author: WIEAND, Judge:

text:
    463 A.2d 1113
    COMMONWEALTH of Pennsylvania v. Keith O. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 1, 1983.
    Filed July 22, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Michael A. DeFino, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before CERCONE, P.J., and CAVANAUGH and WIE-AND, JJ.
   WIEAND, Judge:

On appeal from an order denying P.C.H.A. relief, Keith 0. Smith asks us to review issues which, on direct appeal to the Supreme Court, were not decided, apparently because the issues had not been preserved for appellate review. Appellant makes this request by asking us to hold that contentions regarding the alleged involuntariness of his confession possessed arguable merit and that prior counsel, therefore, must have been ineffective for failing to preserve them for determination on direct appeal.

Smith had been tried and convicted of robbery, conspiracy and murder of the second degree for his part in the holdup of a Philadelphia flower shop and the shooting of the proprietor. On direct appeal to the Supreme Court the conviction was upheld and the judgment of sentence was affirmed per curiam. See: Commonwealth v. Smith, 468 Pa. 375, 362 A.2d 990 (1976). A dissenting opinion, authored by Justice (now Chief Justice) Roberts, suggested that the majority had avoided reaching the merits of appellant’s contention that his confession had been coerced by an inadequate understanding of his rights with respect to a polygraph examination because the issue had not been preserved in written post verdict motions. After his direct appeal had been denied, appellant filed a pro se P.C.H.A. petition, alleging that prior counsel had been ineffective for failing to preserve the issue deemed waived by the Supreme Court. Counsel was appointed to file an amended petition, which contained the additional contention that prior counsel had been ineffective in failing to preserve for review the assertion that appellant’s confession was involuntary because of undue pre-arraignment delay, in violation of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). At a hearing on the amended petition, the representative of the Commonwealth stipulated that the issues which appellant wished to raise in post conviction proceedings had not been preserved by prior counsel in post verdict motions. However, there was otherwise no attempt to show that prior counsel had rendered constitutionally ineffective assistance. The P.C.H.A. court dismissed the petition, and Smith appealed.

After appellant had been arrested and had waived his Miranda rights, he was asked if he was willing to submit to a polygraph examination. Although warned at least twice of his right to remain silent and make no statement, he unhesitatingly agreed to take the examination and signed a written consent form. During a pre-polygraph interview, appellant confessed to his participation in the robbery but denied that he had shot the proprietor. No polygraph examination was thereafter conducted. During a pre-trial suppression hearing, in which appellant’s confession was found to be voluntary, appellant contended, as he now does on appeal from the denial of P.C.H.A. relief, that the threatened use of the polygraph was coercive and that, therefore, his confession was involuntary and should have been suppressed. He argues specifically that he should have been warned (1) that the taking of the polygraph test was not mandatory; (2) that the results of the test were not admissible as evidence in a court; and (3) that a favorable test result would not necessarily require the police to release him from custody. These instructions, he urges us to hold, must be given in addition to Miranda warnings whenever questioning of a suspect takes place in a polygraph situation.

The polygraph has been acknowledged by the courts of this Commonwealth to be a valuable tool in the investigative process. See: Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982); Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980); Commonwealth v. Blagman, 458 Pa. 431, 435-436, 326 A.2d 296, 298-299 (1974). Its use does not per se render a confession involuntary. Commonwealth v. Jones, 341 Pa. 541, 548, 19 A.2d 389, 393 (1941); Commonwealth v. Hippie, 333 Pa. 33, 39, 3 A.2d 353, 355-356 (1939). See: Thompson v. Cox, 352 F.2d 488 (10th Cir.1965); United States v. McDevitt, 328 F.2d 282 (6th Cir.1964). A confession is not involuntary merely becausé it was made in anticipation of, during, or following a polygraph examination. See: 89 ALR3d 236, and cases there gathered. In Pennsylvania, an inculpatory statement made during q pretest interview was held admissible in Commonwealth v. Cain, 471 Pa. 140, 146, 369 A.2d 1234 (1974) (Opinion of Eagen, J., in support of affirmance). Other decisions have impliedly found Miranda warnings adequate, for they have permitted evidentiary use of confessions when they have been made voluntarily in polygraph settings. See also: Commonwealth v. Hernandez, supra; Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978) (plurality opinion); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977); Commonwealth v. Cain, supra; Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Blagman, supra; Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971); Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972). In Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982), the defendant, a soldier accused of rape, gave an inculpatory statement to investigators after being confronted with the results of a polygraph test showing his answers to be untruthful. The Court of Appeals granted habeas corpus relief on grounds that appellant’s waiver of counsel had not been voluntary. The Supreme Court reversed. The defendant had been informed of his Miranda rights and had signed a written waiver thereof. This was sufficient to demonstrate a voluntary waiver. See also: Keiper v. Cupp, 509 F.2d 238 (9th Cir.1975); People v. Mason, 29 Ill.App.3d 121, 329 N.E.2d 794 (1975); Grey v. State, Ind., 404 N.E.2d 1348 (1980); State v. Bowden, 342 A.2d 281 (Me.1975); Lee v. State, 338 So.2d 395 (Miss.1976); State v. Clifton, 271 Or. 177, 531 P.2d 256 (1975); McAdoo v. State, 65 Wis.2d 596, 223 N.W.2d 521 (1974).

There are no Pennsylvania decisions which have held Miranda warnings inadequate to insure voluntariness of a confession given during a pre-polygraph interview. If a suspect freely agrees to submit to a polygraph examination, as did the appellant in the instant case, there would seem to be no reason for holding Miranda warnings inadequate. Not only do such warnings advise the suspect that he has a right to remain silent and answer no questions, but they also instruct him regarding his right to consult counsel. Where an accused voluntarily confesses despite such warnings, his confession will not be rendered more voluntary because a consent to take a polygraph examination was accompanied by warnings that the results of the test have no evidentiary value and that his immediate release will not depend thereon.

Moreover, if a later judicial decision were to impose a requirement for warnings such as appellant suggests, it would not follow that his counsel had been ineffective for failing to preserve and present such an argument in post trial motions. Counsel is presumed to be effective. Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981); Commonwealth v. Strickland, 306 Pa.Super. 516, 526, 452 A.2d 844, 849 (1982); Commonwealth v. Norris, 305 Pa.Super. 206, 209-10, 451 A.2d 494, 496 (1982). He will not be deemed ineffective because he fails to predict and/or argue all possible future developments in the law. See: Commonwealth v. Arthur, 488 Pa. 262, 268 n. 3, 412 A.2d 498, 501 n. 3 (1980), cert. denied, 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79 (1980); Commonwealth v. Triplett, 476 Pa. 88, 89, 381 A.2d 877, 881 (1977); Commonwealth v. McCloud, 312 Pa.Super. 29, 42, 458 A.2d 219, 225 (1983); Commonwealth v. Warren, 307 Pa.Super. 221, 224, 453 A.2d 5, 7 (1982); Commonwealth v. Brinton, 303 Pa.Super. 14, 18-19, 449 A.2d 54, 57-58 (1982). The law at the time of appellant’s trial and at the time of filing post trial motions did not require that, in order to be voluntary, a confession during a pre-polygraph examination be preceded by warnings in addition to those required by the Supreme Court in Miranda. Thus, counsel cannot be held ineffective for failing to preserve the absence of additional warnings in post trial motions.

Appellant’s contention that his confession was the product of pre-arraignment delay is wholly lacking in merit. The rule in Commonwealth v. Futch, supra, now embodied in Pa.R.Crim.P. 130(a), has resulted in a three-prong test for determining when delay will mandate exclusion of inculpatory evidence. “The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must be reasonably related to the delay.” Commonwealth v. Smith, supra 487 Pa. at 630, 410 A.2d at 789-790, quoting Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419, 420 (1974). The only time period relevant to this determination is the amount of time “the accused is in custody up until the incriminating evidence is obtained. It would be ludicrous to suggest that the time following the statement was related to its procurement.” Commonwealth v. Smith, supra 487 Pa. at 631, 410 A.2d at 790. See: Commonwealth v. Van Cliff, 483 Pa. 576, 587, 397 A.2d 1173, 1179 (1979), cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979); Commonwealth v. Goodwin, 460 Pa. 516, 527-528, 333 A.2d 892, 897 (1975); Commonwealth v. Futch, supra 447 Pa. at 394, 290 A.2d at 419. Furthermore, it is now settled that time devoted to a polygraph examination, when agreed to by the accused and administered promptly thereafter, will not be considered “unnecessary delay.” Commonwealth v. Hernandez, supra 498 Pa. at 415, 446 A.2d at 1273; Commonwealth v. Smith, 487 Pa. at 631, 410 A.2d at 790; Commonwealth v. Hitson, supra 482 Pa. at 407, 393 A.2d at 1171; Commonwealth v. Blagman, supra 458 Pa. at 436, 326 A.2d at 299.

Appellant was arrested at or about 7:30 p.m. on May 5, 1974. His pre-polygraph interview commenced at 9:20 p.m., after he had been processed and warned of his Miranda rights and had signed a consent to submit to a polygraph examination. He began to give a statement, was warned again of his rights to remain silent and to have counsel present, and confessed at or about 9:40 p.m., less than two and a half hours after his arrest. The confession was thereafter reduced to writing and signed by appellant at 11:00 p.m., three and a half hours after arrest. The suppression court’s finding that there had been no unreasonable delay, therefore, was fully sustained by the record, and a contrary contention in post verdict motions would have been frivolous. Counsel was not ineffective for failing to preserve this issue for appellate review.

Order affirmed.

      . The written consent provided as follows:
      I, Keith Smith, do hereby voluntarily and willingly, submit to a lie detector examination in order to show, if possible, the truth and honesty of my statements, and I hereby release the Philadelphia Police Department, and the examiner, ... from any and all claims resulting from, or arising out of this examination.

      . Appellant has not cited a decision from any jurisdiction which holds that the Constitution requires additional warnings where a confession is given in connection with a polygraph test. Instead, he relies on dicta appearing in United States v. Little Bear, 583 F.2d 411 (8th Cir.1978) and Hunter v. State, 590 P.2d 888, 901 (Alaska 1979). He also relies upon the dissenting opinion of Justice Roberts in Commonwealth v. Smith, supra.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Appellant was arrested in 1974, prior to the decision in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), where the Supreme Court first enunciated the six hour rule.


source: Caselaw Access Project

license: Public Domain

text:
    463 A.2d 1117
    COMMONWEALTH of Pennsylvania v. Robert E. RUFFIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1983.
    Filed July 22, 1983.

      Stanley P. Stern, Philadelphia, for appellant.
    Robert Ciaffa, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Robert Ruffin was tried by jury and found guilty of murder in the second degree, robbery, theft by unlawful taking, and criminal conspiracy. The charges arose from Ruffin’s participation in the robbery and shooting death of Willie Small in the latter’s home in Philadelphia. This direct appeal followed the denial of post-trial motions and the imposition of sentence. Appellant contends that the evidence was insufficient to sustain the verdicts. He also contends, in a related argument, that the verdict was against the weight of the evidence because it failed to reflect the evidence that appellant had withdrawn from the criminal activity prior to the shooting. These contentions lack merit. However, the imposition of multiple sentences was improper and requires correction.

In reviewing the sufficiency of the evidence, we are required to view the evidence, and all permissible inferences to be drawn therefrom, in the light most favorable to the Commonwealth, as verdict winner. The test is whether, taking as true the evidence most favorable to the Commonwealth, together with all reasonable inferences therefrom, the evidence is sufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983); Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983); Common wealth v. Bachert, 499 Pa. 398, 402, 453 A.2d 931, 933 (1982); Commonwealth v. Scarborough, 313 Pa.Super. 521, 525, 460 A.2d 310, 312 (1983); Commonwealth v. Darden, 311 Pa.Super. 170, 172, 457 A.2d 549, 550 (1983); Commonwealth v. Barnes, 310 Pa.Super. 480, 482-83, 456 A.2d 1037, 1038 (1983).

Orí the evening of January 27, 1981, at or about 6:00 p.m., appellant and a co-conspirator, Robert Young, broke into the'victim’s home through a rear door. They entered the living room, where Carl Hankins, the fourteen year old stepson of Willie Small, was watching his infant half-brother. Young went upstairs, leaving appellant in the living room. Shortly thereafter, Young returned to summon appellant, and the two went upstairs together. Then, Han-kins’ sister, Roslyn,- came running down the stairs and announced to Carl that two men were pointing a gun at their father. Hankins, went upstairs to the master bedroom, where he saw Young holding a gun pointed at his father’s chest while Young rummaged through his father’s belongings. Appellant, who was seated on the bed next to the victim, ordered Hankins to go downstairs. Upon his father’s request, Hankins complied.' He then ran across an alley behind the house to his uncle’s house from where his uncle called the police. While still in his uncle’s kitchen, Hankins heard three shots. He ran to a nearby corner, from where he observed Young and appellant run from the house and past him, each carrying a part of the stereo system which theretofore had been in the family’s living room. Hankins returned to his house and found his father unconscious and injured on the living room floor. Small died of multiple gunshot wounds to the head.

The totality of the. Commonwealth’s evidence was sufficient to establish that appellant had been part of a conspiracy to rob Small. In Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982), the Supreme Court stated:

“It is well established that a common understanding or agreement is the heart of every conspiracy. Commonwealth v. Waters, 463 Pa. 465, 471, 345 A.2d, 613, 616 (1975). As stated, however, in Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937), 'An explicit o.r formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.’ A conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co-conspirators' are competent as proof that a criminal confederation has in fact been formed. Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973). See also Commonwealth v. Mobley, 467 Pa. 460, 463, 359 A.2d 367, 368 (1976).”

Id., 499 Pa. at 395, 453 A.2d at 929-930. See also: Commonwealth v. Lamb, 309 Pa.Super. 415, 429, 455 A.2d 678, 685-686 (1983); Commonwealth v. Davenport, 307 Pa.Super. 102, 106-08, 452 A.2d 1058, 1060-1061 (1982); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 4-5, 449 A.2d 47, 49-50 (1982); Commonwealth v. Volk, 298 Pa.Super. 294, 300-301, 444 A.2d 1182, 1185 (1982). In the instant case, the evidence showed that Young and appellant had acted in concert when they broke into Small’s home and engaged in criminal activity. Not only had appellant been present, but he had instructed Hankins to go downstairs and had assisted in carrying away the stereo set after the shooting. See: Commonwealth v. Scarborough, supra.

Although there was no direct evidence that appellant had shot Willie Small, the evidence did establish that he had been an accomplice in the underlying robbery and theft. 18 Pa.C.S.A. § 306(c). Thus, he was vicariously liable for Young’s criminal acts in furtherance of the common design. Commonwealth v. Tate, 485 Pa. 180, 185, 401 A.2d 353, 355 (1979); Commonwealth v. Roux, 465 Pa. 482, 490, 350 A.2d 867, 871 (1976); Commonwealth v. Bryant, 461 Pa. 309, 312-313, 336 A.2d 300, 301 (1975); Commonwealth v. Sampson, 445 Pa. 558, 563, 285 A.2d 480, 483 (1971); Commonwealth v. Scarborough, supra, 313 Pa.Superior Ct. at 525, 460 A.2d at 312; Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 233 (1983); Commonwealth v. Darden, supra, 311 Pa.Superior Ct. at 172, 457 A.2d at 550; Commonwealth v. Davenport, supra, 307 Pa.Superior Ct. at 110, 452 A.2d at 1062; Commonwealth v. Plusquellic, supra 303 Pa.Super. at 5, 449 A.2d at 50; Commonwealth v. Cofer, 257 Pa.Super. 528, 531-532, 390 A.2d 1363, 1365 (1978). • See also: Commonwealth v. Wilson, 493 Pa. 332, 333, 426 A.2d 575, 576 (1981); Commonwealth v. Stafford, 451 Pa. 95, 97 n. 1, 301 A.2d 600, 602 n. 1 (1973).

Appellant testified that he had been Small’s friend and had made frequent purchases of marijuana from him. He contended that he had brought Young to Small at Young’s insistence to buy marijuana and had no idea that Young intended to rob Small. He also contended that he had tried to stop Young and had left before the shooting. The jury, however, could believe all, part or none of appellant’s explanation. Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1113 (1981); Commonwealth v. Newman, 310 Pa.Super. 493, 496, 456 A.2d 1044, 1045 (1983); Commonwealth v. Wilcox, 310 Pa.Super. 331, 335, 456 A.2d 637, 639 (1983). The credibility of the testimony was within the jury’s province; and it was for the jury to resolve conflicts arising because of contradictory testimony. See: Commonwealth v. Guest, supra, 500 Pa. at 396, 456 A.2d at 1347; Commonwealth v. Brockington, 500 Pa. 216, 219-20, 455 A.2d 627, 628 (1983); Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Battle, 289 Pa.Super. 369, 375, 433 A.2d 496, 498 (1981).

Appellant argues also that his testimony at trial established the defense of withdrawal and repudiation, and that the jury’s rejection of this defense resulted in a verdict against the weight of the evidence. Whether a verdict is contrary to the weight of the evidence is a matter committed to the sound discretion of the trial court. A new trial will be granted on this basis only where the record shows that the verdict was so contrary to the evidence as to shock one’s sense of justice and make a new trial imperative in the interests of obtaining justice. See: Commonwealth v. Laing, 310 Pa.Super. 105, 110, 456 A.2d 204, 207 (1983); Commonwealth v. Miller, 303 Pa.Super. 504, 507, 450 A.2d 40, 42 (1982); Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981).

In order to justify a finding of withdrawal or abandonment, which is set forth in 18 Pa.C.S.A. § 306(f)(3)(i) and (ii), the actor must have abandoned the scheme appreciably before the homicide occurs, and he must have communicated his intention to his co-conspirator so that he also had an opportunity to abandon the scheme. See: Commonwealth v. Roux, supra, 465 Pa. at 489-490, 350 A.2d at 871; Commonwealth v. Spriggs, 463 Pa. 375, 380-381, 344 A.2d 880, 883 (1975); Commonwealth v. Sampson, supra 445 Pa. at 563, 285 A.2d at 483. See also: 18 Pa.C.S.A. § 903(g). Accord: Commonwealth v. Lee, 484 Pa. 335, 347, 399 A.2d 104, 110 (1979) (opinion in support of affirmance). Here, appellant had been observed as he ran from Small’s house with Young and while both were carrying parts of the stereo equipment from Small’s living room. This evidence, if believed, contradicted appellant’s testimony. There was no evidence other than that given by appellant that he had withdrawn prior to the shooting. The jury, as we have already observed, was free to disbelieve appellant’s testimony and accept as true that of Carl Hankins. See: Commonwealth v. Carter, 481 Pa. 495, 498, 393 A.2d 13, 15 (1978).

Although appellant has not questioned the legality of the sentences on appeal, we are nevertheless required to correct an illegal sentence sua sponte. See: Commonwealth v. Fortune, 305 Pa.Super. 441, 444, 451 A.2d 729, 731 (1982); Commonwealth v. Gilliam, 302 Pa.Super. 50, 52 n. 1, 448 A.2d 89, 90 n. 1 (1982). The robbery and theft convictions in this case merged in the conviction of murder in the second degree for purposes of sentencing. Commonwealth v. Tarver, 493 Pa. 320, 327-328, 426 A.2d 569, 573 (1981); Commonwealth v. Fortune, supra, 305 Pa.Superior Ct. at 444, 451 A.2d at 731. See also: Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Commonwealth v. McDuffie, 499 Pa. 325, 453 A.2d 331 (1982); Commonwealth v. Colon, 496 Pa. 650, 437 A.2d 1228 (1981); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982); Commonwealth v. Sheffield, 306 Pa.Super. 274, 452 A.2d 550 (1982); Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982); Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980). However, it is unnecessary to remand for resentencing. Because the trial court imposed concurrent sentences, it is clear that the court deemed the offenses to have arisen from a single episode. The illegality, therefore, can be corrected by vacating the sentences imposed for robbery and theft, leaving undisturbed the sentences for murder in the second degree and conspiracy. See: Commonwealth v. Wilson, 312 Pa.Super. 77, 82, 458 A.2d 244, 246 (1983); Commonwealth v. Moore, supra 300 Pa.Super. at 494, 446 A.2d at 963. See also: Commonwealth v. Wilcox, supra, 310 Pa.Superior Ct. at 337-38, 456 A.2d at 640-641.

The judgments of sentence for murder in the second degree and conspiracy are affirmed. The separate sentences for theft and robbery are vacated.

      . 18 Pa.C.S.A. § 2502.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. § 903.

      . Appellant’s brief confuses the separate and distinct contentions that the jury’s verdict was not supported by sufficient evidence and that the verdict was against the weight of the evidence. With respect to the insufficiency claim, the appropriate remedy would be a discharge and dismissal of all charges. Where the verdict is against the weight of the evidence, the proper remedy is a new trial. See generally: Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983).

      . It appears that Carl and his sister Roslyn, age 11, were the biological children of Sylvia Hankins, who was living with Small and had borne him an infant child.

      . Appellant’s argument that the evidence fails to establish accomplice liability is without merit. As noted in Commonwealth v. Davenport, supra, ”[t]he intent required for criminal conspiracy is identical to that required for accomplice liability. In both crimes, a defendant must act with the ‘intent of promoting or facilitating the commission of the offense.’” Id., 307 Pa.Superior Ct. at 110, 452 A.2d at 1062, quoting Commonwealth v. Gardner, 246 Pa.Super. 582, 587, 371 A.2d 986, 989 (1977). Here, such an intent was clearly inferable from the evidence adduced at trial.

      . 18 Pa.C.S.A. § 306(f)(3)(i) and (ii) provide:
      (f) Exceptions.—Unless otherwise provided by this title or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
      (3) he terminates his complicity prior to the commission of the offense and:
      (i) wholly deprives it of effectiveness in the commission of the offense; or
      (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.


author: WATKINS, Judge:

text:
    463 A.2d 1121
    COMMONWEALTH of Pennsylvania v. Charles ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 12, 1983.
    Filed July 22, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County by the defendant-appellant, Charles Robinson, after conviction, non jury, of unauthorized use of an automobile and theft by receiving stolen property. Post-trial motions were denied and he was sentenced to a term of imprisonment for a period of two to five (2 to 5) years on the theft charge and one to three (1 to 3) years on the unauthorized use charge to run concurrently with the theft charge.

On appeal the defendant raises two questions: (1) that the court below erred by sentencing him on the unauthorized use charge to a term of one to three years; and (2) that as a matter of law the two offenses merge and the court erred in sentencing him on the two charges.

The facts are as follows: The evidence produced at trial established that on December 17, 1980, at approximately 7:45 p.m., two policemen saw defendant drive a car through a red light. The policemen checked the license plate number through police headquarters and learned that the car was reported stolen. They then arrested defendant as he was leaving the automobile. The car had been reported stolen approximately eighteen (18) hours earlier. At trial defendant claims that he had told the two policemen he was test-driving the car to check its brakes after fixing them at a garage in which he worked. Defendant was impeached, however, with proof that he had given a statement to the detective who booked him in which he confessed to having stolen the automobile.

The test of whether one criminal offense merges with another is whether one crime necessarily involves the other, that is whether all the essential elements of one are included in the other. Commonwealth v. Everett, 290 Pa.Superior Ct. 344, 349, 434 A.2d 785, 787-88 (1981).

Here the defendant committed the crime of receiving stolen goods when he received the automobile, knowing it to be stolen, and with no intent to return it to the rightful owner. 18 Pa.C.S.A. 3925. The second crime was committed when he drove the car, knowing it to be stolen, without the consent of the owner. 18 Pa.C.S.A. 3928. Commonwealth v. Kull, 267 Pa.Superior Ct. 55, 405 A.2d 1300 (1979); Commonwealth v. Randall, 287 Pa.Superior Ct. 479, 484, 430 A.2d 991, 994 (1981). The crimes do not merge because they involve different acts and involve different mental elements.

As the court below said: “Proof of guilty knowledge is essential to establishing the material elements of these crimes. Commonwealth v. Ceasar, 245 Pa.Super. 157, 369 A.2d 341 (1976). While there is seldom direct evidence of guilty knowledge, that element may be inferred when the underlying circumstantial evidence is sufficiently strong. Some factors to consider for proof of guilty knowledge include whether possession of stolen property is unexplained, whether the property was recently stolen and whether the accused’s conduct at the time of arrest is indicative of guilty knowledge. Commonwealth v. Williams, 284 Pa.Super. 244, 425 A.2d 795 (1981).”

Here the defendant offered different explanations for his possession of the automobile to the arresting officer and to the detectives “that he knew the car did not belong to him and that he decided to take it anyway”. The car was stolen that very day and he was walking away from the vehicle when he was arrested.

It is apparent that the sentence of one to three years imprisonment on defendant’s conviction for unauthorized use of an automobile was improper in that it exceeds the maximum sentence permitted by law for this offense. Unauthorized use of an automobile is defined as a second degree misdemeanor, 18 Pa.C.S.A. 3928(a), for which the maximum penalty is imprisonment for a term of two (2) years, 18 Pa.C.S.A. 1104(2). This is conceded by the Commonwealth.

Judgment of sentence on the theft by receiving stolen goods charge is affirmed; and the sentence for unauthorized use of an automobile being improper, we remand the case to the court below for resentencing.' Jurisdiction is relinquished.


text:
    463 A.2d 1123
    COMMONWEALTH of Pennsylvania v. Kenneth BENSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1982.
    Filed July 22, 1983.

      Elkin A. Tolliver, Jr., Philadelphia, for appellant.
    Eric I.B. Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Kenneth Benson, after conviction by a jury of second degree murder, burglary and unlawful theft. Post-trial motions were denied and he was sentenced to life imprisonment on the second degree murder charge. This appeal followed.

The evidence supporting the conviction consists of the following: The defendant who lived in a neighboring house to the victim entered the victim’s home surreptitiously on the evening of Sunday, November 25, 1979. He was discovered by eight year old Sean Isreal behind the couch in the living room where the defendant was hiding. The defendant took Israel by the neck and throttled him. The boy died as a result of the beating. The victim’s dog came to his aid, but the defendant killed the dog by stabbing and choking it. The victim’s older brother came home and knocked at the front door. The defendant fled out of the home by forcing open a back door. He ran from the back door of the victim’s home to the side entrance of his own home. He was seen so doing by two young girls who were passing, Wanda Bracey and Jessica Madison, who testified that they saw him leave the back door of the victim’s house and enter his own home. He entered his house just as Sean’s mother started screaming when she discovered the brutal murder. At trial the defendant and his father testified that he was in his own home all that evening.

On appeal the defendant raises the following questions: (1) that he was entitled to a new trial by virtue of after-discovered evidence; (2) that his confession was the product of an unlawful arrest; (3) that his arrest was not based on probable cause; (4) that his confession was the fruit of unnecessary delay and coercion between the time of arrest and arraignment; (5) that the court below improperly excluded defendant’s evidence at trial; (6) that the court improperly admitted into evidence a veiled reference to a polygraph test and (7) that defendant’s counsel was ineffective.

In this case the after-discovered evidence claimed were the affidavits of two sisters and a cousin of the defendant who could well have been called as witnesses at trial. The claim was that these witnesses talked to the defendant at times variously named between 6:00 p.m. and 6:35 p.m. on November 25, 1979.' The times fixed conflict with the times fixed by the father and defendant and with the witnesses.

Such evidence is admissible on the following conditions: “In order to justify the grant of a new trial based on after-acquired evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility and must be such as would compel a different result.” Commonwealth v. Schuck, 401 Pa. 222, 164 A.2d 13 (1960).

Unless there has been a clear abuse of discretion, the refusal by the court to grant a new trial on the basis of after-discovered evidence will not be disturbed. Commonwealth v. Tervalon, 463 Pa. 581, 589, 345 A.2d 671, 675 (1980). See also, Commonwealth v. Sanabria, 487 Pa. 507, 410 A.2d 727 (1980). In the instant case the court below did not abuse its discretion by refusing to grant a new trial on the basis of after-discovered evidence since this evidence was available to the defendant at the time of the trial.

The defendant argues that his arrest occurred at 1:25 a.m. on Monday, November 26, 1979, the morning after the murder. Based on this, he claims that the arrest occurred without probable cause and that the subsequent arraignment occurred after an unreasonable delay. The claim concerning arraignment has been waived as he failed to include this complaint in his pre-trial motions. Commonwealth v. Meischke, 273 Pa.Superior Ct. 134, 416 A.2d 1126 (1979).

As above stated, defendant claims that his arrest occurred at 1:25 a.m. the morning after the murder. Based on that time, he claims the arrest occurred without probable cause. However, the arrest actually occurred at 6:25 a.m., the time when the defendant gave a full and complete confession so that there was clearly probable cause and no unnecessary pre-arraignment delay.

The findings of fact found by the court below determined that the arrest occurred at 6:25 a.m. In reviewing the action at the suppression hearing, this Court may only consider the evidence of the Commonwealth and text of the record as a whole that remains uncontradicted. If when so reviewed, the evidence supports the hearing court’s findings, this Court is bound thereby and it may not be reversed unless the legal conclusions drawn therefrom are in error. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976).

As the court below stated: “Defendant next contends that the jury’s finding should be reversed because his arrest was unlawful and he was forced to sign a statement in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. As previously indicated, this Court presided at an extensive hearing on defendant’s Motion to Suppress his statement. A review of the notes of testimony of that hearing convinced this Court that its Findings of Fact and Conclusions of Law were not erroneous, and defendant’s claim regarding these hearings was therefore without merit.”

Defendant’s arrest did not occur until 6:25 a.m. At approximately 9:00 p.m. the previous evening, as part of the investigation in the neighborhood, Detective Oliver interviewed the father and the defendant at their home. On the basis of this investigation, the detectives conferred and approached the Benson house and explained to the father and the defendant that they were investigating the death of Sean Isreal and would like to talk to them. They never entered the Benson house, but asked the defendant to accompany them to the police administration building for an interview. He was told he didn’t have to come. Both the defendant and his father agreed that the defendant would accompany them and co-operate. This was found in the findings of fact from the suppression hearing. The detectives testified that he was told that he was not under arrest. The defendant was told at the police administration building that he was being questioned as part of the investigation of the death of Sean Isreal and was given his Miranda Warnings. He appeared alert and responsive. With his consent, he was given a polygraph test and later advised that he had failed the test. Defendant then for the first time admitted that he committed the crime. At no time was the defendant handcuffed and at 6:25 a.m., the time he admitted he strangled the boy, he was placed under arrest. Clearly defendant’s arrest after the confession was based on probable cause. Prior to this confession he was free to leave the police administration building. See Commonwealth v. Haggerty, 282 Pa.Superior Ct. 369, 422 A.2d 1336 (1980); Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1982).

The confession was voluntary. The defendant claims that he was beaten by a police officer. However, at the hearing, counsel was unable to show that this happened.

The court’s exclusion of the name of the victim’s mother was proper as it was totally irrelevant and it should be noted that though excluded in another way in this record the name was brought to the attention of the jury.

The further complaint by the defendant concerning a veiled reference to a polygraph test is clearly without merit. This is also true of the claims of ineffective assistance of counsel. As the court below stated: “Defense counsel next contends that this Court improperly permitted Detective Craig Sterling, a Philadelphia Police Department polygraph operator, to refer to the results of the polygraph examination when he testified that he told defendant that he ‘felt’ he was lying. Defense counsel has quite understandably failed to direct this Court’s attention to any case holding that a police officer’s statement that he ‘felt’ a defendant was lying had the effect of raising an inference that defendant had undergone a polygraph examination. To hold that the officer’s statement in this case raised such an inference would be to do violence to the plain and ordinary meaning of the word ‘felt’, and this Court will not find that defendant was denied the effective assistance of counsel because his attorney failed to perform a futile act in an attempt to exclude non-prejudicial testimony. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 [235] A.2d [349] (1967); Commonwealth v. Hubbard, 485 Pa. 353 [402] A.2d [999] (1979).”

Judgment of sentence affirmed.

CAVANAUGH, J., concurs in the result.


text:
    463 A.2d 1127
    COMMONWEALTH of Pennsylvania v. Andrew VALENT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 20, 1983.
    Filed July 22, 1983.

      Nancy Virginia Larkin, Assistant Public Defender, Doylestown, for appellant.
    Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from a restitution order in a burglary case. Under Commonwealth v. Fuqua, 267 Pa.Superior Ct. 504, 407 A.2d 24 (1979), the court imposing restitution must be sure that the amount awarded does not exceed the defendant’s ability to pay. Concluding that the record below does not support the award made, we vacate and remand this matter for a full hearing on appellant’s ability to pay, including his ability to acquire work, inter alia, as a model.

The appellant and his brother, Michael Valent, were arrested for the June 20, 1979 burglary of a home in Levittown, Bucks County, Pennsylvania. Appellant entered a plea of guilty to burglary, 18 Pa.C.S.A. 3502, and other releted charges on January 22, 1980. His brother entered a plea of guilty to the same charges on April 1, 1980. Appellant was then sentenced to five years probation plus costs conditioned upon restitution. However, at the times the guilty pleas were entered, the value of the items taken were disputed by the defendants.

A joint restitution hearing was held for appellant and his brother on May 30, 1980 before the Honorable Harriet M. Mims and the Honorable William Hart Rufe, III, in the Court of Common Pleas of Bucks County, wherein the victims, Irving Kaplan and his wife, Yetta, claimed that $58,250.00 was the value of the items taken in the burglary. At the conclusion of this hearing, the appellant and his brother denied taking all of- the items alleged to have been stolen. Subsequently, the Honorable Harriet M. Mims ordered appellant’s brother to reimburse the Kaplans in the amount of $4,000.00 in thirty-six (36) periodic installments of $112.00 each.' No restitution order was issued in the appellant’s case, however, until a hearing on August 28, 1981, wherein appellant’s probation was revoked because of new charges. He was then sentenced on three counts of the Information sub judice to one to twenty-three (1 to 23) months in prison concurrent with the time he was serving on the new charges, and on three other counts of the subject Information to a term of five (5) years probation consecutive to his incarceration. The restitution ordered was for the appellant to pay the Kaplans $29,125.00 or one half of the value of the amount of the items taken with the terms to be set out by the probation office.

Appellant filed Motion for Reconsideration, a hearing was held, and on October 5, 1981, the court issued an order denying appellant’s Motion to Reduce Restitution ordered at the time of his sentence. This appeal followed.

Appellant raises two issues on appeal: (1) Is the $29,-125.00 restitution order excessive as exceeding one half of the victim’s actual damages? (2) Does the ordered restitution exceed the appellant’s ability to pay?

Dealing first with the issue of appellant’s ability to pay, we note that at the time of this appeal appellant was on prison work release earning take-home pay of $145.00 per week as a cook. Minus weekly expenses, the appellant cleared $40.00 every week or $160.00 per month. If appellant pays out $112.00 in restitution each month, he will be left with $12.00 per week to use for his living expenses.

At the time of his original arrest, the appellant was attempting to enter the field of male modeling. He testified on April 21, 1980 that he could sign with a modeling agency in Philadelphia and with one in New York City and clear $60.00 per hour. At the reconsideration of restitution hearing held on October 2, 1981, the appellant testified that after he is paroled he might be able to get a job as a cook or doorman at a hotel in Philadelphia. He testified that it would take time and money to reenter the modeling field as it would necessitate compiling a new picture portfolio which can cost $1,000, hiring an agent, and traveling back and forth to New York City. After attempting to enter the modeling field for approximately one to two years, the appellant did appear in two trade journal magazines for which he was paid $50.00. Appellant stresses that he was not established as a model and in fact as of March 18, 1982, he was earning $4.53 per hour in New York City as a cook. Appellant’s probation officer reported that the appellant lost his job when his employers learned of his criminal record and has since returned to Philadelphia.

An order requiring restitution is authorized by Section 1106 of the Crimes Code of December 6, 1972, 18 Pa.C.S.A. 1106. It may be imposed either as a direct sentence or as a condition of parole. In either event, the order of restitution must be supported by the record. Commonwealth v. Galloway, 302 Pa.Superior Ct. 145, 448 A.2d 568 (1982); Commonwealth v. Wood, 300 Pa.Superior Ct. 463, 467, 446 A.2d 948, 949 (1981); citing Commonwealth v. Seminko, 297 Pa.Superior Ct. 418, 420, 443 A.2d 1192, 1193 (1982); Commonwealth v. Erb, 286 Pa.Superior Ct. 65, 81, 428 A.2d 574, 582 (1981); Commonwealth v. Fuqua, 267 Pa.Superior Ct. 504, 510, 407 A.2d 24, 27 (1979).

When imposing restitution, there are four factors to be considered by the sentencing court: (1) the amount of loss suffered by the victim; (2) the fact that defendant’s action caused the injury; (3) the amount awarded does not exceed defendant’s ability to pay; (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant. Commonwealth v. Wood, supra; Commonwealth v. Fuqua, supra.

The sentencing court did consider the above factors during the restitution hearing, but we hold that appellant is entitled to a new hearing on the question of his ability to pay. The court apparently ordered a higher amount of restitution for appellant based on its finding as ascribed to in its opinion that appellant was “established” as a male model and had the ability to earn either $60.00 or $30.00 per hour net. The record does not support this finding.

Our court has determined that a defendant may well have to make substantial sacrifices in order to make restitution to the victims of his crime thereby serving the true rehabilitative purpose of restitution. Commonwealth v. Wood, supra. However, the true “rehabilitative goal is defeated only when the payments ordered by the court are so unreasonable in view of the defendant’s financial circumstances and ability to work that despite good faith efforts, the defendant cannot hope to comply.” Commonwealth v. Wood, supra. We understand the court’s concern that the victims be fully compensated, but this should not overshadow its duty to promote appellant’s rehabilitation. Therefore, the amount of restitution ordered should not exceed appellant’s ability to pay. Commonwealth v. Williams, 299 Pa.Superior Ct. 278, 445 A.2d 753 (1982).

We not reach the second issue raised that the $29,125.00 restitution order was excessive as it exceeds one-half of the victim’s damage, but we do note that previously we have found that a defendant convicted of theft by unlawful taking could be directed to make restitution even though the victim did receive compensation from his insurer for the loss sustained. Commonwealth v. Kerr, 298 Pa.Superior Ct. 257, 460-61, 444 A.2d 758, 760 (1982).

The Order of Restitution is vacated and the case remanded for a full hearing on the potential ability of appellant to acquire work, inter alia, as a model. Jurisdiction is relinquished.


author: VAN der VOORT, Judge:

text:
    463 A.2d 1129
    AMALGAMATED COTTON GARMENT AND ALLIED INDUSTRIES FUND, Appellant, v. Joseph CAMPOLONG.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1982.
    Filed July 22, 1983.

      Alan F. Markovitz, Trevose, for appellant.
    William C. Kriner, Clearfield, submitted a brief on behalf of appellee.'
    Before HESTER, BECK and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Judgments were entered in 1979 and 1980 in United States District Court in favor of appellant Amalgamated Cotton Garment and Allied Industries Fund (an insurance trust fund established under a collective bargaining agreement) against Campo Slacks, Inc., pursuant to arbitration awards. Appellant was unable to collect on its judgments, and therefore proceeded to bring an action against Joseph Campolong, an officer of the corporation, the present appellee, under the Wage Payment and Collection Law, Act of July 14, 1961, P.L. 637, as amended, 43 P.S. § 260.1 et seq. Appellee’s preliminary objections raising, inter alia, the defense of res judicata were granted by the lower court, and appellant’s amended complaint was dismissed by order dated May 15, 1981. The lower court found (although not in specific language) that appellant’s claim was barred by res judicata, rejecting appellant’s arguments that the doctrine was inapplicable due to the fact that an officer of the corporation rather than the corporate defendant of the federal court actions was involved in the case at bar, and that a different cause of action was involved (one brought under the Pennsylvania statute- rather than under the collective bargaining agreement). The lower court reasoned that “[t]o allow this case to continue would in essence allow Plaintiff to recover two judgments for the same monies and Defendant could be forced to pay twice to Plaintiff.” We find that the lower court erred in dismissing the complaint.

At the time appellant filed its complaint in federal district court to confirm the arbitration award, it could have requested that the federal court exercise pendent jurisdiction and simultaneously hear the state Wage Payment and Collection Law claim. Although we have not been provided with copies of the federal court pleadings, it seems apparent that appellant did not make such a request. We are faced with the question of whether such failure to raise the claim should, under the doctrine of res judicata, preclude appellant from now bringing its action in the state court.

One of the requirements of res judicata is that there be identity of parties in both the prior and subsequent actions. Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974). In Macan v. Scandinavia Belting Co., 264 Pa. 384, 107 A. 750 (1919), the Scandinavia Belting- Company brought an action against the Macan Jr. Company, a corporation, and the latter filed a counterclaim. The jury found for Scandinavia on both the original complaint and on the counterclaim. George C. Macan, Jr., the president and a stockholder of-the Macan Jr. Company, then filed suit in his own right against Scandinavia, and received a verdict in his favor. Scandinavia appealed to the Supreme Court, arguing that Macan’s claim was barred by the doctrine of res judicata. The Supreme Court found:

[T]he parties to this action are not the same as in the former proceeding. Macan is here suing in his individual capacity, while the previous action was against the Macan Jr. Company, a corporation. Although Macan was a large stockholder in the company, this fact did not make him a party to the action within the rule requiring, inter alia, identity of parties to make a judgment in one proceeding res judicata in another. A corporation has a separate entity or existence, irrespective of the persons who own its stock, and this rule is not altered by the fact that the greater portion or even the entire issue of stock happens to be held by one person____ 264 Pa. at 390-91, 107 A. 750.

Applying Macan to the case before us, we find that appellee Joseph Campolong and Campo Slacks, Inc. were separate entities, and that the doctrine of res judicata therefore does not preclude appellant from now bringing its action against Joseph Campolong in his capacity as an officer of the corporation.

Order reversed, and case remanded for further proceedings.

      . The Act requires (43 P.S. § 260.3(b)) an employer who has agreed to provide fringe benefits to make the requisite payments within ten days after such payments are due, and authorizes (43 P.S. §§ 260.9 and 260.2a) employees or their agents to bring civil suit to recover unpaid benefits. The Act (43 P.S. § 260.2a) defines “employer" to include an officer of a corporation.

      . Under Pa.R.C.P. No. 1030, the defense of res judicata must be pleaded in a responsive pleading under the heading "New Matter". Appellant might have objected to. this defense being raised in preliminary objections, but did not do so, and has therefore waived the right to object to it on appeal. Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980).

      . The lower court's concern that appellant might be able to collect on both judgments if it were permitted to obtain a judgment against appellee as well as against the corporation was unfounded. Payment by one party liable for a loss reduces the amount that the injured person is entitled to receive from other persons liable for the loss. Restatement, Second, Judgments § 50, Comment c. See Allegheny City v. McClurkan & Co., 14 Pa. 81 (1850); and Marshall v. The Franklin Bank of Washington, 25 Pa. 384 (1855).

      . Because we find that this requirement of res judicata has. not been met, it is unnecessary for us to consider appellant's argument that the doctrine does not apply because different causes of action are involved.


author: PER CURIAM:

text:
    463 A.2d 1131
    Richard J. McCLAINE, Jr. and Clarissa J. McClaine, His Wife, as Administrators of the Estate of Peter James McClaine, a Minor, and Richard J. McClaine, Jr. and Clarissa J. McClaine, His Wife, in Their Own Right, Appellants, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed July 22, 1983.

      John W. Murtagh, Jr., Pittsburgh, for appellants. .
    Daniel R. Gigler, Pittsburgh, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   PER CURIAM:

On September 5, 1980, appellants Richard J. McClaine, Jr. and Clarissa J. McClaine, administrators of the estate and parents of the' deceased minor child Peter J. McClaine, commenced an action against their insurance carrier, Allstate Insurance Company. A two-count complaint was filed on January 14, 1981, demanding, inter alia, work loss benefits, survivor’s loss benefits, and punitive and exemplary damages allegedly due under a policy of insurance covering the McClaines’ automobile. Allstate filed a Preliminary Objection and Motion to Strike, arguing that neither count of the complaint stated a valid cause of action, that the complaint failed to allege that the plaintiffs were appropriate “survivors” of the decedent,' and that the claim for punitive and exemplary damages based on the alleged bad faith of the insurance company was without legal or factual foundation. Appellants filed a response to the preliminary objections, and also filed an amended complaint. On November 25, 1981, the lower court granted appellee’s preliminary objections, and dismissed appellants’ complaint, finding:

1) that although the complaint asserted that appellants were dependent upon the deceased for support, because the complaint also asserted that the deceased was not employed fulltime, as a matter of law appellants could not be “survivors” within the meaning of the statute;

2) that since the deceased was a student and was not employed full-time at the time of his death, decedent did not suffer accrued economic detriment in the form of work loss; and

3) that Allstate had “acted properly” in denying appellants’ claims for survivor’s benefits and work loss benefits. The case is before us on appeal from the dismissal of appellants’ complaint.

Appellants’ first argument on appeal is that the lower court erred in dismissing their claim for survivor’s loss benefits. In Chesler v. Government Employees Ins. Co., 302 Pa.Superior Ct. 356, 448 A.2d 1080 (1982), our court, sitting en banc, recently held that the parent of a deceased person was a “survivor” within the meaning of Section 103 of the Pennsylvania No-fault Motor Vehicle Insurance Act, and that there was no necessity of showing that the parent was dependent upon the deceased for support. In light of Chester, it is clear that appellants in the case before us did not have to prove dependency upon the deceased in order to recover survivor’s loss benefits, and that the complaint did state a valid claim for survivor’s loss benefits. The fact that the complaint stated that the deceased had not been employed full-time at the time of the accident was therefore irrelevant.

Appellants’ second argument is that the lower court erred in dismissing their claim for work loss benefits. The lower court’s ruling was based on the fact that the deceased was a student “and therefore cannot be said to have suffered an ‘accrued economic detriment’ .... ” This issue has beén decided recently by our court sitting en banc. In Freeze v. Donegal Mut. Life Ins. Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982), our court held that the estate of a deceased victim may recover work loss benefits under the No-fault statute even if the deceased victim is a minor who never worked. Accordingly, we find that the lower court erred in dismissing appellants’ claim for work loss benefits.

Appellants’ final argument is that the lower court erred in sustaining appellee’s preliminary objection challenging appellants’ claim for exemplary and punitive damages. We find that the lower court acted properly in sustaining that preliminary objection and dismissing that claim, notwithstanding the fact that appellants alleged “outrageous” conduct on the part of the insurance company. In Smith v. Harleysville Ins. Co., 494 Pa. 515, 431 A.2d 974 (1981), our Supreme Court upheld the lower court’s dismissal of a claim for punitive damages in a No-fault action, indicating that there was no basis for judicial creation of a cause of action for bad faith conduct. In D’Ambrosio v. Pa. Nat. Mut. Cas. Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981) (a case not involving the No-fault statute), our Supreme Court held that an insured was not entitled to punitive damages for an insurance company’s alleged bad faith in denying a claim, even though the insured had alleged in his complaint that the insurance company had engaged in “outrageous” conduct. We find Smith and D’Ambrosio to be controlling in the case before us. We therefore affirm that part of the lower court’s order which dismisses appellants’ claim for punitive and exemplary damages.

Reversed in part, and remanded for further proceedings.

      . Act of July 19, 1974, P.L. 489, No. 176; 40 P.S. §§ 1009.101 et seq. (Supp.1980-81).

      . It should be noted that a party that has qualified as a "survivor” must still plead and prove the loss, or contribution and expenses incurred. Wercoch v. Liberty Mut. Ins. Co., 287 Pa.Superior Ct. 45, 429 A.2d 712 (1981); Chesler, 302 Pa.Superior Ct. at 363 n. 14, 448 A.2d 1083-84 n. 14.

      . Since recovery of both work loss benefits and survivor’s loss benefits may involve some of the same potential earnings of the victim, duplication of recovery is avoided by deducting the decedent’s contribution of income under the No-fault survivor’s loss provisions from the amount recovered on behalf of the estate under the No-fault work loss provisions. Allstate Insurance Co. v. Heffner, 491 Pa. 447, 459-60, 421 A.2d 629, 636-37 (1980); Smiley v. Ohio Casualty Co., 309 Pa.Superior Ct. 247, 252-53, 455 A.2d 142, 144 (1983).

      . It should be noted that our decision does not preclude the recovery of counsel fees and interest.


author: BROSKY, Judge:

text:
    463 A.2d 1133
    COMMONWEALTH of Pennsylvania v. Walter D. ROBERTSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 31, 1983.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Nov. 11, 1983.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence after convictions in a non-jury trial of first degree murder and robbery. Appellant contends that: (1) the trial court erred in failing to suppress his confession; (2) the evidence was insufficient to support the homicide conviction; and (3) the evidence was insufficient to support the robbery conviction. We disagree with appellant and affirm the judgment of sentence.

On September 10, 1979, at 6:05 p.m., appellant was arrested for the murder and robbery of one Clay Christensen. He was taken before the deputy coroner for preliminary arraignment at 8:08 p.m. At this time, he was arraigned only on the murder charge because the deputy coroner did not have jurisdiction to arraign him for any crimes other than homicide.

From 9:01 p.m. to 9:30 p.m., appellant gave a taped statement in which he admitted his involvement in both the murder and the robbery of the victim. He was then arraigned on the robbery charge at 12:15 a.m. on September 11, 1979.

Appellant filed a pre-trial motion to suppress his statement. The court below heard testimony on the motion and denied it on May 19, 1980. Appellant was found guilty of murder and robbery and his timely post-verdict motions were denied.

This timely appeal followed.

Appellant first contends that the court below erred in not suppressing his confession. He alleges two grounds in support of this contention: (1) that the confession was involuntary because it was given while he was under the influence of drugs and alcohol; and (2) that the confession was invalid because he was arraigned on the robbery charge more than six hours after his arrest. After a careful review of the record, we conclude that the opinion of the court below adequately disposes of appellant’s first ground.

As to the second ground, appellant argues that the confession was inadmissible under the case of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). In that case, the Supreme Court established a per se rule that “[i]f the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment shall not be admissible at trial.” Id., 471 Pa. at 286, 370 A.2d at 306.

Appellant contends that since he was not arraigned on the robbery charge until six hours and ten minutes after his arrest and his confession was used to convict him of both robbery and murder, it was error to admit it into evidence. He argues further that since it would be impossible to separate the confession into separate parts, it should be totally inadmissible at a new trial.

We disagree with appellant. There is no question that the six hour rule was not violated with respect to the murder charge. The purpose of the rule is to insure that the accused is promptly afforded the protections of Pa.R. Crim.P. 140. Davenport, supra. Also, the rule reflects the importance of having the accused informed of his rights • by a neutral judicial authority. Id. We find that these purposes were fully served in this case by appellant’s arraignment on the murder charge. Therefore, we do not believe that the confession should have been suppressed under the Davenport rule.

Appellant next contends that the evidence was insufficient to support the convictions for robbery and homicide.

In reviewing the sufficiency of the evidence, we must view that evidence in the light most favorable to the Commonwealth and, drawing the proper inferences favorable to the Commonwealth, determine whether the trier of fact could reasonably have found that all elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981).

Viewed thusly, the record establishes the following:

On August 15, 1979, the body of Clay Christensen was found in a wooded area of Frick Park. Appellant had met the victim in the mid-summer of 1979 as he was returning from a trip' to California. The victim’s car had been impounded and appellant paid to have it released. The two drove to Pittsburgh together, staying with a friend of appellant when they arrived.

Appellant left his friend’s house after a short time and was separated from the victim for about a week. Appellant had argued with the victim about money the victim owed •for his share of the expenses incurred during the drive to Pittsburgh.

On the day of the victim’s death, appellant telephoned him and asked him if he wanted to attend a “keg party.” The victim did and drove to pick up appellant and a friend. After he arrived, he was. instructed to drive to the home of another friend of appellant. There, appellant got a .22 caliber rifle which he wrapped in a towel and placed in the trunk of the car. The three men then drove to Frick Park.

After entering the park, the victim and appellant’s friend began to argue and eventually fight over some drugs which were allegedly missing from the victim’s car. Appellant’s friend beat the victim severely and then walked away from him. As the victim struggled to get back up, appellant knocked him back to the ground, then drew back and shot him once through the back of the head. Appellant then took the victim’s money, car keys, and watch.

Also, after appellant’s friend had beaten the victim, appellant had said to the victim: “Yeah, well, you ain’t going nowhere till I get my money.”

After reviewing this record, we conclude that the trial court’s opinion adequately disposes of appellant’s contention as to the sufficiency of the evidence for first degree murder.

As to the robbery conviction, appellant argues that he had no intention to rob the victim. He claims that property was taken only as a spontaneous afterthought. Therefore, he concludes that at most he could be convicted of theft since one cannot rob a dead man. See, 18 Pa.C.S.A. § 3701; Commonwealth v. Legg, 491 Pa. 78, 417 A.2d 1152 (1980).

However, we believe the evidence is more than sufficient to establish that appellant intended to take property from the victim before the victim’s death and did so by inflicting “serious bodily injury upon” the victim. See 18 Pa.C.S.A. § 3701(a)(l)(i).

Accordingly, we affirm the judgment of sentence.

      . Rule 140, formerly Rule 119, provides, in part:
      (a) At the preliminary arraignment, the issuing authority shall not question the defendant respecting the offense charged, but shall forthwith deliver a copy of the complaint to him. The issuing authority shall also inform the defendant:
      (1) of his right to secure counsel of his choice and his right to be assigned counsel in accordance with Rule 316;
      (2) of his right to have a preliminary hearing;
      (3) if the offense is bailable, of the amount of bail demanded and the types acceptable as provided in these rules; and
      (4) where to apply for bail if the offense is not bailable before the issuing authority.
      (b) If the defendant desires to post bail, secure counsel or notify others of his arrest, he shall be held but not be committed to jail until he has been given immediate and reasonable opportunity to do

      . We also note that the record indicates that appellant at the time of his arrest was informed that he was being charged with murder and robbery..

      . This is not to say we look favorably upon the procedures followed by the police in this case. A defendant should preferably be arraigned on all charges within the six-hour limit established by Davenport. We simply find that under the facts of this case, the purposes of Davenport were satisfied.

      . The existence of an intent to commit robbery that is contemporaneous with the intent to commit a homicide can be established by an inference arising from the circumstances or acts committed very shortly after the killing. See Legg, supra.


author: ROWLEY, Judge:

text:
    463 A.2d 1136
    John NAGLE and Yonish Trucking, Inc. v. AMERICAN CASUALTY COMPANY, American Mutual Liability Insurance, American States Insurance Company, Bituminous Casualty Corporation, Continental Casualty Corporation, Employers Mutual Liability Insurance Company of Wisconsin, Globe Indemnity Company, Harleysville Mutual Insurance Company, Hartford Accident and Indemnity Company, Lackawanna Casualty Company, Liberty Mutual Insurance Company, Motorists Beneficial Insurance Company, Ohio Casualty Insurance Company, Old Republic Insurance Company, Pennsylvania Manufacturers Association, Pennsylvania National Mutual & Casualty Insurance Co., Rockwood Insurance Company, Royal Globe Insurance Company, Security Insurance Company of Hartford, Travelers Insurance Company, Twin City Fire Insurance Company, United States Fidelity & Guaranty Company, West American Insurance Company, and Westmoreland Casualty Company, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1982.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Nov. 15, 1983.

      Mark A. Welge, Philadelphia, for appellants.
    Leonard Schaeffer, Philadelphia, for appellees.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge:

Appellees, John Nagle and Yonish Trucking Inc., are Pennsylvania coal-hauling employers required by law to purchase black lung insurance coverage for their employees. Appellants are insurance companies or funds licensed to underwrite Pennsylvania Workmen’s Compensation and Occupational Disease insurance coverage for employers engaged in coal-mining operations. The appellant companies are members of the Coal Mine Compensation Rating Bureau (the Bureau). Beginning in 1973, and for the next five years, the Bureau fixed premium rates for black lung insurance coverage purchased by appellees at an amount equal to the premium rates charged to coal mining operators for the same coverage.

In July of 1976, appellees brought an action in the Commonwealth Court challenging the rates filed by the Bureau. The court dismissed the proceedings and suggested they be brought in the Insurance Department. After an administrative hearing, the Insurance Commissioner withdrew approval of the rates charged by appellants,' approved new rates, and ordered the Bureau to refund all excess premiums collected since February 7, 1977. However, the Commissioner refused to order a refund of the excess premiums for the period from 1973 to 1976. Appellees appealed to the Commonwealth Court, which affirmed the order of the Insurance Commissioner. Nagle v. Com. Ins. Dept. ex rel. Sheppard, 48 Pa.Cmwlth. 295, 409 A.2d 525 (1980).

A number of other proceedings were filed in the Commonwealth Court by appellees, nearly all of which were abandoned or withdrawn. One proceeding that was disposed of by the Commonwealth Court named as respondents the present appellants, as well as the Insurance Department, the Insurance Commissioner, the State Workmen’s Insurance Fund and the State Workmen’s Insurance Board. The Commonwealth Court sustained preliminary objections filed by the latter four governmental respondents, holding that the suit against them was barred by the defenses of sovereign immunity and absolute immunity. The case against the remaining respondents was transferred to the Court of Common Pleas of Philadelphia County for further proceedings. Nagle v. Pa. Ins. Dept., 46 Pa.Cmwlth. 621, 406 A.2d 1229 (1979). An appeal from that decision was taken to the Supreme Court of Pennsylvania.

On December 20, 1978, appellees filed the present action in equity in the Court of Common Pleas of Philadelphia County requesting an injunction, an accounting, restitution and reformation of the insurance contracts. They argued that they have been required to pay grossly excessive premiums to appellants; that appellants, in a fraudulent scheme to enrich themselves, submitted inaccurate data to the Insurance Commissioner; and that the contracts are unconscionable.

Appellants filed numerous preliminary objections to the complaint, all of which were dismissed by the trial court. Appellants then filed this appeal, raising five issues. Appellees filed a Motion to Quash the appeal as interlocutory. On March 29, 1982, this court granted the Motion to Quash as to all issues raised by appellants except 1) the failure of appellees to join indispensable parties, and 2) the failure of appellees to exhaust all administrative remedies.

Ordinarily, an order dismissing preliminary objections to a complaint is interlocutory and therefore not appealable. Newkirk v. Phila. School District, 437 Pa. 114, 261 A.2d 305 (1970). However, under the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, repealed, Act of April 28, 1978, P.L. 202, § 2(a) (effective June 27, 1980), whenever a question of subject matter jurisdiction was raised in the trial court, the court’s decision could be appealed as a final order. Since the Act of 1925 was still in effect when this appeal was filed, its provisions are controlling.

Our scope of review in this case is extremely limited. The sole issue which the appellate court may consider, in an appeal under the Act of 1925, is the question of subject matter jurisdiction. Wechsler v. Newman, 256 Pa.Super. 81, 389 A.2d 611 (1978).

The test to be applied in deciding whether subject matter jurisdiction exists, is whether the court has the power to determine controversies of the general class to which the case belongs. Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106 (1952). The controlling question is whether the court has the power to embark upon the inquiry and not whether the relief sought in that particular case may ultimately be granted. Sperry & Hutchinson Co. v. O’Connor, 488 Pa. 340, 412 A.2d 539 (1980).

Using that test, we have concluded that the trial court has subject matter jurisdiction over this action. Therefore, .the order dismissing appellants’, preliminary objections will be affirmed.

Appellants argue that the court lacked jurisdiction for two reasons: 1) appellees failed to join indispensable parties, namely the Insurance Commissioner and related state agencies; and 2) appellees failed to exhaust their administrative remedies. Both arguments are without merit.

We agree with the trial court that the Commissioner and state agencies were not indispensable parties. The purpose of this action is to obtain relief from the parties who have actually benefited from the payment of allegedly excessive premiums. The Commissioner and the agencies will not be affected by a verdict for or against appellants. Their presence is not necessary to an adjudication. See Township of Pleasant v. Erie Ins. Exchange, 22 Pa. Cmwlth. 307, 348 A.2d 477 (1975).

Nor does the fact that appellees may have had an administrative remedy necessarily deprive the court of jurisdiction; The Courts of Common Pleas are deprived of subject matter jurisdiction only if the administrative remedy is exclusive. See Martino v. Trans. Workers Union, 301 Pa.Super. 161, 447 A.2d 292 (1982).

Appellants rely on two statutes as creating an exclusive administrative remedy; the Insurance Company Law, 40 P.S. § 341 et seq., and the Unfair Insurance Practices Act, 40 P.S. § 1171.1 et seq.

With respect to the Unfair Insurance Practices Act, 40 P.S. § 1171.5 defines unfair methods of competition and unfair or deceptive acts or practices which the Act was meant to remedy. The factual situation presented in this case is not listed. Therefore, the Act is not applicable to this case and does not create an exclusive administrative remedy for appellees that would deprive the trial court of subject matter jurisdiction.

The administrative remedies provided in the Insurance Company Law are relevant to this case. However, it appears that the administrative remedy mandated by that Act has been pursued and a final order was entered by the Insurance Commissioner on August 10, 1977. As indicated, the Commissioner refused to order a refund for the years 1973-1976. Thus, it appears that the available administrative remedy was pursued by appellees prior to filing this action. To the extent that the appellees seek relief in this case beyond that considered by the Commissioner, the Insurance Company Law does not provide an exhaustive, adequate administrative remedy for such relief. Therefore, we hold that the Court of Common Pleas has subject matter jurisdiction to hear and decide the issues raised by appellees in this case.

Since the date of oral argument of this case, the Supreme Court of Pennsylvania filed its decision in the case appealed to it from the decision of the Commonwealth Court referred to on page three of this opinion. Pechner, Dorfman, etc. v. Pa. Ins. Dept., 499 Pa. 139, 452 A.2d 230 (1982). There the Supreme Court held that (1) Appellees’ [Nagle & Yonish] claim for equitable relief was premature in that case because it was filed prior to the Insurance Commissioner’s final order of August 10, 1977, granting a refund of overcharges to appellees back to February 7, 1977, and (2) the appellees’ tortious claims against the Commonwealth agencies [exclusive of the Insurance Commissioner] were not barred by the statutory provision creating sovereign immunity because the statute could not be applied retroactively. The Supreme Court’s decision, however, does not compel a different result in this case.

Since appellees filed their complaint in equity in this case some sixteen months after the Insurance Commissioner’s final order was entered in the administrative proceedings undertaken pursuant to 40 P.S. § 814, it does not suffer from the defect of prematurity that existed in the earlier action. Additionally, the Supreme Court’s holding that appellees’ tortious claim against the Commonwealth agencies in that case was not barred by sovereign immunity is not the equivalent of saying that those agencies are indispensable parties in this action.

Order affirmed.

      . 1) Did appellees fail to join indispensable parties?
      2) Did appellees fail to first exhaust available statutory and legal remedies?
      3) Do appellees lack standing to sue?
      4) Is this suit barred since appellees raised the same issues before the Commonwealth Court?
      5) Should the action be stayed pending the outcome of a prior action on appeal to the Supreme Court?


text:
    463 A.2d 1140
    COMMONWEALTH of Pennsylvania v. Linda Kay FINK, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 28, 1983.
    Filed July 29, 1983.

      Steven Edward Wolfe, Levittown, for appellant. .
    C. Theodore Fritsch, Jr., Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Linda Kay Fink was charged with driving a pickup truck across her neighbor’s lawn at night and striking the neighbor while the neighbor was walking her dog. She was tried by a jury which found her not guilty of aggravated assault and recklessly endangering another person but guilty of simple assault. On direct appeal from the judgment of sentence, she argues that she is entitled to a new trial because of after-discovered evidence and because her trial counsel was constitutionally ineffective.

The averment of newly discovered evidence in the form of an eyewitness who was present and would allegedly testify that the neighbor was injured when pulled by her dog and not by appellant’s truck is not properly before this Court. Appellant has never presented this after-discovered evidence to the trial court and has never requested the trial court to grant a new trial for this reason. A motion requesting a new trial on grounds of after-discovered evidence must be filed in writing in the trial court. Pa.R. Crim.P. 1123(d). Compare: Commonwealth v. Savage, 270 Pa.Super. 388, 390, 411 A.2d 774, 775 (1979). This Court will not entertain such a motion in the first instance.

Appellant’s averments that trial counsel was ineffective, made for the first time on appeal by new counsel, cannot be determined without an evidentiary hearing. Appellant contends that trial counsel had in his possession certain weather reports regarding rainfall which, if used, would have demonstrated that she could not have driven a truck across her neighbor’s lawn, as the neighbor testified, without leaving tire marks on the lawn. She also contends that counsel was ineffective for failing to call as a witness a mechanic who had testified at the preliminary hearing and who, allegedly, would have testified at trial that appellant’s truck was in such condition that it could not have traversed the ornamental railroad ties in the neighbor’s yard without sustaining serious damage. “The problem in this case, as in most cases where the claim of ineffective assistance of counsel is raised on direct appeal, is that we have before us no record of any hearing at which is delineated trial counsel’s reasons for taking the steps later challenged. Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where, on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken____ A finding of ineffectiveness of counsel cannot be made ‘unless we conclude that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.’” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnotes omitted), quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967).

Such is the case here. Not only is the unutilized evidence not a matter of record but appellant’s trial counsel has not had an opportunity to explain his decision not to use the weather reports or the testimony of the truck mechanic. Therefore, we must remand for an evidentiary hearing.

The judgment of sentence is vacated, and the case is remanded for an evidentiary hearing on appellant’s averments that trial counsel was ineffective. If the trial court finds that counsel was ineffective, a new trial must be granted. Otherwise, the sentence shall be reinstated. Meanwhile, the jurisdiction of this court is not retained.

      . Appellant was sentenced to pay costs and was placed on probation for six months.

        . Appellant was represented at trial by the Public Defender. Present counsel was retained after boilerplate post verdict motions had been denied and sentence imposed.

      . Upon remand, appellant may, if she chooses to do so, file a motion for new trial on the grounds of after-discovered evidence.


author: WIEAND, Judge:'.

text:
    463 A.2d 1142
    COMMONWEALTH of Pennsylvania v. George A. KENNEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Nov. 22, 1983.

      Joseph V. Furlong, Jr., Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:'.

The issue in this appeal is whether appellant’s 1970 trial attorneys were ineffective because they failed to object and move for a mistrial when appellant, after repeated, deliberate outbursts, was ordered restrained and gagged by the trial court. We agree with the P.C.H.A. hearing court that appellant failed to show that counsel was constitutionally ineffective; and, therefore, we affirm the order dismissing appellant’s P.C.H.A. petition.

On April 10, 1970, a jury found George Kenney, the appellant herein, guilty of murder in the first degree in connection with the shooting death of John Bucykowski during the holdup of a state liquor store in Philadelphia on May 4, 1968. A significant part of the Commonwealth’s case had been a lengthy and detailed confession made by appellant. A sentence of life imprisonment was affirmed on direct appeal by the Supreme Court. Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972). On December 3, 1979, appellant filed a pro se P.C.H.A. petition contending that his trial counsel had been ineffective. New counsel was appointed, and a hearing was held. This appeal followed the denial of post conviction relief.

During the jury selection process, appellant became obstreperous. During voir dire examination of prospective jurors, appellant constantly interrupted both counsel and the court to propound his own, irrelevant questions. Despite several warnings from the court, appellant adamantly refused to allow the selection of jurors to proceed in an orderly manner. No sanctions were imposed, however, and the court recessed. On the following day, appellant resumed his disruptive behavior. He openly accused the trial judge of prejudice and denounced his lawyers. Appellant received yet another warning. When the appellant was told that continued interruptions would result in his being gagged, he retorted:

THE DEFENDANT: If I have something to say, I’m going to say it.
THE COURT: You will keep quiet.
THE DEFENDANT: When I have something to say, I’ll keep saying it.
THE COURT: If you don’t keep quiet, we will gag you and we will remove you, if necessary, and you are to keep quiet.
THE DEFENDANT: If you’re going to gag me, gag me.
THE COURT: You are to keep quiet.
THE DEFENDANT: I’m going to be heard. .
THE COURT: And any other outburst, wé will gag you. We will put something over his mouth.
THE DEFENDANT: And that’s what you’re going to have to do because I’m not going to stop talking.
THE COURT: And, as I understand the law, we can even remove him from this courtroom.
THE DEFENDANT: You can do that, too.
THE COURT: And he will not talk. Now, that’s an absolute and I am not going to say it again. Call the next prospective juror, please.
THE DEFENDANT: Nobody here being tried but me. It’s my life in jeopardy, not yours. You tell me to keep quiet. This is a kangaroo court.
LORENZO S. OLIVERIO, residing at 704 Montrose Street, Philadelphia, Pennsylvania,' having been duly sworn, testified as follows:
THE DEFENDANT: I say the hell with that Judge. The hell with the Judge.
(Whereupon the prospective juror, Lorenzo S. Oliverio was removed from the courtroom).
THE COURT: Now, I have heard twice “the hell with the Judge” and that’s in contempt of this Court and it must not and will not happen in this courtroom.
THE DEFENDANT: You can give me a thousand charges of contempt if you want to.
THE COURT: I want the proper, whatever is necessary, to be placed over the mouth of this man at this juncture.
THE DEFENDANT: Why don’t you just put me out of the courtroom?
THE COURT: And I want that done very promptly. Get whatever is a requisite to just do that at this juncture and we will take it from there. We will take a recess now of ten or fifteen minutes.

(N.T. 4/1/70, 151-54). Although defense counsel did not immediately object, a request was made later on the same day for removal of the gag. This request was granted.

After the taking of testimony had commenced, appellant remained quiet while several Commonwealth witnesses testified. When the Commonwealth was about to introduce, appellant’s inculpatory statement, however, appellant made it known that he wished to make a public statement. The court instructed counsel that appellant would not be permitted to speak out at will during the trial and that he would again be gagged if he attempted to do so. Nevertheless, the court excused the jury and permitted defense counsel to read a statement prepared by appellant in which appellant charged that both the court and his attorneys were prejudiced against him. After the jurors had been returned to the courtroom and had taken their seats, appellant made an outburst in which he accused the trial judge of trying to prevent him from consulting with his attorneys. The court again ordered that restraints be applied.

In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Supreme Court said:

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.

Id. at 344-345, 90 S.Ct. at 1061, 25 L.Ed.2d at 343-344. In Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976), three Justices of the Pennsylvania Supreme Court agreed that dealing with obstreperous defendants in criminal cases must be left to the sound discretion of the trial judge but expressed disapproval of binding and gagging the defendants under the circumstances of that case. Their expression of disapproval, however, was merely dictum—the issue was whether the defendants had properly been held in contempt—and it did not represent the view of a majority of the Court. Most importantly, Commonwealth v. Africa was not decided until almost six years after the trial in the instant case. The law was in 1970, as it is now, that disruptions in a court of law threaten the ability of the court to act justly and cannot be tolerated. The means for enforcing orderly procedure must be left primarily to the discretion of the trial judge, and it is not error to gag and/or physically restrain a disruptive defendant. See: State v. Watson, 114 Ariz. 1, 559 P.2d 121 (1976), cert. denied, 430 U.S. 986, 97 S.Ct. 1687, 52 L.Ed.2d 382 (1977); People v. Chacon, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106 (1968); People v. Rogers, 187 Colo. 128, 528 P.2d 1309 (1974); State v. Evans, 169 N.W.2d 200 (Iowa 1969); State v. Lee, 395 So.2d 700 (La.1981); People v. Kerridge, 20 Mich.App. 184, 173 N.W.2d 789 (1969); People v. Palermo, 32 N.Y.2d 222, 344 N.Y.S.2d 874, 298 N.E.2d 61 (1973); Kimithi v. State, 546 S.W.2d 323 (Tex.Cr.App.1977).

In the instant case, appellant had disrupted the trial, had argued with the trial judge and had refused to heed admonitions of court and counsel to cease his verbal outbursts. Additionally, he had refused to enter a plea, had refused to stand when requested during voir dire, had attempted to escape and assault a bystander, and had threatened physical violence toward one of his attorneys. The trial judge, in the exercise of his discretion, determined that appellant could and should be allowed to remain present during the trial. In order to maintain order, free of appellant’s unwarranted outbursts, and protect counsel and spectators, the court ordered that appellant be restrained and silenced.

Appellant contends that his trial counsel were ineffective because they failed to object and/or move for a mistrial after appellant had been gagged. One of appellant’s trial counsel testified at the P.C.H.A. hearing that he did not object because he felt that appellant’s conduct warranted the trial court’s action and that there was no basis on which to challenge the manner in which the trial court’s discretion had been exercised.

In Commonwealth v. Kaufman, 307 Pa.Super. 63, 452 A.2d 1039 (1982), this Court recently said:

When we study a claim of ineffectiveness, we must first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we proceed to consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of his client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980).

Id., 307 Pa.Superior Ct. at 73, 452 A.2d at 1044. See: Commonwealth v. Tann, 500 Pa. 593, 600, 459 A.2d 322, 326 (1983); Commonwealth v. Sherard, 483 Pa. 183, 191, 394 A.2d 971, 975-976 (1978); Commonwealth v. Lewis, 314 Pa.Super. 298, 306-307, 460 A.2d 1149, 1153 (1983); Commonwealth v. Nelson, 311 Pa.Super. 1, 12, 456 A.2d 1383, 1388 (1983); Commonwealth v. Costanzo, 309 Pa.Super. 267, 271-72, 455 A.2d 153, 155 (1983); Commonwealth v. Silvis, 307 Pa.Super. 75, 77, 452 A.2d 1045, 1046 (1982); Commonwealth v. Sutherland, 305 Pa.Super. 1, 3, 451 A.2d 1, 2 (1982). Counsel will not be deemed ineffective for failing to file motions or make objections which are lacking in merit. Commonwealth v. Casella, 312 Pa.Super. 375, 378, 458 A.2d 1007, 1009 (1983), quoting Commonwealth v. Roach, 479 Pa. 528, 530, 388 A.2d 1056, 1057 (1978). See also: Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 698 (1977). Moreover, counsel is presumed to be effective. Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981); Commonwealth v. Strickland, 306 Pa.Super. 516, 526, 452 A.2d 844, 849 (1982); Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982) . He will not be deemed ineffective because he fails to predict and/or argue all possible future developments in the law. See: Commonwealth v. Arthur, 488 Pa. 262, 268 n. 3, 412 A.2d 498, 501 n. 3 (1980), cert. denied, 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79 (1980); Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977); Commonwealth v. McCloud, 312 Pa.Super. 29, 41, 458 A.2d 219, 225 (1983); Commonwealth v. Warren, 307 Pa.Super. 221, 224, 453 A.2d 5, 7 (1982); Commonwealth v. Brinton, 303 Pa.Super. 14, 21, 449 A.2d 54, 58 (1982).

In the instant case, appellant’s behavior had disrupted the orderliness of the trial and compelled a response from the trial court. That response was dependent upon the circumstances and rested primarily in the court’s discretion. The exercise of the court’s discretion was consistent with a recognized means for dealing with obstreperous defendants. The first judicial expression of disapproval did not appear in Pennsylvania appellate decisions until the plurality’s dictum in Africa six years later. In view of the state of the law in April, 1970, we cannot say that trial counsel were ineffective because they failed to object to the means adopted by the trial court to restrain appellant so that the trial could proceed. Moreover, trial counsel requested and received a jury instruction from the trial court that appellant’s behavior during trial, as well as his court ordered restraint, had no relevancy to and should not be considered in determining the issue of guilt or innocence.

Appellant also complains because trial counsel, after telling the jury that he had been appointed by the court to represent appellant, described appellant as “a misguided young man who has indicated his distemper and has lost his sense of balance, so much so that he’s almost disrupted the orderly processes of the Court” This was merely a preface to counsel’s appeal to the jury not to hold against appellant his courtroom misbehavior. It also offered an explanation for counsels’ participation in the trial despite appellant’s expressed dissatisfaction with and animosity toward them. This was not ineffectiveness. Rather, it was an attempt to salvage a dispassionate examination of factual issues presented by the evidence despite the seeming roadblocks created by appellant’s courtroom behavior.

Finally, appellant complains because trial counsel failed to object to closing remarks of the prosecuting attorney pertaining to the presence of the victim’s blood at the scene of the shooting and the fact that it had pulsed from his jugular vein. There is no merit in this contention. The victim had been struck in the neck by the bullet from appellant’s gun. He did not immediately collapse but bled profusely and in a pulsating manner because of the nature of the wound. The prosecuting attorney must, of necessity, be permitted to argue consistently with facts in evidence and in support of reasonable inferences which can arguably be drawn therefrom. He must be accorded reasonable latitude in arguing his position to the jury. Commonwealth v. Zettlemoyer, 500 Pa. 16, 55, 454 A.2d 937, 958 (1982); Commonwealth v. Smith, 490 Pa. 380, 387-388, 416 A.2d 986, 989 (1980). See: Commonwealth v. Womack, 307 Pa.Super. 396, 406, 453 A.2d 642, 647 (1982). The District Attorney’s statements in the instant case were proper attempts to summarize the evidence and the Commonwealth’s contentions. There was no prosecutorial misconduct warranting an objection by defense counsel; and counsel was not ineffective for failing to voice a meritless objection.

The order is affirmed.

      . The issue of trial counsels’ effectiveness has not been waived by appellant’s failure to raise the issue on direct appeal. On direct appeal, appellant was represented by the same attorneys who had represented him at trial. . Under such circumstances, counsel could not be expected to argue their own ineffectiveness; and, therefore, the issue has not been waived. See: Commonwealth v. Nelson, 489 Pa. 491, 495, 414 A.2d 998, 1000 (1980); Commonwealth v. Zakrzewski, 485 Pa. 532, 534 n. 2, 403 A.2d 516, 517 n. 2 (1979); Commonwealth v. Dimitris, 484 Pa. 153, 155, 398 A.2d 990, 991 (1979); Commonwealth v. Flynn, 295 Pa.Super. 513, 520 n. 5, 442 A.2d 256, 260 n. 5 (1982); Commonwealth v. Davis, 267 Pa.Super. 118, 121, 406 A.2d 547, 548 (1979).
      However, we observe that the filing of appellant’s P.C.H.A. petition was delayed seven years after his conviction had been affirmed by the Supreme Court. Unexplained delay in seeking P.C.H.A. relief is a factor which may be considered in assessing the merits thereof. Commonwealth v. Alexander, 495 Pa. 26, 36, 432 A.2d 182, 186-187 (1981) (Opinion of Larsen, J.); Commonwealth v. Strickland, 306 Pa.Super. 516, 526, 452 A.2d 844, 849 (1982). See: Commonwealth v. McCloud, 312 Pa.Super. 29, 32 n. 3, 458 A.2d 219, 220 n. 3 (1983).

      . In his appellate brief, appellant expresses dissatisfaction with counsel because they refused to ask prospective jurors the questions which he suggested. The questions, however, were clearly improper. Commonwealth objections to those that were asked were properly sustained, and counsel was instructed to ask no further questions of a similar nature. Those asked included (1) "Do you know or did you know that the American so-called Negro was kidnapped from his country somewhere around four hundred years ago?” (2) "Do you know the difference between a black man and a Negro?” (3) “Do you know who revised the Holy Bible?” (4) "What is your religious belief?”