text:
    459 A.2d 824
    COMMONWEALTH of Pennsylvania v. Roger A. STAFFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1982.
    Filed April 29, 1983.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellee.
    Before CERCONE, P.J., and WIEAND and BECK, JJ.
   CERCONE, President Judge:

This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Erie County on August 24, 1981 following appellant’s entry of guilty pleas to charges of resisting arrest and simple assault at Number 1848 of 1980; robbery and simple assault at Number 338 of 1981; and simple assault at Number 339 of 1981. In taking the instant appeal, appellant argues, inter alia, that the sentencing court failed to adequately discharge its sentencing responsibilities as they are delineated in the Sentencing Code, Pa.R.Crim.P. 1405(b), and supporting caselaw.

After reviewing the transcript of the sentencing proceedings, we agree that the lower court did not state with sufficient specificity the reasons underlying its sentence. Consequently, we vacate the judgment of sentence and remand the case for resentencing.

It is settled that “[sentencing is a matter within the sound discretion of the sentencing judge, to be exercised within the statutory guidelines and considerations. When so exercised, the sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion.” Commonwealth v. Hollerbush, 298 Pa.Superior Ct. 397, 406-407, 444 A.2d 1235, 1240 (1982) . In view of the wide latitude accorded to sentencing judges, an appellate court’s review of a challenged sentence necessarily begins with an evaluation of the degree to which the sentencing judge followed the guidelines set forth in the Sentencing Code. Commonwealth v. Coleman a/k/a Chevron, 310 Pa.Superior Ct. 133, 456 A.2d 218 (1983) . As we recently stated in Commonwealth v. Kraft, 294 Pa.Superior Ct. 599, 440 A.2d 627 (1982):

If the sentencing judge followed the obligatory procedures enacted to assure careful, intelligent and informed sentencing, then this court may review the sentence only to ensure that there has not been an abuse of the wide discretion accorded the sentencing court: Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). On the other hand, if the sentencing judge did not follow the obligatory procedures, then this court must remand for resentencing in accordance with the applicable statutes and rules: Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Bryner, 285 Pa.Super. 305, 427 A.2d 236 (1981); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). Id., 294 Pa.Superior at 601, 440 A.2d at 628.

Judge Spaeth has characterized the sentencing judge’s responsibilities as being two-fold.

The first responsibility is a fact-finding responsibility: the judge must be sure he has enough information. The second responsibility is an application — and—explanation responsibility: the judge must apply to the information he has gathered the guidelines specified in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and explain how the sentence he has selected is responsive to, and reflects the standards embodied in, those guidelines. If the judge fails to fulfill these responsibilities, we must vacate the sentence and remand for resentencing.

Commonwealth v. Edwards, 303 Pa.Superior Ct. 454, 472, 450 A.2d 15, 23-24 (1982) (citations omitted).

The policy underlying the requirement that the sentencing judge state of record the reasons for the sentence is found in the need to make public “the thought process by which he arrives at a particular appropriate sentence.” Commonwealth v. O’Brien, 282 Pa.Superior Ct. 193, 196, 422 A.2d 894, 895 (1980). By affording appellate courts with some basis upon which to fully comprehend and fairly review the actions of the sentencing court, this directive acts as a shield against arbitrary sentencing decisions while, at the same time, discourages the entertainment of improper or irrelevant factors. Commonwealth v. Kraft, supra, 294 Pa.Super. at 602, 440 A.2d at 630.

While our courts have never required that the statement of reasons cite to specific language of the Sentencing Code, Commonwealth v. Wicks, supra, 265 Pa.Super. at 314, 401 A.2d at 1227, it should, nonetheless, evince the court’s reflection on the standards mentioned in the Code and should contain “some explanation of how consideration of those guidelines affected the determination of sentence.” Commonwealth v. O’Brien, supra, 282 Pa.Super. at 197, 422 A.2d at 896, quoting Commonwealth v. Wareham, 259 Pa.Superior Ct. 527, 534, 393 A.2d 951, 954 (1978). Clearly proscribed, however, is the mere payment of lip service to the Code’s provisions. Commonwealth v. Kraft, supra 294 Pa.Super. at 602 n. 8, 440 A.2d at 630 n. 8.

Instantly, the lower court did enjoy the benefit of a presentence report as well as the remarks of defense counsel made during the sentencing proceedings. However, its statement of reasons falls short of complying with the requirements of the Sentencing Code and the holding of Commonwealth v. Riggins, supra. The sentencing court’s fleeting reference to appellant’s juvenile record, and the fact that the crimes to which appellant pled guilty were committed with some degree of violence, are of such “brevity and conclusory quality [that] they do not manifest a consideration of the statutory guidelines for sentencing, nor otherwise explain the reasoning behind the sentences imposed.” Commonwealth v. Wicks, supra, 265 Pa.Super. at 313, 401 A.2d at 1227. Moreover, the lower court’s opinion, filed pursuant to Pa.R.App.P. 1925, offers little or no insight into its thought processes at the passing of sentence. Consistent with our disposition in Commonwealth v. Wertz, 252 Pa.Superior Ct. 584, 384 A.2d 933 (1978), we now rule that where neither the record of the sentencing proceedings nor the lower court’s opinion furnish any adequate explanation for the sentence imposed, we are required to remand the case for resentencing. Although in imposing sentence, the lower court indicated that it considered the contents of the pre-sentence report and defense counsel’s arguments, we are unpersuaded that these remarks constitute a statement of reasons which comports in quality and length with that envisioned by the drafters of the Sentencing Code.

Indeed, as we stated in Commonwealth v. Wicks, supra:

Testimony ... and the contents of a pre-sentence report, cannot constitute a statement of reasons; they rather constitute only the beginning of the process by which the court formulates its statement of reasons. Having received the testimony and pre-sentence report, the court must evaluate them; the testimony may well be in conflict, or not be credible, or otherwise not acceptable to the court, and the same may be so of the contents of the pre-sentence report. This evaluation completed, the court must examine the facts, as it has determined them to be, in light of the statutory guidelines for sentencing. Then, and only then, should the court decide what sentence should be imposed. Finally, having made that decision, the court must state its reasons for the sentence.

Id. 265 Pa.Super. at 313, 401 A.2d at 1227 (emphasis in original).

The judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

      . 18 Pa.C.S.A. § 5104.

      . Id. at § 2701.

      . Id. at § 3701.

      . Appellant also charges that the sentencing court abused its discretion by imposing a manifestly excessive sentence, and that sentencing counsel was constitutionally ineffective for numerous reasons. We need not address these matters in view of our disposition with respect to the first assignment of error.

      . 42 Pa.C.S.A. § 9701 et seq.

      . See also Commonwealth v. Walker, 298 Pa.Superior Ct. 387, 444 A.2d 1228 (1982), quoting Commonwealth v. Landi, 280 Pa.Superior Ct. 134, 138, 421 A.2d 442, 443 (1980); Commonwealth v. Kostka, 276 Pa.Superior Ct. 494, 419 A.2d 566 (1980); and Commonwealth v. Kaminski, 244 Pa.Superior Ct. 388, 368 A.2d 776 (1976).

      . 42 Pa.C.S.A. § 9721 affords this guidance to a sentencing judge:
      (a) General rule. — In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
      (1) An order of probation.
      (2) A determination of guilt without further penalty.
      (3) Partial confinement.
      (4) Total confinement.
      (5) A fine.
      (b) General standards. — In selecting from the alternatives set forth in subsection (1) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing.) In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. • (emphasis added).

        See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); and Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 401 A.2d 1223 (1979).

      . The following sentences comprise the court’s entire statement of reasons:
      "I have considered all that [i.e. remarks of counsel] and I've considered the entire pre-sentence investigation and have noted an extensive record, especially juvenile record, of this individual and any robbery ... it’s hitting somebody or tapping somebody is not the best thing. The sentence of the court on all these charges ...”


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    459 A.2d 828
    COMMONWEALTH of Pennsylvania v. Lynn S. RITCHEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 12, 1982.
    Filed May 6, 1983.

      William Gleason Barbin, Johnstown, for appellant.
    D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and BECK, JJ.
   CERCONE, President Judge:

Appellant, Lynn S. Ritchey, takes this appeal from his conviction by a jury for aggravated assault and recklessly endangering another person. Appellant raises three issues, none of which have any merit, and we affirm.

The charges in the instant case arose as a result of an incident which occurred on December 18, 1979 in Cresson Township, Cambria County. On that date, at approximately 9:00 p.m., the victim, Gerald Croll, and his fiance, Patricia Budicky, were sitting in Croll’s automobile, which was parked in a remote area. The couple had had an argument earlier in the day and were trying to talk over their differences when a truck pulled up behind their car. Croll turned on his headlights so that the truck would see that someone was there, and the truck proceeded to back up and leave the area. Within a few minutes, a man knocked on the driver’s window of Croll’s car and the man told Croll to get out of the car. Thinking it was a police officer, Croll complied and was confronted by two men, one of them later identified as appellant. Appellant pulled out a gun and ordered Croll to tell his girlfriend to get out of the car. When Croll did not respond immediately appellant fired two shots into the air, whereupon Budicky got out of the car. Next appellant ordered Croll to get back in the car and to drive away. Croll did get back into the car but instead of complying with appellant’s orders, Croll attempted to knock appellant down by backing his car into him. Appellant, however, jumped out of the way, and Croll got out of the car and started to struggle with appellant. Croll yelled to Budicky to get back in the car and start the engine, which had stalled. As Budicky did this, Croll and appellant continued to wrestle. During the fight, appellant at three separate times fired a shot into Croll’s stomach. Despite his injuries, Croll continued the struggle until appellant got up and ran away.

Appellant first argues that the trial court erred in “limiting the scope of cross-examination on re-call of a particular witness.” Appellant, however, fails to elaborate on this point and we do not know how the court unduly restricted cross-examination of the witness. In fact, appellant never identifies this witness in his brief, although the Commonwealth does tell us that it is the testimony of the victim, Croll, which is at issue. Since appellant fails to point to any particular error of the court in this matter, and since the record is equally unenlightening, we reject appellant’s argument. See generally, Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Appellant next argues that the court erred in refusing to answer a question put to the judge by the jury during its deliberations. Specifically, the jurors inquired whether the truck driven by appellant to the scene of the crime had been found by the police following the incident. As there was no testimony presented to the jury on this issue, the judge told the jurors that he could not answer that question and he directed them to decide the case based upon their recollection of the evidence which was presented to them. Unquestionably, the trial judge acted properly in this matter and appellant’s arguments to the contrary have no merit.

Lastly, appellant argues that the court erred in refusing to charge the jury as to the misdemeanor offense of aggravated assault, found at 18 Pa.C.S. § 2702(a)(4), in addition to charging the jury with the felonious aggravated assault offense, found at 18 Pa.C.S. § 2702(a)(1).

The test for determining whether one offense is a lesser included offense of another is whether all the essential elements of the lesser offense are included in the greater offense. Commonwealth v. Ostolaza, 267 Pa.Superior Ct. 451, 406 A.2d 1128 (1979), and cases cited therein. For the instant case, the crime of aggravated assault is thusly described in relevant part by statute:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

18 Pa.C.S. § 2702(a)(1), (4).

It is appellant’s contention that subsection (4) is a lesser included offense of subsection (1). We reject this argument for when the two subsections are read together it is apparent that subsection (4) contains an element that is not found in the greater offense of subsection (1). Specifically, subsection (4) requires that the assault be caused or attempted “with a deadly weapon”. This element is not contained in subsection (1), which prohibits any attempt to cause or the causing of serious bodily injury but which does not limit itself to any particular mode of causing such an injury. In this respect, appellant’s case is comparable to Commonwealth v. Ostolaza, supra, which discussed this issue in the context of the robbery statute, found at 18 Pa.C.S. § 3701.

In Ostoloza, the greater offense was robbery under subsection (a)(1)(ii), which occurs when the defendant, in the course of committing a theft, threatens the victim or puts him in fear of serious bodily injury. The lesser offense of robbery, set forth at subsection 3701(a)(1)(v), occurs when the defendant, in the course of committing a theft, takes or removes property from the person of the victim by force. Thus, we concluded in Ostolaza that subsection (v) robbery was not a lesser included offense of subsection (ii) robbery, because an essential element of subsection (v) was a taking from the person of the victim, which is an element not found in subsection (ii) robbery. We went on in Ostolaza to note that there may be some cases where both types of robberies can be proved, but that there also can exist a case where only the greater offense of subsection (ii) will be proved. We summed up by saying: “Since a subsection (ii) robbery may. be proved without necessarily proving a subsection (v) robbery, we cannot hold that subsection (v) robbery is a lesser offense included in the greater offense of subsection (ii) robbery.” Id., 267 Pa.Superior at 457, 406 A.2d at 1131.

The same conclusion must be reached with the assault offenses at issue in appellant’s case, for as we previously noted the lesser offense of subsection 2702(a)(4) assault pertains only to assaults caused or attempted with a deadly weapon. This element is not found in the greater assault offense described in subsection 2702(a)(1). It is therefore possible that a subsection (1) assault may be proved in some cases without necessarily proving a subsection (4) assault. We therefore hold that subsection 2702(a)(4) assault is not a lesser included offense of subsection 2702(a)(1) and according we find that the lower court did not err when it refused to charge the jury with the lesser offense.

Finding no merit in any of appellant’s issues, we affirm.

Affirmed.


author: SPAETH, Judge: MONTEMURO, Judge,

text:
    459 A.2d 830
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael WILLIAMS.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1982.
    Filed May 6, 1983.
    Petition for Allowance of Appeal Denied Oct. 5, 1983.
    Montemuro, J., concurred in part, dissented in part, and filed opinion.

      Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellant.
    Martha Sperling, Assistant Public Defender, Doylestown, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

The Commonwealth appeals from an order suppressing all statements made by defendant between his arrest and arraignment. The lower court suppressed the statements on the ground that the Commonwealth failed to prove that defendant was arraigned within six hours of his arrest. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). We agree with the lower court that the Commonwealth did fail to prove that defendant was arraigned within six hours of his arrest. However, defendant made two statements — one oral and one typewritten statement — and the record discloses that the typewritten statement was made after the arraignment. We therefore affirm the lower court’s order so far as it suppresses the oral statement, but reverse so far as it suppresses the typewritten statement.

-1-

We must first determine whether the lower court’s order is appealable. In Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), this court held that “[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable — whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone.” Id., 311 Pa.Superior at 277, 457 A.2d at 884. Applying this test here, we are satisfied that the lower court’s order is appealable. Defendant is charged with burglary, theft by unlawful taking and disposition, receiving stolen property, conspiracy, and possession of a controlled substance with intent to deliver. The record reveals that without at least one of defendant’s statements, the Commonwealth will be substantially handicapped, for the statements are the only evidence the Commonwealth has to support the charge of possession of a controlled substance, and it appears that there is very little other evidence available to the Commonwealth to support the other charges.

-2-

Pa.R.Crim.P. 130(a) provides:

Except as provided in paragraphs (b) and (c), when a defendant has been arrested without a warrant in a court case, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him and he shall be given an immediate preliminary arraignment.

In Commonwealth v. Davenport, supra, our Supreme Court held that “[i]f the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment shall not be admissible at trial.” Id. 471 Pa. at 286, 370 A.2d at 306 (footnote omitted).

Defendant was arrested at 8:40 a.m. N.T. 57. Although we held in Commonwealth v. Ryles, 274 Pa.Super. 547, 418 A.2d 542 (1980), that exigent circumstances may justify a delay in arraignment, no such circumstances existed here. Accordingly, under Davenport he had to be arraigned by 2:40 p.m. Defendant gave an oral statement about 10:00 a.m., N.T. 64, and began giving a typewritten statement at 2:36 p.m., N.T. 65. The District Justice’s transcript shows that defendant was arraigned at 2:55 p.m.

Officer Iaccarino brought defendant to the District Justice for arraignment. Apparently they got to the District Justice’s office between 2:20 and 2:30 p.m. The officer testified:

THE COURT: What is your independent recollection as to the time Mr. Williams was arraigned?
THE WITNESS: From writing down in my report, seeing my watch in the J.P.’s office, and marking it down on the report which I had transposed for the Court case.
MR. McHUGH [assistant district attorney]: What time was that officer?
THE WITNESS: Of what, sir?
MR. McHUGH: That you took Mr. Williams to be arraigned?
THE WITNESS: It was prior to quarter to three, or 14:45 hours on the 11th of August, 1980.
BY MR. McHUGH:
Q. That was when you took Mr. Williams over to the District Justice office?
A. No, sir.
Q. When did you take him over to the District Justice Office?
A. I would say it would be fifteen or twenty-five minutes, that was—
Q. Fifteen to twenty-five minutes before 14:45 hours?
A. Yes.
N.T. 66.

Officer Iaccarino also testified, however, that defendant was giving a statement at the police station at 2:36. N.T. 65. (The District Justice’s office is in a building adjacent to the police station.) The typewritten statement also recites. “Time Started” as “14:36 hours.”

The lower court said that there was “insufficient evidence from which the Court can conclude that the Commonwealth has met its burden of showing that the defendant was arraigned within six hours after his 8:40 a.m. arrest.” N.T. 100. We agree with this statement and accordingly, we hold that all statements made between defendant’s arrest at 8:40 a.m., and his arraignment, at 2:55 p.m., should be suppressed. While this conclusion requires that defendant’s oral statement must be suppressed, since it was given at 10:00 a.m., the question remains whether the typewritten statement must also be suppressed.

As we have mentioned, the typewritten statement recites “Time Started” as “1436 hours.” It recites “Time Completed” as “1606 hours,” or 4:06 p.m. Although there is no indication in the statement of a break for the arraignment, we know from the record that defendant was arraigned at 2:55 p.m. Evidently, therefore, part of the typewritten statement was given after the arraignment. We think it fair to say that in practical effect, the entire statement was made after the arraignment. Defendant began the statement at 2:36 p.m., just a few minutes before his arraignment, and after arraignment he continued it until 4:06. In addition, defendant’s signature appears at the end of the statement.

The prompt arraignment rule was adopted “not simply to guard against the coercive influence of custodial interrogation, but to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” Commonwealth v. Davenport, supra 471 Pa. at 284, 370 A.2d at 305. We believe that the record shows that these purposes have been served here. After his arraignment, defendant was fully advised of his rights. He was therefore no longer under the “coercive influence” associated with pre-arraignment delay. Nevertheless, he continued to give the typewritten statement, and at its conclusion, signed it. In these circumstances, we see no reason to suppress the statement.

The order of the lower court is affirmed so far as it suppresses defendant’s oral statement, but is reversed so far as it suppresses his typewritten statement.

MONTEMURO, J., files a concurring and dissenting opinion.

MONTEMURO, Judge,

concurring and dissenting:

While I agree that the trial court’s order suppressing the defendant’s typewritten statement must be reversed, I would also reverse the order suppressing the oral statement. I therefore respectfully dissent from the majority opinion.

The oral statement was made by the defendant approximately one hour and twenty minutes after his arrest. I do not believe that the judically promulgated rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) was designed to prevent the admission of such statements despite the broad sweep of the holding of that case.

The analysis of our supreme court in Davenport relies to a great extent upon Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1979), which “established a three part test for determining whether evidence obtained during prearraignment delay will be suppressed: (1) the delay must be unnecessary; (2) the evidence must be prejudicial; and (3) the evidence must be reasonably related to the delay.” Commonwealth v. Davenport, supra 371 Pa. at 284, 370 A.2d at 305. The defendant’s oral statement cannot be said to be “reasonably related” to the delay in this case. The delay was an isolated circumstance occurring hours later. Additionally, it was of limited duration and did not prejudice the defendant.

In the recent case of Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982), our supreme court clarified any misconceptions about the rigid prophylactic effect of the Davenport rule. In Jenkins, the court stated that:

From the outset we stressed that it was not intended to be a mechanical rule to enforce compliance with our procedural rules by insisting upon a reasonable relationship between the delay and the evidence sought to be excluded. (Citation omitted)

Id., 500 Pa. at 148, 454 A.2d at 1006. Furthermore, they went on to say:

Nevertheless our objective remains the same. At no time did we wish to cut off freely volunteered confessions of guilt, nor did we wish to impede legitimate law enforcement efforts. The primary purpose sought to be obtained was to discourage the obtaining of incriminatory information through coercive means.

Id, 500 Pa. at 150, 454 A. 2d at 1007. See also Commonwealth v. Bennett, 498 Pa. 656, 450 A.2d 970 (1982).

I do not think that suppression of a statement made a short time after arrest because of a brief delay in arraignment furthers the purpose of the rule. There is no allegation of any coercive circumstances save that the arraignment was six hours and fifteen minutes after arrest. Consequently, I do not think that the severe sanction of suppression is warranted in this case.


author: HESTER, Judge:

text:
    459 A.2d 834
    COMMONWEALTH of Pennsylvania, Appellant v. Nicholas PAZ.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1982.
    Filed May 6, 1983.
    Appeal Granted and Judgment Vacated and Remanded. See 459 A.2d 834.
    Popovich, J., concurred in result.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Edward M. Kopanski, Glenside, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellee, Nicholas Paz, was charged with burglary, criminal trespass, theft and criminal conspiracy on March 17, 1981. Following his arrest in Philadelphia and while detained by law enforcement officers, he was questioned concerning 66 unsolved burglaries. He confessed to 29 of these offenses; however, neither an attorney nor an “interested adult” was present at the time of the confession. Appellee was 16 years old when arrested.

Prior to trial, appellee filed an omnibus motion requesting, inter alia, the suppression of those statements elicited by detectives during his detention. The suppression motion was granted by the Court of Common Pleas of Philadelphia County on October 1, 1981 on grounds that the custodial interrogation violated the “interested adult” rule. Appellant/ Common wealth filed this appeal.

Despite widespread criticism and constant attack, it remains the law of this Commonwealth that a minor suspect be accorded the benefit of parental or “interested-adult” guidance before any of his incriminating statements issued while in police custody are admissible as evidence against him. Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. den., 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). Furthermore, the mere presence of the “interested adult” at the place of custody is not enough; the adult must be fully apprised of all rights belonging to the minor suspect before his presence and advice can be presumed capable of precluding undue police aggression and overreaching. Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975). Quite simply, and perhaps unnecessarily, a per se constitutional rule, known as the McCutchen rule, prevents the prosecutorial use of the incriminating statements of a detained minor suspect unless an “informed, interested adult” is present immediately before and during the issuance of such statements.

In Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663 (1976), Chief Justice Jones dissented and objected to the majority’s extraction of the aforementioned per se rule. Due to the McCutchen court’s thorough and detailed recitation of the facts, the Chief Justice believed the court was also concerned with the actual voluntariness of the confession. Furthermore, according to this Stanton dissent, the Starks court discussed all factors, not solely the presence of an interested adult, in considering the general admissibility of the minor’s confession. Finally, Chief Justice Jones viewed Roane’s refusal to admit the minor’s confession as the result of the absence of the suspect’s mother and the officer’s coercive and uncooperative behavior; therefore, he believed the Roane court utilized the “totality of circumstances” in determining voluntariness. Chief Justice Jones found it incredulous, indeed, that the per se rule renders a bright, experienced 17 year old incapable of waiving constitutional rights while an uncounselled mentally-retarded 18 year old could validly waive those same rights.

In Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980), Justice Larsen dissented from the majority’s recognition of the “informed, interested adult” rule and preferred to consider the individual factors of the particular case. For instance, he noted the defendant’s familiarity with the criminal justice system, his understanding of constitutional rights and his close proximity to 18 years of age. He recommended the following holding:

____where, as here, the defendant’s age, experience, and intelligence are such that the presence of an interested adult will not significantly contribute to his comprehension and understanding of the situation, he may make an effective waiver of his constitutional rights without first consulting an interested adult.

Id., 488 Pa. at 163, 411 A.2d at 747.

Appellant would have us employ here the dissenters’ approach in Stanton and Henderson to modify the per se rule, thereby permitting the admission of incriminating statements that are knowingly and voluntarily made in light of all the circumstances. We are disinclined to do so, for we are compelled to follow the majority opinion of our Supreme Court, however fragile we consider that opinion to be.

Appellant avers that two existing Pennsylvania Supreme Court decisions, Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1980) and Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975), have indeed modified the McCutcken rule, rendering it not applicable in every case where the suspect is of tender age. In Veltre, the minor defendant was tried before a jury and found guilty of two counts of first degree murder, rape and assault with intent to kill. While in police custody immediately after his arrest, and in the presence of his probation officer, the defendant related the implicative incidents of the crime and admitted to having no remorse. A plurality opinion, written by Justice Larsen and joined by Justices Flaherty and Kauffman, identified the per se position taken by Roane and its progeny as one “designed to insure that constitutional protections would not be lost as a result of the innocence and inexperience of youth being taken advantage of by overbearing interrogation.” Commonwealth v. Veltre, supra, 492 Pa. at 242, 424 A.2d at 488. The three justices held, however, that the defendant was not the type of inexperienced and naive youth thought by the Roane court to be in particular need of adult supervision. Instead, the plurality considered his prior criminal activity, his prior detention in a juvenile detention center, his refusal to speak until his probation officer arrived, and his near average intellect. In analyzing these specific factors, the plurality deemed the waiver voluntary and the confession properly admitted.

Justices Roberts and O’Brien dissented. They recognized the continued vitality and applicability of the MeCutchen rule. Regardless of a minor suspect’s particular intelligence, experience and comprehension of constitutional rights, his incriminating statements are not admissible unless issued pursuant to the advice of an “informed interested adult.”

Justice Nix, in a separate dissent, agreed that the “interested adult” rule may not apply where the minor is particularly well versed in the constitutional rights of criminal suspects; nevertheless, he did not definitively so hold since he deemed the confession inadmissible under the more flexible “totality of the circumstances” test. Appellant maintains that insofar as Justice Nix dissented on application of the facts only and hinted an agreement with the plurality’s qualification of the McCutchen rule, no per se rule applies. We are constrained to disagree. At no point did Justice Nix expressly agree with the plurality’s recitation of the law; mere innuendo is not enough to glean a definitive position. Justice Nix merely opined that there was no waiver under the less restrictive “totality of the circumstances” test. Veltre is simply a plurality opinion having no effect on existing law.

Appellant similarly misconstrues Webster. The Webster court quite unequivocally held that police officers may not prevent a detained minor from consulting an interested adult before interrogation. In fact, they must provide a reasonable opportunity for the accused to acquire legal advice or the aid of an “informed, interested adult.” Appellant isolates the Webster court’s refusal to categorically hold that a minor is legally incapable of waiving his constitutional rights. According to appellant, this refusal is evidence of the court’s reluctance to apply the per se McCutchen rule. We disagree with this interpretation. Webster simply renders a minor incapable of making a voluntary confession where he is denied consultation with an attorney or an “informed, interested adult”; he can, however, waive his constitutional rights once he is permitted such consultation.

In Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), reh. den., 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979), the U.S. Supreme Court inquired into the “totality of the circumstances” surrounding the detention and interrogation of a minor suspect. It perceived no basis for applying a different analysis to whether a minor knowingly and voluntarily waived his rights than to whether an adult’s waiver was valid.

Appellant directs us to follow Fare. We will not. Fare’s effect on Pennsylvania law was aptly and succinctly elucidated in Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981). Henderson noted that the state court in Fare had erroneously imposed greater restrictions on law enforcement officers during interrogation than required by the federal Constitution. Fare, according to Henderson, has no power to restrict a state court from imposing strict measures in tune with its own Constitution; accordingly, Fare bowed to a state’s freedom to provide rights and liberties through its Constitution that expand correlative provisions of the federal Constitution.

Finally, appellant believes the recent opinion in Commonwealth v. Jenkins, 499 Pa. 426, 453 A.2d 945 (1982), rejects the per se McCutchen rule and authorizes the sole application of the “totality of the circumstances” test. The investigating officers in Jenkins first arranged for the transportation of the maternal grandmother of the defendant’s child to the police station where the defendant was detained. They notified the defendant’s grandmother; however, she was unable to appear. As a result, they tried to locate his father, but to no avail. Eventually, they secured the presence of his uncle in the interrogation room. The uncle was instructed and fully apprised of his nephew’s constitutional rights before any statement was forthcoming. A second statement was interrupted when the defendant’s father appeared.

The defendant’s uncle was concerned for the suspect’s welfare and adequately filled the “informed, interested adult” rule. Jenkins simply refused to expand the McCutchen rule to a “most interested adult” rule. We note in a Jenkins footnote where the majority writer adheres to his earlier opinion that the “interested adult” rule is improper; nevertheless, this view is obiter dictum and not indicative of the majority’s sentiments.

Until a definitive and precise ruling indicates otherwise, the “informed and interested adult” rule remains intact.

Order affirmed.

POPOVICH, J., concurs in the result.

      . According to Justices Larsen, Flaherty and Kauffman, the defendant’s refusal to speak until his probation officer arrived was evidence of his knowing exercise of his constitutional rights.


author: WICKERSHAM, Judge: SPAETH, Judge,

text:
    459 A.2d 837
    COMMONWEALTH of Pennsylvania v. Earl BROWN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1982.
    Filed May 6, 1983.

      Spaeth, J., filed a concurring opinion.
    Brosky, J., filed a concurring opinion.
    Chester T. Cyzio, Philadelphia, for appellant.
    Sarah Vanderbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WICKERSHAM, BROSKY, BECK and JOHNSON, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order denying appellant Brown’s petition filed under the Post Conviction Hearing Act (hereinafter PCHA). We affirm. The pertinent facts are as follows.

On July 14, 1969, two Philadelphia police officers observed Brown leaving the scene of a burglary with a box containing several items, including a television set. When the officers asked Brown to stop, he dropped the box and ran. Brown was stopped and arrested; he subsequently confessed to committing the burglary. A motion to suppress evidence was filed on September 18, 1969 and denied on October 16, 1969 by the Honorable Vito F. Canuso.

On September 22, 1970, Earl Brown was convicted, after a non-jury trial, of the burglary, and of larceny and possession of burglary tools. Post-verdict motions were denied and Brown was sentenced to a term of imprisonment which, in total, was to be not less than two years nor more than ten years, to be served after another sentence he was already serving. Brown then obtained new counsel and appealed to this court, challenging only the sufficiency of the evidence against him. Judgment of sentence was affirmed without a published opinion in Commonwealth v. Brown, 220 Pa.Super. 704, 283 A.2d 88 (1971).

On January 26, 1978, Brown filed an uncounselled PCHA petition alleging the ineffectiveness of his trial and appellate counsel. New counsel was appointed to represent Brown and he filed an amended PCHA petition. After a hearing, the petition was denied. Again, new counsel for Brown was appointed; this appeal followed.

Appellant Brown frames the issues presented in this appeal as follows:

I. Was appellant denied the effective assistance of counsel in the trial court where counsel failed to preserve for appellate review the denial of defendant’s motion to suppress his statement and certain physical evidence?
II. Was defendant likewise denied the effective assistance of counsel on both his direct appeal and hearing under the Post Conviction Hearing Act where neither appellate nor P.C.H.A. counsel alleged trial counsel’s effectiveness in regard to the denial of Appellant’s motion to suppress?

Brief for Appellant at 1.

Brown contends that his prior trial, appellate and PCHA counsel were all ineffective for failing to adequately examine the record and preserve his suppression claim. Brown does not allege any specific irregularity in the lower court’s refusal to suppress his statement or any other evidence. Rather, he argues that counsels’ inattention to the potential validity of his suppression claim is in itself prima facie evidence of ineffectiveness mandating a remand to the lower court, even though he advances no legal or factual reason to support a conclusion that his statement, or other evidence, was improperly taken.

Initially, we note that the Pennsylvania Supreme Court recently stated in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981):

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id. 492 Pa. at 563, 424 A.2d at 1335, see also Commonwealth v. Alexander, 495 Pa. 26, 38, 432 A.2d 182, 187 (1981) (“As successive PCHA petitions are the exceptions, concrete allegations of actual prejudice should be expressed in those petitions. Abstract assertions will not suffice ... petitioner must be able to demonstrate a specific factual predicate for prejudice caused by alleged errors____”)

Section 9545(b)(1) of the PCHA even provides: “The petition must state ... all facts in support of the alleged error on which the petition is based.... ”

Furthermore, we note that: “The burden of establishing the ground upon which post-conviction relief is requested rests upon the person seeking that relief” Commonwealth v. Jackson, 494 Pa. 457, 459, 431 A.2d 944, 945 (1981) quoting Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976) and, “[i]f counsel fails to raise an issue in post-verdict motions or on appeal, he is deemed to be ineffective only if the issue is of arguable merit,” Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980).

In the present case, appellant Brown makes only a general claim that all prior counsel were ineffective. Nowhere does Brown tell us exactly what was wrong with the stewardship and disposition of his suppression motion or how it prejudiced him. Brown fails to allege any meaningful factual predicate at all concerning his suppression claim. As was stated in Commonwealth v. Bowers, 245 Pa.Super. 214, 369 A.2d 370 (1976):

Thus the case comes down to this: Appellate counsel did not raise certain issues regarding the conduct of the trial. PCHA counsel argues that this shows that appellate counsel was incompetent. He fails, however, to offer to the PCHA hearing judge any evidence that appellate counsel had no reasonable basis for not raising the issues. Such a record offers no reason for us to grant relief.

Id., 245 Pa.Superior at 224, 369 A.2d at 375.

We must reject the abstract, unsupported allegations of prior counsels’ ineffectiveness advanced here.

Order affirmed.

SPAETH and BROSKY, JJ., file concurring opinions.

SPAETH, Judge,

concurring:

I agree with Judge BROSKY that the issues appellant argues to us have been waived because second PCHA counsel did not argue that first PCHA counsel was ineffective in not arguing that appellate counsel was ineffective in not arguing that trial counsel was ineffective. But I am less sure than he is that we have not ‘'reversed] to nineteenth century hypertechnicality.” At 840, BROSKY, J. I don’t know the way out of the maze we have built. A case like this suggests that perhaps it should be torn down, and we should return to the doctrine of fundamental error.

BROSKY, Judge, concurring:

I concur in the result. Like the majority, I would affirm the denial of appellant’s Post Conviction Hearing Act (PCHA) petition. However, I would do so on different grounds. The majority states that appellant fails because he has not offered evidence supporting his allegations; I would say that his allegations are waived, so that, even if they were proved, they would avail him nothing.

The issues presented by appellant are:

I. Was appellant denied the effective assistance of counsel in the trial court where counsel failed to preserve for appellate review the denial of defendant’s motion to suppress his statement and certain physical evidence?
II. Was defendant likewise denied the effective assistance of counsel on both his direct appeal and hearing under the Post Conviction Hearing Act where neither appellate nor P.C.H.A. counsel alleged trial counsel’s effectiveness in regard to the denial of appellant’s motion to suppress?

Appellant argues that trial counsel was ineffective. He also contends that counsel on direct appeal and counsel on the first PCHA petition should have alleged trial counsel’s ineffectiveness. This is where the error lies. A correct statement of this PCHA petition would have argued first PCHA counsel’s ineffectiveness for not raising appellate counsel’s ineffectiveness in not raising trial counsel’s ineffectiveness.

The ineffectiveness of counsel must first be raised at the first subsequent stage of the proceedings in which new counsel appears. A failure to do so will constitute a waiver of that claim of ineffectiveness. Commonwealth v. Hubbard, 472 Pa. 259 at 276-7 n. 6, 372 A.2d 687 at 695 n. 6 (1977). The presumption of such a waiver can be rebutted if the petitioner can prove the existence of extraordinary-circumstances justifying his failure to raise the issue.

In Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978), appellate counsel raised the ineffectiveness of trial counsel. However, there had been an intervening new counsel at the post-verdict stage and appellate counsel failed to allege the ineffectiveness of post-verdict counsel in failing to raise the ineffectiveness of trial counsel. Under these facts, Justice Roberts concluded that “the issue of trial counsel’s ineffectiveness is not properly preserved for appellate review.” Commonwealth v. Seachrist, supra, 478 Pa. at 624, 387 A.2d at 663. See also Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Another Supreme Court case provides examples of inadequate and adequate PCHA petitions. Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980). The first PCHA petition alleged only trial counsel’s ineffectiveness.

On March 26, 1979, the court dismissed appellant’s petition without a hearing, finding that the issues had been waived because of appellant’s failure to allege direct appeal counsel’s ineffectiveness. No appeal was taken from the Court’s ruling.

Commonwealth v. Watlington, supra, 491 Pa. at 243, 420 A.2d at 432.

A properly thought out PCHA petition followed:

... alleging that trial counsel was ineffective for failing to: 1) object to the ... Appellant alleged that direct appeal counsel was ineffective for failing to allege trial counsel’s ineffectiveness and finally, that P.C.H.A. counsel was ineffective for failing to allege ineffectiveness on the part of direct appeal counsel.

Id.

The Supreme Court concluded that this second petition should not have been dismissed by. the PCHA court without a hearing and without the appointment of counsel. That petition, if proven, would have provided grounds for relief.

The petition before us, if proven, would provide no grounds for relief. The issue of trial counsel’s ineffectiveness is waived at the second PCHA petition stage, absent a showing of ineffectiveness on the part of each of the successive counsel for failure to allege the ineffectiveness of each of the immediately preceding counsel.

Not only is this the law of this Commonwealth, there is also sound reason for it. Insistence upon a correctly worded petition is not a reversion to nineteenth century hyper-technicality in pleading. Rather, it is essential to a conceptual grasp of what is actually before the court. What is not before the court at a second PCHA hearing is the ineffectiveness of trial counsel — unless the ineffectiveness of the intervening counsel is also raised.

The principle upon which this requirement is based is that of waiver. Appellate courts will not delve into issues not raised at the appropriate prior stage of the proceedings, unless there exists a compelling reason for doing so. Ineffectiveness of counsel in a criminal case, in light of the Sixth and Fourteenth Amendments, provides such a reason.

Nor is this requirement an empty form. It is indeed conceivable that trial counsel would have been ineffective in a certain regard; but that appellate (or PCHA) counsel would not have been ineffective in not raising (for tactical reasons) trial counsel’s ineffectiveness. Relief at the second PCHA hearing cannot be granted upon a showing only that trial counsel erred. Other, independent, showings must also be made regarding the ineffectiveness of each of the successive counsel. These additional showings are essential. A failure to even allege them in the statement of the issues works a waiver of essential elements of appellant’s case. An affirmance of the denial of the PCHA petition is, therefore, in order.

      . 42 Pa.C.S. 9541 et seq.

      . Brown's trial counsel made a motion to suppress Brown’s statement, physical evidence and identifications. The motion was denied, however, there are no notes of testimony from the suppression hearing. Brown now argues that trial counsel, appellate counsel and PCHA counsel were all ineffective for failing to preserve issues related to the suppression hearing. It is certainly true that the absence of a record of the suppression hearing makes appellate review of the suppression court’s decision impossible. Brown has not made allegations that counsel mishandled the suppression motion or that the suppression judge wrongly denied the motion. Failure to make a record of a suppression hearing is not ineffectiveness per se if there were no errors in the suppression decision or problems with the suppression hearing itself.

      . PCHA Act, 19 P.S. 1180-4(c).

        . 19 P.S. 1180 — 4(b)(2).

      . (Ineffectiveness in not raising the ineffectiveness of the immediately preceding counsel.)


author: WIEAND, Judge: BROSKY, Judge,

text:
    459 A.2d 841
    Nathaniel MOORE, Appellant, v. Ralph B. McCOMSEY, Jr., Jan B. Walters, Herman Simms, Lieutenant Martin, Lawrence Ruggiano and Thomas Harting, Appellees.
    Superior Court of Pennsylvania.
    Submitted May 24, 1982.
    Filed May 6, 1983.
    Brosky, J., filed concurring opinion.

      Nathaniel Moore, in propria persona.
    John P. Hohenadel, Lancaster, for appellees.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Nathaniel Moore was arrested on September 16, 1972 and charged with the fatal shooting of Edward Bruce Wiker. He was tried by jury and found guilty of murder in the first degree and was sentenced to imprisonment for life. The judgment of sentence was affirmed by the Supreme Court on July 7, 1975. See: Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975).

On February 8, 1979, Moore brought a civil action in trespass to recover damages against the public defenders assigned to represent him, alleging that their negligence had caused his conviction and incarceration. His complaint also contained a claim against the police officers who had placed him under arrest. Although his pro se complaint was inartfully drafted, we are able to discern therefrom causes of action for (1) civil rights violations under 42 U.S.C. § 1983, (2) false arrest, (3) false imprisonment, (4) assault and battery, and (5) malicious abuse of process. After the pleadings had been closed, the trial court granted all defendants’ motions for summary judgment on grounds that Moore’s alleged causes of action were barred by the statute of limitations contained in the Judicial Code at 42 Pa.C.S. § 5524. Moore appealed. We affirm.

“Under Pa.R.C.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party’s well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him____ Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is further circumscribed by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto.” Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178-179 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967) (footnote and citations omitted). Accord: Earns v. Tony Vitale Fire works Corporation, 436 Pa. 181, 184, 259 A.2d 687, 688 (1969); Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 176-177, 437 A.2d 1262, 1263 (1981); Balush v. Borough of Norristown, 292 Pa.Super. 416, 419, 437 A.2d 453, 454 (1981); Nevling v. Natoli, 290 Pa.Super. 174, 177, 434 A.2d 187, 188 (1981); Zelik v. The Daily News Publishing Co., 288 Pa.Super. 277, 279, 431 A.2d 1046, 1047 (1981); Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 584, 407 A.2d 394, 396 (1979).

The Judicial Code, at 42 Pa.C.S. § 5524(1) and (2), establishes two year limitations for the commencement of actions “for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process” and “to recover damages for injuries to the person ... caused by the ... negligence of another.”

Appellant’s alleged causes- of action against the arresting police officers accrued when he was arrested on September 16, 1972. The actions were barred after two years had elapsed. The present action, commenced more than six years after causes of action arose, was untimely, and the trial court properly entered judgment on the pleadings in favor of the arresting policemen.

Appellant contends that an action for violations of the federal civil rights statute cannot be barred by a statute of limitations enacted by a state legislature. His contention is clearly incorrect. There is no federal statute of limitations applicable to civil rights actions under 42 U.S.C. § 1983. The applicable statute of limitations is the state statute which is applicable to the conduct alleged to have violated the plaintiff’s civil rights. Polite v. Diehl, 507 F.2d. 119, 122 (3rd Cir.1974); Ammlung v. City of Chester, 494 F.2d 811, 814 (3rd Cir.1974); Henig v. Odorioso, 385 F.2d 491, 493 (3rd Cir.1967), cert. denied, 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968), rehearing denied, 391 U.S. 929, 88 S.Ct. 1814, 20 L.Ed.2d 671 (1968); Salaneck v. State Trooper Olena, 558 F.Supp. 370, 371 (E.D.Pa.1983); Carpenter v. Dizio, 506 F.Supp. 1117, 1120-1121 (E.D.Pa.1981), affd without opinion, 673 F.2d 1298 (3rd Cir.1981); Chappelle v. Chase, 487 F.Supp. 843, 846 (E.D.Pa.1980); Wilkin son v. Ellis, 484 F.Supp. 1072, 1078 (E.D.Pa.1980); Getz v. Bruch, 400 F.Supp. 1033, 1035 (E.D.Pa.1975).

Appellant also argues that his cause of action for false imprisonment cannot be barred because he continues to be in prison and the offense, therefore, is continuing. Although it is correct that appellant is still incarcerated, he is not presently being detained by virtue of any continuing conduct on the part of the present appellees. Rather, he is presently detained because of a valid judgment of sentence imposed following conviction for murder.

A novel and more difficult issue is the period of limitation applicable to a civil action for legal malpractice against a public defender whose negligence is alleged to have been the cause for plaintiff’s criminal conviction and incarceration. If such an action is for “injuries to the person” negligently inflicted, the applicable limitation is two years. 42 Pa.C.S. § 5524(2). If the action is based on an alleged breach of an oral contract of hiring or a contract implied in law, the limitation is four years. 42 Pa.C.S. § 5525(3) and (4). Finally, if the cause of action is based upon a written contract or if no other statute of limitations is applicable, the action must be commenced within six years. 42 Pa.C.S. § 5527(2) and (6).

Prior decisions have usually treated the default or malpractice of an attorney as a breach of contract between attorney and client and have applied the six year statute of limitations contained in the Act of March 27, 1713, 1 Sm.L. 76, 12 P.S. § 31, now repealed. See: Huffman Estate, (No. 3), 349 Pa. 59, 36 A.2d 640 (1944); Rhines ’ Administrators v. Evans, 66 Pa. 192 (1871); Campbell’s Administrator v. Boggs, 48 Pa. 524 (1855); Skyline Builders, Inc. v. Kellar, 50 D & C.2d 19 (Leh.C.P.1970). In the instant case, however, there was no contract of employment between appellant and trial counsel, for counsel had been court appointed. Similarly, we deem it unrealistic to attempt to confer upon appellant the status of a third party beneficiary to a contract between the Commonwealth and appointed counsel. We conclude, rather, that appellant’s cause of action was based not upon breach of contract by his counsel but upon the alleged negligence of counsel in handling his criminal case.

The two year statute of limitations is applicable to actions where the wrongful act or negligence of another has caused “injuries to the person.” 42 Pa.C.S. § 5524(2). We must determine, then, whether appellant’s claim in this action is for injury to his person. We conclude that it is. “Personal injury” is defined in Black’s Law Dictionary (5th Ed.1979) as follows:

“Personal injury. In a narrow sense, a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation. The phrase is chiefly used in this connection with actions of tort for negligence and under worker’s compensation statutes. But the term is also used (chiefly in statutes) in a much wider sense, and as including any injury which is an invasion of personal rights, and in this signification it may include such injuries to the person as libel or slander, criminal conversation, malicious prosecution, false imprisonment, and mental suffering.”

Appellant’s pro se complaint describes his cause of action in various ways, but his claim for damages is based upon conduct of counsel which allowed his conviction and subsequent incarceration. This, in a broad sense, is a claim for injury to his person. As such, we hold that it must be commenced within two years.

The general rule is that the statute begins to run from the time the negligent act is done. Med-Mar, Inc. v. Dilworth, 214 Pa.Super. 402, 405-406, 257 A.2d 910, 912 (1969). The purpose of a statute of limitations is to expedite litigation and to discourage stale claims. Insurance Company of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971); Ulakovic v. Metropolitan Life Insurance Co., 339 Pa. 571, 575-576, 16 A.2d 41, 42-43 (1940). One who asserts a claim against another has a duty to use all reasonable diligence to inform himself of the facts and to institute the suit within the prescribed period. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963); Platts v. Government Employees Insurance Co., 301 Pa.Super. 379, 381, 447 A.2d 1017, 1018 (1982); Med-Mar, Inc. v. Dilworth, supra 214 Pa.Super. at 406, 257 A.2d at 912. Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the limitations period. Walters v. Ditzler, 424 Pa. 445, 449, 227 A.2d 833, 835 (1967); Nesbitt v. Erie Coach Company, 416 Pa. 89, 93, 204 A.2d 473, 475 (1964); McNair v. Weikers, 300 Pa.Super. 379, 387, 446 A.2d 905, 909 (1982); Henry v. Control Products Company, 284 Pa.Super. 417, 420, 426 A.2d 116, 118 (1981), appeal dismissed, 496 Pa. 229, 436 A.2d 982 (1981); Acker v. Palena, 260 Pa.Super. 214, 221, 393 A.2d 1230, 1233 (1978); Courts v. Campbell, 245 Pa.Super. 326, 330, 369 A.2d 425, 427 (1976). The only exception to this general rule is where the existence of an injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period. In such cases, the prescribed statutory period does not begin to run until discovery of the injury is reasonably possible. William B. Tenny, Builder & Developer v. Dauphin Deposit Bank & Trust Co., 302 Pa.Super. 342, 345, 448 A.2d 1073, 1076 (1982); Taylor v. Tukanowicz, 290 Pa.Super. 581, 585, 435 A.2d 181, 183 (1981); Wallace v. Horvath, 283 Pa.Super. 179, 183, 423 A.2d 1047, 1049 (1980); Acker v. Palena, supra 260 Pa.Super. at 219, 393 A.2d at 1232.

To come within this exception, it was essential that appellant have made reasonable efforts to protect his interests and explain why he was unable to discover promptly the operative facts necessary to plead his cause of action. Bickell v. Stein, 291 Pa.Super. 145, 150, 435 A.2d 610, 612 (1981). No such averments have been made. Imprisonment alone is insufficient to extend the prescribed limitation. 42 Pa.C.S. § 5533. The fact that appellant filed a P.C.H.A. petition in the criminal action alleging ineffective assistance of counsel was entirely inadequate to toll the running of the statute on the civil action.

Appellant contends that he was deceived by his attorneys because they did not disclose to him that they had made mistakes at trial and on appeal which subjected them to a civil action for damages. However, he has not alleged that he was unaware of counsel’s acts of misfeasance or the injury caused thereby. On the contrary, he was present during the trial and also when the verdict was returned and, subsequently, when sentence was imposed. The errors of counsel, if any, were not committed in secret. Not only were they committed in public, but they were perpetuated in a record continuously available for examination. Appellant simply failed to act promptly to preserve his rights. He will not be excused from the consequences of his delay because, as he contends, his public defenders didn’t tell him that they had been negligent. Rather, it is patently clear that appellant failed to “use all reasonable diligence necessary to inform himself of facts and circumstances ... and to institute the suit within the statutory period.” Platts v. Government Employees Insurance Co., supra. Therefore, “trial would be a fruitless exercise.” Blumer v. Dorfman, 447 Pa. 131, 137, 289 A.2d 463, 467 (1972); Coyne v. Porter-Hauden Company, 286 Pa.Super. 1, 6, 428 A.2d 208, 210 (1981).

The order entering judgment on the pleadings is affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the result reached by the majority. I write separately to comment upon the question of what statute of limitations should apply to appellant’s suit against his former court appointed counsel.

The majority concludes that the suit alleges injuries to the person and that a two-year statute of limitations governs the case. I agree.

Appellant filed an answer in response to new matter that had been raised by his former counsel. In his new matter, Mr. Moore’s former attorney indicated some uncertainty as to what was the nature of the complaint. Appellant wrote, “Plaintiff filed a writ of summons which indicated that the action, although inclusive of multiple causes of action, should lie in trespass to the person and personal rights.” Although appellant has represented himself throughout these proceedings and might not be held strictly to our rules, or expected to employ legal terminology correctly, his answer indicates clearly that he intended his action as one for personal injury.

The record provides sufficient basis for our decision, and I would limit our comments to the facts of that record. That is, I would refrain from commenting, as does the majority, that suits against public defenders should not be construed as breach of contract cases. While I agree that this case should not be treated as a contract case, I have not had occasion to consider whether some other malpractice suit against a public defender might allege breach of contract. The issue was not argued or briefed in this case, and I believe that we should refrain from general comment.

      . Moore’s complaint was initially filed in the Commonwealth Court but thereafter transferred to the Court of Common Pleas of Lancaster County.
      Moore had been represented during his criminal trial and on appeal by Lawrence Ruggiano, Esquire, and Thomas Harting, Esquire. Ruggiano died during the pendency of the present civil action, and his personal representative has not been substituted as a party. Nevertheless, his personal attorney has continued to represent him.

      . The policemen who have been named as defendants are Ralph B. McComsey, Jr., Jan G. Walters, Herman Simms and Miles V. Martin, members of the Police Department of the City of Lancaster.

      . The Supreme Court held that public defenders are not entitled to immunity and may be subject to civil liability for malpractice in Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979).


author: BROSKY, Judge: WIEAND, Judge,

text:
    459 A.2d 1225
    COMMONWEALTH of Pennsylvania, Appellant v. Dennis GOLDWIRE. COMMONWEALTH of Pennsylvania v. Dennis GOLDWIRE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 21, 1982.
    Filed Jan. 21, 1983.
    Reargument Denied March 29, 1983.

      Wieand, J., filed concurring and dissenting statement.

      Paul Steven Diamond, Assistant District Attorney, Philadelphia, for Commonwealth.
    Edward V. Schulgen, Philadelphia, for Dennis Goldwire.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

These cross appeals are before us following a rather complicated procedural history, a brief summary of which follows. Criminal complaints were filed against Dennis Goldwire on April 28, 1977 and May 6, 1977 charging him with robbery, conspiracy, assault, theft, and unauthorized use of an auto.

Pursuant to Rule 1100, Mr. Goldwire had to be brought to trial by October 25, 1977 (as to the complaint filed on April 28, 1977) and by November 6, 1977 (as to the complaint filed on May 6, 1977). The charges were assigned two different case numbers, but were ordered to be consolidated on September 8, 1977. Trial commenced on December 1, 1977. Post-verdict motions challenging the timeliness of the trial were granted and the charges were dismissed for violation of Pennsylvania Rule of Criminal Procedure 1100. Specifically, the lower court found that petitions for extensions of time that were filed by the Commonwealth were improperly granted.

The Commonwealth appealed that decision to the Superior Court. We held in Commonwealth v. Goldwire, 279 Pa.Super. 451, 421 A.2d 286 (1980), that by failing to answer or contest the Commonwealth’s petition for extension and failing to file a petition to dismiss, Mr. Goldwire has waived any contention that his speedy trial rights were violated. On that appeal, Mr. Goldwire had argued that if he were found to have waived the Rule 1100 argument, we should find that he had been denied effective assistance of counsel. We considered that argument but found the record inadequate and therefore remanded to the lower court saying,

In light of the incompleteness and conflicting versions of facts allegedly known to the parties and counsel, we are constrained to remand to the lower court for clarification of the record and for an evidentiary hearing on the effectiveness of appellant’s trial counsel, especially as to his particular knowledge of the circumstances surrounding the petitions to extend.

Id., 279 Pa.Superior at 457, 421 A.2d at 289.

On remand, the lower court determined that counsel had been ineffective as to one of the cases. The charges were dismissed as to that case and sentence was imposed on the remaining counts. Both parties appealed. Because we agree with the lower court’s assessment of the ineffective assistance of counsel claim, we affirm.

It is well settled that the standard for determining whether counsel was ineffective is whether or not a particular course of action chosen by counsel had some reasonable basis designed to effectuate the client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). As we explained in Goldwire, supra, when applying this standard to the case before us, we must first determine whether appellant’s claim that the Commonwealth was not duly diligent in bringing him to trial was meritorious. If it was, then counsel may be deemed ineffective since it would appear that counsel would have no reasonable basis for failing to object to a meritorious speedy trial claim. Id. 279 Pa.Super. at 456, 421 A.2d at 288.

On October 24, 1977 (prior to the run date of October 25 as to the first complaint), the Commonwealth presented to the lower court petitions to extend the time of trial of these cases. No answer was filed on Mr. Goldwire’s behalf. A hearing was held on November 4 at which time an extension was granted to November 9.

The petitions which the lower court granted on November 4 were the “form” type the use of which has been condemned. Mr. Goldwire argues that his attorney should have contested the petition; instead, she neither filed a written answer nor offered argument at the November 4 hearing on them. On remand, the lower court found that counsel was ineffective in not contesting the petition as to “case 1,” but that a contest of the petition as to the other case, “case 2,” would have lacked merit.

At the hearing on November 4, the presiding judge who granted the petitions made mention only of “case 1.” He granted the petition following the Commonwealth’s assertion that there had been a judicial delay in the case from July 8 to August 16. Apparently, based on this representation, the petition was granted. The lower court found on remand, however, that the record does not support the assertion of judicial delay as to “case 1.” During the July-August period, the cases were not yet consolidated. The remand court found that as to Case 1, a Commonwealth continuance was sought and granted from July 8 to July 28. No reason is stated in the record. A further Commonwealth continuance was granted from July 28 to September 8 so that it could prepare to contest a suppression motion filed by Mr. Goldwire.

The record indicates, therefore, that the Commonwealth inaccurately stated the dates in question as to Case

1. Furthermore, the record does not support the conclusion that the July delay was judicial. Mr. Goldwire’s counsel made no objection at the remand hearing. It was stipulated that his prior counsel, who was not present at the remand hearing, would testify that on November 4 she did not have the files with her and therefore offered no objection. We agree with the lower court’s conclusion that her inaction has no reasonable basis designed to further her client’s interests.

As to Case 2, the record indicates that the first listing was for July 18, 1977, but that the case was not reached by the court, despite Commonwealth readiness. A continuance was therefore granted to August 16, 1977.

Had trial counsel objected to the petition as to this case at the November 4 hearing, the trial court could properly have found the July-August period excludable. Therefore, the claim foregone by counsel’s silence was, as to Case 2, not of arguable merit.

We come now to the disposition of this case. As to the charges contained in Bills 1091-2, May Term, 1977, “Case 2,” the case is remanded for sentencing pursuant to Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

As to the charges contained in Bills No. 1819-23 May Term, 1977, the appellant is discharged.

WIEAND, J., files concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting:

I agree with the majority’s disposition of the ineffective assistance of counsel claims. However, I disagree with the decision to remand for resentencing in Bills 1091-1092, May Term, 1977 (Case 2). Neither party has preserved or argued the sufficiency of the reasons for the sentence imposed; and, since the legality of the sentence is clear, I would not consider this issue sua sponte.

      . On remand, the lower court determined that the November 4 hearing is the crucial point at which counsel’s effectiveness is at issue. As the court notes, the subsequent delay of November 9 to December 1 was at the motion of Mr. Goldwire (although the Commonwealth seems also to have sought such a continuance). Because we can reach the issues before us based on events up to November 4, we will confine ourselves to that period and avoid the further confusion that apparently later ensued.

      . Bills 1819-23.

      . Bills 1091-92 May Term 1977.

      . On previous remand, the lower court imposed sentence apparently believing such a step to be necessary to effectuate the instant appeal. The sentencing requirements articulated in Riggins were not followed.

      . We order discharge cognizant of the fact that normally upon a finding of ineffective assistance of counsel for failure to raise a Rule 1100 claim, we would remand for a Rule 1100 hearing. See, e.g., Commonwealth v. Lennox, 286 Pa.Super. 41, 428 A.2d 228 (1981).
      However, the peculiar facts of the case call for a different result. Although we have previously determined that appellant waived the Rule 1100 issue, see Goldwire, supra, there was nevertheless a Rule 1100 hearing below. It is clear that the Commonwealth is only permitted one opportunity to prove the need for a Rule 1100 extension. See Commonwealth v. Alston, 286 Pa.Super. 290, 428 A.2d 997 (1981). To remand for another Rule 1100 hearing would give the Commonwealth an impermissible "second bite at the apple.”


author: CERCONE, President Judge: WICKERSHAM, Judge,

text:
    459 A.2d 1228
    Evelene DOHAN, Executrix of the Estate of David Dohan, Deceased, Appellant, v. Dr. C. Stephen STAHLNECKER and Riddle Memorial Hospital.
    Superior Court of Pennsylvania.
    Argued March 8, 1981.
    Filed March 25, 1983.
    Reargument Denied June 7, 1983.
    Petition for Allowance of Appeal Granted Nov. 22, 1983.
    Wickersham, J., dissented and filed statement.

      Edwin E. Lippincott, II, Media, for appellant.
    William C. Beatty, Media, for Riddle, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   CERCONE, President Judge:

The sole issue raised in this appeal is whether the lower court erred in its charge to the jury in setting forth the contentions of the parties in the proper light regarding the duty of care owed by appellee hospital to appellant’s decedent. Upon a thorough review of the record, we now hold that the lower court’s instructions concerning this matter ■were unduly vague. Accordingly, we reverse and order a new trial.

On September 22, 1970, Mr. David . Dohan, appellant’s decedent, awoke at 6:00 a.m. at his home which was located a few miles from appellee, Riddle Memorial Hospital (hereinafter “Riddle”). Initially, Mr. Dohan complained of pain in his arms, but the other symptoms of a heart attack soon manifested themselves and Dr. Stahlnecker, a long time family friend and personal physician of the decedent, was summoned. The doctor advised Mrs. Dohan that he would come to her residence immediately. However, when Doctor Stahlnecker did not arrive within one half hour, Mrs. Dohan called an ambulance to transport her husband to Riddle. She then telephoned Dr. Stahlnecker and advised him of this course of action. He, in turn, called Riddle alerting the emergency room to the fact that a patient of his was on the way to that facility, that he was suffering chest pains, and that Dr. Stahlnecker would meet the patient at Riddle.

Dr. Stahlnecker arrived at Riddle a few minutes before the decedent who was immediately taken into the emergency room. The Riddle emergency facility was staffed by a registered nurse, a practical nurse, an EKG technician, and a resident physician with a sub-specialty in cardiology. At the request of Dr. Stahlnecker an EKG was taken which was thereafter read by Dr. Stahlnecker and then shown to the resident physician, Dr. Kohutiak. The EKG confirmed that the decedent had, indeed, suffered a myocardial infarction — a heart attack.

At trial, medical testimony was adduced to show that there is a high risk of death in the two hour period following the onset of a heart attack. This great risk is encountered due to temporary heart rhythm alterations — a condition called arrhythmia. Deaths seldom occur during this critical period, however, where life-sustaining facilities are available. It is undisputed that Riddle has such facilities and that it is fully equipped and staffed to care adequately for victims of coronary attacks. Nevertheless, Dr. Stahlnecker was unaware of this fact and testified at trial that a nurse had told him that Riddle did not have a coronary care unit. Thus, the doctor announced that he was going to have Mr. Dohan taken to Lankenau Hospital where he was on the staff. When Mr. Dohan and his wife asked about the reason for the change of hospitals, Dr. Stahlnecker replied: “They don’t have the facilities here to care for this kind of a case.” Mrs. Dohan testified that this statement was made in the presence of the resident physician, Dr. Kohutiak, but the doctor denied hearing the statement and Dr. Stahlnecker, the family doctor, did not recall having spoken these exact words. Unfortunately, Mr. Dohan died on the way to Lankenau Hospital due to a sudden onset of arrythmia.

It is important to note that at no time did any of Riddle’s Emergency Room personnel inform Dr. Stahlnecker or the D.ohans of the fact that Riddle had adequate facilities to care for the patient, nor did they inform them of the great dangers involved in transporting a cardiac patient so soon after his attack. In fact, Dr. Stahlnecker testified that one of the hospital’s registered nurses told him the hospital had no life supporting equipment to meet Mr. Dohan’s heart problem. As a result, the decedent was removed from the emergency room at Riddle and placed in the same ambulance that had taken him to the hospital. The Riddle employees watched this and did not protest. At trial, Dr. Kohutiak suggested that he did not want to interfere with the doctor-patient relationship between the decedent and Dr. Stahlnecker. Dr. Stahlnecker himself testified that he would have ignored any suggestions made by Dr. Kohutiak with regard to not transporting the patient. However, this is understandable, since Dr. Stahlnecker was informed, as he testified, that Riddle did not have the life sustaining facilities for Mr. Dohan’s heart problems. According to this information, there would be no reason for him not to try to get the patient to Lankenau for proper life-supporting treatment.

Just prior to the commencement of the jury trial, the claim against Dr. Stahlnecker was settled and a joint tortfeasor’s release was executed. At the conclusion of the trial, the jury rendered a verdict in favor of both defendants, Dr. Stahlnecker and Riddle Memorial Hospital. Appellant’s motion for a new trial was denied and this appeal followed.

In this appeal, Mrs. Dohan asserts through her counsel that the trial court erred in refusing to charge the jury as a matter of law that decedent herein was a hospital emergency room patient to whom a duty of reasonable care is owed. The trial court addressed this issue when responding to appellant’s motion for a new trial:

It was the opinion of the Trial Judge that the issue of the status of the decedent, at the time he was physically within the confines of the emergency room, was a question of fact that was to be the subject of jury determination. Taking that issue of fact from the ambit of jury determination would be an invasion of the function of the jury as fact-finder.

Our judicial system is based upon the experience of ordinary individuals — the jury — in applying the law, as stated by the judge, to the facts of the case as they are presented in court. A judge’s charge to the jury is, therefore, a crucial part of our judicial system for without proper instruction, jurors would be left to surmise and conjecture in the adjudicative process. The late Justice Musmanno elaborated somewhat colorfully on precisely this point:

Where the jury is being instructed on the law, the language must be imperative. A jury has no latitude of interpretation in the realm of the law. It, of course, has plenary authority to weigh the value of controverted facts (that indeed is its primary function) and to determine on the scale of credibility what witnesses are to be believed and not believed. But where legal principles are involved they have no discretion whatever. They must obey the judge as a ship’s crew must obey their captain, as building workers must follow the blueprints of the architect; as nurses must carry through what is told them by the surgeon, and as pupils must faithfully hearken to their teacher. But in order to demonstrate that loyalty and put into effect the instructions they receive, the subordinates must know what the instructions are and what they mean. A ship’s captain who shrouds his orders in ambiguity or indecisiveness takes the chance of having his ship run onto the rocks of disaster. Instructions to the jury which suggest doubt in the mind of the judge as to what the law is can only introduce into the jury box confusion where there should be certainty, indefiniteness where there must be sureness. Law at its best is a maze of complexities to the average layman. Jurors, therefore, are not be asked to find their own way through the jurisprudential webwork. They must have a surefooted guide, and that guide must be the judge. Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557 (1962).

When reviewing a judge’s charge to the jury, an appellate court will view the charge in its entirety in order to determine if the jury has been misled.

In determining whether a Court’s instructions to the jury are erroneous, we must consider that charge as a whole, and if it is not misleading, we will not reverse, even though there may be some inaccuracies or misstatements. Error cannot be predicated upon isolated excerpts if, when read with the remainder of the charge, a true and correct charge is revealed.

McAvenue v. Bryn Mawr Hospital, 245 Pa.Superior Ct. 507, 513, 369 A.2d 743, 745-46 (1976), quoting Sherman v. Manufacturers Light and Heat Co., 389 Pa. 61, 67, 132 A.2d 255, 259 (1957). Accordingly, the lower court cannot be reversed unless prejudicial error is present when the charge is viewed as a whole.

Germane to the issue of whether the hospital owed a duty to appellant’s decedent, the judge charged the jury as follows:

Now, in this case the plaintiff has sued the hospital, Riddle Memorial Hospital, which is a corporation and I charge you that in determining whether the corporation was negligent, you may consider whether the corporation should have taken steps to advise its emergency room personnel of those standards, bylaws, policies and procedures which related to the operation of the emergency room.
Now, you will have those various regulations and as to the hospital you will have to consider whether in this particular instance they were — had a duty or obligation to follow these regulations.
Now, Mr. Cherry, the plaintiff’s attorney, contends the hospital had these regulations. They were duty bound to follow them. David Dohan did come under the control of this emergency room as such and that the personnel there had a duty to step in and say in our emergency room we are in control here and this man doesn’t leave.
He’s also contending if you recall, that if they didn’t at least do that, there was a duty on the part of the hospital personnel to tell Dr. Stahlnecker look, we have everything you need here to care for this man. He’d contending there was this obligation. They failed to perform it and that is negligence and that is negligence because the personnel did not follow the directives, standards set up here. But that’s all for you to consider.
Now, on the other hand, the hospital especially is contending yes, we have rules and regulations, but they didn’t control in a situation such as this. This man never became our patient. All we did was under these circumstances let Dr. Stahlnecker treat his patient there and furnish him the machine to take the — the operator for the EKG machine. When he wanted this injection given, we let our nurse do it. But we were never in control. We didn’t have any duty to do anything other than what we did and even if our regulations should indicate otherwise, these regulations were not set up to cover every particular case that may come up and certainly the situation such as here where the patient’s own physician was present and acting.
In determining whether Riddle Hospital through its employees were negligent in its treatment of David Dohan, you are instructed that a hospital may be held liable for permitting its facilities to be used by a physician under circumstances where it knew or should have known of such act of malpractice and you will recall the testimony is they didn’t know they took no part. Dr. Kohutiak left there and so forth. You will have to determine from the .facts what duty the hospital had here. I have outlined to you the principles of law that you are to follow.
In determining the relative roles or relationships between the emergency room physician and Dr. Stahlnecker you may consider the testimony of Mr. Laughlin, the president of Riddle. And his testimony, my recollection, —you will have to determine what it was. — is' that under the standards and bylaws the primary responsibility in the emergency room is on the emergency room physician supplied by the hospital.

Counsel for appellant subsequently requested that the following points for charge be read to the jury:

7. Even if you find that the attending physician remained in charge of David Dohan, Riddle nevertheless remained responsible for those services or acts which, according to good medical practice, it should have performed. Aldan [sic] v. Providence, 382 F.2d 163 (D.C.Cir.1967).
8. Once a person is brought to a hospital emergency room, and that person is accepted for care and treatment, the hospital must not act unreasonably in allowing him to be removed from the premises. The law requires that such patient be kept at the hospital and not transferred or removed if it is foreseeable that his condition will be aggravated or his danger increased by such removal or transfer. LeJeune Road Hospital v. Watson, 171 So.2d 202 (Fla.App. 1965).

The Judge granted this request and read these points verbatim. He then went on to reiterate the appellee hospital’s contention in response to these points:

Of course, the contention here, of course, is that physically he was in our emergency room, but he was not an emergency room patient of ours. He was Dr. Stahlnecker’s patient. But you will have to determine this from the facts.

Appellant’s counsel took exception to the Judge’s additional reference to the hospital’s contention and requested that the Judge eliminate that contention as a matter of law and thereby remove the issue from the jury:

[PLAINTIFF’S ATTORNEY]: If the Court please, I’m asking your Honor to rule in this case as a matter of law that David Dohan was an emergency room patient. I’m asking your Honor to eliminate from the Jury’s consideration the defense that the hospital has injected into this case and that is that they can find or they are at liberty to find he was not an emergency room patient. I do not believe the law will permit that finding from this evidence and I ask your Honor to rule as a matter of law that he was an emergency room patient and to direct the Jury in their deliberations to find that evidence.
THE COURT: Refused.
[PLAINTIFF’S ATTORNEY]: I move for the withdrawal of a Juror.
THE COURT: Refused.

Viewing this charge in its entirety, we conclude that the jury was not given the benefit of sufficiently clear instructions on the matter of the duty of care owed by appellee hospital to appellant’s decedent as a matter of law under the facts of this case. Appellee correctly instructs in its brief that the lower court read appellant’s points for charge # 7 and # 8 in verbatim fashion. However, we are compelled to agree with appellant that although points # 7 and # 8 constitute accurate statements of the legal duty of care owed by hospitals to persons receiving emergency room treatment, the court’s subsequent statement regarding appellee’s response to these points had the inescapable effect of eradicating the imperative force with which a court’s instructions on the applicable law should be invariably cloaked. Read in context, the court’s gratuitous reference to appellee’s argument regarding Mr. Dohan’s status permitted the jury to draw the inference that it could disregard entirely the court’s instructions with respect to the affirmative duties owed by the hospital to Mr. Dohan under the facts of this case. The instructions enabled the jury to find as appellee contended that Mr. Dohan never came under the control of the hospital’s emergency room staff. The issue of who actually enjoyed the authority to control the treatment of Mr. Dohan is properly viewed as a matter of law and was itself wholly independent of the question of whether the hospital, according to its opinion, did or did not breach its duties to Mr. Dohan as clearly outlined in appellant’s requested points for charge. The crucial defect of the lower court’s charge was that it equated plaintiff’s evidence with the hospital’s allegations and did not make clear to the jury the difference. The effect of the charge was tantamount to leaving the jury with the impression that if the hospital said, “we didn’t consider the patient an emergency room patient”, the jury could render a verdict in favor of the hospital despite the facts presented by plaintiff that cried out for more equitable treatment. In view of appellee’s defense that its staff left the responsibility of care solely to Dr. Stahlnecker while they sat mute and inactive, the court failed to take into consideration, in its charge, that the “captain of the ship doctrine”, upon which the hospital apparently predicated its opinion that it had no responsibility to Mr. Dohan, is not viable in Pennsylvania. Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974).

Accordingly, since the lower court’s charge failed to distinguish between evidence and allegations, the jury did not have the benefit of proper guidelines to decide this case. As a result the court erred in denying appellant’s motion for a new trial. Reversed and remanded for a new trial.

Jurisdiction is relinquished.

WICKERSHAM, J., files a dissenting statement.

WICKERSHAM, Judge,

dissenting:

I DISSENT. I would affirm on the opinion of the trial judge, the Honorable Robert A. Wright.

      . More significant for purposes of this appeal, however, was the testimony elicited from Mr. Donald Laughlin, the president of Riddle Memorial Hospital, and Ms. Marion Jocomo, a registered nurse who attended to Mr. Dohan upon his arrival at appellee’s emergency room. This testimony concerned the duties imposed upon a resident physician, in this case, Dr. Kohutiak, under the hospital’s by-laws to state in writing his approval of the transfer of a patient together with the precise reason supporting such a decision. Dr. Kohutiak admitted that during the period of his employment by Riddle as an emergency room physician, he had never been informed by other hospital personnel of his responsibilities under such by-laws. Dr. Kohutiak testified further that he, in apparent violation of hospital regulations, played virtually no role whatsoever in the decision to transport Mr. Dohan to another treatment facility.
      Of equal importance, and relevant to the question of whether appellee hospital itself regarded Mr. Dohan as a patient, are Mr. Laughlin’s persistent references to Mr. Dohan at trial as "the patient”, and the fact that Mrs. Dohan was billed by the hospital for the services it performed.

      . Because knowledge of Dr. Stahlnecker’s settlement would undoubtedly have had a prejudicial effect upon the jury, the trial commenced as if Dr. Stahlnecker were still a party to this action.

      . See Fabian v. Matzko, 236 Pa.Superior Ct. 267, 344 A.2d 569 (1975), wherein we specifically adopted Restatement (Second) of Tort § 323 (1965) which reads in its entirety:
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm, or
      (b) the harm is suffered because of the other's reliance upon the undertaking.