author:
CIRILLO, Judge: WIEAND, Judge,
      JOHNSON, Judge,

text:
    499 A.2d 1080
    COMMONWEALTH of Pennsylvania v. David MURPHY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1985.
    Filed Oct. 18, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Eric J. Woltshock, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence imposed on a conviction for murder in the third-degree. We affirm.

The charges lodged against the appellant, David Murphy, arose out of the death of Thomas Joyce. Joyce spent a day visiting with his children and his estranged wife, Sharon Joyce. The victim’s wife told him that Murphy tried to rape her the night before. Joyce then left, but returned a short time later. He informed Sharon that he had been to Murphy’s residence but that no one answered the door. A few hours later, Joyce, this time accompanied by Daniel Hunt, again went to Murphy’s house to confront him about the alleged rape attempt. Thomas Joyce knocked on the door and appellant’s wife told him to go away. He then proceeded to break a picture window and slash it with a hunting knife. While doing this he said, “I want you, Murphy.” Hunt attempted to pull Joyce off the window sill and at the same instant, Murphy fired a, shot, from inside the house, which hit Joyce in the neck. As Joyce and Hunt ran off the porch, Murphy fired a second shot which also hit Joyce. He died on the way to the hospital as a result of the gunshot wounds.

Following a jury trial, Murphy was convicted of murder in the third-degree and was sentenced to a term of imprisonment of seven and one-half to fifteen years. Post-trial motions were timely filed and denied.

On direct appeal appellant raises the following issues:
1) Whether evidence introduced at trial denied Mr. Murphy his Constitutional right to a trial before an impartial jury?
2) Whether defense counsel’s failure to object to the introduction of irrelevant and prejudicial testimony of a prior criminal act resulted in the ineffective assistance of counsel?

We find the first issue to be waived. At trial, Sharon Joyce testified that she told her husband that Murphy had tried to rape her. Additionally, two other witnesses testified to being told by Sharon and Thomas Joyce of the alleged attempted rape. Appellant contends that this testimony denied him his constitutional right to a trial before an impartial jury. However, because trial counsel failed to object to the testimony concerning the alleged prior criminal act of Murphy, this issue was not preserved for appellate review. See Commonwealth v. Northington, 494 Pa. 155, 430 A.2d 1164 (1981); Commonwealth v. Griffin, 271 Pa. Super. 228, 412 A.2d 897 (1979).

Appellant also contends that trial counsel was ineffective for failing to object to the testimony concerning the alleged rape. Further, he argues that the testimony was highly prejudicial to his defense. We find appellant’s claim to be without merit. Since counsel cannot be deemed ineffective for failing to pursue a meritless argument, Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984), the judgment of sentence is affirmed.

The challenged evidence in the case at bar presents a classic textbook example for the application of the “same transaction” or “res gestae” exception to the general rule that “evidence of criminal activity not charged in the indictment or information on which the defendant is being tried cannot be introduced at trial.” Commonwealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694-95 (1978). In Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932), the Supreme Court spelled out the “same transaction” exception stating that such evidence is admissible where the “prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.” Accord Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Evans, 343 Pa.Super. 118, 494 A.2d 383 (1985); Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984); Commonwealth v. Robinson, 316 Pa.Super. 152, 462 A.2d 840 (1983) (allocatur denied); Commonwealth v. Davenport, 286 Pa. Super. 212, 428 A.2d 647 (1981).

The “same transaction” exception has been viewed by our courts as a supplement to the five well-recognized exceptions to the general rule that evidence of other crimes is inadmissible to prove the crime for which the defendant is being tried. Shirey, supra; Commonwealth v. Stufflet, 276 Pa.Super. 120, 419 A.2d 124 (1980); see also McCormick, Evidence § 190 (2d Ed.1972); J. Wigmore, supra at § 218. These exceptions include:

(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. Thus, although the law does not allow use of evidence which tends solely to prove that the accused has a “criminal disposition,” evidence of other crimes is admissible for certain purposes if the probative worth of this evidence outweighs the tendency to prejudice the jury, (citations omitted).

Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981); Commonwealth v. Styles, 494 Pa. 524, 528, 431 A.2d 978, 980 (1981); Shirey, supra 333 Pa.Super. at 123, 481 A.2d at 1334.

We are compelled to note that there has been much controversy surrounding the use of the phrase “res gestae” when referring to evidence of a prior criminal act that becomes part of the history of the event on trial. Indeed, in our recent decision in Commonwealth v. Evans, 343 Pa.Super. 118, 494 A.2d 383 (1985), we refrained from using the term “res gestae” at all when referring to the admissibility of “evidence of other criminal activity [which] forms part of the history of the event or serves to enhance the natural development of the facts.” Id., 343 Pa.Superior Ct. at 132, 494 A.2d at 390. It has even been suggested by Professor Wigmore that the term “res gestae” be abandoned as a useless and confusing phrase. Wigmore, supra at § 218. Further, it has been proposed that the “res gestae” exception is not really an exception at all, but rather a well-established principle of multiple admissibility. Id. at §§ 215, 216.

In light of the foregoing, we adopt the view that the term “res gestae” should be abandoned. However, this should be limited to the situation where the crime charged arose from the prior criminal activity and evidence of the prior act is needed to complete the full picture of the event on trial.

Once it is established that the “same transaction” exception is applicable, the court must then balance the prejudicial impact of the evidence against its probative value to determiné admissibility. Absent a flagrant abuse of discretion, that determination will not be disturbed on appeal. Commonwealth v. Shirey, supra. We cannot embrace the appellant’s contention in this instance that the prejudicial impact of the testimony concerning the alleged rape outweighed its probative value. Moreover, we cannot agree that the jury could not sufficiently erase the testimony from its mind, despite the trial court’s strong cautionary charge.

This is not a case such as Commonwealth v. Ewell, 318 Pa.Super. 397, 465 A.2d 13 (1983), which also addressed the issue of admitting evidence of a prior criminal act. In Ewell the defendant was tried for driving while under the influence of alcohol. A prosecution witness testified that the defendant told him that he had been involved in a prior incident for drunken driving. We found this testimony to be highly prejudicial despite the trial court’s cautionary charge. However, Ewell is distinguishable for several reasons. First, the testimony elicited by the Commonwealth in Ewell was introduced to show the state of mind of the defendant at the time he made his statement concerning a prior incident for drunk driving. Here, the testimony was introduced to show that the alleged attempted rape and the murder were part of one and the same transaction. Second, in Ewell the witness for the Commonwealth testified that the defendant had told him of the prior incident; he had no personal knowledge, nor was there any corroborating testimony. In the instant case, Sharon Joyce had personal knowledge of the first alleged criminal activity; there were also two witnesses who corroborated her testimony. Lastly, the two instances of crime in Ewell were so similar in nature that even the cautionary instruction given by the trial judge could not neutralize the prejudice resulting from admission of the testimony. In contrast, the two crimes in this instance, the alleged attempted rape and the murder, were undeniably dissimilar.

Any possible prejudice resulting from admission of the challenged testimony under the “same transaction” exception is heavily outweighed by the probative value of establishing the history of the event on trial. The reason for the victim’s presence at the appellant’s home is a fact which is essential to a jury’s understanding of the issues to be decided in this case. Further, in light of the trial judge’s strong cautionary instruction, we find that the testimony has little potential for prejudice. Accordingly, we find that the trial court properly admitted the testimony under the “same transaction” exception.

We have also considered the possibility of admitting the testimony concerning the alleged attempted rape under the “motive” exception. The Commonwealth introduced the evidence to establish Thomas Joyce’s provocation in initiating the confrontation that led to his death. The trial court permitted Sharon Joyce to repeat what she had told her husband as long as the jury heard no details. The court concluded that the testimony of the alleged attempted rape was both relevant and material and therefore was properly admissible.

Appellant claims that evidence of the victim’s motive was “improper, since it was irrelevant and highly prejudicial.” While we express no opinion whether the “motive” of the victim of a crime is not a basis for the exception to the general rule that evidence of prior criminal activity is inadmissible, we find in the instant case that we are also faced with the motive of the appellant. The alleged attempted rape of Sharon Joyce motivated the victim’s actions, which in turn provoked the appellant to shoot and kill him. Murphy’s act of shooting Joyce was a reaction to Joyce’s own behavior. It is highly unlikely that Murphy would have reacted so violently if he were not concerned about Thomas Joyce’s attempt at retaliation. Thus, the testimony is clearly relevant and impacts on the appellant’s motive for shooting the victim. See Commonwealth v. Sparks, 342 Pa.Super. 202, 492 A.2d 720 (1985); Commonwealth v. Smith, 341 Pa.Super. 564, 492 A.2d 9 (1985). Moreover, any possible prejudice resulting from admission of the testimony is outweighed by its probative value. Accordingly, we find that the evidence is admissible under the “motive” exception as well as under the “same transaction” exception.

Therefore, since appellant’s claim has no arguable merit, there is no need to address the issue of whether defense counsel had a reasonable basis for not objecting to the testimony admitted into evidence. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Carter, supra. We find no abuse of discretion by the trial judge.

Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion.

JOHNSON, J., files a dissenting opinion.

WIEAND, Judge,

concurring:

I agree with Judge Johnson that the “motive” of the victim of a crime is not properly a basis for creating a new exception to the general rule that evidence of prior criminal conduct of a defendant is inadmissible. However, I do not understand that Judge Cirillo has attempted to create such an exception in his opinion. Therefore, I join Judge Cirillo’s opinion. Evidence that the victim was told that defendant had attempted to rape the victim’s wife was admissible because it was part of the history of the event on trial, a part of the natural development of the facts. That the victim had been told of the attempted rape of his wife was essential to the jury’s understanding of the circumstances surrounding his going to the defendant’s home and of his subsequent death. Even Judge Johnson, in his well-written dissent, finds it necessary, in order to draw a complete picture of the circumstances surrounding this shooting, to recite the reason why Joyce was at the defendant’s home at the time when he was shot. The trial court did not err in receiving this evidence to show the history of the event on trial.

JOHNSON, Judge,

dissenting:

I agree with the majority that defense counsel’s failure to object to the testimony of three witnesses concerning the alleged prior criminal act of David Murphy resulted in a waiver of the first issue on this appeal. However, I believe that the challenged evidence does not qualify as an exception to the general rule prohibiting introduction of evidence of prior criminal activity, and that there is arguable merit in the ineffectiveness claim. I would vacate the judgment of sentence and remand for an evidentiary hearing to determine whether trial counsel had a reasonable basis for his challenged actions. Hence, this dissent.

Thomas Joyce, the homicide victim, had been separated from his wife for approximately three months. On the day in question, he had arrived at his estranged wife’s home at exactly 10:00 A.M. Shortly thereafter, his wife told him that David Murphy had attempted to rape her the night before. Joyce remained at his wife’s residence, talking with his wife and playing with their children. He fixed lunch for the family. Mrs. Joyce told her husband that she wanted to go to the police and report what had happened.

Joyce remained at his wife’s residence until 5:00 o’clock that evening. At his wife’s request, he left to pick up a friend of his wife and return her to the residence. Upon leaving the wife’s residence, Joyce met a friend, Danny Hunt, at a local bar, where each of them consumed two beers. They remained at the bar for twenty minutes before leaving to pick up the wife’s friend, Lisa French, and return her to the wife’s residence. The three persons arrived back at Mrs. Joyce’s residence at approximately 7:20 P.M., where Lisa French exited Joyce’s truck. Joyce and Hunt then departed for the residence of the defendant, where the altercation and shooting occurred shortly thereafter.

At time of trial the victim’s wife, Sharon Joyce, testified that she told her husband that Appellant Murphy “had tried to rape [her].” N.T., 3/30/81 at 15. Lisa French testified that the victim told her that Murphy “had attempted to rape his wife, Sharon.” N.T., 3/30/81 at 26. Additionally, Daniel Hunt, who accompanied the victim to Murphy’s house, testified that he was told by the victim of Murphy’s “attempt to rape his wife.” N.T., 3/30/81 at 34. Trial counsel did not object to any of this testimony concerning the alleged prior criminal activity of Appellant, Murphy.

The majority concludes that this evidence of an alleged rape which had occurred one day before the homicide on trial presents a “classic textbook example for the application of the ‘same transaction’ ... exception” to the rule against admission of prior criminal acts. I cannot agree.

It is a fundamental principle of criminal jurisprudence that the Commonwealth may not introduce evidence of a defendant’s prior criminal activity as substantive evidence of his guilt on the current charges. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1971).

An exception to this rule obtains where the prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts. Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932).

My examination of the cases upon which the majority relies does not disclose any factual situation approaching the one now before us, nor do I understand the majority to be suggesting that one exists.

In Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975), our supreme court did approve the admission of evidence of other crimes against a defendant charged with murder of an apartment dweller, where the other crimes had all occurred immediately before or after the homicide in question, and were “part and parcel of the violent rampage which resulted in the death of [the victim]” and “were necessary to complete the picture of the day in question.” Id., 462 Pa. at 591, 342 A.2d at 90.

In Commonwealth v. Davenport, 286 Pa.Super. 212, 428 A.2d 647 (1981), this Court considered the testimony of the victim who remembered a robbery occurring in a bar and the testimony of a police officer who had witnessed the robbery of the same victim on the street less than one block away a very short time later. We concluded that the facts involved one continuing crime, that the victim could not recall what happened after he was first attacked in the bar, and that the “same transaction” exception, as it might relate to prior crimes, was inapplicable on the facts presented in Davenport.

In Commonwealth v. Robinson, 316 Pa.Super. 152, 462 A.2d 840 (1983), we approved the introduction of testimony of a minor as to sexual acts committed against her by her mother’s paramour, which acts antedated those charged in the information but which were the same acts of alleged statutory rape as charged. There, we treated the earlier acts of sexual intercourse as not introducing evidence of “other crimes” but, rather, as being evidence of the same continuing ruse against the victim.

I cannot accept the alleged rape of the victim’s wife the evening before as constituting either a part of a chain or part of the natural development of the facts surrounding the homicide. The chain of events before the jury in this case would have begun, at the earliest, with the hearsay statement to the victim concerning his wife’s alleged rape. Even after the victim received this hearsay statement, he did not immediately act upon it, but rather remained with his estranged wife, fixing lunch, playing with the children and talking with his wife until 5:00 P.M. that evening. It was only after the victim had met with his friend, Hunt, at a bar and returned to his wife’s residence later that evening, that he proceeded to the site where the homicide occurred.

It might be argued that the hearsay statement imparted to the victim around 10:00 A.M. on the morning of the shooting may have some tenuous relationship to the natural development of the facts culminating in the shooting which occurred at about 7:30 P.M. the same day. The prior criminal act, however, which is alleged to have occurred the day before, cannot be shown to have been one of a sequence of acts, as in the Brown case, supra, or part of the history of the event on trial, as in Commonwealth v. Robinson, supra.

The majority asserts that the reason for the victim’s presence at the appellant’s home is a fact which is essential to a jury’s understanding of the issues to be decided in this case. However, the criminal information charged the defendant with criminal homicide. The charge was that the defendant, willfully and with malice aforethought, shot and injured the victim at a specific location at a certain time in the City of Pittsburgh, resulting in the victim’s death. The shooting occurred at the home of the defendant to which the victim had gone with a friend. I fail to see how the alleged criminal act which occurred the day before would assist the jury in fairly resolving the issues of whether the defendant acted with malice on the day in question.

I agree with the majority that analysis of any challenged evidence for admissibility under the “same transaction” exception is a two-step process, the second step of which involves the balancing of the probity of that evidence against its prejudicial impact. Commonwealth v. Shirey, 333 Pa.Super. 85, 122, 481 A.2d at 1314, 1334-35. See also Commonwealth v. Ulatoski, 472 Pa. 53, 63 n. 11, 371 A.2d 186,191 n. 11 (1977). Since I would find that the challenged evidence cannot be said to be a part of the same transaction, I would not reach the question of its prejudicial impact. It is, in my view, clearly inadmissible under Commonwealth v. Fortune, supra.

Were I to consider the challenged testimony as being admissible at the threshold, I would nevertheless find its probative value outweighed by the prejudice to the Appellant.

Three separate witnesses testified about Appellant’s alleged attempted rape of the victim’s wife on the night before the victim was shot. No cautionary instructions concerning the reference to appellant’s prior criminal activity were given to the jury during the direct testimony of Mrs. Joyce. It was only after defense counsel, in his cross-examination of Mrs. Joyce, began to explore the alleged rape incident that the trial court stated:

Let me caution the jury at this time that you are not to consider any aspect of whether there was an attempted rape by David Murphy against this woman here. That is no part of this case, but only entered for the purpose of showing the state of mind of her husband and that is all. So I want you to divorce yourself from that. The only thing you will be called upon to judge is the guilt or innocence to the homicide. So don’t be misled. The only purpose for this being offered by the Commonwealth, as I stated, was to show that this information was related to the deceased and what happened thereafter.

N.T., 3/30/81 at 20, 21.

Also, no cautionary instructions were provided to the jury when Lisa French and Daniel Hunt made similar references to the alleged attempted rape. However, in its charge to the jury the trial court addressed the question of the alleged attempted rape in the following manner:

Now, you will recall that there was some testimony in this case with regard to an alleged attempted rape against Mrs. Joyce, the victim’s wife. That should not be considered by you in any way in determining the guilt or. innocence of this defendant with regard to the charges of criminal homicide against him, that is not part and parcel of this case and was only entered for the limited purpose of showing why he was present at the place where he mainly was, the dwelling house of the defendant at the time that his death resulted and that is the only purpose.
Don’t get confused. There is no evidence on the record to. indicate that there was an attempted rape, this is not a charge in this case, so you are to ignore it.

N.T., 4/2/81 at 349.

Without question, the trial court’s charge to the jury on this point was a strong one, but in light of the nature of alleged prior criminal activity, no jury charge, no matter how effective, could cause the jury to “ignore” the alleged attempted rape.

In Commonwealth v. Ewell, 318 Pa.Super. 397, 465 A.2d 13 (1983) the defendant was tried for driving while under the influence of alcohol. One of the prosecution witnesses testified that the defendant told him he had had an incident before for drunken driving. In finding this testimony to be prejudicial, we stated:

To believe that a jury could erase from its mind testimony that appellant had previously been involved in a drunken driving incident because the trial judge told them to do so is not at all realistic. Appellant was unfairly prejudiced by the prosecuting attorney’s examination of a Commonwealth witness, and the trial court did not cure the prejudice.

Id., 318 Pa.Superior Ct. at 402, 465 A.2d at 16.

In my view, testimony concerning a prior alleged attempted rape committed against the wife of a homicide victim is the type of testimony that a jury could hardly forget regardless of the nature of the cautionary instructions given by the trial judge. If testimony concerning a prior drunken driving incident could not be cured, then a fortiori, testimony about an alleged attempted rape is too prejudicial to be overcome with cautionary instructions or a strong charge to the jury.

The majority would also find that the challenged evidence is admissible under the “motive” exception as well as under the “same transaction” exception.

In order for the “motive” exception to apply, the testimony concerning the defendant’s prior criminal activity must demonstrate a motive or reason for the defendant to have committed the crime for which he is being tried. Addressing this “motive” exception in Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976), Justice Eagen stated:

One of the special circumstances, operating as an exception to the general rule, under which evidence of a distinct crime may be introduced against a defendant is that situation where the proffered testimony tends to establish defendant’s motive for the killing charged in the indictment. Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971); Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964); Commonwealth v. Ferrigan, 44 Pa. 386 (1863). However, to be admissible under the above exception, evidence of a distinct crime, even if relevant to motive, “must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances.” Commonwealth v. Schwartz, supra, 445 Pa. at 522, 285 A.2d at 158.

Id., 465 Pa. at 524, 351 A.2d at 218-19. The motive of the victim of the crime is not a basis for exception to the general rule that evidence of prior criminal activity is inadmissible.

Neither the trial court in its charge to the jury, nor the Commonwealth on this appeal, has sought to advance the motive of the defendant as the reason for, or grounds in support of, the admission of the challenged testimony. I would not be inclined to speculate, as does the majority, on what may have caused the appellant to react as he did. The issue in this case is the admissibility of evidence of a prior crime, and not whether something said by the victim’s wife to the victim may have prompted him to take certain action which may have, in turn, raised certain thoughts in the mind of the defendant.

Finally, even were I to concede that the act of alleged rape might fall under one of the exceptions relating to prior criminal acts, the majority has cited to no case, nor am I aware of one, which would hold that hearsay statements concerning prior criminal acts may rise to the level of evidence of prior criminal activity and thereby be admissible against a defendant. Sharon Joyce’s testimony as to what she had earlier said to her husband was clearly hearsay as to the victim, Thomas Joyce. What he in turn repeated to Lisa French and Daniel Hunt was nothing more than double hearsay, insofar as French’s and Hunt’s testimonies set forth above are concerned.

The trial court, in its cautionary instruction to the jury, asserted that the evidence was being introduced “for the purpose of showing the state of mind of [the victim] and that is all.” N.T., 3/30/81 at 21. The state of mind of the victim is irrelevant to the issues necessary to be proved on the homicide charge against Appellant. I reject the majority’s view that the statements are both relevant and admissible to prove the defendant’s motive existing some twenty-four hours after the alleged prior criminal act occurred (and at least eight hours after the hearsay declaration was uttered). I must conclude that the challenged statements cannot even be characterized as proper evidence. If they are not proper evidence, we need not even consider whether, arguably, they might qualify as an exception to the rule laid down in Fortune. I, therefore, cannot accept the majority’s determination in this case which, in my view, broadly expands the “same transaction” exception to permit hearsay utterances of alleged prior criminal activity.

Since I would conclude that the testimony by three witnesses concerning the alleged rape occurring the day before the incident here on appeal was inadmissible, I find the claim of ineffectiveness of counsel to be of arguable merit. The Commonwealth argues, in the alternative, that trial counsel had a reasonable basis for not objecting to the testimony concerning the alleged attempted rape. According to the Commonwealth’s brief, the strategy of Appellant’s trial counsel was based on an attempt to show that the victim was extremely angry and that trial counsel was attempting to bolster the Appellant’s self-defense argument by demonstrating the victim’s violent behavior. The Commonwealth’s position is purely a speculative one. The trial court, following an evidentiary hearing, would be in a better position to determine what strategy, if any, Appellant’s trial counsel may have been pursuing when he chose not to object to testimony of Appellant’s alleged prior criminal activity. Commonwealth v. Egan, 335 Pa.Super. 474, 484 A.2d 802 (1984).

For all of the above reasons, I would vacate the judgment of sentence and remand for an evidentiary hearing on the ineffectiveness claim.

      . We are not suggesting that the generic term "res gestae” be abandoned in the context of the four distinct exceptions to the hearsay rule identified in Commonwealth v. Pronkoskie, 477 Pa. 132, 136-37, 383 A.2d 858, 860 (1978):
      (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    499 A.2d 1089
    COMMONWEALTH of Pennsylvania v. Tyrone WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1985.
    Filed Oct. 18, 1985.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant, Tyrone Williams, was convicted following a jury trial of one count of involuntary deviate sexual intercourse and one count of criminal conspiracy and sentenced to serve not less than 7V2 nor more than 15 years of imprisonment.

On appeal the following questions are presented to this Court:

I. DID PREJUDICIAL COMMENTS MADE BY THE DISTRICT ATTORNEY DEPRIVE THE ACCUSED OF A FAIR AND IMPARTIAL TRIAL AND CONSTITUTE REVERSIBLE ERROR?
A. DID PREJUDICIAL COMMENTS MADE BY THE DISTRICT ATTORNEY DURING CLOSING ARGUMENT CONSTITUTE REVERSIBLE ERROR?
B. DID PREJUDICIAL COMMENTS MADE BY THE DISTRICT ATTORNEY WHILE DEFENSE COUNSEL WAS CROSS-EXAMINING THE ALLEGED VICTIM CONSTITUTE REVERSIBLE ERROR?
II. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE A CRUCIAL PROSECUTION WITNESS REGARDING HIS ALLEGED RECORD AS A JUVENILE OFFENDER?

For the following reasons we affirm.

The charges against Appellant stem from an alleged jailhouse rape. The victim, who was 18 years old and an inmate at the Allegheny County Jail, testified that he was anally raped while the Appellant’s brother, Lynn Williams, stood guard outside Appellant’s cell. Apparently the victim was incarcerated awaiting sentencing following his guilty plea to twelve or thirteen counts of burglary.

Appellant initially argues that the prosecutor, on two separate occasions during closing arguments, made alleged prejudicial comments. Timely objections to both comments were made by defense counsel and requests to the trial court for cautionary instructions were denied. While referring to the first time the Appellant probably saw the victim in jail, the prosecutor commented; “What does [Tyrone Williams] see when [the victim] walks in, ladies and gentlemen? He sees fresh meat, that’s what he sees.” N.T., 8/13/82 at 156.

While the prosecutor has a duty to fairly present the Commonwealth’s case, as we indicated in Commonwealth v. Connors, 311 Pa.Super. 553, 563-64, 458 A.2d 190,195-96 (1983):

not every intemperate or improper remark by the prosecutor requires a new trial____ Before a new trial is required, the language must be such that its “unavoidable effect ... would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” (Citations omitted).

In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Commonwealth v. Martin, 307 Pa.Super. 118, 452 A.2d 1066 (1982).

Defense counsel set the tone for closing arguments when he stated:

[The victim] was such a shrinking violet, that he didn’t say a blessed word. He was so full of fear with his 6'5" friends, Mr. Seachrist living right upstairs, that Tyrone took advantage of him, he squirted some kind of salve or oil allegedly up his back side and proceeded to pounce on him for a half an hour. What did [the victim] do when it was over? He unfolded his clothes, he put them back on and went to lunch.

N.T., 8/13/82 at 139-40.

Following this graphic description of the alleged incident, the prosecutor’s reference to the victim as “fresh meat” when viewed in context was not so prejudicial as to require a new trial. See Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977).

Appellant also contends that the prosecutor’s statement “I submit to you, the testimony of [the victim] is the only believable testimony that you heard in this case” (N.T., 8/13/82 at 160) was grounds for reversal. We disagree.

As we recently stated in Commonwealth v. Pinder, 310 Pa.Super. 56, 67-68, 456 A.2d 179, 185 (1983):

Only when the [prosecutor’s] remarks are such that their “unavoidable effect ... would be to prejudice the jury, forming in their minds fixed bias and hostility that they could not weigh the evidence and render a true verdict is a new trial required”____ In [Pinder ], the remarks of the assistant district attorney did not have such an unavoidably prejudicial effect. Usually, the cited remarks were prefaced with the words “I submit.” This was merely an argument, an invitation to the jury to so find____ Moreover, a prosecutor is free to argue that the facts and reasonable inferences to be drawn therefrom are sufficient evidence to support a guilty verdict. (Citations omitted).

Furthermore, counsel for co-defendant Lynn Williams had already inspired such a comment in his closing argument when he stated, “Mr. Kelly’s going to tell you that he doesn’t believe [the victim], Mr. Krastek’s going to tell you he doesn’t believe Tyrone Williams.” N.T., 8/13/82 at 136.

The trial judge is in the best position to monitor the propriety of remarks of counsel during closing argument and:

the appellate courts must be more than hesitant to disturb a determination of the trial court regarding propriety since the quiet, studied solemnity of the appellate court is a world apart from the charged atmosphere of the trial courtroom.

Commonwealth v. Williams, 295 Pa.Super. 369, 378, 441 A.2d 1277,1282 (1982). We find in the instant case that the trial judge did not abuse his discretion by refusing to grant a mistrial.

Appellant’s next argument concerns alleged prejudicial comments made by the prosecutor during cross-examination of the victim. The defense counsel sought to cross-examine the victim concerning the victim’s guilty plea to thirteen counts of burglary when the prosecutor objected and made the following statement in the presence of the jury: “It’s my understanding they’re not allowed to ask this victim. I’m not allowed to ask the defendant.” N.T., 8/12/82 at 36. Appellant argues that the prosecutor’s comment led the jury to believe that Appellant had engaged in prior criminal activity. We find that, in light of the circumstances in the instant case, this comment by the prosecutor was not improper. The jury was well aware that both the victim and the Appellant were inmates at the Allegheny County Jail. Nothing new was revealed to the jury about Appellant’s criminal background by the prosecutor’s statement.

It is suggested by Appellant that a remand for a new trial is necessary because the trial court refused to permit defense counsel, on cross-examination of the victim, to inquire into his plea of guilty to twelve or thirteen counts of burglary where the victim had not yet been sentenced on those counts. This argument has no merit.

In Commonwealth v. Finkelstein, 191 Pa.Super. 328, 156 A.2d 888 (1959) this Court affirmed the trial court’s refusal to permit defense counsel to question a prosecution witness about his guilty plea to three burglary charges where the witness had not yet been sentenced. The Court in Finkelstein explained:

Although it is proper to cross-examine concerning specific convictions of crimes affecting the credibility of the witness, the crimes must be those for which a sentence has been imposed. In Commonwealth v. Palarino, 168 Pa. Super. 152, 156, 77 A.2d 665, 667 [(1951)], it was said: “With respect to impeachment of witnesses by records of previous convictions, it has been decided that ‘conviction’ must be given its strict technical meaning. Neither a verdict nor a plea will, without more, suffice____”

Id., 191 Pa.Superior Ct. at 333-34, 156 A.2d at 892.

We now turn to Appellant’s argument that the trial court erred in refusing to allow defense counsel to cross-examine the victim regarding his alleged record as a juvenile offender.

At a side bar conference after the trial court had refused to permit inquiry into the twelve or thirteen burglary counts for which the victim was awaiting sentencing, defense counsel stated:

At this time we want his juvenile record to see whether or not he has been convicted of crimen falsi other than these 12 burglaries.

N.T., 8/12/82 at 46. This request was also denied by the trial court.

The argument advanced before the trial court, but abandoned on appeal, has no merit since an adjudication of delinquency does not constitute a criminal conviction and, therefore, cannot be used for crimen falsi impeachment of witnesses. Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973); Commonwealth v. Case, 322 Pa.Super. 24, 469 A.2d 162 (1983); 42 Pa.C.S. § 6354(b).

Appellant’s argument before this Court that he is entitled to review the victim’s juvenile record is based on the United States Supreme Court case of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The precise issue before the Court in Davis was “whether the Confrontation Clause [of the Sixth Amendment] requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’s probationary status as a juvenile delinquent when such an impeachment would conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.” Id. at 309, 94 S.Ct. at 1107, 39 L.Ed.2d at 349-50. Prior to trial in Davis, the prosecutor moved for a protective order to prevent any reference to the juvenile record of Richard Green, a crucial prosecution witness. Green at the time had been on probation after having been adjudicated a delinquent for burglarizing two cabins. Defense counsel, in opposing the request for a protective order, made it clear that he wanted to use the juvenile record:

to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. From this petitioner would seek to show — or at least argue — that Green acted out of fear or concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of petitioner to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation. Green’s record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green’s good character into question.

Id. at 311, 94 S.Ct. at 1108, 39 L.Ed.2d at 351. The trial court granted the protective order and the defendant was subsequently convicted.

Chief Justice Burger in his opinion held that the Sixth Amendment right of confrontation of witnesses requires that a defendant in a state criminal proceeding be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias as a result of the witness’s juvenile record. Our supreme court in Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) followed the Davis decision and held that denial of permission for defense counsel to examine the juvenile record of the prosecution’s witness was error since it was impossible for counsel to know whether or not the juvenile record contained anything upon which he could argue that the witness was biased against the defendant.

Neither Davis nor Slaughter involved a request for the inspection of juvenile records to determine whether the prosecution witness had been convicted of crimen falsi. These cases, therefore, do not support Appellant’s contention at trial that he is permitted to inspect juvenile records for convictions of crimen falsi. Appellant’s counsel did not indicate that he wanted to examine the victim’s juvenile record for possible bias. The trial court did not have appropriate reasons before it for granting defense counsel’s request. Therefore, the trial court’s refusal to permit inspection of the juvenile record of the victim was made without benefit of the “possible bias” argument and this argument cannot now be advanced on appeal.

As our supreme court indicated in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975):

[i]t has long been the rule in this jurisdiction that if the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived, and may not be raised post trial. Commonwealth v. McNeal, 456 Pa. 394, 398, 319 A.2d 669 (1974); Commonwealth v. Budd, 443 Pa. 193, 195, 278 A.2d 879 (1971); Commonwealth v. Raymond, 412 Pa. 194, 202-203, 194 A.2d 150 (1963).

Id., 462 Pa. at 60, 337 A.2d at 881. See also Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979).

Although the instant case involves evidence which was not admitted, rather than an evidentiary objection, we believe the rationale of Stoltzfus is equally applicable here. Appellant’s counsel did not advance a “possible bias” argument in explaining to the court the reasons in support of his position that he should be permitted to review the victim’s juvenile record. He cannot now be heard to complain that the trial court should have permitted review of the victim’s juvenile record on the grounds of “possible bias” when that argument was not made below. Appellant, therefore, failed to preserve the “possible bias” issue for review.

Judgment of sentence affirmed.


author: HOFFMAN, Judge:

text:
    499 A.2d 1094
    COMMONWEALTH of Pennsylvania v. Anthony FORTUNE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Oct. 18, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for theft of a motorcycle license plate. Appellant contends that the Commonwealth did not prove that the trial dates scheduled after each continuance were the earliest possible trial dates consistent with the court’s business as required under Pa.R. Crim.P. 6013. Because we agree that there is no proof in the record that the trial date following the second continuance was the earliest possible date, we reverse and vacate the judgment of sentence.

On July 12, 1983, appellant was arrested and charged with theft and receiving stolen property. The mechanical run-date, the last day that appellant’s trial could begin in accordance with Pa.R.Crim.P. 6013(a)(2), was November 10, 1983, 120 days after the preliminary arraignment. Trial was initially scheduled for August 23, 1983, but, because of the trial judge’s heavy caseload, was continued to October 12, 1983.

On October 12, the second scheduled trial date, appellant’s trial was again continued, this time because the arresting officer was ill. Trial was rescheduled for November 25, 1983. On that date the Commonwealth filed an oral Rule 6013 motion to extend the time for commencement of trial because the arresting officer was on vacation. The trial was continued until February 6, 1984.

On February 6, the trial court denied appellant’s motion to dismiss for violation of Rule 6013 and proceeded to trial. Appellant was found guilty of theft and receiving stolen property following a non-jury trial, and was sentenced to pay $250 in fines and seventy dollars in costs. Appellant’s appeal to the Court of Common Pleas was filed and denied. This appeal followed.

Pennsylvania Rule of Criminal Procedure 6013 provides in relevant part, that:

(c)(l)(i) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the Court orally or in writing for an order extending the time for commencement of trial. The defendant shall have the right to be heard on the Commonwealth’s motion.
(iii) Such motion shall allege facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth ____
(iv) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.

Pa.R.Crim.P. 6013(c)(l)(i), (iii), (iv) (emphasis added). When analyzing whether the trial court properly granted an extension under Pa.R.Crim.P. 6013 or 1100, this Court must determine whether the record establishes that (1) trial could not be commenced within the allotted time period despite the Commonwealth’s due diligence and (2) trial was scheduled for the earliest possible date consistent with the court’s business. Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976).

Appellant contends that the Commonwealth failed to prove that the dates set for trial were the earliest possible dates consistent with the court’s business. To comply with the requirement that the trial be scheduled for the earliest possible date, such a showing must appear in the record. See Commonwealth v. Jackson, 336 Pa.Superior Ct. 486, 489, 485 A.2d 1186, 1187 (1984) (per curiam), allocatur granted (judgment of sentence vacated because no certification on record that trial scheduled for earliest possible date); Commonwealth v. Donaldson, 334 Pa.Superior Ct. 473, 480, 483 A.2d 549, 553 (1984) (en banc), allocatur granted (notation in District Attorney’s file stating that new date was earliest possible date, inadequate certification that date was in fact earliest possible); Commonwealth v. Cadogan, 328 Pa.Superior Ct. 517, 520, 477 A.2d 565, 567 (1984) (Commonwealth failed to carry burden of proof where record devoid of evidence that listing was earliest possible date for trial).

Here, the August 23, 1983 trial date, which was scheduled after the first continuance, was within the 120-day period allotted under Pa.R.Crim.P. 6013. Therefore, we need not consider whether the Commonwealth’s oral Rule 6013 motion was properly granted for this first postponement. Furthermore, we note that the Quarter Session filed indicates E.P.D. (earliest possible date) for the February 6, 1984 trial date which is sufficient to satisfy the Commonwealth’s burden of proof. See Commonwealth v. Byrd, 325 Pa.Superior Ct. 325, 332, 472 A.2d 1141, 1145 (1984) (notation E.P.D. in court file sufficient evidence that Commonwealth secured earliest available date). Therefore, we are concerned here only with the continuance from October 12, 1983 to November 25, 1983. The required certification for this trial date is absent from the record, and, accordingly we are compelled to hold that the Commonwealth failed to carry its burden of proving that the trial date was the earliest possible date.

The Commonwealth contends, however, that even if it did not meet its burden of proof under Pa.R.Crim.P. 6013, appellant waived any objection thereto by failing to object on the record when the lower court rescheduled the trial. In Commonwealth v. Donaldson, supra 334 Pa.Superior Ct. at 482-84, 483 A.2d at 554-55, we held that without any transcript of the proceedings during which the new trial was scheduled, we were unable to hold that the defendant had waived any objection to the new trial date. We reasoned that such a rule would relieve the Commonwealth of its burden of proving a knowing and intelligent waiver on the record and thus concluded that a waiver could be shown only by an on-the-record waiver of rights. Id. See also Commonwealth v. Jackson, supra 336 Pa.Superior Ct. at 489, 485 A.2d at 1187. Similarly, in the instant case, there is no transcript of the proceedings below which would indicate whether or not appellant objected to the new trial date. Therefore, we cannot hold that appellant waived his right to object to the trial extensions.

For the above reasons, we reverse and vacate the judgment of sentence and, appellant is discharged.

Reversed. Judgment of sentence vacated. Appellant discharged.

      . Appellant also contends that (1) the Commonwealth failed to exercise due diligence in bringing his case to trial within the time required under Pa.R.Crim.P. 6013, and (2) physical evidence and testimony' should have been suppressed because the arresting officer did not ■ have probable cause to arrest appellant. Because of our disposition of this case, however, we need not address these contentions.

      . Pa.R.Crim.P. 6013 sets out the time frame for trial in Municipal Court, whereas Pa.R.Crim.P. 1100 governs the time for trial in all other Pennsylvania courts. The principles applied under Rule 1100 apply equally to Rule 6013 cases. See Pa.R.Crim.P. 6013 comment.

      . In Commonwealth v. Lafty, 333 Pa.Superior Ct. 428, 482 A.2d 643 (1984) (en banc), this Court noted in a footnote that the requisite showing, that the actual trial date was the earliest possible date, is only necessary in cases of judicial delay as opposed to delay caused by the Commonwealth or the defense. Id., 333 Pa.Superior Ct. at 434 n. 1, 482 A.2d at 646 n. 1. We decline to follow Lafty on the authority of Commonwealth v. Donaldson, 334 Pa.Superior Ct. 473, 480, 483 A.2d 549, 553 (1984) (en banc), allocatur granted. In Donaldson, decided after Lafty, the same en banc panel of this Court vacated the judgment of sentence because there was no evidence in the record that the trial date was the earliest possible date. In Donaldson, as here, the delay was not judicial delay, but rather, delay due to the arresting officer’s vacation. Moreover, in a concurring opinion to Lafty, President Judge Spaeth stated that “the Commonwealth must always prove both its due diligence and that the trial was scheduled for the earliest date consistent with the court’s business.” Commonwealth v. Lafty, supra 333 Pa.Superior Ct. at 437-38, 482 A.2d at 648 (SPAETH, P.J., concurring).


author: BROSKY, Judge:

text:
    499 A.2d 1096
    COMMONWEALTH of Pennsylvania v. Rudolph J. KOZRAD, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1985.
    Filed Oct. 25, 1985.

      Wayne R. Cromie, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed after a jury found appellant guilty of Driving a Vehicle While Under the Influence of Alcohol (two counts), Homicide by Vehicle, Homicide by Vehicle While Driving Under the Influence, Involuntary Manslaughter, and Recklessly Endangering Another Person. Appellant was sentenced to undergo imprisonment for not less than three nor more than six years for the charge of Homicide by Vehicle While Driving Under the Influence. Appellant also received a separate, concurrent sentence of IIV2 to 23 months for Involuntary Manslaughter. Appellant raises five issues for our determination: whether sufficient evidence was produced to support appellant’s convictions; whether the sentence imposed was unduly harsh and unconstitutional; whether 75 Pa.C.S. § 3735 is constitutional due to the strict liability it imposes; whether the trial court erred in refusing certain of appellant’s objections to testimony and in denying certain of his requested jury instructions; and whether the trial court erred in failing to strike three jurors for cause.

We have carefully reviewed the record and briefs submitted by counsel, as well as the opinion of the trial court, and find each of appellant’s contentions to be without merit. However, we find that the trial court erred by imposing separate sentences for Homicide by Vehicle While Driving Under the Influence and Involuntary Manslaughter. Therefore, we vacate the judgment of sentence for Involuntary Manslaughter.

Although the illegality of sentence issue was not raised by appellant, it is required of this court to correct an illegal sentence sua sponte. Commonwealth v. Ruffin, 317 Pa.Super. 126, 463 A.2d 1117 (1983). We hold that for sentencing purposes the offenses of Involuntary Manslaughter and Homicide by Vehicle While Driving Under the Influence merge. The imposition of separate punishments for the merged offenses is “illegal”. Commonwealth v. Tolassi, 303 Pa.Super. 177, 449 A.2d 636 (1982).

There are currently two tests for merger applied by the courts of this Commonwealth. The traditional and obvious test for merger is whether one crime necessarily involves the other; whether the essential elements of one are also the essential elements of the other. Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983). The second test for merger stems from the rule that “an individual can be punished only once for a single act which causes only one injury to the Commonwealth.” Commonwealth v. Schilling, 288 Pa.Super. 359, 370, 431 A.2d 1088, 1093 (1981). The proper focus of the second test is on the number of injuries sustained by the Commonwealth from a given act. Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985). Applying either test to the offenses in the instant case we find that they necessarily merge.

The crime of Involuntary Manslaughter in this case required proof that appellant engaged in doing an unlawful act (driving under the influence) “in a reckless or grossly negligent manner” and that his act caused the death of another. 18 Pa.C.S. § 2504. The proof required for Homicide by Vehicle While Driving Under the Influence was that appellant be convicted of 75 Pa.C.S. § 3731 (driving under the influence) and that such act was the cause of death of another. 75 Pa.C.S. § 3735. Thus, the essential elements of Homicide by Vehicle While Driving Under the Influence are necessarily established by proving the essential elements of Involuntary Manslaughter where the act giving rise to the charge of Involuntary Manslaughter is a violation of 75 Pa.C.S. § 3731. Therefore, under the traditional “elements” test, the two offenses must merge for sentencing purposes. Cf Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981), (holding that Involuntary Manslaughter and Homicide by Vehicle, 75 Pa.C.S. § 3732, merge).

Applying the “single injury” test for merger in the instant case leads to the same result. Appellant’s single act of driving a vehicle while under the influence of alcohol was the direct cause of decedent’s death in the instant case. While the facts do support the jury’s verdict of guilty for both Homicide by Vehicle While Driving Under the Influence and Involuntary Manslaughter, appellant committed but one act. More important is the fact that the Commonwealth sustained but one injury from appellant’s single act. Therefore, punishment for both offenses is proscribed by the second test for merger.

As stated in this court’s recent opinion in Williams, supra 344 Pa.Super. at 143, 496 A.2d at 50.

In determining how many different “evils” are present in a given criminal act, the sentencing court should devote close attention to the language the Legislature has used and the scheme it has followed in defining offenses in the Crimes Code and other penal statutes. The court must also approach the question with a heavy dose of common sense.

In defining the offenses of Involuntary Manslaughter and Homicide by Vehicle While Driving Under the Influence, the Legislature clearly intended to protect its citizens from death directly caused by the unlawful acts of others. Whether an individual is guilty of either offense or both, it is the death of a citizen that constitutes the injury suffered by the Commonwealth. Thus, we conclude that where there is one death, there is but one injury to the Commonwealth when an individual’s act of driving under the influence leads to a conviction for both Homicide by Vehicle While Driving Under the Influence and Involuntary Manslaughter.

Once we have determined that a sentence is illegal, we may remand for sentencing or vacate and amend the invalid sentence directly. Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). When crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the most serious, i.e., the crime which carries the greatest maximum penalty. Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Because Homicide by Vehicle While Driving Under the Influence is graded a felony of the third degree and imposes a constitutionally valid, mandatory sentence which is greater than that which can be imposed for Involuntary Manslaughter (a misdemeanor of the first degree), we vacate the judgment of sentence for Involuntary Manslaughter. The judgment of sentence for Homicide by Vehicle While Driving Under the Influence is affirmed.

      . Appellant’s Statement of the Questions Involved group his arguments into five categories. Elsewhere in his brief, appellant lists nineteen separate issues. However, these nineteen issues appear to be sub-issues of the five primary issues. We note this and direct counsel’s attention to Pa.R.A.P. 2116.

      . Appellant’s constitutionality arguments have been fully addressed in this court's recent opinion in Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985).

      . 75 Pa.C.S. § 3735.

      . 18 Pa.C.S. § 2504.

      . 18 Pa.C.S. § 2504 also prohibits doing a lawful act in a reckless or grossly negligent manner which directly causes another’s death.

      . Where more than one death results from a single act of driving under the influence, the Commonwealth suffers multiple injuries (see Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984)), but, as to each victim, Involuntary Manslaughter and Homicide'Ey Vehicle While Driving Under the Influence would still merge.


author: OLSZEWSKI, Judge:

text:
    499 A.2d 1099
    COMMONWEALTH of Pennsylvania v. Robert P. BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Oct. 25, 1985.

      Alonzo Burney, McKeesport, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OLSZEWSKI, Judge:

This appeal is from the order of the Court of Common Pleas of Allegheny County denying appellant’s motion to quash on ground of double jeopardy and due process. Record at 6. In its opinion filed pursuant to Rule 1925, Pa.R.A.P., record at 9, the lower court cited our decision in Commonwealth v. Brooks, 330 Pa.Super. 355, 479 A.2d 589 (1984), as controlling. We affirm the order of the lower court. In so doing, we reaffirm our holding in Brooks, supra, but recognize a distinction in light of the peculiarities of the instant case.

In Brooks, supra, we decided that the double jeopardy clause of the federal and state constitutions did not preclude criminal prosecution subsequent to a disciplinary proceeding and imposition of sanction in a correctional institution. U.S. ConstAmends. V and XIV; Pa. Const. Art. I, Sec. 10. We discussed the independent purposes served by each proceeding and recognized that the raison d’etre of the double jeopardy clause was to “require that person be subject only once to a criminal punishment designed to vindicate public justice.” Brooks, supra, at 330 Pa.Super. 355, 360, 479 A.2d 589, 592 (1984). Since prison disciplinary action is “not exercised primarily to punish, but for the alternative purpose of controlling behavior in order to maintain safety, security, order and to accomplish rehabilitation,” we concluded that no constitutional harm would result from criminal prosecution arising from the same facts and circumstances which precipitated the discipline. Id. at 330 Pa.Super. 355, 362-3, 479 A.2d 589, 593 (1984).

The circumstances of the instant case are significantly different from those presented in Brooks, supra. Our review of the record indicates that appellant is charged with one count of criminal homicide. Record at 1. Also, the lower court’s Rule 1925 opinion, Pa.R.A.P., indicates that in the prison disciplinary proceeding, appellant was adjudicated guilty of a number of offenses including assault by a life prisoner. While the record is unclear, it is apparent that appellant may well be facing a capital trial upon our affirmance of the lower court’s order. See: 42 Pa.C.S.A. Sec. 9711(d)(10).

Capital cases are significantly different and wear a cloak of seriousness not worn by any other cases. In this Commonwealth, the capital case is and must be treated with the utmost caution at every stage of the proceedings in the protection of constitutional rights. For example, the Sentencing Code provides for a separate sentencing hearing after return of a verdict of guilty of murder in the first degree. 42 Pa.C.S.A. Sec. 9711(a) and (b). This hearing is conducted as a separate trial of evidence relating to statutorily defined aggravating and mitigating factors surrounding the defendant and the circumstances of his crime. Id. Sec. 9711(d) and (e). If a verdict in favor of death is returned by the jury, it is presented to the trial judge. Id. Sec. 9711(g). If, after review, the trial judge imposes the sentence of death, the entire matter is subject to an automatic appeal to the Supreme Court. Id. Sec. 9711(h). At this stage, “(i)n addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death, or vacate the sentence of death and remand for the imposition of a life imprisonment sentence.” Id. Sec. 9711(h)(2). The Supreme Court has also held that on such, appeal it shall conduct an independent review of the evidence to determine its sufficiency, even when the issue has not been raised. Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984). These procedural safeguards and the purpose behind them require us to act with equal caution. In reaffirming our holding in Brooks, supra, as it relates to the issue of double jeopardy, we do not diminish it in any way but merely recognize the statutory and case law directives which distinguish the capital case and demand a more copious exercise of constitutional protection. Thus while a double jeopardy argument will not prevent prosecution in a case such as this present, we cannot so easily dismiss due process and other constitutional claims raised in the declaredly capital case. A brief discussion at the hearing on appellant’s motion indicates uncertainty over the capital nature of the proceedings, at least as it relates to an assumed codefendant of appellant. N.T. at 7. No other mention is made of the capital issue nor the bearing this will have on appellant’s case. Appellant, however, raises his constitutional issues in the same vacuum as Brooks, supra, without reference to such capital possibilities. These issues are not justiciable in this context and will not be reviewed.

Affirmed.

ROWLEY and DEL SOLE, JJ., concur in the result.

      . Obviously, statements made by the defendant at the disciplinary stage cannot be used against him at the criminal proceeding, nor can his decision to present a defense at the disciplinary stage be construed as a waiver of his right not to incriminate himself at the subsequent criminal trial.

      . While not cited specifically in the statute, 42 Pa.C.S.A. Sec. 9711, the trial court, as in any other case, retains its right to review the evidence at the penalty stage, the findings of the jury, and the propriety of these findings relating to death. Cf. Rules 1123 and 1124, Pa.R.Crim.P.

      . In Brooks, supra, we declined to address the due process arguments of the appellant, citing Commonwealth v. Klobuchir, 486 Pa. 241, 248 n. 5, 405 A.2d 881, 884 n. 5 (1979). In Klobuchir, supra, the Supreme Court displayed a reluctance to consider constitutional arguments, other than those relative to double jeopardy, on interlocutory appeal. The Court cited Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), as extending interlocutory jurisdiction in double jeopardy situations, and while not absolutely precluding this jurisdiction in other cases, declared that the purpose of jurisdictional assumption in Bolden, supra, was not to "resolve any and all constitutional questions raised pre-trial by the appellant." Klobuchir, supra, 486 Pa. 241, 248 n. 5, 405 A.2d 881, 884 n. 5 (1979). It is in the setting of a capital matter that further discussion of this jurisdictional question is warranted.


author: WICKERSHAM, Judge:

text:
    499 A.2d 1101
    Edmund M. WENDLER, Jr., Appellant, v. Michael R. DePAUL.
    Superior Court of Pennsylvania.
    Argued April 16, 1985.
    Filed Nov. 1, 1985.

      Brooke M. Boyer, Reading, for appellant.
    Daniel B. Huyett, Reading, for appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

Edmund Wendler, Jr. appeals from the order of the Court of Common Pleas of Berks County granting Michael DePaul’s preliminary objections in the nature of a demurrer and dismissing Wendler’s complaint.

In July, 1984, Edmund Wendler, Jr., appellant herein, initiated this action by filing a complaint alleging defamation on the part of appellee Michael DePaul. Appellant’s complaint alleged that appellant and appellee worked at the Carpenter Technology Corporation plant in Reading, Pennsylvania; appellant was a laborer and appellee was employed as the superintendent of the transportation, labor, and billet yard. Appellant further averred that on February 3, 1984, while appellant was working at the plant, a large piece of steel which he was moving in an overhead hoist fell and struck him on the foot. In response to this incident, appellee, appellant’s superior, wrote a report containing statements which appellant alleged were “false, malicious and defamatory”:

a. That the incident occurred because [appellant] had willfully disregarded instructions in proper material handling procedures.
b. That at the time of the incident, [appellant] had improperly attached the equipment to the piece of steel.
c. That immediately prior to the incident another employee had ordered [appellant] to put the piece of steel down and properly connect the equipment and that [appellant] had refused to do so.
d. That [appellant] refused to seek medical treatment for the injury.
e. That Walter Johnson, a supervisor, indicated that [appellant] was not able to adequately perform the functions of his position.
f. That the job performance of [appellant] is marginal and many times borders on the unsafe.

Complaint at 2.

The complaint further stated that a copy of this report was sent to the manager of employee relations at the plant, and that, as a result, appellant’s employment was terminated.

In response to the complaint, appellee filed preliminary objections in the nature of a demurrer, contending that the complaint failed to state a cause of action in that the statements alleged to be libelous were not defamatory as a matter of law. On October 30, 1984, the Honorable Thomas J. Eshelman granted appellee’s preliminary objections and dismissed appellant’s complaint. Appellant filed this timely appeal.

The sole issue for our consideration is whether the lower court erred in finding that the alleged statements are not defamatory as a matter of law. We agree that they are not and, therefore, we affirm the lower court’s decision to grant appellee’s preliminary objections in the nature of a demurrer.

In ruling upon a demurrer, we look to the following principles of law:
A demurrer admits all relevant facts pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law____ A demurrer may not be sustained unless the complaint evidences on its face that the claim cannot be sustained because the law will not permit recovery____ In ruling on a demurrer, a court may not consider factual matters not disclosed in the record____ If there is any doubt, the doubt should be resolved in favor of overruling the demurrer; ____

Chorba v. Davlisa Enterprises, Inc., 303 Pa.Superior Ct. 497, 500, 450 A.2d 36, 37-38 (1982) (citations omitted). Hoch v. Philadelphia Electric Co., 341 Pa.Super. 598, 600, 492 A.2d 27, 28 (1985). See also, Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985).

Instantly, the demurrer was properly granted only if the alleged statements were not defamatory as a matter of law. “Procedurally, it is the trial court’s function to determine, in the first instance, whether the communication complained of is capable of a defamatory meaning.” Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245, 249, 482 A.2d 266, 268 (1984).

In Pennsylvania law, a communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Corabi v. Curtis Publishing Co., 441 Pa. 432, 441, 273 A.2d 899, 904 (1971)____ The test is the effect the statement would fairly produce, or the impression it would naturally engender, “in the minds of the average persons among whom it is intended to circulate.” Corabi, supra, 441 Pa. at 447, 273 A.2d at 907, quoting Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936).

Rybas v. Wapner, 311 Pa.Super. 50, 54-55, 457 A.2d 108, 110 (1983). Furthermore, “[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 317, 182 A.2d 751, 753 (1962), quoting Restatement of Torts § 559.

To determine whether a communication is capable of defamatory meaning, the court must examine the words in their factual context. Rybas v. Wapner, supra, 311 Pa.Superior Ct. at 56, 457 A.2d at 110. The nature of the intended audience is a critical factor in considering whether a communication is capable of defamatory meaning. Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980).

In the case at bar, the alleged defamatory statements were made in the context of an employment-related report by appellee, appellant’s superior. The report was written as a result of the incident heretofore described and was an evaluation of appellant’s work performance. It was addressed only to the manager of employee relations. Appellant does not allege that the report was not confidential or was intended to be communicated to other individuals within the plant or to the general public.

While appellant’s job performance was criticized, he was not accused of dishonesty or anything else that would “blacken [his] reputation or [ ] expose him to public hatred, contempt, or ridicule.” Beckman v. Dunn, supra, 276 Pa.Superior Ct. at 533, 419 A.2d at 586. Rather, the report was an evaluation of an employment incident that necessarily included “subjective elements that render statements, of the kind complained of here, akin to opinion____ Opinion, without more, is not actionable as libel.” Id., 276 Pa.Superior Ct. at 535, 419 A.2d at 587.

It is clear that the alleged statements were made by appellee in the context of appellee’s position as appellant’s supervisor. The report was disseminated only to the manager of employee relations. Given this factual context and the intended audience, we agree that the alleged statements were not capable of defamatory meaning.

Order affirmed.

      . The lower court thoroughly and properly discusses Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980) and its applicability to the instant case. We agree with the lower court’s analysis and need not expand on it further. We also note that Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983) provides further support for our decision.


author: WIEAND, Judge:

text:
    499 A.2d 1104
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald Lee SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1985.
    Filed Nov. 1, 1985.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

The present appeal has been filed from an order dismissing a P.C.H.A. petition after hearing. Ronald Lee Smith argues that trial counsel was constitutionally ineffective for failing to request a public voir dire examination of prospective jurors. We find no merit in this argument and affirm the order denying post-conviction relief.

Appellant was tried by jury on September 17 and 18, 1980, and was found guilty of murder in the second degree. The Superior Court, on direct appeal, affirmed the judgment of sentence per curiam; and the Supreme Court denied allocatur. Appellant then filed a P.C.H.A. petition alleging that trial counsel, who had been privately retained, was ineffective for failing to request public voir dire examination of prospective jurors. He relied upon the 1984 decision of the United States Supreme Court in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), and a 1982 decision of the Superior Court of Pennsylvania in Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982). These decisions held that a defendant’s right to public trial under both the United States Constitution and the Pennsylvania Constitution included the right to have the jury selected in public.

The circumstances under which a jury was selected to try appellant were not challenged or in any way made an issue during his trial, in post-verdict motions filed thereafter, or on direct appeal from the judgment of sentence. The issue, therefore, has been waived. Even if Johnson is to be given retroactive effect, it can be applied only “to cases where the issue in question is properly preserved at all stages. of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

In apparent recognition that the issue has not been preserved, appellant argues in this collateral attack on his conviction that trial counsel was ineffective for failing to raise the issue in the trial court and for failing to preserve it at all stages of adjudication up to and including the direct appeal. However, we will not “impose upon trial counsel the qualities of a seer ... and counsel will not be deemed ineffective for failing to predict future developments in the law.” Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977). On the contrary, we examine counsel’s stewardship under standards as they existed at the time of his actions. Id., 476 Pa. at 89, 381 A.2d at 881.

When this case was tried it was not unusual in this Commonwealth to conduct voir dire in an area apart from the courtroom and then bring the selected jury into the courtroom for trial. See, e.g., Commonwealth v. Knight, 469 Pa. 57, 69-70 n. 11, 364 A.2d 902, 908 n. 11 (1976). This was true even though the right to public trial (and hence public voir dire) had been a longstanding recognized part of Anglo-American jurisprudence. See: Press-Enterprise, supra. Public trials ensured that fairness would be accorded the defendant and public concerns vindicated. Id. The practice of conducting voir dire in a private area in advance of taking testimony in the courtroom was not intended to and did not undermine the safeguards of public trials. The purpose of the procedure was to enhance the efficient movement of cases. If a defendant requested voir dire and jury selection in the courtroom, of course, he was entitled thereto. Because in most cases there was no practical advantage to be gained by insisting upon holding voir dire in the courtroom, however, such requests were seldom made. We conclude, therefore, that counsel, in 1980, was not required to request, at the risk of being deemed ineffective, the public selection of a jury as later articulated by decisions in Press-Enterprise and Johnson.

Moreover and in any event, appellant failed to show in this case that public voir dire would have offered a potential for success greater than the selection process actually utilized or that he was prejudiced in any way because his trial counsel failed to request an alternate procedure. “A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice____” Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984). Thus, even if we were to find arguable merit in appellant’s claim that counsel in 1980 should have requested public voir dire, appellant would not be entitled to a new trial because he failed to show that the course followed by counsel affected the fairness of his trial or otherwise caused prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). He failed to show that he had requested counsel to seek public voir dire, that the voir dire actually conducted had been suggestive or otherwise improper, that the jury selection process had been tainted or, indeed, that anyone seeking admittance during jury selection had been denied admission. Finally, appellant has not even dared to suggest any likelihood that a jury selected in a different manner would have reached a different result. Because there is no reason to find that an alternate course would have offered “a potential for success substantially greater” than the result achieved by nonpublic voir dire, appellant’s present contention must be rejected. His trial counsel was not constitutionally ineffective.

Order affirmed.

SPAETH, President Judge, concurs in the result.


author: MONTEMURO, Judge:

text:
    499 A.2d 1106
    Myles S. BARBET and Sidney J. Barbet, Appellants, v. Fred EDELSTEIN.
    Superior Court of Pennsylvania.
    Argued June 18, 1985.
    Filed Nov. 1, 1985.

      Kevin A. Palmer, King of Prussia, for appellants.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   MONTEMURO, Judge:

Myles and Sidney Barbet filed a complaint against Fred Edelstein for breach of contract and fraud. The transaction which brought about this litigation involved an agreement between the parties to purchase and then resell tickets to the 1984 National Football League’s “Super Bowl.” According to the parties’ understanding, the Barbets would “invest” fifteen hundred dollars ($1,500.00), which Edelstein would use to purchase the tickets; the tickets would then be resold at a profit. Apparently Edelstein carried out this “investment venture,” and sent the Barbets their return on the investment in the form of a check for three thousand, three hundred sixty dollars ($3,360.00). The check was returned by the Barbets’ bank due to insufficient funds, and this litigation followed.

In response to the Barbets’ complaint, Edelstein filed a preliminary objection in the nature of a demurrer stating that the contract and “venture” was nothing more than common ticket “scalping” and, as such, the agreement was illegal and unenforceable. The court below granted Edelstein’s demurrer and dismissed the complaint. This appeal followed.

“Upon demurrer, a reviewing court must regard as true all well-pleaded facts and reasonable inferences deducible therefrom.” Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984). While a demurrer admits all well-pleaded facts set forth in the complaint, it does not admit conclusions of law. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976). In ruling on a demurrer, a court may look only to matters arising out of the complaint itself and may not consider matters not disclosed in the record. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 450 A.2d 36 (1982); DeSantis v. Swigart, 296 Pa.Super. 283, 442 A.2d 770 (1982). Although there is no “ ‘magic formula’ to determine the sufficiency of a plaintiff’s complaint ... the law is clear that a demurrer can only be sustained in a case free from doubt.” Bartanus v. Lis, supra, 332 Pa.Super. at 53, 480 A.2d at 1181 (original emphasis). Any doubt which does exist should be resolved in favor of overruling the demurrer. Chorba v. Davlisa Enterprises, Inc., supra.

The Barbets advance numerous assignments of error on the part of the court below, and request that we reverse the order of the court below and remand the case in order to allow them to amend their complaint. However, due to Edelstein’s procedural error below, and our limited scope of review as set forth above, we do not reach these contentions.

As we stated earlier, Edelstein filed preliminary objections in the nature of a demurrer, which argued the illegality of the contract or “venture” undertaken by the parties. However, the Pennsylvania Rules of Civil Procedure clearly prohibit such a response to the Barbets’ complaint as “illegality of a contract ... is an affirmative defense which shall be pleaded by way of New Matter ... and cannot be raised by way of Preliminary Objections.” DeAngelis v. Laughlin, 436 Pa. 75, 77, 258 A„2d 615, 615 (1969); National Recovery Systems v. Frebraro, 287 Pa. Super. 442, 430 A.2d 686 (1981); Pa.R.C.P. 1017(b), 1030; 2 Goodrich-Amram § 1017(b):ll; 5 Standard Pennsylvania Practice 2d § 25:65. The Barbets have never objected, either in the proceedings below or now on appeal to this procedural impropriety. As such, the court below properly entertained the preliminary objection despite the procedural defect. National Recovery Systems v. Frebraro, supra.

The court below stated, in its opinion written pursuant to Pa.R.A.P. 1925, that the complaint must be dismissed because “[t]he subject matter of this contract is clearly in violation of the requirements of 4 Pa. C.S.A. [P.S.] § 202.” Opinion of the court below at 2. Section 202 provides:

No person shall resell or engage in or continue in the business of reselling any tickets of admission, or any other evidence of the right of entry to any place of amusement, at a price higher than the established price fixed by the owners of such place of amusement, without having first obtained a license to so resell or engage in such business from the licensor of the county or city in which such person intends to conduct such business as hereinafter provided, and no person shall so resell or conduct such a business during any period of suspension or revocation of his license.

As this section indicates, the resale of tickets, such as those involved in the instant case, is illegal unless the individual purchasing and reselling them has properly applied for and received a license to do so. See 4 Pa. S. §§ 203, 204, 205. If such a person has received a license, the transaction is sanctioned by the statute. Thus, the “investment venture” in the instant case would not in all cases be an illegal one.

The facts alleged in the Barbets’ complaint simply state that they gave Edelstein fifteen hundred dollars ($1,500.00), which was to be used for the purchase and resale of football tickets. No mention was made of “scalping”, section 202, or of Edelstein’s lack of a license under section 203. On the bare facts of the complaint, it is not clear whether the transaction was a legal one or an illegal one. Although the court may make reasonable inferences from averred facts, any doubt which exists must be resolved in favor of overruling the demurrer. Chorba v. Davlisa Enterprises, Inc., supra. In the instant case, the doubt which exists should have been resolved in favor of overruling the demurrer.

In National Recovery Systems, a case remarkably similar to the one before us, Caesar’s Palace, a Las Vegas Casino, made a personal loan to James V. Frebraro in the amount of twelve thousand five hundred dollars ($12,-500.00). Caesar’s subsequently assigned its interest in the loan to National Recovery Systems. After Frebraro refused to repay the loan despite National’s persistent demands, National filed a complaint in assumpsit seeking the amount due. Frebraro filed a preliminary objection in the nature of a demurrer which incorrectly raised the affirmative defense of illegality. The court below granted the preliminary objection and dismissed the complaint.

On appeal, this court first found that the court below properly entertained the demurrer, since National failed to object to the procedural irregularity. However, we reversed the order of the court below, finding that the court below improperly concluded that the loan agreement was unenforceable because its purpose was illegal gambling. Noting that a court, in ruling on a demurrer, cannot supply a fact missing in the complaint, we stated that where the complaint made no mention of gambling, the court could not infer the loan was made for gambling purposes. Consequently, we found the conclusion of the court below was based not on the complaint’s allegations, but on facts alleged in the preliminary objection. As such, the court’s conclusion was improper, and the demurrer should have been overruled.

As in National Recovery Systems, we believe the court below in the instant case supplied a fact, i.e., that the purpose of the “venture” was “scalping,” which was not alleged in the complaint. This was clearly improper, as the only mention of “scalping” appears in Edelstein’s demurrer. While we are not so naive as to believe that anyone will allege in his or her complaint the illegality of a contract which they seek to enforce, our standard of review when ruling on a demurrer forces the result reached in National Recovery Systems. Obviously, the standard of review which we have applied in the instant case is the direct result of Edelstein’s failure to comply with the rules of civil procedure.

Order reversed and case remanded for proceedings consistent with this opinion. This court does not retain jurisdiction.

POPOVICH, J., concurs in the result.

      . According to the Barbets' complaint, the $3,360.00 check was for the Barbets’ initial investment and profit, as well as partial payment for a $500 loan extended to Edelstein. The complaint is unclear as to the purpose of the loan.

      . Edelstein has never filed a brief with this court. We are therefore without the benefit of his arguments in opposition to those set forth by the Barbets.

      . In DeAngelis v. Laughlin, 436 Pa. 75, 258 A.2d 615 (1969), our supreme court quashed the appeal. However, we will not consider a similar disposition in the instant case, as it is not clear from DeAngelis whether the supreme court quashed the appeal because of the improper preliminary objection or because an order overruling preliminary objections (as existed in DeAngelis) was interlocutory and not appeal-able. See DeAngelis v. Laughlin, supra, 436 Pa. at 77, 258 A.2d at 616 (Roberts and Pomeroy, JJ., Concurring). We shall, instead, dispose of this appeal as another panel of our court did in the factually similar case of National Recovery Systems v. Frebraro, 287 Pa.Super. 442, 430 A.2d 686 (1981).


author: HESTER, Judge:

text:
    499 A.2d 1109
    Harry HERLEMAN and Verna Herleman, his wife, Appellants, v. TRUMBAUER AUTO SALES.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Nov. 1, 1985.

      Robert M. Davison, Easton, for appellants.
    Maria C. Mullane, Allentown, for appellee.
    Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order denying appellants’ motion to remove the nonsuit which had been entered at the end of their case as plaintiffs in an action for personal injury. We find no error in entry of the nonsuit, and affirm the order.

Appellants are a welder with forty years’ experience (hereinafter, “appellant”) and his wife. Appellant had been acquainted with Mr. Trumbauer, president of appellee corporation, for many years, and had performed various work for him in exchange for auto parts and services. Appellant was engaged to repair a leaking steel tank which was part of appellee’s air compressor.

Appellant first removed the motor and compressor from the tank, then visually examined the tank and noticed several pinholes near the bottom. He tapped the tank with a hammer to determine its thickness. As a result, the pinholes were enlarged to about the thickness of a toothpick. He thought the two small holes may have been caused by rust. He tried to look inside the tank but could not see anything since the opening was too small.

After preparing the surface of the tank, appellant brazed the area he thought was leaking, using a process similar to welding. After his work cooled, he checked for leaks by applying air pressure to the tank while brushing soapy water on the surface he had brazed. Soap began to bubble around a leak he had missed. He repeated the brazing process on this leak.

Appellant reapplied pressure to the tank to test it again, and it exploded, causing serious personal injuries.

At his negligence trial, appellant proved additional facts. The tank which exploded had been purchased by appellee around 1953. It had been used to hold compressed air to operate hoists and tools in the garage for about twenty years, when a larger tank had been purchased. Mr. Trumbauer drained the tank of moisture almost every day, a normal maintenance procedure, and continued to drain it even when it was in storage after the larger tank had been installed. It had not been drained, however, for three or four months immediately prior to the explosion.

Appellants’ metallurgy expert, who examined the tank after the explosion, testified that the inside of the tank was so heavily corroded that portions of the tank remained intact only because of brazing which had been performed previously by other tradesmen. He testified that several months without drainage would probably have accelerated the corrosion.

At the conclusion of appellants’ case, the court entered a compulsory nonsuit, holding that this was a clear case in which all the facts and circumstances could only point to the absence of liability. The court was aware that a nonsuited plaintiff must be given the benefit of every fact and reasonable inference arising from the evidence, and any conflict in the evidence must be resolved in his favor. Morena v. South Hills Health System, 501 Pa. 634, 638, 462 A.2d 680, 682-83 (1983).

The court analyzed the case as a bailment for repair and correctly applied section 388 of the Restatement (Second) of Torts. This section provides:

§ 388. Chattel Known to be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

The trial court held that appellants failed to show facts which make out a case under section 388, and denied appellants’ motion to remove the nonsuit.

Appellants argue that the trial court erred in concluding that their evidence satisfied neither the first nor the second of the requirements of section 388. They claim they presented sufficient evidence so that the jury could reasonably infer that both elements had been proven.

First, they argue that Mr. Trumbauer should have known the tank was dangerous. Based on his testimony that he had to drain the tank on an almost daily basis, the jury could have charged him with knowledge that the tank was heavily corroded and therefore dangerous. There was no evidence which suggested that the water drained from the tank appeared rusty. We agree with the trial court that the record contains scant evidence from which the jury could infer Mr. Trumbauer’s knowledge of the dangerously rusted condition of the tank.

Even less persuasive is. the second argument: that Mr. Trumbauer had no reason to believe that his experienced welder would realize the danger. Appellant’s position is anomalous. He argues that Mr. Trumbauer, with no metallurgical skill, should have realized the dangerous condition of the tank’s interior, yet he himself, with forty years’ welding experience, including work on a hundred similar tanks, had no reason to realize the danger. Even if the jury could have imputed knowledge of the danger to Mr. Trumbauer, it could not reasonably have failed to require at least equal awareness by appellant.

Accordingly, we hold that entry of the nonsuit was proper, and affirm the order of the trial court.