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HomeMy WebLinkAbout2005-2091 Civil VALERIE L. BEASTON : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V.: : GREGORY A. EBERSOLE : NO. 2005 – 2091 CIVIL TERM : : IN RE: OPINION PURUSANT TO Pa.R.A.P. 1925 Guido, J., January , 2008 In the fall of 2006 the Commonwealth seized two personal computers from the defendant as part of its investigation of an alleged violation of the protection from abuse order entered against him at this term and number. After a hearing on November 20, 2006 we found that the defendant had violated the order. He was immediately incarcerated by federal authorities because the contempt adjudication was a violation of his parole on federal firearm charges. On February 28, 2007 we sentenced him to undergo a period of supervised probation consecutive to any sentence he was currently 1 serving. After he was released from federal custody in the fall of 2007 the defendant filed a motion for the return of his computers. We held a hearing in connection with the motion on October 9, 2007. On that same date we entered an order directing the Commonwealth to return the computers. It is that order which is the subject of the instant appeal by the Commonwealth. This opinion will address the issues raised by the Commonwealth in its appeal. 1 The defendant filed a timely appeal which is currently pending in the Superior Court of Pennsylvania. 2005 - 2091 CIVIL TERM Factual Background We feel it is important to recount all of the relevant facts of this long and complicated case. The origins of this controversy date back to a short lived relationship between the parties that ended almost five years ago. Plaintiff is a registered nurse who is now enrolled in law school. The defendant is a retired Navy Seal who wants to attend law school. At the time of their breakup the plaintiff made certain allegations of criminal wrongdoing against the defendant. Based upon those allegations he was arrested and charged by the local police. Those charges were eventually dismissed by the county prosecutor. However, as a result of his arrest, evidence was obtained which served as the basis for his conviction of a federal firearms violation. The defendant has consistently maintained that the allegations which led to his arrest (and ultimately the entry of the first protection from abuse order) were fabrications 2 concocted by the plaintiff. He has since been obsessed with holding the plaintiff 3 accountable for her “lies”. His obsession led to at least one contempt conviction for 4 violating that first order. After the first order expired the defendant continued his crusade for “justice”. As part of his crusade he created and wore a sweatshirt with plaintiff’s picture and the words 5 “Lying Skank” appearing on the front. His unwillingness to let the matter die eventually led to the entry of the instant order on May 5, 2005. 2 The original protection from abuse order was entered at 4215 Civil 2003. See the “Petition for Protection from Abuse” filed in the instant case at paragraph 16(a). 3 The fact that the local prosecutor declined to pursue the state charges reinforced the defendant’s opinion that he is the victim in this case. 4 See “Petition for Protection from Abuse” filed in the instant case at paragraph 16(a). 5 Id. at paragraph 15. 2 2005 - 2091 CIVIL TERM While we have great respect for the defendant’s service to our country, we consider his quixotic search for justice to be a fool’s errand which may very well end in tragedy. At the time we entered the instant protection from abuse order the following exchange took place: THE COURT: Okay. Now, Mr. Ebersole, . . . when I sign this order, you may not have contact with her. You can – and that includes you can’t e- mail her. You can’t make threats about her to other people. . . . I’ve been doing this a lot of years and this obsession can only lead to no good if the two of you are in contact. . . . MR. EBERSOLE: I need to clarify one thing, Your Honor. This is not an obsession. This is not. Look at that woman. She’s about 200 pounds. I don’t want anything to do with that woman. She’s hideous. This is not an obsession. I have no attraction to her. . . . THE COURT: Let me be clear with what I meant by obsession, Mr. Ebersole. . . . The obsession I was talking about is not with this woman. . . . The obsession I was talking about is . . . an obsession with . . . justice. This system, sir, is not perfect. It is the best in the world, but its not perfect because it’s manned by human beings. You served your country, and you served it honorably. Please don’t throw that away in a quest for justice that may not be there. . . . I had a client and friend of mine who served his country and served it honorably. And he went through the same kind of quest that you’re going through now. And it ended up tragically and horribly; and I don’t want to see that happen to you, sir. . . . MR. EBERSOLE: I just need to clarify one thing. . . . Valerie Beaston is part of that quest because she needs to be held accountable for the lies she told. If she is not held accountable - - you said the system isn’t perfect. It’s not perfect. But somewhere along the line the only way the systems get better is when people make a stand and 6 sometimes that takes self sacrifice. . . . In September 2005 the defendant was convicted of indirect criminal contempt for violating the order. On October 25, 2005 he was sentenced to serve 3 to 6 months in jail. At the time of sentence we had the following exchange with the defendant: 6 Transcript of Proceedings, May 5, 2005, pages 48 to 52. 3 2005 - 2091 CIVIL TERM THE COURT: I will parole you when you have given me your word that you will put this matter behind you and move on with your life. I will not parole you until then. You are a man of your word. When I get your word, I will cut the order paroling you with no contact with Miss Beaston and you move on. Until I get that, I do not feel safe; and I’ll have to keep you behind bars. Okay. So we understand each ofther? THE DEFENDANT: Yes, sir, we do. 7 (emphasis added). He elected to serve his maximum sentence rather than promise to drop his elusive “quest for justice”. Things were quiet for several months after the defendant was released from prison in April of 2006. However, on November 1, 2006 plaintiff filed a petition to extend the protection from abuse order which was scheduled to expire on November 5, 2006. We extended the order pending a hearing on the matter which we scheduled for November 16, 2006. Shortly after he was served with the petition for extension defendant engaged in the conduct giving rise to the most recent charge of indirect criminal contempt. He sent a disturbing e-mail to plaintiff’s sister which provided in relevant part as follows: Sometimes in life, people wish they would have said something to another in hind site after there is no longer an opportunity to do so. . . . It is only after the others are gone when the old “I wish I would have told them”. . . . kicks in. I have always spoken my mind to you and Steve and was very sad to see that the both of you let the skank keep you from continuing our friendship. At first The skank has just struck again to escalate the conflict with me. there was plenty of time for the justice to which I have given my most solemn vow , but her continued efforts to keep this war going have sabotaged any opportunities she might have been awarded to settle this. It is clear that she will never decide to do the right thing even if given a hundred years to consider it. Her actions have drastically shortened the 7 Transcript of October 25, 2005, Sentencing Proceedings, p. 4. 4 2005 - 2091 CIVIL TERM Therefore, if there is anything you would ever wish to say to time line. either of us, I suggest you do it soon. 8 (emphasis added). The e-mail was made even more disturbing by the fact that the defendant’s e-mail address is “vlbrnkiller”. When asked if the e-mail address is of any significance to her, the plaintiff responded: “My initials, plus I’m an R.N., plus killer, 9 meaning he’s going to kill me.” In addition the defendant contacted several of the plaintiff’s My Space friends to be added as friends on his own My Space site. The defendant’s site identified him as the 10 “Skankn8er”. The “Skank” refers to the plaintiff and the “n8er” is like “terminator”, 11 making him the “Skankinator.” His site also contained the headline “Justice is Coming’ 12 and played the Guns ‘N Roses song I Used to Love Her But I had to Kill Her. Finally, posted on his site, inter alia, was the following message: Above all I vowed justice against my false accuser, and I have never broken my word of honor. I am just hoping to live a meaningful life in the interim and perhaps to do good along the way. Because of those desires, I was hoping that there would be lots of time left and that perhaps that my ex-lover/new enemy would develop a conscience and decide to come clean and end the war she started. Unfortunately, it seems she has chosen not only to not admit her first wrongs, but also, is continuing to escalate the conflict. Therefore, I honestly don’t know how much time is left before she forces my hand. 13 (emphasis added). Plaintiff received several calls from her friends directing her to those disturbing postings. After the defendant was released from federal custody things were again quiet until he made demand for the return of his computers. The Commonwealth refused his 8 Commonwealth’s Exhibit # 1. 9 Transcript of November 20, 2006, Proceedings, p. 12. 10 Commonwealth Exhibit # 2. 11 Transcript of November 20, 2006, proceedings, p. 11. 12 Transcript of November 20, 2006, proceedings, p. 9 and Commonwealth Exhibit 2. 13 Commonwealth Exhibit 2, November 20, 2006. 5 2005 - 2091 CIVIL TERM request which led to him filing the instant petition. At the October 9, 2007 hearing the defendant testified that the computers at issue were purchased by and belonged to him. The Commonwealth opposed the return of the computers on the basis that they were derivative contraband because they were used to send the e-mails which led to his contempt conviction. On appeal the Commonwealth alleges that we erred in ordering the return of the computers to the defendant. Specifically it contends that we 1) failed to require the defendant to prove his lawful possession of the computers; 2) refused to permit the Commonwealth to prove that the computers were derivative contraband and 3) erroneously ordered that the computers be returned to the defendant because they were 14 derivative contraband. The first and second allegations are clearly without merit. The defendant testified credibly that he purchased the computers. He even produced a receipt for them. He also testified that he used the computers for personal e-mail, business and other things. We did not limit the Commonwealth’s case in any way. In fact, the Commonwealth actually did establish that the computers were derivative contraband. During its cross examination of the defendant he readily admitted that he used the computers in the activities which we found to be in violation of the protection from abuse order. As to the third allegation of error, we agree with the Commonwealth that the computers meet the definition of derivative contraband because of their obvious nexus to 14 See “Concise Statement of Matters Complained of on Appeal.” The Commonwealth also alleges that we erred in denying their petition for forfeiture. However, the petition was filed at a different docket number and is not part of the proceedings in this case. The reasons for our denial are set forth in the 1925 opinion filed in the case of Commonwealth v. Sony, P.C. v-A 21L Computer and Sony PCG – 6B1L VIO Laptop, 21-MD 826 – 2007. 6 2005 - 2091 CIVIL TERM the violation of the protection from abuse order. However, we disagree that it was error to order that they be returned to defendant. Since there is no statutory authority for forfeiture of the computers, the Commonwealth’s right to seize them is subject to analysis under the common law. In re: Firearms Eleven, 922 A.2d 906 (Pa.super 2007). “When contraband is derivative and therefore subject to forfeiture under the common law, it is within the discretion of the trial court to order forfeiture, considering all of the factors at issue in a case.” Id. at 911 Considering all the factors in the instant case, we determined that forfeiture was not appropriate. As noted above, we have a long history of involvement in this case. We were convinced that justice would not be served by forfeiting the defendant’s computers. Since they are not illegal per se, he could just replace them, albeit at great expense. Furthermore, since they were used by the defendant in conducting his personal and business affairs, the forfeiture would result not only in the loss of the computers themselves, but also of the information stored therein. The only reason not to order the return of the computers would be to further punish the defendant. However, we were satisfied that such additional punishment was neither necessary nor appropriate. As a result of the conduct in question the defendant was adjudicated to be in contempt and placed on probation by this Court. In addition he suffered numerous ancillary consequences, including several months' incarceration in a 15 federal prison for a parole violation, as well as the loss of a full college semester. Finally we felt that forfeiture of the computers would continue the escalation of this controversy. It would also give the defendant one more reason to view himself as a 15 He was incarcerated shortly before his final exams which he was forced to miss. 7 2005 - 2091 CIVIL TERM victim, which we did not want to do. It is time for all parties involved to move on. We ordered the return of the defendant’s computers in the hope that it will be the first step in the right direction. ___________________ ______________________________ DATE Edward E. Guido, J. District Attorney Gregory A. Ebersole, Pro Se :sld 8