COMMONWEALTH vs. HENRY R. ARIAS.
Present: GRASSO, MCHUGH, & WOLOHOJIAN, JJ.
Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Hearsay, Confrontation of witnesses. Search and Seizure, Protective frisk, Reasonable suspicion, Consent, Automobile. Constitutional Law, Stop and frisk, Reasonable suspicion.
COMPLAINT received and sworn to in the Central Division of the Boston Municipal Court Department on May 30, 2008.
A pretrial motion to suppress evidence was heard by Sally A. Kelly, J., and the case was tried before Michael J. Coyne, J.
Nelson P. Lovins for the defendant.
Danielle Walsh (Kathleen Celio, Assistant District Attorney, with her) for the Commonwealth.
without a license in violation of G. L. c. 269, § 10(h). On appeal, he argues that a judge of the Boston Municipal Court erred in denying his motion to suppress physical evidence. He also argues that the trial judge, another judge of the Boston Municipal Court, erred in failing to conduct an evidentiary hearing on the issue of "voluntariness" of statements the defendant made to police and erroneously allowed introduction of hearsay testimony. [Note 1] We reverse.
he "drove a BMW [automobile], silver and blue, with no license plate." Sergeant Detective Mahoney "informed Officer Lewis of the information he had received, gave him Mr. Hart's phone number and told him to call [Hart] back and get all pertinent information that he could from him."
Officer Lewis contacted Hart and another MBTA employee named Halloran, who also had a supervisory role over contract cleaners. Without identifying the sources of their information, Hart and Halloran told Officer Lewis that "other people" [Note 3] had informed them that the defendant, one of the contract cleaners, "may be in possession of a firearm." They then provided Lewis with information regarding the defendant, including his name, where he worked, the type of vehicle that he had been seen driving, his date of birth, and "stuff like that based on his employment records." Hart and Halloran also told Officer Lewis that the defendant's shift was from 11:30 P.M. to 7:30 A.M., and that contract cleaning supervisors like the defendant were required to report to an MBTA office at Downtown Crossing in Boston at approximately 11:00 P.M. before going to their assigned work locations.
Relying on the information provided to him by Hart and Halloran, but without ascertaining the identities of or speaking to the "other people" from whom Hart and Halloran had obtained their information, Sergeant Detective Mahoney went to Downtown Crossing at 11:00 P.M. There he saw a parked silver and blue BMW. From the license plate on the vehicle, he learned that the car was registered to a woman who lived at an address that matched the address for the defendant Hart had provided. A search of other records revealed that the defendant had not been issued a firearms license.
cruiser, while Detective Cauley waited and watched from another location.
At some point between 11:30 P.M. and 1:00 A.M., the officers saw the defendant come out of a nearby building, walk to the BMW, and open either the passenger side door or the trunk several times. Around 1:00 A.M., the defendant returned to the car, opened the passenger door and sat down in the passenger seat to put on work boots. At that point, Sergeant Detective Mahoney approached him, with Officer Lewis close behind. Sergeant Detective Mahoney displayed his badge and the officers identified themselves as MBTA police. The officers were in plain clothes and, although armed, they did not draw their weapons.
Sergeant Detective Mahoney testified that, as he drew near, he asked to speak to the defendant. "At that time, he stood up. I informed him that we had information that there was a gentleman that worked there carrying a firearm and was the foreman of the crew. I told him for his safety, I was just going to do a pat down of him. He nodded his head affirmatively. I patted him down and found no other firearm. And then we asked if we could search the vehicle." [Note 4] The defendant said, "yes," or "yes, go ahead," or "yes, you may," or "go ahead, search the car. You can search the car."
him to a nearby cruiser, reciting the Miranda warnings as he did. The defendant "acknowledged" the warnings. [Note 6] Officer Lewis placed him in the cruiser's rear seat and then asked him "what happened," whereupon the defendant essentially repeated the account he had given in response to Sergeant Detective Mahoney's question.
"After a hearing and based on the credible evidence, this Court makes findings and rulings which include but are not limited to the following. The Defendant . . . admits he had a firearm loaded with ammunition in his motor vehicle. He argues that the police violated his right to be free from illegal search and seizure under the Fourth and Fourteenth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights when the police located that loaded firearm by searching his motor vehicle without a warrant and without his permission.
"Because this Court credits the testimony of Sergeant Detective John Mahoney and Detective Patrick Lewis, that the Defendant while not under arrest, consented to the search of his motor vehicle which resulted in the discovery of the firearm and ammunition, the Defendant's motion to suppress is denied.
"The Defendant had a firearm loaded with ammunition in his car. The police had good intelligence that the Defendant may have a firearm or firearms. The police made a threshold inquiry of the Defendant and told him they had information that he may have a gun. The police pat frisked the Defendant for their safety. The police asked the Defendant if they could search his car. The Defendant consented to the search. Detective Lewis Mirandized the Defendant orally, properly, after the firearm was located.
b. Discussion. On the record just described, the defendant argues that the Commonwealth has not satisfied its burden of proving that any consent he may have given for the search of his vehicle [Note 8] was untainted by what he characterizes as the unlawful stop and frisk by which it was preceded. We agree. In so doing, we accept the motion judge's findings of fact absent clear error, but independently review her conclusions of law. See Commonwealth v. Washington, 449 Mass. 476 , 480 (2007).
"[A] 'stop and frisk [is] constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful.' " Commonwealth v. Narcisse, 457 Mass. 1 , 7 (2010), quoting from Arizona v. Johnson, 555 U.S. 323, 326 (2009). "Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Ibid.
371 (2007); Commonwealth v. Narcisse, 457 Mass. at 6 ("once the officers told the defendant that they intended to pat frisk him, they seized his person within the meaning of the Fourth Amendment and art. 14").
Here, the record reveals nothing about the informants' basis of knowledge or veracity. Hart and Halloran, the MBTA employees who told the police about the defendant, expressly stated that they were passing on information they had obtained from "other people" but said nothing about who the other people were and provided no information about the other people that would enable anyone to determine either their veracity or basis of knowledge. In that regard, we treat the individuals who gave information to Hart and Halloran as unknown informants even though police knew their identities by the time of the hearing. See note 3, supra. Nothing in the record suggests that the police knew who the informants were before they arrested the defendant or that they had any idea how the informants knew of the gun. Moreover, information obtained from known informants receives somewhat greater weight than that received from anonymous informants because known informants expose themselves to "charge[s] of filing a false report or any comparable consequence of providing false information to law enforcement."
Commonwealth v. Mubdi, 456 Mass. 385 , 397 (2010). See Commonwealth v. Costa, 448 Mass. 510 , 515-517 (2007). Here, the informants faced no such consequences when they made their disclosures to Hart or Halloran. Indeed, nothing in the record suggests that they even knew that Hart or Halloran would relay their information to authorities.
When there is insufficient evidence to show an informant's basis of knowledge and veracity, "[i]ndependent police corroboration may make up for deficiencies in one or both of these factors." Commonwealth v. Barros, 435 Mass. at 176, quoting from Commonwealth v. Lyons, 409 Mass. 16 , 19 (1990). Corroboration of that sort, though, must show that the informant has knowledge related to the criminal activity, not mere "innocent details." Id. at 177 n.7. See Florida v. J.L., 529 U.S. 266, 272 (2000) (a tip must be "reliable in its assertion of illegality, not just in its tendency to identify a determinate person").
the other hand, tends to show accurate record keeping or faithful employment, not criminal activity.
The stop was therefore impermissible and the stop and frisk are analytically inseparable. Thus the question becomes whether the Commonwealth has satisfied its burden of showing that the defendant's consent to the automobile search was "free and voluntary," Commonwealth v. Yehudi Y., 56 Mass. App. Ct. 812 , 816 (2002), that is, "unfettered by coercion, express or implied, and . . . something more than mere 'acquiescence to a claim of lawful authority.' " Commonwealth v. Voisine, 414 Mass. 772 , 783 (1993), quoting from Commonwealth v. Walker, 370 Mass. 548 , 555, cert. denied, 429 U.S. 943 (1976). "Consent to search obtained through exploitation of a prior illegality, particularly very close in time following the prior illegality, has not been regarded as freely given unless the taint of the illegality has been attenuated. . . . It is the burden of the Commonwealth to prove that the taint has been sufficiently attenuated to allow the admission of the evidence derived from the prior illegality." Commonwealth v. Allen, 54 Mass. App. Ct. 719 , 721-722 (2002).
Insofar as dissipation of the taint is concerned, we think that this case is indistinguishable from Commonwealth v. Loughlin, 385 Mass. 60 (1982). There, after engaging in what the court determined to be an impermissible detention of a pickup truck driver and passenger and an impermissible patfrisk of the passenger, the officer asked the driver whether there were any weapons in the truck's passenger compartment. In response, the driver said, "No weapons. You can check." Id. at 62. The officer did, and found nothing. He then asked whether there were any weapons in the back of the vehicle. Again the driver answered, "No, you can check." Again the officer searched, this time finding marijuana, which led to the charges on which the driver and passenger were convicted. Ibid.
significant time elapsed between the illegality and the 'consent.' No intervening event occurred that dissipated the effect of the illegality." Id. at 63-64.
The same reasoning and result apply here. [Note 12] On this record it was error to deny the motion to suppress. The firearm and the ammunition it contained should not have been admitted at trial and no discussion is required to show that admission of either or both was not "harmless beyond a reasonable doubt." Commonwealth v. Tyree, 455 Mass. 676 , 700 (2010), quoting from Chapman v. California, 386 U.S. 18, 24 (1967).
2. Other claims. The defendant's other claims require far less discussion. We need not resolve his claim that the trial judge should have held an evidentiary hearing on the voluntariness of his statements. [Note 13] If there is to be a retrial and if the voluntariness of those statements remains a live issue, the voluntariness should be explored and a humane practice instruction given. See, e.g., Commonwealth v. Cryer, 426 Mass. 562 , 571 (1998); Commonwealth v. Miller, 68 Mass. App. Ct. 835 , 835 n.1 (2007).
Constitution. See Crawford v. Washington, 541 U.S. 36 (2004). The error was not harmless, as the testimony bore on issues central to the Commonwealth's case and central to the defense.
[Note 1] He also argues that the judge should have allowed his motion for a required finding at the close of the Commonwealth's case. At that stage, though, the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to allow the case to proceed. See generally Commonwealth v. Kater, 432 Mass. 404 , 410 (2000).
[Note 2] In urging affirmance of the judge's denial of the motion to suppress, the Commonwealth also relies on testimony presented by its witnesses at trial. We do not see a material difference between the testimony at the suppression hearing and at trial but, to the extent that there is a difference, we do not rely on trial testimony in reviewing a motion to suppress. See Commonwealth v. Deramo, 436 Mass. 40 , 43 (2002).
[Note 3] Covered by a protective order the motion judge issued, the "other people" were not identified at the hearing, although it is clear that by the time of the hearing the officers knew their names and addresses.
[Note 4] Officer Lewis's testimony was to the same effect: "At that time, we explained to him the reason why were talking to him which was that we had received reports that he may be in possession of a firearm at what point, we asked him to stand up and if he was willing -- we gave him a pat frisk."
[Note 5] Officer Lewis testified that the defendant made that statement after he had been handcuffed but before receiving any Miranda warnings.
[Note 6] The defendant is from the Dominican Republic and English is not his native language, though he has been in this country for ten years.
[Note 7] The record does not reflect that either party requested additional findings or that any were made.
[Note 8] At the hearing, the defendant testified that consent to search the vehicle had neither been sought nor given and that the vehicle search and the frisk proceeded simultaneously. The motion judge rejected that testimony.
[Note 9] The dispositive consequence of our conclusion means that it is unnecessary to decide whether a stop occurred at any earlier point in the encounter between the police and the defendant.
[Note 10] Despite the fact that illegal firearms are a current social scourge, the fact that firearms are an ingredient of an informant's report neither slackens the reliability requirements nor itself provides "reasonable suspicion of criminal activity." Commonwealth v. Alvarado, 423 Mass. 266 , 271, 273 (1996) (no reasonable suspicion "simply on a report of gun possession"). See Commonwealth v. Gomes, 458 Mass. 1017 , 1017-1019 (2010) (no imminent threat to public safety despite 911 call that a man was holding a gun in the air on a public street).
[Note 11] They also verified Hart's and Halloran's information that the defendant would be driving a BMW. It is unclear whether that information originated with Hart and Halloran or with the others. In any event it was only partially accurate, for Hart and Halloran told police that the car did not have a license plate. When Sergeant Detective Mahoney saw the car, it did have a license plate and he used that plate to tie the vehicle to the defendant's address.
[Note 12] Noteworthy in this regard is that the MBTA police have a consent form for vehicle searches. The officers, however, did not have a form with them that night, nor did they recite to the defendant the essence of what the form contains.
[Note 13] The defendant did not file a motion to suppress those statements.
[Note 14] The defendant unsuccessfully moved to exclude this evidence in a motion in limine. The defendant also objected to the admission of the testimony each time it was elicited during trial.


THE PEOPLE OF THE STATE OF COLORADO, Petitioner, v. ROBERT FARRELL WILLNER, Respondent.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, John J. Krause, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Petitioner.
Gerash, Robinson & Miranda, P.C., Scott H. Robinson, Denver, Colorado, Attorneys for Respondent.
Petitioner, Robert Farrell Willner (Willner), was convicted by a jury of the offense of first degree murder, in violation of section 18-3-102, 8B C.R.S. (1986), and crime of violence, in violation of section 16-11-309, 8A C.R.S. (1986). At trial, Willner tendered a jury instruction describing the limits of a person’s duty to retreat pursuant to our decision in Idrogo v. People, 818 P.2d 752 (Colo. 1991). The trial court refused to give the instruction to the jury, and the court of appeals, in an unpublished opinion (People v. Willner, No. 91CA1447 (Colo. App. Feb. 11, 1993)), reversed the trial court’s decision and remanded the case for a new trial. In addition, the trial court admitted evidence of two prior similar transactions under Colorado Rule of Evidence 404(b). The court of appeals determined that this evidence was improperly admitted. Id.
We hold that the trial court’s instruction accurately stated Colorado law on self defense and the evidence supported that instruction. We further conclude that the evidence that Willner had engaged in other, similar transactions was properly admitted. We therefore reverse the judgment of the court of appeals and remand the case to that court with directions to reinstate the trial court’s judgment of conviction.
On December 10, 1990, at approximately 2:00 a.m., Steven MacDonald (MacDonald) and the victim, both employed by Credit Casualty Recovery Company, attempted to repossess Willner’s 1983 Chevy Crew Cab pickup truck which was parked in Willner’s driveway. The victim gained entry to the pickup truck, started it without the ignition key, and backed it from Willner’s driveway, while MacDonald watched him from his tow vehicle parked several houses away.
At trial, MacDonald testified that shortly thereafter he heard two loud “pops” and, alarmed, immediately drove his vehicle towards the pickup truck. As he pulled close to the pickup, MacDonald saw a Caucasian man–later identified as Willner–clad only in green underwear and standing about three to five feet in front of the pickup truck with an automatic pistol in his hand. Willner’s arm was extended and the pistol was pointed at the truck. MacDonald further saw that the victim was slumped over in the driver’s seat of the pickup truck.
Willner fled the scene and the police arrived shortly after the incident and pronounced the victim dead. Several hours later, Willner went down to the police station to turn himself in and was arrested. Willner was charged with first degree murder and a crime of violence.
At trial, Willner testified that he left his house with his semiautomatic weapon in his hand with the belief that his pickup truck was being stolen and that, during this short time span, no thought had entered his mind about repossession. Willner admitted that he had shot and killed the victim, but claimed that the victim drove the truck toward him immediately before the shooting and he responded by running backwards and firing a warning shot into the air which hit the top of the truck. Willner additionally testified that he fired several more shots in order to prevent being run over. Willner stated that he fired directly at the driver only when he saw a flash or glint from inside the vehicle. He therefore maintains that he was acting in self defense.
The testimony of several witnesses contradicted Willner’s version of the incident. According to the testimony of the responding police officer and a neighbor, the pickup’s “back up” lights were still on, indicating that the vehicle was in reverse. The prosecution relied on this evidence to argue that the truck did not accelerate forward and proceed in Willner’s direction, as Willner claimed. Because the gunshots incapacitated the victim, it would have been impossible for him to shift the truck back into reverse after the shooting. Further, a few days after the shooting, a police examination of the pickup truck revealed that the pickup truck’s transmission fluid smelled burnt and, because the transmission kept slipping out of gear, the pickup’s maximum speed was only a few miles per hour.
At the conclusion of the jury trial, Willner was convicted of first degree murder and sentenced to life.
On appeal, the court of appeals reversed, finding that the trial court had incorrectly refused to tender a “non-retreat” self-defense instruction, and that the court erred by admitting evidence of certain prior shooting incidents by Willner.
(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury[.]. . . .
“The right to self-defense is only given in emergencies to enable persons who are attacked and to whom it may reasonably appear, that their lives or bodies are in danger of great bodily injury, to defend themselves; that this right is based upon what reasonable persons, having due regard for human life, would do under similar circumstances . . . .
When a Defendant is where he has a right to be and is assaulted by another in a way that the Defendant honestly and in good faith believes, and the circumstances being such as would induce a like belief in a reasonable man, that he is about to receive at the hands of his assailant great bodily harm, or to lose his life, the Defendant, if he did not provoke the assault, is not obliged to retreat or flee to save his life, but may stand his ground, and if necessary take human life.
2. Robert Willner had reasonable grounds to believe, and did believe, that he was in imminent danger of being killed or of receiving great bodily injury.
2. Robert Willner was the initial aggressor, except that his use of physical force upon [the victim] under the circumstances was justifiable if he withdrew from the encounter and effectively communicated to [the victim] his intent to do so, but [the victim] nevertheless continued or threatened the use of unlawful physical force.
In addition to the trial court’s instruction modeled after the statutory provision of the self-defense statute, the trial court gave a separate instruction on Willner’s theory of the case.
The defense in this case is that Robert Farrell Willner used reasonable force in running after his truck with a gun, chasing after a person he thought to be a thief stealing his truck, and that he only used deadly physical force when, while acting on the situation as it appeared to him that evening, he had reasonable grounds to believe and did believe that he was in imminent danger of being killed or of receiving great bodily injury at the hands of the driver of the truck.
The court of appeals found that the court’s instructions on the doctrines of provocation and initial aggressor were not warranted.
since the jury could have reasonably concluded from the evidence that [Willner] withdrew from the initial act of aggression, the trial court erred in refusing to instruct the jury regarding the law of nonretreat.
Willner, slip op. at 2.
The court of appeals therefore deemed Willner to be entitled to a new trial since “the failure to instruct on nonretreat, when applicable, deprives a defendant of the right to a possible acquittal on the ground of self-defense if the jury could have had a reasonable doubt as to whether [Willner] acted in self-defense.” Id.
The court of appeals, citing Idrogo v. People, 818 P.2d 752 (Colo. 1991), as authority, reversed the defendant’s conviction. In Idrogo, we reiterated the long-established rule in Colorado, which is also the majority view in this country, that an innocent victim of assault need not retreat before using deadly force if the victim reasonably believes the use of deadly force is required. Idrogo, 818 P.2d 752 at 756; Brown v. United States, 256 U.S. 335, 65 L. Ed. 961, 41 S. Ct. 501 (1921); People v. Gonzales, 71 Cal. 569, 12 P. 783 (Cal. 1887); Runyan v. State, 7 Ind. 80 (1877); Haynes v. State, 451 So. 2d 227 (Miss. 1984); People v. Johnson, 75 Mich. App. 337, 254 N.W.2d 667 (Mich. Ct. App. 1977); Voight v. State, 53 Tex. Crim. 268, 109 S.W. 205 (Tex. Crim. App. 1908). We held that Idrogo was entitled to an instruction explicitly explaining the doctrine of no-retreat, since the propounded instruction did not give the jury an opportunity to determine whether the defendant was the initial aggressor.
The present case is distinguishable from Idrogo for several reasons. Idrogo involved a situation in which a jury could have reasonably concluded that the defendant was not an initial aggressor or withdrew as an aggressor and communicated that withdrawal to the victim. The evidence established that the defendant had repeatedly backed away from his attacker and had several times asked for his attacker to “leave [him] alone” before he resorted to deadly force. Further, the defendant’s tendered instruction in Idrogo was modeled on the language in Boykin v. People, 22 Colo. 496, 504, 45 P. 419, 422 (1896).
In contrast, in this case, Willner, with a gun in his hand, ran down the street chasing the truck which the victim was slowly backing towards the “exit” street, located three or four houses away from Willner’s home. According to Willner’s testimony at trial, the pickup truck reversed its direction and accelerated towards him and Willner responded by running backwards and firing a warning shot into the air which hit the top of the truck. Willner further testified that he fired several more rounds directly at the truck as the truck continued coming towards him. The record does not support his contention that Willner was not the initial aggressor or that he withdrew and communicated his withdrawal to the victim.
The trial court’s self-defense instruction is the precise instruction warranted by Idrogo. The trial court gave an accurate and comprehensive statement to the jury of the law of self defense; the instruction closely tracked the text of the statute and was appropriate under the facts of this case. The trial court’s self-defense instruction incorporated the essential elements of Willner’s tendered jury instruction and adequately apprised the jury of the defendant’s reliance on the concept of no-retreat.
We therefore hold that the trial court’s instruction as given accurately stated the law of this jurisdiction, and adequately covered the essential points of law supported by the evidence in the case. Accordingly, the trial court properly instructed the jury on the law of self defense.
Prior to trial, at a hearing on the People’s motion to admit evidence of other acts, the People moved for admission of three instances of “other acts” evidence for the purpose of showing deliberation and intent. Defense counsel contested the admissibility of these acts, alleging that the acts only tend to show a propensity to use deadly force without justification, which is the equivalent of showing bad character. After a hearing on the motion, the trial court issued a written order in which it considered the issues raised by CRE 403 and CRE 404(b), and ruled that two of the three acts were admissible to establish Willner’s state of mind during the killing.
(1) March 9, 1981, “Van Repossession”: In the spring of 1981, a dispute arose between Willner and the owner of the body shop who had contracted to do certain work on Willner’s van. Willner stopped payment on a check for $ 2,000 worth of body work on his van. On March 9, 1981, four members of the shop alerted the police that they were going to repossess the van. While in the process of doing so that night, Willner ran out of his apartment with a handgun and fired several shots to prevent the repossession. No one was injured, and the police thereafter arrived and issued Willner a summons for discharging a firearm.
(2) December 4, 1989, “Christmas tree incident”: Willner, who was operating a Christmas tree lot, chased after the person in a van who had stolen a Christmas tree. Willner shot at the tires and fired a total of six shots at the van. An undercover police officer, who observed the whole incident, took all involved into custody. Willner was issued a summons and complaint for reckless endangerment.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Under Spoto, such evidence is admissible only if (1) the evidence relates to a material fact; (2) the evidence has logical relevance in that the evidence adds to the probability that the material fact is true; (3) the logical relevance of the evidence does not depend on an intermediate inference that the litigant has a bad character, which would be employed to support a further inference that the litigant acted in conformity with his bad character; and (4) the probative value of the evidence is not substantially outweighed by the evidence’s prejudicial impact.
In the present case, the trial court, following the guidelines set forth in Spoto, first found that the “other acts” evidence related to a material fact in this case, that being whether Willner acted intentionally after deliberation rather than in a hasty or in an impulsive manner on December 10, 1990. Next, the trial court found that the evidence tended to make the existence of the charged state of mind in this case (an intentional act committed after deliberation) more probable. The court then found that Willner’s prior conduct was logically relevant to Willner’s state of mind and his intent at the time of the shooting. Finally, the trial court found that the evidence was independent of an intermediate inference of bad character and that the probative value of this evidence, in assisting the jury to analyze Willner’s state of mind, outweighed the danger of unfair prejudice.
On appeal, the court of appeals ruled that the similar transaction evidence was improperly admitted to show Willner’s propensity to use firearms, and that it had no independent relevance to any purpose for which it properly could be admitted under CRE 404(b). We disagree.
A trial court has substantial discretion in deciding the admissibility of a similar transaction, and only where there is an abuse of discretion will that ruling be disturbed. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993).The similar transactions evidence was offered for the limited purpose of proving Willner’s intent, and that he did not act impulsively, but rather intentionally after deliberation. The similar transactions evidence shed light on a disputed issue, Willner’s intent, independent of Willner’s character.
In People v. Jones, 635 P.2d 904, 907 (Colo. App. 1981), the court of appeals ruled that, when prior acts of violence are admissible to show a pertinent character trait of the victim from which it may be inferred that he was the initial aggressor, that trait may be shown by specific instances of past conduct.
Under Federal Rule of Evidence 404(b), evidence of past conduct is admissible to prove knowledge. See, e.g., United States v. Record, 873 F.2d 1363, 1372-76 (10th Cir. 1989). In United States v. Owen, 15 F.3d 1528 (10th Cir. 1994), the government sought to prove that the defendant’s plan to collect political contributions from companies and employees under his control showed his knowledge of the tax laws and laws regarding political contributions by corporations and a willful attempt to avoid limitations imposed by those laws. The Tenth Circuit, in admitting the similar acts evidence, determined that defendant’s knowledge of reimbursements to political contributors and of the manner in which these transactions were recorded in corporate records was probative of his knowledge that the statements contained in the returns were false.
We hold that the trial court’s decision to admit the evidence satisfies all four prongs of the Spoto analysis. Willner’s intent was a material issue in this case, given that it bore on the issues of self defense and premeditation. The prior acts are also logically relevant, in that they make it more probable that Willner acted with criminal intent in shooting the victim. The similar transactions appear to be logically relevant, independent of the inference that they demonstrate that the defendant has a bad character. Although evidence that the defendant had fired his weapon in public places on two prior occasions may be regarded as evidence of bad character, this inference is mitigated by the fact that no mention was made of any criminal proceedings or arrests, even though the police were called to both scenes. Finally, the trial court determined under Colorado Rule of Evidence 403 that the probative value of this evidence, in assisting the jury to analyze Willner’s state of mind, outweighed the danger of unfair prejudice. The trial court has broad discretion to determine whether the probative value of the evidence outweighs its prejudice to the defendant. Ibarra, 849 P.2d 33 at 38.
Accordingly, we conclude that the trial court accurately stated Colorado law on self defense and the evidence supported that instruction. We further conclude that the trial court properly admitted the similar transactions evidence. We therefore reverse the judgment of the court of appeals and remand the case to that court with directions to reinstate the trial court’s judgment of conviction.
CHIEF JUSTICE ROVIRA does not participate.
Because I agree with the court of appeals’ analysis as to the propriety of the trial court’s jury instruction in this case, I respectfully dissent from the majority opinion.
Idrogo requires that “where the record contains any evidence tending to establish the defense of self-defense, the defendant is entitled to have the jury properly instructed with respect to that defense.” Idrogo v. People, 818 P.2d 752, 754 (Colo. 1991) (citations omitted). Idrogo also establishes that when there is such evidence adducing a defense of self-defense — however slight — the statutory jury instructions relating to that defense must adequately apprise the jury of the law of self defense from the standpoint of the defendant. Id. To satisfy this standard, the trial court is required to “tailor [the self-defense] instructions to the particular circumstances of a given case . . . .” Id. (citations omitted).
It is clear that if these principles were faithfully applied to the present case, Willner would be entitled to the non-retreat self-defense jury instruction that was rejected by the trial court. The majority attempts to distinguish Idrogo from the present case, however, on the ground that in Idrogo, the defendant was found to be the non-aggressor or the innocent victim of assault, inasmuch as the evidence in that case established that “the defendant had repeatedly backed away from his attacker and had several times asked for his attacker to ‘leave him alone.'” Maj. op. at 13 (emphasis added). Evidently, that the defendant in Idrogo was so persistent in retreating conveys some legal significance that frankly, I am unable to appreciate.
I should also point out that I find the majority’s contention that the trial court’s self-defense instruction “incorporated the essential elements of Willner’s tendered jury instruction and adequately apprised the jury of the defendant’s reliance on the concept of no-retreat,” maj. op. at 14, to be inconsistent with the standard enunciated in Idrogo. Idrogo requires that in order to assure that the jury is adequately apprised of the non-retreat concept, the jury instruction must be tailored to the particular circumstances so as to take into account the defendant’s perspective.
What concerned us in Idrogo is that without a proper instruction on the applicable law of self defense, a defendant might be deprived of the right to an acquittal on self defense grounds; this is the basis for such a low threshold in Idrogo. Again, that threshold is “any evidence tending to establish the defense of self defense.” Thus it is our function in the present case to determine whether the record contains any measure of evidence that would tend to establish that defense, rather than to expropriate an area reserved for the finder of fact, and dismiss evidence we find lacking in force. Because I believe the majority is unconvincing in its attempt to distinguish Idrogo from the present case, and that it also improperly weighs and repudiates the credibility of Willner’s evidence implying retreat, I respectfully dissent. Because I would affirm the court of appeals and remand for a new trial on this issue, I do not address the evidentiary issue.
1. The testimony at trial established that Willner had declared bankruptcy, both personally and with respect to his business, and had failed to meet a deadline to work out an acceptable repayment plan on his pickup truck. The evidence was disputed as to whether Willner had knowledge that the pickup truck might be repossessed.
2. The evidence at trial was presented largely by several witnesses who witnessed only various portions of the incident. The facts material to this appeal are undisputed.
3. Willner testified that he had been awakened from his sleep, and ran over to his bedroom window where he observed his truck starting to back away. Willner grabbed a gun from his nightstand. He did not attempt to telephone the police even though he passed several telephones on his way downstairs. He ran outside barefoot and dressed only in a pair of green underwear. Willner observed the pickup truck slowly backing down the street about 170 feet away and ran towards it.
5. § 16-11-309(2)(a)(I), 8A C.R.S. (1986).
6. It is unclear whether the victim perceived this initial shot to be a warning shot.
7. The prosecution’s medical expert in anatomical, clinical, and forensic pathology testified that the autopsy he performed established that the victim had died from brain injuries due to a fatal bullet wound. According to this expert, it would have been very difficult for the victim to function after receiving this fatal head wound.
CJI-Crim. 7:68. This instruction has been codified in § 18-1-704(3)(b), 8B C.R.S. (1986).
10.The defense further asserts that the instruction failed to advise the jury that if it were to find that Willner was not the initial aggressor, he had no duty to retreat before firing.
11. In considering the objections raised by the defense at the in camera hearing on the jury instructions, the court determined that Jury Instruction 10 adequately covered the issues contained in Willner’s tendered instructions 1, 2, and 3.
12. In raising the affirmative defense of self defense, the jury had to resolve whether Willner was the initial aggressor of the incident or the victim. We agree with the court of appeals that the evidence was sufficient to conclude that Willner was at all times the initial aggressor.
13. At common law, a person had a duty to retreat before using force to defend against an aggressor. See People v. Watson, 671 P.2d 973, 974 (Colo. App. 1983). This common law doctrine was later modified in this jurisdiction, Boykin v. People, 22 Colo. 496, 45 P. 419 (1896), and now applies only to cases “where the defendant voluntarily enters into a fight or where the parties engage in mutual combat, or where the defendant, being the assailant, does not endeavor in good faith to decline any further struggle before firing the fatal shot, and possibly to other similar cases.” Harris v. People, 32 Colo. 211, 218-19, 75 P. 427, 430 (1904).
14. In Idrogo, the trial court instructed the jury that Idrogo was entitled to use deadly force if he reasonably believed a lesser degree of force was inadequate and if the victim was committing or reasonably appeared to be committing an assault.
The latter part of the trial court’s instruction digressed from the language contained in § 18-1-704(2)(a), that a non-aggressor may use physical force, including deadly physical force, when such person believes, on reasonable grounds, that such conduct is necessary to avoid great bodily harm.
Raymond Archuleta . . . appeared on the scene, began to walk rapidly toward Idrogo, and asked “Are you messing with my bro?” Idrogo and Babb continued to slowly back away, and Idrogo displayed the knife to [Archuleta], stating “Leave us alone. We’re getting out of here. We don’t want trouble.” [Archuleta] nevertheless continued to walk rapidly toward the couple, raised his fists, and ultimately caught up with them. A fight ensued, during which [Archuleta] struck Idrogo and Idrogo stabbed [Archuleta] once. [Archuleta] died a short time later.
Idrogo v. People, 818 P.2d 752, 753 (Colo. 1991).
The latter portion of Idrogo’s tendered instruction, suggesting that a person acting in self-defense may turn aggressor, pursue a withdrawing initial aggressor and in some circumstances use deadly physical force to disarm or disable such initial aggressor, is not supported by our case law. While similar language appears in Boykin, that dicta is related to the circumstances of that case and has reference to the duty of police officers to disarm persons suspected of committing crimes. While the duty of no retreat has been extended generally to non-aggressors, the same may not be said for the right to pursue an initial aggressor who has withdrawn from the fray.
Idrogo, 818 P.2d 752 at 755-56 (citation omitted).
17. Willner testified that “it was like I became the chased instead of the chaser.” This statement is the only evidence supporting Willner’s claim that he had appropriated a victim status.
18. The evidence elicited at trial showed that the pickup truck’s “back up” lights were still on, indicating that the vehicle was in reverse, and that the victim received a fatal bullet wound to the brain which immediately incapacitated him and made it virtually impossible for him to be able to shift the truck back into reverse after the shooting.
19. Colorado Rule of Evidence 404(b) is identical to its federal counterpart, Federal Rule of Evidence 404(b).
20. The evidence was in conflict as to whether the gun was pointed at the shop owner and his cohorts or whether the gun was fired in the air.
21. There was no evidence that Willner had shot at any of the persons in the car.
22. In People v. Snyder, 874 P.2d 1076, (1994), in evaluating the Spoto analysis performed by the trial court, we stated that, “almost by definition, similar transaction evidence will suggest bad character and action in conformity therewith. The third prong of the Spoto test does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.” Id., 874 P.2d 1076, 1080, Although the inference of action in conformity with bad character will unavoidably be present whenever similar transaction evidence is admitted, the prosecution may not exploit that inference but must restrict its use of the evidence to the purposes for which it was admitted. This issue is not before us in this case.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
1. Still emphasizing this curious “extent of retreat” theory, the majority points out that there was only one statement “supporting Willner’s claim that he had appropriated a victim status.” Maj. op. at 14 n.17.


Any agreement that creates, express, or implied, an obligation on the contracting parties is a contract. There are various kinds of contracts that as an individual or a company you enter into during your lifetime. At times these contracts are subject to a legal dispute and its interpretation is the main legal contention to know whether the defendant is at fault or the plaintiff.
As there is no Federal Law regulating contract law in the United States; the contracting parties are free to choose the court of choice at the time of entering the contract. As a popular practice, companies tend to select the First State, Delaware as the Court of Choice due to the existing corporate laws. The courts in Delaware for contractual disputes consider factors such as the existence of a contract, violation of contractual agreements, and subsequent damages as the background for discussing breach of contracts.
While deciding whether the agreement between the plaintiff and defendant can be considered as a legally binding contract the first test is written agreement. The Chancery and the state government by various judgements and statutes – Code 1852, § 1167; 13 Del. Laws, c. 451; Code 1915, § 2626; 38 Del. Laws, c. 157; Code 1935, § 3106; 48 Del. Laws, c. 224, § 1; 6 Del. C. 1953, § 2714; 67 Del. Laws, c. 189, §§ 1-3; 70 Del. Laws, c. 186, § 1. – has made it amply clear that any agreement to be legally enforceable as a valid contract has to be a written agreement between parties.
If all the aforementioned conditions are met then it is a valid contract.
The contract ceases to exist if any of the parties breaches the terms and condition of the contract due to non-performance.
Material breach – any act that defeats the purpose of the contract can be considered as a material breach. For example, the caterer fails to deliver the wedding cake on the wedding day. This non-performance defeats the whole purpose of the contract.
Immaterial breach – any act that slightly deviates from the conditions of the contract can be considered as an immaterial breach. For example, the caterer delivers the cake at 2PM on the wedding day against the promised time of 1:30 PM. Though this is a breach of contract, but it hasn’t resulted in a complete breach.
Based on the non-performance of the parties the remedy is decided by the courts. It can be either in form of financial payment or asking to fulfill the original terms of the contract or initiate criminal proceeding depending upon the damages suffered and the reason for the non-performance.
In the aforementioned example, the caterer can be asked to pay financial damages for non-delivery of the cake if it was due to avoidable circumstances.
At times it is not possible for the parties to fulfill the contract due to unforeseeable circumstances such as death, accident, war or any natural calamity. In these situations, no penalty is levied by the court and these can be considered as vis major, i.e., acts of god.
For more detailed information or to file a case regarding contract law under Delaware courts, consult an attorney.
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In February 2013, we reported (on our Healthcare Law Blog) that the Centers for Medicare and Medicaid Services (CMS) announced the final rule for the Physician Payments Sunshine Act. In the interest of providing more transparency for patients, the final rule requires pharmaceutical and medical device manufacturers and group purchasing organizations to report payments or transfers of value provided to physicians or teaching hospitals and to report physician ownership and investment interests. The deadline for submission of aggregate data was March 31, 2014, and the deadline for submission of detailed data is June 30, 2014. CMS has already established a website to display that data beginning in September 2014. In the meantime, also in the interest of transparency, on April 9, 2014 CMS touted the “historic” release of data showing utilization, payments, and submitted charges for services and procedures provided by physicians and other health care professionals to Medicare beneficiaries. As claimed by CMS, this data covers “880,000 distinct health care providers who collectively received $77 billion in Medicare payments in 2012, under the Medicare Part B Fee-For-Service program” and will enable “a wide range of analyses that compare 6,000 different types of services and procedures provided, as well as payments received by individual health care providers.” (See press release. The data is available here.) The consequences of such unprecedented releases of payment/investment interest and Medicare billing data are significant.
While Medicare billing data has always been available to the Government, Sunshine Act data has not been previously available on this scale. According to CMS, compliance with the Act’s reporting requirements does not preclude liability under statutes such as the Anti-kickback Act (41 U.S.C. §51 et seq.). Federal and state prosecutors have already indicated that Sunshine Act reports are a potential source of data for new False Claims Act (FCA) investigations. Moreover, the data could support an inference of off-label marketing if, for example, a pharmaceutical manufacturer makes payments to physicians in unexpected specialties.
Perhaps of more concern is how the qui tam plaintiffs’ bar will react. For fiscal years 2009 – 2013, the DOJ used the FCA to recover $12.1 billion in federal health care dollars, and the vast majority came from qui tam cases. (See here.) Certainly, Sunshine Act and Medicare billing data can be used to corroborate or lend credibility to allegations made by clients, and therefore be considered when undertaking representation in the first place. The data can also serve to provide the claims detail necessary to satisfy Rule 9(b) of the Federal Rules of Civil Procedure. But the data can also be used to generate new allegations in search of a client. Savvy qui tam counsel can be expected to engage in “data mining” to find suspicious activity and then identify potential insiders who can serve as relators. This approach has the potential to overcome the FCA’s public disclosure bar. Actions brought by qui tam plaintiffs, but not the Government, can be dismissed if “substantially the same allegations or transactions” are in the public domain, i.e., “publicly disclosed” in a “Federal criminal, civil, or administrative hearing,” in a “congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation,” or from “the news media,” “unless … the person bringing the action is an original source of the information.” (31 U.S.C. §3730(e)(4)(A) & (B), as amended by the Affordable Care Act.) Although the specific issue of whether data released on the CMS website constitutes a “public disclosure” under the FCA has not yet been litigated, there is a reasonable likelihood that it will be considered as such. Under the prior version of the FCA, “[c]ourts have … broadly construed the term ‘administrative reports’ to include publicly-searchable databases.” (U.S. ex rel. Doe v. Staples, Inc., 932 F. Supp.2d 34, 40 (D.D.C. 2013), citing U.S. ex rel. Rosner v. WB/Stellar IP Owner, L.L.C., 739 F. Supp.2d 396, 407 (S.D.N.Y. 2010) (holding that public database on city agency’s website was “an administrative report” subject to FCA’s public disclosure bar); see also Schindler Elevator Corp. v. U.S. ex rel. Kirk, — U. S. –, 131 S. Ct. 1885 (2011) (federal agency’s written response to FOIA request for records constitutes a “report” within meaning of FCA’s public disclosure bar).) To qualify as an “original source,” an individual must have either “prior to a public disclosure … voluntarily disclosed to the Government the information” or have “knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and … voluntarily provided the information to the Government before filing an action.” (31 U.S.C. §3730(e)(4)(C).) Insiders should be in a position to provide non-public information that “materially adds” to Sunshine Act or Medicare billing data available on the CMS website, such as internal emails and memos, and thus qualify as original sources under the second prong.
In sum, the release of Sunshine Act and Medicare billing data is likely to increase Government investigations and generally benefit qui tam plaintiffs. Thus, in anticipation of the release of Sunshine Act data in September 2014 and given the release of Medicare billing data for 2012—which could continue in future years—now is a good time for prudent health care professionals to go back and review compensation arrangements and billing records to ensure that there are no surprises. And if any irregularities are found, being ahead of the curve provides more options, including potentially seeking entry into the OIG’s voluntary disclosure programs.
Fasten your seatbelts. We are in for a bumpy year.


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Albert Leon Stanback, Jr. (Henry E. Frye, Greensboro, N.C. (Court-appointed counsel) on brief), for appellant.
William H. Murdock, U.S. Atty. (Richard M. Dailey, Jr., Asst. U.S. Atty., on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit judges.
Ross Joseph Grier appeals his conviction on a charge of failing to report for induction into the armed forces of the United States pursuant to an order of his local Selective Service Board, in violation of 50 U.S.C. App. 462(a). Upon a plea of not guilty, Grier was tried before the court without a jury; he was found guilty and sentenced to imprisonment for a term of twenty-four months.
On appeal Grier contends that the lower court erred in denying his 'motion for dismissal' upon the ground that the order of the local board requiring him to report for induction was not a valid order. In support of this contention, he asserts: (1) that the local board was bound to reopen his classification upon his presentation of new information to support his claim of entitlement to a hardship deferment; (2) that the board conducted an investigation of the facts in connection with his request for a hardship deferment which action constituted a reopening of his classification; and (3) that the local board treated its action simply as a refusal to reopen, rather than a reclassification, and that he was thus denied an opportunity to appeal the classification in violation of his constitutional right to due process of law. We reverse.
On June 17, 1965, having previously registered with Local Board No. 42 in High Point, North Carolina, Grier was classified I-S (H) (deferment for high school students). On December 9, 1965, he was reclassified I-A and, on February 9, 1966, reclassified II-S (deferment for college students). On January 11, 1967, Grier was again classified I-A. On July 3, 1967, the local board received a letter from Grier requesting that his classification be changed to III-A (hardship deferment). Grier stated in his letter that his mother was a mental invalid and that his brother was a student, which meant that his family was primarily dependent upon him for support. There was no information in Grier's Selective Service file pertaining to his claim for a hardship deferment prior to the receipt of this letter. The clerk of the local board sent a written reply on July 10, 1967, requesting a physician's statement as to the mother's condition. On August 3, 1967, the local board received from Grier a Selective Service Form Number 118 (dependency questionnaire) in which he set out substantially the same facts recited in his earlier letter.
The local board requested a welfare report on Grier's family on August 31, 1967; the county welfare department submitted a report which was received by the local board on September 11, 1967, confirming Grier's statement that his mother was a mental invalid and disclosing that she was receiving $61.00 monthly in welfare payments.
On January 22, 1968,-- having passed his physical examination-- Grier was ordered by the local board to report for induction on February 8, 1968; he failed to report as ordered.
Under 32 C.F.R. 1625, upon receiving a written request to have a registrant's classification reopened, a local board may: (1) refuse to reopen the registrant's classification upon a determination that the information in the request fails to present any new facts, or, even if new facts are presented, such facts, if true, would not justify a change in the registrant's classification; or (2) reopen the classification and make a new determination as to what the registrant's classification should be in light of the newly submitted information and other information contained in the registrant's Selective Service file. The reopening of a classification is, in effect, the equivalent of a new classification and the registrant is entitled to the same right of appeal as in the case of an original classification. 32 C.F.R. 1625.11, 1625.12, and 1625.13.
It has been held that the question of whether or not additional evidence is of sufficient weight to require a reopening of a registrant's classification lies within the discretion of the local board, so long as this discretion is not arbitrarily exercised. Smith v. United States, 157 F.2d 176, 181 (4 Cir. 1946). However, the affidavits submitted by the registrant in the Smith case contained merely cumulative recitals of previously considered information, and there was evidence to show that the registrant was not devoting such time to ministerial work as necessary to establish a prima facie claim for the ministerial deferment which the registrant sought. As the court stated, '* * * It cannot be said under the circumstances that the (local board's) discretion was arbitrarily exercised.' Id. at 181.
Unlike Smith, in the instant case the facts presented by Grier upon requesting a reopening of his classification constituted new information which the local board had not previously considered, information as to facts, uncontroverted by other evidence, which made out a prima facie claim for a hardship classification and deferment. Here, Grier's local board clearly abused its discretion in arbitrarily denying a reopening of his classification. This conclusion gains support from decisions of other courts. In United States v. Walsh, 279 F.Supp. 115, 120 (D.Mass.1968), the court said: 'If a registrant seeking to have his case reopened submits new facts not previously presented which make out a prima facie case for a different classification, the local board is required by law to reopen the case.' Accord, United States v. Ransom, 223 F.2d 15, 17 (7 Cir. 1955); United States v. Burlich, 257 F.Supp. 906, 907, 910 (S.D.N.Y.1966).
Grier's letter requesting a hardship deferment and his subsequent Selective Service Form No. 118 questionnaire set out for the first time the facts that his mother was a mental invalid, that his brother was enrolled in school, and that his family was, for the most part, dependent upon him for support. No prior information of this nature appeared in Grier's Selective Service file. Thus, Grier's request for a hardship deferment presented new facts not previously considered which would have made out a prima facie case for a hardship classification.
In Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567 (1946), the Court held that '* * * the question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.' In United States v. Ransom, 223 F.2d 15, supra, the Seventh Circuit extended the Estep rule, requiring a basis in fact, to the action of a local board in determining whether or not changed conditions justified a reopening of the registrant's classification. The court stated: '* * *. The local board should not be able to escape the requirement of a basis in fact by simply refusing to reopen a registrant's file and consider it further. If a registrant makes a prima facie showing of right to a new classification, the board cannot refuse to give it to him unless it has at least a basis in fact for that refusal.' Id. at 17. We find no basis in fact in Grier's Selective Service file to justify the board's action in refusing to reopen his classification.
'The local board did not deal with the alleged facts or evidence of appellant's conscientious objector form as a question of whether this legally could provide basis for a reopening to be made, so as to entitle consideration and evaluation to be engaged in thereafter under the general classification procedure of the regulations. It shortcut the situation by directly proceeding, without purporting to reopen, to a consideration of whether appellant was entitled to a conscientious objector classification on the merits of the probative elements of its file.
Here, Grier was deprived of his right of appeal by the local board's failure to treat his classification as reopened. A registrant's right of appeal following a reopening of his classification is established by 32 C.F.R. 1625.13. Denial of such right is a denial of due process from which Grier is entitled to relief. Accordingly, the order requiring Grier to report for induction was void and his conviction cannot be permitted to stand.

matches: v. v. v. v. v. v.


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
Archdiocese of Philadelphia and Msgr. William Lynn. After careful review, we affirm.
The relevant facts and procedural history with respect to Appellant Finnegan are as follows. Appellant Finnegan was born on May 26, 1961. As a boy, he attended St. Francis Xavier parish in Philadelphia, Pennsylvania. One of the priests assigned to St. Francis Xavier parish was Fr. John Kline, who was a close family friend. Appellant Finnegan alleged that between 1968 and 1970, Fr. Kline sexually abused Appellant Finnegan on numerous occasions. Following the abuse, Appellant Finnegan claims to have repressed his memory of the incidents until 2007. In the spring of 2007, when Appellant Finnegan was forty-six years old, he recalled a single memory of the sexual abuse while speaking with his brother. Since that time, Appellant Finnegan claims the memories of sexual abuse have come back to him in waves; and he now remembers many incidents of abuse. In 2008, Appellant Finnegan reported the sexual abuse to the Victim Assistance Program of the Archdiocese of Philadelphia. The Victim Assistance Program offered to put Appellant Finnegan in contact with medical and psychological assistance; however, Appellant Finnegan did not seek psychiatric help until 2011. During treatment, Appellant Finnegan was diagnosed with chronic post-traumatic stress disorder (“PTSD”) with delayed onset, stemming from the alleged sexual abuse he endured as a child.
Appellees in the Philadelphia Court of Common Pleas.1 Appellant Finnegan amended his complaint twice and filed his second amended complaint on June 20, 2011, alleging one count each of vicarious liability under New Jersey law for the sexual abuse he endured in New Jersey, vicarious liability under Pennsylvania law for the sexual abuse he endured in Pennsylvania, negligence under Pennsylvania law, negligent supervision under New Jersey law, civil conspiracy to endanger the welfare of children, and fraudulent concealment.
The relevant facts and procedural history with respect to Appellant Gaughan are as follows. Appellant Gaughan was born on January 10, 1980. In 1994, he began working as a sacristan at Our Lady of Calvary parish in Philadelphia where Msgr. John Gillespie was a parish priest. Appellant Gaughan alleged that beginning in 1994 and continuing through 1997, Msgr. Gillespie sexually abused him on numerous occasions. In 2010, Appellant Gaughan reported the sexual abuse to the Victim Assistance Program of the Archdiocese of Philadelphia. That same year, Appellant Gaughan entered counseling upon the recommendation of the Victim Assistance Program.
1 The original complaint in both Mr. Finnegan’s case and Mr. Gaughan’s case included additional defendants who were dismissed prior to the filing of the motions for summary judgment. Consequently, they are not parties in this appeal. Additionally, Mr. Finnegan and Mr. Gaughan filed separate motions to discontinue this appeal as to Msgr. Lynn, which this Court granted on March 9, 2015, and April 13, 2015, respectively. The only remaining Appellee is the Archdiocese of Philadelphia.
During treatment, Appellant Gaughan was diagnosed with chronic PTSD stemming from the alleged sexual abuse he endured as a child.
On March 7, 2011, Appellant Gaughan filed a complaint against Appellees in the Philadelphia Court of Common Pleas. Appellant Gaughan amended his complaint twice and filed his second amended complaint on June 20, 2011, alleging one count each of fraud, negligent supervision, conspiracy to endanger the welfare of children, and fraudulent concealment. During his deposition on May 16, 2014, Appellant Gaughan admitted that he always remembered the abuse, but claimed to have only recently realized that the sexual abuse caused his psychological issues.
On June 3, 2014, Appellees filed motions for summary judgment as to both Appellant Finnegan’s and Appellant Gaughan’s second amended complaints. After oral arguments on both motions, the trial court granted summary judgment and dismissed Appellant Finnegan’s and Appellant Gaughan’s second amended complaints with prejudice on September 24, 2014. Appellant Finnegan and Appellant Gaughan separately filed timely notices of appeal on October 16, 2014. The trial court ordered both parties to file Rule 1925(b) concise statements of errors complained of on appeal, and both parties separately and timely complied on November 7, 2014. On March 13, 2015, Appellant Finnegan and Appellant Gaughan jointly filed an unopposed motion for consolidation of the appeals, which this Court granted on April 13, 2015.
(Appellant Finnegan’s Brief at 4).
DID THE TRIAL COURT ERR IN DETERMINING THE FACTUAL ISSUE OF WHEN APPELLANT LEARNED HE WAS INJURED PURSUANT TO PENNSYLVANIA’S TWO YEAR DISCOVERY RULE AS A MATTER OF LAW?
(Appellant Gaughan’s Brief at 2).
Our standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.
[W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.
law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) (internal citations and quotation marks omitted).
For purposes of disposition, we combine Appellant Finnegan’s issues and Appellant Gaughan’s issue. Appellant Finnegan and Appellant Gaughan commonly argue that genuine issues of material fact exist regarding when they discovered their injuries. They claim their real injuries occurred not when the abuse occurred, but when they connected the negative psychological effects of the abuse to the specific instances of abuse. For these reasons, Appellant Finnegan and Appellant Gaughan assert this Court should apply the discovery rule to toll the statute of limitations in their childhood sexual abuse cases until they discovered or reasonably should have discovered the full extent of their injuries. Appellant Finnegan and Appellant Gaughan aver that questions of fact surround when they discovered the connection between the alleged instances of abuse and the later psychological harms. Appellant Finnegan and Appellant Gaughan conclude the trial court erred by granting Appellees’ motions for summary judgment, and we should reverse and remand for trial. We disagree.
General rule.—Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.
Infancy.—If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such persons shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection, the term minor shall mean an individual who has not yet attained the age of 18.
(2)(i) If an individual entitled to bring a civil action arising from childhood sexual abuse is under 18 years of age at the time the cause of action accrues, the individual shall have a period of 12 years after attaining 18 years of age in which to commence an action for damages regardless of whether the individual files a criminal complaint regarding the childhood sexual abuse.
appeal denied, 549 Pa. 702, 700 A.2d 441 (1997).
[W]here the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. The “discovery rule” arises from the inability of the injured party, despite the exercise of reasonable diligence, to know of the injury or its cause. Its purpose is to exclude the period of time during which the injured party is reasonably unaware that an injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury.
citation omitted). “The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite the exercise of reasonable diligence.” Dalrymple v. Brown, 549 Pa. 217, 224, 701 A.2d 164, 167 (1997). The reasonable diligence standard “is not a standard of reasonable diligence unique to a particular plaintiff, but instead a standard of reasonable diligence as applied to a ‘reasonable person.’” Id. “[T]he point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law.” E.J.M. v. Archdiocese of Philadelphia, 622 A.2d 1388, 1391 (Pa.Super. 1993) (internal citation omitted).
“Pennsylvania law does not permit the tolling of a statute of limitations on account of an incapacity of the particular plaintiff which allegedly impaired his…ability to discover the injury or its cause.” Id. at 1393. “[W]here a plaintiff is aware of the fact of the injury, failure to know that [the plaintiff has] a cause of action resulting therefrom will not toll the statute of limitations.” Dalrymple, supra at 227, 701 A.2d at 169. “The very essence of the discovery rule in Pennsylvania is that it applies only to those situations where the nature of the injury itself is such that no amount of vigilance will enable the plaintiff to detect an injury.” Id. at 228-29, 701 A.2d at 170.
[An] appellant need not…know that what was happening to him was “abuse,” i.e. was wrongful, or precisely what type of psychological or emotional harm he would suffer as a result. Once he knew what was happening and who was doing it, he had a duty to investigate these questions and institute suit within the limitations period.
(4) years from the time he first “recalled” the childhood sexual abuse to institute this action. Therefore, in any event, his claims are barred by the statute of limitations. See 42 Pa.C.S.A. § 5524.
42 Pa.C.S.A. § 5533(b). Appellant Gaughan admitted in his deposition testimony that he remembered the abuse from the time it occurred and knew it was wrong. Nevertheless, Appellant Gaughan did not file suit until March 7, 2011, over eleven (11) years after the limitations period expired. Therefore, his claims are barred by the statute of limitations. See 42 Pa.C.S.A § 5533.
discovery rule as it applies to asbestos cases is misplaced. This Court recognizes the “separate disease” application of the discovery rule in asbestos cases due to the unique nature of asbestos exposure. See Abrams v. Pneumo Abex Corp., 602 Pa. 627, 637, 981 A.2d 198, 204-05 (2009) (explaining when person is exposed to asbestos, there may not always be immediately cognizable injury, so courts will toll statute of limitations until plaintiff is aware of definitive injury caused by asbestos exposure). Unlike the asbestos scenario, where the exposure to asbestos does not necessarily constitute an immediate injury, the childhood sexual abuse endured by Appellant Finnegan and Appellant Gaughan constituted actionable batteries at the time of the occurrences. See E.J.M., supra. Consequently, Appellant Finnegan and Appellant Gaughan knew or should have known of the facts of their injuries and were immediately capable of filing suit. See Fine, supra. That Appellant Finnegan and Appellant Gaughan might not have known the full extent of the psychological harm done, until 2011 when they were diagnosed with chronic PTSD, is immaterial. See E.J.M, supra. The fact remains that they knew what was happening and who was doing it when the abuse occurred and should have instituted their actions within their prescribed statutes of limitations. Therefore, their claims remain time barred. See id. Accordingly, we affirm the summary judgments entered in their respective cases.


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From the analysis of six cases – four higher education institutions(HEIs) from Portugal (Universities of Porto, Évora and Algarve; Polytechnic Institute of Beja) and two HEIs from Spain (Universities of Alcalá de Henares and Lleida) – that applied equal or comparable methods of estimation of socioeconomic impacts, we will reflect on the role that Education, in general, and, particularly, Higher Education (HE) has as the mainstay of societal dynamics, particularly in areas of low socioeconomic density. The investment in HE has a multiplier effect and is a key factor for socio-economic vitality of the communities.
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