choose from a list of other service users with whom they intend to share a connection, and navigate among those
connections and those made by others within the system. Users create a unique user identity, establish relationships with others
who have done the same, join communities of users who share connections, and exchange information among one another.4
Social networking sites like Facebook utilize “Web 2.0” technology, which allows users to create and edit content on a web page
while interacting with other users simultaneously in real time.5 With respect to Facebook, an individual initially creates a “profile,”
which functions as a personal web page and may include, at the user’s discretion, numerous photos and a vast array of personal
information including age, employment, education, religious and political views and various recreational interests. Once a profile
is established, the user is encouraged to connect with other Facebook users - so-called “Friends” - with whom they exchange
limited access to their respective profile pages and the ability to post pictures, comments and other content thereon.6 Each time
content is posted directly to a user’s profile page, the recipient user has the administrative capability to delete the offered content
from his or her own profile.
In a departure from the control generally afforded a user over the content of his or her own profile page, Facebook employs a
system whereby users may “tag” others in photographs and other content, thereby establishing a link from that content to the
tagged user’s profile page.7 For example, User A uploads a photo to his or her own profile page of several individuals including
User B. User A “tags” User B in the photo. Once tagged, the photo on User A’s profile page will contain a link directing individuals
to User B’s profile.8 While User B’s profile will indicate that he or she has been tagged in User A’s photo, and the tagged photo will
unwittingly appear among the pictures that User B has selected for publication on his or her own profile page.9
Finally, any time any user posts content to their own or their Friends’ profile pages, this information appears in the user’s and
user’s Friends’ “news feeds.” The news feed provides a constantly updating display of activity among the user and the user’s
Friends. From this page, the user will be notified any time a Friend is tagged in an item, posts a status update or a news story, or
comments on another’s content.10
The sheer volume of potentially relevant information is staggering.11 In the aggregate, users collectively update their “statuses”
(a short indication of what’s on a user’s mind at a given moment, posted to the their own profile page) more than 60 million times
each day. Individual users create on average 90 pieces of content every month (photos, status updates, comments or other posts)
with fully half of all Facebook users accessing their individual profiles on a given day.12 Facebook users collectively upload 300
million photos to the site each day.13
Not all information posted on Facebook by a user is universally public, viewable by anyone with an Internet connection or even
all other Facebook subscribers. By adjusting Facebook’s default privacy settings, each user is empowered to limit the classification of persons (and, in some cases, specific individuals) who are permitted access to a user’s profile page and the content contained therein. Although some information is always considered public and accessible to everyone,14 other information is accessible
only by those people to whom the user grants access, usually limited to the user’s Friends or Friends of those Friends. Finally, users
can exchange messages not unlike traditional email, which, like email, are only accessible to the sender and recipients.
III. PENNSYLVANIA CASES15
McMillen v. Hummingbird Speedway Inc., 2010 WL 4403285, No. 113-2010 CD (Jefferson C.P. Sep. 9, 2010) (Foradora, P.J.). The
defendant collided with the plaintiff during the final “cool down lap” in a stock car race The plaintiff sought damages from
Hummingbird, Inc., the corporate owner of the racetrack where the alleged injuries occurred. The plaintiff claimed substantial
injuries including possible permanent impairment, loss and impairment of general health, strength and vitality and an ongoing
pa g e 4 3 4
volume 160
no. 22
inability to enjoy certain pleasures in life. Upon review of the publicly accessible portion of the plaintiff ’s Facebook profile, the
defendant discovered the plaintiff ’s comments about a fishing trip and his attendance, as a spectator, at another race in Florida.
Thereafter, the defendant sought to compel the production of the plaintiff ’s user name and password to gain access to the private
portions of the plaintiff ’s profile under the assumption that more relevant information might be contained within.
Because the public profile indicated that relevant information might be contained in the private portion showing that the plaintiff ’s injuries were exaggerated, and because no privilege exists between mere Friends (and even if it did, any privilege was waived
once the information was shared with others), the court directed the plaintiff to provide the defendant’s counsel with the login and
password information on a read-only basis. No information was to be divulged to any defendants in the case unless pursuant to
further order of court.
•
Zimmerman v. Weis Markets, Inc., 2011 WL 2065410, No. CV-09-1535 (Northumberland C.P. May 19, 2011) (Saylor, J.). The
plaintiff injured his leg while operating a forklift and sought damages including lost wages, lost future earning capacity, pain and
suffering, scarring and embarrassment. He claimed to have sustained permanent diminution in the ability to enjoy life’s pleasures
and permanent impairment to his general health. The plaintiff ’s public Facebook profile indicated that he enjoyed “bike stunts”
and contained photographs of the plaintiff posing with a black eye and his motorcycle taken both before and after the accident.
Furthermore, despite allegations that the plaintiff was embarrassed to wear shorts due to the scar which resulted from his injury,
the plaintiff ’s public profile contained a photograph of the plaintiff in shorts, his scar clearly visible.
On the basis of the foregoing, publicly-available information, the court concluded that it was reasonable to infer the existence
of additional relevant information within the private portions of the plaintiff ’s profile. Although the plaintiff contended that he had
a reasonable expectation of privacy in this information, the court ruled that the plaintiff consented to share the information when
he created the account and voluntarily posted information. Moreover, the plaintiff placed his physical condition at issue in the case,
and, as a result, the defendant was entitled to conduct discovery thereon.
Although the court ordered the plaintiff to provide the defendant with all login and password information without further limitation, the court did note that the order should not be construed as a blanket entitlement to this type of information in all personal
injury cases. Rather, the court limited its holding to requests based on some factual predicate gleaned from the publicly available
pages, requiring some threshold showing that the public portions contain information that suggest additional relevant postings are
likely to be found within the non-public portions. Fishing expeditions, the court noted, would not be authorized.
•
Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Franklin C.P. Nov. 8, 2011) (Walsh, J.). The plaintiff was injured when the
motorcycle on which she was a passenger collided with the defendant’s van. As a result of the accident, the plaintiff claimed serious and permanent physical and mental injuries, pain and suffering. During her deposition, the plaintiff testified that she had an
active Facebook profile and had accessed it as recently as the previous evening, but refused to provide defense counsel with her
login and password information. In the defendant’s motion to compel, the defendant argued that the plaintiff ’s profile was recently
public and that certain posts contradicted the plaintiff ’s severe injury claims. Specifically, the defendant claimed that the plaintiff
had posted “several photographs that show her enjoying life with her family and a status update about going to the gym.”
As a threshold matter, the court found the information sought clearly relevant and discoverable in light of the plaintiff ’s testimony that she suffers from depression and uses a cane to walk as such information might prove that the plaintiff ’s injuries were
exaggerated. Furthermore, because non-public information posted on Facebook is shared with third parties, there is no reasonable
privacy expectation. Indeed, the court reasoned, the very purpose of Facebook is to share information with others, which purpose
abrogates any claim of privilege.16
Like the court in Zimmerman, supra, the Largent court limited its holding to those instances whereby the party seeking discovery
is able to articulate in good faith that further discovery will lead to relevant information. On the foregoing bases, the court ordered
the plaintiff to provide the defendant with her login and password for a period of 21 days, after which time the plaintiff would be
permitted to change her password to preclude any further access to her account by defense counsel.
Arcq v. Fields, No. 2008-2430 (Franklin C.P. Dec. 2011) (Herman, J.). The plaintiff was injured in an automobile accident and
sought damages for, inter alia, continuing medical care, disfigurement and infertility. The defendant, upon learning that the plaintiff had a Facebook account, requested the plaintiff ’s login and password information.
The court, noting the paucity of Pennsylvania authority, reviewed the few instances whereby the courts had granted similar
requests and determined that each was predicated on a showing that the public portions of the subject profile contained some
relevant information that established a gateway to the non-public pages. Thus, the court denied the defendant’s discovery
request because the defendant had not articulated some reasonable, good-faith basis for believing the private profile contained
relevant information. The mere fact that the plaintiff had an account was categorically insufficient to justify the discovery
sought by the defendant.
Martin v. Allstate Fire & Casualty Ins. Co., Case ID 1104022438 (Phila. C.P. Dec. 13, 2011) (Manfredi, J.). The plaintiff suffered
serious injuries as a pedestrian when she was struck by a passing car and sought damages for physical injury, pain, trauma,
humiliation, anxiety, and mental anguish. At her deposition, the plaintiff was asked whether she had a Facebook account and,
upon affirmation, for her password. The defendant moved to compel the login and password information, citing the plaintiff ’s lack
of privilege and the absence of any reasonable expectation of privacy. The plaintiff opposed the defendant’s motion to compel on
the ground that the defendant never asked how the plaintiff used the site or whether she commented on or posted photographs of
her injuries. Thus, the defendant failed to make any threshold showing that the plaintiff ’s Facebook profile might contain relevant
information. The court denied the defendant’s request without amplification.
•
Kennedy v. Norfolk Southern Corp., Case ID 100201473 (Phila. C.P. Jan. 4, 2011) (Tereshko, J.). The plaintiff sought damages
for personal injuries including loss of life’s pleasures in connection with a vehicle collision with a train. At his deposition, the plaintiff indicated that he enjoyed shooting skeet with his children prior to the accident but was no longer able to do so. On the public
portion of his Facebook profile, his interests included “shooting” (among others such as “Starbucks” and “Breast Cancer
Awareness”). Although the defendant argued that the inclusion of “shooting” among his interests on his public profile was inconsistent with his deposition testimony, the court denied the defendant’s motion without further explanation.
•
Kalinowski v. Kirschenheiter, No. 2010-6779 (Luzerne C.P. 2011) (Van Jura, J.). The plaintiff was injured in a car accident. He
november 2, 2012
pa g e 4 3 5
alleged that his injuries limited his ability to perform his job and other daily activities, and, because he could no longer drive long
distances, his ability to travel was similarly limited. The defendant learned at the plaintiff ’s deposition that the plaintiff had a
Facebook page and requested his login and password information. In support of its motion to compel, the defendant claimed that
one picture available on the plaintiff ’s public page depicted the plaintiff “lounging comfortably, on a bar stool with one foot up
on another barstool.” Presumably because the public content was not sufficient to impeach the plaintiff ’s claims, the court denied
the defendant’s request without prejudice (or explanation) but ordered the plaintiff to refrain from deleting any content from
his profile.
•
Piccolo v. Paterson, No. 2009-04979 (Bucks C.P. Mar. 2011) (Cepparulo, J.). The plaintiff was injured while a passenger in the
defendant’s vehicle, sustaining severe lacerations to her face which required at least two surgeries and multiple subsequent laser
treatments to repair the scarring. At her deposition, defense counsel asked if the plaintiff would accept his “Friend request,” thereby
allowing him access to the photographs on the plaintiff ’s non-public profile on the same footing as her other “Friends.” After the
plaintiff denied this request, the defendant moved for an order requesting only access to photographs. The plaintiff had already
provided numerous photographs taken both before and after the accident. Furthermore, the defendant apparently failed to establish a threshold need for the information or articulate any prejudice that could result from nondisclosure. The court denied the
request without an accompanying opinion.
•
Gallagher v. Urbanovich, No. 2010-33418 (Montgomery C.P. Feb. 27, 2012) (Carpenter, J.). The plaintiff, who was assaulted during a recreational soccer game, moved to compel the defendant’s Facebook login and password information. Although the plaintiff
did not point to anything in the defendant’s public profile to trigger access to the non-public pages, and did not appear to have any
articulable expectation of what a search of the defendant’s Facebook profile might reveal, the court, without discussion, ordered
the defendant to provide the plaintiff ’s counsel with the requested information for a period of seven days after which time the
plaintiff would be denied further access to the defendant’s profile.
•
As the foregoing cases suggest, the Courts of Common Pleas that have considered discovery requests for Facebook information
appear to follow a consistent train of reasoning. The courts recognize the need for a threshold showing of relevance prior to
discovery of any kind, and have nearly all required a party seeking discovery in these cases to articulate some facts that
suggest relevant information may be contained within the non-public portions of the profile.17 To this end, the courts have relied
on information contained in the publicly available portions of a user’s profile to form a basis for further discovery.
IV. OTHER JURISDICTIONS
The decisions of other state and federal courts are largely in line with the Pennsylvania case law. As in Pennsylvania, courts
elsewhere agree that content posted by the plaintiff on Facebook is not privileged, either because communications with Friends
are not privileged or because, if the communications were privileged, such privilege was waived by sharing the content with others.
Also like the Pennsylvania courts, other jurisdictions disfavor “fishing expeditions” and tend to require some factual predicate
suggesting the existence of relevant information prior to ordering access to the sought-after information. See e.g. Tompkins v.
Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D.Mich. 2012) (because the publicly available information was not inconsistent with
the plaintiff ’s claims, further discovery was denied as overly broad); Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc.,
2007 WL 119149, No. 06-cv-00788 (D.Nev. Jan. 9, 2007) (regarding email-type communications on a social networking site, because
the defendant based its request for production on nothing more than suspicion or speculation as to what information might be
contained within, the request was denied).
Unlike our Common Pleas Court cases, however, other jurisdictions have wrestled to establish a middle ground between the
wholesale denial of the request on the one hand and the granting of unlimited access to the user’s profile on the other. Thus, some
jurisdictions, when faced with these questions, fashion more narrowly tailored discovery orders and are more likely to rely on
counsel to peruse the client’s profile for relevant information in the first instance.
One federal district court, faced with a request for production from a plaintiff who was claiming certain emotional damages in
an employment discrimination case, defined the issue as follows:
...the main challenge in this case is not one unique to electronically stored information generally or to social networking sites in particular. Rather the challenge is to define appropriately broad limits - but limits nevertheless - on the
discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do
so in a way that provides meaningful direction to the parties.
EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010). After concluding that the content was not shielded from
discovery simply because the plaintiff had made such content private, and that such information must be produced when relevant
to a claim or defense, the court ordered production on the basis that the plaintiff ’s allegations of severe emotional distress rendered some Facebook content relevant, and discovery of this magnitude is the inevitable result of alleging these sorts of injuries.18
Rather than ordering complete access to the plaintiff ’s Facebook profile, however, the court defined a relevant period, from the
time of the alleged harassment to the present, and ordered the plaintiff to provide all verbal communications (comments, status
updates, group memberships, et cetera) that reveal, refer or relate to any emotion, mental state or feeling or to events that could
reasonably be expected to produce significant emotion, feeling or mental state. The plaintiff was then ordered to produce only
those photos depicting the plaintiff during the relevant time period, which the plaintiff posted on the plaintiff ’s profile. The court
concluded that photos of the plaintiff in which she was “tagged” after being uploaded by a third-party, were not sufficiently relevant to warrant disclosure. Similarly, photos depicting someone other than the plaintiff would generally be considered outside the
scope of the order.
Pursuant to the court’s order, the plaintiff ’s counsel would make the initial determination of relevance in producing the information, and further inquiry into what was and was not produced would be permitted at the plaintiff ’s deposition. See also Held v.
Ferrellgas, Inc., 2011 WL 3896513 (D.Kan. Aug. 31, 2011) (Slip Op.) (postings from the period of alleged harassment are relevant,
and privacy concerns are mitigated by the fact that the defendant only wants the information, not access to the account).
Finally, a small minority of courts have reviewed Facebook content in camera so the reviewing court may assess its relevance.
See, e.g., Loporcaro v. City of New York, 2012 WL 1231021, No. 100406/10 (Richmond Cnty. N.Y. April 9, 2012) (Slip Op.), where the
pa g e 4 3 6
volume 160
no. 22
court concluded that the plaintiff had no reasonable expectation of privacy in the content posted on her Facebook profile and
ordered the information be provided for the court’s review.
Also see Offenback v. L. M. Bowman Inc., 2011 WL 2491371, No. 10-cv-1789 (M.D.Pa. Jun. 22, 2011), where, after in camera
review in which the court found some of the information relevant and other information not relevant, the court admonished the
parties to conduct their own reviews in the future, given that the plaintiff is in a better position to determine what content is responsive and, if necessary, to object to the disclosure of other, potentially relevant information. See also Zimmerman, supra, where the
Pennsylvania court declined an invitation for in camera review as an “unfair burden to place on the Court” and which would
require “the Court to guess as to what is germane to defenses which may be raised at trial.”
V. PLAINTIFF TRAIL’S AND DEFENDANT LESKO’S DISCOVERY REQUESTS
This case arises from an accident which occurred on September 26, 2009 after defendant, Timothy Lesko, attended a “Gun
Bash” event at the Pittsburgh Elks Lodge No. 11. Plaintiff, Michael Trail, is claiming serious injuries from the accident, and defendant has claimed he was not the driver and does not know who may have driven the vehicle. Plaintiff and defendant have filed
cross motions to compel access to each other’s Facebook accounts.
A. Plaintiff ’s Motion to Compel
Because defendant in his most recent Answer and New Matter (Feb. 22, 2012) asserted the defense that he was not the driver
of the vehicle and does not recall who drove the vehicle, plaintiff urges that any postings surrounding the time period at issue are
relevant in determining defendant’s whereabouts or in uncovering any potential witnesses who could shed light on the events in
question. Some of these posts may have been deleted and are, therefore, in Facebook’s sole possession.
In support of plaintiff ’s assertion that such information may be contained within defendant’s non-public profile or among the
content deleted from that profile, plaintiff offers the following: (1) after receiving plaintiff ’s interrogatories seeking information
contained on defendant’s social networking sites, plaintiff avers that defendant removed, deleted and/or altered significant
portions thereof; (2) at approximately 12:01 P.M. on the day of the accident defendant purportedly posted “gun bash today now
where is randy at” on his publicly accessible profile page; (3) another status update on defendant’s profile, time-stamped 1:38 P.M.
on the day of the accident, reads “Gun bash time” followed by a brief dialogue from which it may be inferred that defendant
planned to attend the event with someone referred to as “dp,” and; (4) a status update posted on defendant’s page at 6:33 P.M. two
days after the accident, which reads:
to everyone who left me a line i thank you and your support means everything to me i just came home today and I am
hurtin but like i said before thankyou everyone it means alot to me to all of you guys you never know just be careful i
wouldnt wish this on anyone
(Errors in the original).
As a result of defendant’s foregoing verbal representations and plaintiff ’s (apparently unsubstantiated) belief that defendant
may have altered or deleted significant portions of other relevant information, plaintiff seeks access to defendant’s profile and the
authorizations necessary to compel Facebook to provide any deleted content.
However, in Defendant’s Response to Plaintiff ’s First Request for Admissions (Apr. 27, 2012), defendant admitted that he was
driving the car, was intoxicated, crossed the center line and that plaintiffs were both seriously injured and not themselves at fault,
which admissions render the sought-after information seemingly irrelevant. Indeed, within a month of filing his Answer disclaiming liability, defendant explicitly conceded liability in his Brief in Opposition to Plaintiff ’s Motion to Compel at 4 (Mar. 21, 2012)
wherein he stated, “there is no issue as to defendant’s liability.” Thus, none of the information which plaintiff seeks would be
relevant to the only issue that remains in this case - damages.
Plaintiff does not argue that the information which he seeks is relevant to a punitive damages claim.19 Furthermore, it is unclear
why any information on defendant’s Facebook profile would be relevant to a punitive damages claim as to this defendant who has
admitted that he was driving while intoxicated with a .226% blood alcohol level.
B. Defendant’s Motion to Compel
Defendant asserts that because plaintiff avers in his complaint that “he may suffer great physical pain,” “be disabled or limited
in his normal activities,” and “his general health, strength, and vitality have been seriously impaired and this impairment is
possibly permanent,” defendant is entitled to access plaintiff ’s Facebook profile, because of the possibility that defendant will
find relevant information concerning the extent and severity of plaintiff ’s injuries.
In support of this request, defendant has attached two photographs obtained from the public portion of plaintiff ’s profile, which
depict plaintiff (1) “at a bar socializing” and (2) “drinking at a party.” These photographs do not contain any information as to when
they were taken or uploaded. Furthermore, plaintiff has not alleged he is bedridden or that he is otherwise unable to leave the
home, and the attached photographs are not inconsistent with plaintiff ’s alleged injuries.
SUMMARY
I base my rulings on Pa.R.C.P. No. 4011(b) which bars discovery that would cause “unreasonable annoyance, embarrassment,
oppression . . . .” This Rule will reach intrusions that are not covered by any constitutional right to privacy or any common law or
statutory privileges.
A court order which gives an opposing party access to Facebook postings that were intended to be available only to persons
designated as “Friends” is intrusive because the opposing party is likely to gain access to a great deal of information that has nothing to do with the litigation and may cause embarrassment if viewed by persons who are not “Friends.”
Because such discovery is intrusive, it is protected by Rule 4011 where the party seeking discovery has not shown a sufficient
likelihood that such discovery will provide relevant evidence, not otherwise available, that will support the case of the party seeking discovery. However, on a scale of 1 (the lowest) to 10 (the greatest), the intrusion from most Facebook discovery is probably at
a level of 2. This is so because the party resisting the discovery has voluntarily made this information available, in most instances,
to numerous other persons, none of whom has any legal obligation to keep the information confidential, and Rule 4011 bars only
discovery that is unreasonably intrusive.20
In determining whether an intrusion is unreasonable, a court shall consider the level of the intrusion and the potential value of
the discovery to the party seeking discovery. For a level 2 intrusion, the party seeking the discovery needs to show only that the discovery is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case.
november 2, 2012
pa g e 4 3 7
Almost all discovery causes some annoyance, embarrassment, oppression, burden, or expense. However, Rule 4011 bars only
discovery which causes “unreasonable” annoyance, embarrassment, oppression, burden, or expense. The use of the term “unreasonable” requires a court to balance the need for discovery and the extent of the annoyance, embarrassment, oppression, burden,
or expense. In this case, I denied the discovery requests of both parties because the intrusions that such discovery would cause
were not offset by any showing that the discovery would assist the requesting party in presenting its case.
By way of comparison, a discovery motion that I previously considered arose out of a plaintiff ’s suit against her doctor who performed breast implant surgery. The plaintiff ’s case was based solely on a lack of informed consent. Through discovery, the plaintiff sought the names and addresses of the other twenty-six women who received implants during the same month that she received
her implant. She sought such discovery because of the possibility that these other women might support the plaintiff ’s version of
what the physician communicated and did not communicate. I regarded this intrusion as reaching a level 9 or 10. I found that these
witnesses were not essential because the case could be decided on the basis of the testimony of the plaintiff and the physician.
Thus, I denied the discovery request based on Rule 4011.
For these reasons, I enter the following Order of Court:
ORDER OF COURT
On this 3rd day of July, 2012, it is hereby ORDERED that the discovery motions of plaintiff Michael Trail and defendant
Timothy Lesko are denied.
BY THE COURT:
/s/Wettick, J.
1
There are other social networking sites. However, Facebook has been the subject of the discovery requests presented to me.
2
To date, no Pennsylvania appellate court has addressed discovery requests for information contained within an individual’s
Facebook profile.
3
Although there are numerous sites that fit this classification, this discussion is limited to Facebook, which is the largest and most
heavily trafficked on the web.
4
Evan E. North, Comment, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. KAN. L. REV. 1279,
1284 (June 2010). Among the law review articles on the subject, student authors tend to offer the more detailed accounts of the
functioning of social networking platforms.
5
This participatory platform is in contrast to antecedent, Web 1.0, which is produced, edited, and maintained by a single publishing
entity. Consider, for example, any run-of-the-mill website, which unilaterally publishes information online for their users’ passive
perusal. Megan Uncel, Comment, Facebook Is Now Friends with the Court: Current Federal Rules & Social Media Evidence, 52
JURIMETRICS J. 43, 46 (Fall 2011).
6
In this Opinion, I briefly discuss some of the more relevant aspects of the Facebook user interface; for a more detailed description see Megan Uncel’s comment, supra n. 5 at 46-50.
7
See Daniel Findlay, Comment, Tag! Now You’re Really “It” What Photographs On Social Networking Sites Mean For the Fourth
Amendment, 10 N.C.J.L. & TECH. 171 (Fall 2008).
8
Access to User B’s profile will be governed by User B, who can opt to restrict access to his or her page to only Friends, Friends
of Friends or, at the least restrictive level, the public at large. Self-regulated privacy settings are discussed briefly, infra.
9
A user who has been tagged has the ability to “untag” the photo and, by altering Facebook’s default privacy settings, may restrict
the class of individuals who are authorized to view tagged content. However, even if untagged or if otherwise restricted by our
tagged user, the photo will be available for viewing on the page of the user who initially posted it. Only the user who posted the
photo is able to remove it from the website altogether. Once a Friend posts a photo of our user, any Friends of the posting user,
including our user (or opposing counsel armed with our user’s login information), may peruse Friends’ photos to locate any material, including unauthorized material.
10
The purpose of the news feed feature is to facilitate a user’s awareness of Friends’ online activities without necessitating their
constantly visiting each Friend’s profile page sequentially. The average Facebook user has 130 Friends, and may even have Friends
numbering in the thousands. See North, supra n. 4, at 1285.
11
Although not relevant to the current question and, therefore, not addressed herein, sites like Facebook collect and store “metadata” about their users, which might reveal more about an individual’s use of the site, their Friends’ identities, what a user saw on
another user’s profile, and may track a user’s general Internet activity. All of this data is potentially discoverable under the proper
circumstances. See Derek S. Witte, Your Opponent Does Not Need A Friend Request to See Your Page: Social Networking Sites &
Electronic Discovery, 41 McGEORGE L. REV. 891 (2010).
12
Uncel, supra n. 5 at 49.
13
Facebook has gone public, and in the April 23, 2012 amendments to its S-1 SEC filings, the company disclosed that monthly active
users now number 901 million; daily active users 526 million; monthly mobile users 500 million; users post 300 million photos per
day; 3.2 billion likes and comments are recorded each day, and; 125 billion “Friendships” have been forged.
14
In addition to information the user chooses to make public, Facebook considers publicly available the user’s name, profile
picture, username or user ID and network. See Facebook Data-Use Policy, http://www.facebook.com/about/privacy/your-info.
15
Because these cases are unpublished, because many are simply court orders absent any accompanying rationale, and because
most Pennsylvania counties do not maintain electronic dockets, I was compelled to rely on other traditional media outlets including the PITTSBURGH POST-GAZETTE and the PENNSYLVANIA LAW WEEKLY. As a result, the citations, in places, are incomplete.
16
The plaintiff also argued the Stored Communications Act (“SCA”), Pub. L. No. 99-508, 100 Stat. 1848 (1986), codified at 18 U.S.C.
§§ 2701 et seq, prohibited the disclosures sought by the defendant. The SCA regulates service providers, not individuals. Therefore,
pa g e 4 3 8
volume 160
no. 22
although the Act might preclude Facebook from disclosing information directly to the defendant in response to a civil subpoena
(citing Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010)), the plaintiff could not claim the protection of the SCA
because that Act does not apply to individuals.
17
Gallagher v. Urbanovich, supra, is the outlier. In that case, the court granted a plaintiff ’s request for the defendant’s Facebook
username and password without the plaintiff ’s identifying any factual basis for an investigation or representing any expectation
of what that investigation might uncover.
18
The court explicitly limited its decision to cases involving severe emotional distress, stating that the proper scope of discovery
might be different in “garden variety emotional distress claims.”
19
Plaintiff does not contend that information on Mr. Lesko’s Facebook profile is relevant to his claim against the Pittsburgh Elks
Lodge No. 11.
20
The intrusion would be greater if, for example, a party’s only Friends were a spouse and a daughter.
Jarrod D. Shaw v.
Township of Upper St. Clair Zoning Hearing Board v.
1800 Washington Road Associates
Jarrod D. Shaw and Moira E. Cain-Mannix v.
Township of Upper St. Clair v.
1800 Washington Road Associates
Zoning—Text Amendment—Jurisdiction—Timeliness
No. SA 12-000079, SA 12-000085. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
James, J.—July 3, 2012.
OPINION
This appeal arises from the decision of the Township of Upper St. Clair Zoning Hearing Board (“Board”) dealing with Property
located at 1800 Washington Road which is at the intersection of Washington Road and Fort Couch Road in the Township of Upper
St. Clair (“Township”). The Property is owned by the Intervenor, 1800 Washington Road Associates, LP (“Developer”). The
Property currently contains a 140,000 square foot, four-story office building that was previously used as corporate headquarters
for Consol Energy Corp. (“Consol Site”).
On March 3, 2011, the Developer submitted an Application for Zoning Text Amendment with the Township Department of
Planning and Community Development. The proposed Amendment would allow mixed use development as a Conditional Use in a
Special Business (SB) district. The Planning Commission reviewed the proposed Amendment and recommended that the Board of
Commissioners approve it. The Board of Commissioners approved the proposed Amendment known as Ordinance No. 2056.
Ordinance No. 2056 permitted the following as part of a Mixed Use Development when approved as a Conditional Use: Single
Family Attached Dwellings, Two Family Dwellings, Multi-Family Dwellings, Planned Residential Developments, Day Care
Centers, Restaurants, Supermarkets, Veterinary Hospitals, and others.
Appellant Jarrod D. Shaw filed an appeal challenging the enactment of Ordinance No. 2056. His objections dealt with notice,
the time allotted to public notice and the characterization of the Amendment as a text amendment. The Board dismissed his appeal
for lack of jurisdiction finding that the challenges were procedural. Appellant Shaw’s appeal and a joint appeal by Appellants Shaw
and Moira E. Cain-Mannix, challenging the procedural validity of Ordinance No. 2056, have been consolidated.
When the trial court takes no additional evidence, the scope of its review is limited to determining whether the Board committed
an error of law, abused its discretion or made findings not supported by substantial evidence. Mars Area Residents v. Zoning Hearing
Board, 529 A.2d 1198, 1199 (Pa. Cmwlth. 1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637, 640 (1983).
The Board correctly determined that the Appellants’ appeal is procedural. 52 P.S. Section 11002-A(b) states that:
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of
enactment or adoption shall be raised by appeal taken directly to the court of common pleas of the judicial district in
which the municipality adopting the ordinance is located ...
The Board concluded that Appellant Shaw’s challenges dealing with notice and with inadequate time allotted to public notice
are both procedural. They further concluded that Appellant Shaw’s argument that the Amendment is mischaracterized as a text
amendment is nothing more than a predicate to a procedural challenge. (Conclusion of Law Nos. 22-23).
The Developer alleges that the procedural appeal by the Appellants is untimely. Specifically, they allege that the Appellants filed
their appeal beyond the 30 day deadline. They cite Section 5571 of the Judicial Code, 42 Pa. C.S.A. Section 5571.1(b) which establishes a 30 day appeal deadline for appeals raising questions of procedure in the enactment or adoption of any ordinance. Pursuant
to the Upper St. Clair Township Home Rule Charter, the effective date of the Ordinance was the date of post-enactment publication. Post-enactment publication occurred in The Pittsburgh Post Gazette on October 27, 2011. Therefore, a procedural appeal must
have been filed by November 26, 2011. The Appellants filed their appeal on January 30, 2012.
The Board correctly characterized the zoning amendment as a text amendment and not a map change. They explained that if
Appellant Shaw’s appeal were successful, the “substance” of the Amendment would not be altered in any way. No zoning district
had an increase or decrease in size, no boundary was moved, no zoning district designation was added or eliminated and no tract
was rezoned.
november 2, 2012
pa g e 4 3 9
Finally, Appellant Shaw characterized his appeal as a procedural appeal on several documents in this case.
Therefore, based upon the foregoing Opinion, the Board correctly dismissed Appellants’ appeal for lack of jurisdiction since the
appeal raised only procedural questions relating to the process of enactment or adoption of Ordinance No. 2056.
ORDER OF COURT
AND NOW, this 6th day of July, 2012, based upon the foregoing Opinion, the Board correctly dismissed Appellants’ appeal for lack
of jurisdiction since the appeal raised only procedural questions relating to the process of enactment or adoption of Ordinance No. 2056.
BY THE COURT:
/s/James, J.
E.S. Management v.
Timothy Kolman, Michael Sless, Joel Hervitz, and Douglas Stanger
Landlord/Tenant—Collection Costs (Attorney Fees)—Security Deposit—Guarantors
No. AR 10-4464. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.
Friedman, J.—July 12, 2012.
DECISION
This Decision is filed pursuant to Pa. R.C.P. 1038. See also Pa. R.C.P. 227.1(c)(2).
The captioned action involves a residential Landlord’s claim for damages against the fathers of the Tenants, four college
students. Each father guaranteed the performance under the lease of all four Tenants, not just his own child’s.
The fathers, hereinafter “the Guarantors,” have denied that the actual damages to the premises were anything more than
normal wear and tear. They also have asserted a counterclaim under the Landlord Tenant Act based on the contention that the list
of damages was not mailed by the Landlord to the Tenants within the 30 day period set forth in the Act.
The non-jury trial began on September 27, 2011 and was interrupted at the end of the liability phase when the Court perceived a
possible conflict of interest between Defendant Kolman, an attorney who was representing himself, and his co-Defendants who were
also his clients.1 We eventually issued an Order on February 28, 2012, removing him as counsel and directing the other three
Defendants to either obtain new counsel or represent themselves. We also postponed the trial to give them time to prepare. At least
one other postponement was granted for the convenience of a witness for Defendants. The delays that related to the conflict of interest were not finally resolved until a few days before the date ultimately set to finish the trial, June 12, 2012, when we received waivers
of any conflict from Mr. Kolman’s co-Defendants. We permitted Mr. Kolman to re-commence his representation of all the Defendants.
The credible evidence presented on both trial dates revealed the following:
1. The last tenant to leave the premises was Samuel Kolman (“Samuel”).
2. Samuel delivered his key and those of the other three tenants to Plaintiff ’s office around noon on Friday, July 24, 2009.
3. The Lease term ended on July 25, 2009.
4. Samuel did not provide a new address for himself or any of the other Tenants at that time nor at any later date.
5. We do not believe Samuel’s testimony that he had sent a written notice regarding the Tenants’ new addresses a month
or two before the Lease expired.
6. Ari Stanger (“Ari”) returned his key to Plaintiff ’s office by mail on or about August 10, 2009.
7. None of the other tenants ever provided Plaintiff with a new address at the expiration of the Lease or at any other time.
8. Robert Cohen and Suzanne Marcini inspected the premises on July 25, 2009 and discovered a fair amount of damage
which had to be corrected before the new tenant moved in.
9. Given the condition admitted by the Tenants in the inspection form they submitted at the beginning of the Lease, the
damage observed on July 25, 2009 was substantial and was not mere wear and tear. See Plaintiff Exhibit L-2.
10. Since the Tenants had not provided new addresses, the list of damages and charges for repairs was sent to the address
of each Guarantor.
11. The mailing date stamped on the envelope to the Kolmans and presumably to the other Tenants and Guarantors was
August 24, 2009, 31 days after Samuel left the key or keys at Plaintiff ’s office and 30 days after the Lease expired.
12. The Guarantors and the Tenants refused to pay the damage charges and also demanded the return of the security deposit.
13. Plaintiff then filed the instant action against the Guarantors and the Guarantors later filed the first of their four
versions of their Answer, New Matter and Counterclaim. At various times, the Guarantors’ pleadings contained counts
under the Consumer Protection Law, RICO, and class action claims under Federal Rule of Civil Procedure 23(b). By Order
dated June 20, 2011, virtually all of Defendants’ Counterclaims, Cross-Claims, and Class Actions were dismissed with
prejudice by the Honorable R. Stanton Wettick, Jr. of this Court. The current version of the Answer, New Matter, and
Counterclaim contains claims under the Landlord and Tenant Act, 68 P.S. §250.512. It also contains claims of Wrongful
Use of Civil Proceedings, which were not pursued.
We will address the Guarantors’ only remaining Counterclaim first. Based on the credible evidence we conclude that, since the
Tenants never advised Plaintiff of their new addresses, there has been no violation of the Landlord Tenant Act and we deny the
Guarantors’ demand for damages thereunder. We reject the Guarantors’ contention that, since the Tenants were still reachable at
their parents’ addresses, they had no duty to supply a “new address” to Plaintiff. Guarantors argue that the “new address” under
pa g e 4 4 0
volume 160
no. 22
the Act should not be read to mean the only address where Tenants could be reached after they left the leased premises. Rather,
they contend that since the Tenants’ pre-lease addresses were where they could still be reached post-lease, there was no need for
them to advise Plaintiff of a different address.
Stating Defendants’ argument demonstrates its absurdity. In the context of the Landlord Tenant Act, the term “new address”
has only one logical meaning, the address where a tenant will reside after leaving the premises leased from the landlord. There is
hardly a presumption that a tenant’s address before entering the lease to which the Act would apply is the address to which the
tenant would return when the lease expires. The interpretation put forth by the Guarantors is without merit.
Since Tenants did not provide the Plaintiff with their new address under the Act, we need not decide the question raised by the
Guarantors regarding whether or not the Act required actual receipt of the damage list within 30 days or merely mailing on or
before the 30th day. We also do not need to reach the question of whether the 30-day period begins to run on the day possession of
the premises was delivered or on the next day, when the lease expired.
The Guarantors’ counterclaim must be denied.
We now turn to the merits of Plaintiff’s damage claim and for legal fees under the Lease. The witness we found totally credible on
the issue of physical damage to the premises was Ms. Marcini. She described the filthy condition of the apartment the day after Samuel
left it. Her testimony is supported by that of Samuel himself. He admitted he was rushed to leave by early afternoon so he could get
home to Philadelphia by early evening. He admitted that only one of the four Tenants, Jesse Hervitz (“Jesse”), spent any time or effort
keeping the place clean. Samuel also stated that Jesse and the other tenants had left the premises a few months before he did.
The credible evidence supports all of the damage claim except the replacement of the thermostat. We do not feel the Tenants
have been shown to have broken either the cover or the dial.2
We next turn to the claim for counsel fees under the Lease. We conclude that Plaintiff is entitled to the reasonable amount of
fees required to collect the monies owed by the Tenants and guaranteed by their fathers. In accordance with our usual procedure,
Defendants were given an opportunity to contest Plaintiff ’s fees by responding to Plaintiff ’s counsel’s affidavit describing the fee
charged within 20 days. Defendants did not do so. Our own separate review of the affidavit and a later supplemental affidavit
revealed that the time spent and rates charged by Plaintiff ’s counsel were quite reasonable in the circumstances. Lastly, we note
that the fees Defendants’ attorney hoped to be awarded, according to Mr. Kolman’s own affidavit, were much higher than Plaintiff ’s
claim, a circumstantial indication that Plaintiff ’s counsel fees are reasonable.
The original damage claim against the Guarantors was $5,058.00 less the security deposit, leaving a balance claimed of
$2,858.00, which we have reduced by the cost of a new thermostat to $2,783.00. At first blush, it would seem difficult to justify an
award of counsel fees of six or seven times that amount as being reasonable. However, the conduct of Mr. Kolman as the attorney
for the Guarantors went well beyond the normal defense of such claim. We do not suggest that he was to roll over and play dead
nor that he should be penalized for creative legal work. Rather, we point out that he raised defenses and counterclaims that
required substantial time and effort on the part of Plaintiff ’s counsel to address successfully.
Mr. Kolman chose the nuclear option, including RICO charges and a class action, even though he was unable at trial to
demonstrate the simplest basis (giving a new address) for the only counterclaim that survived, a Landlord Tenant Act violation.
For whatever reason, Mr. Kolman the lawyer did Mr. Kolman the client a great disservice. Unfortunately, the other Guarantors
chose to follow his advice and must now share with him the consequences of his legal strategy and tactics.
We find that the hours spent and the charges made by counsel for Plaintiff were warranted by the conduct of counsel for
Defendants. Those fees are reasonable in the circumstances created by Mr. Kolman. They are payable under paragraph 43(a)(3)
of the Lease.
CONCLUSION
The award to Plaintiff is $21,406.25, being $2,783.00 for damages to the leased premises after credit is given for the security
deposit and the thermostat charge of $75, plus $18,623.25 for the reasonable cost of collection.
The counterclaim of Defendants is Denied.
This Decision is filed pursuant to Pa. R.C.P. 1038. See also Pa. R.C.P. 227.1(c)(2).
BY THE COURT:
/s/Friedman, J.
Dated: July 12, 2012
1
The conflict as perceived at the time on September 27, 2011 was mainly based on the Court’s mistaken understanding that each
father had only guaranteed the obligation of his own son. It therefore appeared to us that Mr. Kolman was looking out only for his
own interest when he had not even seen to it that his clients honored the notices to attend so that they or their sons could also testify.
2
There was no contention that it actually malfunctioned causing there to be no heat.
Commonwealth of Pennsylvania v. Stanley Cotton
Criminal Appeal—PCRA—3rd Petition—After Discovered Evidence—Recantation
No. CC 199602834, 199603967. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Machen, J.—June 29, 2012.
OPINION
Defendant was charged at CC: 199602834, with one (1) count of Criminal Homicide and at CC: 199603967, with one (1) count of
the Violation of Uniform Firearms Act (VUFA): Firearms Not to be Carried Without a License. On July 9, 1996, defendant waived
his right to a trial by jury and proceeded to a non-jury trial before the Honorable Walter R. Little. On July 10, 1996, the trial court
found defendant guilty of first degree murder and the firearms charge. On August 8, 1996, the trial court sentenced defendant to
a term of imprisonment of mandatory life for the conviction of first degree murder and a concurrent term of imprisonment of three
and one-half (3 1/2) to seven (7) years for the conviction of carrying a firearm without a license.
On September 27, 1996, defendant, through James R. Wilson, Esquire, of the Office of Public Defender, filed a Notice of Appeal,
november 2, 2012
pa g e 4 4 1
which is docketed at No. 1821 Pittsburgh 1996. On April 6, 1998, the Pennsylvania Superior Court affirmed. On or about May 8,
1998, defendant, through counsel, filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania, which is docketed
at No. 280 W.D. Allocatur Docket 1998. On August 24, 1998, the Pennsylvania Supreme Court denied the petition. On October 5,
1998, defendant, pro se, filed his first Post Conviction Collateral Relief (PCRA) Petition. On August 26, 1999, Judge Little issued a
Notice and Opinion of its Intention to Dismiss. On February 17, 2000, defendant, through Robert A. Crisanti, Esquire, filed an
Amended PCRA Petition.
On March 1, 2000, the Commonwealth filed its Answer to the Petition. On September 27, 2000, Judge Little, through an Order
of Court, dismissed Petitioner’s PCRA Petition with prejudice.
On October 26, 2000, defendant, through Attorney Crisanti, filed a Notice of Appeal to the Pennsylvania Superior Court, which
is docketed at No. 1781 WDA 2000. On June 19, 2001, the Pennsylvania Superior Court affirmed the decision of the PCRA Court.
Defendant then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on July 19, 2001, which is docketed at
No. 421 WAL 2001. Defendant’s Petition for Allowance of Appeal was denied on November 20, 2001. On February 19, 2002, defendant filed a habeas corpus petition in the United States District Court for the Western District, which is docketed at No. 02-55 J. A
Report and Recommendation was issued by the Court on April 10, 2002. Defendant then filed an objection to the Report and
Recommendation on April 22, 2002. An Order was issued on July 3, 2002, dismissing defendant’s habeas corpus petition. On August
1, 2002, defendant filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit. On May 19, 2003, the United
States Court of Appeals for the Third Circuit denied a certificate of appealability. Defendant then sought leave of the United States
Court of Appeals for the Third Circuit to file a second/successive petition on May 26, 2004. Leave was denied in June 2004.
On June 23, 2005, defendant filed his second PCRA Petition. Defendant alleged that his PCRA Petition was not untimely, as he
claimed that there was certain after-discovered evidence which would have changed the outcome of his trial had that information
been available. The case was assigned to this court for Post-Conviction Relief Act proceedings. On March 21, 2006, Scott Coffey,
Esquire, who was appointed to represent defendant on December 7, 2005, filed a Motion for Leave to Withdraw Appearance and a
No Merit letter. On June 12, 2006, this court entered an order dismissing defendant’s PCRA Petition. On June 20, 2006, defendant
filed a Notice of Appeal to the Pennsylvania Superior Court, which is docketed at No. 1201 WDA 2006. On May 7, 2007, the
Pennsylvania Superior Court affirmed, concluding that defendant’s PCRA Petition was untimely and no exception applied.
On March 24, 2009, defendant, pro se, filed his third PCRA Petition. On November 25, 2009, through court-appointed counsel,
Joseph P. Rewis, Esquire, defendant filed an Amended PCRA Petition. Defendant alleges that he is entitled to circumvent the timeliness requirement of filing a PCRA Petition because he has after-discovered evidence that would change the outcome of his case
had it been available at the time of trial. On August 16, 2011, this court held an evidentiary hearing on the defendant’s (3rd) PCRA
Petition. After the hearing, the parties were directed to file Proposed Finds of Facts and Conclusions of Law. On January 9, 2012,
after review of the pleadings and the record in the matter along with the transcript of the Evidentiary Hearing, this court entered
an Order which dismissed the Petition of the defendant, denying relief. This timely appeal followed.
The Pennsylvania Superior Court’s June 19, 2001, Memorandum addressing defendant’s second Superior Court appeal set forth
the following factual summary:
Testimony given at trial was that[,] on February 14, 1996[,] at approximately 4:30 P.M., Pittsburgh Police officers and
detectives were dispatched to 185 Burrows Street for a shooting. When the police arrived at the scene they observed the
18 year-old victim, Abdual Shaaheed [“Shaaheed”], lying on the ground[,] unconscious and bleeding from the head.
[Shaaheed] was transported to Presbyterian Hospital. On February 15, 1996 at 9:30 A.M. [Shaaheed] was pronounced
dead. . . . [Cotton] testified that Shaaheed was an acquaintance whom he had met in approximately 1992. [Cotton] testified that, on February 12, 1996, [Shaaheed] gave him $200 worth of crack cocaine to sell. [Shaaheed] personally used the
crack, but was afraid to acknowledge this when Cotton came to him the following day seeking the money. [Cotton] claims
[that Shaaheed] threatened him, and then left the scene, only to return with another black male. This black male and
[Shaaheed] reportedly shot at [Cotton], but he ran to the safety of his girlfriend’s house. [Cotton] encountered [Shaaheed]
on the street again on February 14, 1996. The two argued and physically struggled. [Cotton] claims he disarmed
[Shaaheed] and then ran with the gun in hand to his mother’s apartment building 185 Burrows Street. At that point,
[Shaheed] supposedly went to his sister’s apartment on 181 Burrows Street, catty-corner to [Cotton’s] apartment building across the court. [Cotton] testified that he could not gain access to his mother’s apartment, so he stood in the hallway
of the building. According to [Cotton,] he then saw [Shaaheed] walk out of the building and approach him with his hands
in his pockets. [Cotton] testified that he believed that [Shaaheed] rearmed himself and was going to shoot him. [Cotton]
then fired approximately four bullets in [Shaaheed’s] direction while running across the court.1
In his Statement of Matters Complained of on Appeal, defendant raises one issue as follows:
1. The trial court abused its discretion in refusing to give proper weight to a court provided handwriting expert whose
report confirmed the signature on the recantation of Ms. Tina Thomas as consistent with other handwriting samples.
In the underlying PCRA Petition, defendant alleged that certain exculpatory evidence, which was not available at the time of
trial, has subsequently become available, and had such evidence been introduced at trial, the outcome of the trial would have been
different. Specifically, that Tina Thomas, the victim’s sister, removed a weapon from the victim prior to the police arriving at the
scene where victim was shot to death by defendant.
As a foundation, to be eligible for post conviction relief, a defendant must plead and prove by a preponderance of the evidence:
(2) That the conviction or sentence resulted for one or more of the following:
i. A violation of the Constitution of this Commonwealth or the Constitution or the laws of the United States which, in
the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication
of guilty could have taken place.
ii. Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
iii. A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.
pa g e 4 4 2
volume 160
no. 22
iv. The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court.
v. The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.
vi. The imposition of a sentence greater than the lawful maximum.
vii. A proceeding in a tribunal without jurisdiction.
(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate this issue prior to or during trial, during the unitary review or on direct appeal could not
have been the result of any rational strategic or tactical decision by counsel.
42 Pa.C.S.A. §9543(a). See Commonwealth v. Rivers, 786 A.2d 923 (Pa. 2001); Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997); Commonwealth v. Beasley, 678 A.2d 773, 777 (Pa. 1996). Additionally, a PCRA Petition must be filed within one (1) year of
the date the defendant’s judgment of sentence became final.2
While the Commonwealth raised a question as to the timeliness of this PCRA (defendant’s 3rd), this court scheduled an evidentiary hearing so that the court could hear testimony as to the timing of the defendant’s filing relative to when he learned of the
alleged new information and to hear evidence as to Ms. Thomas’ alleged recantation.
As background, in the PCRA Petition, defendant alleged that he was entitled to a new trial based upon after-discovered
evidence, specifically, the testimony of Ms. Thomas. Ms. Thomas, who wishes to recant her trial testimony, would testify as
follows:
On February 14, 1996, I was home with my one year old daughter Angel Thomas, when my brother (Abdul Shaheed)
came in the house talking about how him and his friend Stanley just got finish fighting. My brother showed me where
Stan had bit him while they were fighting, and he was really mad about it. He then paged his friend Antwan, when
Antwan called back he told Antwan he just got done fighting Stanley. He then called a jitney and I heard him tell the
jitney that he needed to go to the South Side to get some bullets. My brother got another phone call and I heard him
say on the phone, don’t be trying to apologize now nigger. It’s whatever, I am going to get you for what you did, then
hung up the phone. I asked my brother who it was he was talking to on the phone and he told me it was Stanley. … I
went to the hallway window to watch my brother to see what he was doing. That is when I saw Stanley walking up in
the doorway of building 185 Burrows St. My brother and Stanley had a few words back and forth. Then my brother
started jogging towards Stanley holding his pants up in the front. I couldn’t see what he was holding in his pants, but
he was holding something. That’s when I heard the shots. My brother grabbed his leg and fell off the wall. I then waited
to make sure Stanley had stop shooting and left before I went to see if my brother was alright. When I got to my brother,
I took his shoes off looking for his money, I found ten dollars in his pocket, I took the gun that was beside him and his
pager. When I first told what happened between my brother and Stanley I was angry and upset about what happened
to my brother. But after thinking about what I saw, although I lost my brother, it wasn’t all Stanley’s fault.
Under the PCRA, a basis for relief is “the unavailability at the time of trial of exculpatory evidence that has subsequently
become available and would have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. §9543(a)(2)(vi).
To succeed on an “after-discovered evidence” claim in the form of recantation testimony, defendant must show that:
(1) the evidence has been discovered after the trial and it could not have been obtained at or prior to trial through
reasonable diligence; (2) such evidence is not cumulative; (3) it is not being used solely to impeach credibility; and
(4) such evidence would likely compel a different verdict.
(emphasis added). Commonwealth v. Abu-Jamal, 553 Pa. 31, 720 A.2d 79, 94 (1998); See Commonwealth v. Williams, 557 Pa. 207,
732 A.2d 1167 (1999); Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595-96 (2007); Commonwealth v. D’Amato, 579 Pa.
490, 856 A.2d 806, 823 (2004).
Recantation is one of the least reliable forms of proof, particularly when it constitutes an admission of perjury. Commonwealth
v. Dennis, 552 Pa. 331, 356, 715 A.2d 404, 416 (1998); Commonwealth v. McCraken, 540 Pa. 541, 548, 659 A.2d 541, 545 (1995). It is
up to the trial court to judge the credibility of the recantation testimony and a new trial must be denied unless the court is satisfied that the recantation is true. See Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167 (2000); see also Commonwealth v. Floyd,
506 Pa. 85, 94, 484 A.2d 365 (1984).
Ms. Thomas testified that she did not write the statement, that she wrote a similar statement but that it had differences and this
was not the one she signed. Hearing Transcript, p. 42-43.) The PCRA court found her testimony to be credible. The Handwriting
Expert Report did not sway the court. While Ms. Dresbold did give her expert opinion, and the court respects her credentials and
experience, the report did not overcome the court’s determination that Ms. Thomas was not recanting her testimony. Even if,
arguendo, Ms. Thomas had signed that statement, she was not willing to be sworn and state the same before the court. This coupled
with the fact that this version of the events had been raised in a previous PCRA, the PCRA Court found that the evidence would not
likely compel a different verdict. As previously stated, the test for recantation testimony requires that the after-discovered evidence
in the form of recantation meet all four prongs of the test discussed above and this fails to meet the requirements.
In this matter, the court heard the testimony of the alleged recantation witness and reviewed the original trial transcript. The
court also reviewed the report of the Handwriting Expert and reviewed the Petition, the Answer, the Findings of Fact, along with
the applicable case law. In a PCRA, the judge sits as the trier of fact.
A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided
great deference by reviewing courts. Johnson, 600 Pa. at 356, 966 A.2d at 539. As we indicated in Johnson, when a
PCRA hearing is held, “we expect the PCRA court to make necessary credibility determinations.” Id. at 358, 966 A.2d
at 540; see also Commonwealth v. Washington, 592 Pa. 698, 717, 927 A.2d 586, 597 (2007) (opining that even with
recantations that might appear dubious, the PCRA court must in the first instance assess the credibility and significance of the recantation).
november 2, 2012
pa g e 4 4 3
Com. v. Small, 980 A.2d 549, 586 (Pa. 2009)
Based on the foregoing, the defendant failed to meet the requirements for post conviction relief and the PCRA Court dismissed
the Petition. June 29, 2012
Date: June 29, 2012
1
The Pennsylvania Superior Court recited those underlying facts set forth in the trial court’s August 29, 1997, opinion, pages 2-3.
2
42 Pa.C.S.A. §9545(b)(3)
Commonwealth of Pennsylvania v.
Ricco Turner
Criminal Appeal—Homicide—Sufficiency—Expert Psychiatric Testimony—Diminished Capacity
No. CC 200811866. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 9, 2012.
OPINION
PROCEDURAL HISTORY
Ricco Turner, hereinafter Appellant, was charged by Criminal Information (CC 200811866) with one (1) count each of: Criminal
Homicide1; and, Firearms Not to be Carried Without a License2.
On November 4, 2010, following a jury trial Appellant was convicted on all charges. On February 3, 2011, Appellant was
sentenced by the Trial Court to life in prison on the Homicide charge and four (4) to eight (8) years on the Firearms charge to be
served consecutively to the Homicide charge. On March 7, 2011, Appellant filed a timely Notice of Appeal.
STATEMENT OF ERRORS ON APPEAL
Appellant raises the following issue on appeal and it is set forth exactly as Appellant phrases it:
I. The Trial Court erred by refusing to allow that defense to present the supporting evidence and testimony of defense
expert, Dr. Barbara A. Beadles. The Commonwealth had to prove beyond a reasonable doubt that Mr. Turner had the
specific intent to kill and he was not acting under a diminished capacity or suffering from mental illness, disorder, or
abnormality which prevented his formation of the premeditation and deliberation required to prove first degree murder. Contrary to the Trial Court’s ruling, supporting evidence and testimony of Dr. Beadles was relevant and probative
regarding Mr. Turner’s state of mind or his diminished capacity at the time of the incident and this evidence should not
have been excluded from the jury’s consideration.
II. The evidence was not sufficient to prove beyond a reasonable doubt that Mr. Turner was guilty of First Degree Murder.
Mr. Turner lacked the specific intent to kill. He was acting under diminished capacity and he suffered from a mental
illness, disorder, or abnormality which prevented his formation of the premeditation and deliberation required to prove
first degree murder.
FACTS
On the morning of July 29, 2010 just before 8:00 a.m., Virginia Mallory was sitting in her home office at 675 Princeton
Boulevard, Wilkinsburg, Allegheny County. (T.T. 88). The room was on the second floor of her home and the window in the room
provided a view of Princeton Avenue. (T.T. 88). As Mallory was working on her computer she heard arguing outside involving her
neighbor Denise and her son, Ricco. (T.T. 87). She continued working on her computer until she heard her neighbor say, “That’s it,
Ricco. I’m calling the police.” (T.T. 89). She looked out of the window and saw the victim, Jonathan Banks run across the street
towards her house with Appellant chasing him with a gun. (T.T. 89-90). The victim attempted to run away from Appellant headed
toward a gap between the bushes and a tree in front of her home. (T.T. 90). Mallory saw Appellant’s gun and screamed, “No. Don’t
do it.” (T.T. 90). Appellant caught the victim and spun him around and shot him. (T.T. 90). As Mallory ran to her bedroom to call
the police she heard two (2) more shots. (T.T. 91). The victim had been shot three times in the torso. (T.T. 182). One of the shots
completely severed his spinal cord. (T.T. 184). Banks died of the massive internal trauma associated with three gunshot wounds to
the back. (T.T. 191).
Officer Larry Langham of the Wilkinsburg Police Department responded to the 911 call. (T.T. 27). When he arrived on the scene
he found the victim face down in front of 675 Princeton Avenue with no pulse. (T.T. 27). Officer Langham secured the scene until
backup arrived. (T.T. 27). The witnesses at the scene gave a description of the actor as a black male, 6 foot to 6 foot 1 inches tall
with a white muscle shirt who fled down Copely way. (T.T. 30). Officer Langham radioed in the description and police began to
spread out and search for the actor. (T.T. 31). The police deployed canines to assist with the search. (T.T. 32). Approximately two
(2) hours after the incident, Officer Langham received a call over the radio that a black male with a white muscle shirt was seen
hiding under the back porch of 547 Shelbourne Street. (T.T. 33).
As Officer Langham approached the 500 block of Shelbourne, he saw a black male in a white muscle shirt with brush burns on
his shoulders crouching down walking behind homes. (T.T. 34). Officer Langham drew his weapon and yelled, “Police. Get down
on the ground. Police. Stop.” (T.T. 34). Appellant did not stop for the officer but continued to walk backwards across the street
toward the corner of Blenheim Street and Copley Way. (T.T. 34-35, 41).
Officer Langham radioed for backup. (T.T. 35). Just then Sergeant Cuiffi of the Wilkinsburg Police Department ran towards
Appellant and when Appellant turned his head toward Sergeant Cuiffi, Officer Langham deployed his taser. (T.T. 35). As Sergeant
Cuiffi approached Appellant, he attempted to sit up and Officer Langham tased him again. (T.T. 35). When Appellant was taken
into custody he had a red bandana in his hand. (T.T. 36). Officer’s removed the bandana to find a semi-automatic pistol hidden
inside of it. (T.T. 36, 199).
pa g e 4 4 4
volume 160
no. 22
Appellant was formally arrested and charged as noted hereinabove.
DISCUSSION
I.
In his first issue Appellant claims that the Trial Court erred by excluding evidence and testimony of a defense expert, psychiatrist Barbara A. Beadles, M.D. as it my have related to Appellant’s state of mind or diminished capacity at the time of the offense.
The claim is without merit.
The law that governs the admission of evidence of this sort has been summarized as follows:
The Pennsylvania Supreme Court has consistently held that expert psychiatric testimony is admissible to negate the
specific intent to kill which is essential to first degree murder. Psychiatric testimony relevant to the cognitive functions of
deliberation and premeditation is competent on the issue of specific intent to kill. Thus psychiatric testimony is competent
in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions
necessary to formulate a specific intent. As detailed below, the Supreme Court has distinguished between those mental
disorders which are cognitive in nature and those which are not.
Commonwealth v. Kuzmanko, 709 A.2d 302, 398-399 (Pa. 1999)(internal citations and quotations omitted).
Here, Dr. Beadles completed an evaluation of Appellant that included, but was not limited to, interviewing Appellant and his
family members, reviewing Appellant’s psychiatric records from several institutions and psychiatrists, reviewing psychological
testing results, reviewing records of the present offense as well as Appellant’s past criminal offenses. See Dr. Beadles Report at p.
1. Dr. Beadles specifically understood and contemplated the defense of diminished capacity as the inability of a person to possess
the requisite state of mind for the commission of first degree murder. See Dr. Beadles Report at p. 2.
Nonetheless, despite contemplating and presenting a detailed history of Appellant’s mental condition(s), Dr. Beadle did not state
with the requisite certainty or specificity that at the time of this killing that Appellant suffered from a mental disorder affecting
his cognitive functions of deliberation and premeditation necessary to formulate the specific intent to kill. Commonwealth v.
Brown, 578 A.2d 461, 466 (Pa.Super. 1990)(personality disorders or schizoid or paranoid diagnoses are not relevant to a diminished
capacity defense).
To the contrary, Dr. Beadles final opinion as to Appellant’s mental state at the time of the killing was only that:
There is moderately strong evidence that Mr. Turner suffered from a psychiatric disorder prior to, during, and after the
instant offense...it is reasonable to assume that had poor insight and judgment at the time of the offense...his decision to
use a gun to solve his problems is consistent with anti-social personality disorder but his motivation appears to have been
psychotic in origin [delusion that victim was harassing him]...Mr. Turner’s primary intent was to stop the harassment that
was causing him distress.
Dr. Beadles Report at pp 5-6.
As was stated in Brown:
A defendant who raises a diminished capacity defense concedes general criminal liability, but challenges his
capacity to premeditate and deliberate at the time of the criminal act. It is an extremely limited defense and psychiatric testimony is only competent on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent. Where it does not, it is irrelevant and hence
inadmissible.
Brown, 578 A.2d at 466 (internal citations and quotations omitted).
Such was the case here where Dr. Beadles never addressed the salient inquiry with specificity or definitive resolve. Poor
Judgment, psychotic motivation or overwhelmed impulse control do not meet the criteria for admissibility. See Commonwealth v.
McCullum, 738 A.2d 1007, 1009 (Pa. 1999)(where psychiatrist did not state that defendant was unable to formulate the specific
intent to kill such testimony was not admissible to support a diminished capacity defense). Cf. Commonwealth v. Legg, 711 A.2d
430, 433 (Pa. 1998)(expert testimony that directly relates defendant’s mental defect to her inability to formulate a specific intent
to kill is admissible to support a diminished capacity defense).
The Trial Court did not err in excluding such testimony.
II.
Appellant’s second issue is that the evidence was not sufficient to prove beyond a reasonable doubt that Mr. Turner was guilty
of first degree murder.3 This claim is without merit.
The standard of review governing Appellant’s claim has been succinctly stated as follows, “whether the evidence presented
at trial and all the reasonable inferences derived, viewed in the light most favorable to the Commonwealth as verdict winner,
are sufficient to satisfy all elements of the offense beyond a reasonable doubt”. Commonwealth v. Houser, 18 A.3d 1228, 1133
(Pa. 2011).
The applicable statutory provision, 18 Pa.C.S. § 2502, provides that to convict a defendant of first degree murder, the
Commonwealth must prove: (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and, (3) the
defendant acted with the specific intent to kill. 18 Pa.C.S. § 2502, Houser, 18 A.3d at 1133.
The Superior Court has stated that:
A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. It is the
element of a specific intent to kill which distinguishes first degree murder from all other grades of homicide. The
case law in Pennsylvania has consistently held that the requirement of premeditation and deliberation is met whenever there is a conscious purpose to bring about death. The cases further hold that the specific intent to kill can be
formulated in a fraction of a second. A specific intent to kill can be inferred from the circumstances surrounding an
unlawful killing.
Commonwealth v. Sattazahn, 631 A.2d 597, 602 (Pa. Super. 1993) (citations and quotations omitted).
The undisputed evidence produced at trial, including testimony from Appellant himself shows that Appellant willfully, delib-
november 2, 2012
pa g e 4 4 5
erately and with the specific intent to kill shot Jonathan Banks to death. (T.T. 90, 224). This evidence was sufficient to support
a verdict of first degree murder. Commonwealth v. Thompson, 739 A.2d 1023, 1028 (Pa.Super. 1999) (evidence sufficient where
eyewitness identifies defendant as the shooter; defendant shot victim in a vital part of the body; and, his flight following the
murder was evidence of consciousness of guilt).
Appellant’s claim is without merit.
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 9, 2012
1
18 Pa.C.S.A. §2501 (a).
2
18 Pa.C.S.A. §6106 (a)(1).
3
Appellant incorrectly states in his Concise Statement that he was acting under a diminished capacity such that he could not form
the specific intent to kill. The Trial Court has addressed that in the discussion in issue I and respectfully incorporates that by
reference for discussion purposes of Issue II.
Commonwealth of Pennsylvania v.
Jonathan Simmons
Criminal Appeal—Sufficiency—Robbery—Waiver—Jury Instruction—Adverse Inference—Failure to Object
No. CC 200916835. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 9, 2012.
OPINION
PROCEDURAL HISTORY
Appellant, Johnathan Simmons, was charged by criminal information (CC 200916835) with one count each of: Robbery1,
Robbery of a Motor Vehicle2, Carrying a Firearm Without a License3, Terroristic Threats4, Recklessly Endangering Another
Person5, Simple Assault6, and Criminal Conspiracy7.
Appellant proceeded to a jury trial on January 11-13, 2011, after which he was found guilty of all charges.
On April 13, 2011, Appellant was sentenced to the following:
Count 1 - Robbery count to five (5) to ten (10) years incarceration;
Count 2 - Robbery of a Motor Vehicle to no further penalty;
Count 3 - Firearms Not to be Carried Without a License one (1) to two (2) years incarceration concurrent with Count 1;
Count 4 - Terroristic Threats to no further penalty;
Count 5 - Recklessly Endangering Another Person to no further penalty;
Count 6 - Simple Assault to no further penalty; and
Count 7 - Criminal Conspiracy Engaging in Robbery to two (2) years of probation consecutive to confinement.
On May 11, 2011, Appellant filed a timely Notice of Appeal to the Superior Court of Pennsylvania and this appeal followed.
STATEMENT OF ERRORS ON APPEAL
Appellant raises the following issues on appeal, and they are set forth exactly as Appellant frames them:
1. The Trial Court erred in failing to Grant Defendant new trial based upon the Defendant’s claims of ineffective
assistance of counsel, as clearly established in the record currently available to the Trial Court, and preserved in the
trial transcript, including, but not limited to, the following particulars:
a. Trial Counsel failed to offer into evidence, any hospital records compiled, and produced, evidencing that the
Defendant suffered scoliosis, in order to exhibit Defendant was incapable of running from the scene as testified to by
the Commonwealth’s witnesses;
b. Trial counsel failed to obtain Defendant’s criminal history/record with respect to the alleged burglary in order to
rebut the Commonwealth’s inference of Defendant’s pas criminal activity;
c. Trial Counsel erroneously indicated to Defendant, on direct examination, that the day of the alleged Robbery
occurred on a Saturday, when, in fact, said criminal offenses occurred on a Tuesday, resulting in the trier of fact finding Defendant incredible in his testimony;
d. Trial Counsel failed to object to District Attorney’s referencing Defendant’s past criminal acts when there existed
no evidence that Defendant ever engaged in past criminal activities:
e. Trial Counsel’s failure to call character witnesses on behalf of Defendant who would have testified to Defendant’s
reputation of character as known to the community; and,
pa g e 4 4 6
volume 160
no. 22
f. Trial Counsel failed to commence any investigation with respect to this matter including, but not limited to:
i. Failure to interview any of the witnesses prior to trial;
ii. Failure to interview any of the Pittsburgh Police Officers involved in investigating the incident occurring
on July 21, 2009; and
iii. Failure to investigate and interview other jitneys drivers who were present at the time of the alleged
criminal offenses; namely the alleged robbery charges, and other charges, filed against Defendant
pertaining to the incident occurring on July 21, 2009.
2. The Trial Court erred in not instructing the jury to disregard any inference of the burglary charged allegedly filed
against Defendant and referred to by Commonwealth because of the Commonwealth’s failure to provide any competent
evidence supporting any alleged burglary;
3. The Trial Court erred in denying Defendant’s Motion for Acquittal because the evidence offered by the Commonwealth
was insufficient to establish that the Defendant was the perpetrator of the offenses relating to Robbery as alleged in the
criminal information; and
4. The Trial Court erred in refusing to grant the Defendant’s Motion for Acquittal because the evidence offered by the
Commonwealth was inconsistent as to allow no finding of guilt beyond a reasonable doubt.
FINDINGS OF FACTS
On July 21, 2009, at approximately 11:00 a.m., Rodney Harris (victim), a jitney driver, was standing on the corner of Penn and
Wood Avenues in Wilkinsburg across the street from the Dollar General store. (T.T. 37)8. Walter Ferguson (co-defendant)
approached the victim and asked him to drive him to the intersection of Rebecca and Ella streets. (T.T. 38-39). The co-defendant
directed Appellant to “come on, let’s go” and they both got into the car. (T.T. 38). The co-defendant who was in the passenger seat
directed the victim to pull the car over when nearing the previously requested intersection. (T.T. 40). The co-defendant got out of
the car and said, “I think—I suggest you give him all your money. I don’t want to see you get shot.” (T.T. 40). The victim turned
toward Appellant in the back seat and was told, “don’t turn back.” (T.T. 57).
The victim saw Appellant in the rearview mirror with a gun and he handed over his valuables. (T.T. 40). Appellant and the
co-defendant took the victim’s wallet, keys, $30 cash and items from the back of his vehicle. (T.T. 40). Appellant searched through
the wallet and found a Citizen’s Bank credit card and said, “hey, let’s take him to the mac machine.” (T.T. 41). Appellant ordered
the victim into the backseat with him. (T.T. 41). As the co-defendant was coming around the vehicle to get into the driver’s seat,
the victim got out of the car slamming the door behind him and ran away. (T.T. 41). The victim asked a young lady sitting on a porch
to call the police, as well as an elderly couple driving up the street. (T.T. 41). The victim hid between homes until the police arrived
a few minutes later. (T.T. 42).
Officer Larry Langham of the Wilkinsburg Police Department transported the victim back to the police station. (T.T. 42). While
en route, the victim saw Appellant standing by Mike’s Corner Store smoking a cigarette. (T.T. 42). The victim told the police
officer, “wait a minute, that’s the guy right there.” (T.T. 42). The officer turned into the parking lot to speak to Appellant but he ran
away. (T.T. 42). The officer was unable to chase Appellant in the police car as there were children on bicycles in the parking lot of
the store. (T.T. 42).
On September 1, 2009, the victim was walking up Penn Avenue near a CVS store when he spotted Appellant and his girlfriend
walking along the sidewalk. (T.T. 45). The victim made eye contact with Appellant and immediately called the police, who
arrived within two minutes. (T.T. 46). The police approached Appellant in the CVS store and the victim identified Appellant
saying, “that’s him.” (T.T. 47). Appellant aggressively moved toward the victim stating, “ just you wait and see, bitch!” (T.T.
48-49). Appellant told police that he had a .32 caliber snubnose revolver in his possession at the time of arrest along with additional bullets. (T.T. 47, 49).
Appellant was formally arrested and charged as noted hereinabove.
DISCUSSION
I.
In his initial claim, Appellant raises multiple allegations of ineffective assistance of counsel. In sum, he argues that the Trial
Court erred in failing to grant Appellant a new trial based upon ineffective assistance of counsel.
In Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa.Super.2011), the Superior Court stated that the appellate court will no longer
engage in the review of ineffective assistance of counsel claims on direct appeal. Consequently, even if the record were to be developed as to the ineffective assistance of counsel claim, the Superior Court will not review it in the present procedural posture.
Barnett, 25 A.3d at 377.
Thus, the Trial Court will not address these claims.
II.
In his second claim, Appellant argues that the Trial Court erred in failing to issue a no adverse inference instruction regarding
an alleged burglary committed by Appellant. This claim is without merit.
The following took place on the record:
MR. FEDEL: Offer for cross.
MR. PIETROGALLO: Judge, may we approach? I intend to go down a line of cross-examination.
THE COURT: Yes.
MR. PIETROGALLO: On direct examination of this witness defense counsel—
THE COURT: Speak up.
MR. PIETROGALLO: —elicited the fact the defendant had never been arrested previously. I have a copy of his rap
sheet indicating he had been arrested for burglary approximately September 1, 2009.
MR. FEDEL: Your Honor, my client has no knowledge of this supposed arrest. He denies being the person in it.
THE COURT: What was the result of that?
MR. PIETROGALLO: The case was ultimately dismissed.
november 2, 2012
pa g e 4 4 7
THE COURT: Okay. So I will let him inquire about that.
MR. FEDEL: Okay.
MR. PIETROGALLO: Mr. Simmons, you said you had never been arrested prior to this incident. That is not exactly accurate, is it?
MR. SIMMONS: Um, it is.
MR. PIETROGALLO: Were you ever arrested and charged with burglary, receiving stolen property and criminal mischief?
MR. SIMMONS: No.
MR. PIETROGALLO: I have what I will mark as Commonwealth 9 for identification purposes. Refer you to the top
section right there (indicating). Is that your name, Jonathan Ryan Simmons?
MR. SIMMONS: Uh-huh.
MR. PIETROGALLO: And is your date of birth May 18th 1988?
MR. SIMMONS: Yeah.
MR. PIETROGALLO: And you are saying this was not you that was arrested for this crime; correct?
MR. SIMMONS: I was arrested when you guys arrested me. That is the only time I was arrested.
MR. PIETROGALLO: Only on this Robbery.
MR. SIMMONS: Yes.
(T.T. 45-47).
In order to properly preserve an issue of error, the Pennsylvania Rules of Evidence requires the lodging of a present, contemporaneous objection:
Rule 103. Rulings on evidence
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling that admits or excludes evidence unless
(1) Objection. In case the ruling is one admitting evidence, a timely objection, motion to strike or motion in limine
appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.
P.R.E. 103 (a)(1).
The appellate courts have maintained the necessity of a timely objection during the course of the presentation of evidence. The
Superior Court has stated that, “[T]he trial judge must be given an opportunity to rectify errors at the time they are made.”
Commonwealth v. Clair, 326 A.2d 272, 274 (Pa.Super. 1974). Pennsylvania case law is clear, “In the absence of an appropriate objection made when the evidence is proffered at trial, the issue is not preserved for appeal and the applicable rule of evidence is
waived.” Commonwealth v. Foreman, 797 A.2d 1005, 1016 (Pa.Super. 2002). Additionally, in order for a claim of error to be
reviewed on appeal, Pennsylvania Rule of Appellate Procedure 302 (a) states as follows:
Rule 302. Requisites for Reviewable Issue
(a) General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.
Pa.R.A.P. 302(a). See Commonwealth v. Nunn, 947 A.2d 756, 762 (Pa. Super. 2008)(defendant waived appellate review of all challenges
not preserved by objection before the trial court). As Trial Counsel did not make a contemporaneous objection to the testimony, any
issue that may have existed has been waived.
Assuming arguendo that the Superior Court does not find waiver, this area of inquiry is governed by 42 Pa.C.S.A. §5918 which
states:
No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall
be required to answer, any question tending to show that he has committed, or been charged with, or been convicted
of any offense other than the one where-with he shall then be charged, or tending to show that he has been of bad character or reputation unless: (1) he shall have at such trial, personally or by counsel, ...[have] given evidence tending to
prove his own good character or reputation[.]
42 Pa.C.S.A. §5918.
The Superior Court case of Commonwealth v. Days, 784 A.2d 817 (Pa.Super. 2001) is factually analogous to the present case. In
Days, the defendant was cross examined regarding his direct testimony relative to the status of his relationship with his children’s
mother. The prosecutor questioned him stating that “You’re not being truthful about your relationship with the kids’ mother.” The
defendant denied that allegation. The Court in Days reasoned:
The exposure of his untruthfulness was not precluded because the rebutting evidence included prior criminal activity,
particularly where he introduced the prior arrests in his own testimony. He is not insulated from being discredited
about the factual accuracy of his testimony simply because that proof involves other crimes.
Days, 784 A.2d at 821.
Here, Appellant opened the door regarding his prior arrests having testified that he had never been arrested prior to the present case. (T.T. 40, 47). The prosecutor simply impeached him with the his prior arrest record. Appellant mentioned his lack of prior
arrests which opened the door for further explanation regarding that untruthful testimony.
In Commonwealth v. Trignani, 483 A.2d 862, 869 (Pa.Super. 1984), the Superior Court affirmed the actions of the trial court
permitting a prior conviction to be introduced to rebut the defendant’s unsolicited assertion that he was a nonviolent person. In
both Days and Trignani, the Superior Court held that the evidence was admissible not to show Appellant committed the other
crimes, but to negate his own untruthful testimony. Therefore, the Trial Court did not err in admitting the evidence.
If indeed there was an error committed here, it is harmless. “Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error
pa g e 4 4 8
volume 160
no. 22
could not have contributed to the verdict.” Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 350 (1999).
Appellant’s claim is without merit.
III.
In his third claim, Appellant argues that the Trial court erred in denying Defendant’s Motion for Acquittal as to the Robbery
due to insufficient evidence. This claim is without merit.
The applicable standard of review for the denial of a motion for judgment of acquittal is as follows:
A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that
charge.
The standard we apply in reviewing the sufficiency of the evidence is whether reviewing all the evidence admitted
at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.Super. 2008)(citations and quotations omitted)(emphasis original).
Here Appellant was charged with one (1) count of Robbery. That crime is defined as follows:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he: ...
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury.
18 Pa.C.S.A.§ 3701 (a)(1)(ii).
The Commonwealth produced sufficient evidence at trial to prove beyond a reasonable doubt that Appellant committed the
crime of Robbery. The Trial Court has recited the facts at length. Supra at 5-7. Here, the Commonwealth proved that: (1) along
with the co-defendant, Appellant engaged the victim jitney driver in a fare (T.T. 38); (2) when the victim pulled his vehicle over
at the requested stop, the co-defendant got out of the car and said, “I think—I suggest you give him all your money. I don’t want
to see you get shot.” (T.T. 40); (3) when the victim turned toward Appellant in the back seat he was told, “don’t turn back.” (T.T.
57); (4) the victim saw Appellant holding a gun and handed over his valuables (T.T. 40); (5) Appellant and the co-defendant took
the victim’s wallet, keys, $30 cash and items from the back of his vehicle (T.T. 40); (6) Appellant searched through the wallet and
found a Citizen’s Bank credit card and said, “hey, let’s take him to the mac machine.” (T.T. 41); (7) Appellant ordered the victim
to come into the backseat with him (T.T. 41); and, (8) as the co-defendant was coming around the vehicle to get into the driver’s
seat the victim got out of the car slamming the door and ran away. (T.T. 41). See Commonwealth v. Fromall, 572 A.2d 711, 716
(Pa.Super. 1990)(robbery conviction supported by direct evidence of defendant’s identification with bolstering circumstantial
evidence). Here, the evidence was sufficient for a fact finder to find beyond a reasonable doubt that Appellant committed the
charged crimes.
Appellant’s claim is without merit.
IV.
In his final claim, Appellant argues that the Trial Court erred by denying Defendant’s Motion for Acquittal because the
evidence offered by the Commonwealth was inconsistent to allow for a finding of guilt. This claim is without merit.
The Trial Court’s analysis regarding its’ ruling as to Appellant’s Motion for Judgment of Acquittal has been discussed at length
hereinabove. The Commonwealth presented sufficient evidence as to each charge and ultimately a fact finder found Appellant
guilty of all charges. See Commonwealth v. Ferguson, 516 A.2d 1200, 1201-1202 (Pa.Super. 1986).
Appellant’s claim is without merit.
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 9, 2012
1
18 Pa.C.S.A. §3701(A)(1)(i).
2
18 Pa.C.S.A. §3702(A).
3
18 Pa.C.S.A. §6106(A)(6).
4
18 Pa.C.S.A. §2706(A)(1).
5
18 Pa.C.S.A. §2705.
6
18 Pa.C.S.A. §2701(A)(3).
7
18 Pa.C.S.A. §903(A)(1).
8
The letters “T.T.” followed by numerals refer to the jury trial transcript dated January 12, 2011-Morning Session.
november 2, 2012
pa g e 4 4 9
Commonwealth of Pennsylvania v.
Thomas Albert
Criminal Appeal—Sufficiency—SVP—Waiver—Timing of SVP Hearing
No. CC 200903918, 201003395, 201002477. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 13, 2012.
OPINION
PROCEDURAL HISTORY
Appellant, Thomas Albert, was charged by criminal information (CC 200903918) with one count of Failure to Comply with
Registration1. At a second criminal information (CC 201002407), Appellant was charged with a second count of Failure to Comply
with Registration, and at a third criminal information (CC 201003395), he was charged with Aggravated Indecent Assault2 and
Corruption of Minors3.
On July 6, 2011, pursuant to a plea agreement, Appellant pled guilty to all charges for an agreed upon aggregate sentence of 4
to 14 years. On that same dated a Sexually Violent Predator (SVP) hearing was conducted at the conclusion of which the Trial Court
determined Appellant to be a sexually violent predator.
This appeal followed.
STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
Appellant raises the following allegations of error which are set forth exactly as Appellant states them:
(A) Did the court err in determining that there was sufficient evidence to label Mr. Albert as a sexually violent predator where there was no evidence of violent or predatory conduct.
(B) Did the court commit an error of law in conducting an SVP hearing after sentencing where the statute explicitly
states that such a determination must be made prior to sentencing and the court lacked jurisdiction to conduct an SVP
hearing after sentencing.
FACTS
As relevant to the issues on appeal at CC 201003395 (Aggravated Indecent Assault, Corruption of Minors), Appellant in June of
2009 was living in an apartment building in the Beechview section of the City of Pittsburgh, Allegheny County.
The fourteen year old victim lived with her mother and sister in an upstairs apartment in the same building. On June 26, 2009,
while their mother was at work, the victim and her sister were helping Appellant with a screening project in his apartment. The
victim complained of sunburn pain and Appellant volunteered to put lotion on her back, which he did do.
Later that day Appellant applied more lotion to the victim’s back but this time he unsnapped her bra. He suggested that they
move to his bedroom because the floor on which Appellant had directed the victim to lay was dirty. Once in the bedroom Appellant
told the victim to lay face down on the bed and he began to massage lotion into her back.
Appellant told the victim to roll over on her back and when she complied, Appellant unbuckled and unzipped her pants stating
“massages are for all over”. Appellant pushed his hands into her pants, and then under her underwear and between her legs. The
victim indicated that Appellant touched “everything” and put his hand “inside” her. The victim told Appellant that she wanted to
leave, and Appellant asked her if she had ever been kissed. When she said no, Appellant kissed her on the lips and stated “now you
have”. The victim then got up from the bed and walked out of the bedroom.
As the victim was walking toward the front door, Appellant asked her to stop and sit down for five minutes. Appellant asked her
not to tell her mother and apologized stating, “I’m sorry please forgive me”. The victim ran from the apartment to call her mother
who was at work.
Appellant went to the victim’s mother’s place of work and told her mother that, “I was putting cream on her sunburn and things
got out of hand; I’m sorry I could go to jail; what do you want me to do, leave town”. When asked about the kiss, Appellant stated
“it was just a peck”. See S.T. at pages 11-134, Commonwealth Exhibit 1, “Sex Offender Risk Assessment” (6-21-11), Cathy L. Clover,
Psychologist, at page 2. (hereafter “Assessment”)
DISCUSSION
I.
In his first claim Appellant alleges that the Trial Court erred in determining that there was sufficient evidence to label
Appellant a sexually violent predator averring that there was no evidence of violent or predatory conduct. This claim is without
merit.
The applicable standard of review has been stated thusly:
If a person appeals an SVP designation and contends the evidence supporting that designation was insufficient, our
standard of review is clear. We do not weigh the evidence presented to the sentencing court and do not make credibility
determinations. Instead, we view all the evidence and its reasonable inferences in a light most favorable to the
Commonwealth. We will disturb an SVP designation only if the commonwealth did not present clear and convincing
evidence to enable the court to find each element required by the SVP statutes.
Commonwealth v. Feucht, 955 A.2d 377, 381-382 (Pa. Super. 2008).
By claiming that there was no evidence of violent or predatory conduct, Appellant challenges an evidentiary insufficiency that
is not a requirement in the SVP classification. See Commonwealth v. Fletcher, 947 A.2d 776 (Pa. Super. 2008).
The Fletcher court states with presently applicable acumen:
In the relevant statute, a “sexually violent predator” is defined, in pertinent part, as “[a] person who has been convicted of a sexually violent offense as set forth in [42 Pa.C.S.A.] section 9795.I (relating to registration) and who
is determined to be a sexually violent predator under [42 Pa.C.S.A.] section 9795.4 (relating to assessments) due
to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S.A. § 9792. This definition contains no requirement for a determination that the SVP
engaged in predatory behavior in the instant offense. The statutory definition of “predatory,” about which the
pa g e 4 5 0
volume 160
no. 22
arguments before us revolve, is relevant only in that an SVP must be found to have a mental abnormality or personality disorder which renders the SVP likely to engage in predatory behavior. Appellant does not challenge that
determination.
Because Appellant has challenged only one evidentiary insufficiency in his SVP classification, one which is not a
requirement thereof, we find no merit to his appeal.
Fletcher, 947 A.2d at 776-777 (footnote omitted) (emphasis in original)
Appellant’s claim is without merit.5
II.
In his second issue, Appellant claims that Trial Court committed an error of law in conducting an SVP hearing immediately
after sentencing. This claim has been waived.
On July 6, 2011 Appellant entered into a negotiated plea agreement on three separate criminal cases that was scheduled as such.
An SVP hearing was scheduled for that same day as the Commonwealth expert witness was present and she was cross examined
after the Commonwealth entered the expert’s report into evidence. (S.T. 11-28)
Appellant never objected to the procedural process that unfolded before, during, or after it concluded. Consequently, this claim
has been waived. Commonwealth v. Whanger, 30 A.3d 1212, 1214 (Pa. Super. 2011) (defendant waived statutory requirement that
SVP assessment be conducted prior to sentencing.)
This claim is without merit.
CONCLUSION
Based on the foregoing, the judgment of sentence should be affirmed.
BY THE COURT:
/s/Borkowski, J.
Date: July 13, 2012
1
18 Pa. C.S. § 4915 (a) (1)
2
18 Pa. C.S. § 3125 (a) (8)
3
18 Pa. C.S. § 6301 (a) (1)
4
The letters “S.T.” refer to the sentencing transcript of July 6, 2011.
5
In any event there was clear and convincing evidence presented that Appellant met the criteria to be classified as a SVP. See
Assessment at pp. 6-10, Commonwealth v. Geiter, 829 A.2d 848, 852-853 (Pa. Super. 2010) (expert testimony established by clear
and convincing evidence that defendant met the statutory criteria for SVP status, consequently the trial court’s determination
would not be disturbed.)
Commonwealth of Pennsylvania v.
Terrance Andrews
Criminal Appeal—Sufficiency—Homicide—Weight of the Evidence—Diminished Capacity—
Malice—Photographs—Expert Testimony
No. CC 200810169. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 13, 2012.
OPINION
PROCEDURAL HISTORY
Terrence Andrews (Appellant) was charged by Criminal Information (200810169) with one count each of Criminal Homicide1,
and Burglary2.
Appellant proceeded to a jury trial on March 22-25, 2011, at the conclusion of which he was convicted of first degree murder
and burglary.
On March 25, 2011, Appellant was sentenced to a term of life imprisonment on the First Degree Murder conviction and a
consecutive term of 5-10 years on the Burglary conviction. Post trial motions were filed and denied. This appeal followed.
Matters Complained of on Appeal
Appellant raises the following matters as error and they are set forth exactly as he Appellant states them:
1. The evidence was not sufficient to prove beyond a reasonable doubt that Mr. Andrews was guilty of first degree
murder of Ms. Maas. Mr. Andrews lacked the specific intent to kill. He was acting under a diminished capacity and
he suffered from a mental illness, disorder, or abnormality which prevented his formation of the premeditation and
deliberation required to prove first degree murder.
2. The evidence was not sufficient to prove beyond a reasonable doubt that Mr. Andrews was guilty of burglary. Mr.
Andrews was acting under a diminished capacity due to his mental illness and he lacked the intent to commit the
crime of murder when he entered the apartment. Additionally, the Commonwealth presented no evidence that Mr.
Andrews was not licensed or privileged to enter Ms. Maas’ apartment.
3. The trial court erred and abused its discretion by admitting photographs of the deceased victim’s body, which were
highly inflammatory, cumulative, and prejudicial. Specifically, Commonwealth Exhibits 25 and 75 should not have
november 2, 2012
pa g e 4 5 1
been admitted. The danger of unfair prejudice by admitting these inflammatory photographs outweighed the probative value of these photographs.
4. The trial court erred and abused its discretion when it denied defense counsel’s request for a continuance so the
defense could adequately prepare a defense by obtaining and reviewing medical records. Defense counsel requested
a continuance on February 23, 2011 because she had not yet received necessary medical records from Western
Psychiatric Institute and Clinic. The continuance was denied by Order filed February 24, 2011 and the trial began on
March 22, 2011. By not providing defense counsel with adequate time to review the essential medical records and
prepare a defense, the trial court violated the due process clause of the Fifth and the Fourteenth Amendments of the
United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution, and the trial court violated the
right to counsel under the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the
Pennsylvania Constitution.
5. The trial court abused its discretion by denying Mr. Andrews post-sentence motion challenging the weight of the
evidence since the facts presented that Mr. Andrews was incapable of forming and/or did not have the specific intent
to kill were of such great weight to ignore them denied him justice. These facts include, but are not limited to, Mr.
Andrews’ extensive mental health history and diagnosis of psychosis by both experts, his irrational actions and statements before, during, and after the incident, his inability to handle his finances, his drug and alcohol problems, and
Dr. Ziv’s expert testimony. Additionally, Dr. Wright noted that regardless of Mr. Andrews’ mental health diagnosis or
symptoms, Mr. Andrews’ statements and behaviors revealed that his actions were premeditated and he understood
their wrongfulness. By ignoring Mr. Andrews’ metal health symptoms and diagnosis and relying on statements made
by Mr. Andrews, a psychotic, to form an opinion on whether Mr. Andrews’ had the intent to kill, Dr. Wright’s opinion
on that issue is so tenuous that it shocks the conscience.
6. The trial court abused its discretion by failing to strike Dr. Wright’s testimony since his expert opinion was not
based on scientific or specialized knowledge beyond that possessed by a layperson. Dr. Wright’s testimony was of
a character that it could be described to the jury and adequately estimated by them without the assistance of an
expert. The admission of such so-called expert testimony tended to mislead the jury and should have been excluded.
The purpose of the expert opinions was to assist the jury with an understanding of Mr. Andrews’ mental illness,
how that illness affected his actions and statements on the day of the incident, and how that illness affected his
ability to premeditate and deliberate. However, Dr. Wright drew his conclusions about Mr. Andrews’ intent to kill
based on statements made by Mr. Andrews, taken at face value, without considering his mental illness. If an
assessment of Mr. Andrews’ mental illness was ignored by Dr. Wright in reaching his opinion, then there was no
reason to present his expert opinion since it was not based on specialized knowledge. The jury did not require and
expert opinion regarding the plain meaning of Mr. Andrews’ statements taken at face value, without consideration
of his mental illness.
Facts
In May of 2008, Appellant was living in the Hampshire Hall Apartments, apartment 414, in the Shadyside section of
Pittsburgh, Allegheny County. The victim, Lisa Maas, lived in the same building and on the same floor as Appellant. In the morning of May 29, 2008, Mass and Appellant were on the elevator together and got into an argument. (T.T. 405, 503). Maas noticed a
foul odor emanating from Appellant and apparently told Appellant that he smelled or stunk. (T.T 190-191, 405, 503). This
encounter and Maas’ comment angered Appellant and reinforced his perception that Maas looked down on him and “treated him
like dirt”. (T.T. 191).
After this encounter Appellant was “burned up all day”, and he decided that he was going to kill Maas. He planned to do so by
lying in wait in his apartment for Maas to return home, whereupon he planned to force his way into her apartment and stab her to
death with a pair of scissors that he kept on his desk. (T.T. 191, 405, 439-446, 503-504).
Appellant waited the entire day for Maas to return, keeping watch of the sidewalk in front of the building from a window inside
his apartment. (T.T. 191). Sometime after 8:30 P.M. Appellant observed Maas return to the building and go to her apartment at the
end of the fourth floor hallway. (T.T. 191-192).
Appellant went to Maas’ door, scissors in hand, and knocked. (T.T. 192). When Maas opened the door he forced his way in and
began stabbing her. (T.T. 192). Maas started screaming and told Appellant that she would give him her money but Appellant indicated that he was not there for the money but to kill her. (T.T. 192). Maas attempted to defend herself by grabbing a kitchen knife
and cutting Appellant but to no avail. At some point Appellant was able to secure that knife and use it to stab Maas. (T.T. 60-67).
Appellant stabbed her multiple times, including fatal wounds to her neck and heart. (T.T. 48-66, 191-192).
As a result of the attack Maas fell to the floor and Appellant sat on the couch to observe her in that incapacitated state. Appellant
observed Maas choking on her own blood as he heard gurgling sounds coming from her. (T.T. 193). Appellant took a wash cloth and
stuffed it in her mouth so he wouldn’t have to hear the gurgling sounds any longer. (T.T. 89, 193). He secured the wash cloth with
tape and once the sounds stopped Appellant was satisfied that Maas was dead and left the apartment. (“When she stopped gurgling
I left because I knew she was dead”). (T.T. 191-193).
However, as Appellant was leaving Maas’ apartment two uniformed Pittsburgh Police officers were coming down hallway
in response to a neighbor’s report of hearing screams from the fourth floor. (T.T. 109-119, 127-147). Appellant was covered in
blood and told the officers, “I did it, take me to jail”. He also inquired as to whether Pennsylvania had the death penalty. (T.T.
113-120, 131). The officers recovered a pair of scissors and a serrated kitchen knife from Appellant’s pants pocket. (T.T. 115,
134, 148).
Medics arrived shortly thereafter and Mass was pronounced dead at the scene. (T.T. 138). Medics also tended to Appellant’s
head wound and transported him to a nearby hospital for treatment. (T.T. 152-166). Before transport from the scene Appellant was
briefly interviewed by homicide detectives wherein he provided an account as detailed hereinabove. (T.T. 191-193). Upon completion of medical treatment Appellant was formally arrested and charged as noted hereinabove.
The autopsy of Lisa Maas determined that she had three stab wounds to her neck, two stab wounds to her trunk (chest and
abdomen), sharp incised wounds to her left an right hands (13 total), and multiple contusions to her extremities and back. (T.T.
49-69). One of the stab wounds to Maas’ neck was 4 inches deep and lacerated her bilateral carotid arteries which are the
pa g e 4 5 2
volume 160
no. 22
major arterial supply of blood to the brain. (T.T. 52). The stab wound to the chest was 5 ½ inches deep and perforated and
lacerated Maas’ heart. (T.T. 53-56). Both of those wounds are immediately incapacitating and cause death within minutes. (T.T.
52-53, 56).
Discussion
I.
In his first claim Appellant alleges that the evidence was not sufficient to prove that he was guilty of first degree murder.
Appellant specifically claims that he was acting under a diminished capacity that prevented him from forming the requisite state
of mind for first degree murder. This claim is without merit.
The standard of review governing Appellant’s claim has been succinctly stated as follows, “whether the evidence presented
at trial and all the reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict
winner, are sufficient to satisfy all elements of the offense beyond a reasonable doubt”. Commonwealth v. Houser, 18 A.3d 1228,
1233 (Pa. 2011).
The applicable statutory provision, 18 Pa. C.S. § 2502, provides that to convict a defendant of first degree murder, the
Commonwealth must prove: 1) a human being was unlawfully killed; (2) the defendant is responsible for the killing; and (3) the
defendant acted with a specific intent to kill. 18 Pa. C.S. § 2502, Houser, 18 A.3d at 1133.
The Superior Court stated that:
A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. It is the
element of a specific intent to kill which distinguishes first degree murder from all other grades of homicide. The
case law in Pennsylvania has consistently held that the requirement of premeditation and deliberation is met whenever there is a conscious purpose to bring about death. The cases further hold that the specific intent to kill can be
formulated in a fraction of a second. A specific intent to kill can be inferred from the circumstances surrounding an
unlawful killing.
Commonwealth v. Sattazahn, 631 A.2d 597, 602 (Pa. Super. 1993) (citations and quotations omitted).
Here, Appellant after arguing with the victim in the morning, decided that he was going to kill the victim. (T.T. 191-193). He
laid in wait the entire day for the victim to return to her apartment, and when she returned he forced his way into her apartment
where he stabbed her 18 times. (T.T. 48-56, 191-193, 503). He then stuffed a wash cloth into her mouth as she choked on her own
blood to make certain that she died. (T.T. 193). This was sufficient evidence to prove first degree murder. Commonwealth v. Wright,
328 A.2d 514, 516 (Pa. 1974) (evidence sufficient to support first degree murder conviction where defendant announced intention
to kill victim and then ran across street and plunged knife into her abdomen).
While Appellant presented the expert testimony of psychiatrist, Dr. Barbara Ziv, who opined that Appellant, owing to a mental
infirmity could not form the requisite intent, the jury rejected that opinion. (T.T. 328, 419-420). Commonwealth v. Trill, 543 A.2d
1106, 1112 (Pa. Super. 1988) (where psychiatric evidence was conflicting it was within jury’s province to determine which account
was more credible; jury may also determine defendant’s mental status from defendant’s actions, conversations and statements at
the time of the crime).
Appellant’s claim is without merit.
II.
In his second claim Appellant alleges that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty
of burglary. Appellant specifically alleges that he was acting under a diminished capacity and that there was no evidence to establish that he was not licensed or privileged to enter the victim’s apartment. This claim is without merit. Appellant raises two claims
in this issue which will be addressed as such following recitation of the applicable statutory provision.
A person commits the offense of burglary if he enters a occupied structure, or separately secured or occupied portion thereof,
with intent to commit a crime therein unless the premises are open to the public or the actor is licensed or privileged to enter at
that time. 18 Pa.C.S. § 3502(a).
A. Diminished Capacity
In Pennsylvania diminished capacity is an extremely limited defense that applies only to the crime of first degree
murder. Commonwealth v. Swartz, 484 A.2d 793, 795-796 (Pa. Super. 1984) (diminished capacity defense not available as
a defense to non-homicide specific intent offenses). Thus Appellant’s attempt to raise this as it relates to the burglary
charge is meritless.
B. Entry
Appellant admitted that he forced his way into the victim’s apartment and began to stab her in the process. (T.T. 192, 503).
Commonwealth v. Diggs, 949 A.2d 873, 878 (Pa. Super. 2008) (evidence sufficient to support jury’s finding that defendant was
not licensed or privileged to enter premises where defendant had to shove victim’s daughter aside in order to enter victim’s
home).
Appellant’s claim is without merit.
III.
Appellant’s third claim is that the trial court erred by admitting two photographs of the deceased victim’s body into evidence.
This claim is without merit.
The admission of photographs in a homicide trial is entrusted to the sound discretion of the trial judge and that decision will be
reversed only upon a showing of abuse of that discretion. Commonwealth v. Sanchez, 36 A.3d 24, 48-49 (Pa. 2011). The oft stated
analysis of whether photographic evidence alleged to be inflammatory is admissible is first, whether the photograph is inflammatory by its very nature, and second if deemed so, whether the essential evidentiary value of the photograph outweighs the likelihood that the photograph will improperly inflame the minds and passion of the jury. Sanchez, 36 A.3d at 49 (no error in admission
of homicide victim’s body at crime scene).
Here the two photographs at one issue – one (exhibit 75), was an autopsy photograph which depicted the stab wounds of the
victim’s neck, and a second (exhibit 25), was a photograph of the victim at the crime scene which depicted a wash cloth stuffed
into the victim’s mouth with tape over it to secure it. (T.T. 6-10).
november 2, 2012
pa g e 4 5 3
As to the photograph of the victim at the scene, the Trial Court determined that the photograph was potentially inflammatory, but that its probative value outweighed the likelihood that it would tend to inflame the minds and passion of the jury to the
prejudice of the Appellant. (T.T. 10, 92-93). See Commonwealth v. Karenbauer, 715 A.2d 1086, 1096 (Pa. 1998) (photographs of
victim, while decidedly unpleasant to look at illustrated the severity of the attack and that it was done with the intent to kill).
Here after stabbing the victim Appellant sat on her couch watching her as she lay mortally wounded on the floor, and when the
victim started to choke on her own blood Appellant stuffed a wash cloth in her mouth and taped it to make certain she was dead.
(T.T. 153).
As was Appellant stated in McCutheon,
A criminal homicide trial is, by its very nature, unpleasant, and the photographic images of the injuries inflicted are
merely consonant with the brutality of the subject inquiry. To permit the disturbing nature of the images of the victim
to rule the question of admissibility would result in exclusion of all photographs of the homicide victim, and would
defeat one of the essential functions of the criminal trial; inquiry into the intent of the actor. There is no need to
overextend an attempt to sanitize the evidence of the condition of the body as to deprive the Commonwealth of opportunities of proof in support of the onerous burden of proof beyond a reasonable doubt.
Commonwealth v. McCutheon, 454 A.2d 547, 549 (Pa. 1982).
As to the autopsy photograph, the court found it be non-inflammatory; and since it depicted one of the fatal wounds, to be admissible as it aided the jury’s understanding of the pathologist’s testimony, and as it may ultimately reflect on Appellant’ s intent at
the time of the killing. (T.T. 10-11, 59). See Commonwealth v. McCutheon, 454 A. 2d at 602 (in assessing the intent of the actor in a
case of criminal homicide the fact finder must aided to every extent possible including the admission of photographs of the victim
that are not pleasant to look at).
Appellant’s claim as the to the photographs is without merit.
IV.
Appellant’s next claim is that the Trial Court abused its discretion when it denied his request for a continuance. Specifically
Appellant alleges the Trial Court, by denying him a continuance on February 23, 2011 (a month before trial) did not provide him
with adequate time to review certain medical records and prepare a defense. This claim is without merit.
The applicable standard of review has been stated thusly:
The granting or refusal of a request for a continuance is vested in the discretion of the trial court. The denial of a
continuance will be revered on appeal only upon a showing of palpable and manifest abuse of discretion. A simple
allegation that more preparation is necessary for investigative and trial preparation will not suffice in demonstrating
an abuse of discretion. Mere shortness of time in which to prepare does not mandate the granting of a continuance.
An Appellant must be able to show specifically in what manner he was unable to prepare his defense or how he would
have prepared differently had he been given more time. We will not reverse a denial of a motion for continuance in
the absence of prejudice.
Commonwealth v. Brown, 505 A.2d 295, 298 (Pa. Super. 1986) (collecting cases).
Shortly after the request for continuance and its denial, the trial Court had defense counsel identify the specific persons or
departments within UPMC Western Psychiatric Institute and Clinic (WPIC) that had yet to provide requested records. The Trial
Court then issued separate court orders directing them to provide Appellant’s records to defense counsel forthwith3. Those records
were received by defense counsel and provided to the expert prior to trial and/or her testimony. There was no indication from Dr.
Ziv during her testimony that she did not have a complete enough record of Appellant’s history to perform her evaluation, or that
she was hampered by the more recent disclosure of some of Appellant’s records. (T.T. 305-471).
Consequently Appellant cannot allege any specific prejudice consistent with applicable law that amounts to Trial Court error
in this regard. See Brown, 505 A.2d at 298.
Appellant’s claim is without merit.
V.
Appellant’s fifth claim is that the Trial Court erred in denying Appellant’s Post-Sentence Motion challenging the weight of the
evidence and by not granting Appellant a new trial. Appellant’s claim is without merit.
The limited standard of review that applies presently has been stated as follows:
When a trial court denies a weight-of-the-evidence motion, and when an appellate then appeals that ruling to this
Court, our review is limited. It is important to understand we do not reach the underlying question of whether the
verdict was, in fact, against the weight of the evidence. We do not decide how we would have ruled on the motion and
then simply replace our own judgment for that of the trial court. Instead, this Court determines whether the trial court
abused its discretion in reaching whatever decision it made on the motion, whether or not that decision is the one we
might have made in the first instance.
Commonwealth v. Stays, 40 A.3d 160, 169 (internal citation and quotation omitted) (weight given to trial evidence is a choice for
the fact finder and trial court is not to grant relief on a weight of evidence claim unless the verdict is so contrary to the evidence
as to shock one’s sense of justice).
Appellant’s claim, as with so many others, is founded on the fact that jury rejected his claim that he was incapable of forming
the specific intent to kill. While it was clear that Appellant had a history of mental illness and treatment, it was equally clear that
his mental illness did not impair his ability to plan and premeditate, and thus form the required specific intent to kill that was
apparent in this horrific killing of Lisa Maas. (T.T. 191-193, 502-515). The jury had the opportunity to evaluate the diminished
capacity defense offered by Appellant, as well as the testimony offered by the Commonwealth to prove that Appellant had the
requisite intent for first degree murder. The Commonwealth’s evidence included the rebuttal testimony of a forensic pathologist,
as well as Appellant’s statement wherein he detailed the killing. See supra at pp.6-9. See Trill, 543 A.2d at 1112 (jury determines
credibility, weight, and effect of conflicting expert testimony; and may consider Appellant’s actions, conversations and statements
at the time of the killing).
Appellant’s disappointment that the jury did not accept the conclusion of his expert does not translate into cognizable weight of
pa g e 4 5 4
volume 160
no. 22
the evidence claim. This claim is without merit.
VI.
In his final claim Appellant alleges that the Trial Court abused its discretion by not striking the testimony of Dr. Bruce Wright
(Commonwealth expert). Appellant claims that Dr. Wright’s opinion was not based on scientific or specialized knowledge beyond
that of an average layman. This claim is without merit.
The applicable standard of review for this claim has been stated thusly,
The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed
on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may
not be found merely because an appellate court might have reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
Commonwealth v. Johnson, 42 A. 3d 1017, 1027 (Pa. 2012) (internal citations and quotations omitted).
Dr. Wright was a board certified and eminently qualified forensic psychiatrist. (T.T. 479-487). In fact Appellant recognized that
by stating at the end of defense voir dire of Dr. Wright as follows, “I don’t have any more questions with regard to qualifications
your honor, and I have no objection to his being admitted as an expert in the field of psychiatry”. (T.T. 487).
Any even handed review of Dr. Wright’s testimony demonstrates that Dr. Wright: (1) performed an exhaustive review of the
records associated with Appellant’s mental health history; (2) analyzed those records with insight, clarity, and consistent with
psychiatric standards; (3) interviewed Appellant on two occasions; (4) read and evaluated the reports associated with the killing
of Lisa Maas; (5) listened thoughtfully to the testimony the defense expert; and (6) was able to communicate clearly and succinctly
to the jury his opinion on the issue of diminished capacity. (T.T. 491-550).
While there was no question that Dr. Wright placed importance on Appellant’s statement as to the killing of Lisa Maas, nonetheless his testimony and the basis for his opinion were far more comprehensive than Appellant’s present characterization. See Trill,
543 A. 2d at 1112 (appellate court rejected request to compare testimony of competing experts as jury passed on credibility and
weight of that testimony). 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 13, 2012
1
18 Pa. C.S.A. § 2502(a).
2
18 Pa. C.S.A. § 3502(a).
3
The Trial Court issued 3 orders on March 2, 2011 and a fourth on March 17, 2011 to a doctor and various sub-entities within
WPIC.
Commonwealth of Pennsylvania v.
Dayron Malloy
Criminal Appeal—Homicide—Sufficiency—Conspiracy—Hearsay—Waiver—Accomplice Liability—Missing Witness—
Continuance—Mistrial
No. CC 200708991. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 13, 2012.
OPINION
PROCEDURAL HISTORY
Dayron Malloy (Appellant) was charged by Criminal Information (200708991) with: Criminal Homicide1, Criminal Attempt
(Homicide)2, Aggravated Assault3, Recklessly Endangering Another Person4, Criminal Conspiracy5.
Appellant proceeded to a jury trial with co-defendant Tawan Watley on June 3, 2009. On June 8, 2009, Watley pled guilty to
Third Degree Murder and related charges. Appellant went to trial on June 11, 2009 and was found guilty of First Degree Murder,
Criminal Attempt (Homicide), Criminal Conspiracy (first degree murder), and Aggravated Assault.
Appellant was sentenced on September 10, 2009 to consecutive periods of incarceration as follows:
First Degree Murder – Life without the possibilty of parole;
Criminal Attempt – 7 ½ - 15 years;
Aggravated Assault – no further penalty.
Post Sentence motions were filed and denied. This appeal followed.
Matters Complained of on Appeal
Appellant alleges the following errors on appeal and they are set forth exactly as he states them:
1. The evidence was insufficient to convict Mr. Malloy on Count 9 - Criminal Conspiracy (First Degree Murder). The
Commonwealth failed to prove beyond a reasonable doubt that Mr. Malloy entered into an agreement to commit or aid
a criminal act with Watley, with a shared criminal intent.
november 2, 2012
pa g e 4 5 5
2. The evidence was insufficient to convict Mr. Malloy on Count 7 – First Degree Murder. The direct and circumstantial evidence, as well as the Commonwealth’s theory of the shootings, showed that Watley was the gunman, however,
the Commonwealth failed to prove beyond a reasonable doubt that Mr. Malloy had the specific intent to kill.
3. The evidence was insufficient to convict Mr. Malloy on Count 4 – Aggravated Assault. The direct and circumstantial evidence, as well as the Commonwealth’s theory of the shootings, showed that Watley was the gunman.
However, the Commonwealth failed to prove beyond a reasonable doubt Mr. Malloy possessed the requisite
intent to cause serious bodily injury via the use of a deadly weapon to another, or that he acted recklessly under
the circumstances manifesting an extreme indifference to the value of human life.
4. The evidence was insufficient to convict Mr. Malloy on Count 8 – Criminal Attempt (First Degree Murder). The
direct and circumstantial evidence, as well as the Commonwealth’s theory of the shootings showed that Watley was
the gunman. However, the Commonwealth failed to prove beyond a reasonable doubt that Mr. Malloy intended to
commit the offense, and that he took a substantial step towards completion of the offense.
5. The evidence was insufficient to convict Mr. Malloy on Count 7 – First Degree Murder under accomplice liability
theory. The direct and circumstantial evidence as well as the Commonwealth’s theory of the shootings showed that
Watley was the gunman. The Commonwealth failed to prove beyond a reasonable doubt that Mr. Malloy intended to
aid or promote the crime of first degree murder, and that he actively participated in the offense by soliciting, aiding,
or agreeing to aid Watley.
6. The evidence was insufficient to convict Mr. Malloy on Count 4 – Aggravated Assault; Count 8 – Criminal Attempt;
and Count 9 – Criminal Conspiracy under accomplice liability theory. The direct and circumstantial evidence as well
as the Commonwealth’s theory of the shootings showed that Watley was the gunman. The Commonwealth failed to
prove beyond a reasonable doubt that Mr. Malloy intended to aid or promote any of the underlying crimes, and that
he actively participated in any of the offenses by soliciting, aiding, or agreeing to aid Watley.
7. The Trial Court abused it’s discretion in not granting APD Patarini’s motion for continuance, after the
Commonwealth rested its case, based on the circumstances surrounding Michael Houghton. Houghton was the critical
defense witness because the sum and substance of his testimony would have demonstrated that Mr. Malloy had no
involvement whatsoever in the shootings. At the same time, Houghton was a crucial witness for the Commonwealth.
Prior to trial, Houghton was incarcerated in the Allegheny County jail. The prosecutor personally assured the defense
that he had taken the necessary steps to ensure that Houghton was not released and would be able to testify. The
defense reasonably relied on the prosecutor’s assurance and did not subpoena Houghton for trial. However, in the
middle of the proceedings, it came to light that the prosecutor completely failed to make good on his assurance,
Houghton was released from the Allegheny County jail, and could not be found. The Commonwealth was solely to
blame for Houghton’s’ unavailability. Despite the uncertain of Houghton’s status, the trial proceeded. However, once
the Commonwealth rested its case, it was incumbent that the defense be granted a continuance. The defense needed
a reasonable fixed period of time to make a complete and thorough search for Houghton. Unless Houghton’s status
could be determined with certainty, APD Patarini had absolutely no idea what his defense would be. Indeed, APD
Patarini was unable to make an opening statement because he could not reasonably tell the jury that Houghton would
testify for the defense, then ultimately not produce him. Despite all of these sound reasons for a continuance, the Trial
Court denied APD Patarini’s request and ordered him to push forward and mount whatever defense he could muster.
This was an abuse of discretion and violated Mr. Malloy’s federal and state constitutional rights to present a complete
defense and a fair trial.
8. The Trial Court abused its discretion in not granting APD Patarini’s motion for a mistrial after Watley entered a
guilty plea in the middle of the proceedings. This request was also renewed in post-sentence motions. First, it was
unduly prejudicial to order Mr. Malloy’s trial to continue after Watley entered a guilty plea in the middle of proceedings. The jury was not allowed to know why Watley was no longer in the courtroom and his case was no longer under
consideration Thus, the jury was left to speculate as to the reasons for Watley’s withdrawal from the trial. This was
bolstered by the fact that, during deliberations, the jury specifically asked whether it could have more information
about the fate of Watley and his case. Second, during the course of trial, Attorney Stockey posed a line of questions,
and elicited testimony from Lenora Maiola, indicating that Mr. Malloy was involved in drug activity. This was entirely
irrelevant, unduly prejudicial, and entirely antagonistic to Mr. Malloy’s defense. Third the Commonwealth was solely
to blame for the fact that Michael Haughton, the critical defense witness, was unavailable for trial. This was because
the prosecutor, despite his personal assurance to the defense completely failed to ensure that Houghton was not
released from the Allegheny County jail. Consequently, APD Patarini had absolutely no idea what his defense would
be. Indeed, APD Patarini was unable to make an opening statement because he could not reasonably tell the jury that
Houghton would testify for the defense, and then ultimately not produce him. Despite all of these sound reasons for
a mistrial, the Trial Court denied APD Patarini’s request. This was an abuse of discretion and violated Mr. Malloy’s
federal and state constitutional rights to present a complete defense and a fair trial.
9. The Trial Court abused its discretion in not allowing the defense to present the testimony of Attorney James Sheets.
Attorney Sheets would have testified that Watley personally told him that he acted alone, committed the shooting on
his own accord, and Mr. Malloy was not involved whatsoever. The Trial Court ruled that his testimony constituted
inadmissible hearsay. However, this ruling was wrong because Watley’s statement amounted to a statement against
penal interest, which is a well recognized exception to the hearsay rule.
10. The Trial Court abused its discretion in not allowing the defense to introduce a letter written by Watley, after he
entered a guilty plea, stating that he acted alone, committed the shootings on his own accord, and Mr. Malloy was not
involved whatsoever. The Trial Court ruled that this testimony constituted inadmissible hearsay. However, this ruling
was wrong because Watley’s statement amounted to a statement against penal interest, which is a well-recognized
exception to the hearsay rule.
pa g e 4 5 6
volume 160
no. 22
11. The Trial Court abused its discretion in allowing Detective Steve Hitchings to testify as to Robert Simons’
statements made to him before September 2007. Simons, who took the stand immediately before Detective
Hitchings, never testified as to such statements. Hitching’s testimony was pure inadmissible hearsay and the Trial
Court erred in ruling otherwise. Furthermore, the fact that Simons was available for further cross-examination
did not change the inadmissible nature of Hitching’s testimony. Likewise, the Trial Court’s reasoning that
Detective Hitching’s testimony was “provisionally” admitted, subject to some further cross-examination of Simons
as to what he did or did not tell Detective Hitchings, did not change the inadmissible nature of his testimony. All
things considered, the Trial Court’s ruling was wrong and an abuse of discretion.
Facts
In April of 2007 Appellant purchased a .38 caliber revolver “off the street” for $200. The purchase was made from a friend of
victim Brian Kurpil, and Appellant did not know the first or last name of the seller. (T.T. 388). At that time Kurpil was living in the
home of Michael Derrick at 2935 Arlington Avenue, Pittsburgh, Allegheny County. Kurpil and Appellant were known to each other
as Appellant often visited and stayed at the nearby home of Lynn Maiola who was a close friend of Kurpil. (T.T. 247-248, 267).
Kurpil, Maiola, and a second victim, Robert Simons, used drugs on a daily basis. (T.T. 254, 267).
After purchasing the weapon, Appellant kept the gun at Kurpil’s residence on Arlington Avenue. (T.T. 250, 258, 389). A dispute
arose about the total purchase price for the gun, and on or about April 17, 2009 Kurpil gave the gun back to the seller because the
money Appellant paid was not sufficient. (T.T. 389). In the early evening hours of April 17th Appellant was at the Maiola’s residence discussing the weapon and its possible absence from Kurpil’s residence with a third person, Johnny Kolb. (T.T. 250, 256).
Appellant was upset about the gun and stated in Maiola’s presence that if the gun was gone he was going to go back and get another
gun and “take care” of Kurpil. (T.T. 250, 258-259, 273, 389).
Appellant left Maiola’s residence between 7:20 and 8:20 P.M. (T.T. 260). At approximately 10:00 P.M. Appellant and his
cousin, Tawan Watley, went to 2935 Arlington Avenue to confront Kurpil about the weapon. (T.T. 251-253, 389). They
entered the living room of the residence where Kurpil and Simon were present, seated on the couch and chair respectively.
(T.T. 70-72, 151).
For several minutes Appellant and Watley confronted Kurpil about the missing weapon and his response apparently did not
satisfy Appellant or Watley. (T.T. 153, 389). As a result Watley first turned and shot Simons three times in the head, he then shot
Kurpil three times in the head. (T.T. 151-156). Appellant and Watley fled together, and Michael Derrick discovered the horrific
scene a few moments later when he returned home. (T.T. 60-65). Derrick called 911 and police and medics arrived shortly thereafter. (T.T. 62, 74-76). Kurpil was pronounced dead at the scene and Simons was hospitalized with massive head trauma. (T.T. 7680, 86, 304-309).
Brian Kurpil suffered three gunshot wounds to the head and associated massive internal trauma to his brain. Kurpil was
immediately incapacitated and died of the gunshot wounds to his head/brain. (T.T. 366-374). Robert Simons miraculously
survived but suffered severe head and brain injury, and one of the bullets remains dangerously lodged in his brain. (T.T. 160-162,
192-193).
The police investigation led first to the identification and arrest of Watley and later to the identification and arrest of Appellant.
(T.T. 22-228). Appellant was charged and the case proceeded as noted hereinabove.
Discussion
I.
In his first issue Appellant alleges that the evidence was insufficient to convict Appellant of Criminal Conspiracy To Commit
First Degree Murder. This claim is without merit.
In evaluating a sufficiency of evidence claim the reviewing court determines whether the evidence admitted at trial viewed in
a light most favorable to the Commonwealth, and all reasonable inferences drawn therefrom, support the jury’s findings of the
elements of the offense beyond a reasonable doubt. Commonwealth v. Overby, 836 A.2d 20, 22 (Pa. 2003).
The Pennsylvania Supreme Court has succinctly stated the law applicable to this issue, as well as Appellant’s second issue,
as follows:
To convict a defendant of first-degree murder, the jury must find that (1) a human being was unlawfully killed; (2) the
defendant is responsible for the killing; and (3) the defendant acted with a specific intent to kill. Specific intent to kill
can be established through circumstantial evidence, such as the use of a deadly weapon on a vital part of the victim’s
body. Further, to prove conspiracy, the trier of fact must find that: (1) the defendant intended to commit or aid in the
commission of the criminal act; (2) the defendant entered into an agreement with another… to engage in the crime
and (3) the defendant or one more of the co-conspirators committed an overt act in furtherance of the agreed upon
crime. Finally, each member of a conspiracy to commit homicide can be convicted of first-degree murder regardless
of who inflicted the fatal wound.
Commonwealth v. Montalvo, 956 A.2d 926, 932-933 (Pa. 2008).
Here Appellant was angered that the gun he kept at Kurpil’s residence had been returned to the seller without Appellant’s
knowledge, and he clearly indicated that he was going to get another gun and take care of Kurpil. (T.T. 250, 258-259, 273).
Approximately two hours later Appellant entered Kurpil’s residence with Watley, his cousin and known associate. There Appellant
and Watley confronted Kurpil about the missing weapon. Kurpil was unable to placate Appellant in that regard so Watley shot
Kurpil three times in the head killing him almost instantaneously. (T.T. 153, 389). Appellant and Watley fled the scene together. See
Commonwealth v. Schoff, 911 A.2d 147, 160 (Pa. Super 2006) (an agreement can be inferred from a variety of circumstances including,
but not limited to, the relation between parties, knowledge of and participation in the crime, and the circumstances and conduct of
the parties surrounding the criminal episode).
Here, Appellant: (1) was the offended person; (2) threatened to secure another gun; (3) threatened to “take care” of Kurpil; (4)
in a relatively short period of time secured the participation of Watley and his weapon; (5) went to Kurpil’s residence with Watley;
(6) confronted Kurpil with Watley at his side; (7) stood at Watley’s side as Watley shot both Kurpil and Simons; and (8) fled with
Watley in the immediate aftermath. This was sufficient evidence of a conspiracy to commit first degree murder. See Montalvo, 956
A.2d at 933-934 (evidence sufficient to support defendant’s conviction for conspiracy to commit first degree murder where defen-
november 2, 2012
pa g e 4 5 7
dant was in a dispute with victim immediately prior to killing, engaged in a discussion with his brother about killing the victim and
went to victim’s apartment with his brother where victim was killed).
Appellant’s claim is without merit.
II.
Appellant next claims that the evidence was insufficient to convict Appellant of first degree murder. This claim is without
merit.
The Trial Court has set forth the applicable standard of review as well as a succinct statement of the law that applies in this
instance hereinabove, and respectfully incorporates that by reference. See supra pp. 9-11, Overby, 836 A.2d at 22, Montalvo, 956
A.2d at 932-933.
While there was no question that co-defendant Watley was the sole shooter in this instance, the jury found that Appellant had
the shared intent to commit first degree murder. That determination finds ample support in the evidence presented including
Appellant’s statement that he was going to get another gun and take care of Kurpil, as well as acting on that intent by securing the
presence and participation of Watley as detailed hereinabove6.
Appellant’s claim is without merit.
III.
Appellant’s third claim is that the evidence was insufficient to convict Appellant of Aggravated Assault. This claim is without
merit.
It is well established that:
The general rule of law pertaining to the culpability of conspirators is that each individual member of the conspiracy
criminally responsible for the acts of his co-conspirators committed in furtherance of the conspiracy. The co-conspirator rule assigns legal culpability equally to all members of the conspiracy. All co-conspirators are responsible for
actions undertaken in furtherance of the conspiracy regardless of their individual knowledge of such actions and
regardless of their individual knowledge of such actions and regardless of which member of the conspiracy undertook
the action.
Commonwealth v. Galindes, 786 A.2d 1004, 1011(Pa. Super. 2001)(because defendant and co-conspirator were engaged in a
conspiracy to commit burglary, the act of one of them shooting at victim renders the other co-conspirator criminally responsible
for that act).
Appellant does not, nor can it be disputed that victim (Robert Simons) suffered serious bodily injury. (T.T. 160-162, 192-193).
Appellant claims that since it was Watley who inflicted those injuries by shooting Simons in the head three times, he is not criminally responsible for that act. As discussed hereinabove the evidence showed, and the jury determined, that Appellant and Watley
conspired to commit the crime of first degree murder. Supra pp. 7-11. Simons was shot during the course of that conspiracy and in
furtherance thereof. See Commonwealth v. Orlowski, 481 A.2d 952, 960 (Pa. Super. 1984) (as a member of the conspiracy defendant was responsible for the natural and probable consequences of the commission of the object crime, including the killing of an
eyewitness who had no part in the dispute between the parties).
Appellant’s claim is without merit.
IV.
Appellant’s fourth claim is that the evidence was insufficient to convict Appellant of Criminal Attempt (First Degree Murder).
This claim is without merit.
Appellant again claims that since Watley was the sole shooter in this instance the evidence otherwise did not demonstrate that
he had the requisite intent, nor did he take a substantial step toward the commission of this offense.
The law applicable to this charge is guided by principles that attach to accomplice liability for first degree murder; and have
been stated thusly:
To obtain a first degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully
killed, the defendant did the killing, and the defendant acted with a specific intent to kill. Moreover, the jury may
convict the defendant as an accomplice so long as the facts adequately support the conclusion that he or she aided,
agreed to aid, or attempted to aid the principal in planning or committing the offense, and acted with the intention to
promote or facilitate the offense. The amount of aid need not be substantial so long as it was offered to the principal
to assist him in committing or attempting to commit the crime. However, simply knowing about the crime or being
present at the scene is not enough. In evaluating whether the evidence was sufficient to support the conviction, we
bear in mind that: the Commonwealth’s burden may be sustained by means of wholly circumstantial evidence; the
entire trial record is evaluated and all evidence received against the defendant considered; and the trier of fact is free
to believe all, part, or none of the evidence when evaluation witness credibility.
Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007) (relative to accomplice liability for first degree murder, the
Commonwealth must prove that the defendant harbored a specific intent to kill) (citations, footnote, and quotations omitted).
Consequently while it was necessary that Appellant had the shared requisite mental state with Watley, it was not necessary that
Appellant himself take that substantial step. Here Watley shot Simons in the head three times, that certainly was a substantial step
toward the commission of first degree murder. The Trial Court has detailed Appellant’s involvement hereinabove and incorporates
that by reference for present purposes. The totality of those circumstances allowed the jury to conclude that Appellant possessed
the requisite mental state and they so found. See generally, Commonwealth v. Holley, 945 A.2d 241 (Pa.Super. 2008) (an individual
is guilty of attempted murder if he commits an act that is a substantial step towards commission of the crime with a specific intent
to kill).
Appellant’s claim is without merit.
V. & VI.
Appellant’s fifth and sixth claims are that the evidence was insufficient to convict him of first degree murder, aggravated
assault, criminal attempt and criminal conspiracy under an accomplice liability theory.
The Trial Court has thoroughly discussed the merits of these issues hereinabove and respectfully request that those discus-
pa g e 4 5 8
volume 160
no. 22
sions be incorporated by reference for present purposes. Appellant’s claims warrant no further discussion except to note the
impossibility of discussion of parts of his claims of error, e.g. accomplice liability to establish criminal conspiracy.
VII. & VIII.
In his next two claims Appellant alleges that the Trial Court erred in not granting a continuance, and in not granting his motion
for a mistrial. These claims have been waived.
Appellant’s seventh claim totals 39 lines and 308 words. Appellant’s eighth claim totals 36 lines and 296 words. The lengths of
these two claims are flagrantly violative of Pa.R.A.P 1925(4)(iv) (requirements; waiver) (the statement should not be redundant or
provide lengthy explanations as to any error).
Appellant has waived issues VII and VIII.
IX.
In his next claim Appellant alleges that the Court erred in ruling that certain evidence was inadmissible hearsay rather than an
admissible declaration against interest. This claim is without merit.
As to the admissibility of evidence the Pennsylvania Supreme Court has stated, “we begin, again, with black letter law – the
admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court will only reverse
upon a showing that the trial court abused its discretion”. Commonwealth v. Bridges, 757 A.2d 859, 874 (Pa. 2000).
Appellant made the following offer of proof concerning the evidence at issue:
The Court: Do you want to provide that offer now?
Mr. Patarini: Sure. Mr. Sheets will testify that in 2008 he was representing Dayron Malloy. They were in the process
of picking a jury in front of Judge O’Toole. At one point in time while they were in passing, Tawan Watley said to James
Sheets, why is Dayron picking a jury, and Mr. Sheets would say that he said to Mr. Watley, because he’s charged with
homicide, and he said why is he charged he wasn’t even there.
The Court: They were picking a jury on this case?
Mr. Patarini: Yes.
The Court: Separately or at the same time?
Mr. Patarini: At the same time. The obvious inference is how would he know he wasn’t there unless he was there.
(T.T. 406-407).
Pa.R.E. 804 (b)(3) STATEMENT AGAINST INTEREST provides:
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest,
or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. in a criminal case, a statement tending to expose the declarant to criminal liability is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Pa.R.E. 804 (b)(3).
Here co-defendant Watley’s purported statement to attorney Sheets, “why is he [Malloy] charged when he wasn’t even there”,
does not inculpate its declarant (Watley) with the required specificity to be considered a declaration against interest. See
Commonwealth v. Hutchinson, 434 A.2d 740, 745 (Pa. Super. 1981) (only those admissions containing specific incriminating facts
fall within the ambit of this exception). See also Commonwealth v. Campbell, 509 A.2d 394 (Pa. Super. 1986), appeal denied, 532
A.2d 436 (1987) (statement of one defendant who admitted to shooting and attempted to exonerate his brother inadmissible in
brother’s trial).
Furthermore, the Comment to this rule provides that in a criminal case the rule requires, “corroborating circumstantial
evidence of trustworthiness before an assertion against the declarant’s penal interest can be introduced in a criminal case”.
Comment, Pa.R.E. 804 (b)(3). See Commonwealth v. Bracero, 528 A.2d 936 (1987) (declarations against penal interest are
admissible as an exception to the hearsay rule only when there are circumstances that provide clear assurance that such declarations are trustworthy and reliable).
Here the circumstances contraindicate any notion that Watley’s statement to attorney Sheets was trustworthy and reliable.
The statement was allegedly made in the midst of jury selection on September 3, 2008. (T.T. 406-407); See Reproduced
Record, jury selection sheet, September 3, 2008. Yet the very next day, September 4, 2008, attorney Sheets requested and was
granted a postponement based on his representation that Watley “has decided to testify for the Commonwealth”. See
Reproduced Record at Defense Postponement, September 4, 2009. The sequence and content of the events on September 3-4,
2008 clearly demonstrate lack of reliability and trustworthiness - one day Watley is purportedly exculpating Appellant and
the next prepared to testify against him. See Commonwealth v. Robinson, 780 A.2d 675, 676 (Pa. Super. 2001) (where declarant
was actually engaged in a criminal lifestyle, his telling a story to help a friend or relative “beat the rap” cannot be viewed as
trustworthy and reliable).
As a further factor reflecting on his lack of trustworthiness and reliability, Watley had the opportunity, fully immunized after
pleading guilty, to testify and exculpate Appellant consistent with his earlier statement but he refused to do so. (T.T. 382-383, 402403). See Commonwealth V. Colon, 337 A.2d 554, 558 (Pa. 1975) (plurality opinion), cert. denied 423 U.S. 1056 (1976) (co-defendant’s
assertion of a privilege not to testify about the subject of a prior statement does not transform that statement into an admissible
declaration against interest – “by telling the police he acted alone [co-defendant declarant] admitted no additional crime, subjected
himself to no additional punishment”).
Appellant’s claim is without merit.
XI.
In his final claim Appellant avers that the Trial Court abused its discretion by allowing a detective (Steve Hitchings) to testify
as to the date when a Commonwealth witness (Robert Simons) made a certain disclosure wherein he indicated there were two
persons rather than three persons involved in the incident. This claim is without merit.
november 2, 2012
pa g e 4 5 9
At trial Commonwealth witness Robert Simons testified that there were two men involved in the incident, and only one
shooter (Watley). (T.T. 151-156). In his initial statements to the police and at the preliminary hearing Simons indicated that
there were three men involved and multiple shooters. (T.T. 175-184, 191-208, 203, 208). At trial, in an attempt to undermine
Simon’s credibility, both defense attorneys extensively cross-examined Simons about the changes in his account of what
occurred. (T.T. 175-184, 191-208). During his questioning of Simons counsel for Appellant suggested that Simons came to the
conclusion that there were only two persons involved and one shooter by virtue of discussions he had with the district attorney, the police, or from information “out on the street”. (T.T. 183). Furthermore the cross-examination of Detective Hitchings
emphasized the time frame and lack of Simons’ disclosure despite multiple interviews and court filings in the aftermath of
the incident. (T.T. 228-236). It was within this procedural context that the Trial Court permitted the Commonwealth on redirect of Detective Hitchings, to inquire as to when Simons first made the correction from three persons to two persons and
one shooter. (T.T. 237-238). This did not call for a hearsay response. See generally Pa.R.E. 801, comment, (c) (there are many
situations in which evidence of an out-of-court statement is offered for a purpose other than to prove the truth of the matter
asserted).
While Detective Hitchings’ answer was unresponsive to the question, there was no objection to his response and the Trial Court
immediately instructed Detective Hitchings to answer the precise question as to when Simons first corrected his earlier accounts
regarding the incident. (T.T. 238)7.
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 13, 2012
1
18 Pa. C.S.A. § 2501(a)
2
18 Pa. C.S.A. § 901(a)
3
18 Pa. C.S.A. § 2702(a)(1)
4
18 Pa. C.S.A. § 2705
5
18 Pa. C.S.A. § 903(a)(1)
6
The Trial Court made it very clear to the jury in its final instructions that Appellant had to possess the requisite intent to be
convicted of first-degree murder as an accomplice or conspirator. (T.T. 490-492, 500-504). Commonwealth v. Wayne, 720 A.2d
457 (Pa. 1998).
7
In any event the statement made to Hitchings by Simons in September 2007 was admissible as a prior consistent statement in
light of the cross-examination of the witness by defense counsel. See Commonwealth v. Whiting, 668 A.2d 151, 157-158 (Pa. Super.
1995) (prior consistent statements are admissible to rehabilitate a witness’ credibility and to rebut accusations or suggestions of
recent fabrication or corrupt motives).
Commonwealth of Pennsylvania v.
Jennifer Anthony
Criminal Appeal—Restitution—Untimely Modification—Failure to Prove Amount
No. CC 201009952. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.
Borkowski, J.—July 17, 2012.
OPINION
PROCEDURAL HISTORY
Jennifer Anthony, (Appellant) was charged by Criminal Information (201009952) with one count each of Robbery1 and Criminal
Conspiracy2. On February 8, 2011 Appellant pled guilty to one count of Simple Assault3 and one count of Theft by Unlawful Taking4.
In exchange for her plea to those charges Appellant was sentenced to a period of 2-4 months incarceration on the simple assault
charge, she was given credit for time served and paroled forthwith. Appellant was also sentenced to a period of probation of one
year and to pay restitution of $196, which was subject to modification upon agreement of the parties, or if necessary, a hearing to
determine the amount.
On February 18, 2011 the Commonwealth filed a motion to modify sentence. A hearing was held on that motion on April 15, 2011
and thereafter on May 2, 2011, the Court entered a written order granting an additional amount of restitution of $476.88. This
appeal followed.
STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
Appellant raises the following matters as error and they are set forth exactly as the Appellant states them:
1. Whether the sentencing court erred in ruling that there was sufficient evidence to support a restitution order of
$476.68 to UPMC Health Plan when the letter allegedly supporting the restitution amount was never offered into or
accepted into evidence and the Commonwealth never presented evidence but did present argument? See hearing transcript of April 5, 2011.
pa g e 4 6 0
volume 160
no. 22
2. Whether the sentencing court abused its discretion by granting the Commonwealth’s request to modify the restitution order in violation of Commonwealth v. Oritz, 854 A.2d 1280 (Pa. Super. 2004) when the Commonwealth knew or
should have known of the restitution that it later requested at the time of the negotiated plea?
3. Whether the sentencing court abused its discretion by allowing the Commonwealth to present a letter and/or
argument based upon inadmissible hearsay in violation the Pennsylvania Rules of Evidence? (HT, 4/5/11, 3-4).
FACTS
On May 23, 2010, the victim, Corina Scheffer, was on a bus in the City of Pittsburgh, Allegheny County. (G.P.T. 7)5. Apellant and
two companions, for no known reason, verbally confronted Scheffer using, rude, insulting and profane language toward her.6
Scheffer became upset and tried to exit the bus, however as Scheffer attempted to get around the three women, Appellant punched
the victim in the face twice. (G.P.T. 7)
After being struck, Scheffer dropped her cell phone. Appellant picked up the phone, exited the bus, and fled the area with her
two companions. Scheffer sustained some minor injuries as a result of the assault. (G.P.T. 7)
Appellant and her two cohorts were arrested and charged as noted hereinabove.
DISCUSSION
I.
In her first claim Appellant avers that the Trial Court erred in ruling that there was sufficient evidence to support a restitution
order of $476.68. This claim is without merit.
The Pennsylvania Superior Court has summarized the standard of review as follows:
In the context of criminal proceedings, it is well-settled that an order of restitution is not simply an award of damages,
but, rather, a sentence. Herein, McKee argues that this Court’s order reversing his judgment of sentence rendered the
trial court’s order of restitution a nullity. An appeal from an order of restitution abased upon a claim that a restitution
is unsupported by the record challenges the legality, rather than the discretionary aspects of sentencing. When we
address the legality of a sentence, our standard of review is plenary and is limited to determining whether the trial
court erred as a matter of law.
Commonwealth v. McKee, 38 A.3d 879, 880-881 (Pa. Super. 2012) (citations and quotations omitted).
Here at the time of Appellant’s plea, and as part of Appellant’s sentence, Appellant acknowledged that she punched the victim
twice in the face and took her cell phone. The Trial Court ordered $196 restitution to the victim as it related to the theft and
damage to her cell phone. (G.P.T. 11), see also Commonwealth Motion to Modify Sentence, paragraph 2. At the time of the plea
and sentencing, Appellant agreed that the amount of restitution was subject to modification upon agreement of the parties or
hearing if no agreement was reached. (G.P.T. 11).
In the motion to modify sentence, the Commonwealth attached a copy of a letter from UPMC Health Plan stating that
UPMC paid $476.68 for medical claims as it related to the assault on Corina Scheffer. See Commonwealth Motion to Modify
Sentence, paragraphs 3, 4 and attachment. That motion was filed on February 8, 2011 and thus Appellant was on notice that
the Commonwealth was seeking $476.68 based on medical treatment administered to Ms. Scheffer as a result of Appellant’s
unprovoked attack. Appellant did not file a written response to the Commonwealth’s motion. Appellant did not object to the
accuracy of the Assistant District Attorney’s representations as to the amount or that it was expended for the victim’s medical care. Rather Appellant objected to the lack of authentication and hearsay nature of a document that the Commonwealth
was not seeking to introduce, although it cannot be disputed that the Trial Court ultimately relied on that information. (H.T.
3-4)7, see also infra pp 11-12.8 See Commonwealth v. Medley, 725 A.2d 1225, 1228-1230 (Pa. Super. 1999) (trial court did
not err in admitting at sentencing hearsay information obtained from North Carolina authorities regarding defendant’s
prior convictions).
Thus, the trial court, based on the record before it, had sufficient evidence to support its determination of restitution, to-wit:
(1) the admissions of appellant in the guilty plea proceeding; (2) the unrebutted content of the Commonwealth’s motion to modify
sentence; and, (3) the unrebutted averments of the assistant district Attorney at the modification hearing.
The Medley Court stated:
However, a proceeding held to determine sentence is not a trial, and the court is not bound by the restrictive rules of
evidence properly applicable to trials. Commonwealth v. Orsino, 197 Pa. Super. 306, 178 A.2d 843, 846 (Pa. Super.
1962)(sentencing court has wide latitude in considering facts, regardless of whether such facts are produced by
witnesses who the court sees and hears); Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224, 229, 144 A.2d 367,
371 (1958) (same); Commonwealth v. Petrillo, 340 Pa. 33, 47, 16 A.2d 50, 58 (1940) (same). Rather, the court may
receive any relevant information for the purposes of determining the proper penalty.
Although sentencing proceedings must comport with due process, the convicted defendant need not be accorded “the
entire panoply of criminal trial procedural rights.” In fact, [t]he due process clause should not be treated as a device
for freezing the evidential procedure of sentencing in the mold of trial procedure.
Medley, 725 A.2d at 1229 (some internal citations and quotations omitted).9
Appellant’s claim that there was not sufficient evidence to support the Trial Court’s determination is without merit.
II.
In her second claim Appellant avers that the Trial Court abused its discretion by granting the Commonwealth’s request to
modify the restitution order in violation of Commonwealth v. Ortiz, 854 A.2d 1280 (Pa. Super. 2004), when the Commonwealth knew
or should have known of the restitution at the time of the plea. This claim is without merit.
As to the standard of review that applies presently, the Pennsylvania Supreme Court has stated, “[an] abuse of discretion may
not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Commonwealth v.
Johnson, 42 A.3d 1017, 1027 (Pa. Super. 2012)
The Pennsylvania Supreme Court, in a more recent decision than Ortiz, has stated,
november 2, 2012
pa g e 4 6 1
In addition, the sentencing court’s indication it might modify the order does not invalidate it. We recognize the tension between having finality in the restitution order at sentencing and the desire to have a sentence imposed speedily.
Rule 704 of the Rules of Criminal Procedure requires imposition of a sentence within 90 days of conviction or the entry
of a plea. See Pa.R.Crim.P. 704(A)(1). However, full restitution amounts are often undeterminable within the 90-day
period. The Comment to Rule 704 recognizes this and provides that if the full amount of restitution cannot be determined at the time of sentencing, the judge should state on the record the basis for determining the amount set at
sentencing. (“In all cases in which restitution is imposed, the sentencing judge must state on the record the amount
of restitution, if determined at the time of sentencing, or the basis for determining an amount of restitution.”). Further,
the legislature provides sentencing courts broad authority to amend restitution orders at any time, if the court
provides its reasons for doing so as a matter of record. See 18 Pa.C.S. § 1106(c)(3).
Commonwealth v. Dietrich, 970 A.2d 1131, 1134 (Pa. 2009) (footnote and transcript references omitted) (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).
Here, at the time of the entry of the plea and imposition of sentence it was specifically contemplated and agreed upon by
Appellant that in addition to the restitution of $196.00 related to the victim’s cell phone, that an additional amount of restitution
was owed for medical bills. That amount was to be agreed upon by the parties, or if no agreement could be reached, a hearing
would be held. (G.P.T. 2, 11)
The record in that regard states:
THE COURT: Ms. Kozlowski, you are in agreement. I’ll set the restitution today at $196, subject to modification upon
agreement of the parties or hearing, if necessary.
MS. KOZLOWSKI [Counsel for Appellant]: That’s correct, Your Honor.
(G.P.T. 11)
Thus Appellant’s reliance on Ortiz is greatly misplaced. The Ortiz Court was offended by a multiplicity of factors that do not
present themselves herein. In Ortiz: (1) the victim was aware of the amount prior to sentencing; (2) the Commonwealth knew of
the amount within 30 days of sentencing yet waited 7 months before filing a motion to modify sentence; and, (3) the trial court did
not conduct a hearing on the motion, and thus the sentence was unilaterally altered disturbing the finality of what the defendant
believed to be a negotiated plea agreement wherein restitution was set. Ortiz, 854 A.2d at 1282-1284.
In contradistinction, here: (1) the Commonwealth did not know the amount of the victim’s medical bills at the time of sentencing because, although the victim was present at sentencing, her medical bills were paid for by a health insurance plan;
(2) Appellant not only knew that further restitution would be ordered, but specifically agreed to that proposition; (3) the
Commonwealth filed a motion within 30 days of sentencing; and, (4) the Trial Court held a hearing on the matter.
Consequently, although Appellant was dissatisfied with the result, the Trial Court did not abuse its discretion by granting the
Commonwealth’s request to modify restitution.
Appellant’s claim is without merit.
III.10
In her third claim Appellant alleges that the Trial Court abused its discretion by allowing the Commonwealth to present a
letter and/or argument based on inadmissible hearsay. This claim is without merit.
The Trial Court has set forth the applicable definition of an abuse of discretion and respectfully incorporates that for present
purposes. Johnson, 42 A.3d at 1027, supra at p. 7.
In Medley, discussed supra at pp. 6-7, the trial court admitted the hearsay testimony of a detective who secured information
from authorities in North Carolina and Reading, Pennsylvania, to establish the defendants prior convictions and prior record score.
Medley, 725 A.2d at 1229-1230. The Medley court commented on the wide latitude afforded sentencing courts and their ability to
reach a balanced judgment stating,
Moreover, this hearsay testimony is precisely the type of evidence, which former Chief Justice Stern, in Holmes’
Appeal, 379 Pa. 599, 607-608, 109 A.2d 523, 527 (1954), expressly stated “is the right of a court in sentencing to
consider even though such information is obtained outside the courtroom from persons whom the defendant has
not been permitted to confront or cross-examine.” Significantly, the admission of hearsay in sentencing proceedings,
especially those which do not involve a capital crime, is a common occurrence.
Medley, 725 A.2d at 1230.
Here it was established that: (1) Appellant punched the victim in the face two times and that the victim suffered minor injuries
as a result; (2) the Appellant acknowledged that restitution for medical bills associated with treatment for those injuries would be
owed; (3) Appellant was put on notice by virtue of the Commonwealth’s motion that the amount was $476.68; (4) since the amount
was payable to a third party and not the victim, there was no chance for “double dipping” or unjust enrichment; and, (5) common
sense dictated that the amount was entirely consistent with treatment at a medical facility for the nature of the assault and associated minor injuries.
Consequently, the Trial Court did not abuse its discretion in this matter and 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. § 3701 (a)(1)i, ii
2
18 Pa. C.S. § 903(a)(1)
pa g e 4 6 2
volume 160
no. 22
3
18 Pa. C.S. § 2701(a)(1)
4
18 Pa. C.S. § 3921
5
The letters “G.P.T.” refer to the “Guilty Pleas/Sentencings” transcript of February 8, 2011.
6
When pressed for an explanation for the conduct of the women, one defense counsel offered, “Girls behaving badly”. (G.P.T. 12).
7
The letters “H.T.” refer to “Motion to Modify Sentence” transcript of April 5, 2011.
8
The admissibility of this evidence is addressed and established in Section III, infra pp. 11-12.
9
The Trial Court notes that common sense and modern experience indicate that even the most basic and briefest of care at
a medical facility would result in the relatively modest charge of $476.68. See generally Nelson v. Hines, 653 A.2d 634, 638
(Pa. Super. 1995) (common sense dictates that a collision of this severity would lead to severe and painful injuries).