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Burns v. Blair Cnty.

Commonwealth Court of Pennsylvania

March 31, 2015

Timothy S. Burns
v.
Blair County, Pennsylvania; Terry Tomassetti, Diane L. Meling and Ted Beam, Jr., in Their Capacities as Commissioners of Blair County, Pennsylvania; Office of the Sheriff for Blair County, Pennsylvania; Mitchell Cooper a/k/a Mitch Cooper, in his Capacity as Sheriff of Blair County, Pennsylvania; the Prison Board for Blair County, Pennsylvania; Hon. Daniel J. Milliron, Judge of the Court of Common Pleas of Blair County, Pennsylvania, Richard Consiglio, District Attorney for Blair County, Pennsylvania, Terry Tomassetti, Diane L. Meling and Ted Beam, Jr., Commissioners for Blair County, Pennsylvania, Richard Peo, Controller for Blair County, Pennsylvania, and Mitchell Cooper a/k/a Mitch Cooper, Sheriff of Blair County, Pennsylvania, All in Their Capacities as Members of the Prison Board for Blair County, Pennsylvania, David Jacobs, Chris Rosenberry and Holly Garner, in Their Capacities as Deputy Sheriffs for Blair County, Pennsylvania; Office of the District Attorney of Blair County, Pennsylvania; and Richard A. Consiglio, in his Capacity as District Attorney for Blair County, Pennsylvania. Appeal of: Blair County, Pennsylvania; Terry Tomassetti, Diane L. Meling and Ted Beam, Jr., in Their Capacities as Commissioners of Blair County, Pennsylvania; Office of the Sheriff for Blair County, Pennsylvania; Mitchell Cooper a/k/a Mitch Cooper, in his Capacity as Sheriff of Blair County, Pennsylvania; the Prison Board for Blair County, Pennsylvania; Richard J. Peo, Controller for Blair County, Pennsylvania, and Mitchell Cooper a/k/a Mitch Cooper, Sheriff of Blair County, Pennsylvania, All in Their Capacities as Members of the Prison Board for Blair County, Pennsylvania, David Jacobs, Chris Rosenberry and Holly Garner, in Their Capacities as Deputy Sheriffs for Blair County, Pennsylvania; Office of the District Attorney of Blair County, Pennsylvania

Argued,  September 8, 2014

Appealed from No. 2013-3394. Common Pleas Court of the County of Blair. Grine, Senior Judge.

Louis C. Long, Pittsburgh, for appellants.

Robert P. Petyak, Ebensburg, for appellee.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 691

McGINLEY, JUDGE

Blair County, Pennsylvania; Terry Tomassetti, Diane L. Meling and Ted Beam, Jr., in their capacities as Commissioners of Blair County, Pennsylvania; Office of the Sheriff for Blair County, Pennsylvania; Mitchell Cooper a/k/a Mitch Cooper, in his Capacity as Sheriff of Blair County, Pennsylvania (Sheriff Cooper); the Prison Board for Blair County, Pennsylvania; Richard J. Peo, Controller for Blair County, Pennsylvania, and Mitchell Cooper a/k/a Mitch Cooper, Sheriff of Blair County, Pennsylvania, all in their capacities as members of the Prison Board for Blair County, Pennsylvania, David Jacobs, Chris Rosenberry and Holly Garner, in Their Capacities as Deputy Sheriffs for Blair County, Pennsylvania; and the Office of the District Attorney of Blair County, Pennsylvania (collectively, Appellants) appeal the order of the Court of Common Pleas of Blair County (common pleas court) that denied their preliminary objections

Page 692

to the complaint of Timothy S. Burns (Burns).

The common pleas court appointed Burns to represent Andre Staton (Staton) in his Post-Conviction Relief Act, 42 Pa.C.S. § § 9541-9546, proceedings. Staton was convicted of first degree homicide and was sentenced to death in the stabbing death of his paramour. On February 21, 2012, our Pennsylvania Supreme Court affirmed Staton's conviction and death sentence. On May 3, 2012, Staton filed a timely Post Conviction Relief Act petition and raised a number of issues of ineffectiveness of counsel as well as errors on the part of the Court.

On August 16, 2012, Governor Corbett signed Staton's death warrant and scheduled the execution for October 10, 2012. On August 18, 2012, the common pleas court granted a stay of execution for Staton which Burns had filed the previous day.

On May 13, 2013, Burns and Staton presented a motion for recusal of the common pleas court judge on the basis that her continued role in the matter presented the appearance of bias and/or prejudice because she was the judge who granted the original Protection From Abuse Order against Staton and also ruled on pre-trial suppression hearings prior to his homicide trial. The common pleas court denied the recusal motion. At that same time, the common pleas court heard oral argument from Staton who wanted to have Burns removed as counsel. Burns opposed the request and did not believe that Staton could competently represent himself. Burns referred to our Pennsylvania Supreme Court's decision in Commonwealth v. Staton, 608 Pa. 404, 12 A.3d 277 (Pa. 2010), where the Supreme Court denied Staton's request to have his ninth court-appointed counsel removed during the direct appellate phase of his case.

During the argument, Burns and Staton were sitting next to each other at counsel table with Burns to the left of Staton. There were three Blair County Deputy Sheriffs in the courtroom, though they were not in close proximity to Staton. Staton's hands were handcuffed in front of him, there was a restraining belt to which he was shackled, and there were no electronic restraining devices. The common pleas court denied Staton's request to have Burns removed as counsel. Staton then began berating the common pleas court, Burns, and the Commonwealth. Staton demanded that Blair County District Attorney Richard Consiglio execute him right then by lethal injection. Staton continued his tirade for several minutes and stood up at counsel table.

Burns has alleged in his complaint that the following sequence of events took place:

38. Andre Staton concluded his unrestrained verbal tirade, and while standing at counsel table next to Plaintiff, Timothy S. Burns, Andre Staton folded his hands together and turned to his left, swinging his closed fists at the face of Plaintiff, Timothy S. Burns, and violently struck the Plaintiff, Timothy S. Burns, in the face with Andre Staton's handcuffs and fists.
39. The force of Andre Staton's blow to Plaintiff, Timothy S. Burns' face and head was so powerful that it left an imprint of Andre Staton's handcuffs on Plaintiff, Timothy S. Burns['s] face, and knocked Plaintiff, Timothy S. Burns, out of his chair and onto the floor, breaking the chair in the process, as well as causing the Plaintiff, Timothy S. Burns, to momentarily lose consciousness.
40. Upon hitting the floor, and regaining consciousness, Plaintiff, Timothy S.

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Burns, was dazed in pain, and had problems seeing out of his left eye.
41. The Plaintiff, Timothy S. Burns, was subsequently transported to Altoona Area Hospital for treatment.
42. Plaintiff, Timothy S. Burns, was discharged from the Altoona Area Hospital the same day; however, within 48 hours, Plaintiff Timothy S. Burns, developed symptoms of a traumatic brain injury or a severe concussion.
43. On May 15, 2013, Plaintiff, Timothy S. Burns, was transported by ambulance from his law office in Ebensburg, Pennsylvania, to Conemaugh Memorial Hospital in Johnstown, Pennsylvania, due to complications from the aforesaid head injury.

Complaint, November 8, 2013, (Complaint), Paragraph Nos. 38-43 at 7; Reproduced Record (R.R.) at 10a.

Burns alleged that he suffered the following injuries as a result of Staton's attack:

Concussion, brief loss of consciousness, periods of extreme depression with preoccupation related to this assault; intrusive head discomfort; periods of being extremely distraught, significant loss of confidence in himself and his abilities; repeated overwhelming panic attacks, with reported recurrent thoughts of self-harm; post-traumatic stress disorder reaction; acute ST elevation myocardial infarction, followed by cardiac catheterization; intermittent dizziness; intermittent balance distortions; concentration impersistence; difficulty mentally tracking conversational speech; slowed information processing; forgetfulness; and sleep disturbance (characterized as difficulty maintaining sleep); post-concussion headache that was initially accompanied by vomiting; elements of recall process (verbal and non verbal) below age expected limits variable ability to sustain mental focus appeared to be a contributing factor; head discomfort; muscle tension; aggravation of pre-existing conditions; high levels of fear, guilt, disgust and perceived helplessness, as well as shame and humiliation; clinically significant levels of post-traumatic dissociation; high levels of symptom re-experience suggesting Plaintiff, Timothy S. Burns, is undergoing significant posttraumatic stress. Plaintiff, Timothy S. Burns, suffered multiple bruises and contusions in and about the head resulting in injury and/or aggravation of pre-existing conditions thereof, and he did in particular, but without limitation, sustain concussion syndrome and severe emotional stress, some of which or all of which injuries are or may be permanent in nature. He is regularly bothered by intrusive recollections of the traumatic events and feels unable to control those re-experiencing symptoms. This level of endorsement is often accompanied by attempts to avoid environmental events that might trigger more re-experiencing, some combination of tension, irritability and tendency to be jumpy or 'on edge', persistent hyper arousal symptoms that are experienced as very aversive and distressing; post-traumatic stress disorder, the severity of this disorder is estimated to be in the severe range. In addition, Plaintiff, Timothy S. Burns, suffers clinically meaningful levels of a more 'complex' post traumatic disorder. This more complicated clinical picture often requires more extended or intense psychological and/or pharmacological treatment.

Complaint, Paragraph No. 58 at 13-14; R.R. at 16a-17a.

In addition, Burns claimed that he suffered cognitive problems, injuries to his back, neck, head, shoulders, and legs, vision

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problems, and a variety of other physical and ...


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