J-A13025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF KENNETH C. ABBOTT,          IN THE SUPERIOR COURT OF
DECEASED                                           PENNSYLVANIA




APPEAL OF: COLIN ABBOTT

                                                 No. 1071 WDA 2015


             Appeal from the Order entered June 19, 2015
            In the Court of Common Pleas of Butler County
     Orphans' Court at: O.C. No. 2011-143 – Estate No. 10-12-0709


IN RE: ESTATE OF KENNETH C. ABBOTT,          IN THE SUPERIOR COURT OF
DECEASED                                           PENNSYLVANIA




APPEAL OF: KATHLEEN F. NEAL,
EXECUTRIX OF THE ESTATE OF
KENNETH C. ABBOTT

                                                 No. 1155 WDA 2015


               Appeal from the Order entered June 19, 2015
              In the Court of Common Pleas of Butler County
                   Orphans' Court at: O.C. No. 2011-143


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                  FILED SEPTEMBER 16, 2016

     In this cross-appeal, Colin Abbott (Appellant) appeals from the June

19, 2015 order of the Court of Common Pleas Butler County, granting the
J-A13025-16



summary judgment motion of Cross-Appellant, Kathleen F. Neal, executrix of

Kenneth C. Abbott’s Estate (Cross-Appellant), and denying Appellant’s

motion for summary judgment. Upon review, we affirm.

        The trial court summarized the factual and procedural background in

its Pa.R.A.P. 1925(a) opinion, which we incorporate here by reference. See

Trial Court Opinion, 8/14/15, at 1-3 (opinion issued in connection with

Appellant’s appeal).1 Briefly, on February 26, 2013, Appellant entered pleas

of nolo contendere to two counts of third degree murder for the killing of his

father, Kenneth C. Abbott, and his step-mother, Celeste M. Abbott.            On

February 27, 2013, the trial court sentenced Appellant to no less than 35

years but no more than 80 years in a state correctional institution.

        On April 10, 2013, Cross-Appellant filed a petition to declare the

applicability of the Slayer Act, 20 Pa.C.S.A. § 8801 et seq.,2 and to prevent
____________________________________________


1
 The trial court issued two Rule 1925(a) opinions on the same day (August
14, 2015): one in connection with Appellant’s appeal, one in connection with
Cross-Appellant’s appeal.
2
    The Slayer Act

        defines a “slayer” as “any person who participates, either as a
        principal or as an accessory before the fact, in the willful and
        unlawful killing of any other person.” 20 Pa.C.S. § 8801. To
        prevent slayers from acquiring property or benefits from the
        estates of those they killed, the Slayer Act provides: [“]No slayer
        shall in any way acquire any property or receive any benefit as
        the result of the death of the decedent, but such property shall
        pass as provided in the sections following.[”] 20 Pa.C.S. § 8802.
        To accomplish this goal, the Slayer Act deems slayers to have
        predeceased the decedent as to property which would have
(Footnote Continued Next Page)


                                           -2-
J-A13025-16



Appellant from claiming any property as a named beneficiary in his father’s

last will and testament.

      In the meantime, Appellant appealed his criminal convictions to this

Court, alleging his nolo contendere pleas were not entered voluntarily,

knowingly, or intelligently. On November 14, 2013, this Court affirmed the

judgment of sentence.           See Commonwealth v. Abbott, No. 708 WDA

2013, unpublished memorandum at 8 (Pa. Super. filed November 14, 2013).

On April 15, 2014, our Supreme Court denied Appellant’s petition for

allowance of appeal. See Commonwealth v. Abbott, 89 A.3d 1282 (Pa.

2014). While the criminal proceedings were pending, the civil proceedings

were stayed.

      Upon conclusion of the criminal proceedings, the civil proceedings were

resumed. In response to a motion by Appellant, the trial court scheduled a

jury trial to commence the week of May 18, 2015. Accordingly, the parties

filed their pre-trial statements.        Upon review of said statements, the trial

court noted that the issues raised by Appellant were legal issues rather than

factual ones, which did not require a factual determination by a jury. Thus,

                       _______________________
(Footnote Continued)

      passed from the decedent or his estate to the slayer under the
      statutes of descent and distribution or have been acquired by
      dower, by curtesy or by statutory right as surviving spouse. 20
      Pa.C.S. § 8803.

In re Estate of McAndrew, 131 A.3d 988, 990 (Pa. Super. 2016) (footnote
omitted).



                                            -3-
J-A13025-16



the court canceled the trial and entertained the matter as a summary

judgment motion.

      Upon consideration of the parties’ motions, responses, and arguments,

the trial court granted Cross-Appellant’s motion for summary judgment on

the applicability of the Slayer Act, and denied Appellant’s motion for

summary judgment. This appeal followed.

      Appellant raises two issues for our review:

      A) Does a nolo contend[ere] plea or a prison sentence constitute
         a conviction and dispositive evidence that a person is a slayer
         under the Slayer’s Act, despite the express prohibition of
         Pa.R.E. 410?

      B) Without a conviction by the criminal courts, does the Orphans’
         Court have subject matter jurisdiction and statutory authority
         under the Slayer’s Act to hold an evidentiary hearing and
         make a de novo declaration that a person is slayer?

Appellant’s Brief at 2-3.

      When reviewing the trial court’s disposition of a summary judgment

motion, this Court employs the following standard:

      We view the record in the light most favorable to the nonmoving
      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. Our scope of review
      of a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court’s
      order will be reversed only where it is established that the court
      committed an error of law or abused its discretion.




                                    -4-
J-A13025-16


Szymanowski v. Brace, 987 A.2d 717, 721–22 (Pa. Super. 2009)

(citations omitted).   At issue, here, is whether Appellant is a slayer for

purposes of the Slayer Act, which is a question of law.      In re Estate of

McAndrew, 131 A.3d at 989-90.

      The Slayer Act defines a “slayer” as any person who “participates . . .

in the willful and unlawful killing of any other person.” 20 Pa.C.S.A. § 8801.

Once a person is charged with voluntary manslaughter or homicide, with

limited exception not applicable here, any and all property or benefit that

would otherwise pass to a person under a decedent’s estate is placed in

escrow and held by the deceased’s personal representative. 20 Pa.C.S.A.

§ 8814.1.     Upon “conviction” of a charge, the property or benefit held in

escrow will not pass to the slayer, but rather, the property shall be

distributed as if the slayer convicted had predeceased the decedent, id., and

20 Pa.C.S.A. §§ 8803, 8804, thus preventing a slayer from acquiring

property or benefits from the estate of the person they have killed.      See,

n.2, supra.

      Relying on Pa.R.E. 410(a)(2), Appellant first argues the trial court was

statutorily prohibited from considering his nolo contendere plea as a

conviction for purposes of determining whether he is a “slayer” under the

Slayer Act. We disagree.

      Appellant spends considerable time arguing and pointing to authorities

to support the legal principle memorialized in Rule 410(a), i.e., in a civil or


                                     -5-
J-A13025-16


criminal case, that evidence of a nolo contendere plea is not admissible

against a defendant who made the plea or participated in the plea

discussion. However, Appellant’s analysis is shortsighted. As pointed out by

the trial court, Appellant’s admission (or lack thereof) of guilt is not an issue

here. The only issue here is whether Appellant was convicted of a qualifying

crime. The record is clear on this matter: Appellant was convicted of third

degree murder for the killing of his father, thus disqualifying him from

receiving property or benefits under his father’s will.

      Appellant’s fails to appreciate that our rules of evidence distinguish

“between the use of a nolo plea as evidence of the fact of conviction as

opposed to evidence of the commission of the underlying crime.”          United

States v. Poellnitz, 372 F.3d 562, 569 (3d Cir. 2004) (citing Pa.R.E. 410

and Comment; Eisenberg v. Commonwealth, 516 A.2d 333 (Pa. 1986)).

      For example, in Strain v. Commonwealth, [784 A.2d 845 (Pa.
      Cmwlth. 2001)] the court explained that “our Supreme Court has
      upheld the use of a conviction entered on a plea of nolo
      contendere as evidence in a subsequent civil matter where it was
      the fact of conviction, not the plea, that was the operative fact
      relied upon.” Id. [at 848] (citing Eisenberg). The Strain court
      went on to explain that in that case “[s]uspension of a licensee’s
      operating privilege under the Compact ... does not turn on
      whether the licensee has admitted or denied guilty; it is the
      conviction that triggers the provision.” Id.; see also Bourdeev
      v. Commonwealth, 755 A.2d 59, 61-62 ([Pa. Cmwlth.] 2000);
      Commonwealth v. Boyd, 221 Pa. Super. 371, 292 A.2d 434,
      435 (1972) (“Where a plea of nolo contendere is tendered by the
      defendant and accepted by the court, it is not the province of the
      court to occupy itself with the question of guilt or innocence.”);
      Ferrelli v. Commonwealth, 783 A.2d 891, 893 ([Pa. Cmwlth.]
      2001).


                                      -6-
J-A13025-16


Poellnitz, 372 F.3d at 569. Thus, the trial court did not err in considering

the operative fact of Appellant’s third degree murder conviction for purposes

of determining Appellant’s ability to receive under the will.

       Appellant also ignores that, upon entry of the nolo contendere plea, a

judgment of conviction follows.          This is a well-established concept.   See,

e.g., Commonwealth ex rel. District Attorney v. Jackson, 94 A. 233,

235 (Pa. 1915); Buck v. Commonwealth, 107 Pa. 486, 489 (Pa. 1884);

Commonwealth v . Smith, 30 A.2d 339, 346-47 (Pa. Super. 1943);

Commonwealth v. Ferguson, 44 Pa. Super. 626 (1910).                      Appellant

nonetheless argues the word “conviction” should be construed strictly, as

understood in criminal statutes.           Specifically, Appellant argues, that for

purposes of the Slayer Act, the word conviction requires an ascertainment of

guilt. Because there is no ascertainment of guilt in a nolo contendere plea,

nolo contendere pleas do not qualify as convictions. Appellant provides no

authority for this contention, nor do we find any in our research.3 Indeed,

Appellant relies on Commonwealth v. Kimmel, 565 A.2d 426 (Pa. 1989)

and emphatically criticizes the trial court for its failure to acknowledge

Kimmel.      Reliance on Kimmel is misplaced.         Appellant fails to appreciate
____________________________________________


3
  Additionally, nowhere did Appellant reconcile his proposed definition of
“conviction” with the Slayer Act’s provision that expressly states that the Act
shall “be construed broadly in order to effect the policy of this State that no
person shall be allowed to profit by his own wrong, wherever committed.” 20
Pa.C.S.A. § 8815.




                                           -7-
J-A13025-16


that Kimmel does not deal with nolo contendere pleas, or the Slayer Act.

As such, Kimmel is not controlling.              To the extent Kimmel provides a

definition of what “conviction” generally means, Appellant fails to appreciate

that the definition provided therein is a general statement of law, and was

not intended to cover all instances. As noted above, a criminal conviction

will follow a nolo contendere plea.4 See, e.g., Ferguson, supra.

       In conclusion, because Appellant was convicted of third degree murder

of his father, Appellant, under the Slayer Act, is barred from receiving any

benefit from the father’s estate. Accordingly, the trial court did not err in so

concluding. Appellant, therefore, is not entitled to relief. 5 Accordingly, we

affirm the order of June 19, 2015 and direct that a copy of the trial court’s

August 14, 2015 Rule 1925(a) opinion issued in connection with Appellant’s

appeal be attached to any future filings in this case.

       Order affirmed.




____________________________________________


4
  See also King v. Schroeder, 2016 WL 127787, at *5 (January 12,
2016) (Under Pennsylvania Slayer Act, plea of nolo contendere to voluntary
manslaughter serves as a bar to recovery of the annuity proceeds).
5
  In light of our disposition, we need not address Appellant’s second issue,
see supra, and Cross-Appellant’s cross-appeal. Cross-Appellant stated its
claim as follows: “The Estate was at all times ready, willing and able to
present evidence that Colin Abbott murdered Kenneth Abbott and, therefore,
is precluded from receiving any benefit from the Kenneth C. Abbott Estate.”
Cross-Appellant’s Brief at 42.



                                           -8-
J-A13025-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




                          -9-
                                                                         Circulated 08/29/2016 04:11 PM




 IN THE COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA


INRE:                                                                ORPHANS' COURT
THE ESTATE OF KENNETH C. ABBOTT,                                     O.C. No. 143 of 2011
Deceased.


Yeager, J.                                                                    August 14, 2015




                                   RULE 1925{a) OPINION


       The Appellant, Colin W. Abbott (hereinafter "Appellant"), appeals from the Order of

Court under date of June 19, 2015, which granted Appellee's, Kathleen F. Neal, Executrix of

the Estate of Kenneth C. Abbott, Motion for Summary Judgment on the Applicability of the

Slayer's Act, and denied Appellant's Motion for Summary Judgment, adjudicating Colin W.

Abbott a slayer within the meaning of the Pennsylvania Slayer's Act.

       The facts and history of the instant matter are as follows. This case arises out of a

Petition filed by the Executrix of the Estate of the Decedent, Kenneth C. Abbott, to determine

the applicability of the Slayer's Act relative to Decedent's son, Colin W. Abbott. The said

Colin W. Abbott having entered pleas of nolo contendere to two counts of Third-Degree

Murder for the unlawful killing of his father, Decedent, Kenneth C. Abbott, and his step-

mother, Celeste M. Abbott, on February 26, 2013, in the Court of Common Pleas of Butler

County, Pennsylvania. See Commonwealth of Pennsylvania v. Colin Abbott, Butler County

Criminal Docket Number CR 2011-1863.       As a result of the aforementioned pleas, on

February 27, 2013, Appellant, Colin W. Abbott, was sentenced to a term of imprisonment of

no less than thirty-five (35) years, but no more than eighty (80) years, in a Pennsylvania State

Correctional Institution. Id.
                                                                  -
         Following Appellant's sentencing, Appellee filed the above referenced Petition for

Citation to Declare Applicability of Slayer's Act Pursuant to 20 Pa.C.S.C §8801 et. seq. on or

about April 10, 2013, seeking to apply the Slayer's Act to prevent Appellant, Colin W.

Abbott, from claiming any property as a named beneficiary in Decedent's, Kenneth C.

Abbott, Last Will and Testament under date of April 24, 2010.         As a result of a number of

direct appeals filed by Appellant, this Court stayed the proceedings on the aforesaid Petition

until disposition of the direct appeals in the Commonwealth of Pennsylvania v. Colin Abbott,

CR-1863-2011,      criminal case. See Order of Court under date July 27, 2013.

         On November 14, 2013, the Superior Court of Pennsylvania affirmed the trial court on

direct appeal, 1 and on April 15, 2014, the Supreme Court of Pennsylvania denied the Petition

                              2
for Allowance of Appeal.          Upon Motion by Appellee, and Order of Court under date June 19,

2014, argument on Appellee's Petition for Citation to Declare Applicability of Slayer's Act

Pursuant to 20 Pa.C.S.C §8801 et. seq., was rescheduled. See Order of Court under date June

19, 2014.

    Upon Motion of Appellant, the Court scheduled a jury trial in this matter to commence the

    week of May 18, 2015, through May 21, 2015. See Status Conference Order under date

    February 26, 2015.     As a result, both Appellee and Appellant filed Pre-Trial Statements.

    Upon review of said Pre-Trial Statements, it came to the attention of the Court that the

    issues raised by the Appellant, Colin W. Abbott, were legal issues rather than factual ones.

    Because such issues are improper for a jury sitting as the finder of fact, the Court cancelled

    the jury trial, and decidedly heard the issues surrounding the applicability of Slayer's Act as

    Motions for Summary Judgment on May 21, 2015. See Pre-Trial Conference Order under

    date April 23, 2015.    Upon consideration of the parties' filings with respect to their Motions

I
    Docket Number 708 WDA 2012
2
    Docket Number 571 WDA 2013

                                                    2
 for Summary Judgment, and the May 21, 2015, oral arguments heard on the same, this

 Court adjudicated Colin W. Abbott a slayer within the meaning of the Pennsylvania Slayer's

 Act such that the said Colin W. Abbott was to be treated as though he had predeceased the

 Decedent, Kenneth C. Abbott, with respect to any property or benefit conveyed to Colin W.

 Abbott via the provisions of The Last Will and Testament of the Decedent, Kenneth C.

 Abbott, under date of April 21, 2010.   See Memorandum Opinion and Order of Court under

 date June 19, 2015

       On or about July 29, 2015, the Appellant filed a Concise Statement of Matters

Complained of on Appeal pursuant to the Pennsylvania Rules of Appellate Procedure. The

Appellant avers that this Honorable Court erred in the following ways:

       1.     The Court erred in granting the Executrix's Motion for Summary Judgment;
       2.     The Court erred in denying Colin's Motion for Summary Judgment;
       3.     The Court erred in adjudicating and declaring Colin a slayer under the Slayer's
              Act;
       4.     The Court erred in determining that there existed an admissible "conviction";
       5.     The Court erred in ordering that the Estate pass as if Colin predeceased, despite
              there being no conviction as required by 20 Pa.C.S. § 8814.l(a);
       6.     The Court erred when it failed to apply the plain language of the Slayer's Act, in
              general, and 20 Pa.C.S. § 8814.l(a), in specific;
       7.     The Court erred when it decided that it had any jurisdiction or authority beyond
              that specifically proscribed in the Slayer's Act, in general, and 20 Pa.C.S. §
              8814.1 (a), in specific;
       8.     The Court erred when it refused to give Abbott the protection provided by
              Pa.R.E. 41 O(a)(2) and applicable case law, and referred to, considered, or relied
              upon a nolo contendre plea in any manner;
       9.     The Court erred when it determined that the sentence that results from a plea of
              nolo contendre is a "conviction" under the Slayer's Act;
       10.    The Court erred when it refused to define the term "conviction" as it is
              commonly and ordinarily defined, and as specifically set forth by the Supreme
              Court in Commonwealth v. Kimmell, 565 A.2d 426 (Pa. 1989);
       11.    The Court erred when it decided that a "conviction" under the Slayer's Act does
              not require an ascertairunent of guilt or that the Slayer's Act can apply without
              an ascertairunent of guilt; and
       12.    The Court erred when it decided that it had jurisdiction or authority to hold an
              evidentiary hearing or trial to determine or make a de novo determination that
              Colin is a slayer where the Slayer's Act provides no statutory basis for doing so.




                                               3

                                                   ..., ,J
                                                   I -_,
This Court considers the Appellant's contentions as follows:

                According to Rule 1035.2(1) of the Pennsylvania Rules of Civil Procedure, a

party may move for summary judgment as a matter of law after the relevant pleadings are

closed. Specifically, the Rule states:

                "[W]henever there is no genuine issue of any material fact as
                to a necessary element of the cause of action or defense
                which could be established by additional discovery or expert
                report, ... "


Additionally, the Note to Rule 1035.2 states, "An example of a motion under subparagraph

( 1) is a motion supported by a record containing an admission. By virtue of the admission, no

issue of fact could be established by further discovery or expert report."

        To this extent, summary judgment is appropriate only in cases that are clear and free

from doubt. Redland Soccer Club, Inc. v. Department of the Army and Dept. of Defenseof

the U.S., 696 A.2d 137 (Pa. 1997). Further, a court must view the record in the light most

favorable to the non-moving party and resolve all doubts concerning the existence of a

genuine material fact against the moving party. Id. Moreover, the Courts have held that for

the purposes of summary judgment, a material fact is one that directly affects the outcome of

the case. Kenney v. Jeanes Hosp., 769 A.2d 492 (Pa.Super. 2001). As such, it is not the

Court's function to decide any issues of fact, but to solely determine whether there is a

genuine issue of material fact to be tried. McDonald v. Marriott Corp., 564 A.2d 1296

(Pa.Super. 1989).

        As previously indicated, when allowed the opportunity to brief issues of fact, neither

party did so. The material facts of the proceeding at issue were entirely agreed upon by the

parties. That is, Appellant, Colin W. Abbott, is a named beneficiary in the Decedent's,

Kenneth C. Abbott, Last Will and Testament under date of April 24, 2010, and Appellant


                                                4
plead nolo contendere to two counts of Third Degree Murder with respect to the unlawful

killing of his father, the Decedent, Kenneth C. Abbott, and his step-mother, Celeste M.

Abbott. As such, this matter was ripe for summary judgment, and Appellee was entitled to

judgment as a matter of law in her favor.



       A. Jurisdiction

       Appellant's argument against the application of the Slayer's Act to him suggests that

this Court lacked statutory jurisdiction to decide this matter. See Colin Abbott's Motion for

Summary Judgment. This Court rejects said argument in its entirety, if only because it is

incomprehensible that the Legislature enacted the Slayer's Act in an effort to prevent slayers

from profiting from their crimes, but did not vest authority in any Court to hold hearings and

determine that to be the result. Further, the Appellant cites to the Pennsylvania Supreme

Court's decision in In Re Klein, 378 A.2d 1182 (Pa. 1977), which affirmed the trial court in

holding that the killing at issue was not willful as is required for application of the Slayer's

Act. See Brief in Support of Colin Abbott's Motion for Summary Judgment. Similar to the

matter that was before this Court, the decision in In Re Klein is based upon a determination of

the applicability of the Slayer's Act by a trial court which was subsequently upheld by the

Pennsylvania Supreme Court. Thus, when sitting as the Orphans' Court, this Court does in

fact have the jurisdiction and authority to determine issues as to the applicability of the

Slayer's Act.



       B.       Applicability of Slayer's Act

       Appellant furthers argues against the application of the Slayer's Act in that a plea of

nolo contendere is not an admissible or sufficient "conviction" under the Slayer's Act, such


                                                 5
that said plea fails to trigger the Act's application to him. See Brief in Support of Colin

Abbott's Motion for Summary Judgment.            Conversely,    it was Appellee's assertion that such a

plea is sufficient to apply the Slayer's Act so as to prevent Appellant from taking under the

Decedent's,   Kenneth C. Abbott, Last Will and Testament under date of April 24, 2010. See

Brief in Support of Motion for Summary Judgment on the Applicability of the Slayer's Act.

        The Slayer's Act Preadjudication Rule states in relevant part:

                (a)      General rule.-If a person has been charged, whether
                by indictment, information or otherwise, by the United
                States, the Commonwealth ... with ... homicide ... in connection
                with a decedent's death, then any and all property or benefit
                that would otherwise pass to that person from the decedent's
                estate shall be placed and preserved in escrow by the person
                duly appointed        by the register      as the personal
                representative ... Upon conviction of the charge, the property
                or benefit held in escrow shall pass in accordance with the
                terms and provision of this chapter.

20 Pa. C.S.A. § 8814.1 (a). The terms and provisions upon which this rule relies provide that a

slayer, once determined to be same, will be deemed to have predeceased the decedent with

respect to any property or benefit which would have passed from the decedent to the slayer.

20 Pa. C.S.A § 8803. Where there is a conviction of a charge of homicide, the record of said

conviction is specifically admissible in matters concerning the Slayer's Act. 20 Pa. C.S.A. §

8814.   The admissibility of the record of conviction, and the Preadjudication         Rule as a whole,

act to prevent the need to relitigate the issue of whether the suggested "slayer" committed the

crime. It is of further note to this Court that the Legislature instructs that the Act" ... be

construed broadly in order to effect the policy of this State that no person shall be allowed to

profit by his own wrong, wherever committed."           20 Pa. C.S.A. § 8815.

        However, nowhere in the Slayer's Act is the term "conviction" defined.             Where a

statute fails to define a term that is of common usage, the term is to be given the common and

approved usage meaning.     l Pa. C.S.A § l 903(a).        In this case, the term "conviction"   is a

                                                    6

                                             I
                                             t:      I :
commonly used word such that it has a common and approved usage meaning.                          It is this

Court's position that the common and approved understanding of the term "conviction" is

centered on the final result of charges or a proceeding, rather than the method by which it is

reached. This Court practically considered that Appellant is currently serving a sentence of

no less than thirty-five (35) years, but no more than eighty (80) years, in a Pennsylvania State

Correctional Institution. Logically, it follows that this sentence can only be as a result of a

conviction, whether by plea or otherwise. Additionally, it is of note that the opposite of

"conviction" is "acquittal" which is commonly understood as releasing the charged party

without sentence. See Merriam-Webster online Dictionary, http://www.merriam-

webster.corn/dictionary/acquittal. Although Appellant is right that a plea of nolo contendere

is not an expression of guilt,' his sentence and subsequent prison term can only be commonly

understood as having resulted from a "conviction."

         In further determining the common usage of "conviction," the Court found

uncontrolling guidance in the definition given to the term in other statutes.4 Most persuasive

was the definition of "conviction" as laid out in the Pennsylvania Criminal Code.5 Said

definition, along all of the others cited, expressly includes the entry of a plea of nolo

contendere.    Although, Black's Law Dictionary defines the term "conviction"6 absent any

reference to a nolo contendere plea, the term "convict.l" a verb, does.



3
  See Pages 6-7, Brief in Support of Colin Abbott's Motion for Summary Judgment.
4
  "(A] conviction includes a plea of guilty, a plea ofnolo contedere, a finding of guilt by a court ... " 75 Pa.
C.S.A. § 6501(a); "The term 'conviction' means any guilty verdict, whether after trial by judge or jury, or
finding of guilt, and any plea of guilty or nolo contendere that has been accepted by the court ... "204 Pa. Code
§ 91.38; "Convicted." "Includes conviction by entry of plea of guilty or nolo contendere, conviction after trial
... " 42 Pa. C.S.A §9799 .12.
5 A conviction is "a finding of guilty or the entering of a plea of guilty or nolo contendere ... " 18 Pa. C.S.A §

6102
6 "[t]he or process of judicially finding someone guilty of a crime; the state of having been proved guilty."

Black's Law Dictionary 408 (101h ed. 2014).
7 "To prove or officially announce [a criminal defendant] guilty of a criminal offense upon a criminal trial, a plea

of guilty, or a plea ofnolo contendere (no contest)" Black's Law Dictionary 408 (10th ed. 2014).

                                                         7

                                                     6>i03
        Lastly, the Court would draw attention to the uncontrolling fact that Appellant himself

prepared and filed Pro Se Petitions Under the Post-Conviction                Relief Act 42 Pa.C.S. § 9541,

et seq. See Pro Se Petition Under the Post-Conviction Relief Act 42 Pa.C.S. § 9541, et seq.

under dates May 27, 2014, and July 22, 2014, respectively, Commonwealth of Pennsylvania v.

Colin Abbott, Butler County Criminal Docket Number CR 2011. Again, it logically follows

that one cannot file a Post-Conviction Petition for Relief unless a conviction has already been

obtained. Said Petitions were drafted, signed, and filed by Appellant, Colin W. Abbott, as a

Self-RepresentedLitigant in the underlying criminal proceedings. Id.

        Appellant attempts to confuse the issues by citing the Pennsylvania Rule of Evidence8

prohibiting the use of a nolo contendere plea in subsequent civil proceedings. See Page 7,

Brief in Support of Colin Abbott's Motion for Summary Judgment. However, the definition

of conviction, and applicability of the Slayer's Act are not evidentiary issues, but questions of

law and application. Furthermore, because the plea and the conviction which resulted from it

are separate and distinct from one another, it is not the consideration or entry into evidence of

the plea that is at issue, it is whether the subsequent sentence on said plea satisfies the

undefined term "conviction" in the Slayer's Act.

         Thus, it was this Court's determination that based on the undisputed facts", and

controlling law, Appellee, Kathleen F. Neal, Executrix of the Estate of Kenneth C. Abbott,

was entitled to judgment as a matter of law. Appellant, Colin W. Abbott, was adjudicated a

slayer within the meaning of the Pennsylvania Slayer's Act, to be treated as though he has

predeceased the Decedent, Kenneth C. Abbott, with respect to any property or benefit


8 "In a civil or criminal case, evidence of the following is not admissible against the defendant who made the
plea or participated in the plea discussion: (2) a nolo contendere plea ... " Pa.R.E. 41 O(a)(2).
9That
       Colin W. Abbott is a named beneficiary of The Last Will and Testament of the Decedent, Kenneth C.
Abbott, and that as a result of two pleas of nolo contendere to Third-Degree Murder for the unlawful killing of
Kenneth C. Abbott and Celeste M. Abbot, Colin W. Abbott, was sentenced to a term of imprisonment no less
than thirty-five (35) years, but no more than eighty (80) years, in a Pennsylvania State Correctional Institution.


                                                         8
conveyed to Colin W. Abbott via the provisions of The Last Will and Testament of the

Decedent, Kenneth C. Abbott, under date of April 21, 20 I 0.




                                                                          Respectfully submitted,



                                                                      6            I///   a
                                                                          S. Michael Ycager
                                                                                              (;/rf'r"rf;lt?'c:;~
                                                                          Judge




                                                                                                                :a
                  1'0 Ill .l'. 01 J:.:\ IR, OI IIIH>I R UH'RU: l'l I{ l A J   rr                                rn
                                           PA. R.( .r. MJ. 236                                                  (.'")
                                                                                                                rn
                                 NOT .R.IC.ATlO'
                      1111'- I)()( I \11,1' r II \SOI J11( I \t   1, IH F
                                                                                                                -<
                          r     H> 1 1111..: •     ,f   ,.,   r II nt r                                         f11
                              ,n<LI!      0             I\,,·(     )IHI('                                        0
                                  _J       jt.f,   /5'
                                                                                                            -

                                                              9
