Judges Opinions Public Notices, — April 14, 2021 9:55 — 0 Comments

Public Notices, April 14, 2021

Volume 58, No. 37

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF PRIVATE SALE

NOTICE TO DEFEND

CHANGE OF NAME

TERMINATION OF PARENTAL RIGHTS

ARTICLES OF INCORPORATION

FICTITIOUS NAME

 

TABLE OF CONTENTS

Commonwealth of Pennsylvania v. Justin L. Rosencrance

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF MARY JANE KLICK, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Michael W. Klick, Executor

5 Georgie Lane

Richland, PA 17087

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GENE B. MATTERNESS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Amy B. Anderson, Executrix

27 Bethpage Drive

Mechanicsburg, PA 17050

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF FRANKLIN A. MARTRANO A/K/A FRANKLIN ANTHONY MARTRANO, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Dreama Miller, Executor

420 W. Cedar St.

Palmyra, PA 17078

 

Scott L Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF EULALA T. STINGER, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Leonard Crowther, Executor

 

  1. Charles Benner, Esquire

200 East Main Street

Leola, PA 17540

 

ESTATE OF LOUISE M. WILLEMAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Michael H. Willeman, Administrator

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF NANCY G. POUST, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Judith P. Heckard, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ERNESTINE E. HOUSER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Elaine E. Gibble, Executrix

Edwin E. Houser, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF RICHARD R. KRUMBINE, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Polly A. Krumbine, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HELENE M. EISENHAUER, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Jane L. Kaylor, Executrix

 

Kevin D. Dolan, Esquire

Nikolaus & Hohenadel, LLP

222 S. Market Street, Suite 201

Elizabethtown, PA 17022

 

SECOND PUBLICATION

 

ESTATE OF DOLORES V. UHLER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Debra A. Binkley, Executrix

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF JOHN RUTT A/K/A JOHN G. RUTT, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Stephen J. Mascherino, Administrator

 

Richard C. Seneca, Esquire

Seneca Law

P.O. Box 333

Lewisberry, PA  17339-0333

 

ESTATE OF LARRY H. ARNOLD, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Bonnie L. Wallish, Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF ROBERTA L. GRISWOLD, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased 1/23/21. Letters Testamentary have been granted to the undersigned Executor.

Kirk A. Griswold, Executor

210 Chapel Road

Newmanstown, PA 17073

 

Gerald W. Brann

Brann, Williams, Caldwell & Blaney

1090 West Main Street

Troy, PA 16947

 

ESTATE OF MARY C. MEININGER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Scott N. Ream, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF PETER F. HEWITT, late of Mount Gretna Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Gillian Marie Hewitt, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ANNA M. WAGNER, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Mervin L. Wagner, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ELIZABETH HEILIGMAN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fulton Financial Advisors, N.A., Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF CLARENCE G. BAILEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fulton Financial Advisors, N.A., Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF VERNON D. HERR, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Daryl T. Herr, Executor

1 Lost Acre Lane

Newmanstown, PA 17073

 

Nevin L. Herr, Executor

433 Sheephill Road

Newmanstown, PA 17073

 

Vernon L. Herr, Executor

2119 Walnut Street

Lebanon, PA 17042

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF JUDITH A. KENDIG A/K/A JUDITH ANN KENDIG, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Fulton Bank, N.A., Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MILDRED M. RUHL, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David M. Ruhl, Executor

 

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

THIRD PUBLICATION

 

ESTATE OF GRETCHEN A. CAMERON A/K/A GRETCHEN ANN CAMERON, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased 2/24/21. Letters Testamentary have been granted to the undersigned Executor.

 

Raymond T. Cameron, Executor

 

Kendra A. Mohr, Esquire

Pannebaker & Mohr, P.C.

4000 Vine St., Ste. 101

Middletown, PA 17057

 

ESTATE OF JOHN G. BECHTEL, late of Annville Township, Lebanon County, Pennsylvania, deceased 6/8/19. Letters Testamentary have been granted to the undersigned Executrix.

 

Linda Bechtel, Executrix

 

Kristen L. Behrens, Esquire

Dilworth Paxson LLP

457 Haddonfield Rd., Ste. 700

Cherry Hill, NJ 08002

 

ESTATE OF RUTH LEE CARTER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Mary Karen Newstadt, Executrix

508 Hedge Row Lane

Palmyra, PA 17078

 

David R. Warner, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ALAN K. THOMAS A/K/A ALAN KEITH THOMAS, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael A. Thomas, Executor

117 Pine Street

Lebanon, PA 17042

 

Patrick M. Reb, Esquire

547 South 10th Street

Lebanon, PA 17042

 

ESTATE OF MARY PHYLLIS KOHR, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Shawn Renee Kinney, Executrix

1998 Center Street

Lebanon, PA 17042

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF BARBARA MAE GOWER A/K/A BARBARA M. GOWER, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased 9/12/20. Letters of Administration have been granted to the undersigned Administratrix.

Barbara Louise Clauser, Administratrix

758 Carl Dr.

New Braunfels, TX 78130

 

Jennifer M. Merx,

Skarlatos Zonarich,

320 Market St., Ste. 600W

Harrisburg, PA 17101

 

ESTATE OF VELMA RITA GOE A/K/A V. RITA GOE, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased 8/13/19. Letters of Administration CTA have been granted to the undersigned Administrator.

Megan Castor, Administratrix CTA

550 Charles St.

Lebanon, PA 17042

 

Kathleen B. Murren,

Skarlatos Zonarich,

320 Market St., Ste. 600W

Harrisburg, PA 17101

 

ESTATE OF JOANN E. BEHNEY, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrators.

Ricky L. Behney, Administrator

8 Bungalow Street

Richland, PA 17087

 

Rodney L. Behney, Administrator

1049 E. Old Cumberland Street

Lebanon, PA 17042

 

Rhonda L. Olesh, Administrator

1051 Meckville Road

Fredericksburg, PA 17026

 

Rochelle L. Schucker, Administrator

85 Deck Drive

Myerstown, PA 17067

 

Rory L. Behney, Administrator

8 Cottage Road

Myerstown, PA 17067

 

Renee L. Smith, Administrator

1393 Greble Road

Myerstown, PA 17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA, 17067

 

ESTATE OF SANDRA E. SMITH, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Co-Administrators.

Lynnette Smith, Administatrix

Annette MacNamara, Administatrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MILDRED S. FRY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Joanne Wilson, Executor

77 Kricks Mill Road

Womelsdorf, PA 19567

 

Dennis Fry, Executor

66 Kricks Mill Road

Womelsdorf, PA 19567

 

Roseanne Kreitz, Executor

86 Kricks Mill Road

Womelsdorf, PA 19567

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF JANET R. MOORE, late of the Township of Jackson, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Rebecca K. Smith, Executor

107 E. Conestoga Street

New Holland, PA 17557

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF GARY L. SMITH, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased on January 29, 2021. Letters Testamentary have been granted to the undersigned Executor.

Clark Kristofor Olson-Smith, Executor

2626 Farnam St.

Davenport, IA 52803

 

Jean D. Seibert, Esquire

Caldwell & Kearns, PC

3631 N. Front St.

Harrisburg, PA 17110

 

 

 

 

 

 

NOTICE OF PRIVATE SALE

 

In Re:                                                                                                                          :           IN THE COURT OF COMMON PLEAS OF

Petition of the Board of School Directors                  :           LEBANON COUNTY, PENNSYLVANIA

Of the Lebanon School District for                            :           CIVIL ACTION – LAW

Approval of a Private Sale of Real Estate                  :           NO. 2021-00138

 

NOTICE OF PRIVATE SALE

 

NOTICE is hereby given that on February 9, 2021, the Board of Directors of the Lebanon School District, filed a Petition for the sale of the following tracts of real estate:

Northwest Elementary School containing 2.65 acres located on the northwest corner of the intersection of North Ninth Street and Maple Street in Lebanon City; and the second parcel of land containing .95 acres, adjacent to the elementary school building, the identified tax parcel I.D. numbers are 07-2336938-372822 and 07-2336473-372837, respectively.

The Court has fixed the 6th day of May, 2021, at 1:30 o’clock P.M. at Lebanon County Court of Common Pleas, located at 400 South Eighth Street, Lebanon, Pennsylvania 17042, as the time and place for the hearing on said petition when and where all persons interested may appear and show cause, if any they have, why the prayer of the petitioner should not be granted.

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042-0049

Phone: (717) 274-1421

E-mail: Bechtold@buzgondavis.com

Solicitor for Lebanon School District

 

 

NOTICE TO DEFEND

 

LOGS LEGAL GROUP LLP

BY: CHRISTOPHER A. DeNARDO, PA I.D. NO. 78447

KRISTEN D. LITTLE, PA I.D. NO. 79992

ALISON H. TULIO, PA I.D. NO. 87075

ELIZABETH L. WASSALL, PA I.D. NO. 77788

LESLIE J. RASE, PA I.D. NO. 58365

3600 HORIZON DRIVE, SUITE 150

KING OF PRUSSIA, PA 19406

TELEPHONE: (610) 278-6800

E-MAIL: PAHELP@LOGS.COM

LLG FILE NO. 20-065974

 

American Advisors Group

PLAINTIFF

 

VS.

 

Unknown Heirs, Successors, Assigns and All Persons, Firms or Associations Claiming Right, Title or Interest from or under Guy Wartluft, deceased; Gary L. Wartluft, known Heir of Guy Wartluft, deceased; LouAnn Hartman, known Heir of Guy Wartluft, deceased; and Debra Miller, known Heir of Guy Wartluft, deceased

DEFENDANTS

 

COURT OF COMMON PLEAS

CIVIL DIVISION

LEBANON COUNTY

 

NO: 2021-00135

 

To the Defendants, Unknown Heirs, Successors, Assigns and All Persons, Firms or Associations Claiming Right, Title or Interest from or under Guy Wartluft, deceased: TAKE NOTICE THAT THE Plaintiff, American Advisors Group has filed an action Mortgage Foreclosure, as captioned above.

 

NOTICE

 

IF YOU WISH TO DEFEND, YOU MUST ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE YOUR DEFENSE OR OBJECTIONS 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.

 

YOU SHOULD TAKE THIS NOTICE TO YOUR LAWYER AT ONCE. IF YOU DO NOT 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 PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

 

Lebanon County Lawyer Referral Center

MidPenn Legal Services

513 Chestnut Street

Lebanon, PA 17042

 

CHANGE OF NAME

COURT OF COMMON PLEAS – LEBANON COUNTY, PA – CIVIL ACTION-LAW – No. 2021-00083 – NOTICE IS HEREBY GIVEN that the Petition of NICHOLAS G. SCHNECK, was filed in the above named Court, praying for a Decree to change Petitioner’s name to EVELYN ALISON LOVELOCK. The Court has fixed 4/28/21, at 1:30 P.M. in Courtroom 2, Lebanon County Courthouse, 400 S. Eighth St., Lebanon, PA 17042, as the time and place for the hearing of said Petition, when and where all persons interested may appear and show cause, if any they have, why the prayer of the said Petition should not be granted.

 

William J. Mansfield, Inc.

998 Old Eagle School Road, Suite 1209

Wayne, PA 19087

 

 

TERMINATION OF PARENTAL RIGHTS

 

LEBANON COUNTY PENNSYLVANIA

ORPHANS’ COURT DIVISION

 

NOTICE OF HEARING

TO TERMINATE PARENTAL RIGHTS

 

April 30, 2021

 

Time:              8:30 a.m., Unknown Father

Docket No. 2021, In Re: Male child, BI, born April 15, 2009

 

A petition has been filed asking the Court to put an end to all rights you have to your child.  The Court has set a hearing to consider ending your rights to your child.  That hearing will be held in Lebanon County Courthouse, Municipal Bldg., 400 S. Eighth Street, Lebanon, Pennsylvania, in Courtroom No. 2, on the date and time specified.  You are warned that even I 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 the 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, go to or telephone the office set forth below to find out where you can get legal help.

 

Mid Penn Legal Services

513 Chestnut Street

Lebanon, PA  17042

(717) 274-2834

 

Mindy Goodman, Esquire
2215 Forest Hills Drive – Suite 35
Harrisburg, PA  17112
(717) 540-8742
goodmanlaw@verizon.net

 

ARTICLES OF INCORPORATION

NOTICE IS HEREBY GIVEN that the Articles of Incorporation were filed with the Pennsylvania of State on or about January 29, 2021 for a nonprofit corporation organized under the Nonprofit Corporation Law of 1988 for the Commonwealth of Pennsylvania, as amended.

 

The name of the Corporation is INNOCENT PASSAGE

 

The Corporation is organized exclusively for charitable and education purposes, permitted within the scope of Section 501 (c)(3) and 509 of the Internal Revenue Code of 1986, as amended, or corresponding section of any future federal tax code.

 

Deborah Cardinal

322 Spring Road

Palmyra, PA 17078

President, Innocent Passage

 

FICTITIOUS NAME

 

NOTICE IS HEREBY GIVEN, pursuant to the provisions of the Fictitious Names

Act 54 Pa.C.S.A. §311(g), that on April 13, 2021. Applying for the fictitious name of Texter Mt Bike Service with the intent to operate a bike repair business. The fictitious name search being previously filed according to the fictitious names act. The principal place of business at 138 N Sheridan Rd Newmanstown PA 17073 . The name and address of the person owning or interested in said business is Caleb Showalter with the same address of 138 N Sheridan Rd Newmanstown PA 17073.

 

Caleb Showalter

138 N Sheridan Rd

Newmanstown PA 17073

 

 

 

 

JUDGES OPINION

 

Commonwealth of Pennsylvania v. Justin L. Rosencrance

 

Criminal Action-Law-Aggravated Assault-Babysitter-Injuries to Infant Child-Post Conviction Collateral Relief-Ineffective Assistance of Counsel-Arguable Merit of Claim-Reasonable Basis for Trial Counsel’s Conduct-Prejudice-Expert Medical Witness-Omnibus Pretrial Motion-Suppression of Statements-Voluntariness of Waiver of Rights-Mitigating Evidence at Sentencing

 

Justin L. Rosencrance (“Defendant”) was convicted following a trial by jury of Aggravated Assault, and Simple Assault for causing injuries to a nine (9) month old child who he had been babysitting.  The Court imposed an aggregate sentence of fifty-four (54) months to ten (10) years’ imprisonment as a result of those convictions.  Following dismissal of an appeal to the Pennsylvania Superior Court, Defendant filed a Petition for Post Conviction Collateral Relief asserting ineffective assistance of his trial counsel for failing to call an expert witness to refute testimony of a doctor that the injuries occurred at the time when the victim was in Defendant’s care and not at the time of an older injury, to file pretrial motions challenging inculpatory statements Defendant made to law enforcement and to present mitigating evidence at sentencing.

 

  1. To obtain post conviction collateral relief on an allegation of ineffective assistance of counsel, a defendant must establish by a preponderance of the evidence that the underlying claim has arguable merit, counsel’s action or inaction had no reasonable basis designed to effectuate a defendant’s interest and there is a reasonable probability that the outcome of the proceedings would have been different but for the alleged error or omission.

 

  1. To establish that a claim for failure to call an expert witness has arguable merit, a defendant must prove that an expert witness was willing and available to testify on the subject at trial, counsel knew or should have known about the witness and defendant was prejudiced by the absence of the testimony.

 

  1. A defendant must show that the testimony provided by the expert witness would have been helpful to the case to establish prejudice.

 

  1. Counsel need not introduce expert testimony if he or she effectively is able to cross examine prosecution witnesses and to elicit helpful testimony.

 

  1. Defendant failed to establish ineffectiveness for failing to present expert testimony where Defendant failed to provide information that an expert existed who could have been called at trial to opine that the injuries could have resulted from an older injury, trial counsel testified that his attempts to obtain an expert to provide testimony in this regard were unsuccessful and he believed that expert testimony could have bolstered the testimony of the Commonwealth’s medical expert and trial counsel effectively cross examined the Commonwealth’s medical expert regarding the cause and timing of the victim’s injuries.

 

  1. In determining whether a waiver of rights under Miranda v. Arizona, 384 U.S. 436 (1966), is valid, the court must examine the totality of the circumstances surrounding the waiver including a defendant’s physical and psychological state, the attitude exhibited by law enforcement and any other factors that may serve to drain one’s power of resistance to suggestion and coercion.

 

  1. In considering whether a waiver of Miranda rights was knowing, intelligent and voluntary, the relinquishment of the right must have been voluntary and made with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it.

 

  1. In light of the fact that Defendant failed to provide testimony or evidence of any diminished mental state from medications he was taking or stress affecting his ability to understand his waiver of rights or any inappropriate or overbearing conduct of law enforcement compelling the claimant to waive his rights and Defendant’s admissions to a Children and Youth Services employee would have been admissible even if Defendant’s statements to law enforcement had been suppressed, Defendant failed to establish ineffective assistance for failing to file a pretrial motion for suppression of evidence.

 

  1. The question of whether counsel was ineffective for failing to investigate and to present sufficient mitigating evidence depends on a myriad of factors including the reasonableness of counsel’s investigation, the mitigation evidence that was presented and the mitigation evidence that could have been presented.

 

  1. Where the Court already was aware of the circumstances of Defendant’s mental state at the time of the incident from testimony at trial and Defendant’s statements at sentencing and additional information about such matters would not have compelled a lesser sentence than that the Court imposed which fell within the lower end of the standard range of suggested sentences, Defendant failed to establish arguable merit with regard to his allegation of ineffectiveness for failing to present mitigating evidence at trial.

 

L.C.C.C.P. No. CP-38-CR-0000527-2017, Opinion by John C. Tylwalk, President Judge, August 10, 2020.

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA           :           NO. CP-38-CR-527-2017

:

  1. :

:

JUSTIN L. ROSENCRANCE                                     :

 

ORDER OF COURT

 

AND NOW, this 10th day of August, 2020, upon consideration of Defendant’s Amended Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq, the Commonwealth’s response thereto, the evidence adduced at the hearing conducted on May 28, 2020, and the Briefs and Exhibits submitted by the parties, it is hereby Ordered that Defendant’s request for collateral relief is DENIED and said Petition is DISMISSED.  Defendant is advised that, in the event he desires to appeal this decision, he must file a notice of appeal to the Superior Court of Pennsylvania in writing within thirty (30) days of this Order.

 

 

BY THE COURT:

 

                                                                                    _________________________, P.J.

                                                                                    JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Megan Ryland Tanner, Esquire/Senior Deputy District Attorney

       Dalia Aboraya, Esquire/Assistant Public Defender

       Leslie Fillak/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA           :           NO. CP-38-CR-527-2017

:

  1. :

:

JUSTIN L. ROSENCRANCE                                     :

 

APPEARANCES:

 

MEGAN RYLAND TANNER, ESQUIRE               FOR THE COMMONWEALTH

SENIOR DEPUTY DISTRICT ATTORNEY

 

DALIA ABORAYA, ESQUIRE                                FOR JUSTIN L. ROSENCRANCE

ASSISTANT PUBLIC DEFENDER

 

OPINION, TYLWALK, P.J., AUGUST 10, 2020.

 

Defendant was charged with two counts of Aggravated Assault, one count of Simple Assault, and one count of Endangering the Welfare of a Child[1]  for causing injuries to a nine-month-old child who was in his care.  After a jury trial was conducted on April 17 and 18, 2018, he was convicted of two counts of Aggravated Assault and one count of Simple Assault.

At the jury trial, the evidence established that Defendant and his girlfriend began to babysit the victim at their home in September 2016.  On December 7, 2016, the victim appeared ill when his father picked him up from Defendant’s home.  On December 9, 2016, the victim began to experience seizures and was taken to Hershey Medical Center (“HMC”) where he was found to have suffered multiple serious injuries, including a subdural hematoma, significant retinal hemorrhaging in both eyes, blood around the brain, neck and ear bruising, and damage to the ligaments that hold the spine in place.

Detective Matthew Brindley of the Lebanon County Detective Bureau interviewed Defendant as part of his investigation of the case.  At the trial, Detective Brindley testified that Defendant had admitted to him that on December 7, 2016 he became frustrated with the child, had picked him up under his armpits and shook him, and then threw him down onto a beanbag chair.  Detective Brindley also read from Defendant’s written statement, in which Defendant stated:

[The victim] was having a fit, and in an attempt to soothe him, I picked him up under his arms, he screamed more, started fussing, so I snapped.  I gripped him up, gave him a shake, asked “what is wrong with you?” And tossed him  on the sack (cushion) in our living room next to the pack-and-play. … It kills me inside knowing it was me.”

 

(N.T. Jury Trial April 17-18, 2018 at pp. 84-85)

 

Trooper Wes Levan of the Pennsylvania State Police also testified at the jury trial.  Corporal Levan conducted an interview with Defendant at the request of Detective Brindley. During that interview, Defendant had also admitted to shaking the victim and then tossing him onto a cushion.  Corporal Levan explained that the entire interview process lasted approximately two hours during which Defendant was free to leave at any time.  Approximately one and a half hours into the process, Corporal Levan gave Defendant a twenty-minute break, took Defendant out to the lobby, and told him he could do whatever he wanted during the break.  Defendant was not supervised or accompanied during the break period.

Dr. Lori Frasier, the Medical Director of the HMS Child Protection Team was present when the victim arrived at HMS on December 9, 2016.  At the trial, Dr. Frasier testified that the victim had suffered horrific injuries and concluded that they were the result of abuse which would have occurred within two to three days prior to the seizure.  This placed the abuse as possibly occurring on December 7, 2016, when the victim was under Defendant’s care.    Dr. Frasier testified that shaking a nine-month-old child and throwing him down on a cushion was consistent with the nature and timing of the injuries.  Dr. Frasier acknowledged that the victim had sustained another chronic subdural hematoma prior in time to these injuries, but explained that the new injuries were unrelated to the older one.  Dr. Frasier also discounted the possibility of the injuries being caused by the actions of the victim’s four-year-old sibling.

On July 11, 2018, we sentenced Defendant to fifty-four (54) months to ten (10) years’ incarceration.  Defendant filed Post Sentence Motions challenging the sufficiency and weight of the evidence and charging that the Court erred in giving jury instructions.  We denied the Post Sentence Motions and Defendant pursued a pro se appeal to the Superior Court of Pennsylvania. The Superior Court dismissed the appeal by Order of June 28, 2019.

Defendant has filed a timely Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq.   In the Petition, Defendant alleges ineffectiveness on the part of Richard Roberts, Esquire (“Trial Counsel”), the attorney who represented him in this action.  We appointed PCRA counsel and a counseled Amended Petition was filed.  We conducted a hearing on Defendant’s claims on May 28, 2020, the parties have submitted post-hearing Briefs, and the matter is now before us for disposition.

At the hearing, Defendant testified that he had hired Trial Counsel to conduct his defense approximately a year and a half prior to trial and that Trial Counsel continued with his representation throughout his trial and sentencing.  Defendant explained that he decided to go to trial because he felt that, while he was guilty of the less serious charges, he was not guilty of aggravated assault:

“… I did not feel like I was completely guilty of all the charges that were filed.  While I did feel like I was guilty of the simple assault and the endangering the welfare, I did not believe that I was guilty of the aggravated assault, the bodily injury, or the aggravated assault.”

 

(N.T. PCRA hearing 5/28/20 at 9).

 

Defendant complained that Trial Counsel did not file any pretrial motions and that no witnesses were called to testify on his behalf at trial.  Prior to trial, he and Trial Counsel had discussed obtaining an expert witness to testify at trial in order to refute Dr. Frasier’s anticipated testimony on behalf of the Commonwealth.

Trial Counsel arranged for two of Defendant’s friends and his grandfather to speak on his behalf at his sentencing on July 11, 2018.  However, Defendant explained that when he spoke to Trial Counsel prior to sentencing, nothing was discussed regarding the possibility of him being sentenced in the mitigated range.

On cross-examination, Defendant explained that the mitigating factors he had wanted Trial Counsel to raise at sentencing involved his having been on bail for a year and a half with no issues, that he always appeared in a timely fashion for all meetings and proceedings, that he had custody of his own children during that time, that he never had any contact with the victim, and that he was employed and maintained a healthy mental state throughout the time prior to and during trial.  Defendant claimed that PTSD was a leading factor that led to this incident and explained that he wanted the Court to know that he had been taking all necessary steps to take responsibility for his actions.  Since he was sentenced at the lower end of the standard range, he believe that these factors would have led the Court to impose a sentence in the mitigated range.

Defendant further testified that he felt his attorney had erred in failing to obtain an expert witness to refute Dr. Frasier’s testimony.  He explained that he would have provided the funds necessary to hire an expert, but that Trial Counsel never explained to him why an expert was not hired despite obtaining a continuance in order to locate a defense expert for trial.

Trial Counsel was also called to testify at the PCRA hearing.  He explained that he and Defendant had discussed hiring an expert to testify for his case in chief because they anticipated that the Commonwealth would call Dr. Frasier to testify about the victim’s injuries.  Trial Counsel explained that there was a problem with obtaining an expert because of the brain injury that was sustained prior to the injuries at issue in this matter, and he could not find an expert who could place that older injury outside of the timeframe when the child was under Defendant’s care.  Trial Counsel noted that the information regarding the prior injury did come out during the course of the jury trial and he did not feel that it was prudent to present an expert who was unable to counter Dr. Frasier’s testimony.

Trial Counsel also explained that after reviewing the discovery in this matter, he found that there were no legitimate pretrial issues which could be raised.  He did not raise any challenges regarding Defendant’s statements to police because he had confirmed that Defendant had received his Miranda warnings prior to making the statements and that Defendant had admitted to causing at least some of the victim’s injuries during those interviews.  Had Trial Counsel noted any pretrial issues, he confirmed that he would have filed a pretrial motion.

On cross-examination, Trial Counsel explained that he was unable to find an expert to testify as to who caused the child’s injuries.  He had attempted to find an expert through a former colleague who worked on shaken baby cases at the Pennsylvania Innocence Project.  That individual had arranged for several potential experts to examine the case; however, all of them provided the same response – that the victim had definitely been injured previously but there remained a question as to who had caused those previous injuries.  Trial Counsel could not recall whether he discussed this information with Defendant prior to trial.

Failure to Obtain Expert for Trial/Failure to Properly Cross-Examine   

Dr. Frasier

 

Defendant first charges that Trial Counsel was ineffective for his failure to investigate and acquire the services of an expert for trial.  In order to obtain collateral relief upon a claim of ineffective assistance of counsel, the petitioner must establish by a preponderance of the evidence that (1) the underlying claim has arguable merit, (2) that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate his client’s interests, and (3) that but for the alleged error or omission, there is a reasonable probability that the outcome of the proceeding would have been different.  Commonwealth v. Abu-Jamal, 720 A.2d 79, 88 (Pa. 1998).

To satisfy the “arguable merit” prong for a claim of ineffectiveness based upon trial counsel’s failure to call an expert witness, the petitioner must prove that an expert witness was willing and available to testify on the subject of the testimony at trial, counsel knew or should have known about the witness and the defendant was prejudiced by the absence of the testimony. Prejudice in this respect requires the petitioner to “show how the uncalled witness” testimony would have been beneficial under the circumstances of the case. Therefore, the petitioner’s burden is to show that testimony provided by the uncalled witnesses would have been helpful to the defense.

 

 

This Court has held, however, that the failure to call an expert witness does not necessarily render counsel’s performance deficient.

Trial counsel need not introduce expert testimony on his client’s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony that was presented by the prosecution. Thus, the question becomes whether or not defense counsel effectively cross-examined the Commonwealth’s expert witness.

 

Commonwealth v. Williams, 141 A.3d 440, 460-464 (Pa. 2016) (internal citations omitted).

At the PCRA hearing, Defendant failed to provide information as to the existence of any expert who could have been called at the jury trial to opine that the new subdural hematomas could have resulted from the older brain injury which had been never been diagnosed or treated.  Trial Counsel related that his attempts at securing an expert who could testify on this issue were unsuccessful and that the question of who was responsible for any of the victim’s injuries would still remain even if such expert testimony was presented.   We believe it was a reasonable decision on the part of Trial Counsel to avoid presenting any evidence which had the potential to bolster the Commonwealth’s case when such evidence would not counter Dr. Frasier’s testimony.

Defendant further charges that Trial Counsel failed to properly cross-examine Dr. Frasier at trial.  However, our review of the jury trial transcript reveals that Trial Counsel fully and effectively cross-examined Dr. Frasier on all points of her testimony regarding the extent, cause and timing of the victim’s injuries and any possible relation to the victim’s prior brain injury.   (N.T. Jury Trial, April 17-18. 2018 at pp. 66-69)  Trial Counsel’s focus on the undiagnosed brain injury which had been sustained by the victim prior to the injuries at issue here was in line with the defense strategy of pointing the blame for the injuries to the victim’s mother.  For these reasons, we find that Trial Counsel was not ineffective for failing to present expert testimony, that the outcome would not have differed with such testimony, and that Trial Counsel adequately questioned Dr. Frasier on cross examination at trial.  Therefore, Defendant will be afforded no collateral relief on this basis.

Failure to File Pretrial Motions

In his Brief, Defendant contends that Trial Counsel should have raised a pretrial challenge to the voluntariness of the statement he made to Corporal Levan and his oral admission and written statements to Detective Brindley on the basis that his mental state had compromised his ability to render a valid Miranda waiver prior to giving the statements.  He argues that Trial Counsel was ineffective for failing to file any pretrial motions to suppress the statements on that basis.

In determining whether a waiver of Miranda rights is valid, a suppression court looks to the totality of the circumstances surrounding the waiver, including, but not limited to the declarant’s physical and psychological state, the attitude exhibited by the police during the interrogation, and any other factors which may serve to drain one’s powers of resistance to suggestion and coercion.  Commonwealth v. Lyons, 79 A.3d 1053 (Pa. 2013), cert. denied 572 U.S. 1048 (2014).  The burden of proof is on the Commonwealth to prove by a preponderance of the evidence that the Miranda waiver was knowing and intelligent.  Commonwealth v. Smith, 210 A.3d 1050 (Pa. Super. 2019).

When a defendant challenges the admission of a statement made during a custodial interrogation, a court will engage in a two-part inquiry to determine whether defendant’s Miranda waiver was knowing, intelligent, and voluntary: first, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception, and second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.  Commonwealth v. Smith, 210 A.3d 1050 (Pa. Super. 2019).  In order to be afforded collateral relief based on ineffective assistance of counsel for failure to file a suppression motion, a defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable.  Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016).

Defendant did not testify regarding the circumstances of the statements he gave to Corporal Levan or Detective Brindley at the PCRA hearing.  He failed to identify what his diminished mental state entailed, i.e., whether his medications made him confused, disoriented, delusional, etc.   He also offered no medical testimony regarding the effects of his various medications with regard to his understanding of his Miranda warnings and the validity of the waiver of his rights.

In his brief, Defendant explains that he was administered a polygraph examination by Corporate Levan on February 27, 2018.[2] At the conclusion of the examination, Corporal Levan informed him that a deception had been indicated and that it was then that he admitted to Corporal Levan that he had caused the victim’s injuries.  He complains that the report of this interview does not indicate that he was free to leave or that he had been given his Miranda warnings prior to making the admission.  He explains that when he was taken into custody on March 7, 2017, he was then advised of his rights and agreed to speak with Detective Brindley.  At that point he also admitted to causing the victim’s injuries and provided a written statement.  Detective Brindley testified as to Defendant’s statements at the jury trial.

Defendant contends that Detective Brindley knew from a previous police report that Defendant was on multiple medications for his unsteady mental health due to his friend’s suicide and that his mental state was compromised at the time he made the admission to Corporal Levan.  Defendant asserts that Trial Counsel should have filed a motion to suppress these statements due to his inability to make a valid waiver of his rights due to this emotional state when the statements were made.[3]

At the PCRA hearing, the Commonwealth introduced Defendant’s Polygraph Rights Warning and Consent Form (Exhibit “1”).  Defendant does not allege any overbearing conduct on the part of Corporal Levan during administration of the polygraph or the oral interview.  In his Brief, he merely points to Corporal Levan informing him of the results of the test.    At the jury trial, Corporal Levan testified that Defendant was told that the door to the interview room was not locked and that Defendant was free to leave at any time during the interview.  Corporal Levan reported that he gave Defendant a break to leave the interview unaccompanied and unsupervised.  Thus, we find no evidence of any conduct on the part of Corporal Levan or any alteration of Defendant’s mental capacity as a basis for a motion to suppress this statement.  Trial Counsel was not ineffective for failing to pursue a meritless claim.

Defendant also claims that Trial Counsel should have filed a Motion to Suppress his statements to Detective Brindley despite his being given his Miranda warnings and signing a waiver form.  He claims that the multiple medications he was taking at the time also negatively impacted his mental status at the time of those statements to the extent that he did not have the requisite level of comprehension necessary to render a knowing and intelligent waiver of his Miranda rights.

We again note that Defendant presented no testimony regarding the circumstances when he gave these statements or any medical evidence regarding any impact these medications would have had on his ability to comprehend the Miranda warnings rendered by Detective Brindley, to understand the consequences of a waiver of these rights, and to make a voluntary statement.  Thus, we believe such a motion would have also been a fruitless endeavor on the part of Trial Counsel.

We further note that Defendant was also interviewed by Jessica McTavish of Lebanon County Children and Youth Services during the investigation of this matter.  At trial, Ms. McTavish testified that after she conducted her interview with Defendant, he subsequently initiated an additional meeting with her during which he explained that he became frustrated with the victim, picked him up, and shook him.  (N.T. Jury Trial, April 17-18, 2018 at p. 177)  Thus, even if Defendant’s statements to police had been suppressed, this admission of his conduct would have still been presented to the jury through Ms. McTavish’s testimony.

Failure to Present Mitigating Factors at Sentencing

Defendant’s final contention is that Trial Counsel was ineffective for failing to bring mitigating factors to the Court’s attention and to request a sentence in the mitigated range at Sentencing.  He reasons that because he was sentenced in the lower end of the standard range, he would have received a mitigated sentence if the Court had taken into consideration his mental problems, his prescribed medications, his statement that his mental health was impaired due to the death of a close friend, his show of remorse, and his taking responsibility for his actions.  The question of whether counsel was ineffective for failing to investigate and present sufficient mitigating evidence depends upon a myriad of factors, including the reasonableness of counsel’s investigation, the mitigation evidence that was actually represented, and the mitigation evidence that could have been presented.  29 Standard Pennsylvania Practice 2d §138:59, citing Commonwealth v. Martin, 5 A.3d 177 (Pa. 2010).

We first note that the Court was well aware of the circumstances of Defendant’s mental state at the time of the incident as various witnesses testified at the jury trial as to Defendant’s statements regarding his stress over the loss of a friend to suicide, the loss of his employment, and the fact that he was taking medications for anxiety and depression at the time of this incident.  Corporal Levan, Detective Brindley, and Ms. McTavish all recounted Defendant’s description of his situation and his general inability to handle basic stressors.    (N.T. Jury Trial, April 17-18, 2018 at p. 84, 173-174, 194-195)

At Sentencing, Defendant also explained to the Court his mental state at the time of the incident, his feelings of remorse and responsibility, and his concern that he would not be able to care for his own children while he was incarcerated.  The Court further acknowledged that Defendant had lost his job around the time of the incident and that Defendant had offered his mental instability as a reason for his job loss.  The Court noted its consideration of these factors, but explained:

THE COURT:  And, you know, the only, I guess saving grace here, Mr. Rosencrance, is that I don’t believe you did what you did intentionally and I don’t believe that you did what you did knowingly.  Meaning, that you knew if you did this that it was going to harm this child.  I don’t think that at all, but the law is written in a way that embodies reckless behavior, and I think that’s what happened here.  You might have been overwhelmed by circumstances.

 

THE DEFENDANT:  Yes, sir, I can’t argue that.

 

THE COURT:  You may have been, but this child should not have borne the consequences of you feeling overwhelmed about your circumstances.

 

(N.T. Sentencing, July 11, 2018 at p. 17)    In imposing a sentence within the standard range, the Sentencing Judge explained:

I did not believe that there were strictly, what I would call mitigating factors here.  I did mention one factor, that being that I don’t believe this was intentional on your part, but that I took into consideration in deciding where within that standard range of sentences I would fall.

 

(N.T. Sentencing, July 11, 2018 at p. 20)

We cannot say that anything that Defendant now raises would have altered the sentence imposed.  The Court was aware of and considered the matters identified by Defendant in this PCRA proceeding and found that a sentence at the lower end of the standard range was appropriate.  As the Court had been made aware of these considerations throughout the proceedings and there was nothing further Trial Counsel could have brought to the Court’s attention, we find no error or omission on the part of Trial Counsel in this regard.

For these reasons, we find that Defendant has failed to establish any basis for collateral relief in this matter and will dismiss his Petition.

[1] Counts 1 through 4, 18 Pa.C.S.A. §§2702(a)(8), 2702(a)(9), 18 Pa.C.S.A. §2701(a)(1), and 18 Pa.C.S.A. §4304, respectively.

[2] The polygraph was not referenced in either the jury trial or the PCRA hearing.

[3] In his Amended PCRA Petition, Defendant does not assert that Trial Counsel should have moved to suppress the statements made to Corporal Levan; however, he appears to make this claim in his post-hearing Brief.

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