PITTSBURGH LEGAL JOURNAL

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PITTSBURGH

LEGAL

J

OURNAL

O P I N I O N S

a l l e g h e n y c o u n t y c o u r t o f c o m m o n p l e a s

Howard Trail, individually and as Administrator of the Estate of Jessica Trail, deceased, Sue Trail, Tammie Grice, individually and as Administratrix of the Estate of William Grice, deceased, Michael Trail, and Amanda Delval v.

Timothy Lesko and Pittsburgh Lodge No. 11 Benevolent and Protective Order of Elks, a Pennsylvania Corporation,

t/d/b/a B.P.O.E. Pittsburgh Lodge 11, Wettick, J. ...Page 433

Personal Injury—Discovery—Facebook

Jarrod D. Shaw v. Township of Upper St. Clair

Zoning Hearing Board v. 1800 Washington Road Associates Jarrod D. Shaw and Moira E. Cain-Mannix v.

Township of Upper St. Clair v. 1800 Washington Road Associates,

James, J. ...Page 438 Zoning—Text Amendment—Jurisdiction—Timeliness

E.S. Management v. Timothy Kolman, et al., Friedman, J. ...Page 439

Landlord/Tenant—Collection Costs (Attorney Fees)— Security Deposit—Guarantors

Commonwealth of Pennsylvania v.

Stanley Cotton, Machen, J. ...Page 440 Criminal Appeal—PCRA—3rd Petition—

After Discovered Evidence—Recantation

Commonwealth of Pennsylvania v.

Ricco Turner, Borkowski, J. ...Page 443 Criminal Appeal—Homicide—Sufficiency—

Expert Psychiatric Testimony—Diminished Capacity

Commonwealth of Pennsylvania v.

Jonathan Simmons, Borkowski, J. ...Page 445 Criminal Appeal—Sufficiency—Robbery—

Waiver—Jury Instruction—Adverse Inference— Failure to Object

Commonwealth of Pennsylvania v.

Thomas Albert, Borkowski, J. ...Page 449 Criminal Appeal—Sufficiency—SVP—

Waiver—Timing of SVP Hearing

Commonwealth of Pennsylvania v.

Terrance Andrews, Borkowski, J. ...Page 450 Criminal Appeal—Sufficiency—Homicide—

Weight of the Evidence—Diminished Capacity— Malice—Photographs—Expert Testimony

Commonwealth of Pennsylvania v.

Dayron Malloy, Borkowski, J. ...Page 454 Criminal Appeal—Homicide—Sufficiency—

Conspiracy—Hearsay—Waiver—Accomplice Liability— Missing Witness—Continuance—Mistrial

Commonwealth of Pennsylvania v.

Jennifer Anthony, Borkowski, J. ...Page 459 Criminal Appeal—Restitution—Untimely Modification—

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The Pittsburgh Legal Journal Opinionsare published fortnightly by the

Allegheny County Bar Association 400 Koppers Building

Pittsburgh, Pennsylvania 15219 412-261-6255

www.acba.org

©Allegheny County Bar Association 2012 Circulation 6,535

PLJ E

DITORIAL

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TAFF

Hal D. Coffey ...Editor-in-Chief and Chairman Jennifer A. Pulice ...Editor David A. Blaner ...Supervising Editor Sharon Antill ...Typesetter/Layout

Opinions selected for publication are based upon precedential value or clarification of the law. Opinions are selected by the Opinion Editor and/or committees in a spe-cific practice area. An opinion may also be published upon the specific request of a judge.

Opinions deemed appropriate for publication are not disqualified because of the identity, profession or communi-ty status of the litigant. All opinions submitted to the PLJ are printed as they are received and will only be disqualified or altered by Order of Court.

O

PINIONS

The Pittsburgh Legal Journal provides the ACBA members with timely, precedent-setting, full text opinions, from various divisions of the Court of Common Pleas. These opinions can be viewed in a searchable format on the ACBA website, www.acba.org.

section EditorS

Civil litigation opinions committee

Cecilia Dickson Austin Henry Harry Kunselman Dennis Kusturiss Bethann Lloyd Bryan Neft Civil Litigation: Cecilia Dickson

Criminal Litigation: Victoria Vidt Family Division: Reid Roberts Probate and Trust: Mark Reardon Real Property: Ken Yarsky

Criminal litigation opinions committee

Marc Daffner Patrick Nightingale Mark Fiorilli James Paulick Deputy D.A. Dan Fitzsimmons Melissa Shenkel Bill Kaczynski Dan Spanovich Anne Marie Mancuso Victoria Vidt

family law opinions committee

Reid B. Roberts, Chair Sophia P. Paul Mark Alberts David S. Pollock Christine Gale Sharon M. Profeta Mark Greenblatt Hilary A. Spatz Margaret P. Joy Mike Steger Patricia G. Miller William L. Steiner Sally R. Miller

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Howard Trail, individually and as Administrator

of the Estate of Jessica Trail, deceased,

Sue Trail, Tammie Grice, individually and as Administratrix

of the Estate of William Grice, deceased,

Michael Trail, and Amanda Delval v.

Timothy Lesko and Pittsburgh Lodge No. 11 Benevolent and Protective Order of Elks,

a Pennsylvania Corporation, t/d/b/a B.P.O.E. Pittsburgh Lodge 11

Personal Injury—Discovery—Facebook

No. GD-10-017249. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. Wettick, J.—July 3, 2012.

OPINION and ORDER of COURT

I.

The subjects of this Opinion and Order of Court are the motion of Michael Trail seeking access to defendant Timothy Lesko’s Facebookprofile and defendant’s motion seeking access to plaintiff Michael Trail’s Facebookprofile.

I am responsible for discovery disputes in General Docket cases that are not on a trial list. Within the past year, defendants are far more frequently presenting motions seeking access to the plaintiffs’ Facebookprofiles.1

Usually, I have disposed of these motions through rulings from the Bench (frequently acceptable to both parties).

In order that I may provide a context for the arguments presented by counsel and the implications of my rulings involving the discovery of Facebookcontent, I have included, at Part II of this Opinion, a brief discussion of what Facebookis, how it is used, and what information is available to its users.

In Part III of this Opinion I identify and discuss the Pennsylvania cases in which parties have requested access to information on Facebook.2

In Part IV of this Opinion I discuss selected opinions of other state courts and federal courts pertaining to the discovery of Facebookcontent.

In Part V of this Opinion I deny plaintiff ’s and defendant’s motions, which are the subject of this Opinion and Order of Court, because of the protections that Pa.R.C.P. No. 4011(b) affords Facebookcontent.

II.

Social networking sites3are web-based services that allow individuals to construct a public or semi-public profile within a

bounded system, choose from a list of other service users with whom they intend to share a connection, and navigate among those connections and those made by others within the system. Users create a unique user identity, establish relationships with others who have done the same, join communities of users who share connections, and exchange information among one another.4

Social networking sites like Facebookutilize “Web 2.0” technology, which allows users to create and edit content on a web page while interacting with other users simultaneously in real time.5With respect to Facebook, an individual initially creates a “profile,”

which functions as a personal web page and may include, at the user’s discretion, numerous photos and a vast array of personal information including age, employment, education, religious and political views and various recreational interests. Once a profile is established, the user is encouraged to connect with other Facebookusers - so-called “Friends” - with whom they exchange limited access to their respective profile pages and the ability to post pictures, comments and other content thereon.6Each time

content is posted directly to a user’s profile page, the recipient user has the administrative capability to delete the offered content from his or her own profile.

In a departure from the control generally afforded a user over the content of his or her own profile page, Facebookemploys a system whereby users may “tag” others in photographs and other content, thereby establishing a link from that content to the tagged user’s profile page.7For example, User A uploads a photo to his or her own profile page of several individuals including

User B. User A “tags” User B in the photo. Once tagged, the photo on User A’s profile page will contain a link directing individuals to User B’s profile.8While User B’s profile will indicate that he or she has been tagged in User A’s photo, and the tagged photo will

unwittingly appear among the pictures that User B has selected for publication on his or her own profile page.9

Finally, any time any user posts content to their own or their Friends’ profile pages, this information appears in the user’s and user’s Friends’ “news feeds.” The news feed provides a constantly updating display of activity among the user and the user’s Friends. From this page, the user will be notified any time a Friend is tagged in an item, posts a status update or a news story, or comments on another’s content.10

The sheer volume of potentially relevant information is staggering.11In the aggregate, users collectively update their “statuses”

(a short indication of what’s on a user’s mind at a given moment, posted to the their own profile page) more than 60 million times each day. Individual users create on average 90 pieces of content every month (photos, status updates, comments or other posts) with fully half of all Facebookusers accessing their individual profiles on a given day.12Facebookusers collectively upload 300

million photos to the site each day.13

Not all information posted on Facebookby a user is universally public, viewable by anyone with an Internet connection or even all other Facebooksubscribers. By adjusting Facebook’s default privacy settings, each user is empowered to limit the classifica-tion of persons (and, in some cases, specific individuals) who are permitted access to a user’s profile page and the content con-tained therein. Although some information is always considered public and accessible to everyone,14other information is accessible

only by those people to whom the user grants access, usually limited to the user’s Friends or Friends of those Friends. Finally, users can exchange messages not unlike traditional email, which, like email, are only accessible to the sender and recipients.

III. PENNSYLVANIA CASES15

McMillen v. Hummingbird Speedway Inc., 2010 WL 4403285, No. 113-2010 CD (Jefferson C.P. Sep. 9, 2010) (Foradora, P.J.). The defendant collided with the plaintiff during the final “cool down lap” in a stock car race The plaintiff sought damages from Hummingbird, Inc., the corporate owner of the racetrack where the alleged injuries occurred. The plaintiff claimed substantial injuries including possible permanent impairment, loss and impairment of general health, strength and vitality and an ongoing

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inability to enjoy certain pleasures in life. Upon review of the publicly accessible portion of the plaintiff ’s Facebookprofile, the defendant discovered the plaintiff ’s comments about a fishing trip and his attendance, as a spectator, at another race in Florida. Thereafter, the defendant sought to compel the production of the plaintiff ’s user name and password to gain access to the private portions of the plaintiff ’s profile under the assumption that more relevant information might be contained within.

Because the public profile indicated that relevant information might be contained in the private portion showing that the plain-tiff ’s injuries were exaggerated, and because no privilege exists between mere Friends (and even if it did, any privilege was waived once the information was shared with others), the court directed the plaintiff to provide the defendant’s counsel with the login and password information on a read-only basis. No information was to be divulged to any defendants in the case unless pursuant to further order of court.

Zimmerman v. Weis Markets, Inc., 2011 WL 2065410, No. CV-09-1535 (Northumberland C.P. May 19, 2011) (Saylor, J.). The plaintiff injured his leg while operating a forklift and sought damages including lost wages, lost future earning capacity, pain and suffering, scarring and embarrassment. He claimed to have sustained permanent diminution in the ability to enjoy life’s pleasures and permanent impairment to his general health. The plaintiff ’s public Facebookprofile indicated that he enjoyed “bike stunts” and contained photographs of the plaintiff posing with a black eye and his motorcycle taken both before and after the accident. Furthermore, despite allegations that the plaintiff was embarrassed to wear shorts due to the scar which resulted from his injury, the plaintiff ’s public profile contained a photograph of the plaintiff in shorts, his scar clearly visible.

On the basis of the foregoing, publicly-available information, the court concluded that it was reasonable to infer the existence of additional relevant information within the private portions of the plaintiff ’s profile. Although the plaintiff contended that he had a reasonable expectation of privacy in this information, the court ruled that the plaintiff consented to share the information when he created the account and voluntarily posted information. Moreover, the plaintiff placed his physical condition at issue in the case, and, as a result, the defendant was entitled to conduct discovery thereon.

Although the court ordered the plaintiff to provide the defendant with all login and password information without further limita-tion, the court did note that the order should not be construed as a blanket entitlement to this type of information in all personal injury cases. Rather, the court limited its holding to requests based on some factual predicate gleaned from the publicly available pages, requiring some threshold showing that the public portions contain information that suggest additional relevant postings are likely to be found within the non-public portions. Fishing expeditions, the court noted, would not be authorized.

Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Franklin C.P. Nov. 8, 2011) (Walsh, J.). The plaintiff was injured when the motorcycle on which she was a passenger collided with the defendant’s van. As a result of the accident, the plaintiff claimed seri-ous and permanent physical and mental injuries, pain and suffering. During her deposition, the plaintiff testified that she had an active Facebookprofile and had accessed it as recently as the previous evening, but refused to provide defense counsel with her login and password information. In the defendant’s motion to compel, the defendant argued that the plaintiff ’s profile was recently public and that certain posts contradicted the plaintiff ’s severe injury claims. Specifically, the defendant claimed that the plaintiff had posted “several photographs that show her enjoying life with her family and a status update about going to the gym.”

As a threshold matter, the court found the information sought clearly relevant and discoverable in light of the plaintiff ’s testi-mony that she suffers from depression and uses a cane to walk as such information might prove that the plaintiff ’s injuries were exaggerated. Furthermore, because non-public information posted on Facebookis shared with third parties, there is no reasonable privacy expectation. Indeed, the court reasoned, the very purpose of Facebookis to share information with others, which purpose abrogates any claim of privilege.16

Like the court in Zimmerman, supra, the Largentcourt limited its holding to those instances whereby the party seeking discovery is able to articulate in good faith that further discovery will lead to relevant information. On the foregoing bases, the court ordered the plaintiff to provide the defendant with her login and password for a period of 21 days, after which time the plaintiff would be permitted to change her password to preclude any further access to her account by defense counsel.

Arcq v. Fields, No. 2008-2430 (Franklin C.P. Dec. 2011) (Herman, J.). The plaintiff was injured in an automobile accident and sought damages for, inter alia, continuing medical care, disfigurement and infertility. The defendant, upon learning that the plain-tiff had a Facebookaccount, requested the plaintiff ’s login and password information.

The court, noting the paucity of Pennsylvania authority, reviewed the few instances whereby the courts had granted similar requests and determined that each was predicated on a showing that the public portions of the subject profile contained some relevant information that established a gateway to the non-public pages. Thus, the court denied the defendant’s discovery request because the defendant had not articulated some reasonable, good-faith basis for believing the private profile contained relevant information. The mere fact that the plaintiff had an account was categorically insufficient to justify the discovery sought by the defendant.

Martin v. Allstate Fire & Casualty Ins. Co., Case ID 1104022438 (Phila. C.P. Dec. 13, 2011) (Manfredi, J.). The plaintiff suffered serious injuries as a pedestrian when she was struck by a passing car and sought damages for physical injury, pain, trauma, humiliation, anxiety, and mental anguish. At her deposition, the plaintiff was asked whether she had a Facebookaccount and, upon affirmation, for her password. The defendant moved to compel the login and password information, citing the plaintiff ’s lack of privilege and the absence of any reasonable expectation of privacy. The plaintiff opposed the defendant’s motion to compel on the ground that the defendant never asked how the plaintiff used the site or whether she commented on or posted photographs of her injuries. Thus, the defendant failed to make any threshold showing that the plaintiff ’s Facebookprofile might contain relevant information. The court denied the defendant’s request without amplification.

Kennedy v. Norfolk Southern Corp., Case ID 100201473 (Phila. C.P. Jan. 4, 2011) (Tereshko, J.). The plaintiff sought damages for personal injuries including loss of life’s pleasures in connection with a vehicle collision with a train. At his deposition, the plain-tiff indicated that he enjoyed shooting skeet with his children prior to the accident but was no longer able to do so. On the public portion of his Facebook profile, his interests included “shooting” (among others such as “Starbucks” and “Breast Cancer Awareness”). Although the defendant argued that the inclusion of “shooting” among his interests on his public profile was incon-sistent with his deposition testimony, the court denied the defendant’s motion without further explanation.

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alleged that his injuries limited his ability to perform his job and other daily activities, and, because he could no longer drive long distances, his ability to travel was similarly limited. The defendant learned at the plaintiff ’s deposition that the plaintiff had a Facebookpage and requested his login and password information. In support of its motion to compel, the defendant claimed that one picture available on the plaintiff ’s public page depicted the plaintiff “lounging comfortably, on a bar stool with one foot up on another barstool.” Presumably because the public content was not sufficient to impeach the plaintiff ’s claims, the court denied the defendant’s request without prejudice (or explanation) but ordered the plaintiff to refrain from deleting any content from his profile.

Piccolo v. Paterson, No. 2009-04979 (Bucks C.P. Mar. 2011) (Cepparulo, J.). The plaintiff was injured while a passenger in the defendant’s vehicle, sustaining severe lacerations to her face which required at least two surgeries and multiple subsequent laser treatments to repair the scarring. At her deposition, defense counsel asked if the plaintiff would accept his “Friend request,” thereby allowing him access to the photographs on the plaintiff ’s non-public profile on the same footing as her other “Friends.” After the plaintiff denied this request, the defendant moved for an order requesting only access to photographs. The plaintiff had already provided numerous photographs taken both before and after the accident. Furthermore, the defendant apparently failed to estab-lish a threshold need for the information or articulate any prejudice that could result from nondisclosure. The court denied the request without an accompanying opinion.

Gallagher v. Urbanovich,No. 2010-33418 (Montgomery C.P. Feb. 27, 2012) (Carpenter, J.). The plaintiff, who was assaulted dur-ing a recreational soccer game, moved to compel the defendant’s Facebooklogin and password information. Although the plaintiff did not point to anything in the defendant’s public profile to trigger access to the non-public pages, and did not appear to have any articulable expectation of what a search of the defendant’s Facebookprofile might reveal, the court, without discussion, ordered the defendant to provide the plaintiff ’s counsel with the requested information for a period of seven days after which time the plaintiff would be denied further access to the defendant’s profile.

As the foregoing cases suggest, the Courts of Common Pleas that have considered discovery requests for Facebookinformation appear to follow a consistent train of reasoning. The courts recognize the need for a threshold showing of relevance prior to discovery of any kind, and have nearly all required a party seeking discovery in these cases to articulate some facts that suggest relevant information may be contained within the non-public portions of the profile.17To this end, the courts have relied

on information contained in the publicly available portions of a user’s profile to form a basis for further discovery. IV. OTHER JURISDICTIONS

The decisions of other state and federal courts are largely in line with the Pennsylvania case law. As in Pennsylvania, courts elsewhere agree that content posted by the plaintiff on Facebookis not privileged, either because communications with Friends are not privileged or because, if the communications were privileged, such privilege was waived by sharing the content with others. Also like the Pennsylvania courts, other jurisdictions disfavor “fishing expeditions” and tend to require some factual predicate suggesting the existence of relevant information prior to ordering access to the sought-after information. See e.g. Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D.Mich. 2012) (because the publicly available information was not inconsistent with the plaintiff ’s claims, further discovery was denied as overly broad); Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., 2007 WL 119149, No. 06-cv-00788 (D.Nev. Jan. 9, 2007) (regarding email-type communications on a social networking site, because the defendant based its request for production on nothing more than suspicion or speculation as to what information might be contained within, the request was denied).

Unlike our Common Pleas Court cases, however, other jurisdictions have wrestled to establish a middle ground between the wholesale denial of the request on the one hand and the granting of unlimited access to the user’s profile on the other. Thus, some jurisdictions, when faced with these questions, fashion more narrowly tailored discovery orders and are more likely to rely on counsel to peruse the client’s profile for relevant information in the first instance.

One federal district court, faced with a request for production from a plaintiff who was claiming certain emotional damages in an employment discrimination case, defined the issue as follows:

...the main challenge in this case is not one unique to electronically stored information generally or to social network-ing sites in particular. Rather the challenge is to define appropriately broad limits - but limits nevertheless - on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties.

EEOC v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010). After concluding that the content was not shielded from discovery simply because the plaintiff had made such content private, and that such information must be produced when relevant to a claim or defense, the court ordered production on the basis that the plaintiff ’s allegations of severe emotional distress ren-dered some Facebookcontent relevant, and discovery of this magnitude is the inevitable result of alleging these sorts of injuries.18

Rather than ordering complete access to the plaintiff ’s Facebookprofile, however, the court defined a relevant period, from the time of the alleged harassment to the present, and ordered the plaintiff to provide all verbal communications (comments, status updates, group memberships, et cetera) that reveal, refer or relate to any emotion, mental state or feeling or to events that could reasonably be expected to produce significant emotion, feeling or mental state. The plaintiff was then ordered to produce only those photos depicting the plaintiff during the relevant time period, which the plaintiff posted on the plaintiff ’s profile. The court concluded that photos of the plaintiff in which she was “tagged” after being uploaded by a third-party, were not sufficiently rele-vant to warrant disclosure. Similarly, photos depicting someone other than the plaintiff would generally be considered outside the scope of the order.

Pursuant to the court’s order, the plaintiff ’s counsel would make the initial determination of relevance in producing the infor-mation, and further inquiry into what was and was not produced would be permitted at the plaintiff ’s deposition. See also Held v. Ferrellgas, Inc., 2011 WL 3896513 (D.Kan. Aug. 31, 2011) (Slip Op.) (postings from the period of alleged harassment are relevant, and privacy concerns are mitigated by the fact that the defendant only wants the information, not access to the account).

Finally, a small minority of courts have reviewed Facebookcontent in cameraso the reviewing court may assess its relevance. See, e.g., Loporcaro v. City of New York,2012 WL 1231021, No. 100406/10 (Richmond Cnty. N.Y. April 9, 2012) (Slip Op.), where the

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court concluded that the plaintiff had no reasonable expectation of privacy in the content posted on her Facebook profile and ordered the information be provided for the court’s review.

Also see Offenback v. L. M. Bowman Inc., 2011 WL 2491371, No. 10-cv-1789 (M.D.Pa. Jun. 22, 2011), where, after in camera review in which the court found some of the information relevant and other information not relevant, the court admonished the parties to conduct their own reviews in the future, given that the plaintiff is in a better position to determine what content is respon-sive and, if necessary, to object to the disclosure of other, potentially relevant information. See also Zimmerman, supra,where the Pennsylvania court declined an invitation for in camerareview as an “unfair burden to place on the Court” and which would require “the Court to guess as to what is germane to defenses which may be raised at trial.”

V. PLAINTIFF TRAIL’S AND DEFENDANT LESKO’S DISCOVERY REQUESTS

This case arises from an accident which occurred on September 26, 2009 after defendant, Timothy Lesko, attended a “Gun Bash” event at the Pittsburgh Elks Lodge No. 11. Plaintiff, Michael Trail, is claiming serious injuries from the accident, and defen-dant has claimed he was not the driver and does not know who may have driven the vehicle. Plaintiff and defendefen-dant have filed cross motions to compel access to each other’s Facebookaccounts.

A. Plaintiff ’s Motion to Compel

Because defendant in his most recent Answer and New Matter (Feb. 22, 2012) asserted the defense that he was not the driver of the vehicle and does not recall who drove the vehicle, plaintiff urges that any postings surrounding the time period at issue are relevant in determining defendant’s whereabouts or in uncovering any potential witnesses who could shed light on the events in question. Some of these posts may have been deleted and are, therefore, in Facebook’s sole possession.

In support of plaintiff ’s assertion that such information may be contained within defendant’s non-public profile or among the content deleted from that profile, plaintiff offers the following: (1) after receiving plaintiff ’s interrogatories seeking information contained on defendant’s social networking sites, plaintiff avers that defendant removed, deleted and/or altered significant portions thereof; (2) at approximately 12:01 P.M. on the day of the accident defendant purportedly posted “gun bash today now where is randy at” on his publicly accessible profile page; (3) another status update on defendant’s profile, time-stamped 1:38 P.M. on the day of the accident, reads “Gun bash time” followed by a brief dialogue from which it may be inferred that defendant planned to attend the event with someone referred to as “dp,” and; (4) a status update posted on defendant’s page at 6:33 P.M. two days after the accident, which reads:

to everyone who left me a line i thank you and your support means everything to me i just came home today and I am hurtin but like i said before thankyou everyone it means alot to me to all of you guys you never know just be careful i wouldnt wish this on anyone

(Errors in the original).

As a result of defendant’s foregoing verbal representations and plaintiff ’s (apparently unsubstantiated) belief that defendant may have altered or deleted significant portions of other relevant information, plaintiff seeks access to defendant’s profile and the authorizations necessary to compel Facebookto provide any deleted content.

However, in Defendant’s Response to Plaintiff ’s First Request for Admissions (Apr. 27, 2012), defendant admitted that he was driving the car, was intoxicated, crossed the center line and that plaintiffs were both seriously injured and not themselves at fault, which admissions render the sought-after information seemingly irrelevant. Indeed, within a month of filing his Answer disclaim-ing liability, defendant explicitly conceded liability in his Brief in Opposition to Plaintiff ’s Motion to Compel at 4 (Mar. 21, 2012) wherein he stated, “there is no issue as to defendant’s liability.” Thus, none of the information which plaintiff seeks would be relevant to the only issue that remains in this case - damages.

Plaintiff does not argue that the information which he seeks is relevant to a punitive damages claim.19Furthermore, it is unclear

why any information on defendant’s Facebookprofile would be relevant to a punitive damages claim as to this defendant who has admitted that he was driving while intoxicated with a .226% blood alcohol level.

B. Defendant’s Motion to Compel

Defendant asserts that because plaintiff avers in his complaint that “he may suffer great physical pain,” “be disabled or limited in his normal activities,” and “his general health, strength, and vitality have been seriously impaired and this impairment is possibly permanent,” defendant is entitled to access plaintiff ’s Facebookprofile, because of the possibility that defendant will find relevant information concerning the extent and severity of plaintiff ’s injuries.

In support of this request, defendant has attached two photographs obtained from the public portion of plaintiff ’s profile, which depict plaintiff (1) “at a bar socializing” and (2) “drinking at a party.” These photographs do not contain any information as to when they were taken or uploaded. Furthermore, plaintiff has not alleged he is bedridden or that he is otherwise unable to leave the home, and the attached photographs are not inconsistent with plaintiff ’s alleged injuries.

SUMMARY

I base my rulings on Pa.R.C.P. No. 4011(b) which bars discovery that would cause “unreasonable annoyance, embarrassment, oppression . . . .” This Rule will reach intrusions that are not covered by any constitutional right to privacy or any common law or statutory privileges.

A court order which gives an opposing party access to Facebookpostings that were intended to be available only to persons designated as “Friends” is intrusive because the opposing party is likely to gain access to a great deal of information that has noth-ing to do with the litigation and may cause embarrassment if viewed by persons who are not “Friends.”

Because such discovery is intrusive, it is protected by Rule 4011 where the party seeking discovery has not shown a sufficient likelihood that such discovery will provide relevant evidence, not otherwise available, that will support the case of the party seek-ing discovery. However, on a scale of 1 (the lowest) to 10 (the greatest), the intrusion from most Facebookdiscovery is probably at a level of 2. This is so because the party resisting the discovery has voluntarily made this information available, in most instances, to numerous other persons, none of whom has any legal obligation to keep the information confidential, and Rule 4011 bars only discovery that is unreasonably intrusive.20

In determining whether an intrusion is unreasonable, a court shall consider the level of the intrusion and the potential value of the discovery to the party seeking discovery. For a level 2 intrusion, the party seeking the discovery needs to show only that the dis-covery is reasonably likely to furnish relevant evidence, not available elsewhere, that will have an impact on the outcome of the case.

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Almost all discovery causes some annoyance, embarrassment, oppression, burden, or expense. However, Rule 4011 bars only discovery which causes “unreasonable” annoyance, embarrassment, oppression, burden, or expense. The use of the term “unrea-sonable” requires a court to balance the need for discovery and the extent of the annoyance, embarrassment, oppression, burden, or expense. In this case, I denied the discovery requests of both parties because the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case.

By way of comparison, a discovery motion that I previously considered arose out of a plaintiff ’s suit against her doctor who per-formed breast implant surgery. The plaintiff ’s case was based solely on a lack of inper-formed consent. Through discovery, the plain-tiff sought the names and addresses of the other twenty-six women who received implants during the same month that she received her implant. She sought such discovery because of the possibility that these other women might support the plaintiff ’s version of what the physician communicated and did not communicate. I regarded this intrusion as reaching a level 9 or 10. I found that these witnesses were not essential because the case could be decided on the basis of the testimony of the plaintiff and the physician. Thus, I denied the discovery request based on Rule 4011.

For these reasons, I enter the following Order of Court:

ORDER OF COURT

On this 3rd day of July, 2012, it is hereby ORDERED that the discovery motions of plaintiff Michael Trail and defendant Timothy Lesko are denied.

BY THE COURT: /s/Wettick, J.

1There are other social networking sites. However, Facebookhas been the subject of the discovery requests presented to me. 2 To date, no Pennsylvania appellate court has addressed discovery requests for information contained within an individual’s

Facebookprofile.

3Although there are numerous sites that fit this classification, this discussion is limited to Facebook, which is the largest and most

heavily trafficked on the web.

4Evan E. North, Comment, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. KAN. L. REV. 1279,

1284 (June 2010). Among the law review articles on the subject, student authors tend to offer the more detailed accounts of the functioning of social networking platforms.

5This participatory platform is in contrast to antecedent, Web 1.0, which is produced, edited, and maintained by a single publishing

entity. Consider, for example, any run-of-the-mill website, which unilaterally publishes information online for their users’ passive perusal. Megan Uncel, Comment, Facebook Is Now Friends with the Court: Current Federal Rules & Social Media Evidence, 52 JURIMETRICS J. 43, 46 (Fall 2011).

6In this Opinion, I briefly discuss some of the more relevant aspects of the Facebookuser interface; for a more detailed

descrip-tion see Megan Uncel’s comment, supran. 5 at 46-50.

7See Daniel Findlay, Comment, Tag! Now You’re Really “It” What Photographs On Social Networking Sites Mean For the Fourth

Amendment,10 N.C.J.L. & TECH. 171 (Fall 2008).

8Access to User B’s profile will be governed by User B, who can opt to restrict access to his or her page to only Friends, Friends

of Friends or, at the least restrictive level, the public at large. Self-regulated privacy settings are discussed briefly, infra.

9A user who has been tagged has the ability to “untag” the photo and, by altering Facebook’s default privacy settings, may restrict

the class of individuals who are authorized to view tagged content. However, even if untagged or if otherwise restricted by our tagged user, the photo will be available for viewing on the page of the user who initially posted it. Only the user who posted the photo is able to remove it from the website altogether. Once a Friend posts a photo of our user, any Friends of the posting user, including our user (or opposing counsel armed with our user’s login information), may peruse Friends’ photos to locate any mate-rial, including unauthorized material.

10The purpose of the news feed feature is to facilitate a user’s awareness of Friends’ online activities without necessitating their

constantly visiting each Friend’s profile page sequentially. The average Facebookuser has 130 Friends, and may even have Friends numbering in the thousands. See North, supran. 4, at 1285.

11Although not relevant to the current question and, therefore, not addressed herein, sites like Facebookcollect and store

“meta-data” about their users, which might reveal more about an individual’s use of the site, their Friends’ identities, what a user saw on another user’s profile, and may track a user’s general Internet activity. All of this data is potentially discoverable under the proper circumstances. See Derek S. Witte, Your Opponent Does Not Need A Friend Request to See Your Page: Social Networking Sites & Electronic Discovery, 41 McGEORGE L. REV. 891 (2010).

12Uncel, supran. 5 at 49.

13Facebookhas gone public, and in the April 23, 2012 amendments to its S-1 SEC filings, the company disclosed that monthly active

users now number 901 million; daily active users 526 million; monthly mobile users 500 million; users post 300 million photos per day; 3.2 billion likes and comments are recorded each day, and; 125 billion “Friendships” have been forged.

14In addition to information the user chooses to make public, Facebookconsiders publicly available the user’s name, profile

picture, username or user ID and network. See FacebookData-Use Policy, http://www.facebook.com/about/privacy/your-info.

15Because these cases are unpublished, because many are simply court orders absent any accompanying rationale, and because

most Pennsylvania counties do not maintain electronic dockets, I was compelled to rely on other traditional media outlets includ-ing the PITTSBURGH POST-GAZETTEand the PENNSYLVANIA LAW WEEKLY. As a result, the citations, in places, are incomplete.

16The plaintiff also argued the Stored Communications Act (“SCA”), Pub. L. No. 99-508, 100 Stat. 1848 (1986), codified at 18 U.S.C.

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although the Act might preclude Facebookfrom disclosing information directly to the defendant in response to a civil subpoena (citing Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010)), the plaintiff could not claim the protection of the SCA because that Act does not apply to individuals.

17Gallagher v. Urbanovich, supra, is the outlier. In that case, the court granted a plaintiff ’s request for the defendant’s Facebook

username and password without the plaintiff ’s identifying any factual basis for an investigation or representing any expectation of what that investigation might uncover.

18The court explicitly limited its decision to cases involving severe emotional distress, stating that the proper scope of discovery

might be different in “garden variety emotional distress claims.”

19Plaintiff does not contend that information on Mr. Lesko’s Facebookprofile is relevant to his claim against the Pittsburgh Elks

Lodge No. 11.

20The intrusion would be greater if, for example, a party’s only Friends were a spouse and a daughter.

Jarrod D. Shaw v.

Township of Upper St. Clair Zoning Hearing Board v.

1800 Washington Road Associates

Jarrod D. Shaw and Moira E. Cain-Mannix v.

Township of Upper St. Clair v.

1800 Washington Road Associates

Zoning—Text Amendment—Jurisdiction—Timeliness

No. SA 12-000079, SA 12-000085. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. James, J.—July 3, 2012.

OPINION

This appeal arises from the decision of the Township of Upper St. Clair Zoning Hearing Board (“Board”) dealing with Property located at 1800 Washington Road which is at the intersection of Washington Road and Fort Couch Road in the Township of Upper St. Clair (“Township”). The Property is owned by the Intervenor, 1800 Washington Road Associates, LP (“Developer”). The Property currently contains a 140,000 square foot, four-story office building that was previously used as corporate headquarters for Consol Energy Corp. (“Consol Site”).

On March 3, 2011, the Developer submitted an Application for Zoning Text Amendment with the Township Department of Planning and Community Development. The proposed Amendment would allow mixed use development as a Conditional Use in a Special Business (SB) district. The Planning Commission reviewed the proposed Amendment and recommended that the Board of Commissioners approve it. The Board of Commissioners approved the proposed Amendment known as Ordinance No. 2056. Ordinance No. 2056 permitted the following as part of a Mixed Use Development when approved as a Conditional Use: Single Family Attached Dwellings, Two Family Dwellings, Multi-Family Dwellings, Planned Residential Developments, Day Care Centers, Restaurants, Supermarkets, Veterinary Hospitals, and others.

Appellant Jarrod D. Shaw filed an appeal challenging the enactment of Ordinance No. 2056. His objections dealt with notice, the time allotted to public notice and the characterization of the Amendment as a text amendment. The Board dismissed his appeal for lack of jurisdiction finding that the challenges were procedural. Appellant Shaw’s appeal and a joint appeal by Appellants Shaw and Moira E. Cain-Mannix, challenging the procedural validity of Ordinance No. 2056, have been consolidated.

When the trial court takes no additional evidence, the scope of its review is limited to determining whether the Board committed an error of law, abused its discretion or made findings not supported by substantial evidence. Mars Area Residents v. Zoning Hearing Board, 529 A.2d 1198, 1199 (Pa. Cmwlth. 1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637, 640 (1983).

The Board correctly determined that the Appellants’ appeal is procedural. 52 P.S. Section 11002-A(b) states that:

Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption shall be raised by appeal taken directly to the court of common pleas of the judicial district in which the municipality adopting the ordinance is located ...

The Board concluded that Appellant Shaw’s challenges dealing with notice and with inadequate time allotted to public notice are both procedural. They further concluded that Appellant Shaw’s argument that the Amendment is mischaracterized as a text amendment is nothing more than a predicate to a procedural challenge. (Conclusion of Law Nos. 22-23).

The Developer alleges that the procedural appeal by the Appellants is untimely. Specifically, they allege that the Appellants filed their appeal beyond the 30 day deadline. They cite Section 5571 of the Judicial Code, 42 Pa. C.S.A. Section 5571.1(b) which estab-lishes a 30 day appeal deadline for appeals raising questions of procedure in the enactment or adoption of any ordinance. Pursuant to the Upper St. Clair Township Home Rule Charter, the effective date of the Ordinance was the date of post-enactment publica-tion. Post-enactment publication occurred in The Pittsburgh Post Gazette on October 27, 2011. Therefore, a procedural appeal must have been filed by November 26, 2011. The Appellants filed their appeal on January 30, 2012.

The Board correctly characterized the zoning amendment as a text amendment and not a map change. They explained that if Appellant Shaw’s appeal were successful, the “substance” of the Amendment would not be altered in any way. No zoning district had an increase or decrease in size, no boundary was moved, no zoning district designation was added or eliminated and no tract was rezoned.

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Finally, Appellant Shaw characterized his appeal as a procedural appeal on several documents in this case.

Therefore, based upon the foregoing Opinion, the Board correctly dismissed Appellants’ appeal for lack of jurisdiction since the appeal raised only procedural questions relating to the process of enactment or adoption of Ordinance No. 2056.

ORDER OF COURT

AND NOW, this 6th day of July, 2012, based upon the foregoing Opinion, the Board correctly dismissed Appellants’ appeal for lack of jurisdiction since the appeal raised only procedural questions relating to the process of enactment or adoption of Ordinance No. 2056.

BY THE COURT: /s/James, J.

E.S. Management v.

Timothy Kolman, Michael Sless, Joel Hervitz, and Douglas Stanger

Landlord/Tenant—Collection Costs (Attorney Fees)—Security Deposit—Guarantors

No. AR 10-4464. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. Friedman, J.—July 12, 2012.

DECISION

This Decision is filed pursuant to Pa. R.C.P. 1038. See also Pa. R.C.P. 227.1(c)(2).

The captioned action involves a residential Landlord’s claim for damages against the fathers of the Tenants, four college students. Each father guaranteed the performance under the lease of all four Tenants, not just his own child’s.

The fathers, hereinafter “the Guarantors,” have denied that the actual damages to the premises were anything more than normal wear and tear. They also have asserted a counterclaim under the Landlord Tenant Act based on the contention that the list of damages was not mailed by the Landlord to the Tenants within the 30 day period set forth in the Act.

The non-jury trial began on September 27, 2011 and was interrupted at the end of the liability phase when the Court perceived a possible conflict of interest between Defendant Kolman, an attorney who was representing himself, and his co-Defendants who were also his clients.1 We eventually issued an Order on February 28, 2012, removing him as counsel and directing the other three

Defendants to either obtain new counsel or represent themselves. We also postponed the trial to give them time to prepare. At least one other postponement was granted for the convenience of a witness for Defendants. The delays that related to the conflict of inter-est were not finally resolved until a few days before the date ultimately set to finish the trial, June 12, 2012, when we received waivers of any conflict from Mr. Kolman’s co-Defendants. We permitted Mr. Kolman to re-commence his representation of all the Defendants.

The credible evidence presented on both trial dates revealed the following: 1. The last tenant to leave the premises was Samuel Kolman (“Samuel”).

2. Samuel delivered his key and those of the other three tenants to Plaintiff ’s office around noon on Friday, July 24, 2009. 3. The Lease term ended on July 25, 2009.

4. Samuel did not provide a new address for himself or any of the other Tenants at that time nor at any later date. 5. We do not believe Samuel’s testimony that he had sent a written notice regarding the Tenants’ new addresses a month or two beforethe Lease expired.

6. Ari Stanger (“Ari”) returned his key to Plaintiff ’s office by mail on or about August 10, 2009.

7. None of the other tenants ever provided Plaintiff with a new address at the expiration of the Lease or at any other time. 8. Robert Cohen and Suzanne Marcini inspected the premises on July 25, 2009 and discovered a fair amount of damage which had to be corrected before the new tenant moved in.

9. Given the condition admitted by the Tenants in the inspection form they submitted at the beginning of the Lease, the damage observed on July 25, 2009 was substantial and was not mere wear and tear. See Plaintiff Exhibit L-2.

10. Since the Tenants had not provided new addresses, the list of damages and charges for repairs was sent to the address of each Guarantor.

11. The mailing date stamped on the envelope to the Kolmans and presumably to the other Tenants and Guarantors was August 24, 2009, 31 days after Samuel left the key or keys at Plaintiff ’s office and 30 days after the Lease expired. 12. The Guarantors and the Tenants refused to pay the damage charges and also demanded the return of the security deposit. 13. Plaintiff then filed the instant action against the Guarantors and the Guarantors later filed the first of their four versions of their Answer, New Matter and Counterclaim. At various times, the Guarantors’ pleadings contained counts under the Consumer Protection Law, RICO, and class action claims under Federal Rule of Civil Procedure 23(b). By Order dated June 20, 2011, virtually all of Defendants’ Counterclaims, Cross-Claims, and Class Actions were dismissed with prejudice by the Honorable R. Stanton Wettick, Jr. of this Court. The current version of the Answer, New Matter, and Counterclaim contains claims under the Landlord and Tenant Act, 68 P.S. §250.512. It also contains claims of Wrongful Use of Civil Proceedings, which were not pursued.

We will address the Guarantors’ only remaining Counterclaim first. Based on the credible evidence we conclude that, since the Tenants never advised Plaintiff of their new addresses, there has been no violation of the Landlord Tenant Act and we deny the Guarantors’ demand for damages thereunder. We reject the Guarantors’ contention that, since the Tenants were still reachable at their parents’ addresses, they had no duty to supply a “new address” to Plaintiff. Guarantors argue that the “new address” under

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the Act should not be read to mean the only address where Tenants could be reached afterthey left the leased premises. Rather, they contend that since the Tenants’ pre-lease addresses were where they could still be reached post-lease, there was no need for them to advise Plaintiff of a differentaddress.

Stating Defendants’ argument demonstrates its absurdity. In the context of the Landlord Tenant Act, the term “new address” has only one logical meaning, the address where a tenant will reside afterleaving the premises leased from the landlord. There is hardly a presumption that a tenant’s address before entering the lease to which the Act would apply is the address to which the tenant would return when the lease expires. The interpretation put forth by the Guarantors is without merit.

Since Tenants did not provide the Plaintiff with their new address under the Act, we need not decide the question raised by the Guarantors regarding whether or not the Act required actual receiptof the damage list within 30 days or merely mailingon or before the 30th day. We also do not need to reach the question of whether the 30-day period begins to run on the day possession of the premises was delivered or on the next day, when the leaseexpired.

The Guarantors’ counterclaim must be denied.

We now turn to the merits of Plaintiff’s damage claim and for legal fees under the Lease. The witness we found totally credible on the issue of physical damage to the premises was Ms. Marcini. She described the filthy condition of the apartment the day after Samuel left it. Her testimony is supported by that of Samuel himself. He admitted he was rushed to leave by early afternoon so he could get home to Philadelphia by early evening. He admitted that only one of the four Tenants, Jesse Hervitz (“Jesse”), spent any time or effort keeping the place clean. Samuel also stated that Jesse and the other tenants had left the premises a few months before he did.

The credible evidence supports all of the damage claim except the replacement of the thermostat. We do not feel the Tenants have been shown to have broken either the cover or the dial.2

We next turn to the claim for counsel fees under the Lease. We conclude that Plaintiff is entitled to the reasonableamount of fees required to collect the monies owed by the Tenants and guaranteed by their fathers. In accordance with our usual procedure, Defendants were given an opportunity to contest Plaintiff ’s fees by responding to Plaintiff ’s counsel’s affidavit describing the fee charged within 20 days. Defendants did not do so. Our own separate review of the affidavit and a later supplemental affidavit revealed that the time spent and rates charged by Plaintiff ’s counsel were quite reasonable in the circumstances. Lastly, we note that the fees Defendants’ attorney hoped to be awarded, according to Mr. Kolman’s own affidavit, were much higher than Plaintiff ’s claim, a circumstantial indication that Plaintiff ’s counsel fees are reasonable.

The original damage claim against the Guarantors was $5,058.00 less the security deposit, leaving a balance claimed of $2,858.00, which we have reduced by the cost of a new thermostat to $2,783.00. At first blush, it would seem difficult to justify an award of counsel fees of six or seven times that amount as being reasonable. However, the conduct of Mr. Kolman as the attorney for the Guarantors went well beyond the normal defense of such claim. We do not suggest that he was to roll over and play dead nor that he should be penalized for creative legal work. Rather, we point out that he raised defenses and counterclaims that required substantial time and effort on the part of Plaintiff ’s counsel to address successfully.

Mr. Kolman chose the nuclear option, including RICO charges and a class action, even though he was unable at trial to demonstrate the simplest basis (giving a new address) for the only counterclaim that survived, a Landlord Tenant Act violation. For whatever reason, Mr. Kolman the lawyer did Mr. Kolman the client a great disservice. Unfortunately, the other Guarantors chose to follow his advice and must now share with him the consequences of his legal strategy and tactics.

We find that the hours spent and the charges made by counsel for Plaintiff were warranted by the conduct of counsel for Defendants. Those fees are reasonable in the circumstances created by Mr. Kolman. They are payable under paragraph 43(a)(3) of the Lease.

CONCLUSION

The award to Plaintiff is $21,406.25, being $2,783.00 for damages to the leased premises after credit is given for the security deposit and the thermostat charge of $75, plus $18,623.25 for the reasonable cost of collection.

The counterclaim of Defendants is Denied.

This Decision is filed pursuant to Pa. R.C.P. 1038. See also Pa. R.C.P. 227.1(c)(2). BY THE COURT: /s/Friedman, J. Dated: July 12, 2012

1The conflict as perceived at the time on September 27, 2011 was mainly based on the Court’s mistaken understanding that each

father had only guaranteed the obligation of his own son. It therefore appeared to us that Mr. Kolman was looking out only for his own interest when he had not even seen to it that his clients honored the notices to attend so that they or their sons could also testify.

2There was no contention that it actually malfunctioned causing there to be no heat.

Commonwealth of Pennsylvania v. Stanley Cotton

Criminal Appeal—PCRA—3rd Petition—After Discovered Evidence—Recantation

No. CC 199602834, 199603967. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Machen, J.—June 29, 2012.

OPINION

Defendant was charged at CC: 199602834, with one (1) count of Criminal Homicide and at CC: 199603967, with one (1) count of the Violation of Uniform Firearms Act (VUFA): Firearms Not to be Carried Without a License. On July 9, 1996, defendant waived his right to a trial by jury and proceeded to a non-jury trial before the Honorable Walter R. Little. On July 10, 1996, the trial court found defendant guilty of first degree murder and the firearms charge. On August 8, 1996, the trial court sentenced defendant to a term of imprisonment of mandatory life for the conviction of first degree murder and a concurrent term of imprisonment of three and one-half (3 1/2) to seven (7) years for the conviction of carrying a firearm without a license.

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which is docketed at No. 1821 Pittsburgh 1996. On April 6, 1998, the Pennsylvania Superior Court affirmed. On or about May 8, 1998, defendant, through counsel, filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania, which is docketed at No. 280 W.D. Allocatur Docket 1998. On August 24, 1998, the Pennsylvania Supreme Court denied the petition. On October 5, 1998, defendant, pro se, filed his first Post Conviction Collateral Relief (PCRA) Petition. On August 26, 1999, Judge Little issued a Notice and Opinion of its Intention to Dismiss. On February 17, 2000, defendant, through Robert A. Crisanti, Esquire, filed an Amended PCRA Petition.

On March 1, 2000, the Commonwealth filed its Answer to the Petition. On September 27, 2000, Judge Little, through an Order of Court, dismissed Petitioner’s PCRA Petition with prejudice.

On October 26, 2000, defendant, through Attorney Crisanti, filed a Notice of Appeal to the Pennsylvania Superior Court, which is docketed at No. 1781 WDA 2000. On June 19, 2001, the Pennsylvania Superior Court affirmed the decision of the PCRA Court. Defendant then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on July 19, 2001, which is docketed at No. 421 WAL 2001. Defendant’s Petition for Allowance of Appeal was denied on November 20, 2001. On February 19, 2002, defen-dant filed a habeas corpus petition in the United States District Court for the Western District, which is docketed at No. 02-55 J. A Report and Recommendation was issued by the Court on April 10, 2002. Defendant then filed an objection to the Report and Recommendation on April 22, 2002. An Order was issued on July 3, 2002, dismissing defendant’s habeas corpus petition. On August 1, 2002, defendant filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit. On May 19, 2003, the United States Court of Appeals for the Third Circuit denied a certificate of appealability. Defendant then sought leave of the United States Court of Appeals for the Third Circuit to file a second/successive petition on May 26, 2004. Leave was denied in June 2004.

On June 23, 2005, defendant filed his second PCRA Petition. Defendant alleged that his PCRA Petition was not untimely, as he claimed that there was certain after-discovered evidence which would have changed the outcome of his trial had that information been available. The case was assigned to this court for Post-Conviction Relief Act proceedings. On March 21, 2006, Scott Coffey, Esquire, who was appointed to represent defendant on December 7, 2005, filed a Motion for Leave to Withdraw Appearance and a No Merit letter. On June 12, 2006, this court entered an order dismissing defendant’s PCRA Petition. On June 20, 2006, defendant filed a Notice of Appeal to the Pennsylvania Superior Court, which is docketed at No. 1201 WDA 2006. On May 7, 2007, the Pennsylvania Superior Court affirmed, concluding that defendant’s PCRA Petition was untimely and no exception applied.

On March 24, 2009, defendant, pro se, filed his third PCRA Petition. On November 25, 2009, through court-appointed counsel, Joseph P. Rewis, Esquire, defendant filed an Amended PCRA Petition. Defendant alleges that he is entitled to circumvent the time-liness requirement of filing a PCRA Petition because he has after-discovered evidence that would change the outcome of his case had it been available at the time of trial. On August 16, 2011, this court held an evidentiary hearing on the defendant’s (3rd) PCRA Petition. After the hearing, the parties were directed to file Proposed Finds of Facts and Conclusions of Law. On January 9, 2012, after review of the pleadings and the record in the matter along with the transcript of the Evidentiary Hearing, this court entered an Order which dismissed the Petition of the defendant, denying relief. This timely appeal followed.

The Pennsylvania Superior Court’s June 19, 2001, Memorandum addressing defendant’s second Superior Court appeal set forth the following factual summary:

Testimony given at trial was that[,] on February 14, 1996[,] at approximately 4:30 P.M., Pittsburgh Police officers and detectives were dispatched to 185 Burrows Street for a shooting. When the police arrived at the scene they observed the 18 year-old victim, Abdual Shaaheed [“Shaaheed”], lying on the ground[,] unconscious and bleeding from the head. [Shaaheed] was transported to Presbyterian Hospital. On February 15, 1996 at 9:30 A.M. [Shaaheed] was pronounced dead. . . . [Cotton] testified that Shaaheed was an acquaintance whom he had met in approximately 1992. [Cotton] testi-fied that, on February 12, 1996, [Shaaheed] gave him $200 worth of crack cocaine to sell. [Shaaheed] personally used the crack, but was afraid to acknowledge this when Cotton came to him the following day seeking the money. [Cotton] claims [that Shaaheed] threatened him, and then left the scene, only to return with another black male. This black male and [Shaaheed] reportedly shot at [Cotton], but he ran to the safety of his girlfriend’s house. [Cotton] encountered [Shaaheed] on the street again on February 14, 1996. The two argued and physically struggled. [Cotton] claims he disarmed [Shaaheed] and then ran with the gun in hand to his mother’s apartment building 185 Burrows Street. At that point, [Shaheed] supposedly went to his sister’s apartment on 181 Burrows Street, catty-corner to [Cotton’s] apartment build-ing across the court. [Cotton] testified that he could not gain access to his mother’s apartment, so he stood in the hallway of the building. According to [Cotton,] he then saw [Shaaheed] walk out of the building and approach him with his hands in his pockets. [Cotton] testified that he believed that [Shaaheed] rearmed himself and was going to shoot him. [Cotton] then fired approximately four bullets in [Shaaheed’s] direction while running across the court.1

In his Statement of Matters Complained of on Appeal, defendant raises one issue as follows:

1. The trial court abused its discretion in refusing to give proper weight to a court provided handwriting expert whose report confirmed the signature on the recantation of Ms. Tina Thomas as consistent with other handwriting samples. In the underlying PCRA Petition, defendant alleged that certain exculpatory evidence, which was not available at the time of trial, has subsequently become available, and had such evidence been introduced at trial, the outcome of the trial would have been different. Specifically, that Tina Thomas, the victim’s sister, removed a weapon from the victim prior to the police arriving at the scene where victim was shot to death by defendant.

As a foundation, to be eligible for post conviction relief, a defendant must plead and prove by a preponderance of the evidence: (2) That the conviction or sentence resulted for one or more of the following:

i. A violation of the Constitution of this Commonwealth or the Constitution or the laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilty could have taken place.

ii. Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-deter-mining process that no reliable adjudication of guilt or innocence could have taken place.

iii. A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

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iv. The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.

v. The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

vi. The imposition of a sentence greater than the lawful maximum. vii. A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated or waived.

(4) That the failure to litigate this issue prior to or during trial, during the unitary review or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.

42 Pa.C.S.A. §9543(a). See Commonwealth v. Rivers, 786 A.2d 923 (Pa. 2001); Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997); Commonwealth v. Beasley, 678 A.2d 773, 777 (Pa. 1996). Additionally, a PCRA Petition must be filed within one (1) year of the date the defendant’s judgment of sentence became final.2

While the Commonwealth raised a question as to the timeliness of this PCRA (defendant’s 3rd), this court scheduled an eviden-tiary hearing so that the court could hear testimony as to the timing of the defendant’s filing relative to when he learned of the alleged new information and to hear evidence as to Ms. Thomas’ alleged recantation.

As background, in the PCRA Petition, defendant alleged that he was entitled to a new trial based upon after-discovered evidence, specifically, the testimony of Ms. Thomas. Ms. Thomas, who wishes to recant her trial testimony, would testify as follows:

On February 14, 1996, I was home with my one year old daughter Angel Thomas, when my brother (Abdul Shaheed) came in the house talking about how him and his friend Stanley just got finish fighting. My brother showed me where Stan had bit him while they were fighting, and he was really mad about it. He then paged his friend Antwan, when Antwan called back he told Antwan he just got done fighting Stanley. He then called a jitney and I heard him tell the jitney that he needed to go to the South Side to get some bullets. My brother got another phone call and I heard him say on the phone, don’t be trying to apologize now nigger. It’s whatever, I am going to get you for what you did, then hung up the phone. I asked my brother who it was he was talking to on the phone and he told me it was Stanley. … I went to the hallway window to watch my brother to see what he was doing. That is when I saw Stanley walking up in the doorway of building 185 Burrows St. My brother and Stanley had a few words back and forth. Then my brother started jogging towards Stanley holding his pants up in the front. I couldn’t see what he was holding in his pants, but he was holding something. That’s when I heard the shots. My brother grabbed his leg and fell off the wall. I then waited to make sure Stanley had stop shooting and left before I went to see if my brother was alright. When I got to my brother, I took his shoes off looking for his money, I found ten dollars in his pocket, I took the gun that was beside him and his pager. When I first told what happened between my brother and Stanley I was angry and upset about what happened to my brother. But after thinking about what I saw, although I lost my brother, it wasn’t all Stanley’s fault.

Under the PCRA, a basis for relief is “the unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A. §9543(a)(2)(vi).

To succeed on an “after-discovered evidence” claim in the form of recantation testimony, defendant must show that: (1) the evidence has been discovered after the trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) such evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) such evidence would likely compel a different verdict.

(emphasis added). Commonwealth v. Abu-Jamal,553 Pa. 31, 720 A.2d 79, 94 (1998); See Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999); Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595-96 (2007); Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806, 823 (2004).

Recantation is one of the least reliable forms of proof, particularly when it constitutes an admission of perjury. Commonwealth v. Dennis, 552 Pa. 331, 356, 715 A.2d 404, 416 (1998); Commonwealth v. McCraken,540 Pa. 541, 548, 659 A.2d 541, 545 (1995). It is up to the trial court to judge the credibility of the recantation testimony and a new trial must be denied unless the court is satis-fied that the recantation is true. See Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167 (2000); see also Commonwealth v. Floyd, 506 Pa. 85, 94, 484 A.2d 365 (1984).

Ms. Thomas testified that she did not write the statement, that she wrote a similar statement but that it had differences and this was not the one she signed. Hearing Transcript, p. 42-43.) The PCRA court found her testimony to be credible. The Handwriting Expert Report did not sway the court. While Ms. Dresbold did give her expert opinion, and the court respects her credentials and experience, the report did not overcome the court’s determination that Ms. Thomas was not recanting her testimony. Even if, arguendo, Ms. Thomas had signed that statement, she was not willing to be sworn and state the same before the court. This coupled with the fact that this version of the events had been raised in a previous PCRA, the PCRA Court found that the evidence would not likely compel a different verdict. As previously stated, the test for recantation testimony requires that the after-discovered evidence in the form of recantation meet all four prongs of the test discussed above and this fails to meet the requirements.

In this matter, the court heard the testimony of the alleged recantation witness and reviewed the original trial transcript. The court also reviewed the report of the Handwriting Expert and reviewed the Petition, the Answer, the Findings of Fact, along with the applicable case law. In a PCRA, the judge sits as the trier of fact.

A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts. Johnson, 600 Pa. at 356, 966 A.2d at 539. As we indicated in Johnson, when a PCRA hearing is held, “we expect the PCRA court to make necessary credibility determinations.” Id.at 358, 966 A.2d at 540;see also Commonwealth v. Washington, 592 Pa. 698, 717, 927 A.2d 586, 597 (2007) (opining that even with recantations that might appear dubious, the PCRA court must in the first instance assess the credibility and signifi-cance of the recantation).

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