PITTSBURGH LEGAL JOURNAL

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1 VOL. 160 NO. 16 august 10, 2012 PITTSBURGH LEGAL JOURNAL OPINIONS allegheny county court of common pleas Commonwealth of Pennsylvania v. Thomas William Spencer, Flaherty, J....Page 319 Criminal Appeal DUI Sufficiency Probable Cause to Stop the Car Commonwealth of Pennsylvania v. Ryan O Connell, Flaherty, J....Page 321 Criminal Appeal Suppression Ineffective Assistance of Counsel Mistrial Exclusionary Rule Tarai Harris v. Housing Authority of the City of Pittsburgh, Friedman, J....Page 331 Miscellaneous Public Housing Eviction Hearsay Evidence Ruth A. Diecks v. George O. Romanos, Bubash, J....Page 334 Protection from Abuse Commonwealth of Pennsylvania v. Calvin Tucker, Rangos, J....Page 325 Criminal Appeal Sufficiency Self Defense Weight of the Evidence Malice S.B. v. B.P., Hens-Greco, J....Page 337 Custody Commonwealth of Pennsylvania v. John Henry Conrad, Borkowski, J....Page 328 Criminal Appeal Identification Sufficiency Waiver Car Accident Harold G. Morgans v. Cheryl L. Morgans, Hens-Greco, J....Page 339 Counsel Fees

2 PLJ The Pittsburgh Legal Journal Opinions are published fortnightly by the Allegheny County Bar Association 400 Koppers Building Pittsburgh, Pennsylvania Allegheny County Bar Association 2012 Circulation 6,444 PLJ EDITORIAL STAFF Hal D. Coffey...Editor-in-Chief and Chairman Jennifer A. Pulice...Editor Joanna Taylor Stone...Assistant Editor David A. Blaner...Supervising Editor Sharon Antill...Typesetter/Layout OPINION SELECTION POLICY 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. 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, section EditorS Civil Litigation: Scott Leah Criminal Litigation: Victoria Vidt Family Division: Reid Roberts Probate and Trust: Mark Reardon Real Property: Ken Yarsky Civil litigation opinions committee Cecilia Dickson Dennis Kusturiss Austin Henry Bethann Lloyd Harry Kunselman Bryan Neft Criminal litigation opinions committee Marc Daffner Patrick Nightingale Mark Fiorilli James Paulick Deputy D.A. Dan Fitzsimmons Melissa Shenkel Bill Kaczynski Dan Spanovich Anne Marie Mancuso Victoria Vidt family law opinions committee Reid B. Roberts, Chair Sophia P. Paul Mark Alberts David S. Pollock Christine Gale Sharon M. Profeta Mark Greenblatt Hilary A. Spatz Margaret P. Joy Mike Steger Patricia G. Miller William L. Steiner Sally R. Miller

3 august 10, 2012 page 319 Commonwealth of Pennsylvania v. Thomas William Spencer Criminal Appeal DUI Sufficiency Probable Cause to Stop the Car No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Flaherty, J. April 17, OPINION Defendant, Thomas William Spencer ( Defendant ) appeals from this Court s Judgment of Sentence imposed on October 6, 2011 Order of Court. On November 5, 2009, Defendant was charged with five (5) counts of Driving under the Influence of Alcohol or Controlled Substance related to events that occurred on October 31, Specifically, Defendant was charged as follows: Count One: 75 Pa.C.S. 3802(d)(1): Driving Under the Influence of Alcohol or a Controlled Substance Controlled Substance: Any amount in blood Count Two: 75 Pa.C.S. 3802(d)(2): Driving Under the Influence of Alcohol or a Controlled Substance General Impairment (Drugs only) Count Three: 75 Pa.C.S. 3802(d)(3): Driving Under the Influence of Alcohol or a Controlled Substance General Impairment (Drugs and Alcohol) Count Four: 75 Pa.C.S. 3802(b): Driving Under the Influence of Alcohol or a Controlled Substance 0.10% to less than 0.16% Count Five: 75 Pa.C.S. 3802(a)(1): Driving Under the Influence of Alcohol or a Controlled Substance General Impairment (Alcohol only) One Count: Driving on Roadways Laned for Traffic (Summary Offense) On October 6, 2011, the Commonwealth withdrew Counts Two and Three. The matter then proceeded to a non-jury trial. After the close of the Commonwealth s case, this Court granted Defendant s Motion for Judgment of Acquittal as to Count One. As to Counts Four and Five and the Summary Offense, the Court found Defendant guilty. Immediately after verdict, the Defendant waived a pre-sentence report and proceeded to sentencing. Defendant was sentenced to thirty (30) days county intermediate punishment and six (6) months probation at Count Four. For Count Five and the Summary Offense, Defendant received no further penalty. On October 19, 2011, Trial Counsel for Defendant filed a Petition to Appoint Counsel for Purpose of Appeal and In Forma Pauperis Motion. On October 20, 2011, this Court appointed the Office of the Public Defender to represent Defendant for purposes of appeal. On November 3, 2011, Appellate Counsel for Defendant filed a Notice of Appeal as to the Judgment of Sentence imposed on October 6, By Order dated November 17, 2011, this Court directed Appellate Counsel to file a Concise Statement of Matters Complained of on Appeal. Appellate Counsel filed a Motion for Extension of Time to File a Concise Statement of Errors Complained of on Appeal on December 6, The basis of this Motion was that Appellate Counsel was not Trial Counsel, and, therefore, needs time to obtain and review the transcripts so as to appropriately protect Defendant s rights on direct appeal. This request was granted on December 6, 2011, and Counsel for Defendant was given until twenty-one days after receipt of all transcripts in the case, or on or before January 6, 2012, whichever date is later to file the Concise Statement. Counsel for Defendant received the trial and sentencing transcript on February 16, 2012, and Defendant filed his Concise Statement of Matters Complained of on Appeal on March 7, 2012, wherein he raised the following three (3) issues: 1. The evidence was not sufficient to prove beyond a reasonable doubt that Mr. Spencer violated 75 Pa.C.S.A. 3309(1) (Driving on Roadways Laned for Traffic), since the Commonwealth did not prove that Mr. Spencer moved from the lane of traffic in an unsafe manner. 2. The police did not have reasonable suspicion that Mr. Spencer violated the Motor Vehicle Code in order to justify a traffic stop. The stop of Mr. Spencer s vehicle was not justified on [the] basis of the officer s observations since the facts presented were insufficient to support any violation of the Motor Vehicle Code, including a violation of 75 Pa.C.S.A. 3309(1). As such, this stop without reasonable suspicion violated the Fourth Amendment of the United States Constitution and Article 1 Section 8 of the Pennsylvania Constitution. 3. The evidence was not sufficient to prove beyond a reasonable doubt that Mr. Spencer violated 75 Pa.C.S.A. 3802(a)(1) (Driving Under the Influence: General Impairment), since the Commonwealth did not prove that Mr. Spencer imbibed a sufficient amount of alcohol to render him incapable of safely driving. The facts as presented to this Court are as follows: At trial, the Commonwealth presented the testimony of Officer James Jones of the Baldwin Borough Police Department, who was the investigating and arresting officer in this matter. (Tr. p. 9). Officer Jones has been employed by the Baldwin Borough Police Department for approximately ten (10) years and is certified as a standard field sobriety testing practitioner. (Tr. pp. 9-10). Officer Jones testified that on October 31, 2009, while he was on routine patrol, he was driving in an unmarked police car on Becks Run Road when he observed a maroon Pontiac driving on the solid white lines that separate two same direction travel lanes. (Tr. pp ). He further testified that the vehicle continued to straddle the solid white line for 100 to 200 feet, after which the vehicle began to swerve back and forth between the two same direction travel lanes over the course of the next 100 feet approximately three to four times. (Tr. pp ). Officer James then observed that once the vehicle settled into the left lane, the vehicle began to cross over the double yellow lines on that road. (Tr. p. 13). Officer James observed the vehicle for approximately three-quarters of a mile to a mile before he effectuated a traffic stop at a car wash near the intersection of Becks Run and Agnew Road. (Tr. p. 13). The officer then approached the driver of the vehicle, who was identified as Thomas Spencer, the defendant in this matter. (Tr. p. 15). Defendant s eyes were bloodshot and glassy, and he had an odor of alcohol on his breath. (Tr. p. 15). Defendant admitted to drinking alcoholic beverages, and the portable breath test was positive for the presence of alcohol. (Tr. p. 15). Officer Jones asked

4 page 320 volume 160 no. 16 Defendant to exit the vehicle and administered four field sobriety tests the horizontal gaze nystagmus test, the walk and turn test, the one leg stand, and the finger-to-nose test. (Tr. p. 15). Defendant failed the walk and turn and the one leg stand, however Defendant successfully completed the finger-to-nose test. (Tr. p. 16). Based upon his observations and Defendant s unsuccessful completion of two field sobriety tests, Officer Jones formed the opinion that Defendant was under the influence of alcohol at the time he was operating the motor vehicle and was incapable of safely operating a motor vehicle. (Tr. p. 17). Thus, Officer Jones placed Defendant under arrest and transported him to Jefferson Hospital for a blood draw. (Tr. p. 18). Officer Jones then took the blood to his refrigerated evidence locker to be sent to the Crime Lab for analysis. (Tr. p. 18). Katrina Lindauer, a toxicologist in the Allegheny County Medical Examiner s Office, testified that she tested Defendant s blood for alcohol, drugs, and toxins. (Tr. pp ). She testified that Defendant s blood alcohol content was percent. (Tr. p. 35). Applying the five percent (5%) margin of error would yield a blood alcohol content of (Tr. p. 37). In addition, Jennifer Janssen, the chief toxicologist at the Allegheny County Medical Examiner s Office, Forensic Science Laboratory Division, testified as to the effects of alcohol on a person s brain function, visual function, and divided attention skills. (Tr. pp ). In her expert opinion, Ms. Janssen testified that based on it s effect on the central nervous system, on judgment, on vision, on reaction time as well as divided attention skills, it s my opinion that at a level of percent Ethanol, that it would impair an individual s ability to operate a motor vehicle safely. (Tr. p. 65). Defendant s first issue on appeal is that the evidence was not sufficient to convict Defendant of the Summary Offense of Driving on Roadways Laned for Traffic in that Defendant alleges that the Commonwealth failed to prove beyond a reasonable doubt that Defendant moved from the lane of traffic in an unsafe manner. 75 Pa.C.S.A. 3309(1). This offense is defined as follows: Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: (1) Driving within single lane. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety. 75 Pa.C.S.A. 3309(1). As the Pennsylvania Superior Court stated in Commonwealth v. Cook, [w]hether an officer possesses probable cause to stop a vehicle for a violation of this section depends largely upon on whether a driver s movement from his lane is done safely. Com. v. Cook, 865 A.2d 869, 874 (Pa. Super. 2004) (citations omitted). The significant inquiry is whether the driver s operation of a motor vehicle is causing a safety hazard. Id. The Cook Court found that the actions of the defendant in that case were sufficient to give the officer probable cause to stop the vehicle based upon a violation of 75 Pa.C.S.A. 3309(1). In that case, the officer observed the defendant s vehicle for nearly one mile, during which the defendant s vehicle crossed the fog line by one-half of his vehicle width, then rapidly jerked back into the lane of traffic. Id. In this case, Defendant was clearly causing a safety hazard by not maintaining his vehicle in one lane of traffic. Officer Jones testified that Defendant was weaving between lanes in an erratic manner. Defendant s weaving back and forth between two same direction lanes of traffic then travelling across the double-yellow line indicates that he was not ensuring that his lane changes could be made with safety. Significantly, Defendant did not move from one lane into another as is contemplated by this statute, rather, Defendant drove in both lanes for a distance, fading from one lane into the other. Based upon these facts, this Court found beyond a reasonable doubt that Defendant violated 75 Pa.C.S.A. 3309(1). Defendant s second issue on appeal is that Officer Jones did not have reasonable suspicion that Defendant violated any provision of the Motor Vehicle Code, including 75 Pa.C.S.A. 3309(1), in order to justify a traffic stop. It should first be noted that there are two different standards in Pennsylvania to justify a traffic stop: reasonable suspicion and probable cause. The purpose of the vehicle stop determines which standard applies. The reasonable suspicion standard applies when the police officer is investigating a potential Motor Vehicle Code violation, but needs additional evidence prior to making an arrest. Commonwealth v. Feczko, 10 A.3d 1285, (Pa.Super. 2010) (en banc). The purpose of the stop must be investigatory in nature. Id. The probable cause standard applies when the police officer is able to articulate specific facts to establish probable cause that a Motor Vehicle Code violation has occurred at the time of the traffic stop. Id. As Defendant s issue on appeal relates to Officer Jones authority to effectuate a traffic stop based upon a violation of 75 Pa.C.S.A. 3309(1), this Court finds that the appropriate standard to be applied is whether Officer Jones is able to articulate specific facts to establish probable cause that Defendant was in violation of 75 Pa.C.S.A. 3309(1). As set forth above, Officer Jones testified that Defendant was driving his vehicle in an unsafe manner. He testified that Defendant was fading between two same direction lanes of traffic and crossing over the double yellow line. Furthermore, Defendant was not able to sufficiently maintain his vehicle in one single lane of traffic. Therefore, this Court finds that Officer Jones was able to articulate specific facts possessed by him at the time of the traffic stop to establish probable cause to believe that Defendant was in violation of 75 Pa.C.S.A. 3309(1). Therefore, the stop of Defendant s vehicle was proper. Defendant s third, and final, issue raised on appeal is that the evidence was not sufficient to prove beyond a reasonable doubt that Defendant violated 75 Pa.C.S.A. 3802(a)(1) (DUI General Impairment) in that the Commonwealth failed to prove that Defendant imbibed a sufficient amount of alcohol to render him incapable of safely driving a motor vehicle. The evidence presented at trial clearly established that Defendant was incapable of driving his motor vehicle due to his consumption of alcoholic beverages. In order to establish that Defendant committed the offense of DUI: General Impairment under 75 Pa.C.S.A. 3802(a)(1), the Commonwealth must prove beyond a reasonable doubt that the Defendant drove, operated, or was in physical control of the vehicle and that he imbibed a sufficient amount of alcohol such that he was incapable of safely driving, operating, or being in actual physical control of the movement of the vehicle. 75 Pa.C.S.A. 3802(a)(1). The Pennsylvania Supreme Court, while affirming that 75 Pa.C.S.A. 3802(a)(1) is an at the time of driving offense, outlined the types of evidence that can be used to prosecute cases charged under 3802(a)(1) in Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009). The Segida Court detailed this evidence as follows: [t]he offender s actions and behavior, including manner of driving and ability to pass field sobriety tests; demeanor, including toward the investigating officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech. Blood alcohol level may be added to this list, although it is not necessary and the two hour time limit for measuring blood alcohol level does not apply. Blood alcohol level is admis-

5 august 10, 2012 page 321 sible in a subsection 3801(a)(1) case insofar as it is relevant to and probative of the accused s ability to drive safely at the time he or she was driving. Segida, 985 A.2d at 879. The Court further noted that the weight to be given to each type of evidence presented was a question for the finder of fact, who may rely on his or her experience, common sense, and/or expert testimony. Id. In this case, the evidence presented by the Commonwealth established that Defendant was unable to maintain his vehicle within a single lane of traffic. Defendant s eyes were bloodshot and glassy. Officer Jones smelled an odor of alcohol emanating from Defendant when he approached the vehicle. Defendant admitted to drinking alcoholic beverages and the portable breath test was positive for the presence of alcohol. Furthermore, Defendant was unable to pass two of three field sobriety tests and had a blood alcohol content of These facts prove beyond a reasonable doubt that Defendant had imbibed a sufficient amount of alcohol to render him incapable of safely driving his automobile. For the foregoing reasons, this Court s finding of guilt and Order of Sentence should be affirmed. BY THE COURT: /s/flaherty, J. Commonwealth of Pennsylvania v. Ryan O Connell Criminal Appeal Suppression Ineffective Assistance of Counsel Mistrial Exclusionary Rule No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Flaherty, J. May 8, OPINION Defendant, Ryan O Connell ( Defendant ) appeals from this Court s Order of Sentence dated September 20, 2011 to three (3) counts Aggravated Assault. Defendant was arrested on February 19, 2009 and charged with three (3) counts of Criminal Attempt Criminal Homicide, and three (3) counts Aggravated Assault related to incidents that occurred on February 18, On September 13, 2010, Defendant entered a plea of guilty as to three counts of Aggravated Assault before the Honorable Judge Kevin Sasinoski. Prior to sentencing, Defendant withdrew his guilty plea. The matter was then transferred to the undersigned for disposition of pre-trial motions and trial. Defendant filed an Omnibus Pre-Trial Motion to Suppress on June 15, A hearing on this Motion occurred on June 23, Following this hearing Defendant s Motion was denied. The matter then proceeded to a jury trial on June 27, On July 1, 2011 the jury returned a verdict of guilty as to the three counts of Aggravated Assault and not guilty as to the three counts of Criminal Attempt Homicide. Defendant s sentencing hearing was scheduled for September 20, After the hearing, Defendant was sentenced to a term of imprisonment of eighty-four (84) months (seven years) to one hundred sixty-eight (168) months (fourteen years) for each count of Aggravated Assault to run consecutive to each other, thus, Defendant s aggregate sentence was twentyone (21) to forty-two (42) years in a State Correctional Institution. Immediately after sentencing, Defendant s trial counsel, Attorney Gettleman, withdrew his appearance and requested counsel be appointed for Defendant for purposes of post-sentence motions and appeal. This Court granted his request, and appointed the Office of the Public Defender to represent Defendant. The Public Defender s Office timely filed a Post-Sentence Motion. On October 14, 2011, Attorney Gettleman re-entered his appearance and contemporaneously filed a Notice of Appeal. On November 4, 2011, Attorney Gettleman filed a Motion for Extension of Time to file Concise Statement, which was granted. He then also withdrew Defendant s Post-Sentence Motion that was filed by the Public Defender s Office. Ultimately, Defendant filed his Concise Statement on January 12, 2012 wherein he raised the following issues: 1. The trial court committed reversible error when it did not suppress the statement and physical evidence due to the ineffectiveness of Attorney Hoebler in turning the defendant s clothes over to the police against his wishes and taking the defendant to the police station against his will and offering him up to the police for interrogation even after the defendant told Hoebler that he did not want to speak with the police. 2. The trial court committed reversible error when it failed to declare a mistrial after member of the jury, during their deliberations, secretly played a CD of the defendant s confession over and over in violation of Pa R Crim Pro 1114 and then tried to hide that fact from the court.1 3. The trial court erred when it denied the defendant s Motion in Limine barring the Commonwealth from questioning the defendant at trial on the testimony he offered at the suppression hearing. That ruling prevented the defendant from taking the witness stand at his trial. The following are the facts presented at trial. The witnesses and victims all testified that on February 17, 2009, there was a party at 743 Brookline Boulevard in Pittsburgh, Pennsylvania. (Tr. pp. 52, 70, 100, 116). Approximately six to ten people were in the residence between the hours of 11 p.m. and 3. a.m. of February, 18, (Tr. p. 116). Defendant resided at the residence with his girlfriend, Angel Cyphers ( Cyphers ), during the time of the party. (Tr. p. 113). Defendant invited Ryan Hatfield over to the residence on the evening of February 17, (Tr. p. 70) Ryan Hatfield ( Hatfield ) brought with him Angela Sapienza ( Sapienza ) and Kelly McGinnis ( McGinnis ). (Tr. p. 59). Defendant participated in drinking alcohol and smoking crack-cocaine throughout the evening. (Tr. p. 116). At some point during the evening, Hatfield, Sapienza and McGinnis fell asleep in a room adjacent to the room in which people were congregating. (Tr. pp. 56, 103). All of the other guests left the house for the night. (Tr. p. 201). Defendant and Cyphers, were the only people that remained in the house during the hours for when the incident occurred. (Tr. p. 201). The morning of February 18, 2009, Cyphers discovered Hatfield, Sapienza and McGinnis bludgeoned and bloodied on the ground of the room in which they fell asleep. (Tr. p. 123). Cyphers testified that she saw Defendant leaving the house, after the discovery of the

6 page 322 volume 160 no. 16 victims, and Defendant overheard saying I have to get out of town. (Tr. p. 123). Subsequent to finding the victims in the house, Cyphers called the police. (Tr. p. 130). Officer Michelle Baugarten of the City of Pittsburgh Police arrived on the scene on the morning of February 18, 2009 and found Hatfield, Sapienza and McGinnis bloodied and disoriented in the house located on 743 Brookline Boulevard. (Tr. p. 165). Officer Russel James Cain Jr., with the Pittsburgh Bureau of Police, testified that in 2009 he was a detective assigned to the mobile crime unit the day of the incident. (Tr. p. 172). He collected fingerprints from the house and also collected a dumbbell from the attic bedroom where the victims were found. (Tr. p. 177). The dumbbell was covered in blood and was broken on one end. (Tr. p. 178). The broken end contained suspected hair or fiber on the end. (Tr. P. 178). A day after the police were called, Officer Brian Weismantle testified that Defendant came into the police office on February 19, 2009 with counsel at 1203 Western Avenue Pittsburgh, P.A. (Tr. p. 183). Defendant, through counsel, produced the clothes he was wearing the night of the incident. (Tr. p. 184). Officer Weismantle and his partner, Dale Canofari, then interviewed Defendant, in the presence of his counsel, in a conference room at the police station. (Tr. p. 187). Defendant was read his Miranda Rights. (Tr. p. 188). The two officers, Defendant and Defendant s attorney signed the Waiver of Miranda Rights form and Defendant initialed next to each paragraph appropriately waiving his Miranda Rights. (Tr. p. 189). Defendant then proceeded to made a statement to Officers Weismantle and Canofari that was video recorded. The video recorded statement was played to the jury. 2 At trial, Officer Weismantle testified that Defendant stated as follows: He was at his girlfriend s house, which was 743 Brookline Boulevard the night of the incident. He said that he invited Ryan Hatfield over to socialize. People came over to the residence and were drinking alcohol, smoking marijuana, and doing pills. Defendant was drinking and smoking crack-cocaine. Defendant also smoked crack-cocaine earlier in the evening with his girlfriend. Defendant admitted that he was having trouble falling asleep and was alone in the attic of the home around 3 a.m., the night of the incident. He began to drink more alcohol and walked into the adjacent bedroom where the victims were sleeping. He was startled by a person in the bedroom, who turned out to be Mr. Hatfield. Defendant stated that he threw Mr. Hatfield to the ground, then blacked out. He returned to the living room in the attic and notice that there was blood on his hands. He proceeded to leave the house in the early morning hours of February 18, (Tr. p. 201). Jacquelyn Bales, employed at the Allegheny County Crime Lab, testified that she examined the clothes that Defendant was wearing for blood, semen, saliva, and other fluids of forensic significance. (Tr. p. 218). Defendant s socks, sweatshirt and boot all tested positively for blood. (Tr. p. 219). The remaining articles of clothing, jeans, shorts and shirt, had multiple areas that indicated blood, but it could not be determined positively that blood existed because the clothes appeared to be washed. (Tr. p. 225). Ms. Bales tested the dumbbell and confirmed that it was covered in blood. (Tr. p. 221). Janine Yelenovsky, a DNA analyst for the medical examiner s office, testified that Defendant s clothing turned into the police tested positive for DNA. (Tr. p. 242). The DNA found on the dumbbell matched Mr. Hatfield and Ms McGinnis. (Tr. p. 247). Defendant s socks tested positive for the DNA of Mr. Hatfield and Ms. McGinnis. (Tr. p. 255). Defendant s sweatshirt tested positive for the DNA of Mr. Hatfield. (Tr. p. 257). Defendant s boots tested positive for DNA of Mr. Hatfield. (Tr. p. 259). Many of the samples were found to be mixtures of DNA and blood, as such a DNA match could not be made. (Tr. p. 260) As a result of the attack, Dr. Alan Crocos testified to examining the victims at UPMC Mercy Hospital located in the South Side of Pittsburgh. (Tr. p. 44). Ms. Sapienza had multiple traumatic injuries to her head and face. (Tr. p. 45). She needed a craniotomy and procedures to her nasal bone to stop bleeding, as well as, procedures to her veins to prevent blood clots. (Tr. p. 47). Hematoma was drained from her skull and parts of her skull needed to be surgically repaired. (Tr. p. 47). She was in the hospital from February 18, 2009 to March 11, 2009, and was discharged to the traumatic brain injury facility. (Tr. p. 48). Kelly McGinnis had temporal bone skull fractures, a skull base fracture, multiple other fractures to her face and cheekbone. (Tr. p. 49). She had a craniotomy, and repairs of to her skull and face. (Tr. p. 49). Ryan Hatfield had a hemorrhagic contusion of the brain, bruises to his brain, subdural hematoma, blood clots along the lining of his brain, as well as, fractures to his skull and face. (Tr. p. 50). All three victims had to learn to walk and talk in therapy following the incident. (Tr. pp. 62, 76, 108). Defendant s first issue on appeal is that this Court erred in denying his Motion to Suppress. In Defendant s Motion to Suppress, he raised an ineffective assistance of counsel claim as to his pre-arrest counsel and requested that his statement to police and the results from testing his clothing be suppressed. Specifically, Defendant alleged that he did not desire to make a statement to the police, nor did he want to turn over his bloody clothes, but did so on the advice of his pre-arrest counsel. Defendant s Motion to Suppress was properly denied for several reasons. First, the Sixth Amendment s right to the effective assistance of counsel does not apply to pre-arrest counsel. Second, Defendant failed to meet his burden to establish ineffective assistance of counsel. Third, even if Defendant had the right to pre-arrest effective assistance of counsel, exclusion of evidence at trial is not an appropriate remedy. The United States Supreme Court has recognized that the Sixth Amendment guarantees that the accused shall have the assistance of counsel in all criminal prosecutions. Missouri v. Frye, 132 S.Ct. 1399, 1404 (2012). That right to counsel is the right to effective assistance of counsel. Frye, 132 S.Ct. at The right to effective assistance of counsel is not all-encompassing; it has limitations. The United States Supreme Court stated as follows: [i]t is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings. Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. Frye, 132 S.Ct. at 1405 (citations omitted). The Pennsylvania Supreme Court, in Commonwealth v. Colavita, 606 Pa. 1 (2010), discussed the Sixth Amendment right to counsel and its application to pre-arrest counsel in the context of a post-trial ineffective assistance of counsel claim. In Colavita, the defendant had consulted with an attorney immediately after the shooting, but two years prior to his arrest for murder. Colavita, 606 Pa. at 11. At trial, during closing arguments, the prosecuting attorney commented on the defendant s act in obtaining an attorney prior to his arrest and his trial counsel failed to object. Id. at 13. Colavita, in his Post-Conviction Relief Act Petition raised the issue of

7 august 10, 2012 page 323 ineffective assistance of counsel for his trial counsel s failure to object to the prosecution s closing argument and alleged that the comment was an unconstitutional comment on his right to counsel. Id. at 29. The trial court denied his Petition, however, Pennsylvania Superior Court reversed finding that the prosecutor s comments violated the Due Process Clause of the Fourteenth Amendment. Id. at 6. The Pennsylvania Supreme Court, in reversing the Superior Court, recognized that the right to effective assistance of counsel in criminal prosecutions is found in the guarantees of the Sixth Amendment of the United States Constitution. Id. at 27. The Supreme Court stated as follows: [t]he Sixth Amendment speaks of a right to the assistance of counsel in criminal prosecutions and that right to counsel is one of the specific incorporated rights. But the right as incorporated is not without temporal limits. The right to counsel attaches at a particular point in time which reflects its criminal prosecution roots: [A] criminal defendant s appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Colavita, 606 Pa. at (citations omitted). The Colavita Court further stated, no existing authority from the U.S. Supreme Court, this Court, or the Superior Court has recognized a right to counsel pre-arrest. Id. at 28. In this matter, Defendant retained an attorney prior to his arrest. All actions of his pre-arrest counsel that are alleged to have been ineffective occurred before Defendant s Sixth Amendment right to counsel began. As Defendant does not have a Constitutional right to counsel prior to his arrest, he does not have the ability to raise the issue of his pre-arrest counsel s alleged ineffective assistance. At the hearing on Defendant s Motion to Suppress, this Court permitted Counsel for Defendant to explore and present evidence as to the alleged ineffective assistance of counsel claim. Even if Defendant were permitted to raise an ineffective assistance of counsel claim as to his pre-arrest counsel, Defendant failed to meet his burden to establish that his pre-arrest counsel was ineffective, therefore, his Motion was properly denied. As stated in Colavita, supra, in order to establish that his pre-arrest counsel was ineffective, Defendant needed to satisfy the following three-prong test: (1) the underlying legal issue has arguable merit; (2) counsel s actions lacked an objective reasonable basis; and (3) actual prejudice befell petitioner from counsel s act or omission. Colavita, 606 Pa. at 21. Further, where matters of strategy and tactics are concerned, counsel s assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client s interests. Id. Defendant argues that the ineffective assistance of counsel occurred on two fronts: first, Defendant s statements to police and second, Defendant s production of his clothes. At the suppression hearing, Counsel for Defendant failed to address the first prong of the ineffectiveness claim, that being that the underlying legal issue has arguable merit. Initially, the statement made by Defendant to police was a voluntary statement made after a knowing and voluntary waiver of his Miranda rights. The Pennsylvania Supreme Court, in Commonwealth v. Cunningham, 471 Pa. 577 (1977) stated as follows, [i]t is axiomatic that a confession to be valid must be given free of any physical or psychological coercion which might interfere with one s will to resist. Further, where the custodial interrogation involves the waiver of constitutional rights guaranteed under the Fifth and Sixth Amendments, the record must clearly demonstrate that the accused was fully apprised of his rights and knowingly made the decision to waive them. Cunningham, 471 Pa. at (citations omitted). That Court, in citing Miranda v. Arizona, 384 U.S. 436 (1966), stated as follows: [t]hat counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Cunningham, 471 Pa Testimony by Officer Weismantle during the suppression hearing clearly and credibly indicated that Defendant did not appear to be under the influence of any mind altering substance and the interview was conducted in a nonthreatening manner. (Suppression Transcript pp. 29, 31). Defendant and his pre-arrest counsel signed the Miranda rights form. (Suppression Transcript p. 30). Furthermore, it did not appear that Defendant was forced, coerced, or otherwise pressured into making a statement. (Suppression Transcript p. 33). Therefore, Defendant failed to meet his burden to establish that the underlying legal issue has arguable merit, as the statement was voluntary and made after knowingly waiving his Miranda rights. With respect to producing the evidence, one of Defendant s two professional witnesses, acknowledged that when an attorney is in possession of evidence of a crime, he/she is obligated to turn the evidence over to the police. (Suppression Transcript p. 11). The Pennsylvania Superior Court in Commonwealth v. Shenhach, 356 Pa.Super. 5 (1986), held as follows: a criminal defense attorney in possession of physical evidence incriminating his client may, after a reasonable time for examination, return it to its source if he can do so without hindering the apprehension, prosecution, conviction, or punishment of another and without altering, destroying or concealing it or impairing its verity or availability in any pending or imminent investigation or proceeding. Otherwise he must deliver it to the prosecution on his own motion. In the latter event, the prosecution is entitled to use the physical evidence as well as information pertaining to its condition, location and discovery but may not disclose to a fact-finder the source of the evidence. Stenhach, 356 Pa.Super. 5, 24 (1986). In this matter, Defendant s pre-arrest counsel was obligated by the laws of this Commonwealth to ensure that evidence of a crime that was in his possession was produced to the prosecution. The fact that other attorneys may have handled the production in a different manner is not relevant to the determination of this issue. Defendant s pre-arrest counsel was not called to testify, and Defendant s testimony at the suppression hearing utterly lacked credibility. The only credible facts before this Court were that the clothes Defendant wore on the night in question were in the possession of Defendant s pre-arrest counsel at the time they arrived at the police station. As the case law is clear, Defendant s

8 page 324 volume 160 no. 16 pre-arrest counsel cannot hold onto the evidence and is obligated to turn them over to the prosecution. Therefore, Defendant failed to meet the burden of establishing the first prong of the ineffectiveness claim in that the underlying issue does not have arguable merit. Counsel for Defendant spent considerable time addressing the second prong that counsel s actions lacked an objective reasonable basis. Counsel for Defendant called two reputable and competent criminal defense attorneys who testified generally regarding effective representation of criminal clients and, specifically, with respect to making statements to police and turning evidence over to police. Significantly, neither attorney testified that it is per se unreasonable, but indicated it would be the exception rather than the rule. However, Counsel for Defendant failed to call as a witness Defendant s actual pre-arrest counsel to testify as to his strategy for taking Defendant to make the statement and turn over the evidence. This Court cannot conclude that Defendant s pre-arrest counsel s actions were unreasonable to satisfy the second prong of the test. With respect to the third prong of the ineffectiveness test, that counsel for Defendant s act or omission caused actual prejudice to Defendant, it cannot be said that Defendant would not have been charged with the crimes of Criminal Attempt Homicide and Aggravated Assault but for his pre-arrest counsel s acts. Defendant was already considered to be a person of interest and would have been charged with or without his statement and/or clothing. Assuming, arguendo, that Defendant does have a Sixth Amendment right to effective assistance of counsel, and that pre-arrest counsel in this matter was ineffective, exclusion of the evidence is not the appropriate remedy. The Pennsylvania Supreme Court thoroughly discussed the history and purpose of the exclusionary rule under both federal and Pennsylvania law in Commonwealth v. Edmunds, 526 Pa. 374 (1991). Pennsylvania first adopted the exclusionary rule in 1963 following the United States Supreme Court decision of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct (1961). Edmunds, 526 Pa. at 395. The Pennsylvania Supreme Court found that adopting the exclusionary rule in Pennsylvania was a necessary corrolary to the prohibition against unreasonable searches and seizures. Edmunds, 526 Pa. at 395. The exclusionary rule serves different purposes under Federal and Pennsylvania law. Under Federal Law, the purpose of the exclusionary rule was not to redress the injury to the privacy of the search victim (but, rather) to deter future unlawful police conduct. Edmunds, 526 Pa. at 396, citing United States v. Calandra, 414 U.S. at 338, 347 (1974) (emphasis in original). In Pennsylvania, however, the purpose of exclusionary rule was unshakably linked to a right of privacy in this Commonwealth to be free from unreasonable searches and seizures contained in Article I Section 8 of the Pennsylvania Constitution. Edmunds, 526 Pa. at 397. The Edmunds Court further stated, the exclusionary rule in Pennsylvania has consistently served to bolster the twin aims of Article I, Section 8; to-wit, the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause. Id. at 398. A key component to application of the exclusionary rule is that there be some action by the police or Commonwealth that would run afoul of the protections afforded citizens by the United States Constitution and/or the Pennsylvania Constitution. Simply put, that did not happen here. The police did not coerce, threaten, or otherwise compel Defendant to make a statement. Defendant voluntarily appeared at the police station, executed a Waiver of Rights form in the presence of his counsel, and proceeded to make a statement. Furthermore, the police did not illegally seize Defendant s clothes. The clothes were given to the police through Defendant s counsel, as is required by the laws of this Commonwealth. Based upon the foregoing, this Court did not err in denying Defendant s Motion to Suppress. Defendant s second allegation of error is that this Court erred in not granting Defendant s request for a mistrial based upon the jury playing Defendant s recorded statement in the deliberation room. Initially, this Court notes that this Court did not enter a ruling specifically permitting the CD containing Defendant s statement to be sent to the jury room with the jury. The CD was included with the other evidence sent to the deliberation room. At the time the exhibits were sent to the deliberation room, it was believed that the jury would not be able to play the CD, as there is no electronic equipment available in the deliberation rooms. In addition, the contents of the CD in this matter do not rise to the level of being a confession by Defendant, as Defendant did not admit to any element of any offense charged in this matter. Pennsylvania Rule of Criminal Procedure 646, Material Permitted in Possession of the Jury, addresses the permissible exhibits and items to be sent to the deliberation room. Rule 646 states, in pertinent part, as follows: (A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph (C). *** (C) During deliberations, the jury shall not be permitted to have: *** (2) a copy of any written or otherwise recorded confession by the defendant. Pa.R.Crim.P As stated in Commonwealth v. Morton, 774 A.2d 750 (Pa.Super. 2001), the overriding concern of [Rule 646 s] prohibition against written confessions going out with the jury is that the physical presence of the confession within the jury room may cause it to be emphasized over other evidence in the form of testimony heard from the witness stand. Morton, 774 A.2d at 753. In Morton, the trial judge permitted the jury to review the defendant s confession in the jury box and did not permit the confession to be sent back to the deliberation room. Id. The trial judge then gave the jury a curative instruction reminding them that the defendant s confession was only one piece of evidence. Id. These actions were found to be permissible. Id. Morton also detailed the standard for granting a mistrial as follows: A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. Morton, 774 A.2d at 754 (citations omitted). At the conclusion of the trial in this matter, all trial exhibits were sent to the jury room for deliberations. Neither party objected to any exhibit being sent to the jury room. The statement made by Defendant was not written, rather, it was contained on a CD. The jury deliberation room was not equipped with the proper equipment that would allow the jurors to access Defendant s statement. As such, neither this Court, nor Counsel for Defendant, nor the attorney for the Commonwealth had any basis to believe the jurors would be able to play the recorded statement. This Court was made aware that during the juror deliberations, the jury was using a personal laptop computer to play Defendant s statement. This Court then immediately notified Counsel for Defendant and the attorney for the Commonwealth.

9 august 10, 2012 page 325 The Court then conducted a voir dire of each individual juror regarding their purpose in playing the statement and the number of times it was played. (Tr. pp ). After each voir dire the juror was instructed to not discuss the conversation with the other jurors. Each juror stated that they listened to the statement in its entirety, and they had to hit rewind to hear due to the noise in the jury room and quality of the recording. This Court notes that the quality of the recording was poor and was difficult to hear. Thus, this Court found that the jurors did no more than they would have been permitted to do had they requested to hear the statement again. Based upon the jurors answers to voir dire and considering the purpose of Rule 464, this Court concluded that a mistrial was not warranted, as there was no prejudice to Defendant by the jurors actions. As such, this Court gave a curative instruction reminding the jurors that this was only one piece of evidence to consider in reaching their verdict and that if they wanted to hear the statement again, they could do so in the courtroom. (Tr. p. 516). Therefore, given that Defendant s statement was not a confession, and that the jury merely played the statement once or twice for purposes of being able to hear it, there was no error in denying Defendant s request for a mistrial. Defendant s third issue on appeal is that this Court erred in denying Defendant s Motion in Limine barring the Commonwealth from questioning Defendant on his suppression hearing testimony. Initially, this Court notes that Defendant s Motion in Limine was that the Commonwealth only be permitted to impeach Defendant with respect to voluntariness of the statement and not to the ineffectiveness of counsel claim. Essentially, Counsel for Defendant requested that this Court rule that if Defendant testifies that his statement to the police was voluntary, that the Commonwealth not be permitted to impeach him with his suppression hearing testimony that he did not want to speak with the police and allegedly attempted to jump out of the car on the way to the police station. (Tr. p. 312). This Court s denial of the Motion in Limine is consistent with holdings of the United States Supreme Court and the Pennsylvania Superior Court. The United States Supreme Court, in Harris v. New York, 401 U.S. 222, (1971) stated as follows: Every criminal defendant is privileged to testify in his own defense, or refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately...the shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. Harris, 401 U.S. at Furthermore, in U.S. v. Havens, 446 U.S. 620 (1980), the United States Supreme Court permitted the use of illegally seized suppressed evidence to impeach the defendant s trial testimony given in response to proper cross-examination. The Havens Court stated, [w]e have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. Havens, 446 U.S. at The Pennsylvania Superior Court, in Com. v. Bennett, 430 A.2d 994 (Pa. Super. 1981), held that when the accused s statement has no constitutional infirmity, we believe that the accused s interests must give way to the judicial system s interest in deterring perjury and promoting the truth-determining process. Bennett, 430 A.2d at 997. This Court s ruling on Defendant s Motion in Limine was consistent with both the United States Supreme Court s ruling in Harris and Havens, and the Pennsylvania Superior Court s holding in Bennett. Specifically, this Court ruled as follows: I am going to deny the motion in limine, and so the issues of ineffective assistance of counsel, involuntariness, regarding the Miranda rights and waiver, would both be areas that could be addressed on cross examination, if they are brought up on direct. (Tr. p ). Further, this Court stated, the suppression hearing testimony is only used for impeachment purposes. (Tr. p.335). Defendant was not precluded or prohibited in any manner from taking the stand in his own defense. The only way this ruling would have prevented Defendant from taking the stand in his own defense is if the testimony he intended to offer at trial was intended to be inconsistent with the testimony he offered at the suppression hearing. This cannot be permitted. A criminal defendant has a unique privilege in a courtroom that he cannot be compelled to be a witness against himself in the prosecution. In addition, his prior testimony cannot be used as substantive evidence against him. However, once he waives this privilege, he is subject to the rules that apply to all witnesses and is subject to cross-examination. In this case, Defendant voluntarily testified at his suppression hearing. His statements do not have any constitutional impairments. Not allowing Defendant s suppression hearing testimony to be used to impeach Defendant s trial testimony would be akin to permitting Defendant to knowingly offer false testimony. Therefore, this Court did not err in denying Defendant s Motion in Limine. For the foregoing reasons, this Court s Order of Sentence should be affirmed. BY THE COURT: /s/flaherty, J. 1 Defense attorney cited Pa.R.Crim.P. 1114, however, this Rule was renumbered and is now Pa.R.Crim.P Although the statement was played for the jury in court, the exact contents of the statement do not appear in the transcript. Rather, the transcript states, Thereupon, the CD statement was played for the jury. (Tr. p. 203). As such, the exact text of Defendant s statement to Officers Weismantle and Canofari is not transcribed. However, this Court will note that Officer Weismantle s testimony concerning Defendant s statement was consistent with the actual statement. Commonwealth of Pennsylvania v. Calvin Tucker Criminal Appeal Sufficiency Self Defense Weight of the Evidence Malice No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Rangos, J. May 7, 2012.

10 page 326 volume 160 no. 16 OPINION On October 14, 2011, Appellant, Calvin Tucker, was convicted by a jury of his peers of Murder of the Third Degree. Appellant s Post Sentence Motion was denied on January 17, 2012 and Appellant filed a timely Notice of Appeal on February 15, Appellant filed a Statement of Errors Complained of on Appeal on March 7, MATTERS COMPLAINED OF ON APPEAL Appellant asserts that the evidence with respect to the disproval of self-defense, and the establishment of the element of malice, was insufficient. (Statement of Errors to be Raised on Appeal, p. 3) Appellant further asserts that his conviction was against the weight of the evidence. Ibid. HISTORY OF THE CASE William Redshaw testified that his brother James Redshaw, his brother s paramour Calvin Scott, a.k.a. Clarissa or Rissa Scott, a drag queen, and Rissa s father, Appellant, Calvin Tucker all resided together at 1938 Lithgow Avenue. (TT 41) 1 William stated that he had known his brother s paramour for over twenty years, (TT 43) and that James and Rissa drank every day. (TT 48) William had personally observed his brother and Rissa become involved in at least six physical confrontations during that time. (TT 45) He opined that alcohol was a factor in many of those instances. (TT 43) William also was aware of other such confrontations, often caused by his brother s jealous nature and Rissa s flirtatiousness, (TT 45) and testified that Rissa usually won these physical fights. (TT 47) Appellant insisted on having his own room in the apartment so that he could get away from Rissa and James when they fought. (TT 53) William testified that he had been at 1938 Lithgow Avenue on January 15, 2011 doing his laundry and observed James and Rissa to be drinking, smoking marijuana and arguing. (TT 52-53) William left shortly after eight o clock when his laundry was done. (TT 53) He invited Rissa to ride with his mother while she took him home, because Rissa and James were arguing. (TT 50) When William left, Appellant was sitting on the couch in the living room, with no apparent injuries, trying to watch a Steelers game and ignore the argument going on between James and Rissa. (TT 52) Later that evening, Officer David O Neil of the City of Pittsburgh Police Department received a call to be on the lookout for a black male named Calvin Tucker. (TT 24) Tucker was last seen leaving 1938 Lithgow Avenue walking towards the intersection of Perrysville Avenue and Clayton Avenue wearing a black jacket and a black cap. Ibid. Officer O Neil observed a person matching Appellant s description and he radioed for backup. Ibid. Officer Scott Bobak detained Appellant on suspicion of assault and Officer O Neil arrived shortly thereafter. (TT 24-25) Officer O Neil observed that Appellant responded slowly to commands, slurred his speech, smelled of alcohol and had an open beer in his hand. (TT 25-27) Appellant was searched and a knife and sheath approximately five inches in length was recovered from his right pocket. (TT 28-29) Officer O Neil then proceeded to 1938 Lithgow Avenue where he was met at the door by a medic who indicated James Redshaw, the victim of an apparent stabbing, was in critical condition. (TT 29) The victim moaned but did not say anything in the Officer s presence. (TT 30) Officer O Neil observed bottles of alcohol in the kitchen, beer cans in the living room and empty beer cases in the kitchen. (TT 31) He also noticed a grilling fork stuck in a kitchen cabinet. (TT 36) Sergeant Michael Hoffman of the City of Pittsburgh Police Department observed Officer Bobek place Appellant in an interview room at approximately quarter after eight that evening. (TT 58-59) Sergeant Hoffman noticed that Appellant s shoes had fresh blood on them and he directed Appellant to remove them for testing. (TT 59) Twenty minutes later, Sergeant Hoffman arrived at the scene on Lithgow street and observed a large blood spatter in the living room, measuring thirteen feet nine inches, as well as drops of blood in various locations in the kitchen area. (TT 64-65) He also noted broken glass and broken Christmas ornaments on the living room floor. (TT 73) Detective George Sitler conducted the interview of Appellant. (TT 128) Detective Sitler testified that Appellant admitted to him that he had been drinking, but Appellant did not appear to the Detective to be intoxicated at that time. Ibid. Appellant did not slur his words and was able to answer questions in an appropriate manner. Ibid. His eyes were not bloodshot, he did not stagger while walking and he did not fall asleep during interrogation, all of which would be signs of intoxication. (TT 129) After signing a Miranda waiver, Appellant said during the fourth quarter of the Steelers game, when he walked from the living room to the kitchen to get a beer. (TT ) The victim was lying on the floor and started throwing things at him. (TT 137) Appellant indicated that the victim threw Christmas items, a fork and a tomato knife 2 but Appellant was able to dodge all but two items and was not injured by the two that struck him. (TT 138) Although he did not recall how, Appellant engaged the victim and the fight moved to the living room, at which point Appellant pulled out his knife and stabbed the victim. (TT 139) Appellant stated that he stabbed the victim because he did not want to be punched or hit. (TT 138) Appellant indicated he was not injured in the fracas. (TT 141) After he stabbed the victim, at his son Rissa s request, Appellant left the building with knife in hand and started walking down the street. Ibid. Dr. Todd Luckasevic, an expert in forensic pathology, testified that the cause of James Redshaw s death was homicide as a result of a stab wound that went completely through the liver and penetrated the abdominal aorta, which would have resulted in a significant loss of blood in a short period of time, (TT ) such that the victim would have lost consciousness within a minute. (TT 123) Dr. Luckasevic opined that the instrument which caused this injury would have had to be at least three to four inches long, with the injury being consistent with a single edged blade. (TT 113) Dr. Luckasevic said that that the injuries were consistent with the use of the knife recovered from Appellant. (TT 114) In addition to the fatal stab wound, the victim suffered multiple contusions and abrasions to his face, neck and shoulders and bruising on his forearms and elbows consistent with defensive injuries. (TT ) Finally, he testified that the victim s blood alcohol level was (TT 111) Calvin Scott a.k.a. Clarissa or Rissa Scott, Appellant s child, testified to a slightly different version of the fight. Rissa stated that the argument between she and James, whom she refers to as Jamus, started when James and William s mother asked Rissa to ride with her to take William home. (TT 175) Rissa stated that James had drunk too much vodka, almost an entire bottle, and was agitated because the Steelers were losing. (TT ) Rissa originally told William that she would leave, but James physically restrained her and blocked her path. (TT 176) They pushed one another on the staircase and James pulled out Rissa s hairpiece. Ibid. The tussle ended and Rissa pretended to have to go to the bathroom to escape James ongoing yapping. (TT 177) When Rissa left the bathroom, Appellant was in the living room watching the game. James then threw a shot glass, which instigated a fight. (TT ) Twice, Rissa broke up the fighting. ( ) The victim threw numerous items including Christmas ornaments then went into the kitchen. Rissa followed James into the kitchen and fought with him. (TT 182).

11 august 10, 2012 page 327 According to Rissa, James grabbed items from the kitchen, including a pitch fork Rissa was using to turn chicken, the sugar bowl, flour bowl, tea bowl and a knife. Rissa claims that James threw these items, specifically she described James throwing the fork from the living room to the kitchen, a distance of about twenty (20) feet. (TT ) When James came at Appellant for a third time, Appellant stabbed him. (TT 186) Rissa said that she recognized the knife used to stab James as one belonging to Appellant, not her kitchen knife, but she did not see exactly how he got it out. (TT 187) While waiting for the ambulance, Rissa testified that James told her to put the dog away, lock the house up and come with him to the hospital. (TT 188) Cross-examination of Rissa revealed many inconsistencies and much confusion in her version of the evening. Rissa indicated that James and William were drinking heavily but she and her father were not drinking heavily. (TT 204) When confronted with William s testimony that he and Rissa had gone head to head doing shots before she started cooking, Rissa admitted to that, (TT 205) then admitted to doing shots after cooking, ultimately estimating that she consumed a total of seven shots. (TT 206) Likewise, she attributed James anger to the Steelers losing to the Jets, 3 (TT 211) but reluctantly admitted that she had turned up music over James objection (TT ); that she had flirted with William, conduct which she knew upset James (TT ); that James did not push her on the steps as she had testified earlier but rather mugged her in [her] face (TT 213); that contrary to her statement to the police, the fight between James and her father had started in the kitchen; (TT 216); that while she earlier described it in some detail, she never saw James throw the fork (TT ); and that James was not bleeding profusely but rather carried on a conversation with her while waiting for the medics, (TT 227) testimony inconsistent with Dr. Luckasevic s estimate that James would have been unconscious within a minute of the stabbing. (TT 123) DISCUSSION The test for reviewing a sufficiency of the evidence claim is well settled: [W]hether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt... This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Hardcastle, 546 A.2d 1101, 1105 (Pa., 1988) (citations omitted) Com. v. Torres, 617 A.2d 812, (Pa.Super.1992) Defendant alleges that the evidence was insufficient to convict in that the element of malice was not established beyond a reasonable doubt. Respectfully, this Court disagrees. The legal concept of malice was explained to the jury as follows: The word malice as I am using it has a special legal meaning. It does not mean simply hatred, spite or ill will. Malice is a shorthand way of referring to particular mental states that the law regards as being bad enough to make a killing murder. * * * On the other hand, a killing is without malice if the perpetrator acts under circumstances that reduce the killing to voluntary manslaughter. * * * For murder of the third degree, a killing is with malice if the perpetrator s actions show his wanton and willful disregard of an unjustified and extremely high risk that his conduct would result in death or serious bodily injury to another. In this form of malice, the Commonwealth need not prove that the perpetrator specifically intended to kill another. The Commonwealth must prove, however, that the perpetrator took action while consciously, that is, knowingly, disregarding the most serious risk he was creating, and that by his disregard of that risk the perpetrator demonstrated his extreme indifference to the value of human life. (TT ) This instruction is taken from the 2010 Standard Jury Instructions. The Court went on to explain that a defendant who kills in the heat of passion following serious provocation commits manslaughter, not murder, and further instructed that the jury may consider circumstantial evidence to show Appellant s state of mind. (TT 273) Specifically, the Court instructed that if the jury believed that Appellant intentionally used a deadly weapon upon a vital part of the victim s body, the jury may regard that as circumstantial evidence from which it may infer that Appellant acted with malice. Ibid. Given the testimony, the jury was within its discretion to find malice. When Appellant stabbed the victim, he took an extreme and unjustifiable risk that death would occur. He used a deadly weapon, a knife, on a vital part of the victim s body. Although he may not have originally intended to kill the victim, and may not have been the original aggressor in the fight, Appellant decided to take out his knife and stab it several inches into the victim s body. The finding of malice by the jury is well supported by the record. Likewise, sufficient evidence existed to disprove a theory of self-defense. The Commonwealth was required to disprove either that Appellant believed that he was in danger of death or serious bodily injury or that his belief was reasonable. Unlike Appellant, the victim did not have a weapon on his person. While the victim suffered multiple contusions and abrasions in addition to the stab wound, Appellant did not have so much as a scratch on him as a result of this altercation. The jury was within reason to find that a drunk housemate throwing Christmas ornaments and kitchen items did not represent a serious, imminent danger requiring the use of deadly force, especially in the context of the history of the relationships, the testimony that Rissa alone had been able to win these physical battles in the past and that Appellant had his own room to which he would retreat because of the turbulent relationship of his housemates. Defendant s next issue, that the verdict was against the weight of the evidence, is equally meritless. The standard for a weight of the evidence claim is as follows:

12 page 328 volume 160 no. 16 Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion... The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Taylor, 471 A.2d 1228, 1230 (Pa.Super. 1984) See also, Commonwealth. v. Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) (citing Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995)) The evidence supported the conviction for Third Degree Murder. Appellant stabbed the victim with a five inch long knife, and did so with wanton and willful disregard of an unjustified and extremely high risk that his conduct would result in death or serious bodily injury to another. Appellant s conduct cannot be excused by the victim s alcohol intake or by the prior fistfight. As such, the verdict does not shock the conscience and Appellant is not entitled to a new hearing. CONCLUSION For all of the above reasons, no reversible error occurred and the findings and rulings of this Court should be AFFIRMED. BY THE COURT: /s/rangos, J. 1 James and William s mother had also just moved into the apartment. (TT ) 2 The transcript does not reflect any witness testifying to locating a knife on the floor in either the kitchen or living room. 3 She was certain the Steelers were playing the Jets although it is clear from the record that the Steelers were playing the Ravens in a playoff game. Commonwealth of Pennsylvania v. John Henry Conrad Criminal Appeal Identification Sufficiency Waiver Car Accident No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Borkowski, J. May 10, OPINION PROCEDURAL HISTORY Appellant was charged by Criminal Information (CC ) with one (1) count each of: Accidents Involving Damage to attended Vehicle or Property 1 ; Duty to Give Information and Render Aid 2 ; Careless Driving 3 and Required Financial Responsibility 4. Appellant proceeded to a non-jury trial before the Honorable Edward J. Borkowski. On July 13, 2010, the Commonwealth presented its case and on August 24, 2010 Appellant presented his case. On September 2, 2010, the Trial Court dismissed the summary count of Required Financial Responsibility and found Appellant guilty on the remaining charges. On September 2, 2010, the Trial Court sentenced Appellant at Count One (1) to one (1) year of probation and payment of restitution in the amount of four hundred forty three dollars and eleven cents ($443.11). Appellant was also ordered to pay twenty-five dollar fines on each of the summary level offenses and the costs of prosecution. On October 4, 2010, Appellant filed a Notice of Appeal. On October 26, 2010, the Trial Court issued an Order directing Appellant to file a Concise Statement of Errors. On November 15, 2010, Appellant filed a timely Concise Statement of Matters. On July 15, 2011, Appellant filed a Petition with the Superior Court requesting a remand of the case for the Trial Court to rule on an after-discovered evidence claim. On August 12, 2011, Appellant filed a Post-Sentence Motion for a New Trial Based Upon Newly Discovered Evidence. On November 14, 2011, the Trial Court denied Appellant s Post-Trial Motion. This timely appeal followed. STATEMENT OF ERRORS ON APPEAL Appellant raises the following issue on appeal and it is set forth verbatim as follows: I. The Commonwealth failed to prove beyond a reasonable doubt that Mr. Conrad was the perpetrator of the crimes of Accident Involving Damage, Failure to Stop and Render Aid, and Careless Driving. The description provided to the police by the lone witness to the accident did not match Mr. Conrad. Furthermore, this witness observed the perpetrator as he and the perpetrator were driving their vehicles on a wintry night. Moreover, the out-of-court identification was unduly suggestive. Rather than show the witness an array of photographs and ask whether the perpetrator was or was not there, the police showed the witness a single photograph of Mr. Conrad, which clearly insinuated that Mr. Conrad was indeed the perpetrator. Accordingly, the in-court identification was entirely unreliable. Under these circumstances, the identification evidence was legally insufficient to convict Mr. Conrad of any crimes. 5 FACTS On December 16, 2009, at approximately seven (7) o clock in the evening, Mr. Todd Milfred Shelly (Shelly) was traveling on Arch Street in the South Hills area of Allegheny County. Shelly was operating a 2002 Chevy Suburban. While traveling on Arch Street Shelly saw Appellant driving towards him on his side of the road. Appellant was operating a black Tahoe Suburban which was very similar to Shelly s vehicle. Shelly moved to the right side of the roadway as far as he could, but there was a telephone pole abutting the roadway which limited his maneuverability. Appellant s vehicle struck Shelly s vehicle. Shelly stopped his vehicle expecting Appellant to do the same, but instead Appellant drove off at a high rate of speed. (T.T. I 8-9) 6. Shelly immediately turned his vehicle around and followed Appellant, never losing sight of the vehicle. Shelly s girlfriend wrote down Appellant s license plate number. Shelly had an opportunity to pull along side Appellant s vehicle on Sleepy Hollow Road

13 august 10, 2012 page 329 when Appellant had to stop for a traffic control signal. Shelly had his passenger put her window down and Shelly told Appellant, hey, buddy, you hit my truck. Appellant responded with slurred speech that was incoherent. Shelly told Appellant that he believed that he was drunk and that he was going to call the police. (T.T. I 10-12). Appellant continued his flight and Shelly followed Appellant until Appellant parked into a driveway of a home. Appellant got out of his truck and entered the house. Shelly called the police and gave them Appellant s description and the house number. Shelly went further down the street to wait for police. (T.T. I 12, 14). Officer Kress of the Borough of Castle Shannon Police Department arrived at the address and knew this to be Appellant s family home as he was familiar with the household. He observed Appellant s vehicle in the driveway and observed that the left side mirror was broken and hanging off the truck. He walked up to the vehicle and felt the hood of the car which was warm and heard the exhaust popping and cooling. Officer Kress approached the door to the home, and John Conrad Sr., Appellant s father, approached the door at the same time. Officer Kress advised Appellant s parents about the accident, his observations of the vehicle in the driveway, and he requested to speak to Appellant. Officer Kress s request to check the home for Appellant was denied and he left the scene. Officer Kress interviewed Shelly and filed the charges noted hereinabove. (T.T. I 29-31). DISCUSSION I. Appellant raises as his sole issue that the identification evidence produced at trial was legally insufficient to convict Appellant of any crimes. 7 Appellant s claim is without merit. The Superior Court has stated that the applicable standard of review as follows: The standard we apply when reviewing the sufficiency of the evidence is whether viewing 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 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 combine 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. Furthermore, when reviewing a sufficiency claim, our Court is required to give the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. McClendon, 874 A.2d 1223, (Pa. Super. 2005). The Trial Court has set forth a detailed recitation of facts ( Fact ) hereinabove and respectfully incorporates that by reference for purposes of the present discussion. See supra at 5-7. Because this issue has been waived the Trial Court finds it unnecessary to discuss each particular of the identification issue that Appellant has attempted to raise. Nonetheless in the interest of judicial economy, the Trial Court notes that the identification evidence was sufficient for the for the following reasons: (1) Shelly personally viewed Appellant at the intersection of Sleepy Hollow Road and Grove Road when he put down his window and Appellant responded to him; (2) immediately following the accident, Shelly wrote down Appellant s license plate number; (3) Shelly followed Appellant s vehicle until it parked in the driveway of a home; (4) Shelly watched Appellant exit his vehicle and enter the house; (5) Police Officer Kress had personal knowledge of the individuals who resided at the home and confirmed that information, (6) Officer Kress observed Appellant s vehicle in the driveway with a broken mirror and felt the hood of the car which was warm and (7) Shelly positively identified Appellant at trial. (T.T. I 8-14, 29-31). The direct and circumstantial evidence presented in this case was sufficient to prove Appellant guilty of all offenses beyond a reasonable doubt. See Commonwealth v. Hilfinger, 615 A.2d 452, 457 (Pa.Super. 1992)(evidence sufficient where victim testified that her vehicle sustained damage from accident, she identified defendant as perpetrator, and he did not stop to identify himself or offer assistance). a. Accidents Involving Damage Appellant challenges the sufficiency of the evidence presented at trial convicting him of the crime of Accidents Involving Damage. The applicable statute reads as follows: Accidents involving damage to attended vehicle or property (a) General rule. The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary. 75 Pa.C.S.A In order to find Appellant guilty of Accidents Involving Damage, the Commonwealth had to prove beyond a reasonable doubt that Appellant knew or should have known that he was involved in an accident. See Commonwealth v. Karl, 490 A.2d 887, 889 (Pa.Super. 1985). In Commonwealth v. Kauffman, 470 A.2d 634, 640 (Pa.Super. 1983), the Superior Court held that the evidence was sufficient to convict the defendant of violating 75 Pa.C.S.A. 3743, even though the defendant claimed at trial that he was not aware that he struck a car. The Court in Kauffman concluded that the Commonwealth could sustain its burden of proof by proving beyond a reasonable doubt that a driver knew or should have known that he was involved in an accident involving damage to a car. Id. Here, the Trial Court found that: (1) Appellant s vehicle struck the victim s vehicle; (2) instead of stopping after the collision, Appellant drove off at a high rate of speed; (3) the victim immediately turned around to follow Appellant and noted his license plate

14 page 330 volume 160 no. 16 number; (4) the victim caught up to Appellant at an intersection and informed him that he hit his vehicle; (5) Appellant responded to the victim with slurred speech that was incoherent and he drove off; (6) the victim called the police; (7) the victim followed Appellant to his home and watched him park his truck in the driveway and go into his home; (8) Officer Kress observed that the left side mirror was broken and hanging off Appellant s truck and that the hood of the car felt warm and the exhaust was popping and cooling. (T.T. I 8-14, 29-31). The evidence was sufficient to sustain the verdict. See Hilfinger, 615 A.2d at 457. b. Duty to Give Information and Render Aid Appellant challenges the sufficiency of the evidence presented at trial convicting him of the crime of Failure to Stop and Render Aid. The applicable statute reads as follows: 3744 Duty to Give Information and Render Aid (a) General rule. The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving, and shall upon request exhibit his driver s license and information relating to financial responsibility to any person injured in the accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident and shall give the information and upon request exhibit the license and information relating to financial responsibility to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in the accident reasonable assistance, including the making of arrangements for the carrying of the injured person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if requested by the injured person. 75 Pa.C.S.A A motorist has a duty under the vehicle code to remain at the scene, supplying identification, documentation of vehicle ownership and insurance coverage. See Commonwealth v. Proctor, 657 A.2d 8, 12 (Pa.Super. 1995). Here, the evidence at trial proved that Appellant: (1) did not remain at the scene of the accident; (2) was informed by the victim at an intersection that he had been involved in an accident; (3) fled to his home without giving information or aid. (T.T. 8-12). The evidence was sufficient to sustain the verdict. See Hilfinger, 615 A.2d at 457. c. Careless Driving Lastly, Appellant challenges the sufficiency of the evidence presented at trial convicting him of the crime of Careless Driving. The applicable statute reads as follows: 3714 Careless Driving (a) General rule. Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense. 75 Pa.C.S.A In order to sustain a conviction for Careless Driving the Commonwealth need only prove that Appellant operated his vehicle with a careless disregard for safety of persons or property. See Commonwealth v. Bullick, 830 A.2d 998, 1003 (Pa. Super. 2003)(evidence sufficient where it demonstrates that defendant drove with a careless disregard for safety of persons or property). Here, the evidence at trial proved that Appellant: (1) Appellant s vehicle struck the victim s vehicle; (2) instead of stopping after the collision, Appellant drove off at a high rate of speed; (3) was informed by the victim at an intersection that he had been involved in an accident; (4) fled to his home without giving information or aid. (T.T. I 8-12). The evidence was sufficient to sustain a verdict. 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: May 10, Pa.C.S Pa.C.S (a) Pa.C.S (a) Pa.C.S (f). 5 The Trial Court notes that Appellant s rather verbose issue provided in the Concise Statement of Errors pursuant to Pa.R.A.P. 1925(b) could be viewed as waived under Pa.R.A.P. 1925(b)(4)(iv) which states, The Statement should not be redundant or provide lengthy explanations as to any error. Where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver. See Commonwealth v. Williams, 959 A.2d 1272, 1276 n.1 (Pa.Super. 2009)(court noted lengthy concise statement citing Rule 1925(b)(4) but did not find waiver). 6 The letters T.T. I refer to pages of the non-jury trial transcript dated July 13, Appellant s sole issue encompasses two (2) additional issues arguing that the out-of-court identification unduly suggestive and the in-court identification was entirely unreliable. The issues regarding the identification of Appellant were never raised in an Omnibus Pre-Trial Motion nor was a present and contemporaneous objection lodged during trial regarding the identification evidence. Therefore, any issues regarding the identification of Appellant have been waived. See Commonwealth v. Ali, 10 A.3d 282, 292 (Pa. 2010)(concise statement is not a substitute for a contemporaneous objection at trial). See also 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).

15 august 10, 2012 page 331 Tarai Harris v. Housing Authority of the City of Pittsburgh Miscellaneous Public Housing Eviction Hearsay Evidence No. SA In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. Friedman, J. April 25, OPINION INTRODUCTION The Housing Authority of the City of Pittsburgh has appealed our Order dated December 23, 2011, granting the appeal of Tarai Harris from the Authority s decision to terminate her Section 8 housing benefits. In its Statement of Matters Complained of on Appeal, the Authority raises the following issues, quoted in full below: 1. The Court erred in overturning the hearing officer s decision without making a finding that either (1) necessary findings of fact were not supported by substantial evidence, (2) an error of law was committed, or (3) the decision resulted in a violation of Ms. Harris s constitutional rights. 2. The Court erred in overturning the hearing officer s decision without making a finding that the hearing officer exercised a manifest and flagrant abuse of discretion or an arbitrary execution of her duties. 3. The Court erred in substituting its own discretion for that of the hearing officer s. 4. The Court erred in disregarding the hearsay evidence that was heard and considered by the hearing officer. 5. The Court erred in finding that the non-hearsay evidence considered by the hearing officer did not support the hearing officer s decision. 6. To the extent that HACP cannot readily discern if there was any basis for the Court s decision that was not identified in the Order, HACP pleads in general terms, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b)(4)(vi), that the Court s ruling was against the weight of the evidence. DISCUSSION As we indicated in our Order, there was insufficient evidence that was not hearsay to support the decision that a person arrested by the police was residing with Ms. Harris without authorization. Counsel for Ms. Harris made appropriate objections to the various items of hearsay offered by the Authority. In Commonwealth v. Contakos, 21 Pa.Commw. 422, 346 A.2d 850 (1975), the Commonwealth Court quotes the standard for the admissibility of evidence under the Administrative Agency Law, 71 P.S : Agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonable probative value may be received. Reasonable examination and cross-examination shall be permitted. The Court then states very clearly: The hearsay rule, however, is not a technical rule of evidence but a fundamental rule of law which ought to be followed by administrative agencies at those points in their hearings when facts crucial to the issue are sought to be placed upon the record and an objection is made thereto. 21. Pa.Commw. at 425, 346 A.2d at 852 (Citations omitted. Emphasis added.). We based our ruling on what we believed at the time was the only transcript, of a Grievance Hearing held on March 10, When reviewing the file in connection with this opinion, we realized for the first time that another hearing had been held on May 12, 2011, even though there had been no request for a continuance by anyone at the March 10 hearing. 1 We believe that the second hearing was improperly scheduled and that the Hearing Officer s reliance on hearsay at that hearing was also improper. In her Decision, the Hearing Officer notes that there was not enough testimony presented [at the first hearing] to make a decision. No officers were present at the initial hearing. Of course there was enough testimony presented at the first hearing for a decision; there just was not enough evidence presented to justify the Authority s termination of Ms. Harris s Section 8 benefits. We note that the additional evidence presented at the second hearing did not correct the deficiency, as will be discussed later herein. THE FIRST GRIEVANCE HEARING The testimony that was properly admitted at the March 10, 2011 hearing is summarized below: A Housing Specialist with the Authority testified that she received notification of an arrest of a person named Daryl Leeper at the premises rented by Ms. Harris. The arrest occurred on October 15, According to the Housing Specialist, the crime for which Mr. Leeper was arrested did not occur on the subject premises. The Authority s Public Safety Director testified that an article in the newspaper caused her to investigate Ms. Harris s household. Ms. Harris testified that Mr. Leeper was a friend of the family who had come with her brother and cousin the night before to help her with an expected delivery on October 15, 2010, of a freezer and a bedroom suite she had purchased at a liquidation sale. When the police arrived, she canceled the delivery but she offered into evidence [t]he receipt and the confirmation for me getting my items delivered. (HT 6.) The Authority objected but the objection does not appear to have been sustained. The grounds for the objection were not stated and are not apparent. At the first hearing, the closing argument of the Authority to the Hearing Officer was as follows: Miss Ogbara [the Housing Specialist] did testify that Mr. Leeper gave Miss Harris s address as his address. We note that this hearsay had been objected to and that the objection should have been sustained. The Authority s closing continues, As he is not on the lease, and because of the fact that he was arrested for alleged drug activity, at that place, at that time, I would say that the Section 8 Termination for Miss Harris should stand. We note that the Authority s own evidence was that the criminal activity did

16 page 332 volume 160 no. 16 not take place on Ms. Harris s premises. The closing argument of counsel for Ms. Harris, reiterated her objection to hearsay relating to what Mr. Leeper may or may not have told the Police Officer, who then related it to a third party, correctly pointing out that if accepted for the truth of where Mr. Leeper resided, it was inadmissible hearsay. Counsel then went on to complete her argument. As the hearing was winding down, after the closing arguments, counsel for the Authority indicated that she wished to state on the record that we did subpoena an Officer to be here today, and he was not present. She did not request a continuance so that the subpoena could be enforced nor was there any indication from the Hearing Officer that a continuance would be ordered. The Hearing Officer was asked to rule on certain unspecified documents, and indicated that she was not admitting the Police Report or the other unspecified documents into evidence. The hearing, held on March 10, 2011, then concluded. THE SECOND GRIEVANCE HEARING As previously indicated, the Record includes a transcript of a second hearing, on May 12, 2011, to which counsel for Ms. Harris objected as follows: Miss Droll: If I could preliminarily put an objection on the record. We had the Grievance Hearing back on March 10th. Miss Harris appeared and testified regarding the matter. We left, the record was closed as I understand it. And then we received a Notice to come back for this Hearing. I just want to put on the record, that we object to the continuation of the Hearing. It s my feeling that the record is actually closed. There s no request for a continuance, or discussion of a continuance at that Hearing. It was not until we received the Notice to come back in, so I just wanted to put that on the record that I felt that record had indeed, closed, and was closed, so that the basis for the decision should be what was presented at the Hearing on March 10th. Hearing Mr. Ciroli. Officer: Mr. Ciroli: I was not here at that Hearing, so I don t know exactly what was requested or asked for. Although the Hearing Officer here did that Hearing back in March. Miss Droll: Oh, okay. Mr. Ciroli: This is the continuance that you had sent out. Hearing And Miss Droll, I m sorry. What were you objecting? Officer: Miss Droll: Well, we had the Hearing, and Miss Harris appeared. She testified; presented her evidence; and the Hearing closed. I think there was, indicated that they had asked for an Officer to be present, but there was no request for a continuance. Nothing was held open, and then we left. And then it wasn t until I received the Notice indicating that the matter was going to be heard again for an Officer to appear. So it s my position that the record closed on that day. There wasn t any discussion, or request for a continuance at that time. All there was, Miss Harris appeared and gave her testimony. And so, I understood that was going to be the basis for the decision. Hearing Officer: Okay. Based upon my request, had you notified out Legal Department or anything else about the continuance? Have your spoken with Mr. Ciroli prior to this? Miss Droll: No I didn t. No. I d gotten the Notice from the Office after receiving your Decision. But, no, I didn t have any contact with them. My understanding of your decision had been made [sic]. So I wanted to put my objection on the record {unintelligible} because I did feel the record was closed. Hearing Okay. I will note your objection, but I would like to move forward. Officer:.... Despite the fact that there had been no continuance requested at the March 10th hearing, the Hearing Officer allowed the second hearing to proceed, even allowing the Housing Specialist who had previously testified to testify again, apparently because this time the Authority had a different attorney representing it and he wasn t sure what had happened at the last hearing. Counsel for Ms. Harris objected to this, pointing out that a record of the first hearing had been created. On cross-examination, the Housing Specialist gave evidence of the Authority s knowledge of Mr. Leeper s address at the time of his arrest being 1535 Summerdale Street, 2 not Ms. Harris s home at 3103 Ashlyn Street. 3 (This evidence was also hearsay but was not objected to by the Authority and so is properly admitted. It was not accepted at the first hearing.) The letter from the Authority to Mr. Leeper is attached to the Appeal as Exhibit C-1. It is dated October 19, 2010, four days after Mr. Leeper was arrested. The remainder of the Authority s evidence at the second hearing consisted of the testimony of a police officer (his rank and employer are not of record) who offered some first-hand, non-hearsay, knowledge regarding Mr. Leeper s activities in an alley off Ashland Street, a few blocks from Ms. Harris s home, as well as his surveillance of Mr. Leeper on one occasion. (Second HT, p. 10.) The officer also indicated that Mr. Leeper had initially given his address as 1535 Somerdale Street and later kind of told us he was staying at Ashland. When asked about what types of things he found in Ms. Harris s residence that indicated he was living there, the officer stated there was only junk mail. There was no indication, hearsay or otherwise, that clothing or any other possessions belonging to a grown man were found anywhere on the premises, nor was there any indication that Mr. Leeper and Ms. Harris had a romantic relationship. Junk mail is insufficient proof of residency even under the relaxed standards applicable to a grievance hearing. Ms. Harris also testified again at the second hearing. The Hearing Officer stated in her Decision that she did not find Ms. Harris credible, so we did not consider Ms. Harris s testimony at all when reviewing the transcript of the March 10 hearing, nor do we consider it now that we have reviewed the transcript of the second hearing. The issue we considered then, and again in this Opinion, is whether there was sufficient non-hearsay evidence present which, if believed, would support the findings of the Hearing Officer. We certainly did not substitute our own discretion for that of the hearing Officer, one of the matters raised by the Authority on appeal. The following findings were implicitly made by the Hearing Officer, although she states them in the form of summaries of testimony:

17 august 10, 2012 page That beginning in October 2010 the officer had made several drug transactions with Mr. Darryl Leeper. 2. That the officer observed Mr. Leeper exit and enter 3103 Ashlyn Street at the time of the drug transactions. 3. That when the Pittsburgh Narcotics Department searched 3103 Ashlyn Street, a small amount of narcotics and a handgun were found. 4. That Mr. Leeper was present at the unit on the date of the early morning search. 5. That, when the police entered the unit, Mr. Leeper was in his underwear. 6. That mail addressed to Mr. Leeper was found inside 3103 Ashlyn Street. Based on those findings, the Hearing Officer made the following conclusion and denied the grievance: The testimony that Mr. Leeper was seen on numerous occasions leaving the house to make a drug transaction, the fact that drugs and a handgun was [sic] found in the house and that Mr. Leeper was seen at the house on many occasions, had mail in his name addressed to the Ashlyn Street address, and the fact that he was dressed in only his underwear during an early morning police raid is sufficient to find that the household was involved in drug related activity and that Mr. Leeper was an unauthorized occupant of the household. The Record, however, supports only the never-disputed contentions that Mr. Leeper was involved in drug-related activity off the premises and that he was arrested at Ms. Harris s home based on a warrant related to his earlier conduct off the premises. The officer who testified did not find any drugs himself and there was no evidence that any drugs were found on Ms. Harris s premises rather than on Mr. Leeper s person. There was no evidence of a handgun being found on Ms. Harris s premises. In fact, the reason for the termination that led to both hearings was that Mr. Leeper was an unauthorized resident of the premises who had committed a crime, not that drugs were found on the premises nor that a crime had taken place on the premises. See the 30-day Termination Notice, attached to the Appeal as Exhibit B, which refers to a violation of HUD regulations related to Occupancy and family member violation, citing 24 CFR (h)(2), 982,552(b)(5), and (c). Those regulations are quoted in pertinent part below: Obligations of participant..... (h) Use and occupancy of unit..... (2) The composition of the assisted family residing in the unit must be approved by the PHA. The family must promptly inform the PHA of the birth, adoption or court-awarded custody of a child. The family must request PHA approval to add any other family member as an occupant of the unit. No other person [i.e., nobody but members of the assisted family] may reside in the unit (except for a foster child or live-in aide as provided in paragraph (h)(4) of this section) PHA denial or termination of assistance for family..... (b) Requirement to deny admission or terminate assistance..... (5) The PHA must deny or terminate assistance if any family member fails to meet the eligibility requirements concerning individuals enrolled at an institution of higher education as specified in 24 CFR Denial of admission and termination of assistance for criminals and alcohol abusers..... (c) Evidence of criminal activity. The PHA may terminate assistance for criminal activity by a household member as authorized in this section if the PHA determines, based on a preponderance of the evidence, that the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity. In summary, the six issues raised in the Authority s Statement of Matters Complained of on Appeal are without merit. The Record reveals that the Hearing Officer s Decision was not supported by substantial evidence. That being the case, there was no need for an additional statement in the Order that the hearing officer exercised a manifest and flagrant abuse of discretion or an arbitrary execution of her duties, although the improper scheduling of the second hearing suggests that this indeed occurred. Also, as previously stated, we did not substitute our own discretion for that of the hearing officer s. We properly disregard[ed] the hearsay evidence that was heard and considered by the hearing officer. We note that even if the hearsay is considered, the statement of a criminal that he is living in Ms. Harris s home when the Authority is aware that he is listed as a resident in his mother s home is hardly substantial evidence of his actual residency. Mr. Leeper s supposed statement that he lived with Ms. Harris, even when combined with the only other evidence, the presence of some pieces of junk mail, is insufficient to constitute substantial evidence of his residency in Ms. Harris s home. Even the Hearing Officer concluded that the non-hearsay evidence, i.e. that presented at the first hearing, was insufficient to justify the termination of Ms. Harris s Section 8 benefits: that was the stated reason that she ordered the second hearing. Lastly, the general complaint in Item 6 of the Statement of Matters, that the Court s ruling was against the weight of the evidence, is without merit. Although this concept is not obviously applicable to a statutory appeal, the weight of the evidence, if anything, is against the Decision of the Hearing Officer.

18 page 334 volume 160 no. 16 CONCLUSION We properly concluded that the Section 8 benefits of Ms. Harris were improperly terminated. The Authority s instant appeal is without merit and should be denied. BY THE COURT: /s/friedman, J. Dated: April 25, Our failure to notice the second transcript was not the fault of either party. In fact, counsel for Ms. Harris pointed it out in her brief. The transcript of the second hearing was there, in the Record, right after the transcript of the first hearing. We simply did not expect there to have been such a hearing and so never looked beyond the first transcript at the time of our first review. We probably had read the transcript at a break in the other matters we were attending to and did not then have time to do anything more with the case until another break. 2 The transcripts spell Mr. Leeper s address as either Sommerell Street or Somerdale Street. The address the Authority itself used in its correspondence to him is spelled Summerdale. 3 The transcripts spell Ms. Harris s address as Ashland Street. The address the Authority itself used in its correspondence to her is spelled Ashlyn. Ruth A. Diecks v. George O. Romanos Protection from Abuse 1. The trial court initially heard a Petition for Protection from Abuse with four allegations of indirect criminal contempt, with an order being entered that encompassed all issues, but stated that the order was a Final Protection from Abuse Order and that no further action was being taken on the charges of indirect criminal contempt. It should be noted that the plaintiff never at any time requested an extension of the protection term as a result of the findings of indirect criminal contempt. 2. On the initial appeal, the Superior Court remanded the matter for imposition of sanctions for the indirect criminal contempt findings, indicating that such was mandatory at any time that indirect criminal contempt is found. This posed a difficulty to the trial court as the original term for the protection from abuse had expired and, therefore, could not be extended to add additional protection time as a result of the findings of indirect criminal contempt. The trial court found it to be nonsensical to reinstate a new protection term simply to be able to extend it as a result of the findings of indirect criminal contempt. 3. The trial court reasoned that the original sentence that was imposed did encompass the original Petition for protection from abuse as well as the relating indirect criminal contempt charges. 4. The trial court reasoned that the only way an extension of the original protection term could be ordered was to extend it retrospectively which appeared to be rational, particularly since there has not been further contact between the parties and, therefore, no need for any further protection. 5. The trial court reasoned that it was free to issue protection terms for whatever length of time in its discretion was deemed appropriate and this same discretion applied to the imposition of penalties for an indirect criminal contempt conviction. It was imperative to use common sense and the trial court determined that it was not necessary for further punishment to be imposed. Rather, since the goal of protection had been achieved, a retroactive extension of the protection term, of one week for each of the four violations, was considered to be fully appropriate. The trial court reminds us that the defendant s violations of the original order were the result of his not fully understanding the order and once he did understand it, the violations ceased. (Christine Gale) Jonnie Joseph for Plaintiff/Mother. George Romanos, Pro Se Defendant/Father. No. FD In the Court of Common Pleas of Allegheny County, Pennsylvania, Family Division. Bubash, J. April 25, COMMENT This is the second appeal filed by Plaintiff Diecks in this matter. Before I address Plaintiff s matters raised, I want to discuss a procedural issue of import. In Diecks first appeal at 1811/1812 WDA 2010, she claimed that I erred in not extending the term of the PFA after I found Romanos guilty on the four ICC charges proffered against him. (The PFA allegations and the ICC charges were heard at the same time. I entered a final PFA and took No further action on the charges of ICC.) Diecks position was based on 23 Pa.C.S.A. 6114(b)(4). which states Upon conviction for indirect criminal contempt and at the request of the plaintiff, the court shall also grant an extension of the protection order for an additional term. In the first appeal, I failed to point out that the plaintiff in this case never, at any time, requested an extension of the PFA term as required by 23 Pa.C.S.A. 6114(b)(4). It is the request by the plaintiff that triggers the mandatory extension of the PFA. My failure to address this issue in my Opinion at 1811/1812 opened the door for the Superior Court s remand directing me to impose a new PFA with a duration that includes an extension for additional terms based upon the ICC convictions (see Memorandum Opinion of 12/1/2011 at p. 10). It was the action I then took to comply with that Order of Remand that forms the basis for this instant appeal. Had I pointed out in my first Opinion that Diecks had failed to request an extension of the term of the PFA, as required by the statute, we might not be here today on this second appeal, as my decision was upheld on all other matters. For a number of reasons, I found myself in a quandary in attempting to comply with the Remand Order. First, I had come to

19 august 10, 2012 page 335 realize that the Plaintiff had never asked for an extension as required by 23 Pa.C.S.A. 6114(b)(4). Second, at the time of the remand, I knew the underlying PFA I issued had expired as of October 22, 2010, more than thirteen months prior. I was also aware that my initial sentencing scheme had, in fact, thoughtfully considered the charges of ICC. It seemed nonsensical to reinstate a new PFA term with a present start date just so that I would have something to extend, especially as I had become aware that Diecks had never asked for the extension. There was no existing PFA to extend as it had already expired and Defendant was clearly not a current threat to Plaintiff. Third, I was aware that, although I had not stated my reasons for taking no action on the ICC charges, I had fashioned a sentence which I considered appropriate after hearing all of the evidence, including that relating to the ICC charges. Had the Plaintiff requested an extension, I believe the resulting length of protection would have been no different. Today, it has been 21 months with no rustlings between the parties. It is a rare moment in a PFA case where a court has the benefit of hindsight as I did, as far back as October of It would not seem to be correct at this time to go back and remove the 4 weeks of protection which were added in error. It would seem that the only rational response would be to let the matter stand as it is. I make the suggestion to let this matter rest with all due respect and recognition that it was my omission that causes us to be visiting this matter today. Background On July 30, 2010, Defendant Romanos filed a Motion for Reconsideration and Dismissal of the three-year Protection from Abuse (PFA) Order to which he had consented on May 14, A hearing was scheduled before me on October 5, 2010 on both the merits of his petition and to hear evidence on four counts of indirect criminal contempt (ICC). At the October 5th 2010 hearing, I determined that an unrepresented George Romanos had consented to a 3 year PFA, without an appropriate colloquy, and that he had not clearly understood the ramifications of his consent. I found it was also likely the ICC violations were related to his failure to grasp the nature of the settlement to which he had consented. 1 I granted Romanos a new hearing on both the PFA and the allegations of ICC and same was held on October 20, By the time of the October 20, 2010 rehearing, Diecks had been protected by a temporary protection order from May 7, 2010 to May 13, 2010 and then by the first final PFA from May 13, 2010 to October 20, A total period of protection of 166 days, nearly one half a year. Accordingly, I issued a final PFA to expire on October 22, two days later. Though seemingly a short time, the Court was aware that there had never been physical contact, that the PFA emanated from the break-up of the parties short dating relationship, that there had been actual protection for five months, and that there had been no contact for over three months, facts, among others, which I took into consideration in determining the length of the PFA and in taking no further action on the ICC charges. An appeal was taken, and in my Opinion in that appeal I did not address the critical issue that an extension of the PFA upon a finding of contempt is only required when the plaintiff triggers it by requesting the extension. The matter was remanded with direction to reissue a PFA and to extend the term of the PFA. On remand, I extended the term of the PFA retrospectively, as there was no other rational method by which to follow the directive of the Superior Court. OPINION My first Opinion, filed at 1811/1812 WDA 2010 on March 21, 2011, set forth the relevant underlying facts and original procedural history in this PFA case. Those facts are quoted verbatim in the Superior Court s December 2, 2011 Memorandum Opinion (Superior Court Opinion, 12/1/2011 at p. 2-3), and, therefore, those facts will not be repeated here. The Superior Court reversed and remanded only my failure to add additional terms for the ICC convictions, stating:..while the trial court found that Romanos was no longer a threat to Diecks, it was obligated to extend the term of the PFA Order under 6114(b) because (1) it found that Romanos had violated the PFA Order by committing ICC; and (2) Diecks sought such an extension due to the violations. This, we must reverse the trial court s entry of the PFA Order and remand with instructions to file a new PFA Order with a duration that includes an extension for additional terms based upon the ICC convictions. Superior Court Opinion, 12/1/2011 at p. 10. In response, on December 10, 2011, I entered a PFA Order which extended the original PFA term one week for each ICC conviction, an Order with a retrospective effect only. Diecks filed a Notice of Appeal on January 12, 2012, and timely filed her Statement of Matters Complained of, raising five assignments of error which shall be addressed in order below. This Court first notes that, when reviewing a trial court s contempt conviction, the Superior Court is confined to a determination of whether the facts support the trial court s decision {and} will reverse the trial court s determination only when there has been a plain abuse of discretion. Com v Brumbaugh, 932 A.2d 108 (Pa.Super 2007). The standard of review in challenging a discretionary aspect of a sentence is very narrow. Com v Hermanson, 674 A.2d 281(Pa.Super.1996) When reviewing a contempt conviction, much reliance is given to the discretion of the trial judge. Com v Haigh, 874 A.2d 1174 (Pa.Super. 2005). Sentencing is generally a matter best vested in the sound discretion of the trial judge. Com v Hess, 745 A.2d 29 (Pa.Super.2000). A. Diecks first assignment of error references the length of time of the extensions Ordered by the Court, as follows: a. The trial court erred as a matter of law when, upon finding Defendant guilty on four counts of indirect criminal contempt and after instruction on remand, it failed to extend Plaintiff s Final PFA Order for an additional term of three years pursuant to Section 6114(b)(4) of the Protection from Abuse Act. Diecks interpretation that the required term extension is three years is incorrect. Section 6114(b)(4) sets forth a series of possible penalties for violation of a PFA, all of which are discretionary save for the imposition of an additional term. Term is not defined in the Act. Under the Act, the courts are granted wide discretion in determining the term of a PFA, the only restriction being that the maximum term is three years. A trial court is free, within the bounds of its discretion, to issue a PFA for whatever lesser term it deems appropriate, based on the facts of the case. That same discretion applies to the imposition of the penalty for an ICC conviction. In this case on remand, I exercised my discretion and imposed a sentence of extension for the ICCs that I deemed appropriate under the actual facts of the case, and which was consistent with the purpose of the PFA Act. Additionally, as the Court stated in Haigh, supra.: It is imperative that judges use common sense and consider the context and surrounding factors in making their determinations. (emphasis added) At the time of this remand, there had been no contact

20 page 336 volume 160 no. 16 between these parties for over a year. The imposition of a new three year extension to begin after remand would have flown in the face of common sense. Appellate review of sentencing decisions is limited to determining whether the decisions are reasonable. Gail v US, 522 U.S. 38 (U.S. 2007). The concept of what is reasonable is a fluid one and inherently circumstance dependent. To determine if a sentence is unreasonable, the criteria include the nature and circumstances of the offence, the history and characteristics of the Defendant and the opportunity of the sentencing court to observe the Defendant. 42 Pa.C.S.A In this case, I had the benefit of hearing the facts and observing the Parties months after there had been any contact between them. These observations are what led to the determination that a longer period of protection was not necessary for Diecks and that longer punishment would place unnecessary restrictions on Romanos freedoms. This Court was directed by the Superior Court to enter a new PFA Order which included extensions for the four ICC convictions. I did exactly that. I was not directed, as Diecks implies, to enter a specific term, let alone an additional three year term. Nor would the issuance of such a term been appropriate under the circumstances of this case. B. Diecks second assignment of error goes to the retrospective nature of this Court s Order on remand: b. The trial court erred as a matter of law and abused its discretion when on remand it entered an order on December 16, 2011 that contained no present relief to Plaintiff because it entered a retrospective order continuing an order of October 20, 2011 to November 21, Again, this Court notes that the final PFA entered on October 20, 2010 had expired prior to Diecks first appeal. Over a year and a half later, there has been no contact between the parties. To impose the sanction of an additional term to begin upon receipt by this Court of the remand would result in an absurdity, as the extension would go into effect more than one year after the termination of the PFA, which had already afforded the Plaintiff complete protection as anticipated by the Act. Admittedly, the retrospective application of my Order on remand gave Plaintiff no future relief nor imposed any new punishment on Defendant. Neither, however, was warranted as there had been no contact since July of My Order followed the directive of the PFA Act and the Superior Court but without imposing unwarranted present, and future restrictions on the Defendant, when there is no present threat or danger to Diecks, and Diecks was successfully protected. C. Thirdly, Diecks states: c. The trial court erred as a matter of law and abused its discretion when in its December 16, 2011 Order of Court it failed to follow the specific directive of the Superior Court from its memorandum opinion of December 1, 2011 at 1811 and 1812 WDA 2010 to file a new PFA Order with a duration that includes an extension for additional terms based upon the four ICC convictions. As noted above, this Court did enter an Order which followed the Superior Court s instructions, including additional terms for the ICC convictions. This court did not perceive nor does it believe that the word new meant (in futuro). More accurately, new was interpreted to mean a corrected order. D. In her fourth assignment of error, Diecks argues that the Court erred in not imposing one or more of the other discretionary remedies which are set forth in Section 6114 of the Act, stating: d. The trial court erred as a matter of law and abused its discretion when, upon finding Defendant guilty on four counts of indirect criminal contempt, it failed to enter a penalty pursuant to 6114(b) such as a fine, incarceration and/or supervised probation. Not only are these additional sanctions discretionary, but, in the first appeal, the Superior Court reviewed the determinations of this Court and made no finding of error as to this issue. Diecks position in this regard is without merit. E. Diecks posits that this Court did not follow the clear purpose of the PFA Act. Her last assignment of error states: e. The trial court erred as a matter of law and abused its discretion when it failed to follow the clear remedial purpose of the PFA Act, to stop abuse, prevent further abuse and to hold perpetrators of domestic abuse accountable for their actions, by failing to provide relief for Plaintiff that would achieve the goals of the Act. In the previous appeal, the Superior Court left undisturbed the term of the PFA which I imposed. Likewise, my extension of that PFA for four - one-week terms should also be left undisturbed, as it was within the proper discretion of the Court. The PFA Act s purpose is clearly stated: the purpose of the PFA Act is to protect victims of domestic violence from those who perpetrate such abuse, with the primary goal of advance protection of physical and sexual abuse. Lawrence v Bordner, 907 A.2d 1109 (Pa.Super 2006). Clearly, as Romanos has had no contact with Diecks for over 18 months, the goals of the Act had been achieved. This court is aware that contempt proceedings are distinct from PFA proceedings. PFA proceedings are initiated in an effort to stop prospective perpetration of abuse and are civil in nature, while ICC actions are criminal in nature and seek punishment for violation of a protective order. Com v Charnik, 921 A.2d 1214 (Pa.Super 2007). With regard to the violations in this case, none of which were physical, this Court found they were a result of Romanos just not getting it and that, once he did get it, the violations ceased. 3 At the time of the rehearing on October 20, 2010, the Defendant had not attempted to contact the Plaintiff since July 2010, about the time he obtained counsel. Over 18 months later at the time of the receipt of the remand, there had still been no contact. Plaintiff had clearly been protected. There is no further relief that the Plaintiff could justifiably require to achieve the goals of the Act. Moreover, this Court found the Defendant has been held sufficiently accountable for his actions. He was jailed on three occasions, {TR. p 29} and was terminated from his job. The PFA entered against him is a public record. Most importantly, an ICC conviction is an actual criminal conviction, not a civil remedy as is the underlying PFA. It is a criminal conviction conferring on the contemnor all of the negative characteristics of being a convicted criminal. Commonwealth v Baker, 722 A.2d 718, at 722 (Pa.Super. 1998). CONCLUSION The purpose of the PFA act is the advance prevention of physical and sexual abuse. As this goal has been achieved, the requirements of Section 6114(b) of the Act have been met, and the directive of the Superior Court followed, this Court s Order of December 16, 2011 should be affirmed.

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