WASHINGTON COUNTY REPORTSfiles.constantcontact.com/ee871b59001/82b4761f-ef... · stay were Chief Justice John G. Roberts Jr., Justice Anthony M. Kennedy, Clarence Thomas, and Samuel

WASHINGTON COUNTY REPORTS OFFICIAL LEGAL PERIODICAL FOR WASHINGTON COUNTY,

PENNSYLVANIA. ESTABLISHED MARCH 31, 1920. PUBLISHED BY WASHINGTON COUNTY BAR ASSOCIATION SINCE JANUARY 1, 1958.

VOL. 97 THURSDAY, AUGUST 25, 2016 No. 5

CONTAINING FOR TEMPORARY USE ADVANCE SHEETS OF THE DECISIONS OF THE JUDGES OF THE 27TH JUDICIAL DISTRICT OF PENNSYLVANIA AND THE OFFICIAL LEGAL NOTICES AND ADVERTISEMENTS OF THE SEVERAL COURTS OF THE COUNTY OF WASHINGTON, PENNSYLVANIA.

TABLE OF CONTENTS

Washington County Court of Common Pleas Calendar ............................................. 2 Obiter Dictum ........................................................................................................... 3 Washington County Bar Association Calendar ......................................................... 4 Notice to the Profession .......................................................................................... 4 Estate Notices ........................................................................................................... 5 Corporation Notices .................................................................................................. 7 Classified ................................................................................................................... 9 Miscellaneous Notice .............................................................................................. 10 Commonwealth v. O’Daniel ................................................................................. 12

Serving the Legal Community of

Washington County

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WASHINGTON COUNTY REPORTS

WASHINGTON COUNTY REPORTS is owned & published by the Washington County Bar Association, 119 South College Street, Washington, PA 15301. Phone 724.225.6710. Fax 724.225.8345.

Washington County Reports does not edit any legal advertisement for substance or content, only for format of the publication.

ADVERTISEMENTS due Friday at Noon for publication the following Thursday (holidays may alter deadline).

Editor and General Manager: William E. Speakman J r ., Esq. ~ Business Manager: Sher r i A. Paige.

Periodical Postage paid at Washington, PA 15301. Washington County Reports USPS 667-460.

SUBSCRIPTION RATE. $85.00. 52 Weekly Issues.

COPYRIGHT 2016 WCBA. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form by electronic, mechanical, photocopying, or any other means without the prior written permission of the copyright holder.

MOTIONS—2016

General Civil ........................................ Judge of the Term (9:15am, Monday-Friday) Criminal (August) ....................................................................................... Lucas, J. P. Judge Katherine B. Emery ................................. Tues. through Thurs. at 9:15 am Judge John DiSalle .................................... .................... Tues. and Thurs. at 9:15am Judge Gary Gilman ................................... .................. Tues. through Fri. at 9:15 am Judge Valarie Costanzo ............................ Wed. 9:30 am for individuals with counsel; 1:30 pm if the moving party does not have counsel. Judge Michael Lucas ………… ………. Monday at 1:15 pm and Thurs. at 8:30 am Judge Faldowski ............... Tues. through Thurs. at 9:15 am

Motions in unassigned civil cases will continue to be heard by the Judge of the Term Monday through Friday @ 9:15 a.m.

Katherine B. Emery, P.J., John DiSalle, Gary Gilman, Valarie Costanzo, Michael Lucas, Damon Faldowski

Judge of the Term .......................... August 16—31 ....................................... Gilman, J. Judge of the Term ........................ September 1—15 ................................... Emery, P.J.

COURT OF COMMON PLEAS CALENDAR

JUDGES OF THE COURT OF COMMON PLEAS

Criminal - Trial Weeks .................................................................... Sept. 12 –23, 2016 Civil - Trial Weeks.......................................................................... Sept. 12—23, 2016 Orphans’ Court - Next Audit .................................................................. Sept. 29, 2016 Orphans’ Court deadline to file accounts for Nov. 2016 Audit ............ Sept. 27, 2016 Sheriff’s Office - Next Sheriff’s Sale ........................................................ Sept. 2, 2016 last day to file Executions in Prothonotary’s for Dec. 2016 sale ...... Sept. 23, 2016 last day to file Executions in Sheriff’s office for Dec. 2016 sale ....... Sept. 30, 2016

COMMONWEALTH COURT ....... Convenes in Pittsburgh ......... Nov. 14-18, 2016 SUPREME COURT......................... Convenes in Pittsburgh . Oct. 31—Nov. 4, 2016 SUPERIOR COURT ....................... Convenes in Pittsburgh ...... Sept. 19—23, 2016

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OBITER DICTUM CONTINUED ON PAGE 11

Phillips and Faldowski, PC have changed the name of their firm to Phillips, Philips & Smith-Delach, P.C. The address and phone numbers stay the same. • • From the ABA Journal Daily Newsletter : [1] “A split U.S. Supreme Court on Thursday re-fused to overturn a stay for an Alabama inmate whose lawyers claim vascular dementia from strokes makes him incompetent for execution. Four justices would have over-turned the stay granted to 65-year-old inmate Vernon Madison, report the Associated Press, the Washington Post and Al.com. The four justices who would have vacated the stay were Chief Justice John G. Roberts Jr., Justice Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. Madison was convicted of killing a Mobile, Alabama, police officer in April, 1985. Madison is represented by the Equal Justice Initiative, founded by lawyer Bryan Stevenson. According to EJI, brain damage from strokes left Madison with an inability to understand the proceedings against him, slurred speech, blindness and an inability to walk on his own. Stevenson said in a statement that jurors had recommended a life sentence, but a judge overrode the verdict and sentenced Madi-son to death. The judge has overridden six jury verdicts of life without parole, more than any other judge in Alabama, according to EJI. The group is raising the override issue in a separate habeas petition filed with the U.S. Supreme Court on Thursday. The Atlanta-based 11th U.S. Circuit Court of Appeals granted the stay based on the compe-tency issue seven hours before Madison’s scheduled execution, according to the AP story.” (Article by Debra Cassens Weiss ); [2] “A wave of ‘potentially costly and em-barrassing’ lawsuits over Web sites which allegedly fail to comply with the Americans with Disabilities Act has hit real estate and home construction companies, the Chicago Tribune reports. A partner of Carlson, Lynch, Sweet, Kilpela & Carpenter, which rep-resents plaintiffs in such cases, tells the Tribune that it sent out about 25 demand letters to real estate companies in recent months. Web sites inaccessibility ‘is an epidemic in this country,’ says partner Benjamin Sweet. In a recent letter to the chief of the civil rights division at the U.S. Department of Justice, president Tom Salomone of the Na-tional Association of Realtors complained that members are facing ADA complaints and restitution demands despite a lack of clear federal guidance on what is required con-cerning web sites, the newspaper reports. However, Sweet says DOJ settlements and statements have made clear the Web Content Accessibility Guidelines published by the World Wide Web Consortium are the gold standard. At issue in ADA web site-accessibility cases are features such as text to describe images and transcripts for audio-visual content, according to the newspaper.” (Article by Martha Neil); [3] “Nearly 500 startup technology companies provide services to the legal industry, according to a tally by legal technology blogger Robert Ambrogi. Ambrogi, who created the list at his LawSites blog, tells Fast Company that tech entrepreneurs with good ideas can compete with bigger players . . . ‘Now it’s law students or younger lawyers who just aren’t happy with the way things are getting done and will get an idea and try to develop it,’ Ambrogi says . . . Pacer Pro, a startup . . . offers a better way to search federal court records . . . Fast Company lists other newer companies that are helping the legal industry. They include IP analytics company LEX Machina (planning an expansion in services after its sale to LexisNexis), alternative legal research company Ravel Law (which partnered

OBITER DICTUM

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WASHINGTON COUNTY BAR ASSOCIATION CLEs and CALENDAR OF EVENTS

PBI Seminars are held at WCBA offices, 119 South College Street, Washington, PA, unless noted. Register for PBI seminars through PBI at 1.800.932.4637

or www.pbi.org. Register for WCBA CLE seminars through WCBA at 724.225.6710. (Note PBI costs: PBA members practicing 5+ years/New Admits

< 5 years.). Any person requiring special PBI arrangements for a disability contact Zina Barlup at 800.932.4637 ext. 2284 at least 10 days before the course.

PBI RESERVES THE RIGHT TO CANCEL ANY SEMINAR 10 DAYS PRIOR IF TWO OR FEWER PEOPLE ARE PRE-REGISTERED.

PBI - CLE

9/7 Noon WCBA Member Roundtable WCBA

TBA TBA Annual YLD v. Senior Softball Challenge TBA

9/15 4:30pm Energy Law “Quiet Title Ethical Issues” Range Resources,

Southpointe

9/27 4pm WCBA Meeting & CLE

“The Bonehead Play” (Mark Yochum) Hilton Garden Inn,

Southpointe


10/24 4:30pm WCBA Meeting, Slate & CLE

“Malpractice Avoidance” Meadows Casino


11/18 Annual Bar Banquet Southpointe Golf

Club

1/20/17 Winter Bench/Bar Hilton Garden Inn

9/16 9-5:00 5/1 $299/319 Get Organized and Get Things Done

9/23 9-12:30 3/0 $349/369 The Estate Planners Income Tax Play-

book

NOTICE TO THE PROFESSION The Court of Common Pleas of Washington County is seeking applications from any-one interested in being appointed as a Master for tax assessment appeals. Interested applicants must submit a letter of interest and qualifications to Patrick R. Grimm, Es-quire, District Court Administrator, Suite 2004, One South Main Street, Washington, PA 15301, (724.228.6797). It is anticipated that the Master(s) will begin on or about January 2, 2017, and will serve for a term not to exceed 2 years. The amount of com-pensation and time commitment will be determined as part of the appointment process. Applicants should respond by August 17, 2016 for consideration.

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DEMCISAK, JENNIE, late of Car roll Township, Washington Co., PA; Executrix: Barbara Ann Demcisak, 153 Route 837, Monongahela, PA 15063; Attorney: Thomas B. Kostolansky, 617 McKean Avenue, Donora, PA 15033

GLESK, RAYMOND R., late of Charleroi, Washington Co., PA; Executor: Robert J. Glesk, 711 6th Street, North Charleroi, PA 15022; Attorney: Herman J. Bigi, Bigi & Walsh, 337 Fallowfield Avenue, Charleroi, PA 15022

GRANDA, BONNIE E., late of West Brownsville, Washington Co., PA; Administratrix: Billie Jo Riccelli, 122 Main St., West Brownsville, PA 15417; Attorney: Michael E. Megrey, Woomer & Hall LLP, 2945 Banksville Road, Ste 200, Pittsburgh, PA 15216

KEARNS, PEGGY ANN, late of North Strabane Township, Washington Co., PA; Administratrix: Sandra K. Speer, 13531 Knotty Log Court, Chantilly, VA 20151; Attorney: Daniel P. Gustine, Peacock Keller & Ecker, LLP, 70 East Beau St., Washington, PA 15301

KUROWSKI, ANNA SOPHIA, late of Washington, Washington Co., PA; Executor: Charles Edward Kurowski, PO

Box 331, Washington, PA 15301; Attorney: C. E. Kurowski, PO Box 331, Washington, PA 15301

McCULLOUGH, JOHN RAYMOND, a/k/a JOHN R. McCULLOUGH, late of Canton Township, Washington Co., PA; Executrix: Christine Maloy, 196 Lacock Street, Washington, PA 15301; Attorney: Frank C. Roney, Jr., 382 W. Chestnut Street, Ste 102, Washington, PA 15301

MISANIK, JOSEPH J., late of New Eagle, Washington Co., PA; Executrix: Jeanie Misanik, 315 Seventh Avenue, New Eagle, PA 15067; Attorney: James W. Haines, Jr., 1202 West Main St., Monongahela, PA 15063

MONAGHAN, BETTY N., late of Venetia, Washington Co., PA; Executors: Thomas David Monaghan and Patricia Monaghan Moore, c/o 198 Canterbury Road, McMurray, PA 15317; Attorney: H. Brian Peck, 198 Canterbury Road, McMurray, PA 15317

PARADISE, EDITH M., late of Donora, Washington Co., PA; Executors: Claudia P. Blake, 1000 Blake Road,, Ambridge, PA 15003; Don M. Paradise, 1795 Partridge Run Road, Pittsburgh, PA 15241; Attorney: Herman J. Bigi, Bigi & Walsh, 337 Fallowfield Avenue, Charleroi, PA 15022

PLATUSICH, PETER J., late of McMurray, Washington Co., PA; Executor: Bruce M. Platusich, 227 S. 4th Street, Lewisburg, PA 17837; Attorney: Daniel M. Flynn, Michael D. Flynn & Assoc., 2770 South Park Road, Bethel Park, PA 15102

SHEDLOCK, GEORGE S., late of Hanover Township, Washington Co., PA; Administratrix: Dawn Williamson, PO Box 361, Marbury, MD 20658; Attorney: Jessica Roberts, 8 East Pine Avenue, Washington, PA 15301

ESTATE NOTICES

The Register of Wills has granted letters testamentary or of administration in the following estates. Notice is hereby given to all persons indebted thereto to make payment without delay and to those having claims or demands to present them for settlement to the Executors or Administrators or their attorneys.

FIRST PUBLICATION

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WALKER, DAVID L., late of Washington, Washington Co., PA; Executrices: Sharon L. Cox, 366 Dry Ridge Road, West Alexander, PA 15376; Stacy L. Barton, 36 Melisko Lane, West Alexander, PA 15376; Attorney: Susan P. Moser, 150 Main St., PO Box 371, Claysville, PA 15323

SECOND PUBLICATION CAPOZZA, THOMAS E., late of Carroll Township, Washington Co., PA; Executrix: Kimberly A. Godfrey, 112 Cherry Alley, Monongahela, PA 15063; Attorney: Thomas B. Kostolansky, 617 McKean Avenue, Donora, PA 15033

DeFILIPPIS, MARY M., a/k/a MARY MARGARET DeFILIPPIS, late of Mt. Pleasant Township, Washington Co., PA; Executrix: Rosalee Hrubic, 812 Lomond Drive, Riverside, CA 92508

FASNACHT, BARBARA J., late of Mt. Pleasant Township, Washington Co., PA; Executrix: Colleen J. Allison a/k/a Colleen Fasnacht Allison, 14 Quarry Lane, Hickory, PA 15340; Attorney: Eva H. Ahern, Peacock Keller & Ecker, LLP, 70 East Beau St., Washington, PA 15301

HAINAUT, JERILYNN, late of Washington Co., PA; Administratrix: Janice Hainaut, 1200 McGovern Rd., Apt. B, Houston, PA 15342; Attorney: Sweat Law Office, c/o Jerilynn Hainaut Estate, 23 East Beau St., Washington, PA 15301

KNOWLSON, BETTY A., late of Finleyville, Washington Co., PA; Executrix: Alma McCartney, 116 Boyd Road, Prosperity, PA 15329; Attorney: Timothy R. Berggren, 22 East Beau St., Washington, PA 15301 LUCAS, NANCY L., a/k/a NANCY LOUISE LUCAS, late of McDonald, Washington Co., PA; Administratrix: Loretta B. Kendall, 364 E. Lincoln Ave., McDonald, PA 15057; Attorney: Loretta

B. Kendall, 364 E. Lincoln Ave., McDonald, PA 15057

MEYER, ERICH C., late of Washington, Washington Co., PA; Executrix: Theresa S. Meyer, PO Box 105, Bridgeville, PA 15017; Attorney: E. J. Julian, 71 N. Main St., Washington, PA 15301

MILLER, KENNETH B., late of Washington, Washington Co., PA; Executrix: Vicky L. Harris, 1176 W. W. Railroad Road, Sycamore, PA 15364; Attorney: Susan P. Moser, 150 Main St., PO Box 371, Claysville, PA 15323

SHAW, SUSANNE, late of Scenery Hill, Washington Co., PA; Executrix: Tabatha Ferguson, 3204 State Route 2011, Scenery Hill, PA 15360; Attorney: Lisa J. Buday, PO Box 488, California, PA 15419

SPROWLS, JAMES W., late of West Pike Run Township, Washington Co., PA; Executor: Curtis J. Sprowls, 371 Woodland Road, Coal Center, PA 15423; Attorney: Keith A. Bassi, Bassi, Vreeland & Associates, P.C., 111 Fallowfield Ave., PO Box 144, Charleroi, PA 15022

STAUFFER, EMMA JEAN, a/k/a JEAN STAUFFER, late of Mar ianna Borough, Washington Co., PA; Executor: Ronald Stauffer, PO Box 251, Marianna, PA 15345; Attorney: Eva H. Ahern, Peacock Keller & Ecker, LLP, 70 East Beau St., Washington, PA 15301

ZYSK, PATRICIA LOUISE, a/k/a PATRICIA LOUISE KRZYWICKI, late of Finleyville, Washington Co., PA; Executor: Paul Krzywicki, 406 Streets Run Road, Pittsburgh, PA 15236; Attorney: Michael D. Seymour, 1431 Potomac Avenue, Pittsburgh, PA 15216

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THIRD PUBLICATION ALMASY, LAVERNE E., a/k/a LAVERNE ALMASY, late of Char tiers Township, Washington Co., PA; Executrix: Cynthia Adams, 201 Banfield Lane, Canonsburg, PA 15317; Attorney: Seth A. Tongchinsub, Bassi, Vreeland & Associates, PC, PO Box 144, 111 Fallowfield Ave., Charleroi, PA 15022

BEBOUT, ROBERT T., a/k/a ROBERT THOMAS BEBOUT, SR., late of South Strabane Township, Washington Co., PA; Executrix: Rebecca J. Tallarico, 497 Dille Run Road, Prosperity, PA 15329; Attorney: J. Lynn DeHaven, Goldfarb, Posner, Beck, DeHaven & Drewitz, 26 South Main Street, Ste 200, Washington, PA 15301

BOTTICCHIO, SERGIO J., a/k/a SERGE J. BOTTICCHIO, late of Chartiers Township, Washington Co., PA; Executrix: Lydia Morris, 1520 Windcrest Drive, Pittsburgh, PA 15206; Attorney: Eva H. Ahern, Peacock Keller & Ecker, LLP, 70 East Beau St., Washington, PA 15301

LEX, WILLA E., late of Washington Co., PA; Executrix: Candace H. Lex, 27 Lex Lane, Amity, PA 15311; Attorney: Brandon K. Meyer, 136 East High Street, Waynesburg, PA 15370

McCARTY, DEE ELAINE, a/k/a DEE E. McCARTY, late of McDonald, Washington Co., PA; Administrator: Chad E. Bennett, 1372 Lucia Drive, Canonsburg, PA 15317; Attorney: William E. Speakman, Jr., Speakman, Riethmuller & Allison, 30 East Beau St., Ste 430, Washington, PA 15301

McCRORY, C. ADRIAN, late of California, Washington Co., PA; Executor: James A. McCrory, 1240 West Wylie Avenue, Washington, PA 15301; Attorney: Susan M. Key, Peacock Keller & Ecker, LLP, 70 East Beau St., Washington, PA 15301

SMOKE, IRENE, a/k/a IRENE P. SMOKE, late of Borough of Canonsburg, Washington Co., PA; Executors: Diane Blicha, 1016 Woodridge Drive, Canonsburg, PA 15317; James Smoke, 111 Brookdale Road, McMurray, PA 15317; Attorney: Patrick C. Derrico, Greenlee, Derrico & Posa, 30 East Beau St., Ste 325, Washington, PA 15301

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is MILLER'S CORNER COTTAGE PERSONAL CARE HOME.

Gary T. Vanasdale, Esq. Gilliland Vanasdale Law Office, LLC 1667 Route 228, Ste 300 Cranberry Township, PA 16066 2)5-1

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is GRANDVIEW ESTATES OF ELIZABETH with its principal place of business at 200 Nobles Road, Brownsville, PA 15417.

CORPORATION NOTICE

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The name(s) and/or address(es) of all persons owning or interested in said business: Healing Hearts, LLC. Saul Ewing LLP One PPG Place, Suite 3010 Pittsburgh, PA 15222 2)5-1

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, on the 24th day of April, 2016, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is THE BROLYMPICS with its principal place of business at 409 Mary Lane, Canonsburg, PA 15317 2)5-1

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, on the 29th day of June, 2016, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is GARVIN BROWN CONSTRUCTION PRODUCTS with its principal place of business at 274 Georgetown Road, PO Box 460, Lawrence, PA 15055.

The name(s) and/or address(es) of all persons owning or interested in said business: Tom Brown, Inc. Daniel P. Lynch, Esq. 501 Smith Drive, Suite 3 Cranberry Township, PA 16066 2)5-1

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, on the 5th day of July, 2016, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is HOSEY ENVIRONMENTAL RECYCLING with its principal place of business at 21 Florence Ave., Burgettstown, PA 15021.

The name(s) and/or address(es) of all persons owning or interested in said business: Charles R. Hosey.

M. Burr Keim Co. 2021 Arch Street Philadelphia, PA 19103 2)5-1

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, on the 24th day of May, 2016, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is BLESSINGS & GRACE with its principal place of business at 205 Hunting Creek Road, Canonsburg, PA 15317.

The name(s) and/or address(es) of all persons owning or interested in said business: Malisa Silassy.

Burton D. Morris, Esq. Penncorp Servicegroup, Inc. PO Box 1210 Harrisburg, PA 17108 2)5-1

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CLASSIFIED

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is ROUGH CUT TAVERN & HOTEL with its principal place of business at 1041 Burgettstown Road, Burgettstown, PA 15021. The name(s) and/or address(es) of all persons owning or interested in said business: JA Colussy Ent. LLC, 1041 Burgettstown Rd., Burgettstown, PA 15021; Alexandra Rossi and Joshua, Colussy, 478 Westland Rd., Hickory, PA 15340.

Wayne V. DeLuca, Esq.. Manor Bldg. Penthouse 564 Forbes Avenue Pittsburgh, PA 15219 2)5-1

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, on the 24th day of July, 2016, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is UNIQUE SAPPHIRE FIBRE STUDIO with its principal place of business at 126 Galley Road, Canonsburg, PA 15317.

The name(s) and/or address(es) of all persons owning or interested in said business: Christine Piowell-Lawrence, 126 Galley Road, Canonsburg, PA 15317. 2)5-1

FICTITIOUS NAME

NOTICE is hereby given pursuant to the provisions of Section 311 of Act 1982-295 (54 Pa. C.S. Sec. 311), that a certificate was filed in the office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, on the 10th day of June, 2016, for the conduct of a business in Washington County, Pennsylvania, under the assumed or fictitious name, style or designation is CLAYSVILLE CAR WASH.

The name(s) and/or address(es) of all persons owning or interested in said business: Ethan T. Ward, 281 Shaler Road, West Alexander, PA 15376. 2)5-1

INCORPORATION NOTICE

NOTICE is hereby given that Articles of Incorporation were filed with the Department of State of the Commonwealth of Pennsylvania at Harrisburg, PA with respect to a Domestic Business corporation which has been organized under the Pennsylvania Business Corporation Law of 1988.

The name of the corporation is HUNTER WILDERNESS GROUP, INC.

Gerik Jenco, Esq. 714 Lebanon Road West Mifflin, PA 15122 2)5 –1

FOR RENT

Suite for an attorney and staff person. Close to Courthouse in Washington, PA. Internet and wi-fi available. Share common areas including reception, kitchen and conference rooms; phone, furniture and file storage available if

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desired. $600.00 a month includes all utilities and cleaning service. Reply to Box P, 29 E. Beau Street, Washington, PA 15301. 3)4-4

IN THE COURT OF COMMON PLEAS

OF WASHINGTON COUNTY, PENNSYLVANIA CIVIL DIVISION NO: 2015-7744

GEORGE KOTT, JR., Plaintiff,

vs. MICHAEL STEVEN KING AND JANE KING (deceased), WIFE OF SAID MICHAEL STEVEN KING, ZACHARY KING, CODY KING, SHANNON KING, JUSTIN MICHAEL KING, SHAWN KOHN, FRED RIGGLE, a/k/a FRED KING, Defendants. TEN-DAY NOTICE OF INTENT TO ENTER JUDGMENT BY DEFAULT PURSUANT TO PA R.C.P. 237.1 AS

TO DEFENDANT MICHAEL STEVEN KING

TO: MICHAEL STEVEN KING

YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE IN WRTING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.

YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFFICE SET

MISCELLANEOUS

FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFROMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

Washington County Bar Association 119 South College Street Washington, PA 15301

Attorney for George Kott Jr., Plantiff Roger J. Gaydos 407 Oak Spring Road Canonsburg, PA 15317 724-745-4030 4)5-1

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OBITER DICTUM CONT’D from page 3

with Harvard Law School to scan its case archive) and legal research Web site Casetext (which uses crowdsourcing to annotate cases).” • • From The Wall Street Journal: “Malpractice insurers and medical specialty groups are mining thousands of closed claims from suits that have been tried, dismissed or settled over the past few years. Their goal is to identify common reasons that doctors are sued and the underlying issues that threaten patient safety. They are sharing those insights with doctors and hospitals, which in turn are using them to develop new safety protocols and prevention strategies . . . helped reduce the frequency of malpractice claims . . . The average doctor spends over 50 months, or all most 11% of a 40 year career with an unresolved, open malprac-tice case, according to a 2013 study in the journal Health Affairs. The study, based on data from the Doctors Company, found that even though the majority of cases don’t result in payments to the plaintiff, the time spent resolving claims adds to stress and diverts doctors from making quality and safety improvements . . . medical errors that can lead to malpractice suits continue to occur at alarming rates. In a study published last week in the journal BMJ researchers at Johns Hopkins estimated that more than 250,000 deaths a year are due to medical errors. The researchers said most are due to systemic problems, including poorly coordinated care . . . [Dr. Lev at] Scipps Mercy Hospital in San Diego . . . failure to explore a wound that was infected or contained foreign bodied was a key factor in many cases . . . poor follow up instructions to pa-tients are a factor in injury cases. It is important that staff ‘inform patient there may be a barb we don’t see, so if you feel bad, come back,’ Dr. Lev says . . . using data from closed claims to develop a cardiology malpractice registry . . . patients haven’t been properly educated about the risks and don’t understand their follow up instructions. And if different doctors are involved, such as a cardiologist and a primary care doctor, one may assume the other is keeping track . . . patients’ failure to adhere to a treatment plan or keep follow up appointment was a factor contributing to injury in almost a third of cases . . . studying the use of a mobile app to send messages to patients before surgery . . . ‘We have to do a better job of communicating with our patients,’ Dr Gambardella [an orthopedic surgeon in Los Angeles] says. ‘The more educated someone is about risks and benefits, and what to do and not do, even if they have a unsatisfactory outcome, they may be less likely to litigate.’” (Article by Laura Landro ) • • The foregoing material does not necessarily reflect the views of the employees, officers and/or members of the Washington County Bar Association. Obiter Dictum is not an editorial, it is a com-pilation of items about the law, attorneys and related ’matters. It is not intended to en-dorse or promote any particular point of view. Comments, criticism and suggestions should be addressed to the Editor, preferably in writing. All articles & publications re-ferred to above are on file in the Bar office.

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COMMONWEALTH v. O’DANIEL Defendant filed an Omnibus Pre-Trial Motion seeking a suppression of evidence ob-tained during a consented vehicle search arising from a traffic stop. Defendant alleged that his consent was not truly voluntary in light of the preceding detention. The trial court, DiSalle, J., held that in consideration of the totality of the circumstances, signifi-cantly the character of the preceding detention as well as the detaining officer’s de-meanor, Defendant’s consent was voluntary.

Omnibus Pre-Trial Motion Denied. [1] Searches and Seizures

Totality of the Circumstances In determining whether a reasonable person would feel free to leave or whether a seizure had been effected by police, courts must utilize the totality-of-the-circumstances test.

[2] Totality of the Circumstances Free-to-go notification “Free-to-go” advice, whether present or absent, does not preclude the necessity for the totality-of-the-circumstances test.

[3] Searches and Seizures Notifications and advice The fact that a person is not informed by police that they may refuse a request to search does not invalidate consent, once obtained.

[4] Totality of the Circumstances Character of preceding detention In instances where a request to search by police is made following a traffic stop, the character of the preceding detention is a weighty factor in evaluating whether obtained consent was voluntary.

[5] Totality of the Circumstances Officer demeanor and interaction In instances where a request to search by police is made following a traffic stop, the demeanor of the officers, as well as the content of the interaction, are weighty factors in evaluating whether obtained consent was voluntary.

[6] Totality of the Circumstances Presence of clear break In instances where a request to search by police is made following a traffic stop, the presence of a clear break in the interaction between an officer and an individual is significant in determining whether a reasonable person would feel detained or free to leave.

[7] Traffic Stops Officer Safety In the interest of preserving officer safety, it is an inherent right of a detaining officer to order an individual to exit their vehicle during a traffic stop.

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[8] Totality of the Circumstances Police excesses The presence or absence of police excesses merits consideration when evaluat-ing the voluntariness of an individual’s consent.

[9] Totality of the Circumstances Location of detention The location of a traffic stop, whether urban or rural, and whether the area was well-lit, merits consideration in evaluating an individual’s undamaged ability to provide voluntary consent.

[10] Traffic Stops Mere encounter The Trooper successfully achieved a mere encounter with Defendant and in this context, Defendant’s consent to search was voluntary.

[11] Reasonable Suspicion Anonymous tip An anonymous tip, corroborated by observations made by an officer, may arise to reasonable suspicion, in the presence of other articulable factors.

[12] Traffic Stop Reasonable Suspicion If a free-to-go notification does not sufficiently conclude a detention, neither does it invalidate reasonable suspicion arising from factors observed during that detention.

OPINION & ORDER

Before the Court for disposition is the Omnibus Pre-Trial Motion filed on be-

half of the Defendant, Edward Keilan O’Daniel, seeking suppression of the evidence obtained as a result of a vehicle search, following a traffic stop, which the Defendant alleges constituted a secondary “seizure” unsupported by reasonable suspicion. For the reasons set forth in this Opinion, the Defendant’s Motion to Suppress is denied.

Factual Background

The Defendant, Edward Keilan O’Daniel (hereinafter referred to as “Defendant”) is charged with one count of possession with intent to deliver cocaine under section (a)(30) of the Controlled Substance, Drug Device, and Cosmetic Act (“the Drug Act”) and one count of simple possession, section (a)(16) of the Drug Act. These charges arise out of a consent search of Defendant’s vehicle following a traffic stop on Interstate 70 in Donegal Township, Washington County by Pennsylvania State Police. Trooper Justin Coda was conducting a “Shield Detail” on I-70 the evening of September 26, 2014, which detail is designed for highway interdiction of drug trafficking. Prior to the traffic stop, Trooper Coda had received a BOLO, “Be-on-the-lookout” tip from his partner. The tip regarded a white BMW transferring cocaine from Ohio to Pennsylvania, reportedly passing through the stretch of highway being patrolled. While on patrol, Trooper Coda observed a white BMW, driven by Defendant, bearing Ohio plates. Although Defendant’s vehicle met the “BOLO” description, Trooper Coda noticed a window-tint violation and initiated a traffic stop on that basis.

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During the traffic stop, the Trooper observed “multiple food wrappers and bot-tles strewn all over the car” and testified that Defendant appeared nervous. Defendant was unable to produce vehicle registration when requested. After preparing a warning and calling for backup, the Trooper returned to Defendant’s vehicle and requested De-fendant to exit and come to the rear of his vehicle. There, the Trooper explained to De-fendant the nature of the window-tint warning being issued. The Trooper later testified that he typically asks occupants to exit their vehicle during traffic stops. The Trooper noted increased nervousness as Defendant appeared “unable to stand still.” By this time, two other police units had arrived on scene and were positioned behind Trooper Coda’s vehicle. The other troopers remained in their vehicles and did not approach Defendant or make their presence known at this time. The Trooper concluded the traffic stop by returning Defendant’s license, handing Defendant a copy of the window-tint warning, and bidding Defendant goodnight: Trooper Coda: That’s a copy of your warning. You don’t have to respond to it. It’s not a traffic– I mean, it’s not a ticket or anything like that.

Defendant: I would gladly take a ticket as long as it doesn’t give points.

Trooper Coda: Yeah, alr ight.

Defendant: I appreciate it man.

Trooper Coda: Yep, have a good one.

Defendant: You have a good night and be safe out there.

Trooper Coda: Yep, you too.

The Trooper and Defendant then shook hands and began to part ways. Then the Trooper turned and addressed Defendant, ultimately requesting consent to search De-fendant’s vehicle. Consent was obtained from Defendant, and other on-scene troopers, including a K-9 unit, began to search Defendant’s car. The search revealed 1 pound of cocaine concealed in a potato chip bag on the front passenger seat of the vehicle.

Opinion

[1][2] Defendant argues that a momentary break in the encounter between Trooper Coda and Defendant rendered further contact between the two a secondary detention, for which reasonable suspicion was required. Defendant further argues that the consent to search was not truly voluntary due to the “taint” of the “second” detention. In order to determine the voluntariness of Defendant’s consent, the trial court must review the to-tality of the circumstances, noting that when a request for consent is preceded by a de-tention, the subsequent interaction is more likely to evolve into a secondary detention than into a mere encounter:

When an individual has been subjected to a valid detention and the police contin-ue to engage that person in conversation, the citizen, having been in official de-tention, is less likely to understand that he has the right to refuse to answer ques-tions or a search. Furthermore, … while acknowledging the importance of the ninth factor, the Court stressed that “conferral of the ‘free-to-go’ advice is, itself not a reason to forego a totality assessment” and therefore does not constitute a controlling factor in assessing whether a person would actually credit a police indication that he was free to leave. (internal citations omitted)

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Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008). Obviously, “less likely” does not mean impossible and although the Trooper did not use the exact “free-to-go” language, the express presence or absence of such exact language is not a reliable deter-minant. As the Moyer Court noted, express “free-to-go” language is, itself not a reason to “forego a totality assessment.” Rather, the “crucial inquiry” is “whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave.” See Commonwealth v. Strickler, 563 Pa. 47, 58, 757 A.2d 884, 889 (2000). [3] Likewise, the fact that Defendant was not informed that he could decline to continue speaking to Trooper Coda or refuse the requested vehicle search is not a determinant to be taken in isolation. In Commonwealth v. Kemp, 961 A.2d 1247 (Pa. Super. 2008), a case with similar facts to the case at bar, the Superior Court found that even in the con-text of an investigatory detention, voluntary consent to search was satisfactorily ob-tained:

Moreover, the character of the initial investigative detention, the traffic stop, was routine and the ensuing investigatory detention was supported by reasonable suspicion. We therefore conclude that Appellant's permission was not the prod-uct of duress or coercion, but in fact was voluntarily given even though Appel-lant was not informed that he could refuse to consent to the search. (defendant need not be informed that he has the right to refuse consent to search in order to render consent constitutionally valid; totality of circumstances are examined in determining whether consent was voluntarily given or was product of coercion. (internal citations omitted)

Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008). Since voluntary con-sent is achievable within the context of an investigative detention, even absent such notification, the absence of such notification in the case sub judice, is certainly not enough to defeat the validity of the totality-of-the-circumstances test.

There is no bright line rule in place to guide the trial court. The imperative determination is how a situation would be interpreted by a reasonable person, regardless of whether exact “free-to-go” language was used. Therefore:

In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred. (internal citations omitted)

Id. at 59, 890. Accordingly, the trial court will proceed by carefully evaluating all of the circumstances of the case at bar in its effort to properly define the interaction subse-quent to the traffic stop.

Defendant relies heavily on the cases of Commonwealth v. Nguyen, 116 A.3d 657 (Pa. Super. 2015), Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008), and Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003) in support of his position. The trial court finds that the traffic stops preceding the requests for consent in these three cases were not of the same character as the one in the instant case. Nguyen involved a passenger who was initially unwilling to respond or comply with the troopers’ requests. Nguyen involved two troopers approaching the detained vehicle and interacting with two detainees simultaneously. The passenger, Nguyen, gave consent to a pat-down but

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had nothing to do with the initial consent allowing the troopers to reengage. Thus, it could be reasonably determined that at least Nguyen, the passenger, was unwillingly subjected to a second detention. The stop in Moyer occurred on an unlit country road. The tenor of the interaction of the traffic stop suggested suspicion on the part of the officer when the detainee’s answers were not sufficient, and the officer then “pressed for more details.” Commonwealth v. Moyer, 954 A.2d 659, 661 (Pa. Super. 2008). Fur-thermore, at the time of the request to search, two officers were also present at the de-tained car and in plain view. Similarly, in Dales, two officers were present during ques-tioning of the detainee and the questioning was of a repetitive and incriminatory nature. The most significant distinction between the instant case and Dales, is that in Dales, there was no clear, concise end to the traffic stop. All of these characteristics together contribute to what were more coercive police encounters in Nguyen, Moyer, and Dales.

[4][5] In reviewing the dash-cam video and audio, the traffic stop in the present case could hardly be described as coercive or intimidating. By extension, Defendant did not appear coerced or intimidated. Trooper Coda’s manner was relaxed, amicable, and cour-teous throughout the encounter. When Defendant was unable to locate his registration, the Trooper reassured Defendant that it was “no big deal.” Later, when the Trooper in-dicated that Defendant’s license-plate frame concealed too much of the license plate itself, the Trooper jokingly said, “I know it’s a Steeler’s frame so I appreciate it.” Like-wise, Defendant appeared to be free and uninhibited with the Trooper. Defendant was comfortable to correct the Trooper regarding the difference in window-tint legality and vehicle registration between Pennsylvania and Ohio. Defendant was comfortable to jest with the Trooper remarking that, “I’ll gladly take a ticket as long as it doesn’t have any points.” Defendant even willingly extended the interaction at one point by asking for the Trooper’s advice. All of these interactions demonstrate that nothing in the Trooper’s manner indicated that he was seeking to subjugate Defendant to a search, or even leave Defendant with that impression. The Trooper testified that notwithstanding Defendant’s nervousness, the Defendant did not appear to be intimidated. Defendant also testified that he did not feel threatened into giving consent. After viewing the Trooper’s dash-cam recording during the suppression hearing, both audio and video, the trial court agrees. Defendant’s manner indicated that he accurately interpreted the Trooper’s ques-tions. The trooper was not coercive or intimidating but friendly and reassuring. By vir-tue of this interaction alone, the instant case distinguishes itself from Nguyen, Moyer, and Dales.

[6] The demeanor of the detaining officer and the character of the preceding traffic stop, including the questions and statements made, are common considerations when evaluat-ing an individual’s ability to provide a valid consent. See Commonwealth v. Strickler, 563 Pa. 47, 72-74, 757 A.2d 884, 897-99 (2000). Another consideration is:

…the degree to which the transition between the traffic stop/investigative deten-tion and the subsequent encounter can be viewed as seamless, see Robinette I, 653 N.E.2d at 698 thus suggesting to a citizen that his movements may remain subject to police restraint, is a pertinent factor.

Id. at 74, 898. In Dales, no such break occurred. Rather, after the purpose of the initial stop had been satisfied, the officer seamlessly transitioned into a “second round of ques-tioning” and no notification of freedom was provided. Commonwealth v. Dales, 820 A.2d 807, 814 (Pa. Super. 2003). The Dales Court noted that:

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…the Commonwealth concedes that Defendant was seized at the time that he gave Officer Clee consent to search the vehicle…stating that “the subsequent interaction between police and [Defendant] was merely a continuation of the initial lawful detention.” (internal citations omitted)

Id. at 812. In light of this, the Court concluded that the “second round of questioning constituted an investigative detention.” Id. at 814.

By contrast, at the end of the traffic stop in the instant case, Trooper Coda pro-vided a clear break by returning Defendant’s papers, handing him a copy of his warn-ing, bidding the Defendant goodnight, and briefly allowing Defendant time to depart before reengaging. The Trooper contends that by his actions he informed Defendant that he was “free to go.” The trial court finds that the Trooper’s actions, when viewed in light of the preceding traffic stop, provided a clear, reliable end to the traffic stop. Simi-larly, in Strickler, the Superior Court stated that:

…although the officer did not expressly advise Strickler and his companion that they were free to leave, his actions at least suggested as much, in that he returned Strickler's driver's documentation, thanked him for his cooperation, and turned away prior to reinitiating the interaction and ultimately requesting consent to search.

Commonwealth v. Strickler, 563 Pa. 47, 77, 757 A.2d 884, 900 (2000). In the instant case, the “free-to-go” signals provided exceed those in Strickler. By virtue of the genu-ine manner with which the Trooper and Defendant said goodnight, shook hands, and cautioned each other to “be safe,” the trial court finds that a notification of freedom was adequately conveyed to Defendant. In context of this conclusion, the immediacy and spontaneity of Trooper Coda’s request to search distinguishes itself from the requests in Nguyen and others where the motorists were reengaged more purposefully and after a more considerable length of time. In cases such as Nguyen, the individuals had enough time to make it back to their vehicles before being addressed by the officer:

Before Trooper Bromberg entered the patrol car, he turned around and reengaged the driver. He explained that he had approached his door and the driver had reached the front driver's side door to the Mercedes at this time. (internal cita-tions omitted)

Commonwealth v. Nguyen, 116 A.3d 657, 661 (Pa. Super. 2015). Likewise, in Moyer, a significant amount of time had passed between the notification of freedom and the reen-gagement:

…Appellee was instructed that he was free to leave, but as Appellee reached the driver's door of his vehicle, Officer Mays called “his name out” and “asked if he mind[ed]” if the officer asked him a few questions. (internal citations omitted)

Commonwealth v. Moyer, 954 A.2d 659, 662 (Pa. Super. 2008). In another case, Com-monwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), after the “ free-to-go” advice had been conferred, Freeman, of her own volition, did not depart. Rather, her vehicle “remained parked in its then-present location” while police conducted a related investi-gation before returning, ordering the occupants out of the vehicle, and requesting a search. (See Id. at 86, 905):

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“…although these events occurred after express conferral of advice that Freeman was free to depart, they would have suggested to a reasonable person that such advice was no longer operative.”

Id. at 90, 907-08. Indeed, in the intervening time, a person might reasonably wonder if something had changed or a new circumstance had arisen that effectively rendered the previous advice “no longer operative.” In our present case, such a conclusion is impos-sible. The finite amount of time that had elapsed from the “free-to-go advice” to the request for consent was hardly sufficient for any factor to substantially alter the validity of the Trooper’s notification of the Defendant’s freedom in any reasonable mind.

Additionally, the ways in which law enforcement officers reengaged individu-als after ending the traffic stops in Freeman, Moyer, and Nguyen are distinguishable from the case at bar. In, Freeman, the Trooper began by revealing to Freeman that she had been caught in a lie:

While the trooper who had stopped the occupants of the other car continued to question them, the trooper who had stopped Freeman returned to her vehicle and again asked whether Freeman was traveling with the second car. When she re-plied that she was not, the trooper informed her that the occupants of the second car had said otherwise and asked her to get out of the vehicle. Freeman did so, walking to the rear of the car. At this point, the trooper asked Freeman for con-sent to search her vehicle, which Freeman granted.

Id. at 86, 905. In Moyer, additional questioning was also of an incriminating nature: After Appellee agreed to respond, Officer Mays revealed that he was aware of Appellee's “arrest for Act 64 in the past” and had observed the movements in the car after the traffic stop. (internal citations omitted)

Commonwealth v. Moyer, 954 A.2d 659, 662 (Pa. Super. 2008). In Nguyen, the manner of the encounter was similarly intimidating:

Trooper Bromberg asked the driver about his nervousness, and asked where he had been coming from. He also asked about his relationship with [Appellant]. The driver answered all of his questions. Trooper Bromberg then asked the driv-er for consent to search the vehicle and “all of its contents.” The driver gave con-sent. (internal citations omitted)

Commonwealth v. Nguyen, 116 A.3d 657, 661 (Pa. Super. 2015). In each of these in-stances, an assertive encounter reinstating interrogation ultimately ended with the re-quest for consent to search. Trooper Coda, by contrast, briefly prefaced his request and then asked for consent to search:

Trooper Coda: Hey uh, real quick. Par t of our job on the interstate is to look for illegal things being transported. You don’t have anything illegal in the car I should be worried about?

Defendant: No.

Trooper Coda: Do you mind if I search the car real quick?

Defendant: No, go ahead!

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The trial court considers Trooper Coda’s question a much more lucid request, one that was conducive to voluntary consent.

[7] Two other common considerations contemplated by courts are whether there was “physical contact” and whether there was “police direction of a citizen-subject's move-ments...” Commonwealth v. Strickler, 563 Pa. 47, 72, 757 A.2d 884, 898 (2000). In this case, there was no physical contact until after Defendant consented to a vehicle search, and then consented to a pat down. Although the Trooper did ask Defendant to exit and proceed to the rear of the vehicle during the traffic stop, the Trooper testified that he typically asked motorists to exit their vehicles during traffic stops. The trial court recognizes the right of a law enforcement officer to direct a motorist to exit their vehicle during a traffic stop as a protective measure:

It is well-established that “when an officer detains a vehicle for violation of a traffic law, it is inherently reasonable that he or she be concerned with safety and, as a result, may order the occupants of the vehicle to alight from the car.” (internal citations omitted)

Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa. Super. 2005). Further, in the case at bar, the trial court does not consider the exercise of this right a detriment to Defendant’s consent in any way. Rather, the easy and relaxed manner in which the Trooper conduc-ted this traffic stop, prevented it from having a coercive effect on Defendant or having an adverse effect on Defendant’s consent. As demonstrated by the dash-cam video and audio, the skill, expertise, and professional manner of Trooper Coda was maintained throughout the traffic stop. This dynamic weighs significantly in the trial court’s as-sessment of the totality of the circumstances. See Commonwealth v. Strickler, 563 Pa. 47, 74, 757 A.2d 884, 898 (2000).

[8] Regarding the presence of two additional police units and the effect said units may have had on Defendant’s consent, the trial court accords little weight. Only Trooper Coda approached Defendant before consent was given, and the trial court is not con-vinced that Defendant was even aware of the additional units’ presence prior to giving his consent to search. In his testimony, Trooper Coda remarked that he was not even sure the other units had arrived due to the brightness of his own patrol car’s lights. The dash-cam footage admitted into evidence corroborates the Trooper’s testimony. After Defendant consented to a search, the Trooper could be seen shielding his eyes in an attempt to see past the bright lights of his own patrol car to make out whether the other patrol cars were yet present. Ultimately, he had to walk past his own patrol car to check. Thus, the trial court finds that the additional police units did not have an effect, detri-mental or otherwise, on Defendant’s consent.

[9] The trial court also accords due weight to the location of the traffic stop. This is yet another feature that distinguishes the facts of this case from those before the Moyer Court:

It was late at night on a rural, unlit road. As the Supreme Court observed in Strickler the fact that a defendant is asked to answer some questions at night in a rural location would tend to be daunting and render a citizen less likely to be-lieve he could refuse the police request.

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Commonwealth v. Moyer, 954 A.2d 659, 667-68 (Pa. Super. 2008). In the case at bar, the traffic stop took place right before the ramp near the “truck welcome center.” It is a well-lit stretch of I-70, a major interstate highway. Thus, this consideration is also a non-issue. [10] In light of all these circumstances, the trial court finds that Defendant’s encounter with Trooper Coda was such that a reasonable person, not weighted by guilt, would have felt comfortable declining the Trooper’s request. Thus, the trial court finds that Defendant freely and voluntarily consented to the search of his vehicle. [11] Nevertheless, even if this encounter could be deemed a secondary detention, the trial court finds that Trooper Coda articulated sufficient reasonable suspicion to justify further detention. Trooper Coda is specially trained in the highway interdiction of drug trafficking. He had been notified by his partner of the BOLO tip regarding a white BMW passing through the area. Defendant’s vehicle was a compelling match to the BOLO tip. It was the proper make and color, it was traversing I-70, and had an Ohio plate. However, it is important to emphasize that the Trooper did not initiate the traffic stop based on the BOLO tip. He testified, “The reason I stopped him was for the win-dow tint. I was looking for him [the white BMW], yes because we had a tip.” The anon-ymous BOLO tip was bolstered by other indicative factors observed by the Trooper on the scene, after the stop was made, making it more substantive:

An informant's tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity.

Commonwealth v. Luv, 557 Pa. 570, 576, 735 A.2d 87, 90 (1999).

While the traffic stop was in progress, the Trooper observed additional compel-ling factors. Defendant could not produce his vehicle registration. The inability of a motorist to produce documentation is commonly regarded as an indicator of illicit con-duct. See Commonwealth v. Rosas, 875 A.2d 341 (Pa. Super. 2005). Additionally, the Trooper observed the “lived-in” appearance of the vehicle and noted that it was not con-sistent with what Defendant conveyed regarding his trip. The Trooper testified that, “given the length of the trip, the amount of garbage in the car did not make sense.” Fur-thermore, Defendant appeared excessively nervous, even after the Trooper explained to him that he was not going to issue a ticket for the stop. According to the Trooper’s ex-perience, nervousness usually dissipates after motorists are provided with a warning rather than a ticket. Defendant’s nervousness however, increased. The BOLO tip, when included with these additional articulated factors, amounts to reasonable suspicion in the opinion of the trial court. Indeed, “…[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Rogers, 578 Pa. 127, 134, 849 A.2d 1185, 1189 (2004). The trial court accordingly finds, that Trooper Coda adequately articulated reasonable suspicion for an investigato-ry detention.

[12] Finally, the fact that the Trooper concluded the traffic stop prior to asking for con-sent to search, does not preclude the validity of the reasonable suspicion. In Common-wealth v. Kemp, 961 A.2d 1247 (Pa. Super. 2008), the Superior Court found that:

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…it is simply analytically inconsistent for a defendant to argue that “ free-to-go” language does not step down the police interdiction from a seizure to a mere encounter, but that if an officer does utter those words, all facts ascertained law-fully by the police officer during the traffic stop are erased for purposes of ana-lyzing whether the continued detention was permissible. If the seizure achieved through the traffic stop never ended, and if thereby the defendant remained sub-ject to a continuing detention when the traffic infraction was processed, then there is no reason why the facts observed by the officer during the constitutional-ly-proper traffic stop cannot be used to justify the continuation of the detention. If it is a continuing detention for the defendant, despite the free-to-go language, then by the same logic, it is a continuing detention for purposes of the police investigation.

Id. at 1258. In the case sub judice, Trooper Coda successfully deescalated the interaction to

a mere encounter and voluntary consent was achieved. Accordingly, the trial court en-ters the following:

O R D E R

AND NOW, this 8th day of August, 2016, upon consideration of the Defend-ant’s Omnibus Pre-Trial Motion to Suppress, the testimony proffered at the hearing, the review of briefs and arguments of counsel, the Defendant’s Omnibus Pre-trial Motion is hereby DENIED.

By the Court, John F. DiSalle, J.

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Documents

WASHINGTON COUNTY REPORTSfiles.constantcontact.com/ee871b59001/82b4761f-ef... · stay were Chief Justice John G. Roberts Jr., Justice Anthony M. Kennedy, Clarence Thomas, and Samuel