author: BROSKY, Judge: POPOVICH, Judge,

text:
    459 A.2d 379
    COMMONWEALTH of Pennsylvania v. Donald E. HOOK, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1982.
    Filed April 15, 1983.

      John Francis Hooper, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge:

Appellant was convicted, without a jury, of one count of possession of a controlled substance with intent to deliver. He argues that his conviction should be reversed because the cocaine taken from him was the fruit of an illegal arrest and should therefore have been suppressed. In the alternative, he contends that if we find that the cocaine was seized not pursuant to arrest, but rather during a “stop” we ought then to conclude that it was taken during a search that exceeded the permissible limits of such searches. He also challenges the sufficiency of the evidence. Because we find that cocaine was seized from appellant pursuant to an illegal arrest, we reverse.

The factual circumstances relevant to this appeal are as follows.

At six a.m. on April 7, 1980, two Allegheny County policemen responded to a radioed message that two men, one of whom had a gun, were in a nearby 7-Eleven Store. Within a few minutes, the officers entered the store where they encountered appellant standing near the door. Appellant told the officers that he was “waiting for [his] buddy, who was buying munchies.” A store clerk told one of the officers that the other non-employee, “the shorter man with the sweater,” had the gun. The officer noticed a lump protruding from the man’s sweater and removed a gun. Both appellant and the man with the gun were taken outside. During a pat-down search outside the store, a sock containing cocaine was seized from appellant.

Mr. Hook contends that he was under arrest when he was led out of the store. The Commonwealth, on the other hand, contends that he was not arrested until the cocaine was found. It is the Commonwealth’s position that until that time, Mr. Hook was detained during an investigatory “stop.”

It is clear that police may detain a person briefly without having probable cause to arrest him. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer could constitutionally stop a pedestrian for investigatory purposes and conduct a reasonable search for weapons for the protection of the police officer where he has reason to believe that he is dealing with an armed and dangerous individual. Such a stop may be made regardless of whether the officer has probable cause to arrest the individual for a crime. The court said, “the officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” 392 U.S. at 27, 88 S.Ct. at 1883. See also Commonwealth v. King, 247 Pa.Super. 443, 372 A.2d 908 (1977).

Our review of the arresting officers’ testimony at the suppression hearing leads us to conclude that prior to the seizure of the cocaine, appellant had been arrested and not merely stopped.

Officer Stiger, the senior officer, did testify that when Mr. Hook was led out of the store he was not free to leave.

Although the limitation of one’s freedom can certainly be an indication that a person has been arrested (see e.g. Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974), the officer’s subjective view that appellant was not free to leave is of no moment absent an act indicating an intention to take appellant into custody. See Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978) (emphasis added).

Arrest has been defined as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

The testimony of Officer Casey indicates that the officers did intend to take Mr. Hook into custody prior to the discovery of the cocaine. At the suppression hearing, the officer described what occurred outside of the store when McCandless Township Police arrived. Mr. Hook had not yet been frisked and a McCandless Officer approached Officer Casey who testified as follows.

I was still on face with him. I had him right in front of me, and Lieutenant VanLeer came out with it. He said was this guy under arrest; is he being held? I says, “Yes, he’s being detained, also.” He said, “Has anybody patted him down,” and I said, “Yes, we are taking him, and he has to be patted down.” You don’t put anybody in a police car that isn’t patted down.

In a recent decision, our Supreme Court held that a person who is transported in a police car after a “pat-down” search albeit for investigatory purposes, has been arrested and not merely “stopped.” In Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), the court rejected the Commonwealth’s argument that the appellant’s seizure without probable cause to arrest could be justified as an investigatory “stop.” The court noted that the Terry principle is an exception to the general rule requiring probable cause to arrest. The court emphasized that the exception must not be extended in such a fashion as to swallow the rule (slip opinion at 10). Given the evidence that the officers intended to take Mr. Hook into custody prior to the cocaine discovery, we must find that he was under arrest prior to the frisk. This conclusion is especially called for in view of Lovette, supra.

Citing the U.S. Supreme Court decision in Davis v. Mississippi, 394 U.S. 721, 726-7, 89 S.Ct. 1394, 1397-1398, 22 L.Ed.2d 676 (1969), the Lovette opinion observed:

[T]o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed “arrests” or “investigatory detentions.”

498 Pa. 675, 450 A.2d at 980.

We reach this decision aware that it would have been permissible for the officers to detain Mr. Hook for an investigatory “stop.” Mr. Hook and his companion were in a store at 6 a.m. when his companion was found to have a gun. The officers might have reasonably believed that criminal activity was afoot and proceeded to stop Mr. Hook to investigate. See Terry, supra; Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982). Under such circumstances, a limited search for weapons would have been permissible. See Commonwealth v. King, 247 Pa.Super. 443, 372 A.2d 908 (1977).

However, in the present case, the officers indicated their intention to take Mr. Hook into custody and subject him to their control before they had probable cause to arrest.

Prior to the search, the officers lacked probable cause to arrest Mr. Hook for any crime. His companion was arrested for illegal possession of a firearm. No robbery had been attempted, nor was there evidence that such a crime was planned. Mr. Hook’s only involvement, prior to the cocaine discovery, was as the companion of a person who himself possessed a firearm. While he could reasonably be investigated, Mr. Hook could not be arrested simply for being in the company of the arrested man. Therefore, we must conclude that Mr. Hook’s arrest, made prior to the cocaine discovery, was without probable cause.

We are forced to conclude that the lower court erred in not suppressing the cocaine.

In Commonwealth v. Blakey, 282 Pa.Super. 591, 423 A.2d 402 (1980), we explained the test that is employed to determine whether evidence is the “fruit” of an illegal arrest. Citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), we said, the inquiry made is:

Whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Blakey 282 Pa.Super. at 598, 423 A.2d at 406.

Whether the evidence has been purged is based on the totality of the circumstances. Blakey, supra.

Appellant was interrogated by county police because he had been arrested. The interrogating officer who testified at the suppression hearing was asked if he had occasion to interview appellant as a result of his arrest the previous' day. He replied that he had.

In Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189, 192 (1975), our Supreme Court noted:

There are two factors which seems to be of major significance in determining the relationship between an illegal arrest and, as here, the subsequent confession: (a) the proximity of an initial illegal custodial act to the procurement of the confession; and (b) the intervention of other circumstances subsequent to an illegal arrest which provide a cause so unrelated to that initial illegality that the acquired evidence may not reasonably be said to have been directly derived from, and thereby tainted by, that illegal arrest. (Emphasis added) (citations omitted)

The interrogation took place only one day after appellant’s arrest. During that time period, he had been confined to jail. We find no evidence of circumstances after appellant’s arrest that caused his confession. Rather, it seems clear that it directly resulted from the arrest. See Jackson, supra, where similar facts netted the same result. See also Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975), where our Supreme Court held that the giving of the Miranda warning does not per se dissipate the illegality. Finally, we note our decision in In the Interest of Stoutzenberger, 235 Pa.Super. 500, 344 A.2d 668, 671 (1975), where we noted,

Generally, unless new developments occur after an illegal arrest, such as the discovery of additional information linking the accused to the crime, any statements made by an accused as a natural consequence of being in custody due to an illegal arrest must be suppressed.

The statements should have been suppressed.

Given our disposition of those questions, we need not address the remaining issues raised by appellant.

Judgment of sentence reversed and case remanded for new trial.

POPOVICH, J., files dissenting opinion.

POPOVICH, Judge,

dissenting:

I dissent from the reversal of appellant’s conviction for possession of a controlled substance with intent to deliver (35 P.S. § 780-113(a)(30)). Contrary to the Majority, I find that the cocaine seized from appellant’s person was done so pursuant to a “stop and frisk” and not as the by-product of an illegal arrest.

Considering the evidence of the Commonwealth’s witnesses and so much of the evidence for the defense as remains uncontradicted, Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976), the events leading to Hook’s arrest were as follows: At approximately 6:00 a.m. on April 7, 1980, Allegheny County Police Officers Stiger and Casey received a radio message that there were two men at the 7-Eleven near the North Park area of Pittsburgh; one was carrying a firearm. While en route to the store, which was only a matter of 2 to 3 minutes away, the officer called for a back-up unit. When the two officers arrived at the scene, they noticed two vehicles in the parking lot, one was a Chevrolet — this belonged to the cashier employed at 7-Elev-en — and the other was a tan/brown colored van. No others were present.

As Officers Stiger and Casey entered the convenience store, they had “no idea what [they] were coming in against .... ” (N.T. 29) The first thing the officers observed was a man standing to the right of the entrance way. Officer Stiger asked this person (appellant), “Could you hold it here for a minute, sir?” As Officer Stiger made his way to the center of the premises, the person responded, “I’m waiting for my buddy. He’s getting munchies.” (N.T. 11) Officer Casey had stationed himself near the entrance. At this point, after observing no other patrons in the establishment, Officer Stiger was told by the manager (Mr. Piwonski), who was stocking the shelves, that, “At the cash register the shorter man with the sweater has the gun.” (N.T. 10) As Officer Stiger approached the man at the check-out counter, later identified as the co-defendant Viola, he noticed a lump protruding from the back of Viola’s sweater. Officer Stiger tapped it and felt a hard object, which prompted the officer to immediately lift Viola’s arms. With this, Officer Casey came over to the counter, lifted Viola’s sweater and removed the firearm. Thereafter, Officer Stiger asked Viola if he had a permit for the weapon. Viola answered, “No.” As a result thereof, Viola was told by Officer Stiger that he was under arrest. Since the police did not know whether Hook was armed, and since the cashier and manager were still on the premises, they decided not to remain in the store. Officer Stiger walked with Viola and Officer Casey to the exit and asked appellant, “Would you mind stepping outside.” (N.T. 15) Once in the parking lot, Viola, in response to a question regarding where his vehicle was located, stated that the van was his. Following this, the group made its way to the vehicle and Officer Stiger began reading the two their Miranda rights. While doing so, the officer noticed a bulge in the pocket of Hook’s jacket. At this juncture, during the recital of rights, Officer Stiger started to pat-down Hook. Upon feeling a hard object in the jacket, the officer removed it and handed it to Officer Casey — by this time, the back-up unit had arrived from McCandless Township. When the object was examined, it was found to be a sock containing four plastic bags of white powder, which were later tested and determined to be cocaine. At this point, Officér Casey placed appellant under arrest.

Thereafter, appellant and Viola were transported to police headquarters, questioned and later arraigned.

The Majority embraces appellant’s argument that he was placed under arrest when he was led out of the store, rather than after the cocaine was seized from his person. Ergo, appellant continues, the absence of probable cause to believe that he had committed a crime in 7-Eleven rendered his arrest illegal and the evidence, secured as an incident thereto, tainted.

I note with interest that the Majority’s conclusion that appellant was arrested in the store turns precariously upon a single statement made by Officer Casey, at the suppression hearing, as to his intentions regarding the appellant prior to the cocaine discovery. The testimony in question was given on direct examination in response to the query, “And at what point was Mr. Hook searched, if at any time?” Officer Casey responded:

“I was still on face with him. I had him right in front of . me, and Lieutenant VanLeer [ — one of the officers from McCandless Township serving as the back-up unit — ] came out with it [ — i. e., co-defendant Viola’s expired firearm’s license secured from the van]. He said was this guy under arrest; is he being held? I says, ‘Yes, he’s being detained, also.’ He said, ‘Has anybody patted him down,’ and I said, ‘Yes, we are taking him, and he has to be patted down.’ You don’t put anybody in a police car that isn’t patted down.” (N.T. 64)

Leaving for a moment the weight one may ascribe to the subjective views of an officer, this writer finds that the Majority attaches undue significance to the preceding excerpt, especially in light of the fact that later on in Officer Casey’s testimony he clarifies the moment at which he placed appellant under arrest. To-wit, Officer Casey was recounting how once the substance was removed from the sock and Lieutenant Van Leer opined, “I think it’s cocaine,” “[t]hat was [the police’s] first indication” that appellant was involved in the commission of a crime. Immediately after this statement, Officer Casey then testified, “At that point, I put my hand on Mr. Hook’s shoulder and told him he was under arrest.” (Emphasis added) (N.T. 68) Additionally, when Officer Casey was confronted on cross-examination with the question by appellant’s counsel as to whether he had answered “Yes” when asked by McCandless Township Lieutenant Van Leer if appellant was under arrest, the officer’s unequivocal reply was, “No.” (N.T. 80) Further examination of the suppression hearing transcript reveals that Officer Stiger testified to the following on cross-examination:

“[Appellant’s counsel]

Q. Now, you take both of them outside. You testified during your direct examination that at the point you searched Mr. Viola and you searched Mr. Hook, then you found the stocking, then you put them under arrest and read them their rights. Was that the sequence of events?

[Officer Stiger]

A. Well, yes, Mr. Hook was placed under arrest outside.
Q. When you walked outside the doors with Mr. Hook, you had not searched him at that point; is that correct?
A. Mr. Hook? No.
Q. You had not physically said to him, ‘You are under arrest,’ but in your mind he was still being restrained; is that correct?
A. Yes. Like I said, I wanted to get him outside of the store where there was [sic] other people, two other people inside the store.
S}S S]C sic !{! $
Q. When you got outside, did you read them the Miranda Warnings first or search first?
A. I started to read them the Miranda Rights first.
Q. Then you stopped?
A. Well, no, I didn’t stop. I noticed the bulge in his pocket and I continued reading him his Miranda Rights, and that’s when I removed the stocking.
Q. You had started reading the Miranda Rights prior to the time you had observed the stocking in his pocket?
A. When I started to pat him down, I started reading him the Miranda Rights out.
Q. He was under arrest at that point, wasn’t he?
A. No, he wasn’t under arrest then. We didn’t place him under arrest until
Q. You didn’t physically tell him he was under arrest, but he couldn’t leave, could he?
A. Well, no, he couldn’t have left.”

(Emphasis added) (N.T. 37-39)

In light of the preceding, the Majority’s position that the singular statement of Officer Casey (reproduced supra) leads inexorably to the conclusion that the police intended to arrest Hook prior to the securement of the cocaine, rather than “restrain” his movement so that a “stop and frisk” consistent with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) could be effectuated, is untenable. As the Fifth Circuit Court of Appeals has noted, in a case similar to the one at bar, “Terry cannot be read to condemn a pat-down search because it was made by an inarticulate policeman whose inartful courtroom testimony is embellished with assertions of bravado, so long as it is clear that he was aware of specific facts which would warrant a reasonable person to believe he was in danger.” (Emphasis added) United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir.1976). Here, the record not only adequately reflects the police’s apprehension for their safety, but it also indicates concern on the part of the police for the safety of the 7-Eleven employees, which, in fact, was the motivating factor for taking the appellant and Viola outside. See Model Code of Pre-Arraignment Procedure § 110.2(4) (Proposed Official Draft, 1975) (an officer who has stopped a person may pat-down for a weapon “if the officer reasonably believes that his safety or the safety of others then present so requires.”).

I believe that the lower court did not err in its ruling that . the police were justified in conducting a Terry -type “stop and frisk” of the appellant. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). In Terry the United States Supreme Court held that where a police officer lacks probable cause to arrest an individual who may be involved in the commission of a crime, he may stop such person for questioning. If there is also reason to believe that the individual stopped may be armed, the officer may conduct a limited pat-down search for weapons of the person’s outer clothing.

The Court emphasized in Terry that the test to be used in determining whether a police officer’s intrusion was justified is an objective one; viz.:

“... [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search' or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” (Footnotes omitted) (Citations omitted) 392 U.S. at 21-22, 88 S.Ct. at 1880..

The Court then recognized that it is not always unreasonable to seize a person and subject him to a limited search for weapons where there is no probable cause for an arrest, stating:

“[Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” 392 U.S. at 30, 88 S.Ct. at 1884-1885.

Thus, if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot, he may temporarily detain the suspect. If, after the detention, his personal observations confirm his apprehension that criminal activity may be afoot and indicate that the person may be armed, he may then frisk him as a matter of self-protection. Adams v. Williams, supra; Terry v. Ohio, supra.

It does not matter that subjectively Officer Casey may have felt that appellant, at least at one point in the confrontation, was under arrest. “‘[T]he scope of the Fourth Amendment is not determined by the subjective conclusion of the law enforcement officer.’ United States v. Clark, 559 F.2d 420 (5th Cir.1977), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977), quoting United States v. Resnick, 455 F.2d 1127 (5th Cir.1972). The officer’s subjective opinion is not material. Nor are the courts bound by an officer’s mistaken legal conclusion as to the existence or non-existence of probable cause or reasonable grounds for his actions.” State v. Peck, 305 N.C. 734, 291 S.E.2d 637, 641 (N.C.Supr.Ct.1982). The seizure and search (known in street vernacular as “stop and frisk”) is valid when the objective facts known to the officer meet the standard required. Terry v. Ohio, supra; see also Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168, reh’g denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978); United States v. Tharpe, supra; United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir.1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974); Klinger v. United States, 409 F.2d 299 (8th Cir.1969), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); Commonwealth v. Pinney, 474 Pa. 210, 213, 378 A.2d 293, 295 (1977) (“it is this Court’s duty to make an independent examination of probable cause, apart from any conclusions drawn by a trial judge or other appellate court, to ensure that the constitutional criteria established to safeguard Fourth Amendment rights have been respected. See Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726, 738 (1963).”); State v. Vaughn, 12 Ariz.App. 442, 471 P.2d 744 (1970); People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970), citing Sirimarco v. United States, 315 F.2d 699 (10th Cir.1963), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963); State v. Vanzant, 14 Wash.App. 679, 544 P.2d 786 (1975); see generally 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §§ 1.2(g), 3.2(b) (1978).

Although both officers testified that if appellant had attempted to leave he would have been restrained and/or pursued, I cannot agree with the Majority that appellant was under arrest at the moment he was told to exit the store, since he was not free to leave the scene. Rather, the actions of Officers Stiger and Casey in approáching and directing him to step outside “constituted permissible investigative activity as described in Terry, and appellant was placed under arrest only upon the officers’ discovery of the [cocaine] concealed on his person.” Lewis v. United States, D.C.App., 399 A.2d 559, 560 (1979).

Furthermore, I believe that the police were aware of sufficient facts to warrant a brief investigatory stop of the appellant on the morning of April 7, 1980 “in order to determine his identity or to maintain the status quo momentarily while obtaining more information ____” Adams v. Williams, supra, 407 U.S. at 146, 92 S.Ct. at 1923. In the case at bar, minutes before the police arrived at the 7-Elev-en they had received information via the radio that two men, one carrying a firearm, were on the premises. The call was answered in the early morning hours and there was no one else in the store, except for the cashier and manager, both of whom the police recognized from previous visits. After entry onto the premises, Officers Stiger and Casey secured a firearrh secreted on Mr. Viola, an individual appellant stated he was “waiting for” and referred to as his “buddy.” “Under these circumstances ‘[i]t would have been poor police work indeed for an officer ... to have failed to investigate this behavior further.’ Terry v. Ohio, 392 U.S. at 23, 88 S.Ct. at 1881.” State v. Flynn, 92 Wis.2d 427, 434, 285 N.W.2d 710, 713 (1980); see also Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981). In other words, the police in this case were reluctant to let appellant free to leave as neither his identity nor (actual) purpose had been determined; and it was not unreasonable to believe, for no evidence to the contrary exists, that appellant may have been carrying a weapon. At the same time, the police were reluctant to arrest appellant on the basis of the information known to them at this time. Rather than force the police to choose between such opposite responses, I find the use of the intermediate response such as the one used in this case — directing appellant to step into the parking area — to have been eminently proper. See Commonwealth v. Sheridan, 292 Pa.Super. 278, 437 A.2d 44 (1981) (BROSKY, J.). This view is in accordance with that expressed by the well-known commentator Wayne R. LaFave in his work Search and Seizure: A Treatise on the Fourth Amendment § 9.3 at 77-78, where he has noted his agreement with the actions of the police when confronted with a situation analogous to the one sub judice; viz.:

“Still another situation, and one which provides a rather unique opportunity to juxtapose the standards for arrest with those required for a temporary seizure for investigation, arises when an individual is suspected because of his companionship with another who has just been lawfully arrested. Assume, for example, that A has just been arrested while in the process of committing a crime. While the possibility that his companion B, may also be arrested is greater than would be the case if A were being arrested for an offense committed at some time in the past, it does not follow that B may always be arrested too. As noted earlier, it is necessary to distinguish between those instances in which there is evidence of a ‘common design’ between A and B, on the one hand, and those in which A’s offense might well have been unknown to B and their ‘meeting is not secretive or in a suspicious hide-out,’ on the other. In the latter case the probabilities are not sufficient to allow the arrest ofB, but it would seem that the fact of companionship at the time the crime was committed or perhaps even at some later time would raise a sufficient possibility that B was involved so as to justify a stopping of B incident to A’s arrest.” (Emphasis added) (Footnotes omitted)

The record also reflects that Officer Stiger was able to point to specific and articulable facts which reasonably warranted his frisk of appellant. Appellant was in the company of an individual who was unlawfully carrying a weapon. The weapon was concealed under Viola’s sweater, and it reasonably may be inferred that the presence of the weapon was apparent to appellant. See Lewis v. United States, supra. Appellant and his companion appeared to be more than just casual acquaintances, since the police heard Viola referred to by appellant as his “buddy.” Therefore, when Officer Stiger observed a “bulge” in the pocket of appellant’s jacket, under the totality of the circumstances, the “officer [was] entitled to conduct a limited weapons search of [the] person whom he ha[d] justifiably stopped.” State v. Flynn, supra, 92 Wis.2d at 435, 285 N.W.2d at 713.

Moreover, it is quite reasonable to assume, and there is no contrary evidence in the record, that the officer who searched the appellant was of the opinion that such a prophylactic measure was necessary to avert the possibility that Hook would draw a weapon in an attempt to free Viola from police custody. See United States v. Poms, 484 F.2d 919 (4th Cir.1973); United States v. Del Toro, 464 F.2d 520 (2nd Cir.1972).

It does not follow from the facts that merely because the radio bulletin only reported that one of the two men at the 7-Eleven was armed, and that Hook was cooperative, that Officer Stiger was not justified in stopping and frisking appellant. See State v. Flynn, supra. In fact, as one court has noted in a context similar to the case at bar, “[t]he fact that [appellant’s] companion had just been arrested for unlawful possession of a firearm is a particularly compelling justification for the frisk of appellant.” Lewis v. United States, supra, 399 A.2d at 561. Faced with a comparable situation in United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.1971), the Ninth Circuit Court of Appeals stated:

“In Terry v. Ohio, [supra ], the Court affirmed the right of a limited search ‘to assure * * * that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him’ despite the absence of probable cause for an arrest. We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest. It is inconceivable that a peace officer effecting a lawful arrest ... must expose himself to a shot in the back from defendant’s associate because he cannot on the spot, make the nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.

Accord United States v. Poms, supra; State v. Flynn, supra; Lewis v. United States, supra; People v. Garner, 50 Ill.App.3d 294, 8 Ill.Dec. 357, 358, 365 N.E.2d 595, 596-597 (1977); People v. Williams, 28 Ill.App.3d 189, 328 N.E.2d 89, 93 (1975); cf. United States v. Simmons, 567 F.2d 314 (7th Cir.1977) (accepting the Berryhill rationale as it applies to “pat-down” searches, but refusing to extend it to searches of items within the immediate control of an arrestee’s companion); United States v. Tharpe, supra (officer’s “pat-down” search is compatible with Terry where he has good reason to apprehend that he was in a position of real danger from companions of an arrestee); United States v. Vigo, 487 F.2d 295 (2d Cir.1973) (search limited to arrestee’s companion’s purse justified under Terry); State v. Brazil, 269 N.W.2d 15 (Minn.1978) (where woman arrested for selling narcotics in cafe, passenger in her car outside could not be arrested but could be detained for investigation).

Consequently, given the circumstances confronting Officer Stiger after arresting Mr. Viola, it was wholly reasonable for Stiger to suspect that appellant also might be armed and dangerous. See Lewis v. United States, supra. He thus was justified in subjecting appellant to “a weapons search limited in scope to this protective purpose.” Adams v. Williams, supra, 407 U.S. at 146, 92 S.Ct. at 1923; United States v. Berryhill, supra; State v. Flynn, supra; Lewis v. United States, supra.

Based on the aforesaid and finding that appellant was “detained” in accordance with Terry, I would hold that the subsequent pat-down was proper and the evidence seized (cocaine) as a result thereof was admissible at trial. Since the Majority’s holding is to the contrary, I respectfully dissent.

      . Act of 35 P.S. § 780-113(a)(30).

      . Officer Stiger had 15'/2 years experience with the police force, while Officer Casey had been on the force just over a year.

      . Officer Casey testified that at first he thought the object, which was very common in the North Park area of Pittsburgh, was a "sap." That is, a sock filled with sand that when swung, according to the officer, was "almost a stone, and [if] you hit somebody in the side of the head or temple with it, you’ll kill him. It’s a very effective weapon.” (N.T. 67)

      . United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), distinguished in Berryhill, because a different type of search in scope was involved, is distinguished from the instant case on those same grounds. Furthermore, Di Re was decided long before the Terry decision which allowed a different search on less than probable cause. Accord People v. Williams, 28 Ill.App.3d 189, 328 N.E.2d 89 (1975).

      . I have reviewed appellant’s other allegations raised on appeal and find them to likewise be lacking in merit, so as not to warrant the relief sought. Therefore, I would affirm the judgment of sentence.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    459 A.2d 389
    COMMONWEALTH of Pennsylvania v. James CAREY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1982.
    Filed April 15, 1983.
    Petition for Allowance of Appeal Denied Oct. 12, 1983.

      Randall E. Zimmerman, Mifflintown, for appellant.
    Stewart L. Kurtz, District Attorney, Huntingdon, submitted a brief on behalf of Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   WIEAND, Judge:

James Carey was tried by jury and found guilty of burglary and criminal trespass. Post verdict motions were dismissed, and Carey was sentenced to a term of imprisonment for burglary only. On direct appeal, Carey contends (1) that he did not receive a speedy trial within the standards of Pa.R.Crim.P. 1100; (2) that the trial court erred in refusing motions for mistrial because of alleged prosecutorial misconduct during closing argument; and (3) that the trial court erred in giving a “missing witness” instruction to the jury. There is no merit in these arguments and, therefore, we affirm the judgment of sentence.

Appellant was apprehended by police at or about 12:30 o’clock, a.m., on October 1, 1979, as he fled from a jewelry store in the Borough of Huntingdon, Huntingdon County. A neighbor testified that she had seen an unidentified person enter the jewelry store through a window. A few minutes later, after police had arrived, she saw someone exit through the same window and run away. Appellant was apprehended by police in a yard adjoining the jewelry store by a policeman who gave chase after he observed appellant diving through the jewelry store window. Inside the store, police found burglary tools, pry marks on the safe and various merchandise in disarray.

A criminal complaint was filed against appellant later the same day. Under the speedy trial standards of Pa.R. Crim.P. 1100(b), the Commonwealth was required to commence trial on the charges against appellant on or before March 31, 1980. Because trial did not begin until May 6, 1980, thirty-six days after the run-date, we must examine' the record to determine whether there was time to be excluded from the computation of the 180 day period or whether the delay was otherwise to be excused.

On February 18,1980, the date set for trial, no judge had been regularly assigned to Huntingdon County. The sole judge of the Court of Common Pleas had been defeated in a retention election at the November, 1979, general election and had vacated his office on January 6, 1980. An appointment to fill the vacancy was not made by the Governor until February 28, 1980. Senate confirmation followed on March 25, 1980; and on April 4, 1980, the Honorable Newton C. Taylor assumed the duties of office.

On February 18, 1980, the Honorable George Eppinger had been specially assigned to preside during criminal trials in Huntingdon County. On that date, appellant appeared without counsel and requested a continuance. In pertinent part, the following colloquy occurred:

BY MR. KURTZ: Mr. Carey is in the Court, your Honor.
BY THE COURT: What is your first name?
BY THE DEFENDANT: James Patrick Carey.
BY MR. KURTZ: There was a preliminary hearing on this matter on October the 9th, 1979, at which time Attorney Alan Ellis of the Centre County Bar appeared on behalf of Mr. Carey. Subsequently, Mr. Ellis wrote to me requesting certain information and documents, which we supplied. I might show the Court a copy of the letter I received from Mr. Ellis. And then last month — I am sorry, on February the 7th I received this letter. Mr. Carey advises the Court Administrator that he has paid Mr. Ellis.
BY THE DEFENDANT: Not full, not in full. I am just waiting for the check to come back to pay him in full.
BY THE COURT: Well, Mr. Carey, your case is scheduled for trial this morning.
BY MR. KURTZ: Yes, sir.
BY THE COURT: Are you prepared to proceed?
BY THE DEFENDANT: No, I’m not. I don’t have counsel. This is a last minute thing what happened. He told me he was going to pull out. I didn’t know anything about it.
BY THE COURT: When did you find out?
BY THE DEFENDANT: A couple days ago.
BY THE COURT: Where is [your attorney]?
BY THE DEFENDANT: I don’t know if he is in Israel or — he didn’t say exactly. He said he would be out of the country until the 17th.
BY THE COURT: Until when?
BY THE DEFENDANT: Until the 17th of next month.
BY THE COURT: What do you propose, Mr. Carey.
BY THE DEFENDANT: Well, I want to pay him. I have problems at home. I got a wife that is pregnant, pay the hospital bills, doctor bills and everything else.
BY THE COURT: Yes, I can see that thirty-five hundred dollar attorney bill would be tough. What is the charge?
BY MR. KURTZ: Well, the Information charges two counts. Count 1 charges burglary and Count 2 charges criminal trespass. The Complaint alleges, “... on the 1st day of October at approximately 12:30 a.m. the Defendant entered and remained within the property of the Continental Jewelry Store in the Borough of Huntingdon.” I might say that the Commonwealth’s evidence would indicate that the Defendant was apprehended in the store.
BY THE COURT: Now, what is the date the Information was filed?
BY MR. KURTZ: The Information was filed on the 4th day of December.
BY THE COURT: What explains the delay between 10/1 and — oh, well, the preliminary hearing.
BY MR. KURTZ: The Complaint was filed October 1.
BY THE DEFENDANT: If you want a waiver of the 180-Day Rule, I will sign it. Give it to me. That is no problem.
BY THE COURT: Well, that’s only part of the problem, Mr. Carey. The other part of the problem is that Huntingdon County has difficulty at the present time with the availability of judges and I am here now and would like to try this case. It sounds to me like your attorney never intended to be here anyway. If he left the country, even if you paid him the $2,000, he wouldn’t be here?
BY THE DEFENDANT: Well, I don’t have any control over him.
BY THE COURT: I understand that. Neither do we. You should have gotten a commitment from him so that he had entered an appearance.
BY THE COURT: We have been advised, Mr. Carey, that the 180 days will expire on March the 29th, 1980. You say we do not know when the trial will be held?
BY MR. KURTZ: We do not. The Court Administrator has been trying, but at this point in time we have no judge who has agreed or consented to give us any available time for the trial of cases. We have a judge coming one day for arraignment.
BY THE COURT: How long are you willing to waive it for, Mr. Carey?
BY THE DEFENDANT: For as long as you want; as long as you get it straightened out.
BY THE COURT: He could waive it.
BY THE DEFENDANT: I’d like at least until my wife delivers the child.
BY THE COURT: When is that going to be?
BY THE DEFENDANT: Sometime within the next two weeks.
BY THE COURT: I was thinking more in terms of waiving it for 90 days and then, if — so that on the 90th day after today you would be in exactly the same position you are today.
BY THE DEFENDANT: Well, you know, I am—
BY THE COURT: The Commonwealth has only about 40 days in which to try it. Are you willing to do that?
BY THE DEFENDANT: Yes.
BY THE COURT: Is that alright?
BY MR. KURTZ: Yes.
BY THE COURT: In other words, if the case was scheduled for trial any time within 90 days from today, plus whatever there is left, that makes about 130 days. Are you willing to go that far?
BY THE DEFENDANT: As long as I can get two weeks until—
BY THE COURT: But you are entitled to be tried within 180 days.
BY THE DEFENDANT: I understand that.
BY THE COURT: And we are ready to try you and in Huntingdon County; they have a particular problem because there is no judge here to try you on a regular basis, which means that they have to have visiting judges. I am here, a jury is here and we are ready to go, except you are not ready you say.
BY THE DEFENDANT: And the witnesses aren’t here either.
BY THE COURT: Who is?
BY THE DEFENDANT: I don’t know if the police office [sic] and whoever is involved.
BY THE COURT: We would pick a trial day and schedule it for trial. That’s the way we operate.
BY THE DEFENDANT: I am willing to waive it until—
BY THE COURT: Is 90 too much, 60 alright or what?
BY MR. KURTZ: 90, I think would be—
BY THE COURT: All right.

Following this colloquy, an order was entered as follows:

NOW, February 18, 1980, the Defendant having appeared in open Court and having represented to the Court that he had paid a $1,500.00 retainer fee to Alan Ellis and that Alan Ellis did not appear today for the trial of the case, and it further appearing to the Court that the Defendant is expected to pay a balance of $2,000.00 to Alan Ellis, which he hopes to pay from his IRS return, and the Defendant making a motion to continue the case for a period of 90 days and agrees that 90 days from this date he would be in exactly the same position that he would be in this date with regard to the running of the time in Rule 1100,
The Court being concerned there is no regular sitting judge in Huntingdon County and that the county has experienced some difficulty in obtaining judes [sic] for trials and feeling that the 90-day period would be appropriate,
IT IS ORDERED the case be continued for a period of 90 days and the case may be called for trial sooner if the Court Administrator is able to list the case before a judge presiding in Huntingdon County.

When the case was subsequently tried, appellant was represented by an assistant public defender, who filed a timely motion to dismiss. The motion was denied after hearing.

It is well settled that “Rule 1100, like the right to a speedy trial which it protects, may be waived.” Commonwealth v. Myrick, 468 Pa. 155, 159, 360 A.2d 598, 600 (1976). See also: Commonwealth v. Manley, 491 Pa. 461, 468, 421 A.2d 636, 640 (1980); Commonwealth v. Green, 292 Pa.Super. 299, 301, 437 A.2d 54, 55 (1981). It is correct, of course, that in such cases the Commonwealth bears the burden of demonstrating that a purported waiver is the product of an “informed and voluntary decision.” Commonwealth v. Manley, supra 491 Pa. at 468, 421 A.2d at 640. See also: Commonwealth v. Coleman, 477 Pa. 400, 407, 383 A.2d 1268, 1271 (1978); Commonwealth v. Myrick, supra 468 Pa. at 160, 360 A.2d at 600-601; Commonwealth v. Martin, 300 Pa.Super. 497, 501, 446 A.2d 965, 967 (1982); Commonwealth v. Green, supra 292 Pa.Super. at 301, 437 A.2d at 55. However, “[t]here are no formal requirements for a valid waiver of Rule 1100; so long as there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity.” Commonwealth v. Brown, 497 Pa. 7, 11, 438 A.2d 592, 594 (1981), quoting from Commonwealth v. Myrick, supra 468 Pa. at 160, 360 A.2d at 600. Accord: Commonwealth v. Martin, supra.

In the instant case, it was appellant who desired a delay in the start of his trial and who initiated the suggestion that he was willing to waive the right to be tried within 180 days. He was without counsel, his wife was expecting a child and, in order to obtain a postponement, he told the court he would agree to a waiver for “as long as you want.” When the court, because of the absence of counsel and the uncertain availability of another trial judge, suggested a delay for as long as 90 days, appellant acquiesced without hesitation or suggestion of reluctance.

The record colloquy in this case was adequate to inform appellant of the requirements of Rule 1100. There was no requirement that counsel be present or that any particular, “magic words” be spoken. We conclude, therefore, that appellant validly waived his right to be tried within 180 days. Having led the trial court to believe that he required a delay and that a delay of 90 days was satisfactory, appellant will not now be permitted to take advantage of his own conduct to obtain a dismissal of the charges against him. Commonwealth v. Brown, supra; Commonwealth v. Lee, 297 Pa.Super. 216, 443 A.2d 804 (1982). See also: Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982); Commonwealth v. Garrison, 277 Pa.Super. 18, 419 A.2d 638 (1980); Commonwealth v. Lovera, 248 Pa.Super. 439, 375 A.2d 178 (1977); Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975).

At trial, appellant was not represented by the same lawyer who had represented him in proceedings prior to February 18, 1980. His trial counsel was an assistant public defender. Because there was a valid waiver of the requirements of Rule 1100, we find it unnecessary to determine the amount of time otherwise excludable because of the unavailability of counsel for the appellant.

Appellant contends that the prosecuting attorney was guilty of misconduct when, during closing argument to the jury, he suggested that he found the testimony of appellant’s wife “curious” and when he distinguished the facts of appellant’s case from those burglaries which “go unsolved because the individual escapes into the night.” We find in these remarks no basis for setting aside the verdict of the jury. “Comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Nicholson, 308 Pa.Super. 370, 384, 454 A.2d 581, 588 (1982), quoting from Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). See also: Commonwealth v. Zettlemoyer, 500 Pa. 16, 53, 454 A.2d 937, 958 (1982); Commonwealth v. Burton, 491 Pa. 13, 22, 417 A.2d 611, 615-616 (1980); Commonwealth v. Brown, 489 Pa. 285, 297-298, 414 A.2d 70, 76 (1980); Commonwealth v. Martin, 307 Pa.Super. 118, 123, 452 A.2d 1066, 1069 (1982); Commonwealth v. Gilliard, 300 Pa.Super. 469, 477, 446 A.2d 951, 954-955 (1982); Commonwealth v. Williams, 295 Pa.Super. 369, 377, 441 A.2d 1277, 1281-1282 (1982).

It is correct, as appellant contends, that counsel should not express his opinion concerning the credibility of a witness. Commonwealth v. Gwaltney, 497 Pa. 505, 513, 442 A.2d 236, 240 (1982). However, to determine the prejudicial effect of a district attorney’s remarks they must be evaluated in the context in which they occurred. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980). Counsel’s statement that he found a witness’ testimony “curious” was no more than an invitation to the jury to examine carefully the credibility of that testimony. Similarly, the prosecuting attorney’s comment regarding those burglars who escape in the night did not refer to appellant but was intended to focus upon the fact that appellant, according to the Commonwealth’s evidence, had been caught under circumstances demonstrating beyond any doubt his identity as the person who had left the jewelry store through a window. The trial court found that neither statement was of such inherent nature or delivered in such a manner that it could reasonably be said to have deprived appellant of a fair trial. We agree. The prosecutor was entitled to question the credibility of the witnesses and argue that the strength of the Commonwealth’s evidence deserved a finding of guilt. See and compare: Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980); Commonwealth v. Fawcett, 297 Pa.Super. 379, 383-384, 443 A.2d 1172, 1174 (1982); Commonwealth v. Henry, 295 Pa.Super. 47, 56, 440 A.2d 1215, 1220 (1982); Commonwealth v. Branch, 292 Pa.Super. 425, 432-433, 437 A.2d 748, 751-752 (1981); Commonwealth v. Gunderman, 268 Pa.Super. 142, 148, 407 A.2d 870, 873 (1979).

During trial, appellant’s counsel charged the arresting police officer with an inadequate investigation. He also attempted to attack the credibility of his identification of appellant as the person who had come through the window by showing that the officer had called the hospital to ascertain if anyone had reported a cut. There was evidence that blood had been found on the broken glass of the store window but that appellant had not sustained an observable injury. The District Attorney suggested to the jury that possibly someone else might have been in the store with appellant. This was obviously in response to the argument made by appellant’s counsel. Although it was speculative, it did not require that a mistrial be granted, particularly in view of the argument made by defense counsel.

Appellant and his wife testified that on the day preceding his arrest they had driven from Philadelphia to State College to meet a friend. Later, they said, they had gone to Huntingdon to gather books and items which their friend asked them to collect from a given address. Appellant testified that he was inexplicably arrested while innocently walking the streets of Huntingdon, looking for the address given to him by his friend. The friend was neither identified nor called as a witness. Therefore, the prosecuting attorney referred to the absence of the witness during final summation and the court instructed the jury regarding the inference which may be drawn when a party fails to call a witness who is peculiarly available to that party. Appellant does not challenge the correctness of the court’s statement of the rule. He argues, rather, that it was inapplicable and that it was error to permit any reference to his failure to call the unidentified friend to corroborate his explanation.

The missing witness inference rule was articulated by the Supreme Court in Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974), as follows:

“ ‘When a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable.’ ” (citations omitted).

Id., 455 Pa. at 495, 317 A.2d at 237, quoting Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973). See also: Commonwealth v. Newmiller, 487 Pa. 410, 419, 409 A.2d 834, 838-839 (1979) (plurality opinion); Commonwealth v. March, 308 Pa.Super. 343, 350, 454 A.2d 567, 571 (1982); Commonwealth v. Stafford, 307 Pa.Super. 278, 284, 453 A.2d 351, 354 (1982); Commonwealth v. Matt, 295 Pa.Super. 293, 297, 441 A.2d 1239, 1241 (1982); Commonwealth v. Trignani, 185 Pa.Super. 332, 340, 138 A.2d 215, 219, aff'd, 393 Pa. 140, 142 A.2d 160 (1958).

In the instant case, the witness was available only to appellant. The Commonwealth was unaware of his existence or identity. The witness’ purported testimony was such that it would have been in appellant’s best interests to produce it, for it would have tended to confirm those facts upon which appellant elected to rest his defense. Appellant’s failure to call the witness, when coupled with his failure to explain the witness’ absence, permitted the jury to infer that his testimony would not have supported appellant’s version. See and compare: Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971); Commonwealth v. Trignani, supra; Commonwealth v. March, supra; Commonwealth v. Gibson, 245 Pa.Super. 103, 369 A.2d 314 (1976). Thus, it was not error to instruct the jury on the missing witness inference rule or to permit the District Attorney to refer to the absence of the witness during final summation.

Appellant has filed pro se a supplemental brief in which he contends that trial counsel was ineffective for failing to prevent testimony from a police officer which allegedly linked appellant to prior criminal conduct. By implication, he is also charging appellate counsel, who entered his appearance for appellant after post-trial motions had been filed but before they were argued, with ineffectiveness for failing to raise in the trial court or argue on appeal the issue of trial counsel’s alleged ineffectiveness. As a matter of policy, we will not consider appellant’s pro se brief or adjudicate the issue attempted to be raised therein. If appellant chooses to pursue the issue, it can better be adjudicated in P.C.H.A. proceedings. Commonwealth v. Almeida, 306 Pa.Super. 197, 207-217, 452 A.2d 512, 516-521 (1982) (Concurring and Dissenting Opinion by Spaeth, J.). Meanwhile, we will affirm the judgment of sentence.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3502(a).

      . 18 Pa.C.S. § 3503(a).

      . The 180th day was Saturday, March 29, 1980. The final date for commencing trial, therefore, was Monday, March 31, 1980. See: 1 Pa.C.S. § 1908. See also: Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982); Commonwealth v. Jones, 473 Pa. 211, 373 A.2d 1338 (1977).


text:
    459 A.2d 396
    Joann DAMBACHER, a minor, by her parents and natural guardians, William J. and Joann DAMBACHER and Joann Dambacher, a minor, in her own right v. COMMERCIAL UNION ASSURANCE COMPANIES, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1982.
    Filed April 15, 1983.
    Petition for Allowance of Appeal Granted Nov. 4, 1983.

      David M. McCormick, Philadelphia, for appellant.
    Gustine J. Pelagatti, Philadelphia, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County awarding appellees benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act. Appellant argues that the trial court erred when it dismissed preliminary objections to the petition by which appellees attempted to institute the-instant action. We are constrained to agree; and, therefore, we reverse the order of the trial court and dismiss the petition without prejudice to appellees’ right to institute an action by the filing of a complaint.

On November 3, 1977, fourteen year old Joann Dambacher was seriously and permanently injured when the vehicle in which she was a passenger struck a tree. As a result of these injuries Joann has been rendered a paraplegic and will never regain the use of her limbs. Joann was hospitalized for three months following the accident and was then transferred to Magee Memorial Rehabilitation Center, where she was a patient for four months, before returning home. Pursuant to an insurance policy which had been purchased by Joann’s father, appellant, Commercial Union Assurance Companies, paid more than $56,000 in medical bills. However, the appellant insurance company refused to compensate appellees for the expenses which are the subject of the petition in the instant proceedings. This petition, filed October 5, 1979, sought to recover: 1) the value of practical nursing services which appellees, Joann and William Dambacher, rendered for their daughter; 2) the purchase price of a van, specially equipped to accommodate a wheelchair; 3) the cost of home renovations; 4) work loss benefits; 5) reimbursement for transportation costs incurred in transporting Joann to and from school and various medical facilities; and 6) attorney’s fees, costs and interest.

This Court, in Floczak v. Nationwide Mutual Insurance Company, 289 Pa.Super. 438, 433 A.2d 885 (1981), has held that an action for no-fault benefits cannot be commenced by petition and rule. Accord: Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 480, 455 A.2d 710, 711 (1983); Cohen v. Government Employees Insurance Company, 289 Pa.Super. 319, 322, 433 A.2d 86, 87 (1981). A claimant may proceed by petition and rule only where a prior action has been commenced as provided by Pa.R.C.P. 1007. “[T]he legislature made plain its intention to distinguish between commencing an ‘action’ to recover no-fault benefits generally, and filing an ‘application’ for certain forms of treatment. When an ‘action’ to recover no-fault benefits has been commenced, within the time limitations imposed by section 106, and it has been determined that there is an ‘obligor’ of basic loss benefits, then, ‘upon application,’ and after hearing, a court may order payment of the cost of rehabilitation treatment, section 404, or of rehabilitation occupational therapy, section 405.” Floczak v. Nationwide Mutual Insurance Company, supra, 289 Pa.Super. at 444, 433 A.2d at 888 (emphasis in original).

Appellees argue that where an insurer has recognized that it is an “obligor” by providing no-fault benefits at the request of the claimant, the claimant may proceed thereafter by petition and rule for benefits under sections 404 and 405 of the No-Fault Act. Appellees contend that appellant, Commercial Union, had been “previously deter-

mined to be an obligor” by virtue of appellant’s payment of no-fault, medical benefits. Therefore, they argue, sections 404 and 405 of the Act permit the institution of a proceeding for additional benefits by petition and rule. This argument is unsound. A petition and rule may be used under sections 404 and 405 to recover the costs of occupational therapy and rehabilitation treatment only where an action for no-fault benefits was previously “commenced by filing with the prothonotary (1) a praecipe for a writ of summons, (2) a complaint, or (3) an agreement for an amicable action.” Pa.R.C.P. 1007. This is consistent with the general rule that an action cannot be commenced by petition; proceeding by petition and rule is permissible only where such proceeding is ancillary to an already pending action. See and compare: William Garlick & Sons, Inc. v. Lambert, 446 Pa. 323, 325, 287 A.2d 143, 144 (1972); Pennsylvania Crime Commission Petitions, 446 Pa. 152, 159, 285 A.2d 494, 498 (1971); In re Correction of Official Records with Civil Action, 44 Pa.Cmwlth. 511, 513, 404 A.2d 741, 742-743 (1979); Commonwealth, Department of Public Welfare v. Livingood, 22 Pa.Cmwlth. 530, 533, 349 A.2d 816, 818 (1976); Butler Area Sewer Authority v. Northwest Sanitary Sewer System Authority, 3 Pa.Cmwlth. 76, 84, 281 A.2d 87, 91 (1971); Percival v. City of Philadelphia, Pa. Cmwlth., 309 A.2d 597, 599 (1973). See also: Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 360-361, 253 A.2d 256, 257 (1969) (Cohen, J., dissenting);

This Court, sitting en banc, in Jones v. State Automobile Insurance Association, supra, held that an action for benefits under the No-Fault Act may not be commenced by petition and rule, but that the error committed by instituting proceedings in such a manner is a waivable, procedural defect. The insurer in Jones had paid appellant, Pauline Jones, work-loss benefits under the provisions of her policy but had subsequently terminated such payments following a physical examination. This Court held that the commencement of the action for further work-loss benefits, interest and attorney’s fees by petition and rule was improper, but found that the defect had been waived by appellee’s full participation in the proceedings without objection to the manner in which the proceeding had been instituted. The insurer-appellee in Jones, as the appellant-insurer in the instant case, had previously provided no-fault benefits to appellant Jones. The insurer, therefore, had conceded that it was an obligor for purposes of the No-Fault Act. The Court in Jones, nevertheless, found that commencement of the proceedings for additional benefits, even where no-fault benefits had previously been paid, was improper. While the appellant in Jones sought work-loss benefits rather than benefits under sections 404 and 405 of the Act, this distinction is of no significance. Jones is determinative of the instant appeal.

Sections 404 and 405 of the Act provide that proceedings against an obligor for the costs of occupational therapy and rehabilitation treatment can be commenced by petition and rule only where an action against the obligor has previously been “commenced by filing with the prothonotary (1) a praecipe for a writ of summons, (2) a complaint, or (3) an agreement for an amicable action.” Pa.R.C.P. 1007. Where, as here, an action has been improperly instituted by petition and rule, and the obligor has not waived the defect but has preserved it for appellate review by filing preliminary objections to the manner in which the action was instituted, we are required to dismiss the petition. See: Floczak v. Nationwide Mutual Insurance Company, supra; Cohen v. Government Employees Insurance Company, supra.

The order of the lower court is reversed and appellees’ petition is dismissed without prejudice to their right to commence a proper action against appellant.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq.

      . The renovations included a heated concrete ramp for ingress and egress to the Dambacher’s residence, conversion of two rooms into one with a specially designed bath, a stair glide and air-conditioning.

      . The trial court awarded appellees Joann and William Dambacher 1) $74,151.12 for nursing services rendered to their daughter from April 20, 1978 until February 6, 1981, plus interest from November 5, 1979; 2) $16,353.00, plus interest from March 9, 1981, for the purchase of a specially equipped van; 3) $7,745.00 for the cost of a wheelchair lift, to bear interest from March 9, 1981; 4) $20,726.00 for costs of home renovations, to bear interest from March 9, 1981; and 5) $788.55 for transportation expenses to bear interest from March 9, 1981. The court also awarded the daughter $12,130.00, plus interest from November 5, 1979, for work loss benefits during the period from November 8, 1977 to February 19, 1981. Attorney’s fees and costs of $7,319.56 were awarded to appellees’ counsel.

      . Exceptions were not filed in the trial court as required by Pa.R.C.P. 1038. Ordinarily, this omission results in a waiver of all issues sought to be raised on appeal. However, "[i]n those no-fault cases now on appeal ... where a final order was entered by the trial court prior to Floczak, supra, the failure to file exceptions will be excused.” Jones v. State Automobile Insurance Association, supra, 309 Pa.Super. at 483, 455 A.2d at 713. We reach the issue of the defective procedure in this appeal because a remand for the filing of exceptions would unnecessarily delay ultimate and inevitable dismissal.


author: MONTEMURO, Judge: HESTER, Judge,

text:
    459 A.2d 399
    COMMONWEALTH of Pennsylvania v. Joseph HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1981.
    Filed April 15, 1983.
    Hester, J., filed dissenting statement.

      John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

Unfortunately, because of Pa.R.Crim.P. 1100, we must, for the reasons which follow, reverse the court below and discharge appellant who received a fair trial and who is guilty as charged. In this case, it is a mere four days that allows this appellant to say to himself, probably behind a. hand hidden smirk, “what a crazy system.” It is the kind of subservience to form over substance that brings about disrespect for the law and an understandable frustration on the part of all law abiding citizens. However, we must follow the law as enunciated by the Supreme Court and for that reason this appellant will be discharged.

Appellant, Joseph Hill, was found guilty following a non-jury trial of theft by unlawful taking and receiving stolen property. Subsequent to the denial of post-trial motions, appellant was sentenced to a term of eleven and one-half (IIV2) to twenty-three (23) months imprisonment. On October 31, 1978, appellant filed an appeal to this court contending that the lower court improperly granted two Commonwealth petitions for extension and, as a result, he was not tried within the appropriate 180 day time period. See Pa.R.Crim.P. 1100(a)(2) and (c).

On January 4, 1980, this court entered a Per Curiam Order remanding the case to the lower court for the purpose of conducting an evidentiary hearing on the Rule 1100 issue, and thereafter, to either grant or deny appellant’s motion to arrest judgment. Commonwealth v. Hill, 273 Pa.Super. 428, 417 A.2d 723 (1980).

On January 25, 1980, appellant filed a petition for allowance of appeal to the Supreme Court from this court’s January 4 order, which was denied on September 17, 1980.

On September 23, 1980, the record was remanded to the court below.

On March 5, 1981 and April 27, 1981 the court below conducted hearings on the matter.

On August 4, 1981, the record was resubmitted to this court including the certified notes of testimony from the hearings held on the Commonwealth’s petition for extension on July 6, 1978 and-August 17, 1978. Apparently, these notes were not made part of the record the first time the case was on appeal. We now address appellant’s claim.

Specifically, appellant contends that the Commonwealth failed to prove due diligence at the extension hearings and that the Commonwealth, at the remand hearing, merely reiterated what it had stated at the second extension hearing without further proof. The facts relevant to the question raised by appellant are as follows:

Appellant was arrested and formally charged on December 15, 1977. His trial, however, did not begin until August 29, 1978 some 77 days after the original run date of June 13, 1978.

In its first petition for extension filed on June 8, 1978, the Commonwealth set forth these allegations:

3. The Commonwealth has exercised due diligence in this prosecution as:

(a) March 28, 1978 — Commonwealth ready to proceed.
(b) April 10, 1978 — Commonwealth ready to proceed.
(c) June 7, 1978 — Commonwealth ready to proceed.

4. Despite due diligence, the Commonwealth will be unable to try the defendant before the original run date.

This petition was filed by the Commonwealth one day after the defense had been granted a continuance to July 20, 1978. On July 6, 1978, the Court below conducted a hearing on the petition and extended the run date to July 24, 1978. The following is the entire transcript of the proceeding:

MR. MINES [Counsel for appellant]: If I may, I’d like to file our Answer and Motion to Dismiss.
THE COURT: Initiation date 12-5-77 with a normal run date of 6-13-78. The Commonwealth filed their petition on 6-8. It is therefore timely filed.
I note one continuance on behalf of the defense from 6-7 to 7-20.
MR. MINES: That’s correct.
THE COURT: I note a court continuance of 4-10 to 5-10, protracted case.
I note 3-28 to 4-10, application of defense, witnesses notified but unable to attend.
There is one application by the Commonwealth, 3-6-to 3-28.

Based on that—

MR. MINES: There is one application by the Commonwealth prior to that, 12-20-77.
THE COURT: There was a Motion to Suppress apparently heard on May 10th.
MR. MINES: Yes, your Honor.
THE COURT: The Court recused itself.
Based on that I’ll make a finding of due diligence.
The matter is now listed for July 20th, is that correct?
MS. KREVOLIN: Yes, Your Honor.
THE COURT: I’ll make it the 24th, the weekend intervening.

The Commonwealth’s position is that the record from the July 6 extension hearing supports the finding of due diligence by the Court below. We do not agree.

The circumstances presented in this case are quite similar to those found in Commonwealth v. Mines, 282 Pa.Super. 157, 422 A.2d 876 (1980), which provides an excellent statement of the law concerning our standard of review on this appeal, as well as a disposition on these facts: must be such as to prove by a preponderance of the evidence that despite the exercise of due diligence, the Commonwealth was unable to bring the defendant to trial within the prescribed period. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). In reviewing a hearing court’s ruling on the application, we consider only the evidence presented by the Commonwealth, and so much evidence presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Sinor, 264 Pa.Super. 178, 399 A.2d 724 (1979).

This application is little more than a form. A mere allegation of due diligence is not sufficient to warrant a court order extending the mandatory time for trial under Rule 1100(c). See Commonwealth v. Long, 258 Pa.Super. 251, 392 A.2d 779 (1978); Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978). However, an application that is no more than an allegation of due diligence is not defective per se; the Commonwealth may still obtain an extension if it presents sufficient evidence of due diligence at a hearing on the application. Commonwealth v. Cimaszewski, 261 Pa.Super. 39, 395 A.2d 931 (1978); Commonwealth v. Myers, 259 Pa.Super. 196, 393 A.2d 785 (1978). To be satisfied, the evidence

Here, the Commonwealth presented no evidence whatsoever. Instead, it left review of the case to the hearing judge:

THE COURT: ... Apparently, 12-2 to 12-29 there was a continuance at the request of the defendant. Then there was a request on 3-9 by the defendant to have the Notes of Testimony of the suppression hearing and that resulted in a continuance to 4-21, which was the next trial date.
That’s basically all I have. Is there anything in addition to that?
MR. KELLY [Counsel for appellant]: I would simply submit your Honor, the record in total does not show diligence on the part of the Commonwealth.
The complaining witness failed to appear a total of three times and the officer was injured on duty one time. Two times the Commonwealth was prepared for trial.
THE COURT: I’m going to make a finding of due diligence____

(4/7/78 N.T. 2-3)

This finding was error. A mere allegation in the application that the Commonwealth was twice “ready to proceed to trial,” and a docket record that the case was twice continued at the request of the appellant, do not amount to proof by a preponderance of the evidence, that the trial could not be commenced within the prescribed period despite due diligence by the Commonwealth.

The foregoing is not to say that the Commonwealth had to commence trial within the original mandatory period, which ended on March 27, 1978. By requesting a continuance until April 21, 1978, appellant acquiesced to the delay of trial until that date. In Commonwealth v. Connor, 258 Pa.Super. 246, 392 A.2d 776 (1978), we found a defendant to have waived the issue of a Rule 1100 violation when he requested a continuance five days before the run date, and then accepted a new trial date after the run date. See also Commonwealth v. Ferebee, 259 Pa.Super. 234, 393 A.2d 804 (1978) (both defendant and Commonwealth moved for continuance beyond run date); Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975) (same). Therefore, had trial occurred on or before April 21, appellant’s Rule 1100 would fail. However, trial did not commence until April 24. (Footnote omitted)

Id., 282 Pa.Superior at 162-164, 422 A.2d at 879-880.

In Mines, this court went on to find that the Commonwealth had not established due diligence and, thus, the period had run on April 21, 1978. The court found no basis in the record for the Commonwealth’s claim that they could not try the appellant on April 21 because of his first time request to be tried by a jury. The court concluded that:

Therefore, if, because of a misunderstanding regarding whether the trial would be by a jury, and despite its due diligence, the Commonwealth could not start the trial by April 21, it was required to file an application for an extension no later than on April 21. However, the Commonwealth filed no such application.

Id., 282 Pa.Superior at 165, 422 A.2d at 880.

In the instant case, as in Mines, the Commonwealth merely stated in its petition that it was ready to proceed on three occasions but could not do so because of delays caused by the court and the defendant. This, however, is insufficient to support a finding of due diligence. No testimony was presented and the court below relied upon the procedural posture of the case for its decision.

Moreover, similar to Mines, the Commonwealth in this case was not required to bring the appellant to trial on the original run date of June 13, 1978. Pursuant to Commonwealth v. Connor, supra, the defense requested continuance on June 7, 1978 extended the run date to July 20, 1978. Unfortunately, appellant was not tried until August 29, 1978 and the Commonwealth did not file a second petition for extension until July 24, 1978. The Commonwealth was required to begin appellant’s trial on or before July 20 and if an extension was needed, due to the municipal employees strike, the petition should have been filed on that date, Commonwealth v. Mines, supra.

The judgment of sentence is reversed and appellant is discharged.

HESTER, J., files dissenting statement.

HESTER, Judge,

dissenting:

I dissent. I would affirm on the opinion of Judge Blake of the court below to the effect that the Commonwealth exercised due diligence entitling it to Rule 1100(c) extensions.

      . 18 Pa.C.S.A. § 3926.

      . 18 Pa.C.S.A. § 3926.

      . This court’s per curiam order of January 4, 1981 directing the lower court to conduct an evidentiary hearing and to either grant or deny appellant’s motion in arrest of judgment required appellant to perfect an appeal from that order. This court did not retain jurisdiction. However, appellant never filed another appeal. Based on the peculiar circumstances presented here though, appellant cannot be faulted. On August 3, 1981, appellant’s counsel notified the court below that she had not received a ruling on the motion to arrest judgment relevant to the remand hearing and believed that this court’s remand required the court to enter such an order. The court below did not respond to the notification but did file an opinion ordering the dismissal of appellant’s motion to arrest judgment on September 24, 1981. Prior to this, however, on August 4, 1981, this court issued a per curiam order sua sponte listing this case for submission at the Session commencing October 13, 1981. Counsel was notified of the above order, advised that the record had been filed in the Superior Court and that briefs had to be filed on or before September 13, 1981.
      Given the fact that the court below never entered its ruling until September 24, 1981, and, that beforehand, this court sua sponte listed the case on appeal, we will decide the merits.


author: PER CURIAM:

text:
    459 A.2d 403
    In re Mary Lou LONG. Appeal of Orie and Georgia LONG, Parents.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1983.
    Filed April 15, 1983.

      Joseph M. James, Pittsburgh, for appellants.
    Helen Margaret Tremont, Pittsburgh, for appellee.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

Orie N. Long, Sr. and his wife, Georgia Long, natural parents of Mary Lou Long (birthday June 21, 1973) appeal from the order of Judge Tamilia granting custody of the child to Mr. and Mrs. Leonard Zankel and denying appellants’ visitation.

The child and two sisters were adjudicated dependents in August 1978 in Crawford County; in the present proceedings a stipulation of dependency was entered on the record.

On January 7, 1981, the case was ordered continued to February 4, 1981 with the child “to remain in the custody of the Paternal Uncle and Aunt, Mr. and Mrs. Zankel.” Similar deferments were made from February 4, 1981 to April 1, 1981; then to May 13, 1981; and to June 4, 1981. Provision was made for visitation by the parents on Tuesdays and Thursdays. Finally, on September 11, 1981, the present order was entered ordering that the child “remain in the custody of the Paternal Uncle and Aunt and visitations to be denied with natural parents.”

Appellants’ Brief refers to four “Questions Involved.” In essence, the contentions of error are two-fold:

1. That the lower court refused to hear testimony from a business associate, and a niece of the husband-appellant, tending to show that the appellants (separated in January, 1981) had since reconciled and had established a reasonably stable family relationship; and

2. That the lower court terminated visitation rights ex parte without prior notice to appellants, on the basis of a letter from a case worker and a telephone conversation with another case worker.

In the early stages of this litigation, up to about June, 1981, all parties seemed to be going along with an arrangement under which the Zankels would have custody of the child, with visitation privileges to the natural parents. Initially, visitation occurred on Saturdays and Sundays but was changed on June 4, 1981, with some complaints by the parents, to Tuesdays and Thursdays to suit the desires of the foster parents.

On June 29, 1981, Kimberly Beavers, Child Development Specialist at the South Hills (Pittsburgh) Child Guidance Center wrote Judge Tamilia stating that the child’s visits to her parents’ home indicated regression on her part “as she appears to be having difficulty with what she experiences when visiting her parents; that her regression is interfering with the course of her psychotherapy.” She recommended that visits between Mary Lou and her parents be further limited or restricted altogether. On or about June 25, 1981, a Mr. Giesey, a caseworker, contacted Judge Tamilia for permission to discontinue the visits; such was granted, apparently without formal order, pending the hearing scheduled for September 11, 1981.

At the hearing on September 11, 1981, the natural parents did not appear, although they were represented by counsel. Giesey’s oral statement of developments since the last hearing was incorporated into the record without objection and Mrs. Zankel testified that the child’s visits to her parents made her fearful that her parents would take her away from her brothers and sisters (who were also staying with the Zankel’s) and that the child was “a happier and freer child in July and August”, when the visits had ceased. The child also indicated in response to the court’s inquiry that she wanted to stay with her aunt, and did not want to visit with her Mother. At that point the court entered the “final order” that the child remain in the custody of the Zankels and that visitation be denied to the natural parents.

It is the policy of this Commonwealth to preserve the family unit wherever and to whatever extent possible, even though a child has been adjudicated a dependent; she may be removed from her parents’ custody only upon a showing of clear necessity. In Re Donna W, 284 Pa.Superior Ct. 338, 343, 425 A.2d 1132, 1134, (1981); In the Interest of Pernishek, 268 Pa.Superior Ct. 447, 457, 408 A.2d 872, 877 (1979). If a determination has been made that the child is to be taken from the custody of her parents, custody should be awarded according to the “best interests” of the child, In Re Donna W., supra.

Even after the child has been given into the custody of others, the natural parents, except in fairly extreme circumstances, should be awarded visitation rights; such “must be carefully guarded”: Palmer v. Tokarek, 279 Pa.Superior Ct. 458, 475, 421 A.2d 289 (1980). “Visitation ... has been limited or denied only where a parent has been shown to suffer from severe mental or moral deficiencies that constituted a grave threat to the child! Scarlett v. Scarlett, 257 Pa.Super. 468, 472, 390 A.2d 1331, 1333 (1978).” Hoffer v. Hoffer, 301 Pa.Superior Ct. 289, 447 A.2d 972 (1982). Further, the record which is claimed to support an order of this character must be reasonably complete, and the hearing judge must by his opinion give us the benefit of a thorough analysis of that record. In Re Desiree B., 304 Pa.Superior Ct. 461, 450 A.2d 1003 (1982); Commonwealth ex rel. Newcomer v. King, 301 Pa.Superior Ct. 239, 447 A.2d 630 (1982).

Judge Tamilia’s opinion reviews the somewhat lengthy history of this litigation; points out that the natural parents have in the past had difficult relations with each other, which difficulties resulted in emotional problems with the children, especially the youngest, Mary Lou; and concludes that the great weight of the evidence — caseworkers, the paternal aunt Mrs. Zankel, and Mary Lou — establishes that the visits of Mary Lou to her parents are detrimental to her emotional rehabilitation.

However, at this time, we find it unnecessary to review the merits of the substantive issues of this case as we find that the natural parents were improperly denied their right to put on the record the testimony of the niece, Sandra Dougherty and the father’s business associate, James Moran. Both were offered to prove that the relations between the natural parents inter sese had improved substantially. Judge Tamilia refused to receive the testimony on the apparent grounds (1) that the witnesses were obviously not in a position to know what was the conduct of the parents when alone and/or with their children, and (2) that the testimony had little, if any relevancy on the primary question of what was in the best interest of the child.

The Juvenile Act, 42 Pa.C.S.A. § 6338(a) states that: “A party is entitled to the opportunity to introduce evidence and otherwise be heard in his own behalf and to cross-examine witnesses.” The natural parents were obviously parties to this present procedure. The hearing court had the responsibility to receive evidence from all interested parties, as well as from objective, disinterested witnesses. In Re Donna W, supra; In Interest of Black, 273 Pa.Superior Ct. 536, 417 A.2d 1178 (1980); In Interest of Pernishek, supra; and Interest of Clouse, 244 Pa.Superior Ct. 396, 368 A.2d 780 (1976). The court should have allowed the testimony of the proffered disinterested witnesses who, observed the interaction of parents and child.

Similarly, we find that the opinion and recommendations of Kimberly Beavers, child counselor, contained in her letter of June 29, 1981 to Judge Tamilia should not have been utilized by the Hearing Judge as a partial basis of his order. Ms. Beavers was not called as a witness. A party or litigant has a right to an in court presentation of evidence, such is essential to due process. Such report or letter cannot be received into evidence over objection in a custody matter unless its author is sworn, examined and subjected to cross examination. Palmer v. Tokarek, 279 Pa.Superior Ct. 458, 421 A.2d 289 (1980).

We therefore are obligated to set aside the order of September 11, 1981, and to allow appellants to present the excluded testimony relevant to the issues of custody of the child and visitation rights of the natural parents. In addition to considering the evidence already in the record, the lower court shall afford the parties the opportunity to present additional evidence. Proceedings on remand should take place with “utmost dispatch.” In the Interest of La Rue, 244 Pa.Superior Ct. 218, 235, 366 A.2d 1271, 1280 (1976). Any party aggrieved by the trial court’s decision may perfect an appeal with this court. We do not retain jurisdiction.

Order vacated and case remanded for proceedings not inconsistent with this opinion.

      . Mrs. Zankel is appellant-father’s sister.

      . The status of the two sisters is not before this court.

      . Due to our resolution of these claims we find it unnecessary to discuss the substantive merits of the custody award.

      . The court was advised that the husband was out looking for work.


author: SPAETH, Judge:

text:
    459 A.2d 406
    FIRST MORTGAGE COMPANY OF PENNSYLVANIA v. Marjorie Maree McCALL, also known as Marjorie M. Cavalieri, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1982.
    Filed April 22, 1983.

      Jonathan DeYoung, King of Prussia, for appellant.
    Richard F. Stern, Jenkintown, for appellee.

      Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order granting summary judgment. We affirm.

On February 25, 1980, appellant executed and delivered to appellee, First Mortgage Company of Pennsylvania, a bond and warrant accompanied by a mortgage as collateral security for a loan made by First Mortgage to The Cavalieri Group, Inc., a Pennsylvania corporation. Seven months later Cavalieri failed to pay the monthly installments. Appellant was sent a Notice of Default and Intent to Foreclose. The bond and warrant provided that upon default, the entire unpaid balance of principal and interest would become due and payable immediately, together with late charges and attorney’s fees.

First Mortgage filed its complaint on December 10, 1980. In her answer to the complaint appellant responded in numbered paragraphs with merely “correct” or “incorrect.” Oral argument was scheduled for July 30, 1981, but appellant failed to appear. Finding no genuine issue of material fact, the lower court granted First Mortgage’s motion for summary judgment.

Pa.R.Civ.P. 1035(b) provides that summary judgment will be granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The moving party has the burden of showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. The record must be examined in the light most favorable to the non-moving party. Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968).

The lower court held that appellant’s responses of “incorrect” to paragraphs 4 and 5 of the complaint were general denials, which under Pa.R.Civ.P. 1029(b) have the effect of admissions. Slip op. at 3. The complaint consisted of five numbered paragraphs. Paragraphs 1 and 2, which appellant admitted were “correct,” identified the parties to the action. Paragraph 3, also admitted to be “correct,” stated that appellant “made, executed and delivered a Bond and Warrant, inter alia, to plaintiff [First Mortgage] as collateral security for a loan made by plaintiff to The Cavalieri Group, Inc____” Paragraphs 4 and 5, which appellant said in her answer were “incorrect,” stated that the loan was in default and listed the balance due as $207,636, to which were added interest of $12,458.16, late charges of $346.06, and attorney’s fee of $31,145.40. In a separate paragraph at the end of her answer appellant said: “The court should not allow judgment as requested as the loan was made to The Cavalieri Group, Inc. and no attempt was made to collect the loan from them. The amount of the loan is $100,000 less payments made to date.”

It is arguable that appellant’s final statement represents a specific denial of the amount due, which is a material fact in this case. Pa.R.Civ.P. 126 provides that the rules are to be liberally construed and that the court may disregard a procedural error. However, appellant also failed to answer the motion for summary judgment with an opposing affidavit, as required by Pa.R.Civ.P. 1035(d). The motion for summary judgment was supported by an affidavit of Edward Sickles, President of First Mortgage. Pa.R. Civ.P. 1035(d) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In Amabile v. Auto Kleen Car Wash, supra 249 Pa.Super. at 245, 376 A.2d at 250, this court stated: “Therefore, if the non-moving party does not oppose a properly supported motion for summary judgment with affidavits, depositions, or the like, he may not rely upon his pleadings to controvert those facts presented by the moving parties’ depositions.” See also, Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Appellant therefore could not rely on the denial in her answer but was required to submit an affidavit opposing the motion for summary judgment.

Despite appellant’s failure to submit an opposing affidavit, summary judgment should not be granted unless “the moving party’s affidavit evidence clearly dispel[s] the existence of any genuine factual issue as required by Rule 1035(b).” Marchese v. Marchese, 457 Pa. 625, 630, 326 A.2d 321, 323 (1974). Here, First Mortgage’s affidavit supporting its motion for summary judgment clearly states that the loan was in default, and contradicts appellant’s claim that the amount of the loan was “$100,000 less payments made to date.” In addition, appellant’s claim that The Cavalieri Group was primarily liable and that First Mortgage should have attempted to collect from it before attempting to collect from her is a conclusion of law and not an issue of fact.

The lower court correctly held that appellant was primarily liable as a matter of law. Although the loan was in fact made to The Cavalieri Group, appellant signed the bond and warrant as a surety. The Act of July 24, 1913, P.L. 971, § 1, 8 P.S. § 1, provides: Since here no such modifying statement was contained in the bond and warrant, appellant as a surety became primarily liable for the original undertaking upon Cavalieri’s default. Plummer v. Wilson, 322 Pa. 118, 185 A. 311 (1936).

Every written agreement hereafter made by one person to answer for the default of another shall subject such person to the liabilities of suretyship, and shall confer upon him the rights incident thereto, unless such agreement shall contain in substance the words: “This is not intended to be a contract of suretyship,” or unless each portion of such agreement intended to modify the rights and liabilities of suretyship shall contain in substance the words: “This portion of the agreement is not intended to impose the liability of suretyship.”

Finally, appellant claims that “a genuine issue of material fact does exist, and, essentially, it concerns the understanding by the defendant of the underlying nature of the contract.” Brief for Appellant at 7. Since appellant does not claim fraud or duress on the part of First Mortgage but only that there was a misunderstanding on her part, in effect she is claiming that there was a unilateral mistake.

Generally if a mistake is not mutual, but unilateral, and is not due to the fault of the party not mistaken, but to the negligence of the one who acted under the mistake, it affords no basis for relief.... On the other hand, when there is a mistake on one side and fraud on the other, relief is available____ Likewise, irrespective of active fraud, if the other party knows or has good reason to know of the unilateral mistake, relief will be granted to the same extent as a mutual mistake.
McFadden v. American Oil Company, 215 Pa.Super. 44, 53-54, 257 A.2d 283, 288-289 (1969) (citations and footnote omitted). See also, Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965).

Appellant has failed to support her claim of unilateral mistake with any facts indicating that First Mortgage was responsible for causing or had good reason to know of her misunderstanding. Although appellant was not required to prove that that was the case, she was required to set forth facts showing that there was a genuine issue for trial. Pa.R.Civ.P. 1035(d). “Vague conclusions as to ‘intentions of the parties’ are not sufficient to raise the issue.” McFadden v. American Oil Company, supra 215 Pa.Super. at 55, 257 A.2d at 289.

The lower court granted judgment in the amount of $223,440.22. Although this amount is less than the amount requested in the complaint, neither party has questioned it. Therefore, neither shall we.

Affirmed.