author: WICKERSHAM, Judge:

text:
    492 A.2d 714
    COMMONWEALTH of Pennsylvania v. Phinas DEAR, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1983.
    Filed May 3, 1985.

      Paul Lichtenstein, Harrisburg, for appellant.
    Katherene Holtzinger, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WICKERSHAM, Judge:

On July 28, 1981, appellant Phinas Dear, Jr. was arrested and charged with the rape and robbery of Edith Raup. The prosecutrix alleges that on the evening of July 1, 1981, she went to the Verbeke Bar on the corner of Third and Yerbeke Streets, Harrisburg, Pennsylvania, with the intention of celebrating her 21st birthday which was to occur the following day. She further testified that appellant came into the bar at approximately 6:00 p.m. that evening and approached her and asked her to have sex with him. Successfully rebuking appellant, the prosecutrix no longer was aware of his presence in the bar.

The prosecutrix further testified that after having several drinks she left the bar around 10:00 p.m. to get some fresh air. As she walked back to the bar, she saw appellant with a handgun. Appellant approached the prosecutrix, called her derogatory names, grabbed her with one hand, and slapped her with the other. She testified that appellant forced her into an alley behind the bar where he robbed her of $100. Appellant then forced the prosecutrix further down the alley where he forcibly raped her, discharged the gun beside her head and subsequently inserted the barrel of the handgun in her vagina. After this incident, the prosecutrix walked with appellant back towards the bar where she saw a friend’s car and ran toward it to escape.

Ms. Raup then proceeded to call the police and upon their arrival, gave her statement. She was taken to Harrisburg Polyclinic Hospital and examined by Dr. John O’Shea, who collected evidence by using a sex crimes kit. He said that the patient bordered on being hysterical at that point. An external examination revealed that Edith Raup had bruises on her forearms, face and back and bruising on both breasts that would be consistent with finger marks. Dr. O’Shea’s internal examination revealed a tear at the entrance to the vagina, which improbably could have been caused by normal vaginal intercourse, but was more consistent with the type of injury which would result from a blunt instrument being forced into her vagina.

Edith Raup detailed a further incident the next evening with appellant. She testified that appellant abducted her at gunpoint from in front of the Verbeke Bar and drove her to a rural area where he threatened to kill her if she went to the police. Ms. Raup was then returned to the area of the Verbeke Bar and as appellant drove away, she noted the car’s license number and reported the number and alleged incident to the police. The auto was traced to appellant’s spouse and Edith Raup identified appellant from photos prior to his arrest on July 28, 1981.

At the time of his arrest, appellant denied knowing Edith Raup or being in the area of the Verbeke Bar on July 1, 1981. During an interview on August 10, 1981, appellant denied raping Edith Raup or having sexual intercourse with her. A court order was obtained for the extraction of a pubic hair from appellant for comparison with a foreign pubic hair found in the combing of Edith Raup. A chemist with the Pennsylvania State Police Crime Laboratory, James L. Miller, testified that these hair samples were found to be virtually identical when examined under a high-powered microscope.

Appellant testified at trial that he was solicited by Edith Raup and he knew her to be a prostitute. He stated that they left the bar on July 1, 1981 to go to a motel, but decided to have sex in an overgrown vacant lot.

Appellant was found guilty of both rape and robbery. Post-trial motions were filed and denied and on April 8, 1982 appellant was sentenced to not less than five nor more than ten years imprisonment on the rape conviction and not less than two nor more than five years imprisonment on the robbery conviction. A timely appeal was taken.

In this appeal, the following issues are raised:

I. Does exclusion of relevant evidence of prior sexual history of the prosecutrix in a rape case pursuant to the Pa. Rape Shield Law deny the defendant of his constitutional rights under the Sixth Amendment to adequately confront witnesses against him?
II. Are the statements of the prosecutrix to the examining physician discoverable by pretrial motions?
III. Does the use of [peremptory] challenges to remove minority jurors deny the defendant a jury of his peers?

Brief for Appellant at 6.

Turning to the first issue raised on appeal, we note that at trial Paul Lichtenstein, Esquire, made the following offer into evidence of the victim’s prior criminal record:

MR. LICHTENSTEIN: I would like to offer into evidence the victim’s prior criminal record which consists of three prior convictions of criminal solicitation in prostitution, all of which occurred in the same general vicinity of where she was allegedly raped____
MR. CRAYTON: This is prohibited, Your Honor, under Title 18, Section 3104A, Pennsylvania Rape Shield Law, and it is evidence of prior sexual conduct with third persons and it is clearly prohibited under that section and we would ask that the motion be denied.
THE COURT: We would deny the motion because the purpose of the act is to eliminate the victim becoming on trial in a rape case. The very purpose of the act is to eliminate any reference to the victim’s sexual activity with any party other than the Defendant and this has been a practice of longstanding in criminal proceedings to raise a question about the victim’s sexual activities and divert the attention of the jury away from the question and that is whether the Defendant committed the act and whether it was forcibly committed.
We are not going to permit any records of any prior conviction of any prostitution for the reason that the Rape Shield Act is designed expressly to eliminate that problem, and we would grant you an exception on the record.
MR. LICHTENSTEIN: Thank you, Your Honor.

Record at 92-93.

The Pennsylvania Rape Shield Law provides in pertinent part:

§ 3104. Evidence of victim’s sexual conduct
(a) General Rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).
1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973. As amended 1976, May 18, P.L. 120, No. 53, § 1, effective in 30 days.

18 Pa.C.S. § 3104.

In Commonwealth v. Boone, 319 Pa.Super. 358, 466 A.2d 198 (1983), appellant was charged with rape, involuntary deviate sexual intercourse and conspiracy. The facts of the case indicated that on October 2, 1980, the victim, aged 14, was waiting for a bus to transport her to school when she encountered her former boyfriend, Maurice Bussey, who invited her to the home of Parnell Canaday, also a former boyfriend.

Bussey and the victim watched television until the arrival of Canaday, who, along with Bussey, convinced the victim to engage in a game of strip poker with them. Upon losing several hands of poker and while nearly naked, she was told to either remove the blanket she was using to cover herself or go down into the basement with one of the boys. The victim reluctantly agreed to go to the basement with Bussey. Bussey then asked the victim to engage in intercourse, which she refused.
A short time later, Canaday brought Appellant and three other males to the basement, who, along with Canaday, repeatedly raped and sodomized the victim, while those not immediately participating shouted their approval. Another man eventually arrived and anally raped the victim. After approximately four hours, the males permitted the victim to leave, but threatened her with further harm if she told any one about the assaults.
Approximately two weeks later, Bussey and Canaday, accompanied by several other people, went to the victim’s home and threatened the victim, her mother and sister concerning the incident. The victim reported the incident to the police the following day.
Appellant, who was tried jointly with co-defendants Rodney Hope and Robert Henderson, was found guilty on April 28, 1981 and following denial of post-verdict motions, was sentenced. This appeal followed.
Appellant raises three issues on appeal, viz.: (1) did the trial court err in refusing to ask prospective jurors, during voir dire examination, five questions prepared and submitted by Appellant, (2) did the trial court err in refusing to allow Appellant to cross-examine the victim with respect to her prior sexual activity with two of the co-conspirators and (8) was the evidence sufficient to support the verdict.
Upon review of the record, briefs of the parties and the opinion of the Honorable Angelo A. Guarino, we find that the trial court has adequately disposed of issues one and three. We therefore adopt that portion of the trial court’s opinion for purposes of allocatur.
The remaining issue concerns the trial court’s refusal to permit counsel for Appellant to cross-examine the victim with respect to her prior sexual activity with Bussey and Canaday, who were adjudicated in a separate proceeding as juveniles.
;Initially, we note that Appellant’s proffer of evidence concerning prior sexual conduct between the victim and Canaday and Bussey was barred by the statute. See Commonwealth v. Majorana, 299 Pa.Super. 211, 215-16 n. 7, 445 A.2d 529, 531 n. 7 (1982). Also, in Commonwealth v. Duncan, 279 Pa.Super. 395, 398, 421 A.2d 257, 259 (1980) this court held that evidence of past sexual conduct by the victim with third persons is not admissible for any purpose.
Such evidence has been determined to be of little relevance to the issue of consent between the victim and a defendant who has not personally engaged in prior sexual conduct with the victim. As stated in Commonwealth v. Quartman, 312 Pa.Super. 349, 353-54, 458 A.2d 994, 996-7 (1983):
As with other evidentiary rules, the state’s interest must be balanced against the fundamental right of the accused to a fair trial. Here, the state’s interest in shielding the complainant from undue harassment in a rape prosecution must be balanced against appellant’s right to confront his accuser by presenting evidence of the complainant’s prior sexual conduct. Appellant’s sole purpose in introducing evidence of the victim’s alleged prior sexual relations with others was to create an inference for the jury connecting the victim’s purported consent on earlier occasions with his [a prison male v. male rape] consent to relations with appellant. ‘A rape victim’s previous sexual conduct with other persons has very little probative value about [his] consent to intercourse with a particular person at a particular time.’ State v. Green [163 W.Va. 681], 260 S.E.2d 257, 261 (1979). Evidence of a rape victim’s prior relations with other persons is generally only slightly relevant to the issue of consent with the accused and absent extraordinary circumstances fails to shift the balance between the state’s interest in shielding the rape victim and the defendant’s right to confrontation in favor of the defendant, (citations omitted) (brackets in original) [comment added].

It has also been held that the limited exclusion of the victim’s past sexual conduct with parties other than the defendant to prove consent no more deprives a defendant of a fair trial than do the rules of evidence barring hearsay, opinion evidence and privileged communications. People v. Blackburn, 56 Cal.App.3d 685, 128 Cal.Rptr. 864 (1976).

We therefore hold that Appellant was barred by 18 Pa.C.S.A. § 3104 from introducing evidence of prior sexual conduct between the victim and Canaday and Bussey.

Id., 319 Pa.Superior Ct. at 360-62, 363-65, 466 A.2d at 199-200, 201-02 (footnotes omitted).

We hold that Boone is controlling in the instant appeal. The offer of evidence at trial was to show that the victim’s prior criminal record, consisting of three prior convictions of criminal solicitation and prostitution, indicated her consent to having sexual intercourse with appellant on the occasion at hand. As such, it represented intended evidence of prior sexual conduct with third persons, clearly prohibited under the legislative act and under our interpretation thereof in Boone.

Nor is our result changed by our recent en banc decision in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) in which appellant was charged with statutory rape and related crimes involving his thirteen year old daughter. The facts in the Black case were set forth in the following manner:

Appellant, 48-year-old Darrell L. Black, was charged with statutory rape, corruption of minors, incest, and attempted involuntary deviate sexual intercourse with respect to his thirteen-year-old daughter, Cynthia. After a jury trial, he was found guilty of all counts and sentenced to a term of imprisonment of two and one-half to five years. This appeal followed. Appellant challenges the lower court’s application of Pennsylvania’s Rape Shield Law, 18 Pa.C.S. § 3104, which prevented him from introducing evidence of prosecutrix’ prior sexual conduct with one of her brothers. We agree with appellant and remand for a new trial.
Black was accused of committing the present offenses during the 1979 Christmas holiday season. The trial testimony revealed that during this time appellant resided with his family, including prosecutrix, in a four- or five-bedroom, single family dwelling. On the night in question, the house was filled beyond capacity by out-of-town guests, bringing the total number of occupants to twelve or thirteen persons. The minor prosecutrix testified as follows. After everyone had retired for the evening, her father asked her to come into his bedroom to massage his legs, a treatment required by his diabetic condition and routinely performed by members of his family in his bedroom. She agreed to do this and after she finished, he motioned her to lie down on the bed with her back toward him. He then pulled her underwear down and had sexual intercourse with her. The victim maintained that the entire sexual episode occurred without a word being spoken.
While the sexual incident was found to have occurred during Christmas, 1979, testimony indicated that Cynthia’s complaints began to surface almost three months later, near the end of March, 1980. These complaints coincided with violent arguments between appellant and prosecutrix’ fifteen-year-old brother, which culminated in the brother leaving home and separating from the family, including prosecutrix. Cynthia admitted wanting her brother back in the home, and other testimony indicated that as soon as appellant was arrested and removed, the fifteen-year-old brother contacted the family and sought to return home. In his defense, appellant offered to show through cross-examination that Cynthia had maintained an ongoing, consensual sexual relationship with this brother, which ended when the brother left home. Appellant contends that the true extent of prosecutrix’ bias against him could only be revealed by showing the abnormal, sexual relationship which she had with her brother and which had been terminated by appellant’s dispute with her brother. Specifically, appellant urges that Cynthia’s testimony can only be weighed fairly when measured against her desire, first, to punish appellant for his interference with her sexual relationship with her brother, and, second, to remove appellant from the home so that her brother might return and resume the relationship. As noted above, the lower court excluded this evidence of prosecutrix’ prior sexual conduct with her brother, relying on the Rape Shield Law.

At 337 Pa.Super. 550-552, 487 A.2d 397-398 (footnotes omitted).

In Black we pointed out that the evidence of prior sexual conduct was offered to impeach the prosecutrix by revealing a specific bias against and hostility toward appellant and a motive to seek retribution by, perhaps, false accusation.

Instantly, appellant wanted to put the victim’s criminal record for prostitution into evidence in order to substantiate his own testimony that she was a prostitute and had agreed to have sex with him for money. In other words, appellant was attempting to prove her consent, not her bias toward him specifically. Therefore, Black is not controlling, because both Black and the statute itself (18 Pa.C.S. § 3104) hold that evidence of sexual conduct with third persons is irrelevant to prove either consent or general moral defect of the victim.

There is no merit whatsoever in the remaining two contentions raised on this appeal both of which were adequately covered and discussed in the opinion by the Honorable Clarence C. Morrison dated March 25, 1982, which opinion we rely on in answer to the second and third issues.

Judgment of sentence affirmed.

      . Judge Cavanaugh said in Commonwealth v. Black, supra:

      While we hold that Pennsylvania’s Rape Shield Law may not be used to exclude relevant evidence showing witness’ bias or attacking credibility, we do not hold that all material evidence is necessarily admissible. Although logically relevant, evidence tending to show the victim’s prejudice or lack of credibility may be excluded if ‘it would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice.’ Commonwealth v. Stewart, 304 Pa.Super. 382, 387, 450 A.2d 732, 734 (1982) (quoting Commonwealth v. Strube, 274 Pa.Super. 199, 216, 418 A.2d 365, 374 (1979) (citations omitted), cert. denied 449 U.S. 992 [101 S.Ct. 527, 66 L.Ed.2d 288] (1980)). Cf. Fed.R.Evid. 403 ('Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....'). This balancing determination between probative value and unfair prejudice should be made by the trial court in an in camera hearing similar to that outlined in 18 Pa.C.S. § 3104(b). At this hearing, the trial court should determine the following as a matter of record to be preserved for appellate review: (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive to challenge credibility.
      At 401 (emphasis in original) (footnote omitted).

      . We have already determined that the exclusion of this evidence does not constitute a denial of appellant’s Sixth Amendment right to confrontation. See Commonwealth v. Quartman, 312 Pa.Super. 349, 458 A.2d 994 (1983) (Opinion by Hoffman, J.).


source: Caselaw Access Project

author: TAMILIA, Judge: BECK, Judge,

license: Public Domain

text:
    492 A.2d 720
    COMMONWEALTH of Pennsylvania v. George Marshall SPARKS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1984.
    Filed May 10, 1985.

      Michael J. Casale, Jr., Williamsport, for appellant.
    Robert W. Ferrell, III, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant, George Marshall Sparks, was convicted in a jury trial of three counts of conspiracy and three counts of theft by receiving stolen property. Appellant’s motions in arrest of judgment and for a new trial were denied by the lower court. Sentence of one and one-half years to five years of imprisonment and concurrent sentences totalling six and one-half years to nineteen years of imprisonment were imposed. We affirm.

Appellant first contends that the lower court erred in not sustaining the demurrer to the evidence on the conspiracy charges. Because appellant did not rest following the adverse ruling of the lower court, but elected to present a defense, the correctness of the ruling on the demurrer is no longer an appealable issue. See, e.g., Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980) citing Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976) and Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959). Hence, we cannot address appellant’s contention.

Appellant next contends that the lower court erred in permitting the Commonwealth’s introduction of appellant’s subsequent criminal activity. Specifically, appellant contends that it was error to admit testimony of the Commonwealth witness, Harry Swank. Swank testified that he had taken two chain saws to appellant’s place of business approximately three months after the incidents for which appellant was on trial. Swank stated that he informed the appellant that the saws were stolen and asked appellant if he would buy them. Swank further testified that appellant stated that it was too early in the season, he didn’t want the chain saws, he would take all the antiques that Swank could obtain, Swank should inform him of the direction from which the antiques had come and he, appellant, would get the antiques out of town in a day or so.

It is well-settled that evidence of a defendant’s other criminal activity is inadmissible as evidence of his guilt at his trial on another charge. Commonwealth v. Kenny, 326 Pa.Super. 425, 474 A.2d 313 (1984); Commonwealth v. Shealey, 324 Pa.Super. 56, 471 A.2d 459 (1984); Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 1103 (1983); Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982). However, as exceptions to this rule, evidence of other crimes may be introduced to prove motive, intent, absence of mistake or accident, common scheme or plan, or identity. Commonwealth v. Shealey, supra; Commonwealth v. Barba, supra; Commonwealth v. Martinez, supra. When one of these exceptions applies, however, the trial court must balance the need for the other crimes evidence against the possible prejudice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982); Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414 (1978). Nonetheless, “ ‘[wjhen the evidence is relevant and important to one of these ... [exceptions], it is generally conceded that the prejudicial effect may be outweighed by the probative value.’ ” Commonwealth v. Hawkins, supra, 295 Pa.Super. at 438, 441 A.2d at 1312 quoting Commonwealth v. Peterson, 453 Pa. 187, 198, 307 A.2d 264, 269-70 (1973). See also, Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984).

In the instant case, the Commonwealth was required to prove that appellant possessed stolen goods with knowledge that they were stolen or at least with a belief that they had probably been stolen. 18 Pa.C.S.A. § 3925; Commonwealth v. Barba, supra. Appellant’s defense to the charge of theft by receiving stolen property was his lack of knowledge regarding the stolen character of the property he was receiving and innocent intent. Appellant had repeatedly testified that he was never told that the goods were stolen and denied knowledge of the stolen character of the goods.

[W]hen the crime charged involves the element of knowledge, intent, or the like, the state will often be permitted to show other crimes in rebuttal, after the issue has been sharpened by the defendant’s giving evidence of accident or mistake, more readily than it would be part of its case in chief at a time when the court may be in doubt that any real dispute will appear on the issue.

McCormick on Evidence, § 190 at 452 (Cleary Ed.1972) (emphasis added). See also Commonwealth v. Martinez, supra; Commonwealth v. Bond, supra; Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978). At the time the Commonwealth offered the Swank testimony, the issue of appellant’s knowledge and intent had been sharpened by appellant’s defense. Hence, the Commonwealth needed to introduce the evidence to rebut the assertion of lack of knowledge or intent. Compare, Commonwealth v. Martinez, supra (intent not an issue when Commonwealth introduced evidence of subsequent sale of heroin; hence, introduction of evidence not warranted).

Moreover, the Swank testimony was logically connected and related in time to the crimes for which appellant stood on trial in view of the similarities between the incidents. Appellant’s motive, method of solicitation and course of conduct were similar to his pattern of receiving stolen goods. Further, the time span of approximately three months between the incidents does not render the Swank testimony inadmissible in view of the similarities between the incidents. See e.g., Commonwealth v. Clayton, 483 Pa. 24, 483 A.2d 1345, (1984). The fact that the solicitation of Swank occurred subsequently does not preclude introduction of the testimony. See e.g., Commonwealth v. Clayton, supra. The testimony lessened the probability that appellant’s possession of stolen goods on the occasions charged was innocent. See generally, Commonwealth v. Lasch, 464 Pa. 573, 589, 347 A.2d 690, 698 (1975) (equally divided court); Commonwealth v. Barba, supra. For the above reasons, the lower court did not abuse its discretion in allowing the Swank testimony since the Commonwealth’s need for the evidence outweighed the prejudicial effect to the appellant.

Appellant next contends that the lower court erred in refusing to instruct the jury that it could draw a negative inference from the fact that the Commonwealth failed to call two witnesses: William Gunsalles and Larry Achey. These two individuals were named by Commonwealth witness, Harry Swank, during the course of his testimony about appellant’s subsequent criminal conduct.

The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. Commonwealth v. Harley, 275 Pa.Super. 407, 413, 418 A.2d 1354, 1357 (1980); see also Commonwealth v. Owens, 315 Pa.Super. 400, 462 A.2d 255 (1983). There are, however, exceptions to the rule:

1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining the unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and,
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.

Id. See also Commonwealth v. Morris, 320 Pa.Super. 139, 466 A.2d 1356 (1983); Commonwealth v. Owens, supra; Commonwealth v. Nesbitt, 276 Pa.Super. 1, 419 A.2d 64 (1980). The record shows that Mr. Gunsalles was incarcerated and was available to the appellant if he had decided to call him. As such, Mr. Gunsalles was equally available to both parties. The record also shows that appellant did not request the instruction regarding Mr. Achey. Hence, appellant waived the right to challenge error in failing to give the instruction. Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981).

Appellant’s final contention is that the lower court erred in submitting the “in the business of buying or selling stolen property” counts of the offenses of theft by receiving stolen property to the jury. See 18 Pa.C.S.A. § 3903(a). We disagree. The essential, operative elements of theft by receiving stolen property, are set forth at 18 Pa.C.S.A. § 3925:

(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

The final issue presents several problems.

Under the grading section of the Crimes Code, Theft by Receiving Stolen Property, 18 Pa.C.S.A. § 3925, is graded according to seriousness as to value, as is all other theft, except that pursuant to 18 Pa.C.S.A. § 3903(a), it becomes a felony of the third degree “if the receiver is in the business of buying or selling stolen property.” In considering the consequence of grading in retail theft, § 3929, Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981) held that evidence of prior conviction of shoplifting shall be introduced only at sentencing to determine the grade of the retail theft, § 3929(b). This is so, as proof of a prior conviction at trial would be seriously prejudicial to the defendant, and evidence of prior convictions could be determined at sentencing as a matter of law, without prejudice to the Commonwealth. Obviously, prior convictions were irrelevant to a determination of guilt or innocence of the crime charged and thus are not elements of that crime.

In this case, a much more complex issue is involved which, in the absence of separate procedures similar to those of the mandatory sentence proceedings, requires a factual determination intrinsically bound with the crime or crimes charged. In those mandatory sentencing cases, again, as with retail theft, the enforcement factors are not elements of the crime charged. The evidence in the case sub judice, is not that of prior convictions, but of the conduct of the defendant as it relates to his receipt of the stolen property and involves motive, modus operandi, and common scheme or plan which have long been held admissible in the proof of the crime charged. See Shealey, Barba and Martinez, supra. As we have discussed above, such testimony (Swank) was properly admitted. Thus while it relates to the grading of the offense, as does prior crimes of retail theft, it is more clearly analogous to homicide grading (second degree murder) when a criminal homicide is committed in the course of committing another enumerated felony. Likewise, assault by prisoner, 18 Pa.C.S.A. § 2703, or Assault by life prisoner, 18 Pa.C.S.A. § 2704, Aggravated assault, 18 Pa.C.S.A. § 2702(a)(2), (3) causing harm to a police officer making or attempting to make a lawful arrest, are crimes which clearly convey by their proof that the defendant was involved in other criminal activity beyond that for which he is specifically charged, but would result in an enhancement in the grading of the offense and sentence. Much, if not too much, is made of the distinction between proof of the elements of the crime and requirements of proof in sentencing. In this instance, to permit proof of the grade of a crime to be handled in a summary fashion at sentencing which could increase the penalty from a maximum of one year (amount less than $50 constitutes a misdemeanor of the third degree) to a felony of the third degree and maximum of seven years, when the question is one of fact and not law, denys the defendant a right to judgment by his peers, and a denial of due process. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). It is not only the element of a crime that requires proof beyond a reasonable doubt, but also other matters which could impinge on defendant’s liberty interests.

As to grading of other theft offenses, it is clear that value becomes determinative and this, too, is a factual question, which has been regarded as a jury question, although it is not an element of the crime. Commonwealth v. Mathis, 317 Pa.Super. 226, 463 A.2d 1167 (1983). During jury trials it is the custom to charge the jury that one of its functions is to establish the value of the goods stolen so that the court can determine the grade of the offense for sentencing purposes. See Pennsylvania Suggested Standard Criminal Jury Instruction 15.3903.

Here, the evidence as to defendant’s involvement as “being in the business” was entered on the record. The court properly instructed the jury, concerning a finding in this regard, which the jury chose to ignore, and we fail to see any prejudice to defendant thereby.

Judgment of sentence affirmed.

BECK, J., files a concurring opinion/

BECK, Judge,

concurring:

I agree with the majority’s result and resolution of the first three issues. As to the fourth issue, I agree with the result of the majority but would adopt the reasoning of Judge Clinton W. Smith of Lycoming County.

Since the trial judge stated his reasons so cogently, I take the liberty of quoting from his opinion at pages 7-9:

The next error which the defendant assigns to his trial is that the ‘in the business of’ counts should not have been given to the jury. The substance of this allegation is that the “in the business of” goes to the grading of the offense and should have been decided by the Court. The defendant further contends that to submit this issue to the jury was prejudicial in that it concerned prior criminal activity which is usually inadmissible evidence.
To back its contention that the ‘in the business of’ counts should not have been given to the jury the defendant cites to the case of Commonwealth v. Coleman, 289 Pa.Superior Ct. 221, 433 A.2d 36 (1981). In Coleman the defendant was convicted of Retail Theft, third offense. During the trial the Commonwealth, in addressing the jury, referred to the prior convictions of the defendant. The Superior Court upheld the grant of a new trial on the basis that the prior conviction evidence should not have been given to the jury. The Court held that such information was prejudicial and that since it went solely to grading for the purposes of sentencing and not to an essential element of crime it was inadmissible.
At first blush it may appear that the statute at issue in Coleman and that at issue in the present case are similar. Both have sections labeled “grading” which describe the occasions when one convicted of the offense will receive a more severe sentence. However, there are distinctions between the two statutes which render the logic used by the Court in Coleman inapplicable to the present case. The statute at issue in Coleman was one designed to deal with the recidivist. Under such a statute the only determination necessary to assign a grade to the offense is how many prior convictions of the same offense are on record. This is a determination easily made by the judge. There is no question of fact for a jury to decide. Further, evidence of prior conviction is not relevant to a determination of whether the defendant is guilty of the Retail Theft charge for which he is being tried.
The distinction between the two types of grading sections is that while the grading section of the Retail Theft statute provides greater penalties for a greater number of convictions, the grading section of the Theft by Receiving statute provides for greater penalties for the more severe offense. The offense is more severe if the defendant is “in the business of buying or selling stolen property”. Whether defendant is “in the business of” can only be established by the introduction of evidence relating to acts by the defendant from which such activity can be inferred. The believability of such evidence will depend on the credibility of the witnesses and on the amount and content of the testimony. Clearly, such factual determinations are to be made by the jury. Evidence of prior occasions when the defendant received stolen goods is relevant to the determination by the jury of whether the defendant is “in the business of.”
The defendant, in effect, is arguing that simply because an element of the crime is found in the grading section of the statute it automatically falls under the Coleman precedent and, therefore, it becomes a determination for the Court at the time of sentencing. However, the Court will not assume such a motive on the part of the legislature. The particular language of a statute is often chosen for purposes of convenience, clarity or economy. Legislation framed with these aims in view is often lacking in consistency. A review of Pennsylvania’s statutes will show that in some cases the grading occurs within the paragraph defining the offense while in other cases the offense is defined in the grading section. A review of the Theft by Receiving statute indicates that it is of the latter type. The legislature could not have intended to replace the judgment of the jury with the judgment of the Court in such factual determinations simply by locating particular elements of the offense in the grading section of the statute.
The logic of locating elements of an offense dealing with the severity of the offense in the grading paragraph of the section is obvious. The Court will not interpret a statute to permit the Court to usurp the traditional function of the jury simply because elements of the crime are found in a paragraph of the statute labeled “grading”. For the above stated reasons [this] ... assignment of error will be dismissed.

The majority appears to base its resolution of this issue, in part, on the due process guarantee embodied in In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). Insofar as the majority is asserting that due process requires the fact finder to determine whether appellant was “in the business of” receiving stolen property, I agree. However, given the posture of the appeal sub judice, I find In re Winship inapposite since, contrary to the In re Winship principle, the instant appellant is arguing that the trial judge erred in submitting to the jury the factual question of “in the business.” Thus, appellant is not asserting a violation of the In re Winship principle but, if anything, he is requesting the court to contravene or disregard In re Winship.

      . Appellant was found not guilty of burglary and found not guilty on separate counts of theft and conspiracy. Additionally, the jury determined that the defendant was not “in the business of buying or selling stolen property", 18 Pa.C.S.A. § 3903(a), on the theft counts.

      . § 3903. Grading of theft offenses
      (a) Felony of the third degree. — Theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
      (b) Other grades. — Theft not within subsection (a) of this section, constitutes a misdemeanor of the first degree,____

      . 42 Pa.C.S.A. § 9712. Sentences for offenses committed with firearms, § 9713. Sentences for offenses committed on public transportation, § 9714. Sentences for second and subsequent offenses, § 9715. Life imprisonment for homicide.

      . A response would appear to be required to Judge Beck’s Concurring Opinion. First, she agrees with the majority’s result on the issue of “in the business of” but prefers the language of the lower court. I have no quarrel with the lower court’s reasoning or language, but believe the function of an appellate Opinion is to go beyond the analysis of the lower court and provide more specific directions or broader analogies where required. Rather than quoting the lower court extensively, as does the Concurring Opinion at pages 7 and 8, we delineated the distinction between this case and Coleman as one based on a factual element requiring a jury determination, as opposed to Coleman, which could be determined as a matter of law by the court at sentencing. The remainder of the lower court’s analysis was instructive but not necessary to our consideration. In further amplification, the need to buttress the procedure followed by the lower court, and in guiding other courts, required that we analogize this procedure and statute with others incorporating criminal activities as an element of crime which one must prove, as it relates to grading or severity of the crime. This is one of the most volatile areas of criminal law, as similar issues tire present in sentencing guidelines and mandatory sentencing cases. In re Winship, supra, is a crucial case to this decision, as any matter which effects penalty and results in loss of liberty or increased incarceration must be established beyond a reasonable doubt and hence, is a matter for the trier of fact, here, the jury. The exception would be Coleman type situations. It matters little that appellant did not wish to have the issue presented to the jury (obviously because it was inculpatory); a finding by the jury without that evidence as properly explained by the judge’s instructions, would have been a nullity, as the charge could not be sustained without jury consideration of that essential element. In re Winship is a key as to when evidence should or should not be presented to a fact finder as a requisite to establishing guilt, and is completely justified as authority for the trial court’s decision in this case.


author: TAMILIA, Judge:

text:
    492 A.2d 727
    In re S.O. Appeal of S.O. In re R.T. Appeal of R.T.
    Superior Court of Pennsylvania.
    Argued July 19, 1984.
    Filed May 10, 1985.

      Bradley Bridge, Assistant Public Defender, Philadelphia, for appellants.
    Martha Gale, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

These appeals are companion cases presenting identical challenges to Philadelphia’s implementation of procedures statutorily mandated for involuntary civil commitments under 50 Pa.C.S.A. § 7305 of the Mental Health Procedures Act (hereinafter, the Act). Both appellants allege that the procedural deficiencies of this system resulted in, inter alia, the denial of their right to due process. We agree.

The background of these cases may be summarized as follows. Both S.O. and R.T. were originally committed under section 302 of the Act in August and September, respectively, of 1983. Both appellants, after section 303 hearings, agreed to remain hospitalized. No formal testimony was taken at the hearings. In the case of S.O., no stipulation as to commitability was entered; R.T. conceded his dangerousness to self or others. No review was requested in either instance. At subsequent section 304 hearings, testimony was taken as to the dangerous propensities of both appellants. S.O. was committed to a further stay not to exceed 30 days and R.T. to a further 60 days on in-patient status. Again, no review was requested of either commitment order.

The results of section 305 hearings, commitment of S.O. for a period not to exceed 90 days and of R.T. for another 60 days, prompted petitions for review, which being denied led to the instant appeals. Of the issues before us, the first three, presenting instances of allegedly defective implementation of procedures essential to constitutional administration of the Act, are meritorious and require relief.

We note initially that although the commitment periods authorized by the section 305 hearings in question have long since expired, a live controversy still exists since involuntary commitment orders involve important liberty interests over which it behooves us to maintain appellate vigilance. In re Remley, 324 Pa.Super. 163, 471 A.2d 514 (1984); In re Condry, 304 Pa.Super. 131, 450 A.2d 136 (1982); Commonwealth ex rel. Bielat v. Bielat, 257 Pa.Super. 446, 390 A.2d 1321 (1978).

It is first alleged that appellants’ right to due process was abridged in that the terms of the Act were violated by the court’s pro forma and belated review of the section 305 commitment hearings before the Mental Health Review Officer (hereinafter, MHRO). This conclusion (which encompasses two issues in appellants’ briefs) is premised on the applicability to such proceedings of section 109(b) of the Act.

50 Pa.S.A. § 7109 reads as follows:

§ 7109. Mental health review officer
(a) Legal proceedings concerning extended involuntary emergency treatment under section 303(c), court-ordered involuntary treatment under sections 304 and 305 or transfer hearings under section 306, may be conducted by a judge of the court of common pleas or by a mental health review officer authorized by the court to conduct the proceedings. Mental health review officers shall be members of the bar of the Supreme Court of Pennsylvania, without restriction as to the county of their residence and where possible should be familiar with the field of mental health. Law-trained municipal court judges may be appointed mental health review officers.
(b) In all cases in which the hearing is conducted by a mental health review officer, a person made subject to treatment shall have the right to petition the court of common pleas for review of the certification. A hearing shall be held within 72 hours after the petition is filed unless a continuance is requested by the person’s counsel. The hearing shall include a review of the certification and such evidence as the court may receive or require. If the court determines that further involuntary treatment is necessary and that the procedures prescribed by this act have been followed, it shall deny the petition. Otherwise, the person shall be discharged.
(c) Notwithstanding any other provision of this Act, no judge or mental health review officer shall specify to the treatment team the adoption of any treatment technique, modality, or drug therapy, (emphasis added)

The review hearings on S.O.’s and R.T.’s petitions were held 52 and 36 days respectively after the petitions were lodged. No testimony was presented, no argument or additional evidence was allowed and there was no review of actual testimony below.

Appellee would ignore section 109 altogether, arguing that because the review procedure is reiterated in section 303(g), its exclusion from section 305 signifies its inapplicability to that provision. Operating on the expressio unius est exclusio alterius theory, the court below found that because the language of section 109 is not reiterated in (inter alia) section 305, its conditions were, therefore, not legislatively intended to involve section 305. A review of the entire act shows clearly the legislative plan in which Article I, General Provisions, relates clearly to the subsequent articles, each of which addresses itself to logically delineated classes of procedures; Article II, Voluntary examination and treatment, Article III, Involuntary examination and treatment, Article IV, Determination affecting those charged with crime as under sentence.

However, in Commonwealth v. McMullins, 315 Pa.Super. 531, 462 A.2d 718 (1983), we held in reference to the Act, albeit another section, that “a statute must be construed if possible to give effect to all of its provisions,” Id., 315 Pa.Superior Ct. at 539, 462 A.2d 722, our authority being the Statutory Construction Act, 1 Pa.C.S.A. § 1921(a). To argue as appellee does that section 109 has definitional significance only is to render it surplusage. But section 109 refers directly to petitions from section 7305 commitment hearings over which an MHRO has presided. This Court, in In re Chambers, 282 Pa.Super. 327, 422 A.2d 1140 (1980), has intimated that section 109 is apposite in construing section 7304, finding that an MHRO may not issue a final order appealable to this Court and, so that a final order might issue, recourse must be had to the review procedures outlined in section 109. It therefore follows logically that what is true, even by indirection, for section 304 must similarly be true for section 305. Thus, we do to some extent adopt the trial court’s adherence to consistency, holding, however, that all the provisions of the statute enjoy equivalent status. Further, once it is determined, as we now do, that section 109 applies to all of the provisions referenced by subsection (a), strict adherence thereto is compelled by the legislative policy reflected in the Act. Commonwealth v. Hubert, 494 Pa. 148, 430 A.2d 1160 (1981); In re: S.C., 280 Pa.Super. 539, 421 A.2d 853 (1980); Commonwealth v. Blaker, 293 Pa.Super. 391, 446 A.2d 976 (1981).

Adherence to procedural due process at the initial stage of the commitment process does not satisfy the requirements of continued safeguarding of a person’s liberty interests as he undergoes increasingly long periods of involuntary institutionalization. To say that because due process is safeguarded in one instance, it may be ignored in another, manifestly more serious situation, requires us to deny the carefully designed statute which intends to provide treatment, with the least restriction on liberty and freedom consistent with protection of the patient and society. Appellant’s citation to cases holding that procedural protections must expand as the deprivation of individual liberty increases is found to be unjustified by appellee on the grounds that the cases referred to are factually distinguishable. In re Ann S., 279 Pa.Super. 618, 421 A.2d 370 (1980); Commonwealth v. C.B., 307 Pa.Super. 176, 452 A.2d 1372 (1982). We disagree. The principal remains the same, mutatis mutandis.

Appellee argues somewhat quixotically that even if section 109 requires reviews of petitions under section 305 to be heard within 72 hours (unless a continuance is required by the person’s counsel), decisions could not be rendered within that period. Presumably this is offered in mitigation of the delays between petitions, hearings and findings in appellants’ cases (50 and 36 days). This does not exculpate appellee since section 305 refers to the procedures of section 304(a)(b) for continued involuntary treatment — and section 304(e)(7) requires that a decision be entered within 48 hours of the close of the evidence. The 72 hours required by section 109 refers to the time to conduct the hearing and not the time for decision. The statute provides for sufficient time to adequately present evidence, and a reasonable time to pass on such evidence. We can only find such digressions irrelevant as justification and unconscionable as determinative of the need for continued treatment. Seventy-two hours is an adequate evaluative time frame for an initial deprivation of liberty and is similarly adequate for an ongoing detention, during which treatment data is continually recorded. A legally sufficient hearing can be conducted within that period, thus limiting restrictions on liberty to the minimum required under the circumstances.

Also under the denial of the procedural due process rubric is appellants’ contention that the court’s denial of access to transcripts of the commitment hearings prevented thorough preparation for review. Although tape recordings were made of the proceedings, defense counsel’s requests for these or a transcripted version were denied. The court based its refusal on the lack of any expressed statutory right to transcription of proceedings, although noting that section 304 does require that some specific record be made. We find that patient access to whatever record has been made, and in the form it exists, is required at a minimum to comport with due process. We note that this was provided without further comment by the courts in Blaker and Condry, supra, and we see no reason other than a somewhat arbitrary local custom to deny the information. This would also be inconsistent with Department of Welfare regulations, 55 Pa.Code § 5100.33, giving a patient access to records and control over release of records, all of which ascribes to a policy of “openness”.

Appellants’ last procedural claim is that the certification mandated by section 303(d)(l-6) was never prepared by the MHRO and that, in consequence, reversal of the commitment order is warranted along with expungement of the record. In re Condry, supra. Appellee’s response is that because this issue has been raised for the first time before this Court, it is waived. We find that appellee’s assertion is correct but that in any event the merits of the issue are negligible. Form MH784 is required to document certification by Department of Public Welfare regulations governing commitment procedures. See 55 Pa.Code 7100.-303(e)(1), Pa. Bulletin, Vol. 9, No. 41, Oct. 13, 1979. Such a form appears in the record containing the information required by the Act, albeit in an abbreviated manner. We find this adequate to fulfill the intent of the statute and the demands of the pertinent regulations.

Appellants’ penultimate claim is essentially a challenge to the sufficiency of the evidence. It is alleged that the results of the 305 hearing were in error because the evidence introduced at that hearing failed to establish that S.O. and R.T. posed a clear and present danger to themselves or others. A finding of clear and present danger must have been based on an overt act occurring within 30 days prior to the initial commitment established in these cases at the 302 hearings, or if there is no overt act, then the patient’s inability to satisfy his own need for nourishment, personal or medical care, shelter, self-protection and safety must have been demonstrated. See Commonwealth ex rel. Gibson v. DiGiacinto, 497 Pa. 66, 439 A.2d 105 (1981).

For further periods of treatment, section 305(a) requires findings specified by section 304(a)(l-2), (b)(l-5), and further, that need for such treatment be demonstrated “by conduct during the person’s most recent period of court ordered treatment.” Section 304(a)(1) does speak of clear and present danger in original commitment situations; section 304(a)(2) refers to persons already involuntarily committed. There is, under these provisions, no necessity to demonstrate a recrudescence of dangerous behavior, only that such behavior as is required for an original commitment in fact occurred. Section 304(b) provides for petition, notice, evaluation, counsel and expert testimony to be presented at a hearing within five days of the filing of the petition. The record is clear that both S.O. and R.T., at the inception of their commitments were in need of treatment. Appellants’ characterization of their behavior and existences as merely evidencing a penchant for the unorthodox or unconventional is somewhat naive in view of the activity leading to the original commitments of each of them. R.T. admitted to auditory and visual hallucinations which included a machine in his brain constantly telling him to kill his mother and others. On leave, he made threats to kill his mother and the police and had to be returned to the hospital. He has had seven previous mental health commitments. He is diagnosed as an Undifferentiated Schizophrenic in Acute Exacerbation. This behavior continued throughout the procedures sub judice.

S.O.’s presenting problem was her bizarre behavior in Center City, Philadelphia, darting in and out of traffic, walking up the middle of the street in traffic, resisting any attempt by police and others to help her. She lives in an abandoned house without utilities and has lost several toes to frostbite. She is deemed incapable of providing basic care for herself and is diagnosed as Chronic Schizophrenic, undifferentiated type, who presents a clear and present danger to herself.

Finally, appellants argue that consistent with the policy of the Act they should have been released to less restrictive treatment environments prior to full time inpatient care under section 305. While the statement is true in theory, its application is, as a practical matter, wholly dependent on prior determinations of dangerousness with subsequent conduct that establishes continuity of the original condition. The requirements of this section are met upon the presentment of a 305 petition at the request of the institution administrator for continued involuntary treatment and request for continued inpatient treatment until outpatient care can be obtained. Where such (community) treatment is clearly inappropriate, policy considerations are of little moment.

The threshold inquiry in civil commitments is whether mental illness is present. For both appellants, the answer is clearly affirmative. However, it must be remembered that the mental condition of the person in no way diminishes his right to due process. We must reiterate the principle that the Act was intended “to create a treatment scheme under which a patient’s procedural protections expand progressively as deprivation of his liberty gradually increases.” In re C.B., supra, 307 Pa.Superior Ct. at 181, 452 A.2d at 1374. Without ascribing to the court or to appellee ill will or in fact any negative intent, it would appear that the rights of the appellants herein have been treated as a de minimis matter. As this Court held in Blaker, supra, “It is not enough to find, ... that appellant ‘was truly in need of the services offered by [the] mental health system.’ ” Id., 293 Pa.Superior Ct. at 398, 446 A.2d at 980. Where procedural requirements are not fulfilled the commitment is unlawful.

The real crux of the instant cases is whether or not the statutory mandate shall be applied to compel the procedural requirements in committing appellants, or whether, in fact, the pragmatic view of the need for treatment shall supersede the question of compliance with due process. Again, we note decisions holding that where mandated procedures are not followed, involuntary commitment is improper, In re C.B., supra, and the appropriate remedy is to vacate the commitment order and expunge the record. In re Condry, supra. We find no reason to diverge from this course now.

Appellee over and over seeks to place the imprimatur of legitimacy upon the procedure developed in Philadelphia County by assuring us that the commitments to which appellants were subjected conform to established custom and practice. We are not comforted. Especially in dealing with the mentally ill, custom and practice have in the past allowed society to look benignly at treatment which can only be described as barbarous. It is no less true now that habit necessarily provides no reliable indicium of anything more than the expedient unless it conforms precisely to the requirements of legislation designed to safeguard both the rights and the lives of those so affected. We cannot, in exercising our paternalistic impulses, forget that due process requirements must be met to assure compliance with legal standards related to the restriction of liberty. We do not mean to denigrate good intentions, but only to make clear that more is required than a sincere desire to help. Assistance must be rendered properly, or in a larger sense, this carefully balanced system will fail.

On the other hand, the same restraint of liberty which prevents us from shouting “fire” in a crowded theater, prohibits as well the exercise of “liberty” by those to whom it is in fact anathema, spelling certain, although possibly slow, destruction. It is this consideration which must affect most strongly our determination of appropriate relief. We, therefore, make the rules established in this case prospective only requiring strict adherence to our reading of the statute in all cases which come before the court as of thirty days from the filing of this Opinion. See In re S.C., supra. In short, we disagree, not with appellee’s conclusions, but with the methodology employed to reach them.

Order affirmed.

Jurisdiction relinquished.

      . § 7302. Involuntary emergency examination and treatment authorized by physician — not to exceed seventy-two hours
      (a) Application for Examination. — Emergency examination may be undertaken at a treatment facility upon the certification of a physician stating the need for such examination; or upon a warrant issued by the county administrator authorizing such examination; or without a warrant upon application by a physician or other authorized person who has personally observed conduct showing the need for such examination.
      (1) Warrant for Emergency Examination. — Upon written application by a physician or other responsible party setting forth facts constituting reasonable grounds to believe a person is severely mentally disabled and in need of immediate treatment, the county administrator may issue a warrant requiring a person authorized by him, or any peace officer, to take such person to the facility specified in the warrant.
      (2) Emergency Examination Without a Warrant. — Upon personal observation of the conduct of a person constituting reasonable grounds to believe that he is severely mentally disabled and in need of immediate treatment, and physician or peace officer, or anyone authorized by the county administrator may take such person to an approved facility for an emergency examination. Upon arrival, he shall make a written statement setting forth the grounds for believing the person to be in need of such examination.
      (b) Examination and Determination of Need for Emergency Treatment. — A person taken to a facility shall be examined by a physician within two hours of arrival in order to determine if the person is severely mentally disabled within the meaning of section 3011 and in need of immediate treatment. If it is determined that the person is severely mentally disabled and in need of emergency treatment, treatment shall be begun immediately. If the physician does not so find, or if at any time it appears there is no longer a need for immediate treatment, the person shall be discharged and returned to such place as he may reasonably direct. The physician shall make a record of the examination and his findings. In no event shall a person be accepted for involuntary emergency treatment if a previous application was granted for such treatment and the new application is not based on behavior occurring after the earlier application.
      (c) Notification of Rights at Emergency Examination. — Upon arrival at the facility, the person shall be informed of the reasons for emergency examination and of his right to communicate immediately with others. He shall be given reasonable use of the telephone. He shall be requested to furnish the names of parties whom he may want notified of his custody and kept informed of his status. The county administrator or the director of the facility shall:
      (1) give notice to such parties of the whereabouts and status of the person, how and when he may be contacted and visited, and how they may obtain information concerning him while he is in inpatient treatment; and
      (2) take reasonable steps to assure that while the person is detained, the health and safety needs of any of his dependents are met, and that his personal property and the premises he occupies are secure.
      (d) Duration of Emergency Examination and Treatment. — A person who is in treatment pursuant to this section shall be discharged whenever it is determined that he no longer is in need of treatment and in any event within 120 hours, unless within such period:
      (1) he is admitted to voluntary treatment pursuant to section 202 of this act; 2 or
      (2) a certification for extended involuntary emergency treatment is filed pursuant to section 303 of this act.3

      . § 7303. Extended involuntary emergency treatment certifiec by a judge or mental health review officer — not to exceed twe ity days
      (a) Persons Subject to Extended Involuntary Emergency Treatment. — Application for extended involuntary emergency treatment may be made for any person who is being treated pursuant to section 302 1 whenever the facility determines that the need for emergency treatment is likely to extend beyond 120 hours. The application shall be filed forthwith in the court of common pleas, and shall state the grounds on which extended emergency treatment is believed to be necessary. The application shall state the name of any examining physician and the substance of his opinion regarding the mental condition of the person.
      (b) Appointment of Counsel and Scheduling of Informal Hearing. —Upon receiving such application, the court of common pleas shall appoint an attorney who shall represent the person unless it shall appear that the person can afford, and desires to have, private representation. Within 24 hours after the application is filed, an informal hearing shall be conducted by a judge or by a mental health review officer and, if practicable, shall be held at the facility.
      (c) Informal Conference on Extended Emergency Treatment Application. — (1) At the commencement of the informal conference, the judge or the mental health review officer shall inform the person of the nature of the proceedings. Information relevant to whether the person is severely mentally disabled and in need of treatment shall be reviewed, including the reasons that continued involuntary treatment is considered necessary. Such explanation shall be made by a physician who examined the person and shall be in terms understandable to a layman. The judge or mental health review officer may review any relevant information even if it would be normally excluded under rules of evidence if he believes that such information is reliable. The person or his representative shall have the right to ask questions of the physician and of any other witnesses and to present any relevant information. At the conclusion of the review, if the judge or the review officer finds that the person is severely mentally disabled and in need of continued involuntary treatment, he shall so certify. Otherwise, he shall direct that the facility director or his designee discharge the person.
      (2) A record of the proceedings which need not be a stenographic record shall be made. Such record shall be kept by the court or mental health review officer for at least one year.
      (d) Contents of Certification. — A certification for extended involuntary treatment shall be made in writing upon a form adopted by the department and shall include:
      (1) findings by the judge or mental health review officer as to the reasons that extended involuntary emergency treatment is necessary;
      (2) a description of the treatment to be provided together with an explanation of the adequacy and appropriateness of such treatment, based upon the information received at the hearing;
      (3) any documents required by the provisions of section 302;
      (4) the application as filed pursuant to section 303(a); 2
      (5) a statement that the person is represented by counsel; and
      (6) an explanation of the effect of the certification, the person's right to petition the court for release under subsection (g), and the continuing right to be represented by counsel.
      (e) Filing and Service. — The certification shall be filed with the director of the facility and a copy served on the person, such other parties as the person requested to be notified pursuant to section 302(c), and on counsel.
      (f) Effect of Certification. — Upon the filing and service of a certification for extended involuntary emergency treatment, the person may be given treatment in an approved facility for a period not to exceed 20 days.
      (g) Petition to Common Pleas Court. — In all cases in which the hearing was conducted by a mental health review officer, a person made subject to treatment pursuant to this section shall have the right to petition the court of common pleas for review of the certification. A hearing shall be held within 72 hours after the petition is filed unless a continuance is requested by the person’s counsel. The hearing shall include a review of the certification and such evidence as the court may receive or require. If the court determines that further involuntary treatment is necessary and that the procedures prescribed by this act have been followed, it shall deny the petition. Otherwise, the person shall be discharged.
      (h) Duration of Extended Involuntary Emergency Treatment.— Whenever a person is no longer severely mentally disabled or in need of immediate treatment and, in any event, within 20 days after the filing of the certification, he shall be discharged, unless within such period;
      (1) he is admitted to voluntary treatment pursuant to section 202; 3 or

        (2) the court orders involuntary treatment pursuant to section 304.4

      . § 7304. Court-ordered involuntary treatment not to exceed ninety days
      (a) Persons for Whom Application May be Made. — (1) A person who is severely mentally disabled and in need of treatment, as defined in section 301(a),1 may be made subject to court-ordered involuntary treatment upon a determination of clear and present danger under section 301(b)(1) (serious bodily harm to others), or section 301(b)(2)(i) (inability to care for himself, creating a danger of death or serious harm to himself), or 301(b)(2)(H) (attempted suicide), or 301(b)(2)(iii) (self-mutilation).
      (2) Where a petition is filed for a person already subject to involuntary treatment, it shall be sufficient to represent, and upon hearing to reestablish, that the conduct originally required by section 301 in fact occurred, and that his condition continues to evidence a clear and present danger to himself or others. In such event, it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating, within the past 30 days.
      (b) Procedures for Initiating Court-ordered Involuntary Treatment for Persons Already Subject to Involuntary Treatment. — (1) Petition for court-ordered involuntary treatment for persons already subject to treatment under sections 303, 304 and 305 2 may be made by the county administrator or the director of the facility to the court of common pleas.
      (2) The petition shall be in writing upon a form adopted by the department and shall include a statement of the facts constituting reasonable grounds to believe that the person is severely mentally disabled and in need of treatment. The petition shall state the name of any examining physician and the substance of his opinion regarding the mental condition of the person. It shall also state that the person has been given the information required by subsection (b)(3).
      (3) Upon the filing of the petition the county administrator shall serve a copy on the person, his attorney, and those designated to be kept informed, as provided in section 302(c),3 including an explanation of the nature of the proceedings, the person’s right to an attorney and the services of an expert in the field of mental health, as provided by subsection (d).
      (4) A hearing on the petition shall be held in all cases, not more than five days after the filing of the petition..
      (5) Treatment shall be permitted to be maintained pending the determination of the petition.

        (c) Procedures for Initiating Court-ordered Involuntary Treatment for Persons Not in Involuntary Treatment. — (1) Any responsible party may file a petition in the court of common pleas requesting court-ordered involuntary treatment for any person not already in involuntary treatment for whom application could be made under subsection (a).
      (2) The petition shall be in writing upon a form adopted by the department and shall set forth facts constituting reasonable grounds to believe that the person is within the criteria for court-ordered treatment set forth in subsection (a); The petition shall state the name of any examining physician and the substance of his opinion regarding the mental condition of the person.
      (3) Upon a determination that the petition sets forth such reasonable cause, the court shall appoint an attorney to represent the person and set a date for the hearing as soon as practicable. The attorney shall represent the person unless it shall appear that he can afford, and desires to have, private representation.
      (4) The court, by summons, shall direct the person to appear for a hearing. The court may issue a warrant directing a person authorized by the county administrator or a peace officer to bring such person before the court at the time of the hearing if there are reasonable grounds to believe that the person will not appear voluntarily. A copy of the petition shall be served on such person at least three days before the hearing together with a notice advising him that an attorney has been appointed who shall represent him unless he obtains an attorney himself, that he has a right to be assisted in the proceedings by an expert in the field of mental health, and that he may request or be made subject to psychiatric examination under subsection (c)(5).
      (5) Upon motion of either the petitioner or the person, or upon its own motion, the court may order the person to be examined by a psychiatrist appointed by the court. Such examination shall be conducted on an outpatient basis, and the person shall have the right to have counsel present. A report of the examination shall be given to the court and counsel at least 48 hours prior to the hearing.
      (6) Involuntary treatment shall not be authorized during the pendency of a petition except in accordance with section 302 or section 303.
      (d) Professional Assistance. — A person with respect to whom a hearing has been ordered under this section shall have and be informed of a right to employ a physician, clinical psychologist or other expert in mental health of his choice to assist him in connection with the hearing and to testify on his behalf. If the person cannot afford to engage such a professional, the court shall, on application, allow a reasonable fee for such purpose. The fee shall be a charge against the mental health and mental retardation program of the locality.
      (e) Hearings of Petition for Court-order Involuntary Treatment. —A hearing on a petition for court-ordered involuntary treatment shall be conducted according to the following:
      (1) The person shall have the right to counsel and to the assistance of an expert in mental health.

        (2) The person shall not be called as a witness without his consent.
      (3) The person shall have the right to confront and cross-examine all witnesses and to present evidence in his own behalf.
      (4) The hearing shall be public unless it is requested to be private by the person or his counsel.
      (5) A stenographic or other sufficient record shall be made, which shall be impounded by the court and may be obtained or examined only upon the request of the person or his counsel or by order of the court on good cause shown.
      (6) The hearing shall be conducted by a judge or by a mental health review officer and may be held at a location other than a courthouse when doing so appears to be in the best interest of the person.
      (7) A decision shall be rendered within 48 hours after the close of evidence.
      (f) Determination and Order. — Upon a finding by clear and convincing evidence that the person is severely mentally disabled and in need of treatment and subject to subsection (a), an order shall be entered directing treatment of the person in an approved facility as an inpatient or an outpatient, or a combination of such treatment as the director of the facility shall from time to time determine. Inpatient treatment shall be deemed appropriate only after full consideration has been given to less restrictive alternatives. Investigation of treatment alternatives shall include consideration of the person’s relationship to his community and family, his employment possibilities, all available community resources, and guardianship services. An order for inpatient treatment shall include findings on this issue.
      (g) Duration of Court-ordered Involuntary Treatment. — (1) A person may be made subject to court-ordered involuntary treatment under this section for a period not to exceed 90 days, excepting only that: Persons may be made subject to court-ordered involuntary treatment under this section for a period not to exceed one year if the person meets the criteria established by clause (2).
      (2) A person may be subject to court-ordered involuntary treatment for a period not to exceed one year if:
      (i) severe mental disability is based on acts giving rise to the following charges under the Pennsylvania Crimes Code;4 murder (§ 2502); voluntary manslaughter (§ 2503); aggravated assault (§ 2702); kidnapping (§ 2901); rape (§ 3121(1) and (2)); involuntary deviate sexual intercourse (§ 3123(1) and (2)); arson (§ 3301); and
      (ii) a finding of incompetency to be tried or a verdict of acquittal because of lack of criminal responsibility has been entered.
      (3) If at any time the director of a facility concludes that the person is not severely mentally disabled or in need of treatment pursuant to subsection (a), he shall discharge the person provided that no person subjected to involuntary treatment pursuant to clause (2) may be discharged without a hearing conducted pursuant to clause (4).
      (4) In cases involving involuntary treatment pursuant to clause (2), whenever the period of court-ordered involuntary treatment is

        about to expire and neither the director nor the county administrator intends to apply for an additional period of court-ordered involuntary treatment pursuant to section 305 or at any time the director concludes that the person is not severely mentally disabled or in need of treatment, the director shall petition the court which ordered the involuntary treatment for the unconditional or conditional release of the person. Notice of such petition shall be given to the person, the county administrator and the district attorney. Within 15 days after the petition has been filed, the court shall hold a hearing to determine if the person is severely mentally disabled and in need of treatment. Petitions which must be filed simply because the period of involuntary treatment will expire shall be filed at least ten days prior to the expiration of the court-ordered period of involuntary treatment. If the court determines after hearing that the person is severely mentally disabled and in need of treatment, it may order additional involuntary treatment not to exceed one year; if the court does not so determine, it shall order the discharge of the person.

      . § 7305. Additional periods of court-ordered involuntary treatment
      (a) At the expiration of a period of court-ordered involuntary treatment under section 304(g) 1 or this section, the court may order treatment for an additional period upon the application of the county administrator or the director of the facility in which the person is receiving treatment. Such order shall be entered upon hearing on findings as required by sections 304(a) and (b), and the further finding of a need for continuing involuntary treatment as shown by conduct during the person’s most recent period of court-ordered treatment. The additional period of involuntary treatment shall not exceed 180 days; provided that persons meeting the criteria of section 304(g)(2) may be subject to an additional period of up to one year of involuntary treatment. A person found dangerous to himself under section 301(b)(2)(i), (ii) or (iii) 2 shall be subject to an additional period of involuntary full-time inpatient treatment only if he has first been released to a less restrictive alternative. This limitation shall not apply where, upon application made by the county administrator or facility director, it is determined by a judge or mental health review officer that such release would not be in the person’s best interest.
      (b) The director of the facility in which the person is receiving treatment shall notify the county administrator at least ten days prior to the expiration of a period of involuntary commitment ordered under section 304 or this section.
      1976, July 9, P.L. 817, No. 143, § 305, effective in 60 days. As amended 1978, Nov. 26, P.L. 1362, No. 324, § 1, effective in 60 days.

      . R.T. submitted himself to voluntary commitment on February 21, 1984. S.O. whereabouts are unknown át the time of this appeal as she failed to return from unauthorized leave. By order of February 8, 1984, her petition for review was dismissed.

      . Section 304(b)(4) would require such a hearing to be held in all cases, not more than five days after filing of the petition.


author: WATKINS, Judge:

text:
    492 A.2d 738
    Salvatore NAPOLI, Jr., and Angela Napoli, His Wife, Appellants, v. Anthony F. BIANCO.
    Superior Court of Pennsylvania.
    Argued Aug. 8, 1984.
    Filed May 10, 1985.

      Irving M. Portnoy, Pittsburgh, for appellants.
    Dennis S. Mulvihill, Pittsburgh, for appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   WATKINS, Judge:

This is an appeal from a judgment precluding the appellants from raising an issue in their brief and argument.

Appellants instituted an action in trespass seeking recovery for noneconomic detriment, as defined by the Pennsylvania No-Fault Motor Vehicle Act, arising out of personal injuries sustained by husband-appellant in a motor vehicle collision. Medical expenses in the amount of $1,253.14, of which $975.00 was for chiropractic treatment, were alleged.

In determining whether the husband-appellant had incurred costs for “medical and dental services” in excess of the monetary threshold embodied in § 301(a)(5)(B) of the No-Fault Act, the appellants were precluded from submitting bills incurred for husband-appellant’s chiropractic treatment pursuant to the court’s decision in Strunack v. Ecker, 283 Pa.Superior Ct. 585, 424 A.2d 1355 (1981). In Strunack, the court held that § 1009.301(a)(5)(B) of the No-Fault Act should not be construed to allow inclusion of chiropractic expenses in calculating the amount of medical expenses which could be used to satisfy the monetary threshold of the No-Fault Act. As a result, appellants were unable to satisfy the monetary threshold provision of the No-Fault Act. Appellants also alleged at trial that the husband-appellant had suffered a serious and permanent injury as determined by the husband-appellant’s chiropractor in an attempt to satisfy the verbal threshold of the No-Fault Act.

At the hearing of the non-jury case, all factual issues were resolved by stipulation of counsel. The sole issue raised was whether a chiropractor could render an opinion that a patient suffered a serious and permanent injury of the type which would satisfy the verbal threshold requirements of the No-Fault Act. The trial court ruled that a chiropractor was qualified to render an opinion of the type which was required by the No-Fault Act; however, it ruled as a matter of law that the husband-appellant’s injuries were not so “serious and permanent” as to qualify as an exception to the tort immunity provisions of the No-Fault Act. Accordingly, the trial court entered a verdict for the defendant because the plaintiffs-appellants had failed to meet any of the thresholds for maintaining a third party action. Appellants filed timely exceptions to the non-jury verdict. The appellants in their exceptions asserted that the trial court erred as a matter of fact and law in finding that the injuries suffered by the husband-appellant were not serious and permanent. The appellants in their brief and oral argument neither briefed nor argued the exception filed to the non-jury verdict, but only briefed and argued the following question:

“Did the Court err in excluding from the computation of threshold damages the husband-plaintiff’s bills for chiropractic treatment?”

Prior to the trial court’s consideration of appellants’ exceptions to the non-jury verdict, the Supreme Court of Pennsylvania reversed Strunack in Miller v. Johnson, 496 Pa. 290, 436 A.2d 1187 (1981). The Supreme Court in Miller held that chiropractic services were medical services within the meaning of § 301(a)(5)(B) of the No-Fault Act and could be used when computing a party’s monetary threshold for an exception to the tort immunity provisions of the No-Fault Act.

Subsequent to the Miller decision, the appellants filed a brief contending that the trial court erred as a matter of law in excluding chiropractic bills when computing the monetary threshold of the No-Fault Act, in light of the recent Miller decision. The trial court, sitting en banc, dismissed the appellants’ exceptions and entered judgment for the defendant. The court en banc ruled that the plaintiffs, having failed to raise the issue relative to the inclusion of chiropractic bills in the determination of the monetary threshold of the No-Fault Act either at the trial or in their exceptions, were precluded from doing so in their brief and argument before the court en banc. This appeal followed.

The sole issue raised on appeal is whether the lower court erred as a matter of law in its refusal to consider an issue first raised by appellants at oral argument on their exceptions to a non-jury verdict where that issue was based on a decision of the Pennsylvania Supreme Court which was not announced until after the time for filing appellants’ exceptions to the verdict had lapsed.

Generally, where a party fails to raise an issue at trial and in timely motions after trial, that issue is deemed waived. Schneider v. Albert Einstein Medical Center, 257 Pa.Superior Ct. 348, 390 A.2d 1271 (1978). However, this Court has held that where a new rule of law is established by an appellate decision and the moving party could not know of the rule until after the time for filing post-verdict motions had lapsed, there is an exception to the general rule. Pace v. Kroger Company, 210 Pa.Superior Ct. 139, 232 A.2d 16 (1967).

In the instant case, appellants’ counsel briefed and argued the issue of including husband-appellant’s chiropractic bills in computing appellants’ monetary threshold under the No-Fault Act at the argument on appellants’ exceptions to the non-jury verdict. This was the first opportunity that the appellants had to put this issue before the trial court, since their exceptions were filed on July 23, 1981, and the Supreme Court’s decision in Miller v. Johnson, supra, was not rendered until November 18, 1981. By briefing and arguing this issue below, the appellants in this case followed the mandate of Pace where the Superior Court stated “the better practice would have been to raise the issue at argument even though counsel did not know of it when he filed his reasons for a new trial.” This afforded the trial court an opportunity to grant a new trial on the basis of a recent decision which reversed a previously established rule. We hold the issue was not waived for failure to raise it below because:

the reasons for the rule, namely, that the error may be corrected at trial if raised in time and that it is unfair to reverse the trial court on a proposition not brought to its attention do not exist in this case.

Pace v. Kroger, supra. The failure of the trial court to consider the issue raised by appellants constitutes reversible error under the Pace decision.

The judgment is reversed, and the case is remanded for a new trial consistent with this opinion. Jurisdiction is relinquished.