author: CIRILLO, Judge: FORD ELLIOTT, Judge,

text:
    663 A.2d 195
    COMMONWEALTH of Pennsylvania, v. David ZEWE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1995.
    Filed Aug. 2, 1995.

      H. David Rothman, Pittsburgh, for appellant.
    Michael Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, FORD ELLIOTT and HESTER, JJ.
   CIRILLO, Judge:

David Zewe appeals from a judgment of sentence entered in the Court of Common Pleas of Allegheny County following his conviction for two counts of first degree murder and three counts of recklessly endangering another person. We affirm.

Zewe was tried by a jury before the Honorable Alan S. Penkower on November 5, 1986. The evidence presented at trial established that Zewe had suffered from mental illness for approximately three years prior to the events necessitating this appeal. He enlisted in the Navy in 1976 and in 1980 began having auditory hallucinations in the form of voices accusing him of having sex with his dog. Zewe did not initially inform anyone of his problem.

Soon after, Zewe was transferred to Japan where his auditory hallucinations continued. Outward manifestations of the hallucinations drew attention to Zewe while in Japan and he was sent to a psychiatrist. Zewe sought and received a two week leave to return to the United States.

As a result of his mental illness Zewe was discharged from the Navy. From the time he returned from Japan (1980) to the time he was taken into custody (1983), Zewe, when he was not in the hospital, lived at his parents’ home. During this time Zewe was diagnosed a paranoid schizophrenic and was prescribed medication for treatment of his mental illness. However, he only took his prescriptions sporadically. As a result, his condition fluctuated, but at no point was he outwardly violent. Zewe complained that the source of his problem was transmitters and electrodes that the Navy had implanted in his head.

The Posati family lived next door to Zewe and his parents. Family members testified at trial that they knew who Zewe was and regularly saw him outside, but rarely said more than hello. They also testified that they had no knowledge of any animosity between the families.

On September 10, 1983 the Posatis were having a family reunion attended by approximately twenty-five to thirty people. At roughly 6:00 p.m. the Posatis and their guests decided to play volleyball. While the volleyball net was being set up some of the guests noticed Zewe entering the Posati’s yard heavily armed. Before anyone realized what was happening, Zewe began firing into the group of guests who had congregated outside.

Of the several people shot, Creaig Posati (the son of Mr. and Mrs. Posati) and Michael Frantz (Creaig’s cousin) died as a result of the injuries they sustained that afternoon. Phillip Kosakowski, Claude Frantz and Lynne Downard, all guests at the party, were also wounded during the shooting.

Zewe’s facial expression was described by witnesses as “angry” during the shooting, but his expression visibly calmed soon after. He began making statements to Mr. Posati and other guests, such as “Look what I’ve done ... I’ve shot these two boys ... shoot me.” Referring to Creaig Posati as he lay on the ground, Zewe said “He’s been hassling me, I can’t take it anymore.”

The police were summoned and Zewe did not resist when he was disarmed and taken into custody. He asked that the police not kill him and stated that “they asked for it and they got it.”

Zewe attempted to establish that he was legally insane at the time of the killings and sought a not guilty verdict based on his insanity defense. At the close of trial Zewe was found guilty but mentally ill on two counts of murder of the first degree and three counts of reckless endangerment of another person.

Zewe filed post-verdict motions which were denied. He was sentenced by Judge Penkower to two concurrent life sentences for first degree murder and one to two years for each conviction of reckless endangerment of another person to run consecutively with the life sentences. A timely notice of appeal was filed.

Zewe raises eight claims for our review:

(1) Whether the record established Zewe’s insanity as a matter of law, or, in the alternative, whether the verdict was against the weight of the evidence?
(2) Whether the court’s charge to the jury on expert testimony deprived appellant of a fair trial?
(3) Whether the trial court committed reversible error in allowing the cross examination of Zewe’s expert on irrelevant and immaterial matters?
(4) Whether the verdict of guilty but mentally ill deprived Zewe of due process and equal protection?
(5) Whether the verdict of guilty but mentally ill denied Zewe of due process and equal protection of the law including effective assistance of counsel?
(6) Whether the enactment of the verdict of guilty but mentally ill exceeds Pennsylvania’s valid police power, thus depriving Zewe of his constitutional rights?
(7) Whether Zewe is entitled to a new trial because the trial court erred in instructing the jury?
(8) Whether Zewe is entitled to a new trial because of the inaccurate closing by the Commonwealth?

Zewe initially contends that he proved his insanity as a matter of law and, therefore, should be granted a new trial. The law in Pennsylvania, however, states that if there is sufficient evidence for a defendant to raise the issue of insanity, the burden is on the Commonwealth to prove the defendant’s sanity beyond a reasonable doubt. Commonwealth v. Ruth, 309 Pa.Super. 458, 455 A.2d 700 (1983). This places the decision of whether or not the defendant is legally insane within the discretion of the jury rather than the judge, who decides matters of law. Therefore, because the determination of the defendant’s sanity is a matter of fact to be decided by a jury, the first portion of Zewe’s first claim has no merit.

Zewe also claims that the verdict is against the weight of the evidence. Where issues of weight of the evidence are concerned, it is not the function of an appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837, 841 (1973); McElrath v. Commonwealth, 405 Pa.Super. 431, 443, 592 A.2d 740, 745 (1991). A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one’s sense of justice. McElrath at 441, 592 A.2d at 745. Furthermore, issues of credibility are left to the trier of fact; the jury is free to accept all, part, or none of the witness testimony. Commonwealth v. Pirela, 398 Pa.Super. 76, 82, 580 A.2d 848, 852 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991); Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838, 841 (1982). Additionally, where evidence is conflicting, the credibility of the witnesses is solely for the jury and, if its finding is supported by the record, the verdict will not be disturbed. Commonwealth v. Manchas, 430 Pa.Super. 63, 71, 633 A.2d 618, 623 (1993).

Here, numerous eyewitnesses testified at trial as to Zewe’s demeanor before, during, and after the shooting, as well as recounted comments he made. The jury heard testimony that in the past, Zewe had been told by voices in his head to hurt people, but had been able to resist them. They also heard testimony that Zewe thought that people at the party had obtained a gun from the police and were going to try to shoot him and he had to protect himself, yet Zewe did not attempt to protect himself from the police when they took him into custody.

Zewe’s expert witness testified that Zewe was legally insane at the time of the killings. Zewe asserts that his expert testimony outweighs that of the Commonwealth’s lay witnesses’ testimony. This court has held, however, that:

It seems clear that the law in Pennsylvania is that evidence of lay witnesses alone can be sufficient to establish the sanity of a defendant who has offered expert testimony as to his insanity. The Commonwealth may meet its burden by testimony concerning the defendant’s actions, conversations, and statements at the time of the crimes from which the jury can infer that he knew what he was doing when he committed the crimes and that he knew that his actions were wrong.

Commonwealth v. Young, 276 Pa.Super. 409, 413, 419 A.2d 523, 526-27 (1980). See also Commonwealth v. Scarborough, 491 Pa. 300, 308, 421 A.2d 147, 151 (1980) (it is up to the factfinder to determine the weight and credibility of the evidence, even psychiatric testimony).

In this case, the jury had ample evidence upon which to judge Zewe’s sanity at the time of the shootings. The fact that the jury believed the testimony of several lay witnesses over that of the testimony proffered by Zewe's expert certainly does not shock the court’s sense of justice. We conclude that the verdict was not against the weight of the evidence.

Zewe next asserts that he did not receive a fair trial because the trial court refused to instruct the jurors that they could not ignore the expert’s opinion and could not afford it the same weight as they would testimony of other witnesses. As was stated previously, the law in Pennsylvania is that it is up to the jury to determine how much weight to afford the testimony of witnesses. Scarborough, 491 Pa. at 308, 421 A.2d at 151. Based upon this reading of the law in Pennsylvania, the trial court properly refused to utilize Zewe’s jury instruction and instead relied on an instruction that is in substantial conformity with the Pennsylvania Suggested Standard Criminal Jury Instructions. See Pa.S.S.J.I. (Crim) § 4.10A.

Zewe’s third claim of error states that the trial court erroneously permitted the Commonwealth to cross-examine his expert, Dr. Martone, on irrelevant and immaterial matters. Zewe’s argument on this matter, however, is limited to a general discussion of why Zewe feels that the cross-examination was improper with no citation to relevant authorities. This court has held that the argument section of an appellant’s brief must include relevant discussion of points raised along with citations to pertinent authorities. Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228 (1992). Because Zewe’s argument on this issue contained only vacuous claims and not a single citation to relevant law, we find this issue waived.

Zewe next contends that the verdict of guilty but mentally ill deprived him of due process and equal protection. Pennsylvania’s guilty but mentally ill statute, found at 18 Pa.C.S.A. § 314, states:

(a) General rule. — A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.
(c) Definitions. — For the purposes of this section and 42 Pa.C.S. § 9727 (relating to disposition of persons found guilty but mentally ill):
(1) “Mentally ill.” One who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
(2) “Legal insanity.” At the time of the commission of the act, the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.
(d) Common law M’Naghten’s Rule preserved. — Nothing in this section shall be deemed to repeal or otherwise abrogate the common law defense of insanity (M’Naghten’s Rule) in effect in this Commonwealth on the effective date of this section.

This court’s decision in Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988), alloc. denied, 522 Pa. 603, 562 A.2d 826 (1989), controls the issue of whether the “guilty but mentally ill” statute runs afoul of the State or Federal Constitution. In Trill the challenge to 18 Pa.C.S.A. § 314 was almost identical to the one set forth by Zewe. This court held:

The equal protection clauses of the fourteenth amendment of the United States Constitution and article I, section 2 of the Pennsylvania Constitution require the state to afford its citizens equal protection of the laws. “The Equal Protection Clause prohibits differences in treatment of similarly situated persons based upon a constitutionally suspect standard (race or religion) or other classifications lacking in rational justification.” (...) However, the Commonwealth of Pennsylvania is not required to treat all citizens exactly alike. Differential treatment of citizens is permissible where the actions are based on criteria which are reasonably related to the purpose of a legislative enactment and facts exist justifying the disparate treatment.
:{? * ij« ífc * *
Under the rational basis test, in order for 18 Pa.C.S.A. § 314 to pass constitutional muster on equal protection grounds, the classification drawn by the statute “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the legislation so that all persons similarly circumstanced shall be treated alike.” (...) As mentioned earlier in our opinion, the legislative enactment of the guilty but mentally ill verdict was merely the statutory articulation of our legislature’s desire to allow the finder of fact to hold responsible those mentally ill defendants who deviate from the laws of this Commonwealth, while at the same time providing them with the humane psychiatric treatment for their mental infirmities. Our legislature perceived a problem with the disposition of mentally ill defendants under the traditional “guilty,” “not guilty,” and “not guilty by reason of insanity” verdicts. Consequently, they adopted the verdict of guilty but mentally ill with the intention of correcting this shortcoming of the criminal justice system. Concomitantly, they hoped to limit the number of persons, who, in the eyes of the legislature, were improperly being relieved of all criminal responsibility through utilization of the insanity verdict. There is nothing impermissible about such a purpose. It is well within the power of Pennsylvania’s lawmaking body to attempt to cure what it perceives to be a defect in the law. We believe that this carefully drafted legislation certainly bears a rational relationship to meeting the goals articulated above. Additionally, the inclusion of treatment provisions for guilty but mentally ill defendants rationally furthers the legitimate, articulated state purpose of providing for the health and welfare of all Pennsylvania citizens, including those who are adjudicated mentally ill and the public which is indirectly benefitted by having such individuals treated. (...) Consequently, we find no merit in Trill’s claim that 18 Pa.C.S. § 314 is unconstitutional under either state or federal standards of equal protection.

Commonwealth v. Trill, 374 Pa.Super. at 581, 543 A.2d at 1122-1124.

In so holding, this court explained that the Pennsylvania “guilty but mentally ill” statute creates neither a suspect class nor implicates a fundamental right; therefore, any analysis of its constitutionality warrants the utilization of the rational basis test. Upon examining the statute to see if it violated state due process requirements, this court found that the statute was not vague, it did not encourage arbitrary convictions, compromise verdicts or jury confusion, and, therefore, was not violative of state of federal due process requirements. Id. at 585, 543 A.2d at 1124-1130. As Trill is controlling law in Pennsylvania, this claim must fail.

Similarly, Zewe’s fifth and sixth claims of error involve constitutional issues. Based on our previous discussion, we find that Zewe’s claim that the “guilty but mentally ill” statute is unconstitutional must fail.

Zewe next claims that he is entitled to a new trial because the trial court erred in instructing the jury. Our standard of review in this matter is well settled:

The scope of appellate review of a jury charge for reversible and prejudicial error requires that the charge be evaluated and considered as a whole. The general effect of the jury charge controls because error will not be predicated upon isolated excerpts from the charge. Further, a trial court’s deviation from the express language of the statutory instruction or a technical inaccuracy in the jury instruction which nevertheless adequately, accurately, and clearly expresses the law to the jury will not mandate reversal.

Trill, 374 Pa.Super. at 565, 543 A.2d at 1114 (citations omitted).

Zewe first objects to the trial court’s instruction to the jury regarding mental illness. He claims that 18 Pa.C.S.A § 314 “uses lack of ‘substantial capacity’ in defining mental illness.” According to Zewe, Judge Penkower committed reversible error when he defined legal insanity as requiring that the actor in question was “either incapable of knowing what he was doing, [or] is incapable of judging that it is wrong.” Zewe took special exception to the use of the word “incapable” in the instruction.

“Mentally ill” and “legal insanity” are distinct concepts and each has a separate definition under 18 Pa.C.S.A. § 314. Although “incapable” is not used in the statutory definition of “legal insanity,” it is used in the Pennsylvania Suggested Standard Criminal Jury Instructions. See Pa. S.S.J.I. (Crim) § 5.01A. Even if Judge Penkower’s instruction differed from the one suggested by the Pennsylvania Bar, as long as it clearly stated the law to the jury, there are no grounds for reversal.

Zewe also objected to Judge Penkower’s instruction to the jury regarding manslaughter and civil liability. These charges also plainly and accurately stated the law to the jury and, therefore, do not rise to the level of warranting a new trial.

Finally Zewe claims that he is entitled to a new trial because of an improper closing by the Commonwealth. Zewe’s brief, however, is insufficient to present any issues for our review. Like his third claim, Zewe fails to comply with Pa.R.A.P. 2119(a), requiring that issues on appeal must be properly discussed and supported by authority in the appellant’s brief. Zewe makes only a bald assertion that the Commonwealth’s closing was improper and backs it up with no citation to relevant law. See Rodgers, supra at 199. In addition, Zewe’s brief contains only a general reference to where the alleged improper statement might be located. For the reasons set out above, we find Zewe has waived his right to appellate review on this issue.

Judgment of sentence affirmed.

FORD ELLIOTT, J., files a Concurring Statement.

FORD ELLIOTT, Judge,

concurring:

I join in the opinion of the majority, although I find appellant’s equal protection and due process issues to be compelling. As I believe that the Constitutional questions presented by appellant are controlled by this court’s decision in Commonwealth v. Trill, supra, at 374 Pa.Super. 549, 543 A.2d 1106, this court has no authority to overturn or reconsider that decision, and therefore appellant’s arguments must await review by our supreme court.

      . 18 Pa.C.S.A. § 2501(a).

      . 18 Pa.C.S.A. § 2705.

      . At one point Zewe indicated to his mother that the voices had told him to commit murder. When she asked if he would ever "do anything like that," he responded "no, I guess not.” During the summer of the shooting Zewe told his younger brother that the voices in his head “told me to hurt you, but I would never do anything to hurt you because I love you.”

      . The weapon used in the shooting was a .223 caliber semi automatic Reuger (a high velocity weapon). Zewe was also armed with a six millimeter rifle and a forty-five caliber semi automatic pistol. All were fully loaded and Zewe had a large quantity of additional ammunition on his person. The weapons had been procured prior to the onset of Zewe’s mental illness.

      . The insanity defense centered around Zewe’s contention that he opened fire on the guests at the party because he thought they had obtained a gun from the police, and the voices told him to protect himself.

      . Pa.R.A.P. 2119(a) states, in part:
      The argument shall ... have .,. the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.

      . Pa.R.A.P. 2119(e) states:
      Where under the applicable law an issue is not reviewable on appeal unless raised or preserved below, the argument must set forth, in immediate connection therewith or in a footnote thereto, either a specific cross reference to the page or pages of the statement of the case which set forth the information relating thereto required pursuant to Rule 2117(c) (statement of place of raising or preservation of issues), or substantially the same information.


source: Caselaw Access Project

author: KELLY, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    663 A.2d 202
    COMMONWEALTH of Pennsylvania, v. Richard TONER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 25, 1995.
    Filed July 27, 1995.

      Michael Machen, Asst. Deputy Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before Del Sole, Kelly, and Brosky, JJ.
   KELLY, Judge:

In this opinion, we are asked to determine whether the court of common pleas may dismiss an appellant’s appeal for a trial de novo following the entry of judgment of sentence by a district justice on a summary conviction. We hold that the trial court cannot merely dismiss the appeal, but must determine facts and enter a verdict upon the record. Additionally, we hold that one’s guilty plea to a summary offense before a district justice does not preclude the right to a trial de novo in the court of common pleas. Accordingly, we reverse the trial court’s order dismissing appellant’s appeal and remand for proceedings consistent with this opinion.

The relevant facts and procedural history of this appeal are as follows. On February 2, 1994, the appellant, Richard Toner, was arrested for public drunkenness. The appellant was brought before District Justice Boyle on March 1, 1994. At the hearing, the appellant pled guilty to the offense and was sentenced to ninety (90) days incarceration, no fine or costs.

The appellant filed a notice of appeal from his summary conviction with the Allegheny County Court of Common Pleas on April 5, 1994. The appeal was heard on June 27, 1994 by Common Pleas Judge Doyle. The following exchange took place at the hearing:

THE COURT: Why are we here? He pled guilty.
THE OFFICER: He is appealing a ninety-day jail sentence. He pled guilty at district court and then we had the sentencing, then he filed for the appeal in the ninety days. Not the guilty verdict, the ninety days.
THE COURT: The only debate is over the sentence?
THE OFFICER: Yes.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You pled guilty to the offense.
THE DEFENDANT: The magistrate told me to appeal it and bring it down here.
THE COURT: Well, you are here. And, clearly, if you want to read it, there it is, of public record, you pled guilty and you were sentenced.
MR. ROSEN: He was sentenced to ninety days.
THE DEFENDANT: That’s why she told me to appeal it. She said bring it down here, appeal it.
THE COURT: Well—
THE OFFICER: She said you had a right to an appeal.
THE COURT: That’s all you have, because she sentenced you to ninety days. I didn’t.
THE DEFENDANT: That day I brought it down here—
THE COURT: Show it to him.
THE CLERK: In the yellow highlighted area.
THE COURT: See the highlighted language.
MS. ROSEN: You pled guilty; you got ninety days in jail.
What would you like to do about this?
(Discussion held at sidebar off the record between Judge Doyle and Ms. Rosen.)
MS. ROSEN: Have you been in jail on this at all?
THE DEFENDANT: No, ma’am.
THE COURT: Do you have anything else?
THE DEFENDANT: No, sir.
THE COURT: The appeal is dismissed. Now you have thirty days to take an appeal to Superior Court.

(N.T. 6/27/94 at 2-4).

Accordingly, the Common Pleas Court “dismissed” the appeal, refusing a de novo review of the matter. This timely appeal followed.

On appeal, the appellant raises the following issues for our review:

I. DID THE LOWER COURT ERR IN DISMISSING THE APPEAL FROM A DISTRICT MAGISTRATE’S JUDGMENT IN SUMMARY CONVICTION PROCEEDINGS?
II. DID THE LOWER COURT ERR IN FAILING TO CONDUCT A DE NOVO REVIEW OF THE APPEAL FROM A DISTRICT MAGISTRATE’S SUMMARY JUDGMENT ENTERED UPON A GUILTY PLEA?

Appellant’s Brief at 3.

We agree with the appellant’s first contention that the Common Pleas Court’s “dismissal” of the appellant’s appeal from his summary conviction was improper.

The appropriate method of challenging the propriety of a summary conviction, whether after hearing or by plea, is by a timely appeal to the Court of Common Pleas pursuant to Pa.R.Crim.P. 86.[] Such an appeal must be taken within thirty days of sentencing and when perfected, the appeal is heard de novo by the Court of Common Pleas. Rule 86(g) provides that such an appeal is the exclusive means of challenging a summary conviction.

Commonwealth v. Smirga, 432 Pa.Super. 286, 291, 638 A.2d 229, 231-32 (1994) (quoting Commonwealth v. Bassion, 390 Pa.Super. 564, 567, 568 A.2d 1316, 1318 (1990)). “This court has repeatedly held that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either ‘guilty’ or ‘not guilty’.” Commonwealth v. Ragoli, 362 Pa.Super. 390, 402, 524 A.2d 933, 939 (1987); Commonwealth v. Vianello, 337 Pa.Super. 148, 150, 486 A.2d 525, 526 (1984); Commonwealth v. Morgenthaler, 320 Pa.Super. 120, 122, 466 A.2d 1091, 1092 (1983); Commonwealth v. Kyle, 307 Pa.Super. 446, 448, 453 A.2d 668, 669 (1982); Commonwealth v. Gula, 300 Pa.Super. 445, 446, 446 A.2d 938, 939 (1982); Commonwealth v. Carter, 230 Pa.Super. 401, 403, 326 A.2d 530, 530-31 (1974); Commonwealth v. Miller, 173 Pa.Super. 168, 170, 96 A.2d 153, 154 (1953). “A judgment affirming the justice of the peace, dismissing the appeal, or sustaining the appeal is not sufficient and will be reversed.” Commonwealth v. Ragoli, supra, at 390, 524 A.2d 933; Commonwealth v. Morgenthaler, supra, at 120, 466 A.2d 1091; Commonwealth v. Gula, supra, at 445, 446 A.2d 938; Commonwealth v. Carter, supra, at 401, 326 A.2d 530; Commonwealth v. Miller, supra, at 168, 96 A.2d 153. “The trial court ... must determine the facts and render a verdict; it cannot merely dismiss the appeal.” Commonwealth v. Vianello, supra at 150, 486 A.2d at 526 (quoting Commonwealth v. Kyle, 307 Pa.Super. 446, 449, 453 A.2d 668, 669 (1982)). “Normally, this defect alone would compel a remand for the entry of a proper verdict.” Commonwealth v. Kyle, supra at 448, 453 A.2d at 669.

Instantly, the trial court erred in dismissing the appeal without making findings of fact. The record reveals that the trial court never considered any facts at the June 27, 1994 hearing. Furthermore, the trial court’s conclusion that it “refused to disturb” the district justice’s verdict “absent ... any viable defense” is unsubstantiated. (Trial Court Opinion 11/21/94 at 1). The appellant could not forward “any viable defense” because the court did not examine the facts at the June 27, 1994 hearing. Accordingly, because the trial court “must determine facts and render a verdict,” the court erred in failing to make factual determinations. See Commonwealth v. Vianello, supra at 148, 486 A.2d 525.

Additionally, the record reveals that the trial court improperly “dismissed” the appeal without finding the appellant “guilty” or “not guilty.” (N.T. 6/27/94 at 3). We note that the trial court’s written opinion indicates that the court “found the appellant guilty as charged.” (Trial Court Opinion, 11/21/94 at 1). However, after thoroughly reviewing the transcript from the June 27, 1994 hearing, we find that no such determination was made. Indeed, at the hearing, the only time the court used the term “guilty” was in connection with the appellant’s previous guilty plea. Therefore, we conclude that the trial court erred in “dismissing” the appeal without adjudicating the appellant’s culpability. See Commonwealth v. Ragoli, supra, at 390, 524 A.2d 933.

Moreover, we agree with appellant’s second contention that the trial court erred in refusing to conduct a de novo review of the appeal, effectively denying the appellant’s right to appeal his guilty plea conviction to a summary offense. One who pleads guilty to a summary offense has the right to take an appeal pursuant to Pa.R.Crim.P. 86. See Commonwealth v. Bassion, supra at 567 n. 3, 568 A.2d at 1318 n. 3.

At the hearing on June 27, 1994, the trial court failed to conduct a de novo review of the appeal because the appellant previously pled guilty to the summary offense. At the commencement of the hearing, the trial judge inquired: “[W]hy are we here? He pled guilty.” (N.T. 6/27/94 at 2). In addition, the following exchange took place:

THE COURT: You pled guilty to the offense.
THE DEFENDANT: The magistrate told me to appeal it and bring it down here.
THE COURT: Well, you are here. And, clearly, if you want to read it, there it is, public record, you pled guilty and you were sentenced.

(N.T. 6/27/94 at 2).

Additionally, in its November 24, 1991 opinion, the trial court stated that “absent a proper withdrawal of the guilty plea ... we refused to disturb the verdict and sentence of the District Justice,” the court considered the appellant’s withdrawal of his guilty plea a prerequisite to de novo review. In light of this Court’s decision in Commonwealth v. Bassion, supra, at 564, 568 A.2d 1316, we conclude that the trial court improperly held that the appellant’s guilty plea precluded his right to de novo review.

Based upon the foregoing, the trial court’s order of June 27, 1994, dismissing appellant Toner’s appeal from his summary conviction, is reversed and the case remanded with a directive to the trial court to conduct a trial de novo, make determinations of fact, and enter a verdict upon the record.

Judgment of sentence reversed; case remanded. Jurisdiction relinquished.

DEL SOLE, J., filed a concurring statement.

DEL SOLE, Judge,

concurring.

I join the Opinion authored by my colleague, Judge Kelly. I wish to further support his analysis. The filing of an appeal following a summary conviction and sentence by a district justice requires a trial de novo, even when the conviction is the result of a plea.

In Commonwealth, Department of Transportation v. Tarnopolski, 533 Pa. 549, 626 A.2d 138 (1993), the Supreme Court reaffirmed this procedure. The reference in ftn. 4 of that Opinion to the requirements of Commonwealth v. Khorey, 521 Pa. 1, 555 A.2d 100 (1989) applying to a post-sentence withdrawal of a guilty plea only occur where the withdrawal is sought before the district justice who accepted the plea. It does not require that, on appeal to the Court of Common Pleas, the Khorey standards be met. The filing of the appeal from the district justice court to the trial court requires a trial on the merits, irrespective of how the conviction was obtained.

      . When an appeal is authorized by law in a summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within thirty (30) days after the conviction or other final order from which the appeal is taken and by appearing in the court of common pleas for the trial de novo. Pa.R.Crim.P. 86(a).

      . We note that the trial court’s written opinion, filed November 21, 1994, appears to contradict what was said at the June 27, 1994 hearing. The written opinion indicates that the court found the appellant guilty. However, the transcript reveals that the court never made a determination of the appellant’s culpability; rather, the court "dismissed” the appeal because the appellant pled guilty to the offense before District Justice Boyle on March 1, 1994.

      . The Commonwealth did not file a responsive brief; through correspondence dated February 1, 1995, the Commonwealth opined that the appellant's position was correct.

      . See Pa.R.Crim.P. 86(a), (f).


author: DEL SOLE, Judge:

text:
    663 A.2d 206
    COMMONWEALTH of Pennsylvania, Appellant, v. Francis REESE, Appellee.
    Superior Court of Pennsylvania.
    Argued April 4, 1995.
    Filed Aug. 1, 1995.

      Martha J. Duvall, Asst. Dist. Atty., Gettysburg, for Com., appellant.
    Tony Sangiamo, York, for appellee.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is a Commonwealth appeal from an order granting Appellee a new trial following receipt of DNA evidence in a post-conviction hearing proceeding. We affirm.

In 1982, following a jury trial, Appellant was found guilty of Rape, Kidnapping and related offenses. At trial the victim testified that in April of 1982 at about 9:30 in the evening, as she was driving her vehicle, another vehicle approached from behind with its lights flashing. The victim, thinking it was her boyfriend, pulled off the road. At this point the assailant approached her car, opened her door, grabbed her wrist and directed that she drive to a remote area. The victim testified that she was forced out of the car along the roadside and sexually assaulted. The victim and the assailant then returned to her car and drove back to the place where the assailant had left his vehicle. The assailant left, directing the victim not to tell anyone about the incident. The victim contacted her boyfriend and the police and was then taken to a hospital for treatment. At trial, the victim identified Appellee as the stranger who raped her. She was questioned extensively about the dark conditions during the incident and her proximity to her attacker. Although the victim gave a description of the car being driven by the assailant, Appellee was not connected, at trial, to either the ownership or availability of any such car for his use. The Commonwealth also offered evidence of a chemist from the state police crime laboratory. He testified that stains found on the victim’s underwear and a smear from a vaginal slide taken by a physician each indicated the presence of seminal fluid containing spermatozoa. The chemist further advised the jury that he conducted no further tests on the samples to determine if Appellee was the depositor of the seminal fluid because, at that time, in the scientific community no test was available which could make such a determination within a reasonable degree of medical certainty.

Appellee’s conviction was affirmed following a direct appeal, and previously filed requests for post-conviction relief were denied. In the most recently filed petition for relief under the Post-Conviction Relief Act, Appellee couched all his claims under the guise of ineffective assistance of counsel, except for a request for DNA testing. The court dismissed each of the ineffectiveness arguments presented by Appellee, but ultimately granted his request for DNA testing. The court concluded that DNA testing is a recognizable form of after-discovered evidence, that it was unobtainable at trial and that it has exculpatory potential, such that its results would not be merely cumulative. The court remarked that it hoped to achieve “finality” by its ruling and therefore ordered that testing could be done, at the petitioner’s expense, on any remaining evidence.

The testing was ultimately done, and at a hearing which followed, the parties stipulated that “the forensic evidence relevant in this case indicates that Mr. Reese (Appellee) has been excluded as the depositor of any of the forensic evidence that was uncovered in this case.” As a result of this scientific finding the court set aside Appellee’s conviction and awarded him a new trial. The Commonwealth took this timely appeal.

The Commonwealth begins by arguing that the court erred when it first determined that it was appropriate to order DNA testing. While acknowledging that post-conviction testing was allowed in Commonwealth v. Brison, 421 Pa.Super. 442, 618 A.2d 420 (1992), the Commonwealth argues that Brison is factually dissimilar and should not be relied upon to support the PCRA court’s ruling in this case. It maintains that the Brison court’s decision was premised on the specific fact that the identification testimony was questionable in view of the poor lighting conditions and the victim’s physical condition due to the stabbing she suffered. It is also pointed out that the defendant in Brison presented an alibi defense whereas Appellee in this case did not take the stand and offered no evidence of alibi at trial.

Contrary to the Commonwealth’s position, we find Brison both instructive and supportive of the court’s ruling in this case. The Brison court began its analysis with a review of the law found in sister states with regard to DNA testing. It noted that the DNA testing process is now acknowledged by both the scientific community and the courts as an accurate means of matching cellular material to a specific individual. It opined that “as scientific technology continues to advance, DNA analysis may eventually become as widely accepted as routine and decisive as fingerprint or other types of evidence.” Id. at 452, 618 A.2d at 425. In considering circumstances where such testing was not available at the time of trial but is requested in a post-trial proceeding, the court cited to Sewell v. State, 592 N.E.2d 705, 707-708 (Ind.App. Dist. 3 1992). Therein the court found that the “potential for exculpation by DNA comparison parallels the potential for accurate identification.” Id. 592 N.E.2d at 708. Thus, where the request for forensic tests are made in a post-conviction proceeding, the right to discovery will be implicated “where a conviction rest[s] largely on identification evidence and advanced technology could definitively establish the accused’s innocence.” Id. The Brison court, recognizing the wide acceptance of this evidence and its ability to accurately inculpate or exclude a particular person as the perpetrator of the crime, went on to examine the factual circumstances of its case.

In Brison there were poor lighting conditions during the assault due to a darkened location, and rain, however the victim testified that she was able to observe her assailant for a substantial period of time. The victim in Brison consistently identified the defendant as the perpetrator of the crime; however, she did not specifically describe any of her assailant’s facial characteristics to the police. Further, there was no physical evidence recovered in Brison which conclusively connected the defendant to the crime.

In the present case, the victim was assaulted in a dark isolated area. Although the victim was with her assailant for a substantial period of time and in close proximity, she was not able to describe his facial features to the police. While the victim here, as in Brison, consistently identified the person charged as her assailant, Appellee was never linked to the crime by any physical evidence. No fingerprint tests were conducted. Appellee was not linked to the crime or its location by fibers or hair samples and the vehicle described by the victim was not connected to Appellee at trial. In Brison there was concern expressed that the victim may have been prompted to identify the named defendant because she had seen him previously in the neighborhood, and, in this case, the defense attempted to demonstrate thru cross-examination the the victim’s identification of Appellee may have been prompted by the actions of her boyfriend. Thus, contrary to the position taken by the Commonwealth, we find the facts of this case remarkably similar to those of Brison.

The Brison court went on to remark that the admission of DNA test results which exclude the defendant may be sufficient to create reasonable doubt which could secure an acquittal. In the event the results of DNA testing are inculpatory, the Commonwealth’s case would be strengthened. Under these circumstances the court concluded, “the principles of justice” require a DNA analysis to be performed on samples taken from the victim. We likewise find that the same “principles of justice” apply in this case to support the PCRA court ruling directing the performance of DNA testing. In this matter, which was decided solely on identification testimony of the victim, which identification was challenged by the defense, it was proper for the court to allow such testing to definitively establish whether Appellee could be connected to the seminal fluid evidence introduced at trial.

Finding no abuse of discretion or error of law in the decision to have DNA test performed we now turn to the Commonwealth’s claim that the information obtained as a result of the tests does not warrant the PCRA court’s award of a new trial. When reviewing a decision to grant a new trial on the basis of after-discovered evidence, we are to determine whether the court committed an abuse of discretion or an error of law which controlled the outcome of the case. Commonwealth v. Bonaccurso, 425 Pa.Super. 479, 625 A.2d 1197 (1993).

In this case the receipt of information, which revealed that Appellee could not be the depositor of the seminal fluid found on the victim’s clothing following the attack, must be examined to determine whether it properly formed the basis for the court’s award of a new trial. See Brison, at 453, n. 13, 618 A.2d at 425, n. 13. In addition to establishing that the new evidence would be producible and admissible at trial, the party seeking a new trial should be granted relief only where it is shown that there was unavailable at the time of trial exculpatory evidence which has subsequently become available and which “would have affected the outcome of the trial had it been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). To grant such relief the court must be satisfied that the evidence “could not have been obtained at trial by reasonable diligence, that it is not cumulative or of such a nature that it merely impeaches credibility, and that it would be likely to compel a different result.” Commonwealth v. Galloway, 433 Pa.Super. 222, 640 A.2d 454 (1994).

The Commonwealth does not dispute that the newly discovered evidence satisfies most of this criteria, but instead argues that in view of other evidence which could be presented, the DNA evidence loses its exculpatory quality. In considering this argument it is necessary to also review the Commonwealth’s remaining claim that the PCRA court wrongly refused to allow it to present evidence at the PCRA hearing.

The Commonwealth sought to offer evidence from the police who spoke to the victim after the attack and were advised by her that the assailant complained to her that he was unable to ejaculate during the assault. It also sought to have the court hear testimony from the victim. The Commonwealth wished to establish through her testimony that in 1982, at the time of the crime, she had a live-in boyfriend with whom she was having sexual relations on a regular basis. It was claimed by the Commonwealth that this testimony should be heard by the court because it would rebut the claim that the DNA test results were truly exculpatory. The Commonwealth reasons that if the court were to accept the testimony establishing that the rapist did not ejaculate and that the victim was regularly engaging in sexual intercourse with her boyfriend at the time of the rape, then it would not follow that the DNA test results excluding Appellee as the depositor were exculpatory. Rather, it argues this evidence would offer a reasonable explanation as to why Appellee was not linked through the DNA testing to the seminal fluid obtained following the victim’s hospital examination.

The weakness with the Commonwealth’s argument rests in the fact that the evidence it sought to have the PCRA court review was not evidence which was introduced and heard by the jury at trial. The jury was not advised of the assailant’s comment and was not told about the victim’s sexual activity. However the jury did hear testimony in which the victim detailed the attack, and identified Appellee as the attacker. The jury was also advised that seminal fluid samples were obtained from the clothing worn by the victim the night of the attack. The clear implication of the evidence offered at trial was to corroborate the victim’s account of the evening and testimony of a sexual assault by Appellee. Because the jury did not hear evidence of other explanations for the deposit of this seminal fluid, it would have been improper for the PCRA court to have considered it when examining whether the DNA evidence was exculpatory and whether it would likely have resulted in a different verdict if admitted at trial. The narrow issue before the PCRA court was whether the DNA evidence would have affected the outcome of the trial had it been introduced. We find that the PCRA court properly restricted the evidence during the hearing to that which was relevant to this question. While the Commonwealth’s proposed evidence may in fact be proper rebuttal testimony in a new trial, it was irrelevant to the matter under consideration before the PCRA court.

The award of a new trial in this case was made based upon the .exculpatory nature of the DNA test results and the conclusion that this evidence was not cumulative and would likely have affected the outcome of the trial had it been introduced. As stated, the jury was advised that seminal fluid was found on the victim’s clothing following the attack, but because scientific developments had not yet made it possible to perform accurate and precise DNA testing, the jury was not advised that Appellee could not have been the depositor of the seminal fluid. Nor was the jury advised that the perpetrator did not ejaculate. Because this information is so very critical, it was appropriate for the court to award a new trial. Only under these circumstances can we be assured that the “interests of justice” have prevailed.

Order affirmed.

      . The Commonwealth also argues that Appellee waived any request for DNA testing by his actions taken at trial where he withdrew a request for "scientific” testing. The PCRA court rejected this argument in view of the fact that DNA testing was not available at the time of trial because the technology for such a precise test had not yet developed. We accept the court’s rationale for rejection of this claim as sound.


author: ROWLEY, President Judge.

text:
    663 A.2d 210
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas SEVERNS.
    Superior Court of Pennsylvania.
    Argued April 24, 1995.
    Filed Aug. 9, 1995.
    Mary L. Porto, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellee.

      Before ROWLEY, President Judge, and TAMILIA and SAYLOR, JJ.
   ROWLEY, President Judge.

Appellee Thomas Severns was arrested and charged with violating 35 P.S. § 780—113(a)(16), possession of a controlled substance, and 35 P.S. § 780—113(a)(30), possession with intent to deliver. Failing in a motion to suppress twelve vials of cocaine seized from him at the time of his arrest, appellee proceeded to a bench trial after entering pleas of not guilty to both charges. The trial court acquitted appellee of possession with intent to deliver, but found him guilty of simple possession.

Appellee’s counsel immediately requested the trial court to “hold the guilty [verdict] to the possession [charge] in abeyance,” insisting that appellee qualified for probation without verdict under 35 P.S. § 780-117 (Section 17), “because the statute states that a person who has either pled no contest, pled guilty or actually having been found guilty at trial, is eligible for [probation without verdict].” N.T., 10/12/93, at 3. The trial court deferred adjudication and ordered Section 17 evaluation.

On October 19, 1993, the Commonwealth conducted a colloquy during which appellee was asked whether “anyone made any threats or promises to you to make you plead nolo contend[e]re?” N.T., 10/19/93, at 8. However, no formal plea appears of record. The trial court then vacated its guilty verdict, and declared it would hold it “in abeyance until you complete the Section-17 program.” Id. at 13. The Commonwealth’s petition for reconsideration was denied on October 26, 1993, and this timely appeal followed. We vacate sentence of probation without verdict, reinstate the trial court’s guilty verdict, and remand for re-sentencing.

The question for our review, as posited by both the Commonwealth and appellee, is whether the sentence appellee received is illegal under section 17 of Title 35 P.S. § 780-113 et seq., the Controlled Substance, Drug, Device and Cosmetic Act. The Commonwealth contends that the plain language of the statute restricts eligibility for imposition of probation without verdict to a person who “pleads nolo contendere or guilty to any nonviolent offense under this act and [who] proves he is drug dependent.” 35 P.S. § 780-117.

Appellee contends that the Commonwealth is being “overly technical,” Appellee’s Brief at 7, and argues that he “constructively” pled guilty and thus is eligible for probation without verdict. Alternatively, appellee argues that he only pled not guilty because he was “overcharged” by the Commonwealth, and that the trial court’s acquittal on the charge of possession with intent to deliver validates this claim. Lastly, appellee raises a constitutional challenge to the statute, contending that restricting section 17 eligibility to defendants who plead guilty or nolo contendere violates a defendant’s right to plead not guilty and be tried.

Dispensing with these claims in the order presented, the record supports the Commonwealth’s position that appellee pled not guilty, proceeded to trial, and an adjudication of guilt was made by the trial court. There is no basis upon which to find that appellee “constructively” pled guilty at any time prior to the trial court’s finding him guilty of simple possession. The record also supports the Commonwealth’s position that the facts that led to appellee’s arrest provided probable cause to charge him with both simple possession and possession with intent to deliver. Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994) (en banc) (prosecutors required to refrain from prosecuting a charge known not to be supported by probable cause). Thus, appellee’s claim that he was somehow forced to plead not guilty by virtue of being overcharged is meritless. We note that there is no evidence in the record to suggest that appellee made any attempt to offer a plea of guilty to simple possession, and not guilty to possession with intent to deliver for the court’s approval. Commonwealth v. Stewart, 493 Pa. 24, 30, 425 A.2d 346, 349 (1981). Appellee may not now blame the Commonwealth for his own failure to elect this course.

While this reasoning also dispenses with appellee’s constitutional argument, as he was not precluded from making a choice with respect to the pleas entered, we need not address this claim, as no cross-appeal has been filed. Arcidiacono v. Timeless Towns of the Americas, 363 Pa.Super. 528, 526 A.2d 804 (1987); see also Berryman, supra, 437 Pa.Super. 258, 649 A.2d 961 (appellee waived constitutional issue by failing to raise it at sentencing).

This is a simple case of trial counsel misstating the law. The statutory provision at issue was amended in 1992 to reflect the legislature’s intent to specifically limit eligibility to receive probation without verdict to those who plead guilty or nolo contendere, and who prove drug dependency. Appellee elected to plead not guilty, and his failure to alter that course prior to an adjudication with respect to his guilt eliminated any possibility that he could receive probation without verdict. We note that the record reveals no evidence that appellee established his drug-dependent status prior to the trial court’s ordering section 17 disposition, which is also in contravention of the statute.

We need not decide whether a trial court has the authority under any circumstances to permit a defendant to enter a plea of nolo contendere, after the defendant pleads not guilty, proceeds to and completes a trial, and has already been found guilty. A trial court clearly may not do so where, as here, the order is entered in a bald attempt to circumvent a clear statutory exclusion. As the en banc panel of this Court determined in Berryman, supra, “[b]y limiting who is eligible to receive probation without verdict, the legislature has limited, to an extent, the discretion of the trial court to impose probation without verdict.” Id., 437 Pa.Super. at 277-78, 649 A.2d at 971. If the trial court had any doubt with respect to the propriety of its verdict, the proper course would have been to “review the evidence for sufficiency or grant[ ] a new trial.” Commonwealth v. Gaither, 355 Pa.Super. 502, 513 A.2d 1034 (1986).

Appellee’s sentence of probation without verdict is vacated. The trial court’s verdict is reinstated. Case remanded for re-sentencing. Jurisdiction relinquished.

      . Title 35 P.S. § 780-117, in fact, reads:
      Except as provided in clause (1) of this subsection, the court may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under this act and the person proves he is drug-dependent. []

      . As enacted in 1972, section 780-117 read, in pertinent part:
      A person may be entitled to probation without verdict under the following circumstances:
      (1) A person [] is eligible for probation without verdict if he pleads nolo contendere or guilty to, or is found guilty of, any nonviolent offense under this act.
      April 14, 1972, P.L. 233, No. 64, § 17, eff. June 14, 1972 (emphasis supplied).
      As amended in 1992, section 780-117 deleted the above italicized section, to read in pertinent part:
      Except as provided in clause (1)[], the court may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under this act and the person proves he is drug dependent^]
      April 16, 1992, P.L. 165, No. 30, § 2, eff. June 16, 1992 (emphasis supplied).

      . As a matter of pretrial procedure, a defendant "may plead not guilty, guilty, or, with the consent of the court, nolo contendere.” Pa.R.Crim.P. 319(a). In the normal course of events, if a defendant pleads not guilty he proceeds to trial by jury, or if he or she waives that right, before the bench. Pa.R.Crim.P. 1102(a). Any verdict subsequently rendered by the trial court is given the same “force and effect” as a jury verdict. Id. Section 5505 of the Judicial Code, 42 Pa.C.S., authorizes a trial court to “modify or rescind” any order within thirty days after entry, but a trial court’s authority over a verdict in a non-jury trial, once the verdict is recorded, is limited to consideration of post-verdict motions made to arrest judgment or grant a new trial. Commonwealth v. Stark, 526 Pa. 1, 584 A.2d 289 (1990); Commonwealth v. Gaither, 355 Pa.Super. 502, 513 A.2d 1034 (1986).
      Entry of a guilty plea, or a plea of nolo contendere, on the other hand, obviates the necessity for a trial, as the defendant is either admitting guilt to the charge(s) at issue, or stating essentially, "I will not contest it.” Black's Law Dictionary 945 (5th ed. 1979). Thus the Commonwealth is not put to a burden of establishing guilt beyond a reasonable doubt, as it must at trial. It would seem to us that permitting a defendant to plead nolo contendere after being found guilty defies all logic. There is nothing left to forgo contesting, once the facts are established by the trier of fact to be sufficient for a finding of guilt.


author: FORD ELLIOTT, Judge:

text:
    663 A.2d 213
    FIDELITY BANK, N.A., Appellant, v. John T. BOURGER.
    Superior Court of Pennsylvania.
    Argued March 8, 1995.
    Filed Aug. 9, 1995.

      Mark S. Kenney, Philadelphia, for appellant.
    Gregory B. Emmons, Tamera C. Gureghian, Doylestown, for appellee.
    Before DEL SOLE, FORD ELLIOTT, and CERCONE, JJ.
   FORD ELLIOTT, Judge:

Appellant comes before us challenging a trial court order denying appellant’s Petition to Fix Fair Market Value pursuant to 42 Pa.C.S.A. § 8103(a). Finding that the trial court committed an error of law, we reverse.

The facts giving rise to the instant appeal can be quickly recounted:

On April 7, 1992 [appellant] confessed judgment against [appellee] for $360,047.22 ... [Appellant] subsequently executed on [appellee’s] real property ... [Appellant] purchased the Property for $30,800 after bidding at the Sheriffs sale on January 4, 1993. The Property was deeded to [appellant] on May 31, 1993. On October 28, 1993 [appellant] instituted the within action to establish the fair market value of the real property and to recover the deficiency in accordance with 42 Pa.C.S.A. § 8103 et seq. [Appellant’s] Petition to Fix Fair Market Value was filed almost 10 months after the sheriffs sale. [Appellee] filed a counter-petition to mark the judgment satisfied, released and discharged based upon [appellant’s] failure to file its petition with [sic] the six month limitation period required by 42 Pa.C.S.A. § 8103 et seq.

Trial court opinion, 9/6/94 at 1-2.

In this appeal, then, we are asked to determine whether the trial court erred in finding that, under the terms of the Deficiency Judgment Act, appellee was entitled to have the judgment marked satisfied, released, and discharged where appellant failed to file its petition to fix fair market value within six (6) months of the January 4, 1993 sheriffs sale, when appellant filed its petition within six (6) months of the date on which the property was deeded to appellant. We begin, therefore, by reciting the relevant provisions of the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103 et seq.:

(a) General rule. — Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.
(d) Action in absence of petition. — If the judgment creditor shall fail to present a petition to fix the fair market value of the real property sold within the time after the sale of such real property provided by section 5522 (relating to six months limitation), the debtor, obligor, guarantor or any other person liable directly or indirectly to the judgment creditor for the payment of the debt, or any person interested in any real estate which would, except for the provisions of this section, be bound by the judgment, may file a petition as a supplementary proceeding in the matter in which the judgment was entered, in the court having jurisdiction, setting forth the fact of the sale, and that no petition has been filed within the time limited by statute after the sale to fix the fair market value of the property sold, whereupon the court, after notice as prescribed by the general rule, and being satisfied of such facts, shall direct the clerk to mark the judgment satisfied, released and discharged.

42 Pa.C.S.A. §§ 8103(a), (d). As this court has previously held, the failure of a judgment creditor to proceed under the Deficiency Judgment Act within the statutorily mandated time raises as a matter of law the conclusive presumption that the judgment has been satisfied. Reliable Savings & Loan Ass’n. of Bridgeville v. Joyce, 385 Pa.Super. 536, 561 A.2d 804 (1989).

We note first that:

[T]he scope of review of deficiency judgment proceedings is limited to a determination of whether there is sufficient evidence to sustain the holding of the trial court, or whether the court committed reversible error of law.

Commonwealth Bank & Trust Co. v. Hemsley, 395 Pa.Super. 447, 451, 577 A.2d 627, 629 (1990) (citations omitted). As the Hemsley court continued:

The purpose of the Deficiency Judgment Act ... is to relieve a debtor of further personal liability to the creditor, if the real property taken by the creditor on an execution has a ‘fair market value’, [sic] as of the date of the execution sale, sufficient so that the creditor may dispose of the property to others (or even, sometimes, use it himself) without a net loss to the creditor[.]

Id. quoting Cheltenham Federal Savings and Loan Ass’n. v. Pocono Sky Enterprises, Inc., 305 Pa.Super. 471, 479, 451 A.2d 744, 748 (1982). The Hemsley court also noted that deficiency judgment statutes are to be construed liberally in favor of the debtor. Hemsley, supra at 450-52, 577 A.2d at 629.

Within these parameters, then, we must determine whether appellant timely filed his petition to fix fair market value, thereby precluding appellee’s petition to have the judgment marked satisfied. To make this determination, we must define “sale” under 42 Pa.C.S.A. § 5522(b)(2), which provides:

(b) Commencement of action required. — The following actions and proceedings must be commenced within six months:
(2) A petition for the establishment of a deficiency judgment following sale of the collateral of the debtor under the provisions of section 8103 (relating to deficiency judgments).

Id.

Appellee argues that the date of sale is the date of the sheriffs sale, in this case January 4, 1993. In support of this proposition, appellee cites Hemsley, supra, at 447, 577 A.2d 627, and First National Consumer Discount Co. v. Fetherman, 515 Pa. 85, 527 A.2d 100 (1987). Appellee argues that these cases overrule the prior holding of our supreme court that the date of sale for purposes of the six-month statute of limitations is the date the deed is delivered. Marx Realty & Improvement Co. v. Boulevard Center, Inc., 398 Pa. 1, 5-7, 156 A.2d 827, 830 (1959) (“Since the Act requires giving credit on the judgment to the extent of the fair value, no bidder has anything from which to give credit until he gets title, and hence no sale to him can be said to have taken place until a deed is delivered.”).

Appellant, on the other hand, argues that Marx, supra, is still good law, and that the cases cited by appellee and by the trial court are not cases in which “date of sale” was an issue, as it was in Marx and its progeny. (Appellant’s brief at 9.) We agree. As appellant argues, in both Hemsley and Fetherman, neither party disputed the fact that the executing creditor never filed a petition to fix fair market value. Hemsley, supra at 450-52, 577 A.2d at 629; Fetherman, supra at 89-91, 527 A.2d at 102. In a third case, cited by the trial court, Meyer v. Castellucci, 378 Pa.Super. 165, 548 A.2d 554 (1988), appeal denied, 522 Pa. 577, 559 A.2d 38 (1989), appellant failed to file a petition to fix fair market value in the action in which the foreclosure judgment was entered, but then sought in a subsequent action a confession of judgment on a bond used as collateral in the first action. Id. at 166-68, 548 A.2d at 555. While the courts in these three cases referred to the fact that the creditor had failed to file a petition to fix fair market value within six months of the sale, none of the courts was required to determine the precise date on which the six-month period commenced.

Our review of the case law in this area indicates that the courts faced with determining the precise date on which the six-month period began have followed the Marx rule, only carving out an exception where the executing creditor’s delay in obtaining delivery of the deed is inexcusable. See, for example, Reliable, supra, 561 A.2d 804 (1989) (following Marx); Valley Trust Co. of Palmyra v. Lapitsky, 339 Pa.Super. 177, 488 A.2d 608 (1985) (following Marx); and Shrawder v. Quiggle, 256 Pa.Super. 303, 389 A.2d 1135 (1978) (following Marx, but carving out an exception where the execution creditor’s counsel unduly delayed in preparing the deed and presenting it for signing because of uncertainty as to the effect of a recent Pennsylvania supreme court decision). As the Shrawder court noted:

‘[T]he Court remains in charge of the execution and of the sanctions provided by the Act, which keep the execution plaintiff under the shadow of losing his judgment and presenting the debtor with an irrebuttable presumption of full payment in kind.’

Shrawder, supra at 309, 389 A.2d at 1138, quoting Marx, supra at 5-7, 156 A.2d at 830.

Appellee in the instant case argues that the delay in delivery of the deed is an inexcusable one attributable to appellant. Our review of the record indicates that the notices of sheriffs sale to junior creditors, alluded to by appellee in support of its claim that appellant delayed in obtaining delivery of the deed, were signed and returned by the junior creditors on March 3 and March 11, 1993, and were filed with the court on April 7, 1993. Six weeks later, on May 31, 1993, the deed was delivered to appellant. We do not agree with appellee that these “delays” are of such a magnitude that appellant has forfeited its rights under the Deficiency Judgment Act. See Delaware Valley Factors, Inc. v. G.B. Echenhofer Co., Inc., 226 Pa.Super. 165, 168-71, 313 A.2d 318, 321-22 (1973) (nine-month delay in delivery of deed not so excessive as to take it out of the scope of the reasoning in Marx, declining to overrule Marx, and taking judicial notice of the probability of delay between “the fall of the hammer” and the removal of the various obstacles to title so that deed can be delivered).

Appellee’s final argument is that Marx and its progeny are no longer good law because the Deficiency Judgment Act in effect when Marx was decided has been repealed, and has been replaced by a new Act. (Appellee’s brief at 3-4, citing 12 P.S. § 782, replaced by 42 Pa.C.S.A. § 8101 et seq.) Appellee has, however, failed to develop this argument to indicate how “sale” in the new Act differs in meaning from “sale” under the repealed statute. Instead, appellee opines that the Marx court read the statute as it did because of the peculiar facts of that case. Our review of the relevant case law, however, compels a different result.

While it is true that Marx was decided under the old Act, the superior court specifically adopted the holding of the Marx court that “[T]he six month period begins from the date the sheriffs deed is executed and delivered to the successful bidder” in Valley Trust, supra at 181, 488 A.2d at 611, citing Shrawder, supra at 308, 389 A.2d at 1137, citing Marx, supra, at 398 Pa. 1, 156 A.2d 827. Valley Trust, a post-section 8101 case, is cited without question by our supreme court in Fetherman, supra, at 515 Pa. 85, 527 A.2d 100, and by the superior court in Hemsley, supra at 395 Pa.Super. 447, 577 A.2d 627 and Meyer, supra, at 378 Pa.Super. 165, 548 A.2d 554. As a result, we must disagree with appellee and find that the holding in Marx is clearly applicable to the instant case.

Finally, we note that the trial court based its decision to deny appellant’s petition to fix fair market value solely on its belief that Marx is no longer good law. Since we do not reach the same conclusion, we must reverse the order of the trial court denying appellant’s petition to fix fair market value, and granting appellee’s petition to mark the judgment satisfied, released and discharged.

For the foregoing reasons, the order of the court below is reversed and the case is remanded to the trial court with instructions to fix the fair market value of the property at issue. Jurisdiction is relinquished.

      . We must agree with appellee that the language of the statute appears to be clear; however, we have found nothing in the legislative history of § 8101 et seq. that would indicate a legislative intent to overrule Marx. Since all of the post-section 8101 cases specifically addressing the meaning of sale under the Act have followed Marx, we must do likewise.


author: CIRILLO, Judge:

text:
    663 A.2d 216
    COMMONWEALTH of Pennsylvania, v. Ronald D. KNOTTS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1995.
    Filed Aug. 9, 1995.

      Dericci T. Horwatt, Washington, for appellant.
    John C. Pettit, Dist. Atty., Washington, for appellee. (Submitted)
    Before CIRILLO, FORD ELLIOTT and HESTER, JJ.
   CIRILLO, Judge:

Ronald D. Knotts appeals from a judgment of sentence entered in the Court of Common Pleas of Washington County. We reverse.

On January 13, 1994, at approximately 8:00 a.m., Trooper Wendy Richards of the Pennsylvania State Police observed Knotts driving along Route 136 in a silver Oldsmobile Cutlass Calais. After Knotts had passed her vehicle, Trooper Richards pulled out behind him onto Route 136 and, after following Knotts for a brief period, signaled Knotts to pull off to the side of the roadway.

Trooper Richards did not see Knotts commit any traffic violations before she had signaled for him to pull over. Rather, Trooper Richards stopped Knotts because she had received a tip from an anonymous informant regarding an unsolved hit- and-run accident that had occurred at the intersection of Routes 519 and 136 in late December of 1993. The informant’s tip provided that a silver or light blue Oldsmobile Cutlass Calais was involved in the hit-and-run accident, and that this vehicle travels on Route 136 everyday between 8:00 a.m. and 9:00 a.m.

After Trooper Richards stopped Knotts, she informed him that she was investigating a hit-and-run accident and that she would like to take a look at the right side of his vehicle. Knotts offered no objection. Trooper Richards could not find any damage to Knotts’ vehicle. Trooper Richards then advised Knotts that there was no damage to his vehicle, but that she would like to see his driver’s license and vehicle registration.

Knotts provided Trooper Richards with a registration and insurance card under the name of Ronald Delton Knotts. Knotts identified himself, however, as Vincent Knotts to Trooper Richards. Having experienced a similar situation a few months earlier, where the driver of a vehicle purported to be his brother, Trooper Richards returned to her vehicle and requested information via her radio for Ronald, as well as Vincent, Knotts. The results of Trooper Richards’ search established that Defendant Knotts was driving under a suspended license for a May, 1992 violation for driving under the influence of alcohol (DUD- Knotts was subsequently charged with violating 75 Pa.C.S.A. § 1543(b) for driving while license is suspended or revoked, DUI related.

A trial was held before District Justice Jay Weller, at which time Knotts was found guilty of violating section 1543(b). Knotts appealed to the Court of Common Pleas of Washington County requesting a trial de novo. A trial de novo was held before the Honorable Debbie O’Dell Seneca on December 12, 1994, and Knotts was again found guilty of violating section 1543(b). Prior to Knotts’ conviction under section 1543(b), Judge Seneca rejected Knotts’ motion to suppress any information that Trooper Richards received concerning Knotts’ identification and driving record, which Knotts claims was obtained without probable cause.

On appeal, Knotts questions whether it was error for the trial court to admit evidence which had been obtained from an illegal investigatory stop. More specifically, Knotts argues that the trial court should have suppressed the evidence obtained by Trooper Richards regarding his identification and his driving record since Trooper Richards did not have probable cause to stop his vehicle.

When we review an order denying a motion to suppress evidence, we must determine whether the factual findings of the trial court are supported by the evidence of record. Commonwealth v. Donahue, 428 Pa.Super. 259, 278, 630 A.2d 1238, 1247 (1993). In making this determination, this court may only consider the evidence of the Commonwealth’s witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous. Id.

At the hearing on the motion to suppress before Judge Seneca, Trooper Richards testified to the facts as described above. In light of this evidence, Knotts argued that the amount of information available to Trooper Richards at the time she stopped him was insufficient to justify the stop.

When police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants, are considered “seized” and this seizure is subject to constitutional constraints. Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992).

[A]n officer may make an investigatory stop where he observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot. Such an investigatory stop of an automobile must be based on objective facts creating a reasonable suspicion that the motorist is presently involved in criminal activity. The officer must be able to point to specific and articulable facts which[,] taken together with rational inferences from those facts[,] reasonably warrant the intrusion.

Commonwealth v. Valenzuela, 408 Pa.Super. 399, 408, 597 A.2d 93, 98 (1991) (citations omitted).

In this case, we must determine whether the information available to Trooper Richards at the time she pulled over the defendant created a reasonable suspicion that Knotts was “presently involved in criminal activity.” When Trooper Richards stopped Knotts, she had information from an informant that (1) the vehicle that was involved in the hit-and-run accident on December 28, 1993 at the intersection of Routes 519 and 136 was a silver or light blue Oldsmobile Cutlass Calais, and (2) the vehicle travels on Route 136 everyday between 8:00 a.m. and 9:00 a.m.

The information available to Trooper Richards was provided by an anonymous informant. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” In the Interest of S.D., 429 Pa.Super. 576, 579, 633 A.2d 172, 174 (1993) (quoting Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). This court has elaborated on the type of information provided by an informant.

Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

Commonwealth v. Wilson, 424 Pa.Super. 110, 115, 622 A.2d 293, 295 (1993) (quoting Alabama, 496 U.S. at 329, 110 S.Ct. at 2415). Veracity, reliability and basis of knowledge are relevant in the reasonable suspicion context. Wilson, 424 Pa.Super. at 116, 622 A.2d at 296 (quoting Alabama, 496 U.S. at 327, 110 S.Ct. at 2414-15).

When we evaluate the information available to Trooper Richards in the “totality of the circumstances” at the time she stopped Knotts, we see that the quantity, as well as the quality, of the information was very poor. First, there was a paucity of information, and the facts which were provided were extremely general in nature. Second, the veracity, reliability and basis of knowledge of the anonymous informant’s information were not established.

Thus, the informant provided Trooper Richards with no objective facts creating a reasonable suspicion that Knotts was presently involved in criminal activity at the time of the investigatory stop. See Valenzuela, 408 Pa.Super. at 408, 597 A.2d at 98 (holding that an officer cannot reasonably suspect criminal activity from a confidential informant’s tip that a Hispanic-looking person would be driving a late model car with out-of-state license plates).

Also, while a police officer may stop a motor vehicle if he or she reasonably believes that a provision of the Vehicle Code is being or has been violated, Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992), Trooper Richards testified that she did not witness Knotts commit a violation of the Vehicle Code. Moreover, Trooper Richards did not possess sufficient information at the time she stopped Knotts to reasonably believe that he had violated a provision of the Vehicle Code.

Having determined that no reasonable suspicion existed to stop Knotts, we turn next to the question of whether probable cause existed for the stop. Probable cause exists for a stop if the facts and circumstances within the knowledge of the police officer are sufficient to warrant a person of reasonable caution to believe that a crime has been committed. Valenzuela, 408 Pa.Super. at 409, 597 A.2d at 99. Accordingly, we must again examine the information available to Trooper Richardson at the time she stopped Knotts since probable cause, like reasonable suspicion, is dependent upon both the content of the information possessed by police and its degree of reliability. In the Interest of S.D., supra, at 429 Pa.Super. 576, 633 A.2d 172; Wilson, 424 Pa.Super. at 115, 622 A.2d at 295 (1993).

The informant in this case provided Trooper Richards with the type of vehicle which was involved in the hit-and-run and the time at which the vehicle would be at a particular location. It is important to note what information Trooper Richards did not have at the time she pulled over Knotts.

Trooper Richards did not know the identity of the informant, as the telephone call was from an anonymous informant who did not give his name, and Trooper Richards had never worked with this person. As a result, any value which may be attributed to the informant’s tip is lessened by his anonymity. Compare Commonwealth v. York, 381 Pa.Super. 55, 62, 552 A.2d 1092, 1095 (1989) (holding that an informant’s information may provide adequate data to establish probable cause if the basis for the information and his/her reliability, when examined under a totality-of-circumstances test, are established) with Commonwealth v. Bruner, 388 Pa.Super. 82, 94, 564 A.2d 1277, 1282 (1989) (recognizing that “identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances”) (emphasis supplied).

At the hearing on the motion to suppress, there was no testimony relating to the veracity or reliability of the anonymous informant. Corroboration of the informant’s information, either by police investigation or through other informants, may indeed establish the informant’s veracity and reliability. York, 381 Pa.Super. at 62, 552 A.2d at 1095 (1989). There was no such corroboration of the informant’s information in this case.

In addition, there was no testimony as to how the informant became aware of the information he provided to Trooper Richards. For example, the informant did not tell Trooper Richards how it was that he knew that this vehicle was involved in the hit-and-run accident, nor did Trooper Richards inquire as to how the informant knew that this vehicle was involved in the accident. Moreover, the informant did not tell Trooper Richard whether the individual driving the vehicle would be a male or a female.

It is clear that probable cause did not exist to stop Knotts. See Valenzuela, 408 Pa.Super. at 412, 597 A.2d at 100 (holding that probable cause to stop defendant’s vehicle did not exist where no evidence was offered to establish confidential informant’s veracity, reliability, or basis of knowledge despite the fact that informant provided police with general appearance of defendant and automobile and the time during which defendant would be in a specific area).

In view of these facts, it appears that the legal conclusions of the trial court are not supported by the evidence of record. Donahue, supra, at 428 Pa.Super. 259, 630 A.2d 1238. The objective facts did not create a reasonable suspicion that Knotts was presently involved in criminal activity when stopped by Trooper Richards, nor did the circumstances justify a person of reasonable caution to believe that Knotts had committed a crime. Valenzuela, supra, at 408 Pa.Super. 399, 597 A.2d 93.

Judgment of sentence reversed.

      . Knotts’ license was suspended for one year effective July 27, 1993, which spans the January 13, 1994 driving occurrence involved in this case.


author: HUDOCK, Judge:

text:
    663 A.2d 220
    CASTINGS CONDOMINIUM ASSOCIATION, INC., Appellee v. Florence R. KLEIN, Individually; Master Craftsman Associates (a Pennsylvania Limited Partnership); American Classic Development Company (a Pennsylvania Limited Partnership); American Classic Management Company; David Beck, d/b/a David Beck Architects; Meyer Kligerman Corporation; Mellon Bank; Meridian Bank; First Trust Savings Bank; Beneficial Savings Bank; Corestates Bank; PNC Bank; Fidelity Bank; Marian Bank; Jefferson Bank; Germantown Savings; United Bank. Appeal of Florence R. KLEIN.
    Superior Court of Pennsylvania.
    Submitted June 28, 1995.
    Filed Aug. 8, 1995.

      Andrew L. Miller, Philadelphia, for appellant.
    Glenn M. Ross, Philadelphia, for appellee.

      Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

Florence R. Klein appeals from the order which denied her petition to strike or open a default judgment. We affirm.

This case commenced on October 7, 1993 when Castings Condominium Association, Inc. (Castings) filed a complaint alleging that Florence Klein, Master Craftsman Associates, American Classic Development Company and American Classic Management Company were liable for inter alia, breach of contract, breach of fiduciary duty and fraud. Florence Klein, in her individual capacity and as general and limited partner of Master Craftsman Associates and American Classic Development Company and as chief executive officer of American Classic Management Company entered a contract with Castings for the construction and management of condominium properties in Philadelphia. Castings alleged that the named defendants breached the public offering statement made in connection with the sale of the condominiums by misrepresenting the condition of the property. Castings complained that the roof and windows of the condominiums were defective and in need of repair. Castings also alleged a breach of the management agreement, misrepresentation, misappropriation of funds, failure to perform fiduciary duties, and fraud.

On October 20, 1993, Klein was personally served with the complaint in her individual capacity and as general partner of Master Craftsman and American Classic Development Company. Klein forwarded a copy of the complaint to her attorney, E. Harris Baum. Baum, however, did not file an answer to Castings’ complaint within the required twenty days. See Pa.R.C.P. 1026(a), 42 Pa.C.S.A. On November 12, 1993, Castings sent a notice of intent to enter a default judgment to Klein personally and to Klein’s attorney, Baum. In response to this notice, Baum sent a letter to Castings’ counsel, Glenn M. Ross, which stated:

I have received, on behalf of Florence Klein, a 10 day Notice of Judgment regarding the above-captioned matter. Master Craftsman is represented by Steven Angstreich, Esquire who has already been in touch with you and advised you that the claim is amply covered by insurance. I have advised Florence Klein to turn this over to her carriers and will assume that you will not file Judgment at this time. It will be a waste of everyone’s money and time to litigate this issue when, in fact, it is covered by insurance.
If I do not hear from you, I will assume that you proceeded to discuss this matter with Zurick, CNA, U.S. Underwriters and National Union.

Letter dated 11/16/93.

On January 21, 1994, Baum entered his appearance for Klein and filed an answer to the cross-claim filed by Master Craftsman Associates. On August 5, 1994, Castings filed a praecipe for default judgment against Klein, American Classic Development Company and American Classic Management Company. The trial court granted Castings’ petition and entered a default judgment. Klein subsequently obtained new counsel who filed a petition to open or strike the default judgment on November 2, 1994. On December 30, 1994, the trial court permitted Baum to withdraw as counsel of record for Klein since Klein had failed to pay Baum for his legal services. The trial court denied Klein’s petition to open or strike the default judgment on January 3, 1995. Klein then perfected the instant appeal in which she argues that the trial court erred by denying her petition to open or strike the default judgment.

A petition to open a default judgment is addressed to the equitable powers of the court and the trial court has discretion to grant or deny such petition. Fink v. General Accident Insurance Company, 406 Pa.Super. 294, 296-98, 594 A.2d 345, 346 (1991). The party seeking to open the default judgment must establish three elements: (1) the petition to open or strike was promptly filed; (2) the default can be reasonably explained or excused; and (3) there is a meritorious defense to the underlying claim. Id. The court’s refusal to open a default judgment will not be reversed on appeal unless the trial court abused its discretion or committed an error of law. Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 407-10, 598 A.2d 57, 58 (1991). “An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill-will.” Pilon v. Bally Engineering Structures, 435 Pa.Super. 227, 233, 645 A.2d 282, 285 (1994), alloc. den., 539 Pa. 680, 652 A.2d 1325. Moreover, this Court must determine whether there are equitable considerations which weigh in favor of opening the default judgment and allowing the defendant to defend the case on the merits. Duckson v. Wee Wheelers, Inc., 423 Pa.Super. 251, 253-55, 620 A.2d 1206, 1208 (1993). “[W]here the equities warrant opening a default judgment, this Court will not hesitate to find an abuse of discretion.” Id., 423 Pa.Super. 256, 620 A.2d at 1209.

The trial court found that Klein failed to establish all three criteria needed to open a default judgment. We will examine each factor independently.

The timeliness of a petition to open judgment is measured from the date that notice of the entry of the default judgment is received. Alba v. Urology Associates of Kingston, 409 Pa.Super. 409, 598 A.2d at 58. The law does not establish a specific time period within which a petition to open a judgment must be filed to quality as timely. Instead, the court must consider the length of time between discovery of the entry of the default judgment and the reason for delay. Quatrochi v. Gaiters, 251 Pa.Super. 115, 120-22, 380 A.2d 404, 407 (1977).

In the present case the trial court entered the default judgment on August 5, 1994. The petition to open or strike the judgment was not filed until November 2, 1994. In previous decisions of this Court, we have held that periods of less than three months between notice of the entry of judgment and filing a petition to open were not prompt. See Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973) (fifty-five days); Quatrochi v. Gaiters, supra (sixty-three days); Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368 (1977) (forty-seven days). In McCoy v. Public Acceptance Corporation, 451 Pa. 495, 305 A.2d 698 (1973), our Supreme Court found that a period of two and one-half weeks was not prompt. Id., 305 A.2d at 700. In cases where we found a “prompt” and timely filing of the petition to open a default judgment, the period of delay was normally less than one month. See Fink v. General Accident Insurance Company, supra, at 406 Pa.Super. 294, 594 A.2d 345 (period of five days is timely); Duckson v. Wee Wheelers, Inc., supra, at 423 Pa.Super. 251, 620 A.2d 1206 (one day is timely); Alba v. Urology Associates of Kingston, supra, at 409 Pa.Super. 256, 620 A.2d 1209 (fourteen days is timely). Based on these previous opinions, we find support for the trial court’s decision that a delay of three months does not constitute a prompt filing, therefore, we cannot conclude that the trial court abused its discretion.

Klein claims that she did not learn that Baum refused to file a petition to open the default judgment until October 13, 1994. Therefore, she claims that there was a delay of only two weeks until the petition to open judgment was filed by her new counsel.

We reject this argument since the record reveals that Baum notified Klein as early as August 30, 1994 that he would no longer represent her unless she paid his overdue legal fees. Baum repeatedly informed Klein that he would not continue to represent her until she paid the sizable outstanding balance owed to his law firm. Therefore, Klein cannot complain that she was unaware that Baum would not file a petition to open judgment until October 13, 1994.

The second requirement before opening a default judgment is that the default can be reasonably explained or excused. “Whether an excuse is legitimate is not easily answered and depends upon the specific circumstances of the case.” Duckson, 258, 620 A.2d at 1210.

Klein contends that the failure to answer Castings’ complaint was “totally excusable” because Castings’ counsel agreed to notify Attorney Baum prior to filing a praecipe for entry of default judgment. Klein contends that Baum’s letter dated November 16, 1993, see infra, in which he “assumed” that Castings’ counsel would not seek a default judgment, established a common understanding between the parties that Castings would not seek the entry of a default judgment. This “assumption” by Attorney Baum, however, was unwarranted since Castings’ counsel never affirmatively responded to Baum’s letter. There was no enforceable agreement between the parties since counsel for Castings did not confirm, either orally or in writing, that he would not praecipe for a default judgment. Klein cannot rely on the November 16, 1993 letter as an enforceable contract between the parties since there was no “meeting of the minds.” See Reilly Associates v. Duryea Borough Sewer Authority, 428 Pa.Super. 460, 463-64, 631 A.2d 621, 623-24 (1994) (letter from defendants’ counsel to plaintiffs counsel requesting an extension of thirty days to file an answer does not constitute an enforceable agreement for extension when the plaintiffs counsel did not respond to the letter).

Furthermore, in McEvilly v. Tucci, 239 Pa.Super. 474, 362 A.2d 259 (1976), this Court rejected the excuse which Klein presents in this appeal. In McEvilly, counsel for the defendants sent the plaintiffs a letter stating, in pertinent part, “I am assuming you will not require me to file an Answer or to otherwise plead pending our negotiations.” Id., 479, 362 A.2d at 262. The plaintiffs did not respond to this letter and proceeded to obtain a default judgment. On appeal to this Court, the defendants sought to have the judgment opened. This Court rejected the defendants’ explanation as reasonable and held:

[T]he evidence in the present case indicates that [defendants] unjustifiably relied upon [plaintiffs’] lack of response to the letter of April 8, 1975, and their mistaken belief that [plaintiffs] did not intend to pursue their rights by taking a default judgment. The lower court did not abuse its discretion in deciding that [defendants] did not satisfactorily explain their failure to file an answer to the complaint.

Id., 481, 362 A.2d at 263.

Likewise, Klein’s assumption that Castings would not seek a default judgment because of the November 16, 1993 letter was unwarranted. Castings’ counsel never agreed to notify Attorney Baum before seeking a default judgment.

Finally, Klein must plead an arguable meritorious defense sufficient to justify relief if proven. Miller Block Company v. United States National Bank in Johnstown, 389 Pa.Super. 461, 471, 567 A.2d 695, 700 (1989), alloc. den., 525 Pa. 658, 582 A.2d 324 (1990). The defendant does not have to prove every element of her defense, however, she must set forth the defense in precise, specific and clear terms. Id.

In Klein’s petition to open judgment, she averred the following defense:

Defendant Klein has a meritorious defense to the Complaint since she denies any misrepresentation either by action or omission with respect to the subject premises and she further denies any impropriety in her management of the financial affairs of the condominium association.

Petition to Open or Strike Default Judgment, at ¶ 10.

We agree that this assertion is insufficient to establish a meritorious defense. Castings’ complaint alleged numerous factual details in support of its allegations of breach of contract, misrepresentation, fraud, misappropriation of funds, and failure to perform fiduciary duties. Klein does not refute any of these allegations with particularity. Instead, she summarily states that she denies any wrongdoing.

Klein argues that the trial court failed to consider the equitable nature of its review when deciding whether to open a default judgment. Klein contends that the court erred by focusing entirely on the tripartite test of timely filing, reasonable excuse and meritorious defense. She suggests that the trial court must also consider whether justice is served by denying her an opportunity to defend her case. Klein relies on the following passage from Provident Credit Corporation v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982) (en banc) to support her position:

Without question, in many cases where we have found that one of the three requirements for opening a judgment was not met we have stopped without considering the arguments made with regard to the other two. It is difficult, however, to reconcile this approach with the many other cases that emphasize the equitable nature of the decision whether to grant a petition to open, and the importance of balancing the prejudice to the two sides.
‡ ‡ ‡ ‡ ‡
We are not suggesting that the tripartite test is not important. The test will often provide a ready determination — a navigator’s “quick fix” — of where the equities lie. For example, in a case where no attempt has been made to explain the default or delay, or where, in an assumpsit case, no defense has been pleaded, or only one clearly without merit, it is difficult to imagine that the equities would favor opening the judgment. But where some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in the light of all of the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.

Id., 128-130, 446 A.2d at 263-64 (citations omitted).

We recognize the equitable nature of the trial court’s task when deciding whether to open a default judgment. However, the trial court cannot open a default judgment based on the “equities” of the case when the defendant has failed to establish all three of the required criteria. In Provident Credit Corporation, supra, the defendant seeking to open the default judgment established two of the three elements — she pled a meritorious defense to the plaintiff’s complaint and offered a reasonable excuse for the default. Provident Credit Corp., 126-128, 446 A.2d at 262-63. Under these circumstances, the Court concluded that it would be inequitable to deny the request to open the judgment simply because she did not promptly file the petition to open. The Court weighed the equities of the case and ruled in favor of granting the petition to open the judgment. Klein, on the other hand, has not established any of the three elements in the tripartite test. Therefore, we reject her argument that the “equities” weigh in her favor requiring that we open the default judgment.

Order affirmed.