source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    516 A.2d 738
    COMMONWEALTH of Pennsylvania v. Gary Lee IVERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1986.
    Filed Oct. 14, 1986.

      Leo M. Pall, Upper Darby, for appellant.
    John A. Reilly, District Attorney, Media, for Commonwealth, appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   OLSZEWSKI, Judge:

Appellant challenges the judgment of sentence following jury convictions on two separate informations. In this appeal, two allegations of error are presented for our review. First, appellant contends that it was improper for the Delaware County Court of Common Pleas to give effect to the suppression hearing held in the State of Delaware. Second, appellant argues ineffective assistance of counsel based on the failure of defense counsel to call a potential witness to testify. Because of the reasons to be discussed infra, we find appellant’s arguments meritless and affirm the trial court.

Following the issuance of an arrest warrant in Delaware County, Pennsylvania police and Delaware State Police engaged in surveillance of an apartment in Claymont, Delaware. Upon observing appellant exit the apartment and drive away with two companions, Pennsylvania State Police stopped the vehicle. Appellant was arrested by the Delaware State Police and transported to Delaware State Police barracks. While there, he was questioned by Pennsylvania police and admitted to numerous crimes in Pennsylvania, Delaware and Maryland.

Appellant was tried on the Delaware crimes first. As part of the proceedings, a suppression hearing was held to determine if the statements given to police on the day of the arrest were involuntary, coerced, and obtained after a violation of appellant’s Miranda rights. Suppression was denied.

After being convicted in Delaware, appellant was charged in Pennsylvania. Trial counsel filed an omnibus pre-trial motion which included a motion to suppress statements and evidence. Because the suppression issues before the Delaware County Court of Common Pleas had previously been litigated in Delaware state court, the trial court gave effect to that decision to deny suppression. The trial court not only held a hearing on suppression issues not decided by the Delaware state court, but also allowed appellant the opportunity to challenge the previously litigated issue. No statements or evidence were suppressed.

Appellant now alleges that the Pennsylvania trial court erred in giving effect to the suppression motions which had been adjudicated by a Delaware state court. In deciding this issue, we look to the guidance of Commonwealth v. Lagana, in which case our Supreme Court noted:

In those instances where two prosecutions arise out of a single search and/or seizure, a decision by a suppression judge during the first prosecution can, upon the motion of the previous prevailing party, become part of the second prosecution. The party against whom this decision is being offered may offer any new evidence which was previously unavailable. See generally, Pa.R.Crim.P. 323(j). Absent such new evidence the suppression judge in the second prosecution must adopt the findings and conclusions of the first judge, and incorporate them into the record. Thereupon, the party against whom the first decision is offered may have the validity of the decision reviewed on appeal.

Commonwealth v. Lagana, 510 Pa. 477, 483, 509 A.2d 863, 866 (1986).

Since appellant had been given the opportunity to challenge the suppression issue before the Delaware County court, we are compelled to affirm the lower court’s decision to deny suppression. Cf Commonwealth v. Maxwell, 354 Pa.Super. 555, 512 A.2d 679 (1986).

Appellant’s second issue alleges ineffective assistance of trial counsel through the failure to obtain testimony of a possible witness.

Pennsylvania law regarding ineffective assistance of counsel is well documented. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), enunciated the process to be used as a two-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit, and second whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant’s interests. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). Recently, an en banc Superior Court added another consideration. In addition to the above requirements, an appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Pierce, supra. At all times through the process, the law presumes effective counsel and the burden of proving ineffectiveness of counsel rests with the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977), sets out the applicable law concerning trial counsel’s decision to not call a potential witness. We quote:

It is clear that trial counsel’s failure to present a possible witness is not per se ineffective assistance of counsel. Counsel need not call every person mentioned by a defendant. Commonwealth v. Robinson, 232 Pa.Super. 328, 334 A.2d 687 (1975). Moreover, the failure to call a possible witness will not be equated with a conclusion of ineffectiveness absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Hawkins, 445 Pa. 279, 284 A.2d 730 (1971); Commonwealth v. Harper, 233 Pa.Super. 294, 334 A.2d 761 (1975). In Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), our Supreme Court addressed the issue of whether counsel’s failure to call a known witness constituted ineffective assistance:
“If counsel’s decision not to secure (the witness’) appearance ... was based on a reassessment of its worth and a conclusion that it was of little or no value in the posture of this case, then that decision clearly had some reasonable basis designed to effectuate (the client’s) interests. In such circumstances, counsel’s conduct would not constitute ineffectiveness. See Commonwealth ex rel. Washington v. Maroney, supra. Had counsel reached this decision on a basis designed to advance his client’s interest, this case would be analogous to those situations in which, as a matter of trial strategy, counsel decides not to call a witness at all. (Citations omitted.)
“If, however, counsel’s failure to seek compulsory process to obtain (the witness’) testimony ... was the result of sloth or lack of awareness of the available alternatives, then his assistance was ineffective. In a case when virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.” 460 Pa. at 110-111, 331 A.2d at 443.

Applying the above law to the present situation, we find no reason to hold trial counsel ineffective. To begin, we do not perceive any arguable merit to appellant’s claim. We merely have appellant’s bare assertion that the failure to call Michael Peticca, who was with appellant at the time of the arrest and much of the previous three weeks, resulted in an ineffective defense. Appellant does not inform us how Mr. Peticca would have testified and helped his defense. It can be inferred that Mr. Peticca would support appellant’s defense that any statements made by appellant were coerced. How appellant’s action three weeks prior to arrest, as told through Mr. Peticca, would affect his statements after arrest is not set forth. As such, the first prong of Maroney is not satisfied. In addition, trial counsel was aware that Mr. Peticca could testify and chose not to use such testimony. He was also aware that Mr. Peticca faced similar charges based on the same circumstances. Following Twiggs, supra, we do not find any evidence showing that counsel’s decision to refrain from calling Mr. Peticca was not based on reasonable grounds and was not in appellant’s best interests. Appellant, therefore, has not overcome his burden to prove ineffectiveness. Commonwealth v. Floyd, supra.

Judgment of sentence affirmed.

      . On information no. 5464, appellant was convicted of robbery, possession of instruments of crime — weapon, general possession of instruments of crime, and unlawful use of a motor vehicle. He was also convicted of robbery, unlawful restraint and unlawful use of a motor vehicle on information no. 5465 arising from a separate incident.

      . We agree with appellant that the full faith and credit clause is inapplicable with respect to a preliminary procedural matter involving a penal judgment. In Nelson v. George, 399 U.S. 224, 229, 90 S.Ct. 1963, 1966-67, 26 L.Ed.2d 578 (1970), however, the United States Supreme Court noted that while the states were not required to enforce a penal judgment of a sister state, the states were free to determine what effect, if any, they should give to the prior decision. We believe that pursuant to the doctrine of collateral estoppel, the trial court should have the discretion to give effect to a sister state’s penal judgment. In the present case, the trial court determined that questions regarding the legality of the arrest and the voluntariness of the statements were identical to the issues presented in the Delaware state court. We believe that the refusal to suppress the evidence is supported on the record.


author: ROWLEY, Judge:

text:
    516 A.2d 741
    Thomas C. BOLD, Jr., Appellant, v. Joan M. BOLD. Thomas C. BOLD, Jr. v. Joan M. BOLD, Appellant.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed Oct. 9, 1986.

      John R. Banke, Pittsburgh, for appellant in No. 809 and for appellee in No. 853.
    John M. O’Connell, Jr., Greensburg, for appellant in No. 853 and for appellee in No. 809.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This matter comes to us on appeal by Thomas C. Bold (husband), and on cross appeal by Joan M. Bold (wife). Both parties are appealing from the trial court’s order of equitable distribution in this bifurcated action in which a divorce decree has already been granted.

Husband and wife were married on May 16, 1964. They are the parents of one child, Theresa, whom they adopted on August 14, 1970. The parents separated on or about April 21, 1980, and Theresa remained with her father. On May 9, 1980, wife filed a complaint in divorce which was subsequently dismissed upon the recommendation of a master. By an order dated February 18, 1981, the court awarded the custody of Theresa to husband.

The present action began on April 14, 1983 when husband filed for divorce and equitable distribution on the grounds of adultery. Wife filed an answer denying the adultery and counterclaimed for a no-fault divorce, counsel fees, expenses, and alimony pendente lite. The action was bifurcated and the court entered a divorce decree on August 16, 1984. The court appointed a master on October 25, 1983, who conducted hearings on claims for equitable distribution, counsel fees, expenses, and alimony pendente lite on November 21, 1983, January 5, 1984, and February 17, 1984. The master filed a report on September 5, 1984, to which husband filed timely exceptions. The trial court en banc sustained some of husband’s exceptions and denied others. Husband appeals from the order of the trial court en banc insofar as it denies his exceptions, and wife cross appeals from the order of the trial court en banc insofar as it sustains Thomas’s exceptions.

“An appellate court will reverse an order determining equitable distribution of marital property only for an abuse of discretion by the trial court.” Baraff v. Baraff, 338 Pa.Super. 203, 210, 487 A.2d 925, 929 (1985). “Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather, we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion.” Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985), quoting Semasek v. Semasek, 331 Pa.Super. 1, 6, 479 A.2d 1047, 1050 (1984). “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence____ However, an abuse of discretion will be found by this Court if the trial court failed to follow proper legal procedure or misapplied the law.” Braderman v. Braderman, 339 Pa.Super. 185, 190-91, 488 A.2d 613, 615 (1985).

I. Appeal at 809 Pittsburgh 1985

We will first consider the three issues raised by husband: whether the trial court abused its discretion in failing to award the marital residence to husband, the custodial parent; whether the trial court abused its discretion in failing to consider the needs and economic circumstances of husband as a custodial parent; and, whether the trial court abused its discretion in failing to properly value and equitably distribute the parties’ marital assets — specifically furniture and husband’s pension.

We have reviewed the record and accorded due consideration to the arguments presented by husband in support of the questions raised. Regarding the first question, husband argues, wholly apart from economic considerations, that the trial court abused its discretion in failing to consider whether the sale of the marital home would disrupt the life of his minor daughter. However, husband did not, in his numerous exceptions to the master’s report, allege any error by the master in failing to consider the disruption of the daughter’s life in the equitable distribution of the marital home. In addition, husband did not place any evidence on the record to prove that his daughter’s life will be disrupted. The trial court en banc “agree[d] with the Master’s recommended plan of distribution with regard to this asset....” Failure to take exception to a master’s finding which is affirmed by the trial court is fatal to the preservation of the issue. Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985).

Next, husband questions “Whether the Court abused its discretion in failing to consider the needs and economic circumstances of the Husband as a custodial parent.” In support of this claim of abuse of discretion, husband argues that in addition to the compensation available to a custodial parent through child support, compensation for the custodial parent should be considered when marital assets are equitably distributed. We find no merit in this argument. As the trial court en banc commented, “the custody of minor children should not be considered in equitable distribution of property because the needs of the custodial parent relative to said child can be addressed in the support proceedings.” The considerations which the trial court must make, as delineated in 23 P.S. § 401(d), do not include considering custody of children. In addition, husband has not cited any authority in this jurisdiction which so interprets the divorce code or recognizes such a consideration outside of support. The trial court did not commit an error of law nor abuse its discretion in finding that he was not entitled to additional equitable consideration due to his needs as a custodial parent.

Husband’s final issue is “Whether the Court abused its discretion in failing to properly value and equitably distribute the parties’ marital assets.” First, husband argues that the value assigned to the furniture was too high. The trial court dealt with this issue in its opinion of May 28, 1985. Neither party placed any evidence on the record other than their own opinion testimony. As such, the master was forced to make a finding based solely on the credibility of that testimony.

[A]lthough the findings of fact and" the recommendations of the Master are usually considered as only advisory, an exception is made where the issue is one of credibility and the master is the one who heard and observed the witnesses. In that situation, the findings of the master should be given the fullest consideration.

Mintz v. Mintz, 258 Pa.Super. 187, 191, 392 A.2d 747, 749 (1978) (citations omitted); see Lasco v. Lasco, 311 Pa.Super. 210, 457 A.2d 569 (1983), Hargrove v. Hargrove, 252 Pa.Super. 120, 381 A.2d 143 (1977), and Ryave v. Ryave, 249 Pa.Super. 78, 375 A.2d 766 (1977). The master, based on a credibility determination of the testimonial evidence presented by husband and wife, found the value of the furniture to be closer to husband’s suggested value than to wife’s. The trial court deferred to the master’s determination as being the proper province of the tribunal witnessing the crucial testimony. Thus, based on the record presented, the trial court did not abuse its discretion or commit an error of law in affirming the master’s valuation of the furniture.

Next, husband argues “that the trial court has abused its discretion in failing to fully consider the speculative nature of the Husband’s pension, and in assigning a value in an arbitrary and capricious manner.” A review of the record shows that during the master’s hearings, husband provided documents and personal testimony as to the value of his pension. This evidence was no more than dollar figures upon which further calculation was necessary to actually evaluate the pension. Husband presented no such further calculation. In addition, husband has not specifically demonstrated any such calculations in his exceptions or issues on appeal.

On the other hand, wife presented expert testimony from an economist who did make calculations which he was qualified to do. These calculations go beyond the basic figures presented by husband, and provide the court with a workable present value of the pension. Husband was permitted to cross-examine the expert, and has not, at the hearings, through exceptions, or on appeal, shown specifically where these calculations are erroneous. Thus, the trial court did not err in accepting the master’s recommendation based on the essentially uncontradicted testimony of the expert witness. Husband has thus failed to present any issue of merit.

II Appeal at 853 Pittsburgh 1985

Wife raises two issues in her cross appeal: did the trial court err in valuing the real estate as of the date of the master’s hearing rather than as of the date of separation of the parties and did the trial court err in finding that her $15,000 inheritance was marital property.

A panel of the Superior Court recently addressed the issue concerning the date of valuation of the marital home for purposes of equitable distribution in the case of Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986). Although the opinion in Sergi, supra, was filed after the trial court’s opinion in the case at hand, the trial court’s disposition of the matter is consistent with the considerations which the Sergi decision requires:

[T]he drafters of the Divorce Code have provided that the parties are to submit to the court an initial valuation of their property at the time the action is commenced. To mandate that a trial court be limited to effecting an equitable distribution based only on this valuation information could result in a distribution based on stale financial data. This would hardly be in keeping with the overall declared policy of the Commonwealth which is to: “(e)ffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability of the parties and insure a fair and just determination and settlement of their property rights." 23 P.S. § 102(a)(6) emphasis added.
Likewise, to require a trial court to value property as of the date of separation may also result in the use of stale financial data and subsequent inequitable distribution of marital property.
* * * * * *
Failure to permit a trial court to value marital property at the time of separation could result in allowing a spouse to reduce the value of marital property through unbridled consumption.
* * * * * *
[W]e do not at this time attempt to establish a valuation to be used in every situation. To recognize a specific valuation date as a matter of law would deprive the trial court of the necessary discretion required to effectuate economic justice.

Sergi v. Sergi, 351 Pa.Super. 588, 592-96, 506 A.2d 928, 931-32 (1986).

The Court in Sergi then progressed to equitably weigh the potential valuation dates. In the present case, we note that the trial court performed exactly the same process of considering the equities of the potential valuation dates. On pages eighteen through nineteen of its May 28, 1985 opinion, the trial court en banc stated:

The record is clear that [wife] submitted an appraisal of Kenneth Gehr, performed in 1981, valuing the property at $49,000.00, and [husband’s] submitted an appraisal performed immediately prior to the hearing in 1984 by John Paul Levinson, showing the value of the property to be $40,000.00____ It is the opinion of this Court that the more credible appraisal introduced into evidence was that produced by [husband] because it is based upon an appraisal made one day prior to the Master’s hearing as opposed to [wife’s] appraisal, which was nearly 3 years old at the time of the Master’s hearing____ Therefore it is the opinion of this Court that the appraisal of John Paul Levinson is the more credible evidence regarding the value of the jointly owned real estate, and this Court finds that the value of the jointly owned real estate is $40,000.00.

No evidence was placed on the record indicating that the difference in appraisals was due to intentional consumption or waste on the part of husband, who was occupying the house during the period between separation and the master’s hearings. In fact, there was testimony that he continued to improve the house during that time. (N.T. January 5, 1984, at 16, 25.) Therefore, the trial court did not err in finding the proper date of valuation of the marital house to have been the date closest to the master’s hearing, rather than the date of separation.

In arguing that the trial court erred in finding that her $15,000 inheritance was marital property, wife attempts to distinguish two cases, Madden v. Madden, 336 Pa.Super. 562, 486 A.2d 401 (1985), and Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984). In distinguishing the two, she suggests that the case at hand is more similar to Estep, Id. Whether the cases can be distinguished and whether Estep was more similar have become moot questions because the Pennsylvania Supreme Court reversed the Superior Court’s decision in Estep on November 13, 1985. See Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985). Because this decision by the Supreme Court came after the trial court’s opinion was written, the trial court was not able to apply the Supreme Court’s holding to wife’s argument. Nevertheless, the reasoning applied by the trial court, employing Madden, supra, creates a proper result.

In Madden, the husband acquired savings bonds as a gift from his mother. However, he cashed the bonds in and purchased new bonds in his and his wife’s names. That act changed the status of the bonds to marital property, subject to equitable distribution. Wife argues that the $15,000 in question is an inheritance which is excepted from marital property for purposes of equitable distribution under 23 P.S. § 401(e)(3). However, just as with the husband in Madden, wife changed this excepted status to marital property status when she placed the inherited funds into a joint account with her husband. Thus, the trial court did not err in finding the $15,000 to be marital property subject to equitable distribution.

Neither party has proven any abuse of discretion or error of law to have been committed by the trial court. Therefore, we affirm the trial court’s plan of equitable distribution of the property.

Order affirmed.

      . Husband’s exception number twenty-six takes exception to “the master’s failure to consider the standard of living of the parties and the minor child....” This exception does not make note of social or psychological disruption in the minor daughter's life. As such, it remains simply an economic question concerning equitable distribution of property.

      . Opinion of the trial court en banc, May 28, 1985, at 4.

      . Opinion of the trial court en banc, May 28, 1985, at 10.


author: HOFFMAN, Judge:

text:
    516 A.2d 746
    COMMONWEALTH of Pennsylvania v. Mark Owen WHITE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 16, 1986.
    Filed Oct. 22, 1986.

      Leroy G. Levan, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for simple assault and harassment. Appellant contends that (1) the trial court erred in denying his motion for a continuance; and (2) his trial counsel was ineffective for (a) failing to conduct a defense, (b) advising him not to consent to a waiver under Pa.R.Crim.P. 1100, and (c) failing to subpoena necessary defense witnesses. We agree that the lower court erred in denying appellant’s motion and, accordingly, reverse the judgment of sentence and remand for a new trial.

Appellant, a prisoner in the Berks County Prison, punched a guard and was charged with simple assault and harassment. On the morning of the trial, appellant’s counsel motioned for a continuance on the ground that a mix-up in the Public Defender’s Office had prevented him from subpoenaing witnesses on appellant’s behalf. The court asked appellant if he wanted a continuance and he replied that he did not. The court then denied appellant’s motion for a continuance. Appellant was tried by a jury and convicted of both charges. He was sentenced to a six-to-twenty-four-month term of imprisonment. Post-verdict motions were filed and a hearing was held at which appellant was represented by new counsel. The motions were denied and this appeal followed.

Appellant first contends that the trial court erred in denying his motion for a continuance of trial. Appellant argues that he was confused by the terminology used by his counsel and by the trial court. Specifically, he argues that he did not understand the difference between a continuance of trial and a Motion for Continuance, which involves a waiver of speedy trial rights under Pa.R.Crim.P. 1100. Therefore, he contends that his refusal of a continuance, with the result that he proceeded to trial without witnesses, was not knowingly, intelligently, and voluntarily made. We agree.

The grant or denial of a continuance is a matter within the discretion of the trial court. Commonwealth v. Scott, 489 Pa. 258, 264, 365 A.2d 140, 143 (1976); Commonwealth v. Warden, 335 Pa. Superior Ct. 315, 318, 484 A.2d 151, 152 (1984); Commonwealth v. Faraci, 319 Pa. Superior Ct. 416, 421, 466 A.2d 228, 231 (1983). When the defense requests a continuance to obtain a witness, the trial court, in exercising its discretion, should consider (1) the necessity of the witness to strengthen defendant’s case; (2) the diligence exercised to procure his presence at trial; (3) the facts to which the witness would testify; and (4) the likelihood that the witness could be produced at the next term of court. Commonwealth v. Scott, supra; Commonwealth v. Smith, 442 Pa. 265, 270, 275 A.2d 98, 101 (1971); Commonwealth v. Franks, 271 Pa.Superior Ct. 278, 283, 413 A.2d 404, 407 (1979).

A criminal defendant has a constitutional right to present defense witnesses and evidence. Commonwealth v. Terry, 258 Pa. Superior Ct. 540, 543, 393 A.2d 490, 492 (1978).

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies---This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967) (emphasis added). A waiver of a fundamental right must be knowingly, intelligently, and voluntarily made. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981) (right to counsel); Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972) (right to a speedy trial); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970) (guilty plea). “Courts should indulge every reasonable presumption against waiver and they should not presume acquiescence in the loss of fundamental rights.” Barker v. Wingo, supra 407 U.S. at 515-26, 92 S.Ct. at 2189 (citations omitted).

Here, at the preliminary hearing, appellant gave his trial counsel a list of names and addresses of eyewitnesses to the incident that appellant wanted to have testify at trial. It was determined at the hearing on the post-verdict motions that these eyewitnesses would have testified that the guard assaulted appellant first and that appellant punched the guard in self-defense. Due to a mix-up at the Public Defender’s Office, appellant’s file was misplaced until shortly before trial, and his trial counsel was unable to subpoena the witnesses that appellant had requested.

Appellant’s trial counsel made a motion for a continuance so that he could have an opportunity to subpoena the witnesses. Before ruling on the motion, however, the trial court asked appellant whether he wanted his case continued:

THE COURT: I was about ready to have a jury brought here to have the case tried. Your attorney just made a request on the record. I guess you heard what he said. He asked to have the case continued so that he could subpoena witnesses. Did you hear that?
DEFENDANT: Yes.
THE COURT: Now, they’re not here. He said that he only got the file. There was some mix-up in their office, and he didn’t know much about this case until too late to get those witnesses here or even to interview them. He would like to have a continuance so that he can look into that matter and bring those people here for possible wittnesses in your behalf. Do you understand that?
DEFENDANT: Yes.
THE COURT: Do you want the case continued, too?
DEFENDANT: No.
THE COURT: The continuance is refused. He wants the case to go to trial, and he stated that under oath. I didn’t ask him anything about waiver.

N.T. July 18, 1984 at 7-8. By stating that he did not want his case continued, appellant waived his fundamental right to present a defense because he was forced to go to trial without the benefit of any of his witnesses. The issue to be determined, then, is whether the waiver was knowing, intelligent, and voluntary.

At the hearing on the post-verdict motions, appellant testified as follows:

Q. So you remember Judge Hess asking you whether or not you wanted the case continued?
A. Yes.
Q. And do you remember your answer?
A. Yes.
Q. What was your answer?
A. No.
Q. Okay. And did you understand by that you wanted the case to go ahead without your witnesses?
A. No.
Q. Okay. What did you mean by that?
A. I wanted my witnesses there but Mr. Ochs informed me to say no if a continuance was asked for because it wasn’t my fault that the witnesses weren’t there.
Q. Why is it that if you didn’t want to go ahead with trial you said you did not want a continuance? What were you saying no to?
A. The continuance, 180 days.
THE COURT: Nobody asked you about the 180 days, you remember? Right there, I read that to you, nothing was said about a waiver.
MR. LEVAN: Did Mr. Ochs [appellant’s trial counsel] explain to you the difference between a waiver of the 180 days and a continuance of trial?
A. Yes.
Q. Okay. And then what did he say about it?
A. He said not to give either one because it wasn’t my fault.
Q. But did you want to go ahead with the trial without the witnesses?
A. No.
THE COURT: Why did you answer no to me when I asked if you wanted it continued?
A. Mr. Ochs informed me to say no.

N.T. December 3, 1984 at 6-7. We think this testimony reveals that appellant was confused as to the difference between a continuance and a waiver of his right to a speedy trial under Pa.R.Crim.P. 1100. We note that there were reasonable grounds for appellant’s confusion. The form used by the Berks County Court of Common Pleas for waiver of speedy trial rights under Rule 1100 is called a “Motion for Continuance.” Brief for Appellant at 23 (Exhibit A). In addition, appellant’s trial counsel referred to tendering a waiver of Rule 1100 on appellant’s behalf as signing “the continuance form.” N.T. December 3, 1984 at 26. Appellant makes it clear in his testimony at the hearing on the post-verdict motions that he did not want to go to trial without his witnesses present. Thus, appellant did not understand the consequences of his refusal to have his trial continued. Because his refusal amounted to a waiver of his fundamental right to call witnesses on his behalf, we find that appellant’s refusal was not knowingly, intelligently, and voluntarily made.

Appellant’s confusion as to the meaning of a continuance should have been apparent to the court. Before appellant stated that he did not want a continuance, his trial counsel made an extensive argument in favor of his motion for a continuance. N.T. July 18, 1984 at 3-6. The argument was described as “a heated exchange” during which each person was adamant in their respective positions. N.T. December 3, 1984 at 37. There was no evidence of bad faith or dilatory tactics on the part of the defense in asking for the continuance. In fact, the trial court indicated that it was willing to grant the continuance. N.T. July 18, 1984 at 5, 6. When appellant replied that he did not want a continuance, no attempt was made by the court to reconcile this response with his trial counsel’s adamant position in favor of the continuance. The trial court merely denied the continuance without inquiring as to the reason for the discrepancy between the positions of appellant and his trial counsel.

It was evident that a denial of the continuance would mean a trial without any defense witnesses. The trial court did not inquire into the facts to which the witnesses would testify or the necessity of their testimony to appellant’s defense. There is no evidence that the trial court considered any of the factors enumerated in Commonwealth v. Smith, supra, before denying the continuance. From the testimony adduced at the hearing on the post-verdict motions, we conclude that the eyewitnesses were essential to appellant’s defense and that their presence and ability to testify on behalf of appellant was necessary to ensure a fair trial. Accordingly, we find that the trial court abused its discretion when it denied the continuance.

Because we find this abuse of discretion to be an adequate ground for a new trial, we do not address appellant’s other contentions. Accordingly, we reverse the judgment of sentence and remand for a new trial. Jurisdiction is relinquished.


text:
    516 A. 2d 749
    U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT v. James & Edna DICKERSON, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 24, 1986.
    Filed Oct. 22, 1986.

      Joyce S. Wilkerson, Philadelphia, for appellants.
    Jerome M. Feinberg, Philadelphia, for appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   HOFFMAN, Judge:

This is an appeal from the order below denying appellants’ petition to strike or open a default judgment. Appellants contend that the trial court abused its discretion in refusing to open the default judgment. We agree and, accordingly, reverse the order below and remand for proceedings consistent with this opinion.

On April 4, 1985, the United States Department of Housing and Urban Development (HUD), appellee, filed a Landlord and Tenant eviction complaint against appellants in Philadelphia Municipal Court. In the complaint, HUD sought a judgment for possession of the premises, alleging that (1) appellants were in wrongful possession of HUD property as a result of a failure to pay rent, and (2) appellants’ oral lease was to expire on April 19, 1985. A hearing was set for April 19, 1985, and the complaint was posted on the subject premises on April 16, 1985. When appellants did not attend the April 19 hearing, a judgment for possession by default was entered against them. Pursuant to the default judgment, a municipal court writ was served on appellants on May 10, 1985, giving them fifteen days to vacate the premises. When appellants failed to vacate, a second writ was issued and appellants were physically evicted from the premises on June 5, 1985. On June 7, 1985, appellants filed a petition to strike or open the judgment. The Municipal Court denied this petition on July 2, 1985. Appellants appealed this decision to the Court of Common Pleas. Their appeal was denied by order and opinion dated August 28, 1985. This appeal followed.

Appellants contend that the common pleas court abused its discretion in refusing to open the default judgment. In support of this contention, appellants argue that notice of the complaint and hearing was not served in conformity with local municipal court rules. We agree.

A petition to open a judgment is an appeal to the court’s equitable powers and the disposition of the petition will not be disturbed on appeal absent a mistake of law or a clear abuse of discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973); Penneys v. Richard Kastner Co., 297 Pa.Superior Ct. 167, 169, 443 A.2d 353, 354 (1982). Ordinarily, three factors should be considered and must coalesce before a default judgment can be opened: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” McCoy v. Public Acceptance Corp., supra 451 Pa. at 498, 305 A.2d at 700. If, however, the party seeking to open the judgment has not received valid service and has no notice of the proceedings, the court has no jurisdiction over the party and is without power to enter a judgment against him. Liquid Carbonic Corp. v. Cooper & Reese, 272 Pa.Superior Ct. 462, 466, 416 A.2d 549, 551 (1979). “We have not hesitated to open judgments and give defendants an opportunity to file answers in cases where process was not properly served.” Id., 272 Pa.Superior Ct. at 466-67, 416 A.2d at 551. See also Taylor v. Humble Oil & Refining Co., 221 Pa.Superior Ct. 394, 398, 292 A.2d 481, 483 (1972) (where improper service, party normally not subject to jurisdiction of court). Accordingly, we must inquire into the accuracy of appellants’ contention that they were improperly served. Liquid Carbonic Corp. v. Cooper & Reese, supra 272 Pa.Super. at 467, 416 A.2d at 551.

The record makes plain that the default judgment entered here did not comply with the governing procedural rules of the Philadelphia Municipal Court. Rule 120(c), in effect at the time this action was instituted, provided that:

If the claimant appears and defendant does not, and damages are proven in accordance with Rule 121 [relating to conduct of trial and evidence], judgment by default shall be entered for claimant, provided service was made at least twenty (20) days prior to trial. All other claims shall be continued to a date certain.

Phila.M.C.R.Civ.P. No. 120(c) (1985) (emphasis added). The uncontradicted evidence in the record reflects that this action commenced with the filing of a complaint on April 4, 1985. A hearing was held, and a default judgment was entered against appellants on April 19, 1985, fifteen days later. The only evidence of record indicating that appellants had notice of the hearing is a copy of the writ server’s return which shows that a copy of the complaint was posted on the subject premises on April 16, 1985, three days before the default judgment was entered. Because appellants did not receive the mandatory twenty day notice, the municipal court, pursuant to Rule 120(c), should not have entered a default judgment. In these circumstances, we conclude that appellants were not properly served with notice of this action and the municipal court thus did not obtain the personal jurisdiction requisite for entry of a judgment against appellants. See Neff v. Tribune Printing Co., 421 Pa. 122, 124, 218 A.2d 756, 757 (1966) (rules regarding service of process must be strictly followed and jurisdiction of court over person of party is dependent on proper service being made); Keystone Wire & Iron Works v. Van Cor, 245 Pa.Superior Ct. 537, 541, 369 A.2d 758, 760 (1982) (service of process in accordance with rules of civil procedure is essential to jurisdiction of court over person). See also Mischenko v. Gowton, 307 Pa.Superior Ct. 426, 4 32, 453 A.2d 658, 660 (1982) (action taken by court without jurisdiction is nullity). Accordingly, we find that the common pleas court should have opened the default judgment and allowed appellants to file an answer to the complaint and its failure to do so constituted an abuse of discretion.

For the above-stated reasons, we reverse the order of the court below and remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

Reversed and remanded.

      . The municipal court denied the petition on grounds of mootness. Appellee renews this argument on appeal, contending that because appellants had been evicted from the premises pursuant to the default judgment, the judgment has been fully executed and the case is moot. Brief for Appellee at 7. We disagree. A fully executed judgment may be attacked if there was fraud or a lack of authority in the person executing the judgment. See Garrison v. Erb, 424 Pa. 306, 309, 227 A.2d 848, 849 (1967) (once property delivered after sheriffs sale held pursuant to court order, only attacks on judgment possible are fraud or lack of authority to make sale). Here, we hold that appellants were not properly notified of the proceedings against them and thus the municipal court lacked jurisdiction over them.. See infra pp. 26-28. Because the court lacked jurisdiction, it follows that there was no authority to execute the judgment and thus an attack on the judgment is not barred and the case is not rendered moot. Moreover, we note that the common pleas court neither addressed the question of mootness nor based its decision on the petition being moot.

      . This version of the rule remained in effect until November 25, 1985, when it was amended to require that service be made at least seven days prior to trial. See Phila.M.C.R.Civ.P. No. 120(c) (1986).

      . Appellee contends, and the lower court notes that, in addition to the posting of the complaint on the premises, Municipal Court "mails notice of all hearing dates and judgments.” Lower Court Opinion at 2. We find no evidence of record indicating that the municipal court mailed notice to these appellants. Moreover, even if the municipal court did mail notice, it could not have been timely under the twenty day requirement of Rule 120(c), because the complaint was filed only fifteen days before the hearing was held.

      . Appellants also contend that (1) their petition was timely, (2) they had a meritorious defense to the underlying complaint, and (3) the lower court should have granted their petition to strike the default judgment because there was no landlord-tenant relationship between the parties and thus the municipal court had no jurisdiction to hear the claim. Because of our disposition of this case, we need not reach these issues.


text:
    516 A.2d 752
    COMMONWEALTH of Pennsylvania v. Angel R. MOLINA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1986.
    Filed Oct. 24, 1986.

      Peter D. Bludman, Philadelphia, for appellant.
    Maxine Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This appeal follows judgment of sentence for aggravated assault. Appellant, Angel Molina, was tried and convicted by a jury in the shooting of Monserate Quiles. We affirm the judgment of sentence.

On the evening of June 18, 1982, appellant visited his neighbors, Monserate Quiles and Olga Cuevas, husband and wife. Trial witnesses presented two stories. First, according to Quiles (the victim), appellant flirted with his wife. Angered, Quiles followed appellant home when appellant left. Quiles testified that he had a knife in his back pocket, which he used to open boxes at work, and a wrench in his hand. Quiles further testified that he would have used the wrench to defend himself if attacked, but stated that he did not threaten appellant with it. Quiles knocked on appellant’s door and a few minutes later, appellant emerged from his home holding a gun. Appellant pushed Quiles’ wife, who was standing at the bottom of the steps, and fired two shots, one of which struck Quiles in the neck.

According to defense witnesses, appellant shot in self-defense. Appellant denied flirting with Quiles’ wife, Olga Cuevas. He stated that he left Quiles’ house and went home to bed. About a half hour later someone knocked on appellant’s door. Appellant went downstairs, opened the door and saw Quiles holding a knife-like object. According to appellant, Quiles said, “I came here to kill you because you got fresh with my wife.” (N.T. p. 122). Appellant then closed the door, went upstairs and told his daughter to call the police. When fifteen minutes passed and the police had not arrived, appellant got his gun, went out on the steps and called to Pablo Melendez who was on the sidewalk near appellant’s house. Quiles then approached appellant and, threatening to kill him, lunged at him with the knife. At that point, Pablo Melendez knocked the knife out of Quiles’ hand. When Quiles retrieved the knife, appellant fired one shot.

In November of 1982, a jury convicted appellant of aggravated assault and possession of an instrument of crime. At the sentencing hearing held following the denial of post-trial motions, the trial court refused to apply the mandatory minimum sentence of five years’ imprisonment for aggravated assault committed with a firearm, as required by Section 9712 of the Mandatory Sentencing Act, 42 Pa.Cons. Stat.Ann.Sec. 9712 (Purdon 1982). Instead, the court imposed probation for both convictions. Following denial of its motion to modify sentence, the Commonwealth filed an appeal challenging the trial court’s refusal to impose the minimum sentence provided by section 9712. On August 2, 1985, a panel of this Court vacated the sentence of probation for aggravated assault and remanded for resentencing. Commonwealth v. Molina, 344 Pa.Super. 459, 496 A.2d 1196 (1985).

On February 11, 1986, represented by newly-appointed counsel, appellant appeared before the trial court for resentencing. At that time, new counsel for the appellant reminded the court that he had previously filed a “Petition Averring Ineffectiveness of Trial Counsel” in the nature of a petition under the Post-Conviction Hearing Act, and indicated that he desired a hearing on the petition prior to any resentencing. However, because appellant had not yet exhausted his appellate rights, the trial court denied the petition as untimely, and imposed the mandatory minimum sentence for aggravated assault committed with a firearm of five-to-ten years of imprisonment. This appeal timely followed.

Appellant makes numerous allegations challenging his trial counsel’s effectiveness. The trial court did not hold a hearing on these claims. In such cases, the appellate court is to evaluate the ineffectiveness claims and decide whether they have merit; if they have no merit, an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

With this in mind we turn to the standards which govern our review of appellant’s claims. The law presumes that counsel is effective and places upon appellant the burden of establishing his counsel’s ineffectiveness. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). We remain guided by the standards first articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

(C)ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record ... (T)he balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Id., 427 Pa. at 604-605, 235 A.2d at 352-353. See Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). Moreover, it is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Finally, even where appellant establishes his counsel’s shortcomings, he must show that counsel’s ineffectiveness so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 329, 498 A.2d 423, 426 (1985) (en banc). This Court has stated that appellant must show that “the alternatives not chosen (by counsel) offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.” Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984) (emphasis added). A review of the record applying the foregoing analysis compels us to reject each of appellant’s ineffectiveness claims.

Appellant’s allegations focus on trial counsel’s alleged failure to present adequately his defense of self-defense. To avail oneself of deadly force for self-protection, three factors must be found to exist. First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat. 18 Pa.Cons.Stat.Ann.Sec. 505 (Purdon 1983); Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980). Appellant argues that his trial counsel could have established these three elements of justifiable self-defense.

In connection with the third element, appellant contends that his trial counsel was ineffective for failing to show that appellant fired from his doorway and therefore had no duty to retreat. Specifically, asserts appellant, one has no duty to retreat in his dwelling and a doorway is part of a dwelling; therefore, trial counsel should have demonstrated that appellant shot from his doorway. We find this allegation meritless. While we agree that one has no duty to retreat if standing in his doorway, see Commonwealth v. Jackson, 467 Pa. 183, 192, 355 A.2d 572, 576 (1976), the testimony placed appellant outside his home at the time Quiles was shot. Appellant himself testified that he was standing on the steps located outside his front door. Both appellant’s wife and Pablo Melendez, defense witnesses, placed appellant on the second step from the top of this stairway. The record is clear that Quiles was also outside, somewhere in front of appellant’s house, when he was shot. In light of this evidence, trial counsel cannot be faulted for failing to show that appellant fired from his doorway.

Appellant also alleges counsel’s ineffectiveness for failing to request the court to instruct the jury that the doorway is part of a dwelling. This claim is meritless as well. The record indicates that, consistent with the testimony at trial, appellant’s counsel did request an instruction explaining that the doorstep is considered part of a house. The trial judge, however, refused counsel’s request.

Appellant makes several ineffectiveness claims relating to the tactics utilized to establish the first element, that appellant reasonably believed he was in danger prior to firing at Quiles. We must reject these claims, however, because we find that each of the alleged omissions was within the realm of sound trial tactics. See Commonwealth v. Mizell, 493 Pa. 161, 164, 425 A.2d 424, 426 (1981) (Trial counsel inherently have broad discretion to determine the course of defense tactics employed.).

First, appellant argues ineffectiveness because his trial counsel failed to display to the jury the weapon allegedly held by Quiles at the time Quiles was shot. Trial counsel should have introduced the weapon, appellant claims, to show the jury its lethal quality. The record indicates that, while trial counsel did not display the weapon, he did elicit testimony describing it. Defense witnesses called it a knife or a sword, or described it to be like a knife or a sword, indicating that it was long, narrow and pointy at the end. (N.T. pp. 97, 107, 110, 122, 144). Even on cross-examination of Quiles, trial counsel elicited that it was long and thin with two little points at the end. (N.T. p. 35). Significantly, although appellant believed it to be a knife or a sword, prosecution witnesses testified that the alleged weapon was in fact a wrench. (N.T. pp. 29, 41). As a result, showing it to the jury could have diminished the effect of testimony by defense witnesses referring to it as a knife or a sword. Accordingly, the record demonstrates that trial counsel had a reasonable basis designed to effectuate appellant’s interests when he declined to introduce the alleged weapon into evidence.

Appellant alleges counsel’s ineffectiveness in failing to ask two police officers who arrived on the scene after the shooting if they observed a weapon in Quiles’ hand. At trial, defense witnesses asserted that Quiles either held or was retrieving the alleged weapon at the time he was shot. (N.T. pp. 95, 108, 124). Prosecution witnesses stated, to the contrary, that the wrench was taken from Quiles’ hand before appellant opened his door and emerged with a gun. (N.T. pp. 36, 41). If the prosecution’s version was correct, Quiles could not have threatened appellant with any weapon immediately before appellant fired, thereby disproving appellant’s self-defense claim. Therefore, while testimony that Quiles held a weapon after being shot would have helped appellant’s case, testimony that no weapon was observed, either in Quiles’ hand or close to his body, would have seriously harmed it. Again, the record demonstrates a reasonable basis for counsel’s strategy.

Appellant asserts counsel’s ineffectiveness for neglecting to show the extent to which Quiles threatened appellant either in his opening or closing statements or during cross-examination of the prosecution’s witnesses. We observe first that appellant’s trial counsel elicited testimony, during direct examination of defense witnesses, which presented the nature, extent and timing of the alleged threats by Quiles. We note next that trial counsel sufficiently described and discussed the purported threats in both his opening and closing statements. Finally, while the record indicates that trial counsel did not cross-examine prosecution witnesses about Quiles’ alleged threats, we find he had a reasonable basis for declining to do so. See Commonwealth v. Ramsey, 259 Pa.Super. 240, 251, 393 A.2d 806, 812 (1978) (The scope and vigor of cross-examination is a matter which falls within the ambit of sound trial strategy to be exercised by trial counsel alone.). The prosecution witnesses, Quiles and his wife, denied that Quiles ever threatened appellant. Thus, counsel could reasonably have anticipated that, if cross-examined about any alleged threats, Quiles and his wife would have repeated for the jury their version of the events. For these reasons, trial counsel was not ineffective in demonstrating the extent to which Quiles threatened appellant prior to the shooting.

Appellant makes several miscellaneous allegations challenging counsel’s acts or omissions at trial. Appellant argues that trial counsel failed to establish adequately on direct examination of appellant the extent to which appellant was an upstanding, law-abiding citizen. The record reveals, however, that appellant’s trial counsel questioned appellant about his background, including his past employment, the length of his marriage and his education. (N.T. p. 120). Most importantly, trial counsel asked appellant whether he had “ever had any run-ins with the law before this,” to which appellant responded, “No. This is the first time.” (N.T. p. 120). Consequently, we find this allegation to be unsupported by the record and therefore meritless.

Appellant alleges ineffectiveness for failure to call other witnesses to the incident to testify at trial. In seeking to establish ineffectiveness on this basis, “appellant must show (1) the identity of the witnesses, (2) that counsel knew of the existence of the witnesses, (3) the material evidence that the witnesses would have provided, and (4) the manner in which the witnesses would have been helpful to his cause.” Commonwealth v. Polk, 347 Pa.Super. 265, 273, 500 A.2d 825, 829 (1985). Because appellant has failed to allege any of these elements, this claim is patently frivolous.

Finally, appellant claims trial counsel should have requested the court to order the Commonwealth to reveal the statements of its witnesses, made prior to trial, so that the defense could better prepare for cross-examination. Appellant fails to indicate, however, what in any prior statement would have been helpful to appellant. “Mere allegations of ineffectiveness standing alone on direct appeal will not warrant an evidentiary hearing if this Court is not presented with facts sufficient to support the claim.” Commonwealth v. Cottman, 327 Pa.Super. 453, 460, 476 A.2d 40, 43 (1984). Because this claim is little more than a bare allegation, we reject it as well.

Appellant makes additional allegations in his brief. We have reviewed each of these arguments thoroughly and are convinced that they lack merit.

Judgment of sentence affirmed.

      . At the same time the trial court suspended sentence on the conviction for possession of an instrument of crime.

        . We recently addressed this factor in Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (en banc), holding that the trial judge did not err in instructing the jury that, in order to justify the use of deadly force, the evidence must establish that the actor was free from fault in provoking or continuing the difficulty which resulted in the injury.

      . We note that trial counsel did attempt, at several points, to emphasize that appellant shot from in front of his doorway by eliciting testimony that appellant was standing at, and never left, his doorstep. (N.T. pp. 50, 96, 108, 116).

      . The trial judge did instruct the jury that there is a duty to retreat except in one’s own home, and that the sidewalk is not part of one’s home. (N.T. p. 181).

      . After the trial judge completed his charge to the jury, appellant's trial counsel stated:
      Your Honor, all the evidence points to the fact that, you know, what happened occurred on his doorstep. You mentioned that this occurred on the sidewalk. Would that be a point to clarify, you know, explaining, because your doorstep is considered part of your house.
      (N.T. p. 185).

      . Whether the trial judge properly refused to allow such an instruction is not at issue here. Therefore, we need not decide whether one standing on steps outside his doorway has a duty to retreat prior to shooting in self-defense.

      . Even if an officer had testified that he observed a weapon in Quiles’ hand after the shooting, appellant’s trial counsel still would have been required to establish that Quiles threatened appellant with it immediately before appellant fired.


text:
    516 A.2d 758
    COMMONWEALTH of Pennsylvania v. Arthur SATZBERG, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1986.
    Filed Oct. 23, 1986.

      Dennis H. Eisman, Philadelphia, for appellant.
    James C. Dalton, Assistant District Attorney, Doylestown, for Com., appellee.
    Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

Appellant, Arthur Satzberg, was convicted of theft by unlawful taking, receiving stolen property, and related offenses by a jury in the Court of Common Pleas of Bucks County. Post-verdict motions were filed and denied. Appellant was sentenced to two years’ probation and restitution, and now appeals the judgment of sentence to this Court.

Three separate issues are raised in this appeal: first, whether the trial judge, the Honorable Kenneth G. Biehn, should have ordered a hearing before another judge when appellant filed a recusal motion alleging prejudicial conduct by Judge Biehn; second, whether the trial court improperly denied appellant’s request for a new trial based on after-discovered evidence; and third, whether the prosecutor’s references to appellant’s character and drug use should have resulted in a mistrial. Though affirming the trial court’s holding on the first two issues, we disagree with the trial court’s holding that the prosecutor’s remarks concerning appellant’s drug use did not cause prejudice sufficient to grant a mistrial. We therefore reverse and remand this case for a new trial.

Before addressing the legal issues raised by the case, a brief recital of the facts is necessary. In late 1980, appellant and Joel Katz, his cousin and business partner, established a scrap metal business, the International Metals and Refining Corporation. Each partner contributed assets to the new corporation, though the bulk of the assets and equipment came from Katz’s former scrap metal business. Industrial Valley Bank of Philadelphia financed the fledgling corporation by providing loans totaling approximately $250,000.

During the next several years, the corporation did not prosper. According to witness testimony, the corporation during its first two years made only enough to pay its creditors. Indeed, early in 1983 the appellant and Katz discussed the possibility of liquidating the corporation to pay off the bank loans. In March 1983, while Katz was vacationing in Florida, the appellant removed all of the corporate assets, equipment, and records from the premises of the business; and he has never revealed the location of these items. He also subsequently collected approximately $25,000 in corporate accounts receivable by representing himself as the corporation’s agent. The funds, however, were not deposited in the corporation’s accounts; rather, the money was deposited in appellant’s bank account

Katz thereafter filed charges against the appellant for theft of property and receiving stolen goods, claiming that appellant was not authorized to act as he did. Though admitting taking the corporate assets and equipment, appellant maintained at his jury trial that he acted only to protect his corporate interests from the effects of Katz’s bookmaking activities. In his testimony, appellant stated that h@ believed Katz’s activities would result in their business’ destruction, and this belief motivated appellant’s actions to minimize his losses. The jury, however, was not persuaded and found appellant guilty of the crimes charged. Following denial of his post-trial motions, appellant filed this appeal.

The first issue appellant raises on appeal is whether the trial judge should have ordered a hearing before another judge when a recusal motion was filed alleging prejudicial conduct by the trial judge. For the reasons stated below, we hold that the trial judge was correct in refusing to transfer appellant’s recusal motion to another judge.

In two recent decisions, the Pennsylvania Supreme Court thoroughly discussed when a judge should or should not hear a recusal motion concerning himself. In Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 489 A.2d 1286 (1985), the Court held that when a party in a suit files a recusal motion raising questions as to the judge’s impartiality, the judge must transfer the motion to another judge if two conditions are met. First, the judge must be personally knowledgeable about the facts in dispute. Second, he must “permit himself to be a crucial witness in the proceedings.” Id., 507 Pa. at 196, 489 A.2d at 1286. The inability of a judge to impartially rule on objections to his testimony or objectively assess his testimony’s credibility is the rationale underlying this holding. Id., 507 Pa. at 201, 489 A.2d at 1289. The Pennsylvania Supreme Court further elaborated on the Municipal Publications holding in Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). In Reilly, the Court stated:

If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion ... If the judge wishes a full exposition of the question of unfairness, he may follow the unusual practice of Judge Parker and summon another judge to decide it, but he is not required to do so.

Id., 507 Pa. at 221, 489 A.2d at 1299.

Taken together, the two decisions delineate the proper role of a judge in considering a recusal motion alleging judicial prejudice. Absent an abuse of discretion, the judge may properly decide recusal motions concerning his impartiality if he believes he can adjudicate the case fairly and objectively. A trial judge is bound to excuse himself only when he has personal knowledge of the disputed facts and has decided to testify at the recusal hearing. Reilly, 507 Pa. at 221, 489 A.2d at 1299; Municipal Publications, 507 Pa. at 196, 489 A.2d at 1286. See also Reilly, 507 Pa. at 235, 489 A.2d at 1307 (Hutchinson, J., concurring).

In the instant case, appellant filed a post-verdict recusal motion alleging the judge spoke in a threatening manner to appellant during a settlement negotiation of a civil case arising from the same facts. The trial judge denied the recusal motion, refusing to transfer the motion to another judge for a hearing. Under the standard enunciated in Municipal Publications and Reilly, the trial judge acted within the bounds of his discretion. Though having personal knowledge of the disputed facts, he did not testify as a witness at a hearing presided over by him. He therefore was neither forced to rule on objections to his testimony nor evaluate his own testimony. Municipal Publications, 507 Pa. at 201, 489 A.2d at 1289.

Several other factors also support our finding that the trial judge properly denied the recusal motion. First, appellant was tried by a jury, which exercised the fact-finding responsibility. The integrity of the fact-finding process, consequently, was protected by the jury verdict, especially since the alleged statements by the judge were made prior to the trial. See Reilly, 507 Pa. at 225-26, 489 A.2d at 1302. Second, a full review of the record reveals nothing occurred during the trial that would cast doubt on the trial judge’s impartiality or objectivity. Last, appellant’s counsel failed to make the recusal motion until after the jury verdict was rendered even though the incident mentioned in the motion occurred at a settlement conference prior to trial. In Reilly, the Pennsylvania Supreme Court stated, “Once the trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain following an unfavorable result.” Id., 507 Pa. at 222, 489 A.2d at 1300. In the present case, appellant’s counsel had ample opportunity to make a recusal motion prior to the jury verdict, but he waited until after the jury had found his client guilty. The trial judge, consequently, could have refused to even consider the motion.

The second issue in this appeal is whether appellant’s request for a new trial based on after-discovered evidence was improperly denied. We hold that the motion was properly denied since appellant’s new evidence does not meet the Pennsylvania standard for after-discovered evidence. The legal standard for granting a new trial is enunciated in Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). In Valderrama, the Pennsylvania Supreme Court stated:

After-discovered evidence is a basis for a new trial if it: (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Id., 479 Pa. at 505, 388 A.2d at 1045.

In the present case, appellant asserts new evidence was received regarding the bookmaking activities of Joel Katz, the state’s primary witness and appellant’s former business partner. Appellant states in his brief that the new evidence would have two important effects: first, Katz’s testimony would be impeached; second, appellant’s taking of the corporate property would be seen as necessary to protect his corporate interests.

The new evidence, however, does not come within the strict standards of Valderrama. At trial, appellant did present evidence about Katz’s bookmaking activities to justify appellant’s actions. Appellant was aware of Katz’s activities, and further diligence by appellant could possibly have led to discovery of the evidence at or before the time of trial. Though appellant’s affidavits were executed nine months after trial, they concerned information that was available earlier. The new evidence would also only further corroborate appellant’s contention at trial that his actions were intended only to protect his corporate interests from Katz’s bookmaking activities. In addition, the new evidence is largely intended to impeach Katz’s prior testimony by showing inconsistencies between Katz’s testimony and the new evidence. Finally, the new evidence would probably not result in a different verdict since appellant’s previous evidence regarding Katz’s activities did not persuade the jury.

Appellant’s final issue in this appeal is whether the prosecutor’s references to appellant’s drug use unduly prejudiced him before the jury and should have resulted in a mistrial. We believe appellant was so prejudiced, and therefore believe that appellant must be given a new trial.

During the trial, the assistant district attorney prosecuting the case made two distinct references to appellant’s drug use. The first occurred during the prosecutor’s opening statement, and the second occurred during the testimony of the state’s primary witness. Either standing alone is sufficiently prejudicial to appellant to warrant granting him a new trial.

An opening statement is meant to inform the jury about the case, its background, and what each side intends to prove, but it is not evidence. Commonwealth v. Nelson, 311 Pa.Super. 1, 12, 456 A.2d 1383, 1389 (1983). During an opening statement, a district attorney’s remarks must “be fair deductions from the evidence the Commonwealth in good faith expects to develop, not merely assertions intended to inflame the passions of the jury.” Commonwealth v. Hughes, 477 Pa. 180, 187, 383 A.2d 882, 886 (1978). The district attorney need not conclusively establish all statements made during the opening remarks, but a good-faith reasonable basis must exist to believe that a particular fact will be established. Commonwealth v. Farquharson, 467 Pa. 50, 64, 354 A.2d 545, 552 (1976). A mistrial, however, will be appropriate if the prosecutor’s remarks have the unavoidable effect of rendering the jury incapable of an objective judgment. Commonwealth v. Yohn, 271 Pa.Super. 537, 541, 414 A.2d 383, 385-86 (1979).

In the present case, the assistant district attorney during his opening remarks referred to appellant as a “bum,” and said appellant “did nothing for two and a half years except to do drugs.” See N.T. at p. 8. Defense counsel objected and moved for a mistrial. The trial judge sustained defense counsel’s objection to the word “bum,” and cautioned the jury to disregard the statement in their deliberations. The judge did allow the reference to appellant’s drug activity based on the assistant district attorney’s representation that drug use would be established by the evidence as a motive for appellant’s actions. The prosecution, however, did not establish appellant’s drug use as a motive, and the judge in his closing charge cautioned the jury to ignore any statements or testimony about appellant’s drug use.

The prosecutor’s statements about appellant’s drug habits effectively prejudiced the jury against appellant, especially with the present media and political focus on the dangers inherent in drug use. During the entire trial, the jury heard the evidence with the knowledge that the prosecution believed appellant to be a heavy drug user. Furthermore, the assistant district attorney’s description of appellant as a “bum” interjected into the case his personal views about appellant. During a trial, a prosecutor’s personal opinions about a defendant are inappropriate since such statements are fundamentally inconsistent with a prosecutor’s role as an administrator of justice. Accord Commonwealth v. Evans, 479 Pa. 100, 103, 387 A.2d 854, 855 (1978).

In a criminal trial, the prosecution may not address or introduce other criminal acts of the defendant unless the evidence is substantially relevant for a purpose other than demonstrating the accused’s criminal character, such as the motive for the crime charged. Commonwealth v. Martin, 479 Pa. 63, 68, 387 A.2d 835, 838 (1978). In the present case, the prosecution introduced testimony concerning appellant’s drug use to establish a motive for his actions. The trial judge, however, ruled that insufficient evidence was introduced to establish appellant’s drug use as a motive for his actions, and in his closing charge the judge cautioned the jury to disregard any references to appellant’s drug use.

The jury, therefore, was exposed to improper testimony about appellant’s illegal drug activity. But jury exposure to improper evidence about unrelated criminal activity need not necessarily result in a mistrial. An analysis of all the circumstances surrounding a case may demonstrate that any potential prejudice could be cured by cautionary instructions from the judge. Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981). Two considerations are particularly pertinent. First, what was the nature of the reference? Second, was the testimony intentionally elicited by the assistant district attorney? Id., 496 Pa. at 526-27, 437 A.2d at 1165. See also Commonwealth v. Bowermaster, 297 Pa.Super. 444, 451, 444 A.2d 115, 118 (1982).

In the present case, an analysis of the prosecution testimony in light of the above factors demonstrates the prejudice to the appellant was simply too great to be negated by a curative instruction. In considering the charges against appellant, the jurors were probably greatly influenced by the testimony concerning appellant’s lifestyle, especially when the nation is presently focused on eradicating the drug problem. Believing the jury could ignore the illegal evidence because of the judge’s instructions is not realistic. The judge’s instruction was given in his closing charge, five days after the jurors initially heard the testimony. See Commonwealth v. Ewell, 318 Pa.Super. 397, 402, 465 A.2d 13, 15 (1983). In addition, the prosecution witness’s statements were deliberately elicited by the assistant district attorney’s questions to establish appellant’s motive. The prosecutor failed to establish appellant’s motive, but he was successful in having the jurors hear the damaging, improper testimony.

Judgment reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . In his brief, appellant states:
      The trial judge, according to the motion to recuse, threatened appellant with seven years in a state prison if he did not resolve this matter, and when the matter was not settled, reiterated this threat.
      Appellant's brief at p. 9.

      . Appellant sought to introduce affidavits of law enforcement officials concerning the extent of Mr. Katz's bookmaking activities during 1982 and 1983. He also sought to present affidavits of attorneys regarding the extent of Mr. Katz’s knowledge of police wiretaps on his phones.

      . Twice during the questioning of Mr. Katz, the Commonwealth’s primary witness, the assistant district attorney (A.D.A.) asked questions about appellant’s drug use. In the first instance, the following question was asked:
      Q. Did you have discussions with the defendant about his life while in Scottsdale, Arizona?
      A. Yes, quite often. He just was semi-retired, not doing anything. Just living the life and getting high everyday smoking grass and really not doing anything.
      N.T. at p. 29.
      Later in this direct examination, a second exchange about appellant’s drug use occurred. The A.D.A. asked whether the witness had ever seen appellant use controlled substances, and the witness said that during the prior two years he observed appellant use both cocaine and marijuana. In response to a further question by the A.D.A., the witness stated that he overheard appellant’s discussion with a third party about establishing a drug manufacturing operation. See N.T. pp. 59-60.


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    516 A.2d 763
    JOYCE & ASSOCIATES, Appellee, v. Anthony J. PIVIROTTO and Robert Woods, d/b/a Pivirotto and Woods, a partnership, Appellants.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed Oct. 22, 1986.

      Stephen Israel, Pittsburgh, for appellants.
    John H. Smith, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

This is an appeal from an order imposing sanctions because of defendants’ failure to comply with a discovery order entered by the trial court. Because the sanction order is interlocutory, we quash the appeal.

Joyce & Associates commenced an action to recover the sum of $18,905.00 which was allegedly owed by Anthony J. Pivirotto and Robert Woods, d/b/a Pivirotto and Woods, for accounting services. The named defendants thereafter filed an answer which contained new matter and also a counterclaim. Joyce & Associates then served upon the defendants a set of interrogatories and a request for the production of certain documents. Pivirotto and Woods failed to respond. Upon motion thereafter filed by Joyce & Associates, the trial court entered an order directing Pivirotto and Woods to file answers to interrogatories no later than April 15, 1985 and also to respond to the motion for the production of documents. The defendants’ default continued. Therefore, on April 26, 1985, the trial court imposed sanctions upon Pivirotto and Woods which precluded them from offering at trial any documents or testimony which, in violation of the court’s order, they had failed or refused to furnish during the discovery conducted by the plaintiff.

The Supreme Court, in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978) admonished that “whenever possible, [appellate] review must await the determination of a suit notwithstanding any resulting inconvenience to a party.” Id., 483 Pa. at 75, 394 A.2d at 546. In acknowledgement of this admonition and in reliance thereon, the Superior Court announced, in McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985), that “[a]s a general rule, this Court will not provide interim supervision of discovery proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judgment in the main action.” Id., 342 Pa.Superior Ct. at 410, 493 A.2d at 87.

There are no unusual circumstances recommending interim review in this case. The issues of liability and the amount of damages sustained remain open and unresolved. Pivirotto and Woods have not been prevented from defending the claim made against them by Joyce & Associates. Similarly, they have not been prevented from proving their counterclaim. The trial court’s sanction order does no more than to restrict the evidence which they may offer at trial. Such an order is interlocutory; an appeal therefrom will not lie.

Appeal quashed.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

While they join the decision of my colleagues in quashing the appeal in this case, I would also point out that an additional ground for the quash could be found in our court’s decision in Elderkin v. Sedney, 354 Pa.Super. 253, 511 A.2d 858 (1986).


author: KELLY, Judge:

text:
    516 A.2d 765
    CENTURY INN, INC., a Pennsylvania corporation, Appellant, v. CENTURY INN REALTY, INC., a Pennsylvania corporation; Joan Bigelow, Nancy Scheirer and Robert Scheirer, Appellees.
    Superior Court of Pennsylvania.
    Argued May 22, 1986.
    Filed Oct. 20, 1986.

      J. Shane Creamer, Philadelphia, for appellant.
    Ira S. Lefton, Pittsburgh, for appellees.
    Before BROSKY, KELLY and ROBERTS, JJ.
   KELLY, Judge:

This appeal arises from a dispute between the appellant, Century Inn, Inc. (“Century Inn”), and appellees, Century Inn Realty, Inc., Joan Bigelow, Nancy Scheirer, and Robert Scheirer (“Century Realty”). On February 7, 1978, Century Inn brought an action in equity seeking, inter alia, to enjoin Century Realty from interfering with the operation of the restaurant known as Century Inn. The case was called for trial on July 10, 1979. On that date, the parties were able to negotiate a settlement agreement. The terms of the somewhat complex agreement, which involved the conveyance of property interests and the issuance of a mortgage, were placed upon the record in open court. In the months and years that followed, the parties attempted unsuccessfully, with the assistance of the court, to draft the terms of the documents necessary for carrying out the agreement which had been reached. Finally, when almost seven years had elapsed from the date of the stipulation, the court directed the parties to prepare a set of documents which would be acceptable to each of them. This was done, and after reviewing the documents, the court below prepared its own documents, “attempting to retain as much as possible the language of the respective parties....” The court then made two sets of changes to the documents, based upon the comments and exceptions of the parties, and prepared a final draft of the documents. On August 20, 1985, the court ordered the parties to appear on September 27, 1985 for the purpose of executing the documents. Century Inn appealed this order. Because we conclude that the court below erred in ordering Century Inn to execute documents which varied from the terms of the earlier settlement agreement, we vacate the order of the court below and remand for further proceedings.

In order to fully understand the issue which is raised in this appeal, it is necessary to review the tangled facts underlying the parties’ dispute. As determined by the court below, the three real parties in interest in this sordid family disagreement are Gordon Harrington, Joan Bigelow and Nancy Scheirer. Gordon, Bigelow and Scheirer are the three children of Mary Harrington. Century Inn was incorporated by Mary Harrington in 1970. Mary Harrington owned certain real property, which she began leasing to Century Inn in April, 1970. Century Inn operated a restaurant on the premises. In 1976, Mary Harrington formed a second corporation, Century Realty. Mary Harrington was the sole shareholder, sole director, and secretary-treasurer of Realty; she elected her son, Gordon Harrington, as president.

Mrs. Harrington transferred the real estate which she owned and which had been leased to Century Inn to Realty. Realty ratified the lease, so that the property continued to be leased to Century Inn for its restaurant business. In December 1976, Mrs. Harrington transferred 39,000 shares of the 100,000 shares of Realty to her children in equal parts of 13,000 each; she retained 61,000 shares.

Mrs. Harrington died in June, 1977. At the time of her death, she also held the majority of the shares of Century Inn stock; each of the three children held 2,000 of the shares, with Mary Harrington holding 9,000 shares. The situation which arose with the death of Mrs. Harrington ultimately led to the litigation now before us. The three children, Gordon Harrington, Bigelow, and Scheirer, were the co-executors of Mrs. Harrington’s estate. According to the terms of Mrs. Harrington’s will, Gordon Harrington received a life estate in Mrs. Harrington’s 9,000 shares of Century Inn stock. A dispute arose as to whether Scheirer and Bigelow, as majority trustees, or Gordon Harrington as tenant of the life estate, could vote the shares of Century Inn stock which were formerly held by Mrs. Harrington.

In December, 1977, the orphan’s court division of the Washington County Court of Common Pleas awarded Gordon Harrington an advance distribution of the 9,000 shares. This effectively resulted in a redistribution of the previously equally distributed voting powers within Century Inn. Gordon Harrington now could vote a total of 11,000 shares, while his two siblings together held voting power over 4,000 shares.

Scheirer and Bigelow called a special meeting of the other corporation, Century Realty, in January, 1978. As stated previously, the three held equal shares in Realty. At the meeting, Bigelow and Scheirer moved that Century Inn be removed from the leased premises, and that Realty take over the restaurant facility. Harrington voted against this move.

In February 1978, Harrington, claiming that he had been physically barred from the premises of the leasehold, brought a suit in equity on behalf of Century Inn. Century Inn sought to enjoin Realty from interfering with the operation of the business.

As previously stated, the parties after extensive negotiation reached a settlement on July 10, 1979. The terms of the agreement were placed upon the record by the judge in open court. The stipulation provided for the sale of the interest of Bigelow and Scheirer in both corporations to their brother, Harrington. The practical effect of this transaction would be to pass control to Harrington of both the real estate upon which the restaurant is located and the management of the restaurant itself. Harrington was to pay the sum of $300,000 to Bigelow and Scheirer for their interest; $260,000 of the $300,000 was to be secured by a first mortgage of the property owned by Realty, “to be amortized over twenty years as a level payment direct reduction mortgage at an interest rate of seven percent.” (Transcript of Stipulation, p. 2). The payment of the $260,-000 by Harrington was to be secured by the execution of a judgment note. The remaining sum of $40,000 was to be paid to Bigelow and Scheirer in accordance with the stipulation.

Under the terms of the stipulation, Bigelow and Scheirer were to surrender possession of the restaurant property by midnight of July 15, 1979. After extensive negotiations, the parties indicated to the court that they could not reach an amicable agreement regarding the language of the documents necessary for carrying out the agreement. The court on September 11, 1979 directed that Gordon Harrington assume immediate possession and control of the operation of the restaurant. On November 13, 1980, the court directed Harrington to deposit the current sum of all the payments agreed upon to the prothonotary of Washington County, and to each month thereafter deposit the contemplated mortgage payment. In accordance with these orders, Harrington to date continues to occupy the premises and operate the restaurant; the agreed upon mortgage payments have been timely paid, and are held in an escrow account for the benefit of Bigelow and Scheirer.

The court diligently continued its efforts to work with the parties in reaching an agreement regarding the language to be contained within the mortgage and the promissory note. Finally, the court draft its own proposed documents and ordered that the parties appear for the purpose of executing those documents.

The enforceability of settlement agreements is determined according to principles of contract law. If all of the material terms of the bargain are agreed upon, our courts will enforce the settlement. See Kazanjian v. New England Petroleum Corporation, 332 Pa.Super. 1, 480 A.2d 1153 (1984); Zager v. Gubernick, 205 Pa.Super. 168, 208 A.2d 45 (1965). As this Court stated in Kazanjian, supra:

Of course, preliminary negotiations do not constitute a contract. However, if the parties orally agree to all the terms of a contract between them and mutually expect the imminent drafting of a written contract reflecting their previous understanding, the oral contract may be enforceable. Skrocki v. Caltabiano, 505 F.Supp. 916 (1981) (applying Pennsylvania law); Ketchum v. Conneaut Lake Company, 309 Pa. 224, 163 A. 534 (1933).

332 Pa.Superior Ct. at 7, 480 A.2d at 1157. In Kazanjian, the court held that, since the record revealed that the parties had orally agreed to “each and every term that was later formalized by the writing,” the oral agreement was binding and could be enforced. 332 Pa.Superior Ct. at 12, 480 A.2d at 1159.

In the case at bar, the settlement which was placed upon the record in open court contains every term necessary to consummate the transfer. Joan Bigelow and Nancy Scheirer agreed to “sell all their right, title and interest in the property”; they waived all rights to distribution of any shares of the property and surrendered their interest as remaindermen. The financial terms were stated with particularity: the purchase price for the property was set at $300,000; $260,000 of this amount was to be “secured by first mortgage to be amortized over twenty years as a level payment direct reduction mortgage at an interest rate of seven percent,” with the balance of $40,000 to be paid from the assets of Century Realty. The detailed settlement contains all material terms necessary for carrying out the bargain. The settlement is therefore enforceable by either party.

Neither the appellant nor the appellees challenge the terms of the agreement reached between the parties. Instead, appellant claims on appeal that the lower court abused its discretion in ordering the parties to sign the documents which were drawn up by the court. We agree.

In resolving the issue presented in the instant case, we are guided by the recent Superior Court decision in Johnston v. Johnston, 346 Pa.Super. 427, 499 A.2d 1074 (1985). The factual scenario presented in Johnston bears close similarity to that which exists in the case at bar. The parties in Johnston reached a settlement during trial which was recited in open court. After counsel for plaintiffs reduced the agreement to writing, defendants refused to sign it. The trial court, after a hearing on plaintiffs’ petition for contempt, ordered that defendants execute the agreement within fifteen days or suffer a penalty of contempt. Defendants appealed.

On appeal, this Court first rejected defendants’ contention that the parties did not intend to be bound by the agreement, and that it was therefore unenforceable. The Court then stated:

Appellants are correct, however, when they assert that the written agreement presented to them for their signatures contained provisions that were at variance with the agreement reached in open court. Indeed, appellees do not appear to contest that differences exist. They argue, however, that the essence of the agreement was that appellants would hold the farm in trust and that this was not varied by the drafted agreement. The only differences, they suggest, are immaterial. These differences, they argue, are trivial and unreasonable. We disagree. The trial court could enforce under penalty of contempt only the agreement reached in open court; it could, not properly require appellants to sign a different agreement.

346 Pa.Superior Ct. at 433, 499 A.2d at 1077-78 (emphasis added) (footnotes omitted). The Court continued:

We express no opinion regarding the alleged contumaciousness of appellants’ conduct or the remedy available to appellees if appellants continue their refusal to conclude the settlement to which they agreed in open court. We hold only that the trial court cannot compel appellants, as a part of their settlement, to sign a written contract which is not in all respects consistent with the agreement reached during trial and placed upon the record by the parties and their attorneys.

346 Pa.Superior Ct. at 433, 499 A.2d at 1078 (emphasis added).

Appellee, Century Realty, concedes that the documents prepared by the court contain additional clauses which were not contained in the settlement. Realty argues, however, that the additional terms “do not vary from or contradict the material terms of the stipulation and are merely customary and necessary terms normally included in mortgages, security agreements, judgment notes and the other documents required to implement the closing of the transfer set forth in the stipulation.” (Appellees’ Brief at 10). Century Realty further attempts to distinguish Johnston on the basis that the stipulation at issue herein included a proviso that the court below would retain jurisdiction “and oversee the execution of the necessary documents to effectuate the intent of this stipulation.” (Transcript of Stipulation, p. 4). Thus, Century Realty argues, the parties stipulated that the lower court would draft the necessary documents.

We reject appellees’ argument that the court’s authority to oversee the execution of the necessary documents included the right to draft the documents which are at issue. We further find that, as in Johnston, supra, the language in the final documents differs substantially from the agreement which was reached by the parties. The documents prepared by the court contain numerous provisions which were not contained in the stipulation, including penalties for late payment, assignment of the risk of loss, payment of counsel fees, and intricacies regarding the maintenance and restoration of the real property. More importantly, several of the clauses contained within the documents are ambiguous or unreasonable. For instance, Section 6 of the mortgage provides in part that if:

(b) [Century Realty] shall default in the performance or observance of any covenant, agreement, condition, provision, and such default shall not be remedied within a period of thirty (30) days after notice thereof ...
Then “[Bigelow or Scheirer’s agent, or the holder of the promissory note] shall have the right ... in its sole discretion and without notice to [Century Realty] ... to declare the Debt to be ... immediately due and payable without presentment, demand, protest, or notice of any kind ... [Century Realty] hereby forever waives and releases all errors in such foreclosure proceeding or action.”

(Final Mortgage, p. 10-11) (emphasis added).

This provision, entitling seller to declare the debt to be immediately due, without notice upon default of any type, regardless of whether the default is material in nature, certainly differs substantially from the documents envisioned by the stipulation.

We recognize the justifiable frustration of a trial court which attempts to oversee the execution of settlement documents, where the parties appear unable to agree upon the wording of those documents, despite literally years of negotiation. The court in such a situation may, of course, upon petition of one party, utilize the powers of contempt against a party who unreasonably attempts to thwart the fulfillment of the settlement agreement, if the agreement has been incorporated into a court order. The court may not, however, order the parties to execute the court’s own agreement, or face a contempt citation, where that agreement differs from the terms of the settlement.

The court below erred in ordering the parties to execute documents which differed from the terms of their stipulation. Accordingly, the order is vacated and the case is remanded. Jurisdiction is relinquished.

      . Actually, the case was heard in April, 1979; however, the trial judge passed away before an adjudication issued, and the case was subsequently relisted.

      . Century Realty filed a motion to quash the appeal, alleging that the August 20, 1985 order was not a final and appealable decree. The motion to quash was subsequently withdrawn.

      . Century Inn, Inc. was incorporated by Mary Harrington and her husband; however, for purposes of simplifying the facts, we refer only to Mary Harrington.

      . The three elected themselves directors of Century Inn at a shareholders meeting in September, 1977.

      . In particular, the clauses granting seller veto power over restoration of the premises and the escrow provisions are not common to commercial mortgages.

      . In the instant case, implicit in the settlement agreement is the fact that both parties anticipated the future execution of a mortgage; if one of the parties had then refused to sign a standard form mortgage of the type typically used in Washington County, the opposing party could have petitioned for contempt, claiming the refusal to be an unreasonable attempt to circumvent the settlement agreement.