Judges Opinions Public Notices, — March 17, 2020 10:44 — 0 Comments

Public Notices – February 12, 2020

Volume 57, No. 28

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

CHANGE OF NAME

FICTITIOUS NAME

NOTICE OF ACTION TO QUIET TITLE

 

TABLE OF CONTENTS

Berks County Public Defender Job Opening

Commonwealth of Pennsylvania v. Andrew Sears

 

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 PAULINE M. POPP, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Donald Popp, Executor

 

Keith D. Wagner, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF MANLEY L. LAYMAN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Larry Layman, Executor

133 East Patrick Road

Palmyra, PA 17078

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 East Main Street

Palmyra, PA 17078

 

ESTATE OF PATRICIA A. SCHOOLS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Douglas G. Brandt, Co-Executor

1289 Mt. Wilson Road

Lebanon, PA 17042

 

Joan E. Smith, Co-Executrix

7 Ladderback Lane

Palmyra, PA 17078

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 East Main Street

Palmyra, PA 17078

ESTATE OF JOYCE I. GRIMES, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lisa A. Filter, Executrix

Estate of Joyce I. Grimes

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF WALTER H. SPERAW, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Daniel J. Speraw, Executor

474 E. Main Street

Annville, PA 17003

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GLADYS L. LAUDERMILCH, a/k/a GLADYS LOCKWOOD LAUDERMILCH, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Glenn C. Laudermilch, Administrator

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF AUDREY FERN LENTZ, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Natalie Scicchitano, Executrix

Sean M. Pierson, Esquire

105 East Oregon Road

Lititz, PA 17543

 

 

 

 

 

 

ESTATE OF KENNETH R. OXENREIDER a/k/a KENNETH OXENREIDER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Dianna Schlegal, Executrix

Neal A. Rice, Esquire

Legacy Law, PLLC

15 N. Spruce Street

Lititz, PA 17543

 

ESTATE OF STARR M. SKISHALLEY, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Steven M. Skishalley, Administrator

Keith D. Wagner, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF LINDA M. MARTZ, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Michael T. Heffelfinger, Co-Executor

Becky J. Diaz, Co-Executrix

Joseph J. Plunkett, Esquire

Plunkett & Graver, P.C.

2030 Tilgham Street

Suite 202

Allentown, PA 18104

 

SECOND PUBLICATION

 

ESTATE OF GEORGE W. FISHER, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David R. Fisher, Executor

Keith D. Wagner, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF VERNA V. SCHWARTZ, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David L. Schwartz, Executor

Keith D. Wagner, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF VERNA M. KLAHR, late of North Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Darvin N. Klahr, Co-Executor

Lonnie K. Klahr, Co-Executor

Melody R. Klahr, Co-Executor

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF JEANETTE LILLIAN EISENHAUER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

William Eisenhauer, Executor

439 North 6th Street

Lebanon, PA 17046

 

Thomas S. Long, Esquire

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GEORGE J. PITT, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Duane A. Pitt, Executor

George E, Christianson, Esquire

411 Chestnut Street

Lebanon, PA  17042

 

ESTATE OF GARY S. STAGER, late of the Township of Jackson, County of Lebanon and Commonwealth of Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lori A. Breisch, Executrix

11 S. Butterfly Drive

Myerstown, PA  17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA  17067

 

THIRD PUBLICATION

 

ESTATE OF RICHARD A. GIBSON, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Executrix.

 

Inez R. Goldberg, Executrix

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF PETER WEATHERBY, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sandra D. Weatherby, Executrix

19 Juniper Street

Palmyra, PA 17078

 

John W. Purcell, Jr., Esquire

Purcell, Krug, & Haller

1719 North Front Street

Harrisburg, PA 17102

 

 

ESTATE OF LUCY A. PIETSCH a/k/a LUCY ANNA PIETSCH, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David A. DiNunzio, Executor

907 Kiner Avenue

Lebanon, PA 17042

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA   17042

 

ESTATE OF RONDA L. YINGST, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Charles M. Vonada, Executor

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JUDITH MARIE HERMAN, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Earl W. Herman, Jr., Executor

308 Timber Blvd

Lebanon, PA 17042

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MARY H. KRAUSE, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

John E. Krause, Co-Executor

14 Houston Drive

Mechanicsburg, PA 17050

 

Jean L. Bragg, Co-Executrix

28 Racehorse Drive

Jonestown, PA 17038

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF SAMUEL SELDOMRIDGE, late of the Borough of Richland, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Dennis J. Seldomridge, Executor

  1. O. Box 187

Richland, PA  17087

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF ALICE DARQUENNE HERBERT, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Elizabeth H. Hayward, Executrix

 

Estate of Alice Darquenne Herbert

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF GALEN L. BOYD, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors

 

Mardell L. Knepper, Co-Executor

Brian L. Boyd, Co-Executor

 

Justin J. Bollinger, Esquire

Gibbel, Kraybill & Hess

PO Box 5349

Lancaster, PA 17606

 

 

NAME CHANGE

 

Notice is hereby given that on January 17, 2020, the Petition of Paul R. DiGiacomo was filed in the Court of Common Pleas of Lebanon County, requesting an Order to change the name of Khanh Nguyen DiGiacomo to Alexander Khanh Nguyen DiGiacomo.  The Court has fixed March 3, 2020, at 8:30 a.m. o’clock in Courtroom No. 3 of the Lebanon County Courthouse, 400 South 8th Street, Lebanon, Pennsylvania as the time and place for the Video Conference Hearing on said Petition, when and where all interested parties may appear and show cause, if any, why the request of the Petitioner should not be granted.

 

FICTITIOUS NAME REGISTRATION

 

An application for registration of the fictitious name Antique Associates, 216 S. Race St., PO Box 39, Richland, PA 17087 has been filed in the Department of State at Harrisburg, PA, File Date 12/13/2019 pursuant to the Fictitious Names Act, Act 1982-295. The name and address of the person who is a party to the registration is Jeffrey M. Linette, 216 S. Race St., Richland, PA 17087.

 

NOTICE OF ACTION TO QUIET TITLE

 

IN THE COURT OF COMMON PLEAS

LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW

No  2019-02152

 

TAMMY L. SUTCH, EXECUTRIX

OF THE ESTATE OF

GEORGE T. EVANS, deceased

Plaintiff

vs.

PUBLIC FINANCE CONSUMER

DISCOUNT COMPANY, a former

Pennsylvania Business Corporation

Defendant

 

LEGAL NOTICE

 

The Plaintiff has commenced a Quiet Title Action claiming fee simple title unencumbered by a mortgage to Public Finance Consumer Discount Company which was recorded October 21, 1983 between George T. Evans and Fern P. Evans and the Defendant, Public Finance Consumer Discount Company. Said mortgage was recorded in Lebanon County Mortgage Book 418 at page 149 (hereinafter “Disputed Mortgage”). The Plaintiff avers the Disputed Mortgage was paid in full on or about January 1, 1987, but the Defendant failed or refused to mark the Disputed Mortgage satisfied after payment in full by the Mortgagors. The Plaintiff will ask the Court to mark the Disputed Mortgage satisfied.

 

If you wish to defend, you must enter a written appearance personally or by attorney and file your defenses or objections in writing with the court. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you without further notice for the relief requested by the Plaintiff. You may lose money or property or other rights important to you.

 

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELPEHONE THE OFFICE SET FORTH BELOWW. 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.

 

MidPenn Legal Services

513 Chestnut Street

Lebanon, PA 17042

717-274-2834

HENRY & BEAVER LLP

By:  Thomas P. Harlan

Identification No. 06320

937 Willow Street

P.O. Box 1140

Lebanon, PA 17042-1140

(717) 274-3644

 

 

 

Berks County Public Defender Job Opening

 

 

Judges Opinion

 

Commonwealth of Pennsylvania v. Andrew Sears

 

Criminal Action-Law-Writ of Habeas Corpus-Retaliation Against a Victim-Course of Conduct-Single Act of Incident-Acts from Prior Convictions

 

Following past convictions in 2015 relating to sexually abusing a minor victim, Defendant was charged with criminal offenses including Retaliation against Victim, Witness or Party pursuant to 18 Pa.C.S. § 4953 and Retaliation in a Child Abuse Case pursuant to 18 Pa.C.S. § 4958 for allegedly subsequently uttering a single threat to the victim while driving in a vehicle by the victim who was riding on a motorized scooter.  Defendant filed a Petition for Writ of Habeas Corpus seeking dismissal of the charges on the basis that the single threat cannot sustain charges for these offenses.  The Commonwealth asserts that the conduct from the past convictions properly can be considered in sustaining engaging in a course of conduct threatening another person necessary to sustain the charges.

 

  1. In Commonwealth v. Ostrosky, 909 A.2d 1124 (Pa. 2006), the Pennsylvania Supreme Court held that a single threat that resulted in no physical harm was not the type of act that would trigger violation of Retaliation against a Victim, Witness or Party, as the harm required by the statute cannot be established merely by showing that one (1) unlawful act has been committed.

 

  1. Two (2) incidents can support a finding of engaging in a course of conduct threatening another person as required by both § 4953 and § 4958.

 

  1. Every additional predicate event beyond the bare minimum of the two (2) incidents strengthens an alleged course of conduct.

 

  1. Where there are two (2) predicate acts and Defendant was prosecuted and convicted relating to one (1) of the acts that occurred over three (3) years ago, the predicate acts cannot properly sustain charges for engaging in a course of conduct threatening the victim as required pursuant to § 4953 and § 4958 and necessitates dismissal of these charges.

 

L.C.C.C.P. No. CP-38-CR-0001556-2018, Opinion by Bradford H. Charles, Judge, June 21, 2019.

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                      : 

PENNSYLVANIA                                :                                                                                                                           :        NO. CP-38-CR-1556-2018

  1. :       

                                                          :

ANDREW SEARS                     :

:

ORDER OF COURT

 

AND NOW, this 21st day of June, 2019, in accordance with the attached Opinion, the Order of this Court is as follows:

  1. The DEFENDANT’s Motion for Writ of Habeas Corpus as to Count 1 is granted. Count 1 of the information is dismissed.
  2. The DEFENDANT’s Motion for Writ of Habeas Corpus as to Count 2 is granted. Count 2 of the information is dismissed.
  3. Count 3 of the information remains viable. The DEFENDANT is to appear for the Criminal Call of the List on July 9, 2019 at 8:30a.m. in the designated Courtroom.  He is also to appear for the first day of criminal trials scheduled to commence on July 22, 2019 at 8:30a.m. in the designated Courtroom.
  4. Nothing in this decision shall prevent the Commonwealth from pursuing a parole violation allegation on Docket 1835-2015.

 

 

BY THE COURT:

 

                                               J.

BRADFORD H. CHARLES

 

 

BHC/pmd

 

cc:     Megan Ryland-Tanner, Esquire// District Attorney’s Office

Elizabeth Pasqualini, Esquire//  2205 Forest Hills Drive, Ste 10, Harrisburg PA  17112

Court Administration (order only)

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                      : 

PENNSYLVANIA                                :                                                                                                                           :        NO. CP-38-CR-1556-2018

  1. :       

                                                          :

ANDREW SEARS                     :

:

APPEARANCES

 

Megan Ryland-Tanner, Esquire           For Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE

 

Elizabeth Pasqualini, Esquire             For Andrew Sears

 

OPINION BY CHARLES, J., June 21, 2019

 

The DEFENDANT was convicted in 2015 of sexually abusing a minor victim.  On August 26, 2018, the victim reported that the DEFENDANT threatened him.  The Commonwealth thereafter charged the DEFENDANT with three criminal offenses relating to the threat.  The DEFENDANT filed a Motion for a Writ of Habeas Corpus as it relates to two of these charges.  We issue this Opinion to address the Motion filed by the DEFENDANT.

 

  1. FACTS

In early 2015, the DEFENDANT was charged with numerous sexually-related offenses stemming from events involving an eleven (11) year old victim that occurred between September and December of 2014.  The DEFENDANT eventually plead guilty to these offenses on October 13, 2015.  This Court then sentenced the DEFENDANT pursuant to a plea agreement that called for the DEFENDANT to spend time in the Lebanon County Prison followed by additional time on house arrest.  The DEFENDANT was required to spend roughly four (4) years on supervision as a result of these offenses.

On August 26, 2018, while still under supervision for the sexually-related offenses outlined above, the DEFENDANT allegedly encountered the victim near US Route 322 in southern Lebanon County.  At the time, the victim was riding on a scooter.  The DEFENDANT was operating a motor vehicle.

The victim, who is now fifteen (15) years of age, reported that the DEFENDANT stated: “I am going to get your fucking ass.”  In part because the victim was scared because the DEFENDANT had previously threatened him, the victim immediately contacted police.  The DEFENDANT was promptly charged with Retaliation against Victim, Witness or Party under 18 Pa.C.S.A. §4953, Retaliation in a Child Abuse Case under 18 Pa.C.S.A. §4958 and Harassment under 18 Pa.C.S.A. §2709.

The DEFENDANT proceeded through a preliminary hearing on September 20, 2018.  After charges were bound over to Court, the DEFENDANT filed a Petition for Writ of Habeas Corpus.  The parties agreed that this Court should consider the transcript of the preliminary hearing as the factual basis for its decision.  That transcript was provided.  The DEFENDANT’s request to dismiss Counts 1 and 2 of the Criminal Information are now before this Court for its analysis.

 

  1. LEGAL ANALYSIS

Section 4953 of the Crimes Code is entitled “Retaliation Against Witness, Victim or Party”.  The Statute reads:

“A person commits an offense if he harms another by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim or a party in a civil matter.”

 

A key case interpreting § 4953 is Commonwealth v. Ostrosky, 909 A.2d 1224 (Pa. 2006).  Ostrosky involved a single threat by a defendant against a victim that was disturbing but did not result in “objective harm” to the victim.  The Pennsylvania Supreme Court declared that a single threat that resulted in no physical harm was not the type of act that would trigger a violation of § 4953.  The Court reasoned that the harm required by the statute cannot be established merely by showing that one unlawful act had been committed.  Id.

Section 4958 of the Crimes Code is entitled “Intimidation, Retaliation or Obstruction in Child Abuse Cases”.  That statute reads, in pertinent part:

“A person commits an offense if the person harms another person by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another person in retaliation for anything that the other person has lawfully done in the capacity of a reporter, witness or victim of child abuse.” 18 Pa.C.S.A. § 4958(b)

 

No Pennsylvania cases have interpreted § 4958.  However, the DEFENDANT argues that Ostrosky applies to both § 4953 and § 4958 because the language of both statutes are so similar.

The Commonwealth takes the position that the DEFENDANT can be culpable based upon the “course of conduct” provisions of both § 4953 and § 4958.  The Commonwealth points out that, in 2014 when the DEFENDANT initially abused the victim, the DEFENDANT threatened harm to the victim if he told anybody about the sexual abuse.  The Commonwealth argues:

“One must look back at the time of the sexual abuse when evaluating this case.  The behaviors back then set the tone for August 2018.  They also contribute to the course of conduct needed for Counts 1 and 2 of the Criminal Information.” (Commonwealth’s Brief)

 

Neither § 4953 nor § 4958 specifically define the term “course of conduct”.  However, the phrase has been defined within the context of other criminal statutes.  In Commonwealth v. Kelly, 102 A.3d 1025 (Pa. Super. 2014), the Pennsylvania Superior Court noted that the phrase “course of conduct” is employed in multiple instances elsewhere in the Crimes Code.  The Court noted that whenever “course of conduct” is implicated, there must be “more than one act over time.”  As it relates to criminal harassment, the Crimes Code indicates that course of conduct is “a pattern of actions composed of more than one act over a period of time…evidencing a continuity of conduct.” 18 Pa.C.S.A. § 2709(f).  In Kelly, the Superior Court concluded:

“The Commonwealth has not cited, nor have we found, any legal authority in which “course of conduct” is defined or used so as to encompass a single act….given the well-established meaning of the phrase “course of conduct”, we ascertain no ambiguity in its use…consequently, we hold that the use of the phrase “course of conduct”…imposes a requirement of multiple acts over time, in the same manner in which the term is used in the harassment, stalking and endangering the welfare of children statutes.”

Id. at page 1031.

 

As to whether the term “course of conduct” requires more than two acts, the case of Commonwealth v. Suarez, 2016 W.L. 5210886 (Pa. Super. July 27, 2016) is instructive.[1]  In Suarez, the Defendant committed two acts of sexual misconduct.  The Commonwealth alleged that this constituted a course of conduct for purposes of enhancing the Defendant’s penalty for indecent assault.  The Superior Court declared that two acts could be sufficient to establish that the Defendant had engaged in a course of conduct.  Interpreting the phrase “course of conduct” to mean “multiple acts over time”, the Court declared that it was the responsibility of a jury to determine whether such acts could constitute a “course of conduct”.  The analysis of Suarez is consistent with Commonwealth v. Leach, 729 A.2d 608 (Pa. Super. 1999).  In Leach, the Superior Court held that the term “course of conduct” for purposes of the stalking statute can be established “by proof of two related but separate events.” Id. at page 612.  We accept from Suarez and Leach that two incidents can support a finding of “course of conduct”; we also accept that every additional predicate event beyond the bare minimum of two strengthens the case for “course of conduct”.

None of the above answers the question of whether the DEFENDANT’s threat uttered in 2014 can constitute a predicate prior act for purposes of establishing a “course of conduct”.  Unfortunately, we have located no Pennsylvania decisional precedent that addresses this specific issue.

Analyzing whether the prior threat in 2015 can constitute a predicate act for purposes of establishing course of conduct, implicates numerous questions.  What is the period of time that separates the two threats?  Is there a time within which a prior predicate act can be deemed too stale to be considered?  Were charges filed as a result of the prior act that could raise double jeopardy concerns?  All of these questions are relevant in this case.

According to the file of Docket 1835-2015, the DEFENDANT told the victim in December of 2014 that he should not tell anyone else about the DEFENDANT’s sexual behavior toward him.  The latest alleged threat that led to charges now before this Court occurred on August 26, 2018.  Thus, the two alleged predicate acts upon which the Commonwealth relies were separated by roughly three and one-half (3 ½) years.  Is this a “continuity of conduct”?  As we see it, this time separation is at the outer limit of what could be considered to be a viable “course of conduct”.

Just as important is the fact that the DEFENDANT was charged, convicted and punished for the threat he uttered in 2014.  Count 11 of Docket 1835-2015 charged the DEFENDANT with intimidation of witness or victims.  The DEFENDANT was ordered to serve five (5) to twenty-three (23) months in prison as a result of the threat that he uttered toward the victim in 2014.  It strikes us as viscerally unfair to effectively punish the DEFENDANT twice for the threat he uttered in December of 2014.  Stripped to its essence, that is precisely what the Commonwealth seeks to accomplish.

We are well aware that the concept of double jeopardy is complicated and governed by a labyrinth of difficult to understand principles. We are also aware that within the context of a RICO[2] prosecution, a conviction of a predicate offense will not always bar a subsequent RICO charge that is based not only on the predicate offense but also on other factors as well.  See, e.g. Annotation, RICO Prosecutions and the Double Jeopardy/Multiple Punishment Problem, 78 NW L.Rev. 1359 (1984).  With that being said, we have found no Pennsylvania precedent that addresses the specific issue now before this Court, i.e., whether a course of conduct offense can be lawfully predicated upon a prior act for which the Defendant was charged and sentenced.

Ultimately, we do not believe that Pennsylvania’s General Assembly intended the phrase “course of conduct” to apply when there are only two predicate acts and the DEFENDANT was prosecuted and convicted for one that occurred over three years ago.  As a matter of law, we declare that it would be improper under the circumstances of this case for the DEFENDANT to be tried and convicted under the “course of conduct” provisions of both § 4953 and § 4958 of the Pennsylvania Crimes Code.

With the above having been concluded, we do not in any way wish to depreciate the seriousness of the allegations now lodged against the DEFENDANT.  No convicted sex offender should be permitted to threaten his/her victim within impunity, especially when that victim is a minor.  If in fact the DEFENDANT did utter threats against the minor victim of his sexual assaults, there must be a way to hold the DEFENDANT accountable for such behavior.  In this case, there is.  The DEFENDANT is also facing harassment charges in the above-referenced docket and we will not be dismissing those harassment charges.  More important, a parole violation allegation was submitted against the DEFENDANT as a result of his alleged threats.  On October 31. 2018, this Court entered an Order regarding the alleged parole violation.  In that Order, we deferred a decision regarding the alleged parole violation in order to enable the criminal charges now before the Court to be resolved.  At some future date, we will proceed ahead with a parole violation hearing.  If we determine at the hearing that the DEFENDANT uttered even one threat toward the victim of his sexual offense, we will not hesitate to violate his parole and re-incarcerate him for an appropriate period of time…and we will do so notwithstanding our decision today that the DEFENDANT cannot for technical reasons be charged with Retaliation offenses.

 

III.    CONCLUSION

We in no way wish to state or imply that threats made by a sexual offender toward his/her victim will be tolerated or ignored.  We simply do not believe that criminal charges under Sections 4953 and 4958 can be implicated under the circumstances presented by this case.  We will therefore enter an Order today dismissing Counts 1 and 2 of the Criminal Information in the above-referenced case.  This dismissal will be without prejudice to the ability of the Commonwealth to proceed on Count 3 and on the parole violation that is now pending in Docket 1835-2015.  An Order to accomplish these decisions will be entered today’s date.

 

[1] Suarez, is a non-precedential decision.  We do not cite it as binding precedent.  Rather, we cite it as helpful and persuasive.

[2] Racketeer Influenced and Corrupt Organizations Act, 18 USCA § 1961 et seq.

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