Pittsburgh Legal Journal Opinions - ACBA · ... 2012 Order of Court granting the Petition to Intervene and Motion to Lift Seal ... The Motion to Lift Seal is granted, ... Pittsburgh

VOL. 160 NO. 20 october 5 , 2012

PITTSBURGH LEGAL JOURNALOPINIONS

allegheny county court of common pleas

City of Pittsburgh v.Fraternal Association of Professional Paramedics(Josie Dimon, grievant), Colville, J. Page ........................................393Miscellaneous—Labor Grievance Arbitration—Motion to Lift Sealed Record

Toni Bracken, Administratrix of theEstate of William Bracken, deceased v.Burchick Construction Company, Inc.,Jamison Lane, LP, Jamison Lane, LLC,Elmhurst Company, The Elmhurst Group,Elmhurst Company, d/b/a The Elmhurst Group,Patent Construction Systems and Harsco Corporation v.Kusler Masonry, Inc., Folino, J. ................................................Page 395Wrongful Death—Joinder of Additional Defendant—Indemnification—Workers Compensation Waiver

Michael Tranovich, M.D. v.Tri-Century Insurance Company, Friedman, J. ....................Page 398Contract—Insurance—Settlement—Authorization

Commonwealth of Pennsylvania v.Vernon Vos, Borkowski, J. ........................................................Page 399Criminal Appeal—Sufficiency—Summary Offense—Disorderly Conduct

Commonwealth of Pennsylvania v.David Japenga, Borkowski, J. ..................................................Page 400Criminal Appeal—Sufficiency—Identification—Weight of the Evidence—G20 Summit

Commonwealth of Pennsylvania v.Thomas Davis, Borkowski, J. ..................................................Page 403Criminal Appeal—Homicide(1st Degree)—Self Defense—Weight ofthe Evidence—Sufficiency—Suppression of Statements—Miranda

Commonwealth of Pennsylvania v.Christopher Cash, Borkowski, J. ..............................................Page 406Criminal Appeal—Sufficiency—Identification—Waiver—Sentencing (Discretionary Aspects)

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section EditorS

Civil litigation opinions committeeCecilia DicksonAustin HenryHarry Kunselman

Dennis KusturissBethann LloydBryan Neft

Civil Litigation: Cecilia DicksonCriminal Litigation: Victoria VidtFamily Division: Reid RobertsProbate and Trust: Mark ReardonReal Property: Ken Yarsky

Criminal litigation opinions committeeMarc Daffner Patrick NightingaleMark Fiorilli James PaulickDeputy D.A. Dan Fitzsimmons Melissa ShenkelBill Kaczynski Dan SpanovichAnne Marie Mancuso Victoria Vidt

family law opinions committeeReid B. Roberts, Chair Sophia P. PaulMark Alberts David S. PollockChristine Gale Sharon M. ProfetaMark Greenblatt Hilary A. SpatzMargaret P. Joy Mike StegerPatricia G. Miller William L. SteinerSally R. Miller

october 5 , 2012 page 393

City of Pittsburgh v.Fraternal Association of Professional Paramedics

(Josie Dimon, grievant)Miscellaneous—Labor Grievance Arbitration—Motion to Lift Sealed Record

No. SA 11-000242. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.Colville, J.—May 18, 2012.

OPINIONThe City of Pittsburgh appeals my April 5, 2012 Order of Court granting the Petition to Intervene and Motion to Lift Seal filed

on behalf of Theresa E. Thornton and Jeremiah C. Mitchell, as co-administrators of the Estate of Curtis L. Mitchell, Deceased(“Estate of Mitchell”). That Order states in pertinent part:

1. The Petition to Intervene is Granted;

2. The Motion to Lift Seal is granted, except that the seal shall not be lifted until the passage of thirty (30) days fromthe date of this Court Order. In the absence of action by the parties, the undersigned will issue an explicit Court Orderlifting the seal at SA11-000242 on May 7, 2012. If the parties seek appellate review of this Order, they may likewiserequest a stay of the lifting of the seal before the undersigned pending appellate review.

The City of Pittsburgh sought appellate review of the April 5, 2012 Order of Court prior to May 7, 20121

The substantive dispute underlying this appeal involves a statutory appeal of a labor grievance arbitration award filed withthis Court on March 14, 2011. Pursuant to a joint request of the parties involved at that time, the Court sealed the record inthis matter on April 15, 2011. During the pendancy of the action at SA11-000242 no one attempted to intervene and/or torequest that the Court lift the seal, and the substantive underlying labor grievance arbitration dispute has, since, beenresolved.

Subsequent to the substantive resolution of the matter at SA11-000242 the proposed intervener, Estate of Mitchell, presentedthis Court with a Petition to Intervene and a Motion to Lift the Seal. The Estate of Mitchell has filed a separate civil action at GD10-018368 seeking damages as a result of the death of Curtis Mitchell. The Estate of Mitchell alleges within that case that CurtisMitchell’s death was caused, and/or contributed to, by the conduct of individuals who are a party to the matter at SA11-000242,and whose conduct, was, in part, the substance of the dispute at SA11-000242.

In the context of the litigation at GD10-018368, the Estate of Mitchell is seeking discovery regarding the labor grievance arbi-tration matter at SA11-000242. Apparently, those discovery efforts have been thwarted, in part, as a result of my Order scalingthe records at SA11-000242. For this reason, the Estate of Mitchell now asserts a “legally enforceable interest” in the matter atSA11-000242 sufficient support its Petition to Intervene and Motion to Lift Seal. See: Tremont Township School District v. WAnthrosite Coal Company, 113 A.2d 234, 236 (Pa 1955). Estate of Mitchell asserts that its Petition to Intervene is timely inas-much as the Estate was unaware of the action at SA11-000242 during the pendancy of that action. M.J.M. Financial Services,Inc. v. Burgess, 533 A.2d 1092. 1094 (Pa Cmwlth 1987). The Estate of Mitchell asserts that Pennsylvania Courts have recognizedthat there is a presumption of public access and openness to court records. In re: Estate of Dupont, 966 A.2d 636, 638 (Pa Super2009).

In response to these arguments, the City of Pittsburgh has asserted2 that because the matter at SA11-000242 is now substantivelyresolved, this Court no longer maintains jurisdiction to act upon the request to lift the seal. I find no legal authority to support thiscontention.

The City further argues that the Estate of Mitchell has not established an adequate basis to intervene in the matter at SA11-000242. I conclude that the Estate of Mitchell’s interest in conducting appropriate and relevant discovery in the matter at GD10-018368 creates a more than adequate legally enforceable interest in the matter at SA-11-0002423

The City further asserts that there is no right that a court record be automatically opened simply because a request is madeEstate of Dupont, 966 A.2d 636, 639 (Pa Super 2009); and that a party’s interest in secrecy can outweigh the presumption of open-ness. PA Childcare, LLC v. Flood, 887 A.2d 309 (Pa Super 2006). In this regard the City and the Paramedics Union argue that theunderlying labor grievance arbitration process is protected from “Right to Know” requests and specifically designed to not be apublic proceeding. While this is true, it is also true that upon the City of Pittsburgh’s appeal from the underlying labor grievancearbitration process to the Court of Common Pleas, the entirety of the record created during the grievance process was made apart of the court record in the Court of Common Pleas of Allegheny County. While that record was subsequently placed underseal (by function of my April 15, 2011 court order), it is, undoubtedly, part and parcel of the Court of Common Pleas court record,and from the time of the filing of the appeal, March 14, 2011, it was presumptively an open court record, regardless of whatprivacy protections it may have enjoyed as a pure labor grievance arbitration proceeding. In this regard, to the extent that theparties are now asserting that they have materially relied upon my prior decision to seal the court record, it is a material consid-eration that the court record in this case was, at one time (albeit for only one month, prior to the entry of my order sealing thematter) a presumptively open matter subject to public review and scrutiny. The City and the Paramedics Union now argue thatthey have somehow justifiably relied on the sealing of the record and that the unsealing of the record would now be to their detri-ment. I am unaware of how the parties’ positions have materially changed from before the sealing of the record to after the seal-ing of the record such that their justifiable reliance could be seen to have caused some detriment. They are merely being placedin the same position that they were in when the statutory appeal was perfected and the Court of Common Pleas record waspresumptively open.

In addition, it is important to note that my order sealing this matter was not substantively argued or contested, but rather, wasa “consented to” order, entered upon the agreement of all the parties then involved in the case. Further, those parties should havefully understood by comments and cautions stated by the Court at that time that upon a motion to unseal the case, the Court wouldsubstantively revisit and review the necessity for sealing the matter.4

Notwithstanding the Court’s intention to substantively revisit the question of the appropriateness of sealing the matter if amotion to unseal the matter were presented, the City and Paramedics Union have asserted that a more stringent standard is appro-priate in reviewing a request to unseal the record (as opposed to the standard applicable in originally sealing the record). The case

page 394 volume 160 no. 20

law relied upon by the City and the Paramedics Union recognizes the practical reality that a court should, from a proceduralperspective, be free to rely upon its previous rulings and not be required to engage in repetitive detailed substantive analysis ofmerely repetitive requests to unseal a court File. But substantively, with the exception of situations where the parties have, in fact,materially and justifiably relied to their detriment upon the sealing of the record. I can imagine, and perceive in the relevant caselaw, no principled argument for why the standard for unsealing a court file should be different than the standard applicable indetermining whether the court file should be sealed in the first instance. Accordingly, for purposes of ruling upon the motion tounseal the records, and for purposes of this opinion, I employed no such distinction.

The Superior Court has stated:

There are two methods for analyzing requests for closure of judicial proceedings, each of which begins with apresumption of openness-a constitutional analysis and a common law analysis. [Citations omitted] Under the consti-tutional approach, which is based on the first amendment of the United States Constitution and Article 1, Section 11of the Pennsylvania Constitution, the party seeking closure may rebut the presumption of openness by showing thatclosure serves an important governmental interest and that there is no less restrictive way to serve that interest.Under the common law approach, the party seeking closure must show that his or her interest in secrecy outweighsthe presumption of openness. [Citations omitted]

In the interest of M.B., 819 A.2d 59 (Pa Super 2003). As a general proposition, the constitutional challenge described above involvesrequests made by the press or media for access to court records and involves a heightened level of scrutiny regarding the closureor sealing of such records. Although there is currently no formal request by the media or press for these records, there is no ques-tion but that the issues implicated in the labor grievance arbitration process, which specifically relate to public services and publicsafety issues in the City of Pittsburgh, would demand that the presumption of openness be recognized and upheld pursuant to theconstitutional analysis approach.

Turning to the less stringent common law analysis, which is more properly employed, as a general matter and in this case,where the party seeking the unsealing of the records is an individual pursuing an individual objective, the Court must deter-mine whether the party seeking closure can demonstrate that their interest in secrecy outweighs the presumption of openness.Interestingly, the City and the Paramedics Union have both asserted that the primary “secrecy interest” is that of the grievantin the labor grievance arbitration proceeding. Presumably, both the City and the Paramedics Union believe that the grievantwould not desire that her conduct, to the extent it is illustrated by the records of the grievance proceeding, be the subject ofscrutiny or examination by the Estate of Mitchell for purposes of the development of claims against the grievant and/or othersin the civil action being advanced by Mitchell. This is undoubtedly so, but such could be equally well said about any inquirymade by the Estate of Mitchell regarding any information which might form the basis of successful claims against the grievantor other parties in the civil action being prosecuted by the Estate of Mitchell. There is no specific, discrete, or particularlyexceptional basis for the grievant, the City of Pittsburgh, or the Paramedics Union to maintain secrecy with respect to theunderlying labor grievance proceedings. None of the substantive conduct that is the subject of those proceedings, was in anymaterial respect ever “secret,” “personal” or otherwise protected as confidential, (except that the grievance process itself is notgenerally subject to public review.) The subject conduct involves decisions and actions that the grievant made while in thecourse and scope of her employment as a paramedic for the City of Pittsburgh. To the extent that the underlying labor griev-ance arbitrations proceedings include any peripherally “secret.” “personal” or otherwise confidential information, the partiesprivacy rights can be more than adequately protected through utilization of confidentiality agreements, or protective orderswithin the context of the discovery process in the GD10-018368 matter. Those concerns do not, standing alone, warrant contin-ued sealing of the SA11-000242 matter.

The most specific concern that the City, Paramedics Union, or grievant raise is that, if the case is opened, the grievant’sconduct may become the object of media attention (and that the grievant may, consequently, suffer unwanted public criticism).To the extent such facts were to develop (although unfortunate for the grievant) they would, on balance, only serve to strengthenthe argument for lifting that seal. Such developments, specifically the media interest, would implicate the application of theless stringent constitutional analysis – that in my judgment would plainly result in a finding of a need for openness in that thepublic’s right to learn of and understand the municipal safety issues vis-a-vis the media’s requests would be significant andparamount.

For these reasons, I conclude that neither the City of Pittsburgh, the Paramedics Union, nor the grievant representedby the Paramedics Union in the underlying labor grievance arbitration proceeding have adequately shown that their interestin secrecy outweighs the presumption of openness traditionally afforded records filed in the Court of Common Pleas ofAllegheny County. Accordingly, this Court’s April 5, 2012 Order of Court lifting the seal at SA11-000242 should not bedisturbed.

BY THE COURT:/s/Colville, J.

1 Accordingly, the undersigned has not issued a more explicit Court Order lifting the seal at SA11-000242.2 In arguments before the undersigned, the Fraternal Association Professional Paramedics (representing the grievant paramedicwhose conduct is the object of scrutiny in both matters at GD10-018368 and SA11-000242, hereinafter “Paramedics Union”) hasjoined in the positions advanced by the City of Pittsburgh; however, to date, I am unaware that the Paramedics Union has formallyjoined in the City’s appeal.3 Whether the Estate of Mitchell’s discovery requests are otherwise appropriate and relevant is the proper object of review by thecourt overseeing the discovery process in the matter at GD10-018368, not myself.4 I am unaware of whether my comments and cautions regarding my intention to revisit the substantive issues of the appropriate-ness of sealing this record upon a motion to unseal the record were made a formal part of the record in this case, but there can beno doubt that such comments and cautions were issued, although, admittedly, my stated expectations at that time, were that sucha motion may be anticipated to come from the media.


Toni Bracken, Administratrix of the Estate of William Bracken, deceased v.Burchick Construction Company, Inc., Jamison Lane, LP, Jamison Lane, LLC,

Elmhurst Company, The Elmhurst Group, Elmhurst Company, d/b/a The Elmhurst Group,Patent Construction Systems and Harsco Corporation v. Kusler Masonry, Inc.

Wrongful Death—Joinder of Additional Defendant—Indemnification—Workers Compensation Waiver

No. GD 09-015529. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.Folino, J.—June 12, 2012.

OPINIONThe subject of this Opinion is the Motion for Leave to File Amended Complaint to Join Kusler Masonry, Inc., filed on behalf of

Defendant Burchick Construction Company, Inc. For the reasons set forth below, I am denying the Motion.

I.Burchick Construction Co, Inc. (“Burchick”) was the general contractor on a construction project known as 135 Jamison Lane. Burchick

entered into a subcontract with Kusler Masonry, Inc. (“Kusler”), under which Kusler was to perform masonry work on the project.Plaintiff ’s decedent, William Bracken, was an employee of Kusler. While working in the course and scope of his employment

with Kusler, William Bracken was killed in an accident at the work site. Toni Bracken, the Administratrix of the estate of WilliamBracken, then filed the within civil action seeking damages against general contractor Burchick pursuant to the PennsylvaniaWrongful Death and Survival Acts for the death of her spouse.

Burchick now brings the within motion seeking leave to join subcontractor Kusler Masonry Inc. as an additional defendant(hereinafter “Motion for Leave”). Burchick refers to this motion both as “Motion for Leave to File Amended Complaint to JoinKusler Masonry, Inc.” (on the cover page) and “Motion for Leave to Re-File Complaint to Join” (at paragraphs 11 and 14 of theMotion). Presumably, Burchick sometimes refers to the Motion as one to “re-file” because Burchick first filed a Complaint to JoinKusler Masonry Inc. as an additional defendant on January 8, 2010 (hereinafter “Motion to Join”). But, by order dated July 15,2012, I sustained Kusler’s preliminary objections to that complaint to join, and dismissed it with prejudice. At any rate, for clarity’ssake, I shall refer to the current motion before me as Burchick’s Motion for Leave to Join Kusler.

II.In its Motion for Leave to Join Kusler, Burchick seeks leave to file a complaint to join Kusler as an additional defendant in the

within Bracken lawsuit under two theories: “that Kusler is liable to indemnify Burchick from claims asserted against it in thisaction by reason of the contractual indemnification provision in a certain Subcontract Agreement between these parties; and...inthe alternative, that Kusler is liable to it for a breach of a contractual requirement that it provide additional insurance for Burchickwhich was primary, with no right of contribution against Burchick or its insurer.” (Motion for Leave, ¶¶ 2, 12 and 13.) These arethe same two bases for joinder that Burchick pursued more than two years ago in its first motion to join, though Burchick’s argu-ments are slightly different this time. I shall address them in order.

Burchick first seeks leave to join Kusler in the Bracken lawsuit in order to assert an indemnification claim against Kusler. But,because Kusler was the employer of William Bracken, the Pennsylvania Workers’ Compensation Act precludes such claims for indem-nification from a third party such as Burchick. The only exception would be where a written contract between the employer and thethird party expressly and specifically provides for such indemnification. Unfortunately for Burchick, the written contract here (thesubcontract between general contractor Burchick and subcontractor Kusler) is insufficient to provide for such indemnification.

According to the Pennsylvania Workers’ Compensation Act, “the employer [Kusler]... shall not be liable to a third party[Burchick] for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contribu-tion or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to thedate of the occurrence which gave rise to the action.” Nieves v. Greyhound Lines, Inc., No.06-3049, 2008 WL 3992309 (E.D. Pa. Aug.26, 2008) (quoting 77 Pa. Cons. State. § 481(b)). “The language in such contracts must be clear and unequivocal; the parties to thecontract must specifically provide that a named employer [Kusler] agrees to indemnify a named third party [Burchick] fromliability for the acts of that party’s [Burchick’s] negligence which cause harm to the named employer’s [Kusler’s] employees[William Bracken, deceased].” Snare v. Ebensburg Power Co., 637 A.2d 296, 298 (Pa. Super. Ct. 1993) (citing Bester) (affirming thegranting of preliminary objections finding no waiver of the Workers’ Compensation Act).

In Bester v. Essex Crane Rental Corp., “the Pennsylvania Superior Court announced the strict standard for waiver of WCAimmunity in a written contract”:

In order to avoid the ambiguities which grow out of the use of general language, contracting parties must specifically uselanguage which demonstrates that a named employer agrees to indemnify a named third party from liability for acts ofthat third party’s own negligence which result in harm to the employees of the named employer. Absent this level of speci-ficity in the language employed in the contract of indemnification, the Workmen’s Compensation Act precludes anyliability on the part of the employer.

Nieves, 2008 WL 3992309, at *3 (quoting Bester, 619 A.2d at 308-309)(emphasis added).

Thus, in order for an employer such as Kusler to waive the immunity provided under the Act, Burchick has the burden of estab-lishing that the indemnity provision in the subcontract meets two distinct requirements. First, the employer must explicitly agreeto waive immunity under the Act. Second, the indemnitor employer [Kusler] must explicitly agree to indemnify the indemnitee[Burchick] for the indemnitee’s own acts of independent negligence. It is the second requirement that is particularly problematicfor Burchick under the facts of our case, as shall be discussed below.

It is settled Pennsylvania law that “indemnification provisions are generally disfavored by the courts.” Glowacki, 2004 WL5215151, (discussing Perry v. Payne, 66 A. 553(Pa. 1907)). “The liability of an indemnitee’s own negligence is ‘so hazardous, andthe character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended toassume the responsibility unless the contract put it beyond doubt by express stipulation.” Id. (quoting Perry at 557) (emphasisadded). See also Ruzzi v. Butler Petroleum Co., 588 A.2d 1(Pa. 1991).

It is also settled Pennsylvania law that “words of general import” are insufficient to establish an obligation to indemnify for an


indemnitee’s own negligence. See Perry, 66 A. 553; Ruzzi, 588 A.2d 1. Pennsylvania appellate courts have been strict and consis-tent on this point. Broad language that might seem to be broad enough to cover the situation of an indemnitee’s own negligence issimply not sufficient to carry the day. In order to cover indemnification for the indemnitee’s own negligence, the contract languagemust be specific, clear and unequivocal.

For example, all the following indemnification clauses were held to be insufficient: Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 171 A.2d 186, 189 (Pa. 1960) (“Contractor will indemnify, save harmless and defend buyer from any and all claims,demands or suits made or brought against buyer on account of any of the terms or provisions of any applicable Workmen’sCompensation law ...”); Snare, 637 A.2d at 299 (“[Subcontractor] Agrees to indemnify and hold harmless the Owner and Contractortheir successors and assigns, from and against any and all claims, demands, suits, actions, losses, liens, damages, or expenses andattorneys’ fees, however caused, resulting from, arising out of or in any way connected with the Contract ...”); Remas v. DuquesneLight Co., 537 A.2d 881 (Pa. Super. Ct. 1988) (“To hold harmless and indemnify the Company from and against any liability, loss, dam-ages, cost and expense which the Company may suffer from any claim, demand, action, suit or cause of action which may be made orhad against the Company by reason of any act committed by the Contractor, its agents, servants or employees other than an act per-formed by the Contractor, its agents, servants or employees at the specific instruction of the Company.”); Bester, 619 A.2d at 306 (“TheLessee shall defend, indemnify and hold forever harmless Lessor against all loss, negligence, damage, expense, penalty, legal fees andcosts, arising from any action on account of personal injury or damage to property occasioned by the operation, maintenance,handling, storage, erection, dismantling or transportation of any Equipment while in your possession.”); Integrated Project Servs. v.HMS Interiors, Inc., 931 A.2d at 724, 730 (Pa.Super. Ct. 2007) (“SUBCONTRACTOR ... agrees to indemnify and save CONTRACTORand Owner harmless from and against all claims, demands, liabilities, interest, loss, damage, attorneys’ fees, costs and expenses ofwhatsoever kind or nature, whether for property damage, personal injuries (including death) to any and all persons, whether employ-ees of CONTRACTOR or others, or otherwise, caused or occasioned thereby, resulting therefrom, arising out of or therefrom, or occur-ring in connection therewith to the same extent and obligation to which CONTRACTOR has assumed towards Owner under the CON-TRACT DOCUMENTS, or as imposed by law, limited to the scope of the subject matter of this SUBCONTRACT ...”).

Thus, in order for the Burchick/Kusler subcontract to require Kusler to indemnify Burchick for Burchick’s own acts of negli-gence causing harm to Kusler’s employees, the “contracting parties must specifically use language which demonstrates that anamed employer [Kusler] agrees to indemnify a named third party [Burchick] from liability for acts of that third party’s ownnegligence which result in harm to the employees of the named employer. Absent this level of specificty in the language...” thereis no obligation to indemnify. Bester, 619 A.2d at 308-309 (emphasis added). As the Pennsylvania Supreme Court stated in Greer v.City of Philadelphia, 568 Pa. 244, 795 A.2d 376, 378 (Pa. 2002), “broad language in the indemnity provision ... did not provideindemnity to the contractor for its own negligence.”

In its Brief in Opposition, Burchick argues that the required explicit language is found in Article VI of the subcontract.1 (Br. inOpp’n 15) (“Article VI of the Subcontract Agreement contains all the elements required for indemnification under Pennsylvanialaw.”). Burchick argues that “[w]hen one views the indemnification provision of Article VI as a whole, it unequivocally andexpressly provides” the explicit language required by Bester. (Br. in Opp’n 18) (emphasis added).

Therefore, in order to evaluate Burchick’s argument on this point, we must consider Article VI as a whole:

a. To the full extent permitted by Law, the Subcontractor [Kusler] agrees to defend, indemnify and hold harmlessContractor [Burchick] an Owner, and their respective officers, agents and employees and any other person or entity asrequired by the Contract Documents (“Indemnified Parties”) from and against any and all claims, demands, injuries,fines, penalties, losses, expenses (including attorneys’ fees), damages and liabilities of every nature, including contractualliability “Losses”, arising from or relating to Work performed by Subcontractor on the Project, or relating to the presenceon the Project of Subcontractor’s employees or the employees of its subsubcontractors at any tier, whether or not theContractor was alleged to be negligent, unless the Contractor was alleged to be solely negligent. Subcontractor’s obliga-tions under this Article shall be in addition to any independent liability imposed by the Contract Documents. Without lim-itation, this indemnity shall extend to Losses arising from Subcontractor’s violations of Laws. Subcontractor’s indemnityobligations under this Paragraph shall not be limited by applicable workers’ compensation laws, and, with respect tothis indemnity, Subcontractor hereby expressly waives all immunities and defenses that it may have under such Laws.(Emphasis added.)

(Br. in Opp’n 3) (quoting Art VI of Subcontract).Burchick appears to acknowledge, on page 18 of its Brief in Opposition, that the clause “whether or not the contractor was

alleged to be negligent,” is itself insufficient to satisfy the Bester test; that is, this clause alone is insufficient to require Kusler toindemnify Burchick for Burchick’s own acts of independent negligence. “Thus, the ‘whether or not’ language alone, and particu-larly as drafted, is insufficient to demonstrate by clear and unequivocal language the parties’ intent to indemnify Sun Company forits own negligence, but instead must be read with the entire clause, and contract.” (Br. in Opp’n 18) (quoting Sun Co. Inc. v. Brown& Root Braun, Inc., Nos. Civ. A. 98-6504 98-5817, 1999 WL 681694, at *6 (E.D. Pa. Sept. 2, 1999).

And while apparently acknowledging that the “whether or not” language is insufficient, Burchick argues that this languagewhen considered with “the Indemnification provision of Article VI as a whole ... unequivocally and expressly” satisfies Bester’sstringent requirements. (Br. in Opp’n 18) (emphasis added). Burchick thus implicitly argues that, taken as a whole, Article VI“specifically use[s] language which demonstrates” that Kusler has agreed to indemnify Burchick “for acts of [Burchick’s] ownnegligence” which “result in harm to employees of Kusler.” See Bester, 619 A.2d at 308-309.

Yet, apart from the “whether or not” clause (which, we are all agreed, is itself insufficient to do the job), there is nothing in thelanguage of Article VI that addresses the subject of Burchick’s own negligence. Article VI simply uses broad, general language ofindemnification that the Supreme Court in Bester has held to be insufficient. For example, Article VI states that “to the extent permit-ted by law, the subcontractor agrees to defend, indemnify, ... from and against any and all claims....” In short, even when consideredas a whole, Article VI does not explicitly state that Kusler is obligated to indemnify Burchick for acts of Burchick’s own negligence.

The Pennsylvania Supreme Court reached a similar result in Greer v. City of Philadelphia, 795 A.2d 376, 379 (Pa. 2002), wherethe court also considered “whether or not” language. The contract in Geer “provide[d] indemnity from claims for damages ‘onlyto the extent caused in whole or in part by negligent acts or omissions of the [indemnitor] ... ‘and ‘regardless of whether or not suchclaim ... is caused in part by [the indemnitees’]”. Id. at 379. The Supreme Court held that this clause did not require the indemni-tor to indemnify the indemnitees for the indemnitees’ own negligence in any amount, not complete indemnity or partial indemni-


ty. Id. (“We reject both PennDOT’s and Green’s [the two indemnitees] interpretations.”). The Supreme Court concluded that the“contract simply does not put it beyond doubt by express stipulation that CTS [the indemnitor] intended to indemnify PennDOTand Green [the indemnitees] for their own negligence.” Id. at 380 (citing Perry, 66 A. at 557) (internal quotations marks omitted).

The Greer court further stated: “we read the ... part of the provision, which states that the indemnity clause will apply ‘regard-less of whether or not such claim... is caused in part by a party indemnified hereunder’, merely to clarify that any contributorynegligence by PennDOT and Green [the indemnitees] will not bar their indemnification for damages due to CTS’s [the indemni-tor’s] negligence.” Id. at 379-380.

Thus, in Greer where the jury returned a verdict in the amount of $2.5 million and found CTS, PennDOT and Green each to be22% causally negligent, the Supreme Court “conclude[d] that PennDOT and Green are liable for the share of damages that the juryattributed to each of them....” Id. at 382.

In other words, the Greer indemnitees could not recover any indemnification from the indemnitor for the damages that the juryassigned to the indemnitees i.e. the indemnification provision did not obligate the indemnitor to indemnify the indemnitees for thedamages caused by the indemnitees’ own negligence. The Supreme Court made clear that the indemnitees were entitled to beindemnified only for damages they might have to pay that were caused by the indemnitor (or the indemnitor’s subs or employees).So, for example, if the plaintiff could not collect from CTS [the indemnitor] the 22% of the damage award the jury attributed toCTS, and the plaintiff then collected this amount from joint defendant Green, Green could seek indemnity from indemnitor CTSfor that 22% of the damages that the jury found (in the underlying case) was caused by the negligence of CTS [indemnitor].

In our case, of course, the jury will not find that any part of the damages was caused by indemnitor Kusler, as Kusler is not aparty to the case. Thus, there is no possibility that the Plaintiff will be forced to collect, from Burchick, damages that the juryattributed to the negligence of Kusler. In opposition to these preliminary objections, Burchick is attempting to argue that it shouldbe indemnified by Kusler as to damages that the jury concludes were caused by Burchick’s own negligence. And, as set forth above,the Burchick/Kusler contract simply does not explicitly, clearly and unambiguously provide for such indemnification.

Burchick’s second basis for seeking to join Kusler as an additional defendant is to assert a breach of contract claim to the effectthat Kusler failed in its contractual obligation “to provide additional insurance for Burchick which was primary, with no right ofcontribution against Burchick or its insurer.” (Motion for Leave ¶2.)

This breach of contract claim derives from Article V of the subcontract between Burchick and Kusler. It provides:

ARTICLE V: Subcontractor’s Insurancea. Prior to commencing the Work, Subcontractor (and all subsubcontractors and consultants at all tiers) shall procure,with Contractor and Owner as additional insured parties, and thereafter maintain, at its own expenses, until final accept-ance of the Work or until such later time as the Contract Documents state, Insurance coverage in a form and from insurersacceptable to Contractor and required by the Contract Documents.

b. Each policy of insurance provided by Subcontractor, except workmen’s compensation, shall name Contractor andOwner as an additional insured under the policy, and each policy of insurance provided for herein shall be primary withno right of contribution against Contractor or Contractor’s insurer. All deductibles under any policies of insurance shallbe assumed and paid by Subcontractor: Additionally, unless otherwise agreed to by Contractor, all such insurance policiesshall waive the right of recovery or subrogation against Contractor...

(Motion to Join, ¶ 25) (Emphasis added).

It is undisputed that Kusler procured liability insurance (through Harleysville Preferred Insurance Company) for its work onthe subject construction project. (Motion to Join, ¶26.) It is also undisputed that Kusler arranged to have the contractor, Burchick,covered as an additional insured on the policy. (Motion to Join, ¶30.)

Thus, it certainly appears that Kusler has fulfilled its insurance obligations under Article V of the subcontract. Yet, Burchickcontends, in its Motion for Leave, that Kusler has breached this insurance obligation. (Motion for Leave, ¶12.) Specifically,Burchick argues that the Harleysville policy that Kusler procured was not “primary with no right of contribution,” and thereforedid not satisfy the requirements of Article V. (Motion to Join, ¶35.)

What Burchick implies by this argument (although Burchick does not appear to state it directly) is that: (1) an insurance policythat is “primary with no right of contribution” is a policy that provides coverage for acts of the additional insured’s [Burchick’s]own negligence that cause harm to employees of the named employer [Kusler]; and (2) since the subject Harleysville policy doesnot provide coverage in such circumstances, Burchick has been caused harm.

In my view, the obvious flaw in Burchick’s argument is that the words “primary with no right of contribution” do not mean any-thing like “a policy that covers the indemnitee/ additional insured for acts of its own independent negligence that cause harm toemployees of the named indemnitor/employer.”

Contract terms are to be given their ordinary meaning. The Harleysville policy was primary, in that it was not an excess policy(Burchick does not contend that it is an excess policy). Also, the Harleysville policy did not give Harleysville or Kusler a “right ofcontribution against contractor [Burchick].” (Again, Burchick does not contend otherwise, and neither Harleysville nor Kusler areseeking contribution from Burchick.)

Burchick cites no precedent or statute that remotely suggest that a policy that is “primary with no right of contribution” meansa policy that covers the additional insured for acts of the additional insured’s negligence that cause harm to the indemnitor/employer’s employees.” And, the plain meaning of the words does not support Burchick’s interpretation.

For these reasons, I denied Burchick’s Motion for Leave to Amend.

ORDER OF COURTAND NOW, this 12th day of June, 2012, it is hereby ORDERED, ADJUDGED and DECREED as follows:Defendant Burchick’s Motion for Leave to File Amended Complaint to Join Kusler Masonry, Inc., is DENIED.

BY THE COURT:/s/Folino, J.

1 In its first Motion to Join Kusler, filed on January 8, 2010, Burchick argued that the required explicit language could be found bycombining the language of Articles IV and VI of the subcontract.


Michael Tranovich, M.D. v. Tri-Century Insurance CompanyContract—Insurance—Settlement—Authorization

No. GD 11-18531. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division.Friedman, J.—July 16, 2012.

MEMORANDUM IN SUPPORT OF ORDERDefendant has filed Preliminary Objections to Plaintiff ’s Amended Complaint. In his Amended Complaint, Plaintiff claims that

Defendant settled an underlying medical malpractice case filed against him and other co-defendants (all insureds of Defendant),but without informing him that all the liability would be attributed to him alone. As a result, Plaintiff contends there is an action-able breach of Defendant’s common-law duty to deal fairly with its insureds.

Defendant contends there was no such breach and that it handled the settlement of the underlying suit and the attribution ofliability in accordance with the policy’s “deems expedient” clause, and “the intent and expectations” of the parties to the insur-ance contract. Defendant cites to Bleday v. OUM Group, 435 Pa.Super. 395, 645 A.2d 1358 (1994), for the proposition that an insurerdoes not breach its contract with its insured nor can it be found to have acted in bad faith where it settled within the policy limitsand the policy contains a clause permitting it to do so if the insurer “deems it expedient.” However, we note that Bleday also statesthe following:

[A] claim for [common law] bad faith may, in limited circumstances, be asserted against the insurance company notwith-standing a “deems expedient” provision. A “deems expedient” provision in an insurance contract cannot be interpretedto convey to an insurance company an absolute right to settle a claim within the policy limits if such settlement was con-trary to the intent and expectation of the parties.

435 Pa.Super. at 399, 645 A.2d at 1360-61.

The Bleday court discussed “the well-settled law that in construing contracts, the intent and expectation of the parties must begiven consideration,” citing to the Florida case of Shuster v. South Broward Hospital, 591 So.2d 174 (Fla. 1992). Shuster posited twosituations “wherein an insurer can act against the intent of the parties and hence, in bad faith.” The Bleday court described thetwo Shuster situations as follows:

First, in a situation where there are multiple parties to a lawsuit, a “deems expedient” clause will not protect an insurerwho indiscriminately settles with one or more of the parties for the full amount of the policy, and, thus, exposes theinsured to an excess judgment from the remaining parties to the law suit. Second, despite a “deems expedient” provision,a bad faith action may be maintained against an insurer when the insurer settles a claim without regard to the fact thatit may be barring a counterclaim [which we believe would include a cross-claim] of the insured. “Again, in contrast to theright to settle a claim within the policy limits without considering the impact of higher premiums or damage to theinsured’s reputation, we do not believe the language of the contract would indicate, nor do we believe it would have beenthe intent of the parties, that the insured give up his or her right to a counterclaim by entering into the agreement.”

Bleday, 435 Pa.Super. at 403, 645 A.2d at 1362-63, citing Shuster, 591 So.2d at 177.

We must also note that, although the insurer’s Preliminary Objections were sustained in Bleday, the facts pled there did notsupport a contention that the settlement there was contrary to “the intent and expectation of the parties,” nor did the facts allegedby Plaintiff Bleday show that the Defendant insurer failed to “make an investigation [or to] consider the desires or instructions ofthe insured [or] that the settlement [was] made in bad faith.” 435 Pa.Super. at 402-403, 645 A.2d at 1362. The issue for us is whetherthe facts pled in the instant Amended Complaint, if accepted as true, make out a breach by Defendant of its common-law duty ofgood faith and fair dealing. Here, by settling claims against all Defendants in the underlying suit and then blaming only instantPlaintiff, the insurer deprived Plaintiff of the opportunity to file cross-claims against his Co-Defendants.

The later case of Haugh v. Allstate Insurance Company, 322 F.3d 227 (3rd Cir. 2003), citing Shearer v. Reed, 286 Pa.Super. 188,428 A.2d 635 (1981), sets forth several factors that bear on the insurer’s duty to its insured to deal fairly when settling a claimpursuant to a “deems expedient” clause:

In fact, an insurer acting in good faith must consider “all of the factors bearing upon the advisability of a settlementfor the protection of the insured.” Shearer, [286 Pa.Super. at 194], 428 A.2d at 638 (quoting Rova Farms Resort, Inc. v.Investors Ins. Co. of Am., 65 N.J. 474, 323 A.2d 495, 503 (N.J. 1974)). As the court stated in Shearer, “while the view of thecarrier or its attorney as to liability is one important factor, a good faith evaluation requires more. It includes considera-tion of the anticipated range of a verdict, should it be adverse; the strengths and weaknesses of all of the evidence to bepresented on either side so far as known; the history of the particular geographic area in cases of similar nature; and therelative appearance, persuasiveness, and likely appeal of the claimant, the insured, and the witnesses at trial.” Id. (quot-ing Rova Farms, 323 A.2d at 503-04).

322 F.3d at 238.

Here, the facts pled taken in the light most favorable to Plaintiff indicate that the insurer did not consider any factors other thanits own assessment of which of its three insureds was at fault. The inference is that the decision regarding allocation of liabilitymight have been at least tentatively made before it asked Plaintiff if he agreed to settle, and that that assessment was concealedfrom Plaintiff until after he agreed. Plaintiff is entitled to prove that this conduct is not protected by the “deems expedient” clause.If Plaintiff can later prove that his co-Defendants were negligent and that Defendant failed to consider this to Plaintiff ’s detriment,he will be entitled to damages caused by the breach.

The issues raised by Defendant’s Preliminary Objections are better suited for a motion for summary judgment or a trial. We mustoverrule the Preliminary Objections, without prejudice to Defendant’s right to re-raise the objections if the evidence so warrants.

See Order filed herewith.BY THE COURT:/s/Friedman, J.

Dated: July 16, 2012


ORDER OF COURTAND NOW, to-wit, this 16th day of July 2012, for the reasons set forth in the accompanying Memorandum in Support of Order,

Defendant’s Preliminary Objections to Plaintiff ’s Amended Complaint here hereby DENIED, without prejudice to Defendant’sright to re-raise the objections in a motion for summary judgment or at trial, if the evidence so warrants.

BY THE COURT:/s/Friedman, J.

Commonwealth of Pennsylvania v. Vernon VosCriminal Appeal—Sufficiency—Summary Offense—Disorderly Conduct

No. CC 200918905. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.Borkowski, J.—May 16, 2012.

OPINIONPROCEDURAL HISTORY

Vernon Vos, hereinafter Appellant, was charged by Criminal Information (CC 200918905) with one (1) count each of: TerroristicThreats1, Harassment2 and, Disorderly Conduct3.

On December 9, 2010, the Commonwealth made a motion to amend the Criminal Information that was granted by Judge RobertC. Reed. Counts One (1) through Count Three (3) were withdrawn and four (4) summary counts of Harassment and two (2) sum-mary counts of Disorderly Conduct were added.

Appellant proceeded to a non-jury trial before Judge Reed. Following the close of the Commonwealth’s case, Judge Reed grantedAppellant’s motion for judgment of acquittal as to Counts One (1), Two (2) and Three (3) of Harassment. Following the close of theevidence, Judge Reed found Appellant not guilty of Count (4) Harassment, guilty of Count (5) Disorderly Conduct and not guiltyof Count (6) Disorderly Conduct.

Appellant was sentenced the same day to ninety (90) days non-reporting probation and a No Contact Order with Quaker ValleyMiddle School.

This timely appeal followed.STATEMENT OF ERRORS ON APPEAL

Appellant raises the following issues on appeal and they are set forth below verbatim:

A. the Commonwealth failed to established the “public” element as required by 18 Pa.C.S. § 5503.

B. the Commonwealth also failed to establish the requisite mens rea under the statute; and

C. the Commonwealth failed to prove that the defendant’s actions created a hazardous or offensive conditionas required by the statute.

FACTSOn September 15, 2009 at approximately 1:00 p.m., Vernon Vos (Appellant) attended a meeting scheduled at Quaker Valley

Middle School with teachers and administrators regarding his son, Cody Vos. The meeting was called to discuss Cody’s academicand social standing within the school. During the meeting, there was some discussion regarding an alleged bullying incident involv-ing Cody that reportedly occurred the day before. During the meeting Appellant became enraged and spoke in a loud angry voice.He was very volatile and combative with the attendees. He angrily stated several times to all of the attendees that he had Act 235[firearm] clearances. At the meeting, Appellant specifically asked the school’s principal, Sean Aiken, “How would you like it if youleft work here one night at six o’clock in the evening and there was somebody waiting for you outside by your car?” At severalpoints, Appellant angrily left the meeting room in the school building only to return to the room and pace much to the consterna-tion/concern of the school staff. (T.T. 7-11, 18)4.

DISCUSSIONAppellant challenges his summary conviction for Disorderly Conduct. His claims in this matter are without merit.

The applicable statute states:

§ 5503. Disorderly conduct

(a) Offense defined.—A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance oralarm, or recklessly creating a risk thereof, he:

(1) engages in fighting or threatening, or in violent or tumultuous behavior;(2) makes unreasonable noise;(3) uses obscene language, or makes an obscene gesture; or(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

(b) Grading.—An offense under this section is a misdemeanor of the third degree if the intent of the actor is to causesubstantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request todesist. Otherwise disorderly conduct is a summary offense.

(c) Definition.—As used in this section the word “public” means affecting or likely to affect persons in a place to whichthe public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons,apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.

18 Pa.C.S.A. § 5503.


A.Appellant’s first claim is that the Commonwealth failed to established the “public” element as required by 18 Pa.C.S. § 5503.

This claim is without merit.The Supreme Court case of Commonwealth v. Fedorek, 946 A.2d 93 (Pa. 2008) is particularly instructive in this regard. In Fedorek,

the Court held that the Commonwealth was not required to prove substantial public harm or serious public inconvenience, abrogat-ing Commonwealth v. Coon, 695 A.2d 794, and Commonwealth v. Smith, 811 A.2d 578. Fedorek, 946 A.2d at 98-99. The Fedorek court,specifically discussed the statutory construction of the Disorderly Conduct statute noting that an offender may be found guilty of sec-tion (a)(1), “when they engage in fighting or threatening, or even when that conduct is directed at only one other person, the offendermay be subject to conviction for disorderly conduct.” Fedorek, 946 A.2d at 100 (emphasis original, citation omitted).

Subsection (c) of the Disorderly Conduct statute specifically defines “public” including schools in the definition. The facts pre-sented at trial established that Appellant: 1) was on school property, 2) at approximately 1:00 p.m. during school hours, 3) attendeda meeting with teachers, administrators, and staff, 4) informed them that he had Act 235 [firearms] training; and 5) threatened theschool principal during the meeting. (T.T. 7-11, 18). The evidence presented at trial was legally sufficient. See Commonwealth v.Hock, 728 A.2d 943, 946 (Pa. 1988)(the use of “fighting words” is sufficient to form the basis of a Disorderly Conduct conviction asthey are words by their utterance that inflict injury or tend to incite immediate breach of the peace).

The Commonwealth presented sufficient evidence to find Appellant guilty of a summary Disorderly Conduct. Appellant’s claimis without merit.

B.Appellant’s second claim is that the Commonwealth did not prove that Appellant had the requisite mes rea to adjudicate him

guilty of Disorderly Conduct. Appellant’s claim is without merit.The Supreme Court’s decision in Commonwealth v. Mastrangelo, 414 A.2d 54, 58 (Pa. 1980) is instructive on this point. The

Mastrangelo court explained that the use of fighting words amounts to a Disorderly Conduct when a defendant uses those wordsin a loud, boisterous and disorderly fashion. Mastrangelo, 414 A.2d at 58. The defendant in Mastrangelo followed a meter maid andshouted vulgarities at her in a threatening manner. Id.

Here, Appellant, while attending a meeting full of teachers, staff and administrators at his child’s school threatened the princi-pal and other staff members.5 During the course of the meeting, Appellant was described as “volatile and combative” and repeat-edly pointed his finger at people stating several times, “do you understand that I have Act 235 clearances?” (T.T. 8). Specifically,Appellant said to the Principal, “Mr. Aiken, how would you like it if you left work here one night at six (6) o’clock in the eveningand there was somebody waiting for you outside by your car?” (T.T. 10).

Indeed, in determining whether words constitute fighting words, “[t]he circumstances surrounding the words can be crucial,for only against the background of surrounding events can a judgment be made whether [the] words had a direct tendency to causeacts of violence by [others].” Commonwealth v. Hock, 728 A.2d 943, 946 (Pa. 1999), quoting, Lamar v. Banks, 684 F.2d 714 (11thCir.1982) (internal quotation marks omitted).

Here, Appellant stated to various individuals at the meeting in a loud and angry voice that he had Act 235 training and thenpersonally threatened the school’s principal. (T.T. 8-10). The Commonwealth established the requisite mens rea to find Appellantguilty of Disorderly Conduct. Appellant’s claim is without merit.

C.Appellant’s final claim is that, “the Commonwealth failed to prove that the defendant’s actions created a hazardous or offensive

condition as required by the statute.” The language quoted by Appellant refers to 18 Pa.C.S.A.§5503 (a)(4). Appellant was convictedof 18 Pa.C.S.A.§5503(a)(1). Therefore, the Trial Court will not address this claim as it is not germane to his conviction.

CONCLUSIONFor the aforementioned reasons, the designation of the imposed by the Trial Court should be affirmed.

BY THE COURT:/s/Borkowski, J.

Date: May 16, 20121 18 Pa.C.S.A. §2706 (a)(3).2 18 Pa.C.S.A. §2709 (a)(4).3 18 Pa.C.S.A. §5503 (a)(4).4 The letters “T.T.” followed by numerals refer to pages of the Non-Jury Trial/Sentencing transcript dated December 9, 2010.5 The Trial Court acquitted Appellant of charges relating to the threats made to other school staff.

Commonwealth of Pennsylvania v. David JapengaCriminal Appeal—Sufficiency—Identification—Weight of the Evidence—G20 Summit

No. CC 200914818. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.Borkowski, J.—June 22, 2012.


David Japenga (Appellant) was charged by Criminal Information (CC 200914818) with three counts of Criminal Mischief, onecount of Possession Instruments of a Crime, and one count of False Identification to Law Enforcement. Appellant proceeded to ajury trial on August 23-25, 2010, and was found guilty of all charges.

On November 23, 2010, Appellant was sentenced as follows: at the first count of Criminal Mischief, six (6) to eighteen (18)


months incarceration followed by three (3) years probation and restitution in the amount of $13,445; at the second count ofCriminal Mischief, one (1) year of probation to be served consecutive to the probation at Count One; at the third count of CriminalMischief, one (1) year of probation consecutive to the probation sentence at Count Two; at Possessing Instruments of a Crime, six(6) eighteen (18) months in the Allegheny County Jail to be served concurrent with the sentence imposed at Count One; and, atFalse Identification to Law Enforcement Officer, one (1) year probation to be served concurrently with the sentence of probationimposed at count one.

On November 23, 2010, Appellant filed post-sentencing motions. On February 1, 2011, Appellant’s post-sentencing motions weredenied. On February 8, 2011, Appellant filed a timely Notice of Appeal to the Superior Court.

STATEMENT OF ERRORS ON APPEALAppellant’s Concise Statement is stated below verbatim:

1. The Trial Court erred when it denied Defendant’s Motion for Judgment of Acquittal where the Commonwealth failedto prove beyond a reasonable doubt that Defendant was the individual who committed acts of vandalism on the three prop-erties at issue where Defendant’s identity was based on observations of his “gait” and where Defendant, when arrested, wasnot dressed like the individual who damaged the properties;

2. The Trial Court erred when it denied Defendant’s Motion for a New Trial where the Commonwealth failed to provebeyond a reasonable doubt that Defendant was the individual who committed acts of vandalism on the three propertiesat issue where Defendant’s identity was based on observations of his “gait” and where Defendant, when arrested, was notdressed like the individual who damaged the properties; and,

3. The Trial Court committed an abuse of discretion when it denied Defendant’s Motion in Limine relative to a posterfound at a property where Defendant had been living that purported to support anarchy.

FINDINGS OF FACTOn September 24, 2009, Trooper Boyd Wass was working in an undercover capacity with the Pennsylvania State police at the

G-20 economic summit in the City of Pittsburgh, Allegheny County. (T.T. 52)1. At approximately 10:30 p.m. Trooper Wass observeda crowd of approximately one hundred fifty people forming on Fifth Avenue near the intersection of DeSoto Street in the Oaklandsection of the city. Members of the crowd were dressed in dark clothing. (T.T. 52-54, 79, 156). At approximately 11:00 p.m. the groupleft the area of DeSoto Street and Fifth Avenue and proceeded towards downtown on Atwood Street, eventually turning left onForbes Avenue away from downtown. (T.T. 55-56). At this point, the majority of the group had obscured their facial features withbandanas and ski masks. (T.T. 80, 156). Trooper Wass joined the crowd and walked with them along this route. (T.T. 55-56).

As soon as the crowd turned onto Atwood Street, Trooper Wass observed a few people break windows and light a dumpster onfire. He called for back-up due to the escalating violence of the crowd. It was Trooper Wass’s duty was to observe distinctive fea-tures of the actor(s), rather than to intervene or make arrests in the singular undercover capacity he was in at that time. (T.T. 56-57). As the crowd moved along Atwood Street they approached a large contingency of uniformed police officers on Forbes Avenue.The group began to disperse and thin out, but approximately fifty (50) people, including Trooper Wass, remained together and ranback up Fifth Avenue towards South Craig Street. (T.T. 57-59).

At the corner of Fifth Avenue and South Craig Street Trooper Wass noticed an individual (later identified as Appellant) breakthe window of a Citizens Bank branch with a gray and orange U-shaped bicycle lock. Appellant’s face was partially obscured by ablack and white paisley bandana. (T.T. 59-61). Trooper Wass noticed that Appellant had distinctive white Adidas brand stripes onhis shoes which was unique compared to the other protestors. He also noticed that Appellant was approximately 5' 7", with an ath-letic build. Appellant ran with a distinctive gait, described as a “shuffling walk”, and he had a bulge underneath his hooded sweat-shirt that was consistent with concealment of a backpack. (T.T. 60-61). Trooper Wass observed Appellant break approximatelyseven (7) windows at the bank, and he followed him around the corner of the bank. Trooper Wass continued to observe Appellantbreaking windows of the bank, and he attempted to get closer to Appellant. From approximately ten feet away, Trooper Wassobserved Appellant break one window at the Irish Design Center, cross the street again and break two windows at a Quiznos restau-rant, all with the same distinctive bicycle lock. (T.T. 61-64).

As uniformed police approached the group of protestors, the group began to break up. Trooper Wass followed a smaller groupof individuals; which included Appellant. The group went down an unlit alley and continued to break into even smaller groups.Trooper Wass momentarily lost sight of the Appellant, while the protestors were running through a wooded area, attempting toregroup. As the group continued to run from the police, Trooper Wass observed many of the protestors removing their dark cloth-ing and masks. (T.T. 66-68).

Trooper Wass regained sight of Appellant on Fifth Avenue. Moments later Trooper Wass observed that Appellant was wearingthe same unique Adidas shoes. (T.T. 68). Trooper Wass did not approach Appellant based on his belief that Appellant and othersaround him were armed. The Trooper kept Appellant in his sight from approximately twenty (20) yards away and called the com-mand center to have the Appellant detained. (T.T. 68-69). Approximately ten minutes later the City of Pittsburgh Police arrivedand Trooper Wass approached Detective Daniel Sullivan of the City of Pittsburgh Police Department. (T.T. 107, 69). Trooper Wassdescribed the physical characteristics of the Appellant and pointed him out to Detective Sullivan. Detective Sullivan approachedAppellant and placed him under arrest for the acts of vandalism described hereinabove. At the time of Appellant’s arrest, DetectiveSullivan did a brief inventory of Appellant’s backpack for weapons. The backpack contained the distinctive bicycle lock with anorange handle that Trooper Wass identified earlier. (T.T. 108-109). Upon completing a full inventory of Appellant’s backpack,Detective Sullivan discovered a nylon tie, a hooded jacket covered in glass shards, a bicycle lock, the same u shaped bicycle lockdescribed above, a set of keys, the black bandana with white paisley that Appellant had been wearing earlier, and a dark-coloredpair of gloves. (T.T. 109-111).

When Appellant was arrested by Detective Sullivan he gave the name “Eric Blair” and produced a medical identification cardimprinted with the name “Eric Blair”. (T.T. 108). At his arraignment Appellant gave an address of 336 Ladson Street. (T.T. 113). Asearch warrant was executed at this address. Police gained entry to the property by unlocking a padlock on the front door by usingone of the keys recovered from Appellant’s backpack. Amongst the evidence recovered from this location was a poster that read,“We want to riot, not work, GPAC attack.”(T.T. 114-115). Appellant was later correctly identified to be “David Japenga” and wasformally arrested and charged as noted hereinabove.


DISCUSSION

I.Appellant initially claims that the trial court erred when it denied his Motion for Judgment of Acquittal, specifically averring

that Trooper Wass’s identification of Appellant as the actor who committed the alleged acts of vandalism was insufficient tosustain his convictions of Criminal Mischief. This claim is meritless.

The applicable standard of review for the denial of a motion for judgment of acquittal is as follows:

A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particularcharge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.

The standard we apply in reviewing the sufficiency of the evidence is whether reviewing all the evidence admitted attrial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every ele-ment of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substituteour judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealthneed not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finderunless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the com-bined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reason-able doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must beevaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibil-ity of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.Super. 2008)(citations and quotations omitted)(emphasis original).

Here Appellant was charged with three (3) counts of Criminal Mischief. That crime in relevant part is defined as follows:

§ 3304. Criminal mischief

(a) Offense defined.—A person is guilty of criminal mischief if he:(5) intentionally damages real or personal property of another;

18 Pa.C.S.A. § 3304.

The Commonwealth produced sufficient evidence at trial to prove beyond a reasonable doubt that Appellant committed the crimeof Criminal Mischief. The Trial Court has recited the facts at length. Supra at 4-7. Briefly, the Commonwealth proved that Appellant:(1) used a gray and orange U-shaped bicycle lock to break approximately seven windows at Citizens Bank; (2) break one window atthe Irish Design Center; and (3) break two windows at a Quiznos. (T.T. 60-64). Appellant was described by Trooper Wass as approx-imately 5'7", with an athletic build, wearing a black hoodie covering a backpack and distinct Adidas brand shoes and ran with a dis-tinctive gait described as a “shuffling walk.” (T.T. 59-61). Trooper Wass maintained visual confirmation of Appellant’s locationthroughout the incident and afterward when he called the Command Center to have Appellant detained. (T.T. 68-69).

When Appellant was apprehended at the scene he was wearing a backpack. During a brief inventory of the backpack for offi-cer safety, Detective Sullivan of the City of Pittsburgh Police Department found: a black hoodie covered in glass shards, a bicyclelock which was black in color with an u-shaped orange handle, a black bandana with white paisley, a dark pair of gloves, a nylontie, and a set of keys. (T.T. 109-111). See Commonwealth v. Adams, 882 A.2d 496, 499 (Pa. Super. 2005)(evidence sufficient wherethe fact finder found testimony of complainant and police officer established that defendant punched complainant’s truck result-ing in damage). See also Commonwealth v. Zambelli, 695 A.2d 848, 851 (Pa.Super. 1997)(evidence sufficient where two (2) witnessesin parking lot heard a loud screeching sound and observed defendant walking alongside a van that did not belong to him with anobject in his hand and that side of the van was scratched). The Commonwealth presented legally sufficient evidence of identifica-tion at trial to prove Appellant was guilty of Criminal Mischief beyond a reasonable doubt.

Appellant’s claim is without merit.

II.Appellant’s second claim is that the Trial Court erred when it denied Defendant’s Motion for a New Trial where the

Commonwealth failed to prove beyond a reasonable doubt that Defendant was the individual who committed acts of vandalism.Appellant’s claim is meritless.

The applicable standard of review articulated by the Superior Court states that the “decision to grant a new trial is within theTrial Court’s discretion and will not be reversed unless it represents an abuse of discretion.” Commonwealth v. Rodriquez, 679A.2d 1320, 1325 (Pa.Super. 1996)(citations omitted). Absent an abuse of discretion, a Trial Court’s decision to deny a motion for anew trial will not be disturbed on appeal. See generally, Commonwealth v. Pronkoskie, 445 A.2d 1203 (Pa. 1982).

Appellant’s underlying claim is that there was insufficient evidence to convict Appellant of the crimes of Criminal Mischief. TheTrial Court has previously discussed the sufficiency of the evidence in this case at length. Supra at pgs. 8-11. Here, theCommonwealth produced sufficient evidence to find Appellant guilty three (3) counts of Criminal Mischief. See Downs v.Commonwealth, 616 A.2d 39, 44 (Cmwlth 1992)(trial court did not abuse its discretion in denying defendant’s motion for a new trialwhere evidence was sufficient to support defendant’s convictions). The Trial Court did not abuse its’ discretion in denying a newtrial as the evidence was sufficient to support Appellant’s convictions.

This claim is without merit.

III.Appellant’s final claim is that the Trial Court committed an abuse of discretion when it denied Defendant’s Motion in Limine relative

to a poster found at a property where Defendant had been living that purported to support anarchy. Appellant’s claim is without merit.In evaluating the denial or grant of a motion in limine, the appellate standard of review is well-settled:

When ruling on a trial court’s decision to grant or deny a motion in limine, we apply an evidentiary abuse of discretionstandard of review. The admission of evidence is committed to the sound discretion of the trial court, and a trial court’sruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreason-ableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.


Commonwealth v. Moser, 999 A.2d 602, 605 (Pa.Super. 2010)(quotations and citations omitted).Here, to summarize: (1) Appellant filed a Motion in Limine to exclude a poster illustrating a protest in Greece containing the state-

ment, “We Want to Riot, Not Work”; (2) the Commonwealth sought its admission to prove the state of mind of Appellant; (3) Appellant’scounsel objected on the basis that the evidence lacked the proper foundation and was not relevant; (4) the Trial Court ruled that theevidence was relevant and admissible if the proper foundation was established by the Commonwealth. (T.T. 5-8, 113-115).

At the time of the Motion in Limine, the Trial Court ruled that the evidence was admissible conditioned upon the Commonwealth’sability to lay the proper foundation for its admission. At trial the Commonwealth established that: (1) Appellant provided the addressof 336 Ladson Street as his address at his arraignment for the purposes of bail; (2) Detective Sullivan investigated that address find-ing that it appeared that someone had been residing there; (3) police obtained a search warrant for Appellant’s residence; and, (4)when executing the search warrant, police used keys to open the pad lock on the door obtained during a search of Appellant on theday he was arrested. (T.T. 113-115). Prior to Commonwealth’s moving for the admission of that evidence, the Commonwealth pro-vided a proper foundation for the admission of the evidence. As a proper foundation for this evidence was established by theCommonwealth, the Trial Court’s decision to admit the evidence was not an abuse of discretion. See generally, Commonwealth v.Paddy, 800 A.2d 294, 310 (Pa. 2002)(hearsay statement was admissible to show state of mind of the defendant).

This claim is without merit.CONCLUSION

Based upon the foregoing, the judgment of sentence imposed by this Court should be affirmed.


Date: June 22, 20121 The letters “T.T.” followed by numerals refer to pages in the Trial Transcript dated August 23-25, 2010.

Commonwealth of Pennsylvania v. Thomas DavisCriminal Appeal—Homicide(1st Degree)—Self Defense—Weight of the Evidence—Sufficiency—Suppression of Statements—Miranda

No. CC 200814030. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Civil Division.Borkowski, J.—June 22, 2012.


Thomas Davis, (Appellant) was charged by Criminal Information (200814030) with Criminal Homicide1. Appellant filed aMotion To Suppress which was heard and denied on June 29, 2009. A jury trial ensued and Appellant was found guilty of FirstDegree Murder on July 1, 2009.

On October 7, 2009 Appellant was sentenced to a period of life without parole. Post-Sentencing motions were filed and denied. This appeal followed.

Matters Complained of on Appeal

Appellant raises the following errors on appeal set forth exactly as Appellant states them:

a. The trial court erred when it denied Defendant’s post-sentencing motion challenging the sufficiency of the evidencepresented to convict Defendant of Murder in the First Degree where evidence at trial demonstrated that Defendant wasacting under an unreasonable belief he was entitled to use deadly force to protect himself and his family and/or whereDefendant was acting under a sudden and intense passion;

b. The trial court erred when it denied Defendant’s post-sentencing motion challenging the weight of the evidence pre-sented to convict Defendant of Murder in the First Degree where evidence at trial demonstrated that Defendant was act-ing under an unreasonable belief he was entitled to use deadly force to protect himself and his family and/or whereDefendant was acting under a sudden and intense passion;

c. The trial court erred when it denied Defendants’ pre-trial Motion to Suppress;

d. The trial court erred when it ruled that the autopsy photographs were admissible where said photographs could onlyhave served to inflame the jury’s passions and thereby prejudice Defendant.

FactsIn June of 2008 Leroy Hughes (Hughes) was residing with Geri Davis and her six children at 1223 Evans Avenue in

McKeesport, Allegheny County. (T.T. 143-144)2 Although separated, Appellant often stayed next door at 1221 Evans Avenue withhis wife Charlese Davis and their children. (T.T. 144, 299, 326) In the early evening hours of June 3, 2008 (approximately 6:00 P.M.)there was an altercation outside of their homes between the children of the two families that led to the adults becoming involved.(T.T. 147-149, 160, 172, 186)

As a result Appellant confronted Hughes about the situation. Hughes attempted to pacify Appellant and calm the situation,telling Appellant, “can’t we squash this, these kids will fight today and play tomorrow”. (T.T. 151-153, 191, 196) Appellant respondedby stating that it was going to be settled now, and he went back into his residence where he retrieved a .45 caliber handgun. (T.T.153, 164, 198)

From his porch, armed with that weapon, Appellant twice asked Geri Davis if she loved this man (Hughes). (T.T. 154, 179) Aneighbor, Laura Johnson, alerted Hughes that Appellant had a gun and Hughes turned to run but Appellant shot him in the neck.(T.T. 167-168, 191) Hughes attempted to flee and Appellant pursued him. Appellant shot him seven more times as he attempted toflee and then as he lay on the ground between two parked vehicles in front of the residences. (T.T. 167-168, 181, 191) Appellantloudly stated to all gathered that, “now you can see how a man dies”. (T.T. 192) The autopsy later determined that Hughes had been


shot eight times, the cause of death being multiple gunshot wounds to the abdomen and pelvis, and the massive internal traumaassociated with those gunshot wounds. (T.T. 263-274)

Appellant fled the immediate scene as well as Pennsylvania, and was apprehended five months later (November 6, 2008) inNashville, Tennessee. (T.T. 238-244) Defendant was returned to Pennsylvania, and the charge of Criminal Homicide then precededto trial as noted hereinabove.

I.In his first issue Appellant claims the Trial Court erred when it denied his post-sentencing motion challenging the sufficiency

of the evidence as it related to First Degree Murder. This claim is without merit.

The Pennsylvania Supreme Court has stated the applicable standard of review as follows:

In reviewing the sufficiency of the evidence, we must review the evidence in the light most favorable to theCommonwealth, as the verdict winner, to determine whether the jury could have found reasonable doubt. To convict adefendant of first-degree murder, the Commonwealth must prove beyond a reasonable doubt that the defendant unlaw-fully killed another human being, that the defendant acted with the specific intent to kill, and that the killing was willful,deliberate, and premeditated. A specific intent to kill may be proven wholly by circumstantial evidence, and therefore beinferred from the defendant’s use of a weapon on a vital part of the victim’s body.

Commonwealth v. Dowling, 883 A.2d 570, 573 (Pa. 2005) (citations omitted)

Here, there was an unfortunate dispute between neighbors, but one that was not characterized by deadly force or threat of thesame until Appellant: (1) turned aside the victim’s conciliatory conduct; (2) retrieved a .45 caliber handgun from his residence;and (3) shot the unarmed victim eight times as the victim fled and as he lay on the ground. (T.T. 167-168, 181, 191, 263-274) Thefact-finder rejected Appellant’s justification claims, and the evidence otherwise was sufficient evidence to support a first degreemurder conviction. See Commonwealth v. Perez, 698 A.2d 640, 646 (Pa. 1997) (where appellant and victim were not engaged inthreatening or assaultive behavior before shooting occurred and appellant shot victim in the neck during a conversation, jury couldreasonably conclude that appellant committed first degree murder and did not act in self-defense).


II.In his next claim Appellant alleges that the Trial Court erred when it denied Appellant’s post-sentencing motion challenging

the weight of the evidence. This claim is without merit.In reviewing a weight of the evidence claim the Pennsylvania Supreme Court has stated the standard of review as follows:

Significantly, in a challenge to the weight of the evidence, the function of the appellate court on appeal is to review thetrial court’s exercise of discretion based upon a review of the record, rather than to consider de novo the underlying ques-tion of the weight of the evidence. In determining whether this standard has been met, appellate review is limited towhether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferencesof record disclose a palpable abuse of discretion. It is for this reason that the trial court’s denial of a motion for a newtrial based on a weight of the evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (a verdict is against the weight of the evidence only when the jury’sverdict is so contrary to the evidence as to shock one’s sense of justice).

Here Appellant shot and killed an unarmed man even as he lay helpless on the ground after a relatively minor dispute betweenneighbors; and he callously bragged about it in its immediate aftermath. (T.T. 199) (“Now you see how a man dies”.) SeeCommonwealth v. Smith, 861 A.2d 892, 895 (Pa. 2004)(weight of the evidence supported rather than contradicted first degreemurder verdict where defendant shot victim as he lay on the ground). Appellant’s claim is without merit.

III.In his third claim Appellant alleges that the trial Court erred when it deemed his pre-trial motion to suppress statements that

he made at the time he was apprehended.The role of the Trial Court in that procedural circumstance has been stated thusly,

The suppression court which hears the testimony must decide whether the Commonwealth has established by a prepon-derance of the evidence that the statements of the accused were voluntary and the waiver of his constitutional rights wasknowing and intelligent. The determination as to whether a knowing, voluntary and intelligent waiver was effected is tobe made by viewing the totality of the circumstances.

Commonwealth v. Edwards, 555 A.2d 818, 826 (1989)

At the conclusion of the suppression hearing the Trial Court made the following findings of fact and conclusions of law:

The Court: All right. As to the motion to suppress, the Court makes the following findings of fact and [conclusions] of law:

On November 5, 2008, Davidson County, Tennessee, Police officer Adam Shipley was on routine patrol when he observeda Chevy Tahoe, eventually determined to be driven by Yvette Jones, run a stop sign on 40th North Avenue in Delaware.

He made a traffic stop at that juncture. The driver at that point in time being Yvette. The passenger being the defendantin this case, Mr. Davis, seated in the front passenger compartment of that vehicle.

Officer Shipley determined that the driver was not licensed. He also made further inquiry from information from Mr.Davis at that juncture, receiving information regarding Mr. Davis under the fictitious name of Eric Jones.

He asked – once determining that the driver was not licensed, he asked both persons to exit the vehicle, and at that time noticedthe defendant, upon exiting the vehicle, placed something in a bag that was hanging from the steering column of that vehicle.

He retrieved the items that he believed to be deposited in that bag, which turned out to be 13 Ecstasy pills.


At that juncture, he noticed – up to this point in time, he noticed that the defendant was somewhat nervous, but otherwiseconversant and responded to his questions regarding information.

The defendant was place under arrest for the Ecstasy pills and put in the back of [Officer’s] Shipley patrol car.

The defendant was also during this period of time read his Miranda Rights, while the officer also during this period oftime filled out paperwork attendant tot the arrest.

He ran the information regarding Eric Jones that had been originally supplied by Mr. Davis — regarding the person EricJones with the Arizona information.

He determined through the computer search that that information was not valid. He confronted, that is Officer Shipleyconfronted the defendant about the bad information.

During that period of time, the defendant exhibited no signs of being under the influence, other than what would be normalnervousness attendant to the traffic stop and the arrest for the Ecstasy pills.

The defendant attempted to negotiate the release of Ms. Jones, telling Officer Shipley that if, in fact, Ms. Jones wasreleased, that he would give him his true identity.

That of course failed with Officer Shipley, and the defendant eventually told Officer Shipley that his real name wasThomas Davis and he was wanted in Pittsburgh for a June murder.

Following that disclosure, the defendant became pronouncingly nervous; whether characterized as an anxiety attack orpanic attack.

Nonetheless, he told Officer Shipley that he had taken an Ecstasy tablet prior to the traffic stop.

Consistent with the protocol in place with the Nashville Police Department, the officer called an ambulance to the scene.

It should be noted that although Officer Shipley described the defendant as having a panic attack and being nervous, thecall was made in response to the protocol, rather than in response to any debilitating signs exhibited by the defendant inthat regard.

The ambulance arrived. They transported the defendant to a nearby medical facility. That entire sequence of events tookplace in approximately 15 to 20 minutes.

The defendant was treated in the emergency room by medical personnel, including an IV.

The officer having made the arrest for the Ecstasy tablets and also having confirmed who the defendant was, in fact, waitedfor release of the defendant pursuant to that medical treatment and the protocol in place by virtue of the Nashville PoliceDepartment and as well as the hospital personnel.

Near the end of that period of time, that is while the defendant was waiting release and the officer finishing his paper-work, the defendant initiated a conversation with Officer Shipley, inquiring of him, What am I going to get for the murderback in Pennsylvania?

The officer responded to the question by indicating that he did not know, that he was unfamiliar with Pennsylvania law.

At that juncture, the defendant gratuitously began talking about the situation in Pittsburgh, the homicide that he waswanted for.

The officer did not initiate that conversation and did not pose any questions to the defendant during the narrative that thedefendant undertook and completed at that juncture.

The defendant was released to the police, transported for booking, consistent with the arraignment policies in place inthe State of Tennessee in that particular county.

The Court finds that the Miranda Warnings were administered to this defendant consistent with the card which listedthose warnings, as well as the expertise of Officer Shipley.

The defendant, although nervous attendant to the traffic stop and attendant to the disclosure that he was wanted in theState of Pennsylvania, did not appear to be under the influence of any drugs or alcohol.

He understood the response to the Miranda Warnings, as well as to the inquiry for information from the officer andattempting to negotiate the release Ms. Jones, and initiated a conversation at that time in the hospital near the end of hisstay there.

The Court finds that there was no promises, coercion, threats or any invocation of his right to an attorney during this periodof time.

That there were no questions posed by this officer, other than the original questions posed attendant to the traffic stop.

Consequently, the Court finds no compromise of the defendant’s right under the constitution of this Commonwealth, northe federal constitution.

(T.T. 58-65) See Edwards, 555 A.2d at 826 (appellate court’s responsibility on review is to determine whether the record supportsthe factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.)

Here the evidence adduced at the suppression hearing demonstrated that Appellant, although nervous and allegedly under theinfluence of an ecstasy pill, was sufficiently possessed of his faculties to understand and waive his Miranda rights. (T.T. 7-13) SeeEdwards, 555 A.2d at 827 (fact that defendant had been drinking before his arrest does not automatically render his statementsinadmissible; test is whether he had sufficient mental capacity at the time to know what he was saying and to have voluntarilyintended to say it).


Appellant’s transport to the hospital was mandated by police protocol in response to Appellant’s self report of drug use ratherthan demonstrated medical necessity. Furthermore, Appellant was quickly cleared by the hospital for police processing, and itappeared that his increased anxiety and panic owed more to being apprehended for the murder charge than to the effects of thedrug he allegedly ingested. (T.T. 16, 22, 25)

Finally it was appellant who initiated the conversation with the officer at the hospital and blurted out comments to the officerwhile there. The officer in fact was specifically trained not to question homicide suspects, rather such questioning was left to detec-tives whose responsibility was to interrogate such persons. (T.T. 25) See generally Commonwealth v. Odick, 599 A.2d 974, 975-976(Pa. Super. 1991) (statements made by defendant after he was handcuffed were not the result of custodial interrogation, but were“blurt outs” and were admissible despite the absence of Miranda warnings).

Here the record supports the factual findings and legal conclusions of the Trial Court and Appellant’s claim should be denied.

IV.In his final claim Appellant alleges that the Trial Court erred when it permitted autopsy photographs to be introduced into

evidence. This claim is without merit.When considering the admissibility of post-mortem photographs of a homicide victim the law is well settled and stated thusly,

Photographs of a murder victim are not per se inadmissible. The admission of such photographs is a matter within thediscretion of the trial judge. The test for determining the admissibility of such evidence requires that the court employ atwo-step analysis. First, a court must determine whether the photograph is inflammatory. If not, it may be admitted if ithas relevance and can assist the jury’s understanding of the facts. If the photograph is inflammatory, the trial court mustdecide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the like-lihood of inflaming the minds and passions of the jurors.

Commonwealth v. Mollet, 5 A.3d 291, 301 (Pa. Super. 2010)

Here the Trial Court determined that the photographs were not inflammatory and admitted eight color photographs of thevictim taken at autopsy. Four of those photographs had probes in the wound sites which demonstrated the trajectory of the bullets.(T.T. 66-69, 255-256, 268-270) See Commonwealth v. Spell, 28 A.3d 1274, 1279 (Pa. Super. 2011) (photographic images of a homi-cide victim are often relevant to the intent element of first degree murder).

The Trial Court noted that the pictures were sanitized (no blood, dirt, tissue) and cropped to minimize their graphic nature. (T.T.68-69, 255) The Trial Court also recognized that the nature of the case (homicide) allowed for the admission of such evidence to:(1) assist the fact-finder in understanding the nature and extent of the wounds as it may relate to the intent element of first degreemurder; and, (2) to aide the fact-finder in understanding the testimony of the forensic pathologist. (T.T. 68-69, 258-259) SeeCommonwealth v. Kendricks, 30 A.2d 499, 503 (Pa. Super. 2011) (autopsy photographs of gunshot wounds to victim’s body were notinflammatory and had probative value as an aide to understand the testimony of the forensic pathologist). The Trial Court also gavea limiting instruction at the time the photographs were introduced and in the final instructions to the jury. (T.T. 260-261, 415-416)See Mollet, 5 A.3d at 302.

In today’s society jurors are routinely exposed to similar materials that are equally if not far more graphic than the photographsadmitted here. As was stated by the Pennsylvania Supreme Court:

A criminal homicide trial is, by its very nature, unpleasant, and the photographic images of the injuries inflicted aremerely consonant with the brutality of the subject inquiry. To permit the disturbing nature of the images of the victim torule the question of admissibility would result in exclusion of all photographs of the homicide victim, and would defeatone of the essential functions of the criminal trial; inquiry into the intent of the actor. There is not need to overextend anattempt to sanitize the evidence of the condition of the body as to deprive the Commonwealth of opportunities of proof insupport of the onerous burden of proof beyond a reasonable doubt.

Commonwealth v. McCutheon, 454 A.2d 547, 602 (Pa. 1982)

Appellant’s claim is without merit.CONCLUSION

For the aforementioned reasons, the judgment of the sentence imposed by the Trial Court should be affirmed.


Date: June 22, 20121 18 Pa.C.S. § 2501(a)2 The letters “T.T.” refer to the Suppression and Trial Transcript of June 29, 2009 – July 1, 2009.

Commonwealth of Pennsylvania v. Christopher CashCriminal Appeal—Sufficiency—Identification—Waiver—Sentencing (Discretionary Aspects)

No. CC 200902744. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.Borkowski, J.—June 28, 2012.


Appellant, Christopher Cash, was charged by Criminal Information (CC200902745) with one count each of: Possession OfFirearm Prohibited1, Aggravated Assault2, Firearms Not To Be Carried Without License3, Terroristic Threats With Intent toTerrorize Another4, Recklessly Endangering Another Person5, and Resisting Arrest Or Other Law Enforcement6.


Appellant proceeded to a jury trial on March 24, 2010. At the close of the Commonwealth’s case, Appellant moved for aJudgment of Acquittal as to count 3, Firearm Not To Be Carried Without License, which was granted. The jury found Appellantguilty of Possession of Firearm Prohibited, Aggravated Assault, Terroristic Threats, Recklessly Endangering Another Person, andResisting Arrest.

Appellant was sentenced on July 13, 2010 to an aggregate term of four to eight years incarceration. Appellant filed a post-sen-tence in the nature of a motion to reconsider sentence on July 16, 2010, which was denied by operation of law on November 16, 2010.

This timely appeal follows

STATEMENT OF ERRORS COMPLAINED OF ON APPEALAppellant raises the following matters which are set forth exactly as he states them:

I. The trial court erred when it denied Defendant’s Motion for Judgment of Acquittal where evidence of record failed toprove beyond a reasonable doubt that Defendant was the individual who committed the offenses of Aggravated Assault,Recklessly Endangering Another Person, Terroristic Threats and Resisting Arrest.

II. The trial court erred when it denied Defendant’s Motion for a New Trial where the evidence of record failed to provebeyond a reasonable doubt that Defendant was the individual who committed the offenses of Aggravated Assault,Recklessly Endangering Another Person, Terroristic Threats and Resisting Arrest.

III. The trial court erred when it denied Defendant’s Motion to Reconsider Sentence where the trial court abused itsdiscretion when it sentenced Defendant to an aggravated range sentence without adequately stating its reasons on therecord and without due consideration of the sentencing factors set forth at 42 Pa.C.S.A. §9721.

IV. The trial court erred when it sentenced Defendant beyond the period specified in Pa.R.Crim.P. 704(A)(1).

FACTSOn December 31, 2008, Detective Gregory Woodhall (Woodhall) was patrolling Second Avenue in the Hazelwood section of

Pittsburgh, Allegheny County, when he heard several shots fired. (T.T. 27)7. After announcing that shots were fired on radio,Woodhall drove onto Glouster Street where he observed Christopher Cash (Cash) fire a round into the air with a pistol. (T.T. 28, 59,67). Woodhall testified that he was approximately 75 feet away from Cash when he observed this, and that lighting conditions andvisibility were good. (T.T. 29).

Woodhall pulled his marked police car alongside Cash, who turned and made eye contact with Woodhall. (T.T. 29-30, 47). Cashraised his pistol and pointed it at Woodhall. (T.T. 29, 31, 47). In response, Woodhall slammed on his brakes and veered to the right,causing his marked police car to strike a tree stump. (T.T. 29-31, 51).

Cash fled and Woodhall immediately exited his vehicle and pursued Cash while calling for backup over the radio. (T.T. 31-32,52). He pursued Cash approximately four blocks and never lost visual contact of him. (T.T. 32-33, 36). Cash then attempted to entera residence, located at 5021 Chaplain Street, but could not get the door open. (T.T. 36-37, 62). Woodhall then drew his serviceweapon and ordered Cash to the ground, but Cash did not comply. (T.T. 36-37). However, Officer Aaron Fetty arrived as backup andperformed a leg sweep on Cash that brought him to the ground. (T.T. 37, 63).

Cash resisted arrest by spreading his arms and kicking around to avoid being handcuffed by Officer Fetty. (T.T. 38, 63). Cashmade gratuitous statements that included: (1) “I never had a gun”; (2) “That wasn’t me”; and, (3) “You don’t see me with a gun”;even though neither Woodhall nor Officer Fetty mentioned anything concerning a firearm. (T.T. 37-38, 63). After he was hand-cuffed, Cash continued to resist being put into the police vehicle by kicking with his legs, and he had to be physically placed intothe vehicle by two officers. (T.T. 69-70).

While other officers transported and processed Cash, Woodhall returned to his vehicle and retraced the route of the pursuit. (T.T.39). He found four .40 S&W shell casings approximately 40 or 50 feet away from his wrecked vehicle. (T.T. 41). He also found thefirearm that Cash had been carrying, a .40 caliber Taurus handgun, approximately 10 feet away from the vehicle. (TT. 39-40, 42).

During transport to jail, Cash was belligerent and began slamming himself into the sides of the police vehicle. (T.T. 72-73). Heeventually vomited and passed out for a short period due to his intoxication. (T.T. 73). Once the vehicle arrived at the sally port ofthe jail, Cash woke up and continued to act belligerent. (T.T. 73). He began threatening both officers, saying, “Bail ain’t nothing,you know that, right? Take the cuffs off and try that shit. I’m gonna get you all at y’all homes while y’all sleep.” (T.T. 74). He fur-ther said, “You’re laughing now, but you’ll be crying later. Laugh now, cry later, mother fucker. God bless you. You’ll need blessed,you’ll see.” (T.T. 75).

Appellant was charged as set forth hereinabove.

DISCUSSION

I.In his first issue Appellant alleges that the Trial Court erred when it denied Appellant’s Motion for Judgment of Acquittal where

the record failed to prove beyond a reasonable doubt that Appellant was the individual who committed the offenses of AggravatedAssault, Recklessly Endangering Another Person, Terroristic Threats, and Resisting Arrest. This claim is without merit.

The applicable standard of review for the denial of a motion for judgment of acquittal is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether reviewing all the evidence admitted at trialin the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every ele-ment of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substituteour judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealthneed not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn fromthe combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyonda reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire recordmust be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon thecredibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.


Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. Super. 2008).

Here Appellant limits his sufficiency argument to that of the identification of Appellant as the perpetrator of the crimes com-mitted. Appellant does not dispute the lack of evidence as to the elements of any of the crimes charged. In this regard the SuperiorCourt has noted,

A sufficiency of the evidence challenge is directed to the adequacy of the evidence as to the elements of the offenseswhich a defendant has been convicted. Appellant, however does not direct his challenge to the individual elements, andessentially concedes that, if the Commonwealth’s witnesses were credible, the Commonwealth’s evidence was sufficient.The law is well settled that a sufficiency argument that is founded upon a mere disagreement with the credibility deter-minations made by the fact finder, or discrepancies in the accounts of the witnesses, does not warrant the grant of appel-late relief, for it is within the province of the fact finder to determine the weight accorded each witness’ testimony and tobelieve all, part, or none of the evidence introduced at trial.

Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa. Super. 2006)(citations and quotations omitted).

It is clear that the fact finder in this case believed the testimonies of Officers Woodhall and Fetty, as well as their fellow offi-cers. Concerning the offenses of aggravated assault and recklessly endangering another person, Woodhall testified that: (1) he wit-nessed Appellant point the firearm at him; (2) visibility and lighting were good; and (3) that he slammed on his breaks and wreckedhis car because the firearm was pointed at him. (T.T. 29-31, 47, 51). Further, Woodhall identified Appellant at trial and stated thathe had no doubt that Appellant was the same person who pointed the firearm at him. (T.T. 31, 57). See Commonwealth v. Repko,817 A.2d 549 (Pa. Super. 2003) (evidence sufficient to support aggravated assault conviction where defendant aimed an unloadedshotgun at a uniformed officer who had gotten out of a marked police vehicle). See also Commonwealth v. Hopkins, 747 A.2d 910,916 (Pa. Super. 2000) (brandishing a loaded firearm during the commission of a crime provides a sufficient basis on which afactfinder may conclude that a defendant proceeded with conscious disregard for the safety of others, and that he had the presentability to inflict great bodily harm or death)(citations omitted).

Concerning the offense of resisting arrest, both Officers Woodhall and Fetty testified that Appellant resisted being handcuffed byspreading out his arms and kicking around. (T.T. 38, 63-64). Officer Fetty also identified Appellant at trial as the man that he placedunder arrest. (T.T. 64). Sergeant Aaron Vollberg testified that Appellant resisted being placed into the police wagon by kicking againstthe car, and that another officer had to assist him with placing Appellant inside. (T.T. 69-70). See Commonwealth v. Miller, 475 A.2d145, 147 (Pa. Super. 1984) (evidence sufficient to support resisting arrest conviction where defendant attempted to avoid being hand-cuffed by flailing his arms and where multiple police officers were required to physically place him in the police vehicle).

Finally, concerning the offense of terroristic threats, Officer Matthew Schlick testified that Appellant made numerous remarksthat he and Officer Michael Chlystek interpreted as threats. First, Appellant remarked, “You’ll see. Bail ain’t nothing, you know that,right?” (T.T. 74). He then went on to say, “I’m gonna get you all at y’all homes while y’all sleep.” (T.T. 74). Finally, before the officersleft, Appellant said, “You’re laughing now, but you’ll be crying later. God bless you. You’ll need blessed, you’ll see.” (T.T. 74). OfficerSchlick further testified that all of the comments were directed to him and Officer Clystek as no one else was present when Appellantmade them. (T.T. 74). See Commonwealth v. Ashford, 407 A.2d 1328 (Pa. Super. 1979) (evidence sufficient to support terroristicthreats conviction where defendant threatened to kill officers and their families in their homes while being transported to jail).

Here, the Commonwealth provided credible and overwhelming evidence that Appellant was the person who committed each ofthe four offenses listed above. Thus, this Court did not err in denying Appellant’s Motion for Judgment of Acquittal.


II.In his second issue Appellant alleges that the Trial Court erred when it denied Appellant’s Motion for a New Trial where the

record failed to prove beyond a reasonable doubt that Appellant was the individual who committed the offenses of AggravatedAssault, Recklessly Endangering Another Person, Terroristic Threats, and Resisting Arrest. As Appellant failed to raise this claimin a manner consistent with Pennsylvania Rule of Evidence 607, it has been waived.

Should the Superior Court not find waiver, the applicable standard of review for the denial of a motion for new trial is as follows:

A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court.Accordingly, an appellate court reviews the exercise of the trial court’s discretion; it does not answer for itself whether theverdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the ofthe evidence and to determine the credibility of witnesses, and a new trial based on a weight of the evidence claim is onlywarranted where the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice. In determiningwhether this standard has been met, appellate review is limited to whether the trial judge’s discretion was properly exer-cised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011)(citations and quotations omitted).

The Trial Court has set forth a detailed summary of the facts hereinabove (Facts) and respectfully incorporates that for purposesof the present discussion. Supra at pp. 4-6.

Here, the jury’s guilty verdict is not so contrary to the evidence that it shocks one’s sense of justice. Four separate police offi-cers of the City of Pittsburgh identified Appellant as the perpetrator of the various crimes. Their identification was positive andunequivocal, clearly establishing that: (1) Appellant had been firing shots into the air; (2) that he was the one who pointed a firearmat Woodhall; (3) that Woodhall wrecked his vehicle because the firearm was pointed at him; (4) that Appellant fled the scene andresisted arrest; and (5) that he made threatening comments to the officers transporting him to jail. (T.T. 28-32, 38, 69-70, 74-75).See supra at pp. 4-6. The jury, who is free to believe all, part, or none of the evidence and who is to determine the credibility of thewitnesses, clearly believed the testimonies of the officers. See generally Commonwealth v. Brown, 23 A.3d 544, 557-558 (Pa. Super.2011)(no error in trial court’s determination that the verdict was not against the weight of the evidence where victim’s identifica-tion of defendant was reliable under the totality of the circumstances).

Therefore, it cannot be said that the Trial Court abused its discretion in denying Appellant’s Motion For a New Trial based onhis claim that the verdict was against the weight of the evidence. Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (becausethe trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest considera-


tion to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination whether a verdict isagainst the weight of the evidence).


III.In his third issue Appellant alleges that the Trial Court erred when it denied Appellant’s Motion to Reconsider Sentence when

it sentenced Appellant to an aggravated range sentence without adequately stating its reasons on the record and without due con-sideration of the sentencing factors set forth at 42 Pa.C.S.A. §9721. This claim is without merit.

The applicable standard of review for the denial of a motion to reconsider sentence is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed onappeal absent a manifest abuse of discretion. A sentencing court has broad discretion in choosing the range of permissibleconfinements which best suits a particular defendant and the circumstances surrounding the crime. However, the choicesmust be consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

Commonwealth v. Devers, 546 A.2d 12, 13 (Pa. 1988).

Further the Pennsylvania Supreme Court has stated that, “An abuse of discretion may not be found merely because an appel-late court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,bias, or ill-will, or such lack of support so as to be clearly erroneous.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

Here Appellant was sentenced to an aggregate term of four to eight years incarceration. Specifically, as to count two, aggravatedassault, Appellant was sentenced to a period of incarceration of two to four years; as to count one, persons not to possess a firearm,he was sentenced to a period of incarceration of one to two years to run consecutive to the sentence at count one; as to count four,terroristic threats, he was sentenced to a period of incarceration of one to two years to run consecutive to the previously imposedperiods of incarceration; and as to the counts of recklessly endangering another person and resisting arrest, no further penalty wasimposed. (S.T. 11-12)8.

Despite Appellant’s claim to the contrary, a review of the entire record will confirm that the Trial Court took into account allfactors mandated by statute and law, and that the Trial Court did not abuse its discretion in sentencing Appellant in the mannerthat it did. Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002)(sentencing judge’s decision will not be disturbed absent a man-ifest abuse of discretion).

Specifically, the Trial Court recognized and took into consideration: (1) the statutorily mandated factors that go into the indi-vidualized sentencing in Pennsylvania including the background of the Appellant as reflected in the pre-sentence report; (2) thesentencing guidelines; (3) Appellant’s extensive criminal history as detailed in the pre-sentence report; (4) the protection of thecommunity; (5) the impact of this particular crime on the victims; and (6) the rehabilitative needs of the Appellant. (S.T. 10-11).The court noted that prior efforts to maintain Appellant in the community were not successful. (S.T. 11). Walls, 926 A.2d at 966-967(sentencing court properly took into account applicable factors and thus sentence should not be disturbed by reviewing court).

The Trial Court also noted Appellant’s prior record score of one (1), and that Appellant had committed offenses that were notreflected in the prior record score. (S.T. 8). The Trial Court was deeply concerned with the aggression that Appellant displayedtoward Detective Woodhall, as well as past aggression shown towards police that was detailed in the pre-sentence report. (S.T. 8).The Trial Court correctly observed that Appellant posed a danger to the community, most especially police officers in the commu-nity, and that a substantial period of incarceration was warranted. (S.T. 11). Commonwealth v. Burtner, 453 A.2d 10, 11-12 (Pa.Super. 1982) (sentence not found excessive or disturbed on appeal where it did not exceed that statutory limits and where thesentencing colloquy clearly demonstrated that the sentencing court carefully considered all relevant evidence relevant to a deter-mination of a proper sentence).


IV.In his fourth issue Appellant alleges that the Trial Court erred when it sentenced Appellant beyond the time period specified in

Pa.R.Crim.P. 704(A)(1). This issue is without merit.Rule 704(A)(1) of the Pennsylvania Rules of Criminal Procedure states: “Except as provided by Rule 702(B)9, sentence in a

court case shall ordinarily be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere.”The applicable standard of review that applies to a violation of 90-day sentencing has been stated thusly,

A defendant who is sentenced in violation of Rule 140510 is entitled to a discharge only where the defendant can demon-strate that the delay in sentencing prejudiced him or her.

To determine whether discharge is appropriate, the trial court should consider: (1) the length of the delay falling outside ofRule 1405(A)’s 60-day-and-good-cause provisions, (2) the reason for the improper delay, (3) the defendant’s timely oruntimely assertion of his rights, and (4) any resulting prejudice to the interests protected by his speedy trial and due processrights. Prejudice should not be presumed by the mere fact of an untimely sentence. Our approach has always been to deter-mine whether there has in fact been prejudice, rather than to presume that prejudice exists. The court should examine thetotality of the circumstances as no one factor is necessary, dispositive, or of sufficient importance to prove a violation.

Commonwealth v. Anders, 725 A.2d 170, 173 (Pa. 1999)(citations and quotations omitted).

Here Appellant was sentenced 112 days after his conviction, 22 days beyond the specified period of Rule 704. Appellant also timelyasserted his rights three days after sentencing. The reason for the delay was an oversight in transporting Appellant from SCI Retreat tothe Allegheny County Jail (S.T. 5); there was no evidence of bad faith or deliberate intent on part of the government. See Commonwealthv. Glass, 586 A.2d 369, 372 (Pa. 1991)(delays caused by negligence, inefficiency, or overcrowding in the courts must be weighed againstthe Commonwealth, but not heavily so because there is no deliberate action on part of the Commonwealth to delay sentencing).

Most importantly, Appellant has offered no argument or evidence to demonstrate that the delay in sentencing has prejudicedhim. Since the court should not presume prejudice merely because of an untimely sentence, Appellant has failed to fulfill hisburden and is not entitled to discharge. See Commonwealth v. Still, 783 A.2d 829 (Pa. Super. 2001)(appropriate remedy for viola-tion of Rule 704 is discharge only when the defendant can show prejudice due to the delay).


Appellant’s claim is without merit.CONCLUSION

Based on the foregoing the judgment of sentence should be affirmed.BY THE COURT:/s/Borkowski, J.

Date: June 28, 2012

1 18 Pa. C.S. § 6105(a)(1).2 18 Pa. C.S. § 2702(a)(6).3 18 Pa. C.S. § 6106(a)(1).4 18 Pa. C.S. § 2706(a)(1).5 18 Pa. C.S. § 2705.6 18 Pa. C.S. § 5104.7 “T.T.” refers to the Trial Transcript of March 24, 2010.8 “S.T.” refers to the Sentencing Transcript of July 13, 2010.9 The exception provided by Rule 702(B) only applies to psychiatric or psychological examinations and is inapplicable in this case.10 Rule 1405 has been renamed to Rule 704 in the Pa.R.Crim.P. Further, the 60-day-and-good-cause provision associated with Rule1405(A) has been extended to 90 days in Rule 704(A)(1).

