Dauphin County Reporter - Dcba

Transcription

ADVANCE SHEET
THE
Pages 478-509
Dauphin County Reporter
(USPS 810-200)
A WEEKLY JOURNAL
CONTAINING THE DECISIONS RENDERED IN THE
12th JUDICIAL DISTRICT
No. 5547, Vol. 122
March 31, 2006
No. 139
Entered as Second Class Matter, February 16, 1898, at the Post Office at Harrisburg, Pa.,
under the Act of Congress of March 31, 1879
Commonwealth v. Taylor
Bar Association Page
478
Inside Back Cover
THE
DAUPHIN COUNTY REPORTER
Edited and Published
by the
DAUPHIN COUNTY BAR
ASSOCIATION
213 North Front Street
Harrisburg, PA 17101-1493
(717)
232-7536
____________
DONALD MORGAN
Executive Director
JOYCE TAMBOLAS
Administrative Assistant
BRIDGETTE L. HILBISH
Assistant
Office
___________
Printed by
KURZENKNABE PRESS
1424 Herr St., Harrisburg, PA 17103
THE DAUPHIN COUNTY REPORTER (USPS
810-200) is published weekly by the Dauphin
County Bar Association, 213 North Front Street,
Harrisburg, PA 17101. Periodical postage paid at
Harrisburg, PA. POSTMASTER: Send address
changes to THE DAUPHIN COUNTY
REPORTER, 213 North Front Street, Harrisburg,
PA 17101.
TERMS
For NON-MEMBERS of the
Dauphin County Bar Association:
Bound Volume 120 ________________$125.00
Advance Sheets, Volume 121 ________$ 90.00
For MEMBERS of the
Dauphin County Bar Association:
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o’clock noon on Tuesday of each week at the office
of the Dauphin County Reporter, 213 North Front
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Estate Notices
DECEDENTS ESTATES
NOTICE IS HEREBY GIVEN that letters
testamentary or of administration have been
granted in the following estates. All persons
indebted to the estate are required to make
payment, and those having claims or demands to
present the same without delay to the administrators or executors or their attorneys named below.
FIRST PUBLICATION
ESTATE OF ALLEN A. DODD, late of the
City of Harrisburg, Dauphin County, Pennsylvania. Executor: William A. Dodd, 2815 Parrish
Street, Philadelphia, PA 19130. Attorney: James
H. Rowland, Jr., Esq., 812 N. 17th Street,
Harrisburg, PA 17103.
m31-a14
ESTATE OF KYLE K. DIETRICH a/k/a
KYLE KEVIN DIETRICH, late of Halifax
Township, Dauphin County, Pennsylvania (died
March 3, 2006). Executrix: Corrine Dietrich, 18
Maple Avenue, Halifax, PA 17032. Attorney:
Earl Richard Etzweiler, Esq., 105 North Front
Street, Harrisburg, PA 17101. Phone (717) 2345600.
m31-a14
ESTATE OF WILLIAM COOPER a/k/a
WILLIAM G. COOPER, late of Middle Paxton
Township, Dauphin County, Pennsylvania.
Executrix: Jeannette Marie Weller, 3511 Fishing
Creek Valley Road, Harrisburg, PA 17112.
Attorney: Theresa L. Shade, Esq., Wix, Wenger
& Weider, 4705 Duke Street, Harrisburg, PA
17109-3099.
m31-a14
SECOND PUBLICATION
ESTATE OF CATHERINE E. ALLEMAN,
late of the City of Harrisburg, Dauphin County,
Pennsylvania. Executrix: Patricia L. Lietman, 57
Walsh Road, Halifax, PA 17032. Attorney: David
H. Stone, Esq., Stone LaFaver & Shekletski, 414
Bridge Street, P.O. Box E, New Cumberland, PA
17070.
m24-a7
ESTATE OF SYBLE D. HUMMER, late of
Lower Paxton Township, Dauphin County, Pennsylvania. Executrix: Alyce E. Taylor, 4511 Goose
Valley Road, Dauphin, PA 17112-2172. Attorney:
Melanie Walz Scaringi, Esq., Scaringi &
Scaringi, P.C., 2000 Linglestown Road, Suite
103, Harrisburg, PA 17110.
m24-a7
ESTATE OF VICTORIA BOZIC, late of
Susquehanna Township, Dauphin County,
Pennsylvania (died January 29, 2006). CoExecutors: Anthony Covic, 9803 Abbey Road,
North Royalton, OH 44133 and Ljerka Jelovic,
6055 Locklie Drive, Highland Heights, OH
44143. Attorney: David C. Miller, Jr., Esq., 1100
Spring Garden Drive, Suite A, Middletown, PA
17057. Phone (717) 939-9806.
m24-a7
SECOND PUBLICATION
Estate Notices
ESTATE OF ROLAND H. RADER, late of
Middletown Borough, Dauphin County, Pennsylvania (died January 23, 2006). Executor:
Jeffrey P. Tessier. Attorney: Marielle F. Hazen,
Esq., 2000 Linglestown Road, Suite 202,
m24-a7
ESTATE OF DAVID E. NIMAL, late of
Williamstown Borough, Dauphin County,
Pennsylvania (died March 13, 2006). Executrix:
Lauren E. Nimal, 312 Walnut Street, Apt. B,
Lemoyne, PA 17043-1646. Attorney: Steve C.
Nicholas, Esq., Nicholas Law Offices PC, 2215
Forest Hills Drive, Suite 37, Harrisburg, PA
17112-1099.
m24-a7
ESTATE OF ESTHER H. BOGAR, late of
Dauphin County, Pennsylvania (died January 28,
2006). Co-Executors: Jerry H. Bogar, 1090
Cardinal Drive, Harrisburg, PA 17111 and Sally
Bogar Hedstrom, 403 Columbus Avenue,
Frederick, MD 21701. Attorney: Elyse E. Rogers,
Esq., Keefer Wood Allen & Rahal LLP, Suite
301, 415 Fallowfield Road, Camp Hill, PA
17011.
m24-a7
ESTATE OF PHYLLIS L. RAY, late of
Marysville, Perry County, Pennsylvania (died
August 30, 2005). Executor: Mark T. Fesler, 15
Cold Springs Road, Marysville, PA 17053.
m24-a7
THIRD PUBLICATION
ESTATE OF SANDRA A. MCRAE a/k/a
SANDRA A. ROBBINS, late of Lower Swatara
Township, Dauphin County, Pennsylvania.
Executor: A. Michael McRae. Attorney: Michael
C. McBratnie, Esq., Fox Rothschild, LLP, 760
Constitution Drive, Suite 104, P.O. Box 673,
Exton, PA 19341-0673.
m17-m31
ESTATE OF LUCILLE W. FARLING a/k/a
LUCILLE R. FARLING, late of the Borough of
Hummelstown, Dauphin County, Pennsylvania
(died February 24, 2006). Executor: Michael K.
Farling, 870 Fairhaven Road, Hummelstown, PA
17036. Attorney: Jean D. Seibert, Esq., Wion,
Zulli & Seibert, 109 Locust Street, Harrisburg,
PA 17101.
m17-m31
ESTATE OF GEORGE CHARNEY, JR., late
of Lower Paxton Township, Dauphin County,
Pennsylvania (died February 21, 2006).
Executrix: Kathleen A. LoPiccolo, 4300 Fritchey
Street, Harrisburg, PA 17109. Attorney: L. Rex
Bickley, Esq., 114 South Street, Harrisburg, PA
17101.
m17-m31
ESTATE OF GERALD R. LUPP a/k/a
GERALD LUPP, late of Harrisburg, Dauphin
County, Pennsylvania (died January 24, 2006).
Administrator / Attorney: Bruce J. Warshawsky,
Esq., Cunningham & Chernicoff, P.C., 2320
North Front Street, Harrisburg, PA 17110.
m17-m31
ESTATE OF HAZEL S. YOUCH, late of
South Hanover Township, Dauphin County,
Pennsylvania. Executor: Daniel F. Youch, 1042
Fitzgerald Street, Salinas, CA 93906. Attorney:
Charles J. DeHart, III, Esq., Caldwell & Kearns,
13 East Main Street, Hummelstown, PA 17036.
m17-m31
ESTATE OF MARGARET L. HARTRANFT,
late of the Borough of Middletown, Dauphin
County, Pennsylvania (died February 21, 2006).
Executor: Larry A. Hartman, 29 Almond Drive,
Hershey, PA 17033. Attorney: Stanley A. Smith,
Esq., Rhoads & Sinon LLP, One S. Market
Square, P.O. Box 1146, Harrisburg, PA 171081146.
m17-m31
ESTATE OF WILLIAM MCCULLOUGH, late
of Dauphin County, Pennsylvania (died February
18, 2006). Executor: Brian C. Napper, 4239
Beaufort Hunt Drive, Harrisburg, PA. Attorney:
Carl G. Wass, Esq., Caldwell & Kearns, 3631
North Front Street, Harrisburg, PA 17110-1533.
m17-m31
478
DAUPHIN COUNTY REPORTS
[122 Dauph.
Given the present factual and procedural posture of this case, we now
direct the Court Administrator to follow Dauph.R.C.P. 1915.3(3) and
assign this case to a Custody Conference Officer.
ORDER
AND NOW, January 18, 2006, the Dauphin County Court
Administrator is directed to assign the pending Complaint in Custody to
a Custody Conference Officer.
_______o_______
Crimes and criminal procedure — Jury view — Evidence — Co-defendant’s redacted confession — Hearsay — Sufficiency of evidence — Weight of evidence —
Transcript.
Defendant and his Co-Defendant were both sentenced to life imprisonment after being convicted by a jury of second-degree murder and
other serious crimes in connection with a drug-related killing. He then
raised six issues in his Statement of Matters Complained of on Appeal.
Pa.R.A.P. 1925 Opinion. C.P., Dau. Co., No. 2430 CR 2003.
1. Absent an abuse of discretion, the denial of a request for a jury view will not be overturned. Commonwealth v. McNeal, 545 Pa. 42, 679 A.2d 1253, 1256 (Pa. 1996).
2. Those portions of a statement made by an out-of-court declarant which are not inculpatory, such as statements that another person was not guilty of the crime, are not declarations against penal interest and are not admissible under the hearsay rule exception.
Commonwealth v. Brickle, 505 Pa. 442, 480 A.2d 980, 986 (Pa. 1984).
3. Whether or not testimony should be read to the jury “rests within the discretion of the
trial court.” Commonwealth v. Johnson, 576 Pa. 23, 838 A.2d 663, 677 (2003).
4. The standard for the sufficiency of evidence is whether, viewing the evidence in the
light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime
beyond a reasonable doubt. Commonwealth v. Palette, 531 Pa. 384, 613 A.2d 548, 549
(1992).
5. An allegation that the verdict is against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should be awarded when a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice ... the evidence must be so tenuous,
vague and uncertain that the verdict shock’s the conscience of the court ... Commonwealth
v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
6. If the grounds asserted in the post-sentence motion do not require a transcript,
neither the briefs nor hearing nor argument on the post-sentence motion shall be delayed
for transcript preparation. Pa.R.Cr.P. 720(B)(2)(c).
478 (2006)]
479
Francis T. Chardo, for the Commonwealth
Justine J. McShane, for Defendant
CLARK, J., January 19, 2006 –
BACKGROUND
This matter stems from the somewhat infamous “Italian Lake
Murder” case. In the early morning hours of November 1, 2000, in a
beautiful urban park located in the historic uptown section of the City of
Harrisburg, a brutal, gunshot murder occurred. The victim of that slaying was a local young woman, Ms. Hayde Freytes (hereinafter referred
to as either the Victim or Cachi, her nickname), who was shot to death,
with gunshot wounds in both her head and hand. Although the law
enforcement authorities instantly launched a vigorous investigation to
determine who perpetrated this vicious crime, they were unable to accumulate enough evidence to bring a successful prosecution for this
heinous murder until several years after the event.
However, through the dedication and efforts of the Dauphin County
District Attorney and his staff, together with local and state law
enforcement authorities, especially the Harrisburg City Police
Department, all working in conjunction with the Second Dauphin
County Investigative Grand Jury, the case was finally developed to a
sufficient level for charges to be filed against the perpetrators. This
writing is in response to the appeal filed by one of the convicted murderers in this case.
The Commonwealth charged the above-listed Defendant, Glenn D.
Taylor (Defendant Taylor), along with his Co-Defendant, Mwandishi G.
Mitchell (Defendant Mitchell), with the murder of Ms. Freytes, and also
with several other very serious crimes associated with that criminal
episode. After a rather lengthy jury trial, both Defendants were convicted and sentenced to life imprisonment. Post-Trial Motions were filed
and denied, and a direct appeal to the Superior Court was filed.1 This
Opinion is being submitted to the Superior Court for its consideration in
determining that appeal.
1. Very similar separate direct appeals have been filed by both Defendants, Mr. Taylor
and Mr. Mitchell; however, we are addressing the specific appeal issues raised by
Defendant Taylor in this Opinion. The appeal of Defendant Mitchell raises many of the
same or similar issues as are raised by Mr. Taylor and addressed herein, however we nevertheless find it appropriate to issue a separate full Opinion with regard to Defendant
Mitchell’s appeal issues so that there is no confusion regarding the basis for our rulings
regarding his (Mitchell’s) case.
480
[122 Dauph.
The Victim was a heroin-addicted prostitute in the Harrisburg area
who bought drugs from Defendant Mitchell, and also sold drugs to help
support her drug habit. Defendant Mitchell worked for Defendant Taylor
who was his (Mitchell’s) supplier of the drugs. Defendant Mitchell sold
drugs directly, and had other persons selling drugs for him. The Victim
was one of those “other persons” that sold drugs for Defendant Mitchell.
Defendant Taylor also supplied drugs to other people, including Mr.
Samuel Taggert. Mr. Taggert witnessed the Victim steal drugs from
Defendant Mitchell. Defendant Mitchell had given the Victim drugs to
sell for him (Mitchell) on a consignment basis, sometimes referred to as
“fronting” drugs. However, rather than selling the drugs and returning
the proceeds to Mitchell, she (Victim) absconded with the drugs and
refused to pay Defendant Mitchell for them.
Defendant Mitchell was angry with the Victim for absconding with
his drugs. Aside from stealing his drugs (which really belonged to
Defendant Taylor), word on the street had reached Mr. Mitchell that the
Victim was calling him (Mitchell) a “pussy” and that she refused to
repay him. Mr. Taggert witnessed Defendant Mitchell offer a Fifty
Dollar bounty for anyone who would assault the Victim. Mr. Taggert
also witnessed Defendant Mitchell attempt to personally assault the
Victim until a crowd gathered and he stopped his assault.
Approximately two weeks before the murder, Defendant Mitchell
went to the home of the Victim’s friend, Ms. Luisa Andujar, to find the
Victim. The Victim was hiding upstairs and Ms. Andujar did not permit
Defendant Mitchell to enter her home. After he left, the Victim, obviously scared and crying, confided to Ms. Andujar that if she (Victim) did not
repay Defendant Mitchell for the heroin she had stolen by October 31,
2000, he would kill her.
Ms. Dena Russell claimed to be the Victim’s best friend and also
claimed she and the Victim would “hang out” together in the Allison Hill
neighborhood of Harrisburg. Ms. Russell stated that they would get high
together on drugs, prostitute themselves, and rob people to get money to
buy more drugs. She stated that the Victim had stolen drugs from many
other people besides the Defendants.
Ms. Rosemarie (Rose) Shroy was also a drug-addicted prostitute who
lived in the Harrisburg area and knew the Victim from “the streets.” In
the fateful early morning hours of the murder, at or about 1:00 A. M.,
the Defendants found Ms. Shroy attempting to prostitute herself on the
corner of Third and Reily Streets in Harrisburg. The Defendants were
478 (2006)]
481
driving in Defendant Taylor’s blue station wagon. Defendant Mitchell
was the driver, Defendant Taylor was the front-seat passenger, and in
the back seat were Ms. Linda Williams (Defendant Taylor’s girlfriend)
and Mr. Hafeese Nelson (Defendant Taylor’s son). Mr. Nelson was also
allegedly involved in Defendant Taylor’s drug operation.
The Defendants asked Ms. Shroy if she wanted to “party” and tempted her with drugs and money to join them. Ms. Shroy entered the vehicle on the right-rear passenger side. The Defendants then asked Ms.
Shroy to take them to the Victim because they wanted another girl to
party with. Ms. Shroy, not perceiving any sinister intent at that time, told
them that the Victim could probably be found near the Sun Ray Cafe at
the corner of Third and Seneca Streets in Harrisburg.
The Defendants indeed found the Victim attempting to prostitute herself at that very street corner. The Victim could not immediately identify Defendant Mitchell because he had a black, hooded sweatshirt pulled
up which obscured his face. Ms. Shroy called to the Victim and, after
seeing her friend (Ms. Shroy), the Victim decided to enter the vehicle.
Defendant Taylor insisted that the Victim sit up front in-between himself
and Defendant Mitchell. The Victim entered the front of the vehicle followed by Defendant Taylor. It was only after she was trapped in the middle of the front seat of the vehicle that she recognized Defendant
Mitchell. She gasped and Defendant Mitchell looked at her and said,
“that’s right bitch.” Defendant Mitchell then struck her with the back of
his hand and pulled a gun on her.
Defendant Mitchell then gave the gun to Defendant Taylor and he
(Mitchell) began driving to Italian Lake. The Defendants punched the
Victim and Defendant Taylor stuffed a sock or rag down her throat and
restrained her. When they reached Italian Lake at or about Third Street,
Defendant Taylor dragged the Victim out of the car. Defendant Mitchell
said, “I can take this” and took the gun and grabbed the Victim by the
throat. Both Defendants then dragged the Victim into the Italian Lake
park.
Mr. Nelson asked the Defendants, “what should I do with her?” referring to Ms. Shroy. At that point, Ms. Shroy, fearing for her own life,
opened the right rear door of the vehicle door and fled. As she was fleeing, she heard three gunshots.
Mr. Joseph Dudick lived at 260 Edward Street in Harrisburg, which is
located across the street from Italian Lake, and his bedroom window
faced the park. He was awoken sometime after 1:30 by a noise that
482
[122 Dauph.
sounded like the crack of a gunshot and by voices coming from the park.
A few minutes later, after possibly falling back asleep, he heard another
noise which also sounded like the crack of a gunshot. At this point, Mr.
Dudick arose from his bed and looked out his window. He could not see
anything (he later determined that a tree was blocking his view of the
park) but he nevertheless decided to call the police.
Mr. Dudick returned to bed and less than five minutes later heard the
sounds of a vehicle. He looked outside and saw a vehicle which he
described as either a station wagon or a small SUV parked across the
street by the park. He then saw a man run up out of the park, get in the
vehicle, and speed away. Mr. Dudick only saw the man’s silhouette but
indicated that he was similar in shape and size to Defendant Taylor.
Mr. Joseph Krauss was a private security guard who drove a certain
route to check on different buildings and ensure they were secure at
night. Part of Mr. Krauss’ regular security patrol route allegedly took
him along Edward Street, past Italian Lake, and past Third Street. Mr.
Krauss claims that he drove past Italian Lake and saw the Victim and an
unidentified black male standing on Edward Street near Italian Lake.
His log sheet for the inspection of the building down the block that he
had recently checked (located at Front and Edward Streets) stated the
time was 1:50 A.M. when he was at that premises. However, Mr.
Krauss’ log sheet had been inexplicably altered with white-out. Further,
Mr. Krauss admitted to seeing the Victim’s picture in a local newspaper
prior to picking her face out of a photo array shown to him by the
Harrisburg Police.
The police investigators were not able to find any physical evidence
to connect the Defendants to these crimes. Furthermore, Dr. Neil A.
Hoffman, the Defendant’s expert witness pathologist, testified that, in
his (Hoffman’s) opinion, the description of the alleged beating of the
Victim while in the station-wagon did not match the autopsy photographic evidence. Dr. Wayne K. Ross, pathologist for the
Commonwealth, testified that the gunshot to the Victim’s head may have
masked previous trauma, and therefore her beating injuries were not
specifically noticeable.
Defendant Mitchell made incriminating statements to two inmates
while he was in Dauphin County Prison. Both Mr. Nathaniel Holmes
and Mr. Alexis Morales testified that Defendant Mitchell admitted that
the Victim owed him money for drugs. Defendant Mitchell told Mr.
Holmes to tell his (Holmes’) cousin, Ms. Kenae Navorro, to stay in New
478 (2006)]
483
York so she could not testify against him (Mitchell). Mr. Morales stated
that while Defendant Mitchell was discussing his (Mitchell’s) murder
charge, Defendant Mitchell said he (Mitchell) could “get away with it”
because the Commonwealth had no evidence against him.
Defendant Taylor also made incriminating statements while he was
incarcerated. Mr. Daniel Chacon testified that Defendant Taylor stated
that the Victim was shot in the head and in the hand. Defendant Taylor
also told Mr. Chacon that the Victim had stolen heroin from him
(Taylor). Mr. Keith Penrose Johnson, in his testimony before the
Investigating Grand Jury, stated that Defendant Taylor admitted to committing a murder and that he (Taylor) shot his victim in the head and in
the hand.
Ms. Cynthia Williams testified that she attended a Halloween Party
with Defendant Taylor on the night of the murder. However, she also
stated that she left the party at 11:00 P.M., three hours before the murder. Ms. Linda Williams (who was allegedly Defendant Taylor’s girlfriend, and also present in the vehicle on the night of the murder) testified that she was at the Halloween party until 1:00 A.M. with Defendant
Taylor, and that she spent the night with Mr. Taylor. However, Linda
Williams’ testimony before the Investigating Grand Jury stated that she
did not know where Defendant Taylor was on the night of the murder.
Although there were numerous other witnesses at trial, we believe
that the foregoing synopsis provides an accurate portrait of the main
events and witnesses in this case, and sets the stage for our further discussion of the matters which Defendant Taylor asserts entitle him to
relief. We note that all the evidence, both physical and testimonial, has
been preserved in the Record.
PROCEDURAL HISTORY
The criminal charges against Defendant Taylor were brought on April
4, 2003. Formal arraignment occurred on August 6, 2003. Defendant
Taylor, together with his Co-Defendant Mitchell, were jointly tried
before a jury, with this Court as the presiding trial judge, from December
6th through 15th, 2004. At the conclusion of the trial, Defendant Taylor
and his Co-Defendant, Mr. Mitchell, were convicted of Second Degree
Murder, Kidnapping, Criminal Conspiracy to commit Kidnapping,
Unlawful Restraint, Criminal Conspiracy to commit Unlawful Restraint,
and Carrying a Firearm Without a License. Defendant Taylor was immediately sentenced on December 15, 2004, after the verdict, and at his
484
[122 Dauph.
(Taylor’s) specific request, and after a full counseled colloquy, on the
record, concerning his pre-sentencing rights, including his right to the
preparation of a Pre-Sentence Report. This Court specifically concluded, after said colloquy, that Defendant Taylor made a knowing, intelligent and voluntary decision to forego his pre-sentencing rights, as aforesaid, and we proceeded at that time to impose sentences upon him for his
crimes.
Defendant Taylor filed a Post-Sentencing Motion on January 10,
2005. After a thorough review by this Court of its notes and the record
of the case, that Motion was denied on April 21, 2005. A timely appeal
to the Superior Court followed. Pursuant to this Court’s 1925(b) Order,
a Statement of Matters Complained Of on appeal was filed by Defendant
Taylor on June 8, 2005.
ISSUES
The following issues were raised in the Defendant’s Statement of
Matters Complained Of on appeal:
1.
THIS HONORABLE COURT ERRED WHEN IT
DENIED THE DEFENDANT’S PRETRIAL MOTION
IN LIMINE TO CONDUCT A JURY VIEW OF THE
CRIME SCENE AT ITALIAN LAKE.
2.
THIS HONORABLE COURT ERRED IN ONLY
ALLOWING INTO EVIDENCE A REDACTED
STATEMENT GIVEN BY MWANDISHI MITCHELL
WHICH WAS MADE TO DETECTIVE DONALD
HEFFNER.
3.
THIS HONORABLE COURT ERRED IN ALLOWING THE TESTIMONY OF ROSEMARIE SHROY
TO BE READ BACK TO THE JURY.
4.
WHEN THE JURY RETURNED A VERDICT OF
GUILTY [ON THE CHARGES] THE VERDICT WAS
SO CONTRARY TO THE EVIDENCE AS TO
SHOCK ONE’S SENSE OF JUSTICE AND TO
MAKE THE AWARD OF A NEW TRIAL IMPERATIVE, SO THAT RIGHT MAY BE GIVEN ANOTHER OPPORTUNITY TO PREVAIL.
5.
THE JURY’S VERDICT, EVEN WHEN VIEWED IN
THE LIGHT MOST FAVORABLE TO THE VER-
478 (2006)]
485
DICT WINNER, AND EVEN WITH THE BENEFIT
OF ALL REASONABLE INFERENCES TO BE
DRAWN FROM THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A
VERDICT OF GUILTY.
6.
THIS HONORABLE COURT ERRED IN RELYING
UPON THE DAUPHIN COUNTY COURT’S PRIOR
RULING IN COMMONWEALTH V. BORDNER, 121
Dauph. 211 (Dauph. Co. 2002) WHEN IT DENIED
UNDERSIGNED COUNSEL’S REQUEST FOR A
TRANSCRIPTION OF THE NOTES OF TESTIMONY IN ORDER TO AID THE DEFENDANT IN PROMULGATING
HIS
POST-SENTENCING
MOTIONS.
Due to our need to address issues of the Sufficiency of the Evidence
during our discussion of the Weight of the Evidence, we will address the
issue of the Sufficiency of the Evidence (Issue #5) prior to addressing
the issue of Weight of the Evidence (Issue #4).
1.
DISCUSSION
THIS HONORABLE COURT ERRED WHEN IT
DENIED THE DEFENDANT’S PRETRIAL MOTION
IN LIMINE TO CONDUCT A JURY VIEW OF THE
CRIME SCENE AT ITALIAN LAKE.
The Defendant claims “it was imperative for the jury to view the Lake
in order for the jury to discern the physical layout of the [crime] scene.”
(Brief in Support of Matters Complained Of on Appeal, P. 5). Rule 643
of the Pennsylvania Rules of Criminal Procedure states, “the trial judge
may in the judge’s discretion order a view by a jury.” Pa.R.Cr.P. 643(A).
“Absent an abuse of discretion, the denial of a request for a jury view
will not be overturned.” Commonwealth v. McNeal, 545 Pa. 42, 679
A.2d 1253, 1256 (Pa. 1996).
We did not believe that a jury view was necessary in the case at bar.
There were ample and lengthy full-color videos of the entire Italian Lake
area displayed to the jury on very good video equipment, and there were
other exhibits as well for the jury to understand all the necessary and relevant physical characteristics of the entire murder scene and adjacent
areas. It is our firm belief that all of these additional forms of demonstrative evidence were more than sufficient to assist the jury to properly
assess what actually happened on the night of the murder.
486
[122 Dauph.
Although the Defendant claims that a jury view would help the jury
understand the physical layout of the crime scene, he does not specifically explain why or how the physical layout is relevant to his case. For
example, the exact topography may have been relevant if the Defendant
was alleging that an eyewitness’ view of the crime was obscured.
However, in the case at bar, no eyewitness saw the actual commission of
the crime. We also note that the topography may have changed as the
trial was held four years after the crime occurred.
Finally, we have no reason to believe that the jury was confused or
was unable to understand the physical facts and/or spatial aspects of the
case due to a lack of a jury view. Therefore, to avoid the tremendous burden, apparent waste of time, and unnecessary expense of transporting
the jury to and from the crime scene, we denied the Defendant’s Motion,
since such a trip would have added little, if anything, to the well-prepared and numerous exhibits which accurately depicted all the relevant
areas associated with the murder.
2.
THIS HONORABLE COURT ERRED IN ONLY
ALLOWING INTO EVIDENCE A REDACTED
STATEMENT GIVEN BY MWANDISHI MITCHELL
WHICH WAS MADE TO DETECTIVE DONALD
HEFFNER.
At trial, Defendant Taylor introduced the following statement made
by Defendant Mitchell to Detective Donald Heffner of the Harrisburg
Police Department during a stationhouse interview:
Q: Had Cachi ever ripped anyone else that you know of?
A: I don’t know.
Q. Did you tell the other guy that Cachi ripped you off?
A: Yes.
Q: What did you tell the other guy about?
A: I told him the money was going to be $100.00 short
because she ran off.
Q: What did the other guy say about that?
A: The other guy said that I was supposed to be watching her and that was supposed to come out of my
money.
478 (2006)]
487
Q: Was the other guy mad?
A: Not to me.
Q: Did the other guy ever mention it again?
A: No.
Q: Did the other guy take it out of your money?
A: Yes.
Notes of Testimony p. 783 lines 3-19.
The above statement had been redacted, prior to trial, to substitute “the
other guy” for the name Glenn Taylor, the Defendant. On appeal,
Defendant Taylor claims that this statement should not have been redacted as it tended to negate Defendant Taylor’s motive to kill the Victim.
Defendant Taylor contends that this is because the statement showed that
Defendant Taylor never actually lost any money because he was reimbursed for his loss out of Defendant Mitchell’s share. Defendant Taylor
also asserts that the statement also tended to show that he (Taylor) was
not angry because he never mentioned the incident again.
In Bruton v. United States, 391 U.S. 123; 88 S.Ct. 1620 (1968), the
United States Supreme Court ruled that a defendant’s constitutional
rights are violated when his non-testifying co-defendant’s confession,
which implicates the defendant, is introduced at their joint trial.
Consistent with the holding in Bruton, we ordered Defendant Mitchell’s
statements redacted to protect Defendant Taylor from being implicated
by a statement which he (Taylor) could not contest unless he gave up his
right to remain silent, an obvious Bruton violation, and reversible error.
We note that Defendant Mitchell’s statement does contain inculpatory information. First of all, it states that Defendant Taylor knew that the
Victim stole his (Taylor’s) drugs. Further, it shows that Defendant Taylor
was angry with the Victim. When asked if Defendant Taylor was mad,
Defendant Mitchell replied, “not to me.” This strongly implies that
Defendant Taylor was indeed upset, but his anger was directed towards
someone other than Defendant Mitchell (presumably the Victim.)
Defendant Taylor claims that since the rule in Bruton was meant to
protect the non-confessing defendant (such as Taylor), he should be
allowed to waive this protection if he feels it is to his benefit to have the
testimony admitted. However, we still did not allow Defendant
Mitchell’s un-redacted statement to be read to the jury, since it was inadmissible hearsay.
488
[122 Dauph.
The general rule is that any out of court statement introduced for the
truth of the matter asserted therein is hearsay. Pa.R.E. 801. However,
Defendant Mitchell’s redacted statement was allowed into evidence
because it fell into the hearsay exception of being a statement against
penal interest. Pa.R.E. 804(b)(3).
A statement against penal interest is a statement made by an unavailable declarant that, “so far tended to subject the declarant to civil or
criminal liability . . . that a reasonable person in the declarant’s position
would not have made the statement unless believing it to be true.”
Pa.R.E. 804(b) (3). The Rule also states, “In a criminal case, a statement
tending to expose the declarant to criminal liability is not admissible
unless corroborating circumstances clearly indicate the trustworthiness
of the statement.” Id. Therefore, the only statements that were admissible were statements that were trustworthy and tended to inculpate
Defendant Mitchell.
We first note that Defendant Mitchell was unavailable to testify
because he invoked his right to remain silent under the Fifth Amendment.
We further note that his statement was reliable because it was made to a
police officer. The Pennsylvania Supreme Court has ruled that a statement against penal interest is trustworthy if it was “made to reliable persons of authority or those having adverse interests to the Declarant.”
Commonwealth v. Bracero, 515 Pa 355, 528 A.2d 936, 938 (Pa. 1987).
However, not all of Defendant Mitchell’s statement was against his
(Mitchell’s) penal interest. Although Defendant Mitchell’s statement
contained portions that inculpated him (Mitchell), it also contained portions that solely exculpated Defendant Taylor. The Pennsylvania
Supreme Court has ruled, “Those portions of a statement made by an
out-of-court declarant which are not inculpatory, such as statements that
another person was not guilty of the crime, are not declarations against
penal interest and are not admissible under the hearsay rule exception.”
Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980, 986 (Pa. 1984).
Whether or not Defendant Taylor had a monetary loss from the
Victim’s actions or whether he (Taylor) was angry had no bearing on
Defendant Mitchell’s penal interest. Therefore, to allow the jury to hear
Defendant Mitchell’s un-redacted statements about Defendant Taylor
would be to allow inadmissible hearsay.
The Defendant claims that he is entitled under Constitutional Due
Process to have a statement admitted if it is exculpatory. He cites to
Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) for this
proposition.
478 (2006)]
489
In Chambers, Mr. Chambers was charged with murdering a policeman during a riot. Gable McDonald subsequently confessed to the
shooting but then repudiated his confession. The Mississippi trial court
precluded Mr. Chambers from attempting to impeach Mr. McDonald by
cross-examination and from calling three witnesses to testify that Mr.
McDonald made confessions to them. The trial court prohibited the three
witnesses on the grounds that their testimony of Mr. McDonald’s confessions constituted hearsay.
The United States Supreme Court ruled that Mr. Chambers’ Due
Process rights were violated because the Mississippi trial court refused
to allow reliable evidence of Mr. McDonald’s confessions. The Court
noted that the confessions were against Mr. McDonald’s penal interest.
Further, these statements were reliable because Mr. McDonald stood to
gain nothing from making these confessions, they were made spontaneously to close acquaintances, they were made to three separate people
at three separate times, and he (McDonald) was available to testify.
The difference between Chambers (and the Pennsylvania cases based
on Chambers) and the case at bar is that the evidence at issue in
Chambers was both exculpatory for the defendant and inculpatory for
the declarant. In other words, Mr. McDonald’s confessions were not
only inculpatory to himself, but were exculpatory for Mr. Chambers. In
the case at bar, the testimony that Defendant Taylor incurred no monetary shortfall and/or that Defendant Taylor was not angry, was in no way
inculpatory to Defendant Mitchell. Therefore, those statements of
Defendant Mitchell were not reliable and could not be admitted at trial
even if they were exculpatory to Defendant Taylor.
Defendant Taylor further claims that the complete statement should
have been admitted as a statement of a co-conspirator under the
Pennsylvania Rule of Evidence 803(25). However, this Rule of
Evidence says that statements of co-conspirators are only admitted, “if
the statement is offered against a party,” and was made, “by a co-conspirator . . . during the course and in furtherance of the conspiracy.”
Pa.R.E. 803 (25) (E). (Emphasis supplied)
At trial, this statement was offered against the Commonwealth, not
against the co-conspirator of a party. Further, this statement was made to
a police officer during a stationhouse interview and therefore was made
to the detriment of the conspiracy and not in furtherance of it. Finally,
the crime occurred on November 1, 2000, but the interview occurred on
April 17, 2003, over two years later. Clearly, the conspiracy had ended
490
[122 Dauph.
long before the interview took place. Therefore, we do not believe that
Pa.R.E 803(25) mandates the admission of Defendant Mitchell’s unredacted statement.
3.
YOUR HONORABLE COURT ERRED IN ALLOWING TESTIMONY OF ROSEMARIE SHROY TO BE
READ BACK TO THE JURY.
The Pennsylvania Supreme Court, in the seminal case of
Commonwealth v. Johnson, 576 Pa. 23, 838 A.2d 663 (2003), ruled that
whether or not testimony should be read to the jury “rests within the discretion of the trial court.” Id. at 677. Further, “the reading of the testimony does not implicate reversible error, provided that it does not place
undue emphasis on one witness’ testimony.” Id.
In the case at bar, at the specific request of the jury, the reading of the
testimony of Ms. Shroy occurred, on the record (it was transcribed by a
second court reporter during read-back), and it was read back in its
entirety, including both direct and cross-examination. The utmost care
was taken to not place any undue emphasis on any part of that testimony.
Finally, extensive instructions were given to the jurors. We made sure
to emphasize to the jurors that the reading of the testimony was not to
supersede their own memory of the trial testimony. We allowed the testimony to be read back only as an aid to their recollection. These were
all requirements listed in Johnson, 838 A.2d 677-78. For these reasons,
we believe reading back Ms. Shroy’s testimony was not an error, and
indeed followed the exact protocol established by our Supreme Court for
such circumstances, as set forth in Johnson.
Defendant Taylor attempts to make a distinction between Johnson and
the case at bar because the testimony in Johnson involved a witness who
established motive and not a witness who actually established guilt. We
feel this is not a relevant distinction, indeed, it appears to us that it is a
distinction without a difference, and is a misreading of Johnson.
In Johnson, Mr. Johnson was found guilty of murdering Louis Combs
in a territorial dispute between groups involved in the sale of illicit
drugs. Ms. Nicole Ramsey was permitted to testify about Defendant
Johnson’s drug selling activities. While generally, evidence of other
crimes is inadmissible to establish a defendant’s character (Pa.R.E. 404
(b) (1)), Ramsey’s testimony was permitted for the limited exception of
establishing motive (Pa.R.E. 404(b) (2)). Further, the trial judge gave the
jury an instruction that they should only consider Johnson’s drug activity for the limited purpose of motive.
478 (2006)]
491
During deliberations, at the request of the jury, the judge permitted
Ramsey’s testimony to be read back to the jury. However, the judge did
not repeat his earlier instruction that evidence of prior crimes could not
be used to evaluate Johnson’s character. Johnson appealed and claimed
reading the testimony back to the jury was error and it was also error to
not read back the instruction.
The Pennsylvania Supreme Court, however, denied these claims and
stated that the trial court was permitted to read back the testimony of Ms.
Ramsey and the court did not have to repeat the instruction because the
jury was presumed to have followed the earlier instruction. The Court
stated, “Further, the jury previously received a detailed instruction from
the court that the evidence regarding Johnson’s drug involvement was
admitted solely for the purpose of establishing motive, see supra, which
instruction the jury is presumed to have followed.” Johnson, 838 A.2d
at 678.
Defendant Taylor misreads the holding in Johnson to rule that the
only testimony that can be read back to a jury is testimony that establishes motive (but not guilt). It is obvious that the only reason the
Pennsylvania Supreme Court discussed the issue of motive was because
the content of Ramsey’s testimony required a limiting instruction. In the
case at bar, Ms. Rose Shroy’s testimony was not evidence of prior
crimes but, rather, was evidence of the crime itself. Her testimony did
not need a limiting instruction. The fact that Ms. Shroy’s testimony was
not admitted for the purpose of motive has no bearing on whether her
testimony could be read back to the jury. Since we followed all the
guidelines established by the Pennsylvania Supreme Court in Johnson,
we likewise believe that it was proper to allow the reading back of the
testimony of Ms. Rose Shroy.
5.
THE JURY’S VERDICT, EVEN WHEN VIEWED IN
THE LIGHT MOST FAVORABLE TO THE VERDICT WINNER, AND EVEN WITH THE BENEFIT
OF ALL REASONABLE INFERENCES TO BE
DRAWN FROM THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A
VERDICT OF GUILTY.
The bedrock standard for the Sufficiency of Evidence is:
Whether, viewing the evidence in the light most favorable to
the Commonwealth, and drawing all reasonable inferences
favorable to the Commonwealth, there is sufficient evidence to
492
[122 Dauph.
find every element of the crime beyond a reasonable doubt.
. . . The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. . . . Moreover, in
applying the above test, the entire trial record must be
evaluated and all evidence actually received must be considered. . . . Finally, the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is
free to believe all, part or none of the evidence.
Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548, 549 (1992).
Furthermore,
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law.
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-52
(2000).
Thus we look, as a matter of law, to see if every element of each crime
was proven beyond a reasonable doubt. The Defendant was convicted of
Second Degree Murder, Kidnapping, Criminal Conspiracy to commit
Kidnapping, Unlawful Restraint, Criminal Conspiracy to commit
Unlawful Restraint, and Carrying a Firearm Without a License.
According to the laws of our Commonwealth, these crimes have the following elements:
SECOND DEGREE MURDER: a criminal homicide
constitutes murder of the second degree when it is committed while [the] defendant was engaged as a principal
or an accomplice in the perpetration of a felony.
18 Pa.C.S.A. §2502.
KIDNAPPING: A person is guilty of kidnapping if he
unlawfully removes another a substantial distance under
the circumstances from the place where he is found, or if
he unlawfully confines another for a substantial period in
a place of isolation, with any of the following intentions:
478 (2006)]
493
(2) To facilitate commission of any felony or flight thereafter. (3) To inflict bodily injury on or to terrorize the victim or another.
18 Pa.C.S.A. §2901(a)(2) and (3).
UNLAWFUL RESTRAINT: A person commits an
offense [of unlawful restraint] if he knowingly: (1)
restrains another unlawfully in circumstances exposing
him to risk of serious bodily injury.
18 Pa.C.S.A. §2902(a)(1).
CONSPIRACY: A person is guilty of conspiracy with
another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he: (1)
agrees with such other person or persons that they or one
or more of them will engage in conduct which constitutes
such crime or an attempt or solicitation to commit such
crime; or (2) agrees to aid such other person or persons
in the planning or commission of such crime or of an
attempt or solicitation to commit such crime. . . .
(e) OVERT ACT. – No person may be convicted of conspiracy to commit a crime unless an overt act in pursuant
of such conspiracy is alleged and proved to have been
done by him or by a person with whom he conspired.
18 Pa.C.S.A. §903 (a) (1), (2), and (e).
CARRYING FIREARM WITHOUT A LICENSE: . . .
any person who carries a firearm in any vehicle or any
person who carries a firearm concealed on or about his
person, except in his place of abode or fixed place of
business, without a valid and lawfully issued license
under this chapter commits a felony of the third degree.
18 Pa.C.S.A. §6106 (a) (1).
To convict a defendant of Second Degree Murder, it must be proven
that the victim was killed during the commission of one of a series of
named felonies. The named felonies, as used in the murder statute, are
further defined as follows:
“Perpetration Of A Felony: The act of the defendant in
engaging in or being an accomplice in the commission
of, or an attempt to commit, or flight after committing, or
attempting to commit robbery, rape, or deviate sexual
intercourse by force or threat of force, arson, burglary or
kidnapping.”
494
[122 Dauph.
In the case at bar, the felony upon which the murder could be based is
kidnapping (which could be found with or without a conspiracy). To
convict a defendant of kidnapping, it must be proven that a defendant
removed the victim a substantial distance from the place where she was
found in order to inflict bodily injury upon her. To be guilty of conspiracy to commit kidnapping, a defendant must have conspired with his codefendant to kidnap a victim and one or both of them must have committed an overt act in furtherance of the conspiracy.
In the case at bar, there is no question that there was sufficient evidence, if believed by the jury, to convict Defendant Taylor of all of these
crimes. We will now review trial testimony offered by the
Commonwealth at trial to support the verdict of the jury. We again note
that when deciding a sufficiency of the evidence challenge, we must
view all the evidence in favor of the Commonwealth.
Ms. Rose Shroy was an eyewitness to the entire incident save the
actual firing of the gunshots. Ms. Shroy testified that while she was in
the vehicle with the Defendants, they asked her (Shroy) where the
Victim was located (N.T. 129). A jury could rule that this is evidence that
the Defendant and Co-Defendant had a conspiracy to find the Victim
and harm her. The overt act occurred when they actually completed the
crime by picking the victim up, driving her against her will to Italian
Lake, and killing her.
The kidnapping charge is clear from Ms. Shroy’s testimony. She saw
Defendant Taylor (who was the front-seat passenger) pick up the Victim
in his (Taylor’s) vehicle (N.T. 132), assault her (Victim) (N.T. 133),
drive with her to Italian Lake (N.T. 133), assist Defendant Mitchell in
dragging her by the throat and at gun point into the park (N.T. 134), and
shortly thereafter Ms. Shroy heard gunshots (N.T. 137). A jury could
certainly find from those facts that Defendant Taylor kidnapped and then
killed the Victim.
The same evidence to support the kidnapping charge could also be
used to support a charge of unlawful restraint and conspiracy to commit
unlawful restraint. Defendant Taylor and Co-Defendant Mitchell were
actively looking for the Victim. When they found her, they unlawfully
restrained her by taking her prisoner and assaulting her in the front seat
of the Defendant’s vehicle. Further, while Co-Defendant Mitchell drove
the vehicle, Ms. Shroy testified that Defendant Taylor physically
restrained the Victim by holding her hands and stuffing a sock or a rag
in her mouth (N.T. 135).
478 (2006)]
495
Finally, with regard to the charge of carrying a firearm without a
license, Ms. Rose Shroy testified that during the course of the ride in the
vehicle with the Victim, both Defendants possessed the handgun, at one
point or another (N.T. 133). At trial, the Commonwealth admitted
Exhibits #34 and #35 which were self-authenticating documents that
reflected that neither Defendant Taylor nor Co-Defendant Mitchell possessed a valid license to carry a firearm or a valid sportsman’s firearms
permit (N.T. 507).
Ms. Shroy’s testimony, by itself, would be sufficient to convict
Defendant Taylor, if believed by the jury. In addition, testimony of other
witnesses established that Defendant Taylor had a motive for killing the
Victim because she failed to pay a drug debt and was allegedly shooting
off her mouth on the streets concerning the fact that she “beat”
Defendant Mitchell, who was one of Defendant Taylor’s main drug traffickers, out of his drugs and money. It was abundantly clear from the
trial testimony that those stolen drugs and the money which they represent, were ultimately the property of Defendant Taylor; and, therefore, it
is not at all difficult to imagine that should a drug trafficker get a reputation as being “easy” or a “pussy” with regard to those persons who
owe him money for drugs, then that drug dealer will likely suffer similar losses in the future. Obviously, in the drug trade that sort of street
reputation is unacceptable.
Mr. Samuel Taggert testified that he was involved in selling heroin
with Defendant Taylor and Co-Defendant Mitchell (N.T. 278-79). Mr.
Taggert testified that Defendant Taylor supplied Defendant Mitchell
with heroin and Defendant Mitchell would sell it for Defendant Taylor
(N.T. 280). Mr. Taggert also testified that Defendant Mitchell gave heroin to the Victim to sell for him (Mitchell) but the Victim left without selling the drugs to anyone or paying Defendant Mitchell for them (N.T.
283-84). Thus, Mr. Taggert established a motive for Defendant Taylor to
murder the Victim because she stole drugs that he (Taylor) had given on
consignment to Defendant Mitchell.
Mr. Daniel Chacon was in prison with Defendant Taylor. Mr. Chacon
testified that the Defendant told him (Chacon) that the Victim was shot
in the head and in the hand (N.T. 409, 416). Mr. Chacon also testified
that Defendant Taylor admitted that the Victim stole four bundles of
heroin from him (Taylor) (N.T. 415).
Mr. Keith Penrose Johnson was Defendant Taylor’s cellmate. At
trial, Mr. Johnson claimed he could not recall Mr. Taylor making
496
[122 Dauph.
incriminating statements. However, Mr. Johnson’s prior testimony
before the Investigating Grand Jury revealed that Defendant Taylor
admitted to committing a murder (N.T. 359) and that he (Taylor) shot
the victim in the head and in the hand (N.T. 359).
There is more than sufficient evidence to lawfully convict the
Defendant of murdering the Victim. Ms. Rose Shroy was an eyewitness
to practically the entire incident. Mr. Samuel Taggert established a
motive for Defendant Taylor’s malice toward the Victim. Finally, Mr.
Daniel Chacon and Mr. Keith Penrose Johnson substantiated the
Defendant’s guilt, through the very words spoken by Defendant Taylor.
4.
WHEN THE JURY RETURNED A VERDICT OF
GUILTY [ON THE CHARGES] THE VERDICT WAS
SO CONTRARY TO THE EVIDENCE AS TO
SHOCK ONE’S SENSE OF JUSTICE AND TO
MAKE THE AWARD OF A NEW TRIAL IMPERATIVE, SO THAT RIGHT MAY BE GIVEN ANOTHER OPPORTUNITY TO PREVAIL.
With regard to the claim of the Weight of the Evidence the equally
well-established standards are:
A motion for a new trial on the grounds that the verdict
is contrary to the weight of the evidence, concedes that
there is sufficient evidence to sustain the verdict. Thus,
the trial court is under no obligation to view the evidence
in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial
judge must do more than reassess the credibility of the
witnesses and allege that he would not have assented to
the verdict if he were a juror. Trial judges, in reviewing a
claim that the verdict is against the weight of the evidence, do not sit as the thirteenth juror.
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-52
(2000).
A new trial should be awarded when a jury’s verdict is
so contrary to the evidence as to shock one’s sense of
478 (2006)]
497
justice . . . the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the
court. . . . The question the trial court should have been
answering, in the sound exercise of its discretion, was
whether notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or give
them equal weight with all the facts is to deny justice.
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
We will now review each of Defendant Taylor’s contentions and analyze what the evidence at trial revealed. We will then weigh all the testimony and decide if the weight of the evidence should favor Defendant
Taylor.
Defendant Taylor claims that it was improper for this Court to allow
the verdict to stand on the testimony of Ms. Rose Shroy because alleged
inconsistencies in her testimony should have been given extra-weight to
cast doubt on and invalidate her entire testimony.
It does not surprise the Court that the Defendant wishes to impeach
the testimony of Ms. Shroy. Defendant Taylor’s main prayer for relief
appears to be directed at obtaining a new trial. However, if the
Defendant were ever afforded that appellate relief, it is very unlikely that
the Commonwealth would be able to prevail at any such proceeding,
since its star witness, Ms. Shroy, would be unavailable to testify at any
retrial of the case.2 We do not find, however, that the alleged inconsistencies in her statements were so overwhelming as to merit the invalidation of her entire testimony. Indeed, this Court had a full opportunity to
observe the testimony of Ms. Shroy at trial, just as did the jury. On balance, we found the testimony of Ms. Shroy to be very convincing and
entitled to great weight by the jury, should they have found likewise –
which, by virtue of their verdict, they did as well.
For example, Defendant Taylor points out that Ms. Shroy incorrectly
identified the clothing of the Victim on the night of the murder. Ms.
Shroy had stated in her Preliminary Hearing testimony that the Victim
was wearing a summer dress, but the Victim was actually wearing dark
jeans at the time of her death (N.T. 61). We find that merely because Ms.
Shroy initially and incorrectly identified the Victim’s clothing does not
cause our conscience to be shocked. Ms. Shroy stated that the Victim
2. This Court takes Judicial Notice of the obituary of Ms. Rosemarie Shroy, published
in the Patriot News, which indicated that she died of cancer on August 3, 2005.
498
[122 Dauph.
“lived” in that particular dress and that is why Ms. Shroy thought she
(Victim) was wearing it that night (N.T. 218). The strong inference from
Ms. Shroy’s statement about the Victim “living in that dress” was that
whenever she (Victim) was out on the town prostituting herself to buy
drugs, she would likely be wearing that dress. It should be remembered,
that according to Ms. Shroy’s testimony about when the Defendants finally located the Victim in the early morning hours of the date of the murder,
she (Victim) was, in fact, attempting to prostitute herself to buy drugs. That
could have easily caused Ms. Shroy to believe that she (Victim) was wearing her usual dress that evening. We find that it was proper to let the jury
decide how much weight to give Ms. Shroy’s testimony on that issue.
As a matter of law, with regard to sufficiency of the evidence, Ms.
Shroy’s testimony was allowed to stand because, although her testimony was contrary to a physical fact, what the Victim was wearing was not
an element of any of the criminal charges. The fact that Ms. Shroy was
mistaken only goes to the weight the jury should give her testimony.
Defendant Taylor also tries to emphasize Ms. Shroy’s allegedly erroneous testimony with regard to the beating that the Victim sustained in
Defendant Taylor’s vehicle while en route to Italian Lake. Ms. Shroy’s
Preliminary Hearing testimony described a brutal beating to the Victim’s
face and even at trial she stated that the Victim was beaten such that the
Victim was bleeding (N.T. 188). Ms. Shroy stated in her Preliminary
Hearing testimony that the Victim’s lip was split (N.T. 189) and her eye
was swollen (N.T. 190). The Defendant’s forensic pathologist, Dr. Neil
A. Hoffman, testified that his analysis of the autopsy photographs
revealed no visible trauma to the Victim’s face [aside from the massive
gunshot wound] (N.T. 584-86). He also disagreed with the
Commonwealth’s forensic pathologist, Dr. Wayne K. Ross, who opined
that the gunshot wound may have masked other trauma to the Victim’s
face (N.T. 588) (N.T. Dr. Ross 12-13).
Again, we do not believe that the weight of the evidence mandates
that this Court dismiss Ms. Shroy’s testimony. Ms. Shroy admitted that
she was sitting in the back seat and assumed the punches were to the
Victim’s face (N.T. 187). “I just remember punches and screaming”
(N.T. 181). Also, the jury was free to believe the Commonwealth’s
pathologist over the Defendant’s pathologist. We feel that it was appropriate for the jury to decide how much weight to give that portion of Ms.
Shroy’s testimony.
We further note that with regard to the sufficiency of evidence,
whether Ms. Shroy overstated the beating sustained by the Victim did
478 (2006)]
499
not void her testimony as a matter of law. The severity of the beating is
not an element of and has no bearing to the charges. The jury did not
have to decide whether the Victim was beaten; rather, they had to decide
if she was kidnapped, restrained, and murdered. Whether or not Ms.
Shroy’s description of the beating was totally accurate was for a jury to
consider when evaluating her credibility.
Defendant Taylor also points out that Ms. Shroy claimed she heard
three gunshots (N.T. 137) but the Victim was only shot by two bullets.
Also, Mr. Joe Dudick claimed he only heard two shots. We would first
point out that although the Victim was shot by two bullets, one of which
was fatal, it is entirely possible that Defendant Taylor shot a third bullet
that entirely missed the Victim. Further, Joe Dudick stated that he “may
have drifted off a bit [to sleep]” (N.T. 82) after hearing the first gunshot,
so he may have slept through the second shot and was awoken again by
the third.
With regard to the sufficiency of the evidence, whether or not Ms.
Shroy heard a third gunshot did not invalidate her testimony as a matter of law. The number of shots fired is not an element of the crime of
murder. Ms. Shroy’s testimony can be valid as long as her testimony
does not contradict the scientifically proven way in which the Victim
died.
As mentioned above, the Defendant could have fired a third shot and
missed the Victim. Also, it is possible that Ms. Shroy thought she heard
a third shot but was mistaken, possibly due to an echo or similar acoustical phenomena. Regardless of how many shots were actually fired, the
fact remains that the Victim died of a gunshot wound, fired at relatively
close range, to her head. The claim of a third shot is not proof that Ms.
Shroy was lying, but rather was another item for a jury to consider when
assessing her credibility.
We also do not find it unusual that Ms. Shroy’s memory was not perfect. Ms. Shroy was not merely a witness to a murder; if not for her fast
action by jumping out of the car and running away, she would very likely be a victim herself. Considering the fear she must have felt and her
emotional state at the demise of her friend, (especially since she (Shroy)
was the one who unwittingly lured the Victim into the Defendant’s vehicle) it is not surprising that she would not remember every detail. We do
not find that the mistakes by Ms. Shroy should be given greater weight
uncontradicted
than
the
rest
of
Ms.
Shroy’s
testimony.
500
[122 Dauph.
Defendant Taylor also alleges that Ms. Shroy could not identify the
vehicle of the murderer. Ms. Shroy claimed that the Defendant was driving a station wagon (N.T. 126, 216). However, Mr. Joe Dudick, a resident of the Italian Lake neighborhood, claims when he looked outside
his window he saw what appeared to be a “station wagon, mini van,
small SUV, something of that sort” (N.T. 86). Clearly, these two witnesses can be in agreement.
The Defendant similarly argues that Ms. Shroy was mistaken about
the location of Defendant Taylor’s vehicle because she claimed it was
parked on Third Street, but Mr. Joe Dudick placed the vehicle on
Edward Street. We note that Mr. Dudick did not see the vehicle until
after he heard the gunshots (N.T. 83). By that time, Rose Shroy had
already fled the vehicle (N.T. 137). One of the Defendant(s), or possibly
one of the other passengers could have pulled the car around the corner
for any number of reasons. Therefore, this is not proof that Ms. Shroy
was mistaken.
Mr. Joe Dudick also claims that he saw one man enter the vehicle and
drive away. Again, this is not inconsistent with Ms. Shroy’s testimony
because Ms. Shroy had already fled the scene. There is no telling what
sequence of events could have occurred between the time Ms. Shroy fled
and the time Mr. Joe Dudick arose from his bed to look out his window.
It was for a jury to determine whether Ms. Shroy’s testimony was reliable.
Defendant Taylor also claims that Ms. Shroy was lying based upon
the testimony of Mr. Joseph Krauss. Mr. Krauss claimed that based upon
his log sheet, he saw the Victim and an unidentified black male on
Edward Street shortly after 1:50 A.M. on the night of the murder (N.T.
652-54). However, Mr. Krauss also admitted that he had previously seen
the Victim’s face in the Patriot News newspaper (N.T. 663). Further, Mr.
Krauss’ time-sheet, which allegedly proved he was in the area at the time
of the murder, had inexplicably been altered with white-out (N.T. 665).
Clearly, it was for a jury to determine whether or not his statement was
credible and not a fabrication by someone who wanted to somehow be
involved as an important witness in a notable murder.
Additionally, Defendant Taylor mischaracterizes how Ms. Shroy
described her friendship with the Victim. The Defendant claims that Ms.
Shroy alleged herself to be a close, indeed intimate friend of the Victim.
Defendant Taylor is now trying to cast doubt on Ms. Shroy’s entire testimony by claiming that Ms. Shroy was not really the Victim’s intimate
friend.
478 (2006)]
501
For example, Defendant Taylor points out that Ms. Shroy did not
know the Victim’s family members. Defendant Taylor attempts to argue
that if Ms. Shroy truly was an intimate friend of the Victim, Ms. Shroy
would have met the Victim’s family members and her (Victim’s) alleged
best friend, Ms. Dena Russell.
Mr. Taylor points out that Ms. Shroy did not tell her story to the
Victim’s family or to the police until a substantial time after the incident.
Defendant Taylor tries to imply that if Ms. Shroy was indeed an intimate
friend of the Victim, she (Shroy) would have contacted the Victim’s
family or tried to bring the killers to justice.
Finally, Defendant Taylor tries to imply that Ms. Shroy did not really
know the Victim because Ms. Shroy stated that they would “hang-out”
in uptown Harrisburg. However, Ms. Dena Russell claimed the Victim
stayed around the Allison Hill area of Harrisburg.
We will now analyze Ms. Shroy’s testimony to see exactly how she
characterized her friendship with the Victim. We will look not only at
how Ms. Shroy labeled her friendship, but how she described what they
did together as friends.
It is true that on cross-examination, Ms. Shroy did not deny the characterization by the Defendant’s counsel that she was “good friends” with
the Victim (N.T. 142). However, not everyone may have the same definition of what constitutes a “good friend.” We must look to how Ms.
Shroy described her friendship.
Attorney McShane elicited the following testimony from Ms. Shroy:
Q: Let’s talk about Cachi. You knew Cachi, correct?
A. Yes.
Q. Knew her well, as a matter of fact?
A. Yes.
Q. Good friend of yours?
A. Yes.
...
Q. And you would prostitute together?
A. Not together, no.
502
[122 Dauph.
Q. Separately, but you were both prostitutes at the same
time?
A. Yes.
Q. You hung out in the same area?
A. Sometimes.
Q. You guys were good friends?
A. Yes.
(N.T. 141-43).
However, more specific cross-examination by Attorney Krevsky
revealed the following:
Q. How do you know Hayde Freytes?
A. By being on the street. By being out there.
Q. How long did you know Hayde Freytes?
A. Maybe off and on about a year.
Q. Is it fair to say that you were or were not close to her?
A. Close at times.
(N.T. 202).
Q. You knew Cachi about a year?
A. Yes.
Q. I guess you did drugs together, were doing the same
trade at that point?
A. Yes.
Q. Shared stories together?
A. No.
Q. You wouldn’t talk to each other about small talk, what
is going on in your lives? You wouldn’t talk to her
about that?
A. We were always getting high. Just maybe some. Not yes, yes.
(N.T. 217).
478 (2006)]
503
Based upon this testimony, a jury could find that it is not unusual for
Ms. Shroy to not know the Victim’s friends and family. There is no
indication that the Victim and Ms. Shroy had the type of relationship
where they would invite each other over for tea. The Victim was someone from the streets with whom Ms. Shroy would get high. There is no
indication that they were truly interested in each other’s lives. They
knew each other “off and on” and “hung-out” in the same area “sometimes.” However, Ms. Shroy did testify that she did meet one of the
Victim’s relatives once but she did not remember the relative’s name or
where she lived (N.T. 203). Whether or not Ms. Shroy appropriately
characterized herself as a close or intimate friend of the Victim was an
issue for the jury to determine.
It is also not unusual that Ms. Shroy did not contact the police or the
Victim’s relatives. Ms. Shroy did not notify anyone because she was
obviously scared for her own life – she had witnessed a murder, and
knew who committed it (N.T. 215). She knew the degree of violence that
the Defendants Taylor and Mitchell were capable of. Ms. Shroy certainly was not about to risk her own life for a person who was merely a fellow drug user. In fact, Ms. Shroy’s behavior was not unusual. Many
murder witnesses are afraid to come forward to the police, even anonymously. It was for a jury to decide if Ms. Shroy’s behavior was unusual.
Defendant Taylor claimed that Ms. Shroy’s testimony was false
because she claimed that the Victim would spend time in the uptown
(northern) section of Harrisburg, but Ms. Russell and other witnesses
claimed she would only stay around Allison Hill (a different neighborhood located in the eastern section of Harrisburg). Ms. Shroy said, “At
the time I knew her she started hanging out uptown” (N.T. 211). It
should be noted that the location of the Sun Ray Cafe, the place where
the Defendants found the Victim prostituting herself on the night of her
murder, is located in the uptown section of Harrisburg.
It is clearly possible for a person to move around an urban environment such as the City of Harrisburg, as not everyone stays in the same
place all the time. This could be even more important for someone in the
profession of prostitution, since too much constant exposure of that type,
in one neighborhood, might have a tendency to attract the attention of
the Harrisburg City Police Department, especially the vice detectives.
Even Ms. Dena Russell testified that on the night of the murder, the
Victim stated that she was going “downtown” to prostitute herself so she
could buy drugs and not become “dope sick” in the morning (N.T. 540).
We also note that Ms. Russell stated that she and the Victim “were
504
[122 Dauph.
getting high, robbing people, doing whatever we had to do to get drugs”
(N.T. 529). Clearly, a person who was so addicted to drugs that she
would prostitute herself, rob people, and even steal from drug dealers,
would travel to a different part of town if she thought she could obtain
money to satisfy her drug addiction. Again, we feel this issue was for a
jury to weigh.
Also, Defendant Taylor claims that Ms. Shroy was lying just to save
herself from her own criminal charges. However, the record indicates
that it was Ms. Andujar who notified the police of what Ms. Shroy had
witnessed (N.T. 253-54). Ms. Shroy did sign a plea agreement in return
for her testimony. However, just because a witness has a plea agreement, does not prove that she is lying. Many witnesses do not wish to
testify at serious criminal trials because they (witnesses) are afraid of
reprisals. In those cases, the police and prosecutors often are compelled to offer incentives to witnesses to convince them to testify. It
was for the jury to decide if Ms. Shroy’s plea agreement affected her
credibility.
Defendant Taylor next alleges that the weight of the evidence is
against the prosecution because there was no physical evidence proving
that he (Taylor) committed the murder. However, it is axiomatic, that the
absence of physical evidence is not proof of innocence. Not every person who commits a crime necessarily leaves behind physical evidence.
The lack of physical evidence was just another aspect for the jury to consider.
Defendant Taylor additionally claims that any testimony from incarcerated persons should be discounted because they are obviously getting
something in return for their testimony. This is the same argument used
with regard to Ms. Shroy’s plea agreement. We believe it is for the jury
to determine how much credibility to give a witness’ testimony.
Defendant Taylor claims that Ms. Shroy should not be believed
because she had no one to verify her story. The jury was absolutely free
to take or not to take Ms. Shroy at her word. Of course, the jury could
also consider that none of the people named by Ms. Shroy to have been
in Defendant Taylor’s vehicle had verifiable alibis for the time of the
murder.
Mr. Taylor argues that he had no motive to kill the Victim because he
was reimbursed by Defendant Mitchell for the drugs stolen by the
Victim. Defendant Taylor points to the testimony of Mr. James Buckner,
a former drug dealer, who essentially stated that murdering the Victim
478 (2006)]
505
would have been a bad business decision because it would bring the
police to the neighborhood (N.T. 764). We first note that any person who
sells drugs has already made a very bad business decision. With regard
to Mr. Buckner’s testimony, we believe that a jury could find that
although Defendant Taylor may not have suffered a monetary loss, he
may have wanted to send a message to other drug addicts that he was not
to be taken advantage of in the future. Not every business person makes
the same business decisions. It was for a jury to decide if Mr. Taylor had
a proper motive to commit murder.
After reviewing Defendant Taylor’s claims, we find that no decisions
by the jury were made contrary to the clear weight of the evidence.
Almost every interpretation of the evidence that supported Defendant
Taylor’s assertions could just as easily have been interpreted to agree
with the jury’s verdict. When witnesses may have been incorrect or inaccurate, the jury was allowed to take those mistakes into consideration. If
witnesses disagreed, it was for the jury to decide which one to believe.
We further note that we found Ms. Shroy’s testimony to be extremely
credible with regard to the important issues in this case. We do not feel
that this verdict shocks the conscience of this Court, nor is it contrary to
the weight of the evidence, and we certainly do not believe that
Defendant Taylor should be granted a new trial.
6.
THIS HONORABLE COURT ERRED IN RELYING
UPON THE DAUPHIN COUNTY COURT’S PRIOR
RULING IN COMMONWEALTH V. BORDNER, 121
Dauph. 211 (Dauph. Co. 2002), WHEN IT DENIED
UNDERSIGNED COUNSEL’S REQUEST FOR A
TRANSCRIPTION OF THE NOTES OF TESTIMONY IN ORDER TO AID THE DEFENDANT IN PROMULGATING
HIS
POST-SENTENCING
MOTIONS.
The Defendant claims that he was prejudiced because we did not
grant him an extension of time in which to file his post-trial motions so
that his Attorney, Justin J. McShane, Esquire, could review the trial transcripts. He claims that we committed error because we relied upon the
Formal Opinion of the then President Judge of this Judicial District, The
Honorable Joseph H. Kleinfelter in Commonwealth v. Bordner, 121
Dauph. 211 (Dauph. Co. 2002) which was reversed in part by the
Superior Court in an Order dated July 19, 2002 (Superior Court Docket
No. 846 MDA 2002).
506
[122 Dauph.
Although we did rely on Bordner for the fundamental basis for our
initial ruling on this matter, we believe our ruling was nevertheless correct. In Bordner, the Defendant’s appellate counsel had no way to know
what happened at the trial because the defendant represented himself pro
se in the trial proceedings. Therefore, appellate counsel needed to
review the trial transcripts in order to file a proper Statement of Matters
Complained Of on appeal. However, there were never any Post-Trial
Motions filed in Bordner, and there was the infusion of an appellate
attorney into the case that had no knowledge of what had transpired during the trial. The issue in Bordner was whether or not, even though
appellate counsel could not fully and properly articulate a reference in
the trial record which supported the defendant’s claim for appellate
relief, was such late arriving counsel nevertheless entitled to a copy of
the full trial transcript to prepare and advance the defendant’s appellate
claims before the Superior Court? However, that is not what occurred in
the instant case. Here, unlike Bordner, we were dealing with Post-Trial
Motions, and we found no reason or compelling justification, nor were
we provided with any such compelling reason or justification at that
juncture, to provide an expedited trial transcript of a rather lengthy jury
trial, in order for a defendant’s trial counsel to try to find additional
issues to assert in such post-trial proceedings.
In the case at bar, the Defendant’s appellate counsel is the same attorney who was the lead trial counsel. There is no reason that Attorney
McShane, who is an experienced and well-qualified criminal defense
attorney, could not have remembered and noted the issues upon which
he wished to request post-trial relief on behalf of Defendant Taylor. We
consistently observed Attorney McShane together with his co-counsel,
Erin M. Zimmerer, Esquire, diligently making all manner of notes during the course of the trial. Even the Defendant, Mr. Taylor, was likewise
making copious notes during the trial proceedings and sharing those
matters with his attorneys. Furthermore, we previously issued a
Memorandum on this very subject, under date of December 23, 2004,
wherein we stated:
“. . .
We will begin by noting that Defendant Taylor is generally correct in his assertion that the Court has the
power to grant an extension of time for the filing of posttrial matters. See, Commonwealth v. Horst, 481 A.2d 677
(Pa. Super. 1984). However, in the case sub judice, the
Defendant is requesting an extension of time for the
478 (2006)]
primary, if not sole purpose of reviewing the trial transcripts. Significant case precedent has been previously
established in this 12th Judicial District, by the
Honorable Joseph H. Kleinfelter, President Judge, in a
published Formal Opinion, wherein it was clearly and
firmly established that trial transcripts will not be prepared and distributed to determine what, if any, additional issues will be raised in an appeal. Commonwealth v.
Bordner, 121 Dauph. 211, 213 (Dauph. Co. 2002). As
was noted in Bordner, it is the trial responsibility of all
counsels to carefully note throughout the course of proceedings where a trial error occurred, or where and how
the evidence was so insufficient that it could not possibly
support the verdict(s). Bordner, at 213. Additionally, and
of particular note in this case, Defendant Taylor was not
only represented by a well-qualified and experienced
lead trial counsel, Attorney McShane, but he (Taylor)
also had the significant additional benefit of having a cocounsel, Erin M. Zimmerer, Esquire, an Associate
Attorney from the McShane Law Firm, plus an extremely
experienced private investigator, Stanley “Skip”
Gochenour, present in court throughout the entire trial.
The Court noted that all counsels and the investigators in
this matter were carefully taking notes throughout the
entire proceeding.
In the case sub judice, as was already articulated,
Defendant Taylor was vigorously well-represented by
Attorney McShane. Attorney McShane was directly and
fully involved with Defendant Taylor throughout all the
pre-trial proceedings and at trial. Also, Attorney
Zimmerer and Investigator Gouchenour were also
involved in a significant portion of the pre-trial proceedings and the trial itself. It is a fundamental matter of the
practice of law in all these types of proceedings, that an
attorney must take careful and particular notes of all pertinent matters, especially those matters concerning issues
where counsels felt that the evidence fell short and/or
where a possible trial error took place. Knowing the professional expertise and intensity with which Defendant
Taylor’s counsels and investigator represented his
(Taylor’s) interests in this entire case, we would be
507
508
[122 Dauph.
astounded if such note taking responsibility fell short of
the expected mark in any respect.
As President Judge Kleinfelter appropriately noted in
his binding Opinion in Bordner, it is NOT the purpose of
the preparation of a trial transcript to provide a party
with an additional source of possible issues to present to
the Court in post-trial proceedings. Rather, a trial transcript should only be prepared where, after the party has
properly articulated a non-frivolous basis for post-trial
relief, which writing must contain a definitive and clearly articulated explanation of “where the evidence was
insufficient,” see, Bordner, at 213, that we should expend
significant public resources to prepare such a trial transcript.
While we can certainly appreciate the possible inconvenience that not having a trial transcript might present
to Defendant Taylor and his counsels, given the precedent established by Bordner, and the fundamental purpose of such a transcript, we are constrained to deny the
request.
. . .”
We further note that there is no provision of law that requires a trial
court to provide trial transcripts to a defendant to prepare post-trial
motions. Rule 720 (B) (2) (c) of the Pennsylvania Rules of Criminal
Procedure states, “If the grounds asserted in the post-sentence motion do
not require a transcript, neither the briefs nor hearing nor argument on
the post-sentence motion shall be delayed for transcript preparation.”
Pa.R.Cr. P. 720 (B) (2) (c).
The Comment to Pa.R.Cr.P. 720 (B) (2) (c) states, “Under paragraph
(B) (2) (c), the judge, in consultation with defense counsel and the attorney for the Commonwealth, should determine what, if any, portions of
the notes of testimony must be transcribed so that the post-sentence
motion can be resolved.” Comment to Pa.R.Cr.P. 720 (B) (2) (c), emphasis added. This Comment clearly shows that it is at the discretion of the
trial judge to determine if a post-sentence motion requires a transcript.
Defendant Taylor claims that it was impossible for him to properly
argue a Weight of the Evidence claim without having access to the trial
transcripts. He claims that the testimony was too voluminous for him to
recall the issues to properly make his argument.
478 (2006)]
509
We disagree with the Defendant’s claim. For example, one of the
Defendant’s claims is that Ms. Rose Shroy misidentified the clothing
worn by the Victim. This is an issue that the Defense Attorney can
remember and on which he can appeal without requiring the exact words
of Ms. Shroy.
We do not deny that there may be a situation where it is proper to
grant counsel the notes of testimony to help him (counsel) prepare posttrial motions. An example of such a case was mentioned above, where
the appellate attorney was not present at the trial. Another example is a
situation where the exact words may be at issue in a trial. For example,
there could be a case where a Defendant is charged with threatening a
victim. In that circumstance, the exact words that were used by the
defendant may be at issue and may need to be transcribed. However,
neither of these situations are relevant to the case at bar.
While we acknowledge that it may be somewhat easier to file posttrial motions with the benefit of transcripts, it is not necessary, nor is it
mandated by law. Therefore, we find that the Defendant’s appeal on the
basis that we failed to provide him the trial transcripts to assist him in
filing his post-trial motions is without merit.3
ISSUED AT HARRISBURG, this 19th day of January, 2006.
_______o_______
3. Of course, it should be noted that the full trial transcript was prepared, in due course,
as part of the appellate process, and was made available to Defendant’s trial counsel for
use in advancing the Defendant’s appeal, has been filed of record, and has also been transmitted to the Superior Court.
THIRD PUBLICATION
Estate Notices
ESTATE OF JOSHUA N. BECK, late of
Penbrook Borough, Dauphin County, Pennsylvania (died May 17, 2005). Adminisratrix:
Nancy D. Beck, 40 South 24th Street, Harrisburg,
PA 17103. Attorney: Kent H. Patterson, Esq., 221
m17-m31
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Dauphin County, Pennsylvania. Co-Executrices:
Susan Brightbill and Cheryl Caplan. Attorney:
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Pennsylvania.
m31
Certificate of Authority for a foreign business corporation was filed in the Department
of State of the Commonwealth of Pennsylvania for BRENTWOOD REINSURANCE
INTERMEDIARIES, INC. on February 8,
2006. The address of its principal office under the
laws of the jurisdiction in which it is incorporated is 104 Continental Place, Suite 200,
Brentwood, Tennessee 37027. The registered
office for this business is: Nauman, Smith,
Shissler & Hall, LLP, Dauphin County,
Pennsylvania. The corporation is filed in compliance with the requirements of the applicable provisions of 15 Pa.C.S. 4124.
m31
State for G-FORCE-EVENTS, INC., a corporation organized under the Pennsylvania Business
Corporation Law of 1988.
m31
FIRST PUBLICATION
Fictitious Notices
Application for Registration of a fictitious name,
TOTAL TYPE, for the conduct of business in
Dauphin County, Pennsylvania, with the principal place of business being 3847 Rt. 25,
Elizabethville, PA 17023, was made to the
Department of State of the Commonwealth of
Pennsylvania at Harrisburg, Pennsylvania on the
24th day of August, 2005 pursuant to the Act of
Assembly of December 16, 1982, Act 295. The
name and address of the person owning or interested in the said business is: Mark Davis, 3323
Rt. 25, Millersburg, PA 17061.
m31
CONNIE COHEN
Affordable Business Services
830 Rising Sun Lane
Millersburg, PA 17061
FIRST PUBLICATION
Miscellaneous Notices
IN THE COURT OF COMMON PLEAS
OF DAUPHIN COUNTY
PENNSYLVANIA
NOTICE UNDER RULE 2958.1
OF JUDGMENT
IN EXECUTION THEREON
NOTICE OF DEFENDANT’S RIGHTS TO
ALBERT K. FAKE, JR.
No. 2005 NT 3670
MID PENN BANK, Plaintiff
vs.
ALBERT K. FAKE, JR., Defendant
TO: Albert K. Fake, Jr., Defendant
322 South 16th Street
Judgment in the amount of $46,099.88 plus
continuing interest from November 8, 2005, at a
rate of $8.98 per diem, continuing late charges,
costs, and continuing attorneys fees, has been
entered against you and in favor of Plaintiff with-
out any prior notice or hearing based on a
Confession of Judgment contained in a written
agreement or other paper allegedly signed by
you. The Sheriff may take your money or other
property to pay the judgment at any time after
thirty (30) days after the date on which this
Notice is served on you.
YOU MAY HAVE LEGAL RIGHTS to defeat
the Judgment or to prevent your money or property from being taken.
YOU MUST FILE A PETITION SEEKING
RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30)
DAYS AFTER THE DATE ON WHICH THIS
NOTICE IS SERVED ON YOU OR YOU MAY
LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS NOTICE TO
YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, OR CANNOT AFFORD
ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION
ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A
LAWYER, THIS OFFICE MAY BE ABLE TO
ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS
AT A REDUCED FEE OR NO FEE.
DAUPHIN COUNTY
LAWYER REFERRAL SERVICE
(717) 232-7536
m31
OF DAUPHIN COUNTY
PENNSYLVANIA
CIVIL ACTION – LAW
CIVIL DIVISION
No. 2006-CV-159
NOTICE OF ACTION IN
MORTGAGE FORECLOSURE
WELLS FARGO BANK, N.A., AS
TRUSTEE FOR MORGAN STANLEY
DEAN WITTER CAPITAL I INC. TRUST
2002-OP1 MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2002-OP1,
Plaintiff
vs.
OLIVER M. TAYLOR, Defendant
OF DAUPHIN COUNTY
PENNSYLVANIA
FIRST PUBLICATION
NOTICE
No. 2005-CV-4467-MF
TO: OLIVER M. TAYLOR
YOU ARE HEREBY NOTIFIED that on JANUARY 13, 2006, Plaintiff, WELLS FARGO
BANK, N.A., AS TRUSTEE FOR MORGAN
STANLEY DEAN WITTER CAPITAL I INC.
TRUST 2002-OP1 MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2002OP1, filed a Mortgage Foreclosure Complaint
endorsed with a Notice to Defend, against you in
the Court of Common Pleas of Dauphin County
Pennsylvania, docketed to No. 2006-CV-159.
Wherein Plaintiff seeks to foreclose on the mortgage secured on your property located at 2140
NORTH 7th STREET, HARRISBURG, PA
17110 whereupon your property would be sold
by the Sheriff of Dauphin County.
YOU ARE HEREBY NOTIFIED to plead to
the above referenced Complaint on or before
twenty (20) days from the date of this publication
or a Judgment will be entered against you.
NOTICE
IF YOU WISH TO DEFEND, you must enter
a written appearance personally or by attorney
and file your defenses or objections in writing
with the court. You are warned that if you fail to
do so the case may proceed without you and a
judgment may be entered against you without
further notice for the relief requested by the
plaintiff. You may lose money or property or
other rights important to you.
HAVE A LAWYER, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A
LAWYER, THIS OFFICE MAY BE ABLE TO
ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS
AT A REDUCED FEE OR NO FEE.
DAUPHIN COUNTY
(717) 232-7536
m31
NOTICE OF ACTION IN
MORTGAGE FORECLOSURE
SUNTRUST MORTGAGE, INC., Plaintiff
vs.
RICHARD A. BORDNER, Defendant
NOTICE
TO: RICHARD A. BORDNER
NOTICE OF SHERIFF’S SALE
OF REAL PROPERTY
TAKE NOTICE that the real estate located at
219 LOPAX ROAD, HARRISBURG, PA 17112
is scheduled to be sold at Sheriff’s Sale on
Thursday, JULY 13, 2006 at 10:00 A.M.,
Dauphin County Administration Building, 4th
Floor,
Commissioners
Hearing
Room,
Harrisburg, PA, to enforce the Court Judgment of
$94,270.61, obtained by SUNTRUST MORTGAGE, INC. (the mortgagee).
ALL THAT CERTAIN lot or piece of ground
with improvements thereon erected, situate in
Lower Paxton Township, Dauphin County,
Pennsylvania, bounded and described in accordance with a survey made by Herbert Associates,
Inc., dated November 14, 1974, as follows, to
wit:
BEGINNING at a point, said point being on
the dedicated eastern right-of-way line of Lopax
Road a distance of 283.02 feet in a northerly
direction from the intersection of the dedicated
northern right-of-way line of Heatherfield Way
and the dedicated eastern right-of-way line of
Lopax Road; thence along the dedicated eastern
right-of-way line of Lopax Road N 37 degrees 56
minutes 41 seconds W, a distance of 86.00 feet to
a point; theme along Lot 18 N 52 degrees 03 minutes 19 seconds E, a distance of 105.00 feet to a
point; thence along P.R.D. Common Area No. 3 S
37 degrees 56 minutes 41 seconds E, a distance of
86.00 feet to a point; thence along Lot 20 S 52
degrees 03 minutes 19 seconds W, a distance of
105.00 feet to a point, said point being the point
of BEGINNING.
SAID parcel containing 9030.00 square feet, or
0.2073 acres.
FIRST PUBLICATION
BEING Lot 19 of Heatherfield Phase I as
recorded in Plan Book T, Volume 2, Page 15A.
Also being known as 219 Lopax Road, Lower
Paxton
Township,
Dauphin
County,
Pennsylvania.
BEING the same premises which Heatherfield
Homes Company, a Pennsylvania Corporation,
by its Deed dated July 18, 1979 and recorded in
the Office of the Recorder of Deeds of Dauphin
County, Pennsylvania in Record Book 51, Page
358, granted and conveyed onto Kathryn N.
Snyder, a single woman.
BEING Premises 219 LOPAX ROAD, HARRISBURG, PA 17112.
IMPROVEMENTS consist of residential
property.
SOLD as the property of RICHARD A.
BORDNER.
CONDITIONS OF SALE: THE HIGHEST
AND BEST BIDDER SHALL BE THE BUYER.
TERMS: The purchaser will be required to pay
the full amount of his bid by TWO O’CLOCK
p.m. on the day of the sale, and if complied with,
a deed will be tendered by the Sheriff at the next
Court of Common Pleas for Dauphin County,
conveying to the purchaser all the right, title,
interest and claim which said defendant has in
and to said property at the time of levying the
same. ALTHOUGH NOT PART OF THE MINIMUM BID, PROPERTY SOLD FOR MINIMUM BID DOES NOT DISCHARGE DELINQUENT AND/OR OUTSTANDING TAXES
AND THE PURCHASER WILL BE RESPONSIBLE FOR SAME. If above conditions be not
complied with on the part of the Purchaser, the
property will again be offered for sale by the
Sheriff at THREE O’CLOCK p.m. on the same
day. The said purchaser will be held liable for the
deficiencies and additional cost of said sale.
TAKE NOTICE that a Schedule of
Distribution will be filed by the Sheriff on
AUGUST 14, 2006, distribution we be made in
accordance with the schedule unless exceptions
are filed within ten (10) days thereto.
m31
DANIEL G. SCHMIEG, Esq.
Suite 1400, One Penn Center
1617 John F. Kennedy Boulevard
Philadelphia, PA 19103-1814
(215) 563-7000
OF DAUPHIN COUNTY
PENNSYLVANIA
No. 2006 CU 885 QT
W. DEAN WILLIAMS, Plaintiff
vs.
ALTERNATIVE FINANCIAL CORP. and
AUDREY E. BORTZ, Trustee, Defendant(s)
NOTICE
To:
Alternative Financial Corp. and
Audrey E. Bortz, Trustee
YOU ARE HEREBY NOTIFIED that you
have been named as Defendants in a civil action
instituted by Plaintiff, W. Dean Williams, against
you in this Court. Plaintiff alleges in the
Complaint in this action that he is the owner of
property at 328 S. 17th Street in the City of
Harrisburg, Dauphin County, Pennsylvania, that
a mortgage was placed on this property in favor
of a mortgagee, Royal Mortgage, Inc., that
assignment of the mortgagee’s interests were subsequently assigned to Alternative Financial Corp.
and Audrey E. Bortz, Trustee, that there are no
outstanding or unpaid obligations under the mortgage but that the owner has been unable to locate
you to have your interests satisfied of record.
YOU ARE HEREBY NOTIFIED to plead to
the Complaint in this case, of which the
foregoing is a brief summary, within twenty
(20) days from the date of this Notice.
IF YOU WISH TO DEFEND, you must enter
a written appearance personally or by attorney
and file your defenses or objections in writing
with the Court. You are warned that, if you fail to
do so, the case may proceed without you and a
judgment may be entered against you without
further notice for the relief requested by the
Plaintiff. You may lose money or property or
other rights important to you.
HAVE A LAWYER OR CANNOT AFFORD
ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUR WHERE
YOU CAN GET LEGAL HELP.
m31
FIRST PUBLICATION
SECOND PUBLICATION
DAUPHIN COUNTY
(717) 232-7536
OF LANCASTER COUNTY
PENNSYLVANIA
ORPHANS’ COURT DIVISION
ALBERT J. HAJJAR, Esq.
1300 Market Street
Suite 3, Lower Level
Lemoyne, PA 17043
(717) 761-4115
No. OR 2006-0391
IN RE:
ADOPTION OF:
BABY GIRL BAILEY
FEMALE MINOR CHILD
NOTICE OF CONFIRMATION
OF CONSENT HEARING
TO: LEANNE MICHELLE BAILEY:
YOU ARE HEREBY NOTIFIED that a
Petition has been filed asking the Court to put an
end to all rights you have to your child, BABY
GIRL BAILEY. The Court has set a hearing to
consider ending your rights to your child. That
hearing will be held on the 20th day of April,
2006, at 10:20 o’clock a.m. in Courtroom No. 6
of the Lancaster County Courthouse, 50 North
Duke Street, Lancaster, Pennsylvania. You are
warned that even if you fail to appear at the
scheduled hearing, the hearing will go on without
you, and your rights to your child may be ended
by the Court without your being present. You
have a right to be represented at the hearing by a
lawyer. You should take this notice to your
lawyer at once. If you do not have a lawyer or
cannot afford one, go or telephone the office set
forth below to find out where you can get legal
help.
COURT ADMINISTRATOR
COURT ADMINISTRATOR’S OFFICE
Lancaster County Courthouse
50 North Duke Street
Lancaster, Pennsylvania 17602
Telephone Number (717) 299-8041
m24-m31
YOUNG & YOUNG
44 South Main Street
Manheim, PA 17545
INCORPORATION AND
LIMITED LIABILITY COMPANY
FORMATION
CONVENIENT, COURTEOUS SAME DAY SERVICE
PREPARATION AND FILING SERVICES IN ALL STATES
CORPORATION OUTFITS AND
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SAME DAY SHIPMENT OF YOUR ORDER
CORPORATION, LIMITED LIABILITY COMPANY
AND UCC FORMS
CORPORATE AND UCC, LIEN AND
JUDGMENT SERVICES
M. BURRKEIM COMPANY
SERVING THE LEGAL PROFESSIONAL SINCE 1931
PHONE: (800) 533-8113
FAX: (888) 977-9386
2021 ARCH STREET, PHILADELPHIA, PA 19103
WWW.MBURRKEIM.COM
Alcohol or Other Drugs
a Problem?
Help is Only
a Phone Call Away
LAWYERS CONFIDENTIAL HELP-LINE
1-888-999-1941
24 Hours Confidential
A Service Provided by
Lawyers Concerned for
REAL ESTATE APPRAISAL
Representation, Consultation and Expert Testimony
MARK W. HECKMAN
Certified General Appraiser
Mark Heckman Real Estate Appraisers
1309 Bridge Street,
New Cumberland, PA 17070
[email protected]
Valuation Specialists of
Commercial, Residential, Industrial,
Investment and Development Land
Real Estate since 1986
We offer:
High Quality Service and Thorough Preparation
Experience in Litigation and Legal Matters
A History of, and Reputation for Successful Results
(717) 774-7202
Vol. 122
I
CUMULATIVE TABLE OF CASES
American Postal Worker’s Union, AFL/CIO,
Keystone Area Local, Lemnah v. . . . . . . . . . . . . . . . . . . . . . . 183
Appeal of Allegheny Airlines, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 51
Atwood v. Power Systems Electric, Inc., et al. . . . . . . . . . . . . . . . 458
Bell v. Stepping Stone, Inc., et al. . . . . . . . . . . . . . . . . . . . . . . . . .
Bi-Nasr, Ramadan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Borough of Gratz, et al., Morgan v. . . . . . . . . . . . . . . . . . . . . . . . .
Boulware v. Yingst . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Buck, et al., Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
107
116
443
166
453
Capital Area Intermediate Unit, et al., DeRita v. . . . . . . . . . . . . . .
Capital City Cab Service, Inc. v. Susquehanna Area
Regional Airport Authority . . . . . . . . . . . . . . . . . . . . . . . . . .
Capozzi & Associates, P.C. v. County of Dauphin, et al. . . . . . . . .
Carrier v. Ingram, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Druce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Elliott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Fox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
previous opinion page number . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Gladden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Mitchell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth, Nethken v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Saterstad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Steele . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Varellas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. White . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commonwealth v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
County of Dauphin, et al., Capozzi & Associates, P.C. v. . . . . . . .
Cremation Society of Pennsylvania, Inc., et al.,
Pennsylvania Funeral Directors Association v. . . . . . . . . . . .
Cromwell, Rummel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
193
387
1
153
170
391
227
223
68
216
212
353
287
344
23
478
75
47
92
387
433
406
II
Vol. 122
Cumulative Table of Cases
Dauphin County Board of Assessment Appeals,
Pennsylvania National Turf Club, Inc. v. . . . . . . . . . . . . . . . .
Dauphin County General Authority,
Program Administration Services, Inc. v. . . . . . . . . . . . . . . . .
Dauphin Deposit Bank & Trust Co., et al. v. Good, Good v. . . . . .
Davis, et al., Tyco Electronics Corp. v. . . . . . . . . . . . . . . . . . . . . .
DeArmitt, et al., Hansel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DeRita v. Capital Area Intermediate Unit, et al. . . . . . . . . . . . . . . .
Druce, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Durbin v. Durbin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Durbin, Durbin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
36
244
223
219
4
153
259
259
Elliott, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ether v. Ether . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ether, Ether v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Evans, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
170
238
234
238
234
391
Finney v. Nastacio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
First Mutual Corporation v. Kreiger, et al. . . . . . . . . . . . . . . . . . . .
Fox, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
141
236
232
227
223
56
Gladden, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Good, Good v. Dauphin Deposit Bank & Trust Co., et al. v. . . . . 36
Good v. Dauphin Deposit Bank & Trust Co., et al. v. Good . . . . . 36
Hansel v. DeArmitt, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Harrisburg Area School District, Wells v. . . . . . . . . . . . . . . . . . . .
Harrisburg Development, L.P., et al. v.
Lower Paxton Township, et al. . . . . . . . . . . . . . . . . . . . . . . . .
Heck, Loney-Heck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hoover, Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
223
219
291
311
276
464
Vol. 122
III
Howells v. Howells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Howells, Howells v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
I. A. Construction Corp., et al., PennDOT v. . . . . . . . . . . . . . . . . . 430
Ingram, et al., Carrier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
In re: Tax Sale of 2002 Under the
Real Estate Tax Sale Law of 1947 . . . . . . . . . . . . . . . . . . . . . 134
Jackson v. Buck, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Jackson v. Tate; King v. Tate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Johnson, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
453
86
216
212
Kerr, Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
King v. Tate; Jackson v. Tate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Kreiger, et al., First Mutual Corporation v. . . . . . . . . . . . . . . . . . .
469
86
236
232
Lemnah v. American Postal Worker’s Union,
AFL/CIO, Keystone Area Local . . . . . . . . . . . . . . . . . . . . . . .
Lenzi, et al., Pennock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Loney-Heck v. Heck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lower Paxton Township, et al.,
Harrisburg Development, L.P., et al. v. . . . . . . . . . . . . . . . . . .
Manning v. Manning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Manning, Manning v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
McNaughton v. McNaughton . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
McNaughton, McNaughton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Meredith, Perrotti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miller v. Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miller v. Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miller, Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miller, Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
183
122
276
311
327
327
367
367
159
207
203
235
231
207
203
235
231
IV
Vol. 122
Miller v. Twin Arches, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miller v. York Newspapers, Inc., et al. . . . . . . . . . . . . . . . . . . . . . .
Milton Hershey Medical Center, et al., Yang, et al. v. . . . . . . . . .
Mitchell, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Morgan v. Borough of Gratz, et al. . . . . . . . . . . . . . . . . . . . . . . . . .
378
248
282
353
443
Nastacio, Finney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Nationwide Insurance Company, Renyo v. . . . . . . . . . . . . . . . . . . 19
Nethken v. Commonwealth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Packer v. Pinnacle Health System . . . . . . . . . . . . . . . . . . . . . . . . . .
Pagan, et al., UBA Fire, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . .
PennDOT v. I. A. Construction Corp., et al. . . . . . . . . . . . . . . . . .
PennDOT, et al., Whitsel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pennock v. Lenzi, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pennsylvania Funeral Directors Association v.
Cremation Society of Pennsylvania, Inc., et al. . . . . . . . . . . . .
Pennsylvania National Turf Club, Inc. v. Dauphin County
Board of Assessment Appeals . . . . . . . . . . . . . . . . . . . . . . . . .
Perrotti v. Meredith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Peterson v. State Farm Fire & Casualty Company, et al. . . . . . . . .
Pierce v. Pierce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pierce, Pierce v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pinnacle Health System, Packer v. . . . . . . . . . . . . . . . . . . . . . . . . .
Pitts v. Tate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Power Systems Electric, Inc., et al., Atwood v. . . . . . . . . . . . . . . .
Program Administration Services, Inc. v.
Dauphin County General Authority . . . . . . . . . . . . . . . . . . . . .
332
423
430
418
122
Ramadan v. Bi-Nasr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reimert v. Trostle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reisinger v. Reisinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reisinger, Reisinger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Renyo v. Nationwide Insurance Company . . . . . . . . . . . . . . . . . . .
Rhoads v. Rhoads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rhoads, Rhoads v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rizzutto, Saville v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rummel v. Cromwell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
116
445
476
476
19
401
401
104
406
433
56
159
449
361
361
332
437
458
26
Vol. 122
V
Saterstad, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Saville v. Rizzutto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Shaffer, Wetzel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Farm Fire & Casualty Company, et al., Peterson v. . . . . . . .
Steele, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stepping Stone, Inc., et al., Bell v. . . . . . . . . . . . . . . . . . . . . . . . .
Susquehanna Area Regional Airport Authority,
Capital City Cab Service, Inc. v. . . . . . . . . . . . . . . . . . . . . . .
344
104
411
449
23
107
Tate, Pitts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tate, Jackson; King v. Tate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Taylor, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Thompson v. Hoover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trostle, Reimert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Twin Arches, Ltd., Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tyco Electronics Corp. v. Davis, et al. . . . . . . . . . . . . . . . . . . . . . .
437
86
478
464
445
378
244
193
UBA Fire, Inc. v. Pagan, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
Varellas, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Wells v. Harrisburg Area School District . . . . . . . . . . . . . . . . . . . .
Wetzel v. Shaffer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
White, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Whitsel v. PennDOT, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Williams, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Williams v. Kerr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
291
411
47
418
92
469
Yang, et al. v. Milton Hershey Medical Center, et al. . . . . . . . . . . 282
Yingst, Boulware v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
York Newspapers, Inc., et al., Miller v. . . . . . . . . . . . . . . . . . . . . . 248
BAR ASSOCIATION PAGE
Dauphin County Bar Association
213 North Front Street • Harrisburg, PA 17101-1493
Phone: 232-7536 • Fax: 234-4582
Board of Directors
Thomas P. Gacki
President
Craig A. Longyear
Vice President
Renee Mattei Myers
Secretary
Adam M. Shienvold
Young Lawyers’ Chair
Thomas E. Brenner
President-Elect
John D. Sheridan
Treasurer
Joseph A. Curcillo, III
Past President
Robert M. Walker
Young Lawyers’ Vice Chair
William L. Adler
Randi Blackman-Teplitz
Cara A. Boyanowski
James F. Carl
Vincent L. Champion
Robert E. Chernicoff
Steven R. Dade
Helen L. Gemmill
S. Barton Gephart
James L. Goldsmith
Jonathan W. Kunkel
Royce L. Morris
Mark J. Powell
J. Michael Sheldon
David F. Tamanini
Directors
The Board of Directors of the Bar Association meets on the third Thursday of
the month at the Bar Association headquarters. Anyone wishing to attend or have
matters brought before the Board should contact the Bar Association office in
advance.
REPORTING OF ERRORS IN ADVANCE SHEET
The Bench and Bar will contribute to the accuracy in matters of detail of the
permanent edition of the Dauphin County Reporter by sending to the editor
promptly, notice of all errors appearing in this advance sheet. Inasmuch as corrections are made on a continuous basis, there can be no assurance that corrections can be made later than thirty (30) days from the date of this issue but this
should not discourage the submission of notice of errors after thirty (30) days
since they will be handled in some way if at all possible. Please send such notice
of errors to: Dauphin County Reporter, Dauphin County Bar Association, 213
North Front Street, Harrisburg, PA 17101-1493.
DAUPHIN COUNTY COURT SECTION
Motion Judge of the Month
MARCH 2006
APRIL 2006
Judge Lawrence F. CLARK, JR.
Judge Scott A. EVANS
Opinions Not Yet Reported
January 30, 2006 – Kleinfelter, J., Columbia Casualty Company v. Coregis Insurance
Company, City of Harrisburg (No. 1344 CV 2002)
BAR ASSOCIATION PAGE – Continued
MISCELLANEOUS SECTION
Opinions Not Yet Reported
February 3, 2006 – Kleinfelter, J., Rohrer v. Connelly, et al. (No. 1998 CV 5498)
February 3, 2006 – Kleinfelter, J., Des-Ogugua v. For Sale By Owner Real Estate,
Inc., et al. (No. 3633 CV 1999)
February 7, 2006 – Kleinfelter, J., Lawrence v. Bordner (No. 2005 CV 4273 AB)
March 3, 2006 – Turgeon, J., Ramer v. Ramer (No. 2005 CV 976)
_______o_______
LEGAL SECRETARY — for mid-sized Harrisburg law firm. Challenging
position for experienced person with superior secretarial and organizational skills.
Knowledge of Microsoft Word, Excel and Powerpoint helpful but not required. Must
possess ability to interact well with clients, work independently, and work well under
pressure. Excellent benefit package, 401(k), etc. Salary commensurate with
experience. Send resume with cover letter to Lisa Conway, 2080 Linglestown Road,
Suite 201, Harrisburg, PA 17110.
m17-a7
ATTORNEY WANTED — 5 years experience in Employment Law
(employer and employee). Business experience or business law also a plus. All
inquires kept confidential. Please respond to: Dauphin County Reporter, Attn: G, 213
N. Front Street, Harrisburg, PA 17101.
m17-m31
LEGAL ASSISTANT — Immediate opening for experienced legal assistant
for small Harrisburg law firm. Excellent word processing and research skills
required. Parking provided, competitive salary and benefits available. Fax resumé
attention RSM (717) 561-1616.
m31-a14
TRIAL AHEAD?
CONSIDER AN ALTERNATE ROUTE:
Dauphin County Bar Association
Civil Dispute Resolution Program
Call (717) 232-7536 for details
KURZENKNABE PRESS
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Dauphin County Reporter - Dcba

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