M.A.T. v. G.S.T.

M.A.T. v. G.S.T. No. 1517 MDA 2008 2010 PA Super 8 Atlantic: n/a Filed: 1/21/2010
	Appeal from the Order entered August 11, 2008, Court of Common Pleas, Dauphin County, Civil Division at No. 2006 CV 4571 CU
Before: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN and ALLEN, JJ.
Opinion by: DONOHUE, J.
Concurring and Dissenting Opinion by: SHOGAN, J.
Appellant M.A.T. (“Mother”) appeals the trial court’s order dated August 11, 2008 denying her petition for modification of a custody order granting Appellee G.S.T. (“Father”) primary physical custody of their daughter K.J.T. (“Daughter”). The trial court based its decision on (1) its application of an evidentiary presumption against a homosexual parent, see, e.g., Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. 1985); and (2) rejection of uncontroverted expert testimony recommending shared custody. For the reasons set forth herein, we reverse the trial court’s order and grant Mother’s petition for modification of the custody order. In doing so, we overrule the holding and reasoning in Constant. We further rule that the trial court in this case abused its discretion in rejecting the recommendations of the jointly retained custody evaluator and basing its decision to award primary physical custody to Father upon the trial court’s personal opinion that shared custody is seldom (if ever) in the best interests of school-age children. Accordingly, we vacate the trial court’s order dated August 11, 2008 and remand for entry of an order consistent with this Opinion.

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COMMONWEALTH OF PENNSYLVANIA v. FRANCIS NICHOLAS RAKOWSKI, JR.

COMMONWEALTH OF PENNSYLVANIA v. FRANCIS NICHOLAS RAKOWSKI, JR. No. 2059 MDA 2008 2010 PA Super 3 Atlantic: n/a Filed: 1/14/2010
	Appeal from the Judgment of Sentence August 27, 2008, In the Court of Common Pleas of York County, Criminal Division at No. CP-67-CR-0001198-2008.
Before: BENDER, FREEDBERG, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Dissenting Opinion by: BENDER, J.
Appellant Francis Nicholas Rakowski, Jr., appeals the judgment of sentence for driving under the influence of alcohol (DUI) in violation of 75 Pa.C.S.A. § 3802(c) on grounds that: 1) the evidence was insufficient to sustain his conviction; 2) the verdict was against the weight of the evidence; and 3) the jury’s entry of inconsistent verdicts warrants a vacation of the judgment of sentence. After careful review, we affirm.

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COMMONWEALTH OF PENNSYLVANIA v. A.R.

COMMONWEALTH OF PENNSYLVANIA v. A.R. No. 382 EDA 2009 2010 PA Super 4 Atlantic: n/a Filed: 1/15/2010
	Appeal from the Judgment of Sentence January 5, 2009, In the Court of Common Pleas of Chester County, Criminal Division at No. CP-15-CR-0002052-2006.
Before: PANELLA, POPOVICH, and COLVILLE, JJ.
Opinion by: POPOVICH, J.
Dissenting Opinion by: COLVILLE, J.
Appellant A.R. appeals the judgment of sentence entered on January 5, 2009, in the Court of Common Pleas of Chester County, following the revocation of his probationary sentence. On appeal, Appellant claims that the evidence was insufficient to support the trial court’s conclusion that Appellant violated his probation and that the trial court erred in admitting into evidence the results of a therapeutic polygraph examination as supportive evidence at Appellant’s violation of probation (VOP) hearing. Upon review, we affirm.

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COMMONWEALTH OF PENNSYLVANIA v. GAYLEND L. YOUNG

COMMONWEALTH OF PENNSYLVANIA v. GAYLEND L. YOUNG No. 1287 MDA 2008 2010 PA Super 2 Atlantic: n/a Filed: 1/6/2010
	Appeal from the Judgment of Sentence, April 26, 2005, in the Court of Common Pleas of Centre County Criminal Division at No. CP-14-CR-0000345-2000
Before: FORD ELLIOTT, P.J., KLEIN AND COLVILLE, JJ.
Opinion by: FORD ELLIOT, P.J.
Dissenting Opinion by: COLVILLE, J.
Appellant, Gaylend L. Young, appeals the judgment of sentence entered following his conviction for various sexual offenses against his minor son. Finding no error, we affirm.

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COMMONWEALTH OF PENNSYLVANIA v. FRANCIS NICHOLAS RAKOWSKI, JR.

COMMONWEALTH OF PENNSYLVANIA v. FRANCIS NICHOLAS RAKOWSKI, JR. No. 2059 MDA 2008 2009 PA Super 258 Atlantic: n/a Filed: 12/29/2009
	Appeal from the Judgment of Sentence August 27, 2008, In the Court of Common Pleas of York County, Criminal Division at No. CP-67-CR-0001198-2008.
Before: BENDER, FREEDBERG, and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Dissenting Opinion by: BENDER, J.
Appellant Francis Nicholas Rakowski, Jr., appeals the judgment of sentence for driving under the influence of alcohol (DUI) in violation of 75 Pa.C.S.A. § 3802(c) on grounds that: 1) the evidence was insufficient to sustain his conviction; 2) the verdict was against the weight of the evidence; and 3) the jury’s entry of inconsistent verdicts warrants a vacation of the judgment of sentence. After careful review, we affirm.

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COMMONWEALTH OF PENNSYLVANIA v. JOHN D. AU

COMMONWEALTH OF PENNSYLVANIA v. JOHN D. AU No. 2002 MDA 2007 2009 PA Super 231 Atlantic: n/a Filed: 12/1/2009
	Appeal from the Order Entered October 30, 2007 In the Court of Common Pleas of Centre County Criminal Division at No. CP-14-CR-0001363-2007
Before: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN and ALLEN, JJ.
Opinion by: BENDER, J.
Dissenting Opinion by: SHOGAN, J.
This is a Commonwealth appeal from the order granting John D. Au’s (Appellee) motion to suppress evidence. The Commonwealth claims that the trial court erred in granting Appellee’s motion. For the following reasons, we affirm.

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COMMONWEALTH OF PENNSYLVANIA v. DARYL J. BOICH

COMMONWEALTH OF PENNSYLVANIA v. DARYL J. BOICH No. 1856 MDA 2006 2009 PA Super 195 Atlantic: 982 A.2d 102 Filed: 10/6/2009
	Appeal from the Order entered October 5, 2006 In the Court of Common Pleas of Luzerne County Criminal, No. CP-40-CR-0000024-2006
Before: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN*, KLEIN, BENDER, BOWES, GANTMAN, AND SHOGAN, JJ.
Opinion by: GANTMAN, J.
Dissenting Opinion by: KLEIN, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Luzerne County Court of Common Pleas, which granted the pre-trial motion of rape defendant Appellee, Daryl J. Boich, to direct the adult rape complainant (“C.U.”) to submit to an involuntary psychiatric examination for purposes of deciding her competency to testify at trial. The Commonwealth asks whether the court erred when it found compelling reasons to grant Appellee’s request. We hold the court erred when it ordered an involuntary psychiatric examination of C.U. on the grounds alleged. Accordingly, we reverse and remand for further proceedings.

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DENNIS PRINGLE AND CHRISTINE A. PRINGLE, in their own right as parentand natural guardians of Austin Pringle, a minor v. ADOLFO RAPAPORT, D.O.

DENNIS PRINGLE AND CHRISTINE A. PRINGLE, in their own right as parentand natural guardians of Austin Pringle, a minor v. ADOLFO RAPAPORT, D.O. and ADOLFO RAPAPORT, D.O., P.C. No. 173 WDA 2007 2009 PA Super 171 Atlantic: 980 A.2d 159 Filed: 8/31/2009
	Appeal from the Judgment entered January 4, 2007, Court of Common Pleas, Clearfield County, Civil Division at No. 2003-624-CD
Before: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN, KLEIN, GANTMAN, PANELLA and DONOHUE, JJ.
Opinion by: DONOHUE, J.
Dissenting Opinion by: ORIE MELVIN, J.
Dennis Pringle and Christine Pringle (collectively, “the Pringles”), in their own right as parents and natural guardians of their son Austin Pringle (“Austin”), appeal from the judgment entered following a jury verdict in a medical malpractice case in favor of appellees, Adolfo Rapaport, D.O., and Adolfo Rapaport, D.O., P.C. (collectively, “Dr. Rapaport”). The Pringles contend that the trial court erred, inter alia, in including an “error of judgment” instruction during the charge to the jury at the trial of their medical malpractice action against Dr. Rapaport. After an exhaustive review of decisional law, we conclude that the Supreme Court of Pennsylvania has never addressed the appropriateness of this charge, and that the decisions of panels of this Court are irreconcilable. Thus, following our careful review, we conclude that the “error of judgment” instruction should not be given in medical malpractice actions, as it does not inform jurors on the applicable standard of care and instead tends only to confuse, rather than clarify, the issues the jury must decide. We thus reverse and remand for a new trial.

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COMMONWEALTH OF PENNSYLVANIA vs. EDWIN MARQUEZ

COMMONWEALTH OF PENNSYLVANIA vs. EDWIN MARQUEZ No. 537 EDA 2007 2009 PA Super 170 Atlantic: 980 A.2d 145 Filed: 8/31/2009
	Appeal from the Judgment of Sentence of January 18, 2007, in the Court of Common Pleas of Philadelphia County, Criminal No. CP-51-CR-0904661-2005
Before: STEVENS, MUSMANNO, KLEIN, BENDER, BOWES, GANTMAN, SHOGAN, FREEDBERG and CLELAND, JJ.
Opinion by: MUSMANNO, J.
Concurring and Dissenting Opinion by: KLEIN, J.
Concurring and Dissenting Opinion by: CLELAND, J.
Edwin Marquez (“Marquez”) appeals from the judgment of sentence imposed after he was convicted of third-degree murder and criminal conspiracy. We affirm.

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COMMONWEALTH OF PENNSYLVANIA v. THOMAS JOHN MOORE

COMMONWEALTH OF PENNSYLVANIA v. THOMAS JOHN MOORE No. 258 WDA 2008 2009 PA Super 167 Atlantic: 980 A.2d 647 Filed: 8/27/2009
	Appeal from the Judgment of Sentence entered on October 1, 2007 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0002754-2006
Before: MUSMANNO, SHOGAN and COLVILLE, JJ.
Opinion by: MUSMANNO, J.
Dissenting Opinion by: COLVILLE, J.
Null

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ESTATE OF ANNA E. FRIDENBERG, DECEASED APPEAL OF: WACHOVIA BANK

ESTATE OF ANNA E. FRIDENBERG, DECEASED APPEAL OF: WACHOVIA BANK, N.A. No. 2119 EDA 2008 2009 PA Super 164 Atlantic: 982 A.2d 68 Petition for Reargument Denied 10/30/2009 Filed: 8/24/2009
	Appeal from the Order entered July 1, 2008 In the Court of Common Pleas of Philadelphia County Orphans’ Court, No. 261 of 1941
Before: STEVENS, KLEIN and KELLY, JJ.
Opinion by: KELLY, J.
Dissenting Opinion Opinion by: KLEIN, J.
Appellant, Wachovia Bank, N.A., appeals from the order of the Philadelphia County Court of Common Pleas, Orphans’ Court Division, denying its application for certain commissions on trust principal as compensation for trust administration services. Appellant challenges the Orphans’ Court’s conclusion that such commissions were barred by In re Williamson’s Estate, 82 A.2d 49 (Pa. 1951). We reverse the order of the Orphans’ Court and remand for further proceedings consistent with this opinion.

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COMMONWEALTH OF PENNSYLVANIA v. V.A.M.

COMMONWEALTH OF PENNSYLVANIA v. V.A.M. No. 1101 EDA 2008 2009 PA Super 156 Atlantic: 980 A.2d 131 Filed: 8/10/2009
	Appeal from the Order Entered March 5, 2008 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos.: CP-51-CR-0603191-1986
Before: BENDER, SHOGAN, JJ. and McEWEN, P.J.E.
Opinion by: BENDER, J.
Dissenting Opinion by: SHOGAN, J.
V.A.M. (Appellant) appeals from the order denying his petition for expungement of his arrest and conviction record after he was granted a new trial on charges of rape, involuntary deviate sexual intercourse, robbery, and criminal conspiracy and the re-trial did not take place because the Commonwealth nolle prossed all charges, having failed to locate the complaining victim. We reverse and remand.

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COLLEEN MURPHY v. JAMES MCDERMOTT

COLLEEN MURPHY v. JAMES MCDERMOTT No. 2047 MDA 2007 2009 PA Super 151 Atlantic: 979 A.2d 373 Filed: 7/31/2009
	Appeal from the Order entered on October 24, 2007, in the Court of Common Pleas of Luzerne County, Domestic Relations, No. 1703 of 2002, PASCES No. 604104872
Before: LALLY-GREEN, FREEDBERG, and FITZGERALD,* JJ.
Opinion by: LALLY-GREEN, J.
Concurring and Dissenting Opinion by: FITZGERALD, J.
Appellant, James McDermott (“Father”), appeals from the order entered in the Luzerne County Court of Common Pleas, dismissing his exceptions to a support order for the parties’ minor child, A.M. (“Child”), born on July 30, 2002. We hold that the court erred in calculating: (1) Father’s 2008 income by including one-time stock options exercised in 2007; (2) Father’s 2006 and 2007 income by failing to calculate perquisite income from personal use of a company-provided vehicle appropriately; and (3) Father’s income by not accounting for the withdrawal penalty when it included his employer’s gross contributions to his 26 U.S.C. § 401(k) and stock accounts. Accordingly, we vacate the order and remand for further proceedings.

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DEBRA FRENCH, AS ADMINISTRATRIX OF THE ESTATE OF BRIAN P. FRENCH, DECEASED, AND IN HER OWN RIGHT AS AN INDIVIDUAL v. COMMONWEALTH ASSOCIATES, INC.

DEBRA FRENCH, AS ADMINISTRATRIX OF THE ESTATE OF BRIAN P. FRENCH, DECEASED, AND IN HER OWN RIGHT AS AN INDIVIDUAL v. COMMONWEALTH ASSOCIATES, INC.; UNITED CONVEYOR CORPORATION; AND THE BABCOCK AND WILCOX COMPANY, AND/OR A/K/A BABCOCK & WILCOX CONSTRUCTION CO., INC., AND/OR A/K/A BABCOCK & WILCOX EBENSBURG POWER, INC.,AND DEBRA FRENCH, AS ADMINISTRATRIX OF THE ESTATE OF BRIAN P. FRENCH, DECEASED, AND IN HER OWN RIGHT AS AN INDIVIDUAL v. GILBERT/COMMONWEALTH, INC., OF MICHIGAN, FORMERLY KNOWN AS COMMONWEALTH ASSOCIATES, INC. A/K/A AND/OR GILBERT/COMMONWEALTH, INC., FORMERLY KNOWN AS GILBERT ASSOCIATES, INC., A/K/A AND/OR GILBERT/COMMONWEALTH INTERNATIONAL INC. No. 1191 WDA 2008 2009 PA Super 152 Atlantic: n/a Petition for Reargument Denied 10/6/2009 Filed: 7/31/2009
	Appeal from the Order June 18, 2008 In the Court of Common Pleas of Lawrence County Civil, Nos. 10251 of 2003 CA, 10312 of 2003 CA, and 10401 of 2003 CA
Before: LALLY-GREEN, GANTMAN, AND COLVILLE, JJ.
Opinion by: GANTMAN, J.
Dissenting Statement Opinion by: LALLY-GREEN, J.
Appellant, Debra French, as administratrix of the estate of Brian P. French, deceased, and in her own right as an individual, appeals from the order of the Lawrence County Court of Common Pleas, denying her petition to open and/or strike the judgment of non pros, based on the court’s determination that Appellant failed to file a timely certificate of merit under Pa.R.C.P. 1042.3. Specifically, Appellant asks us to determine whether her products liability/breach of warranty claims against the Gilbert defendants (“Appellee”) should survive the judgment of non pros, absent a certificate of merit. We hold the trial court erred when it failed to review Appellant’s entire complaint to determine which counts sounded in professional negligence and which counts sounded in products liability/breach of warranty, so that only the professional negligence claims might be subject to a judgment of non pros for failure to file a certificate of merit. Accordingly, we vacate and remand for further proceedings consistent with this opinion.

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COMMONWEALTH OF PENNSYLVANIA v. LAMONT BOOKARD

COMMONWEALTH OF PENNSYLVANIA v. LAMONT BOOKARD No. 1557 EDA 2007 2009 PA Super 146 Atlantic: 978 A.2d 1006 Filed: 7/29/2009
	Appeal from the PCRA Order of April 26, 2007 in the Court of Common Pleas of Philadelphia County, Criminal, Nos. CP-51-CR-0707741-2000, CP-51-CR-0707751-2000
Before: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BOWES, PANELLA, DONOHUE and SHOGAN, JJ.
Opinion by: KLEIN, J.
Dissenting Opinion by: DONOHUE, J.
Lamont Bookard appeals from an order denying his request for post-conviction relief on the ground that his trial counsel, attorney Susan Burt-Collins, was ineffective for failing to ask for a charge on alibi. We find that counsel articulated a reasonable strategic basis for failing to request such a charge; she had an alternate theory of defense and did not want to cloud the issue by focusing on an alibi defense. Since it was questionable as to whether it was impossible for Bookard to be present to commit the crime, and counsel did not want the jury distracted by that issue, we believe that strategy was reasonable and therefore we affirm the denial of post-conviction relief.

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COMMONWEALTH OF PENNSYLVANIA v. STEPHEN FOGLIA

COMMONWEALTH OF PENNSYLVANIA v. STEPHEN FOGLIA No. 2079 EDA 2007 2009 PA Super 138 Atlantic: 979 A.2d 357 Filed: 7/21/2009
	Appeal from the Judgment of Sentence of May 31, 2007, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-1301295-2006
Before: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BOWES, PANELLA, DONOHUE and SHOGAN, JJ.
Opinion by: BOWES, J.
Dissenting Opinion by: DONOHUE, J.
On appeal, Stephen Foglia challenges the constitutionality of a police interdiction that led to the discovery of his possession of an unlicensed firearm. We affirm.

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COMMONWEALTH OF PENNSYLVANIA v. SUE ZORTMAN

COMMONWEALTH OF PENNSYLVANIA v. SUE ZORTMAN No. 368 WDA 2008 2009 PA Super 139 Atlantic: n/a Petition for Reargument Denied 9/22/2009 Filed: 7/20/2009
	Appeal from the Judgment of Sentence of January 31, 2008, in the Court of Common Pleas of Clearfield County, Criminal Division, at No. CP-17-CR-0000061-2007.
Before: BOWES, FREEDBERG AND POPOVICH, JJ.
Opinion by: BOWES, J.
Dissenting Opinion Opinion by: POPOVICH, J.
The Commonwealth appeals the sentencing court’s refusal to apply the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712.1. We vacate the judgment of sentence and remand for sentencing in accordance with that statute.

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