author: BROSKY, Judge:

text:
    455 A.2d 159
    COMMONWEALTH of Pennsylvania v. Carl Edwin DONLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Debbie O’Dell, Washington, for appellant.

      Morrison F. Lewis, Jr., Assistant District Attorney, Greensburg, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellant was convicted by a jury of robbery and conspiracy to commit robbery in February, 1979 and was subsequently sentenced to a term of imprisonment of two to five years. Post verdict motions were denied and this appeal followed. Mr. Donley argues that an “on-the-scene” identification of him by a witness to the robbery was made in violation of his constitutional rights. He therefore contends that both the identification and incriminating statements made by him following it should have been suppressed. Appellant also argues that the criminal information filed by the District Attorney of Westmoreland County was not properly signed and is therefore void. Finding no merit to these claims, we affirm the judgment of sentence.

We will first dispose of Mr. Donley’s argument as to the criminal information. He contends that the information was not signed by the District Attorney, as is required by Pa.Rule of Crim.Proc. 225(b).

The information was “rubber stamped” with a facsimile of the District Attorney’s signature and below that stamp were written in ink the date and the initials of the First Assistant District Attorney.

In Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284, 1287 (1981) our Supreme Court wrote:

We believe that the approval and initialing of the information by an assistant district attorney, along with the stamped signature of the district attorney, complies with our rules, the Judicial Code and the concerns enunciated in [Commonwealth v.] Belcher [258 Pa.Super. 153, 392 A.2d 730] as Warmen [the Assistant District Attorney] had been designated to act in the district attorney’s stead in the manner called for in the Judicial Code.

Subsection (i) of 42 Pa.C.S.A. § 8931 entitled “Indictment and information” provides that the term “district attorney” as used in that section

[i]ncludes ... those assistant district attorneys whose authority to act for the district attorney under that section is evidenced by a written designation executed by the district attorney or acting district attorney and filed with the clerk of courts.

If it were clear to us that the Assistant District Attorney whose initials appear on the information had been properly designated as one authorized to sign informations in place of the District Attorney, this case would present the same factual situation as existed in Contakos, supra.

Unfortunately the record does not indicate whether the information was signed in compliance with the above quoted provisions of the Judicial Code.

Our court recently decided the question of whether a rubber stamp facsimile standing alone is a sufficient signature of the information. Agreeing with our earlier finding in Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981) (allocatur granted) we found a mere stamped signature inadequate to meet the requirements of Rule 225(b). However, while finding the lack of proper signature to be in error, we concluded that the error was not such as to render the criminal information void ab initio. We concluded that the error made the information voidable and held that if the absence of proper signature is not contested in a pre-trial motion to quash the informations, the error is waived. Commonwealth v. Veneri, 308 Pa.Super. 297, 454 A.2d 139 (1982).

Our review of the record in the present case indicates that appellant did not contest the validity of the information pretrial. Therefore, although we cannot be sure that the Assistant District Attorney’s initials were placed on the document in compliance with the Judicial Code (as was the case in Contakos); we nonetheless find no reversible error. See Veneri, supra.

We turn now to appellant’s contentions as to an out-of-court identification of him by a witness to the robbery. Mr. Donley argues that the identification was made in violation of his constitutional rights to due process and counsel. Therefore, he concludes both evidence of the identification and incriminating statements which he made following it should be suppressed.

The robbery of Bill’s Dandy Dollar occurred on September 20, 1978 at approximately 2:50 p.m. Approximately one hour later appellant was arrested with two other suspects on a highway several miles from the robbery site. Appellant was transported in a police vehicle to a parking lot across the street from Bill’s Dandy Dollar where he was identified by a witness to the crime. The identification took place approximately two hours after the robbery.

When he was identified, appellant was seated alone in the back seat of the police car. He was handcuffed. The other suspects had been transported to the scene separately and were apparently identified while standing outside a police car. They were also handcuffed. Appellant is white; the other two suspects were black.

Identification evidence that is found to have been obtained as a result of an unnecessarily suggestive procedure will be held inadmissible. Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199 (1967). However, absent some special element of unfairness, an in-custody, on-the-scene identification does not violate a defendant’s due process rights. Commonwealth v. Ramsey, 259 Pa.Super. 240, 393 A.2d 806 (1978).

As was explained in Commonwealth v. Santiago, 229 Pa.Super. 74, 323 A.2d 826-828 (1974).

... The primary reason for the admissibility of such confrontations is that the close proximity in time and place to the actual offense so enhances the reliability as to outweigh the prejudice. The closer the confrontation to the time of the crime, the greater is the likelihood that the victim or witness can recall the image of the criminal. Similarly, the less the environment of the criminal episode has changed, the fewer the extraneous factors of suggestion that adhere to any confrontation between victim or witness and suspect____
(citations omitted)

See also Commonwealth v. Carter, 271 Pa.Super. 508, 414 A.2d 369 (1979).

We find no such element of unfairness in this case. The witness, Lou A. Garber, had been in the rear of the store when the robbery began. He was told it was in progress and proceeded to the front of the store where he saw two black males with guns; one was aimed at Mr. Garber’s wife. He watched the robbers for several minutes and then followed them to a parking lot across the street. When the car they entered drove past Mr. Garber’s car, in which he was seated, he observed that the driver, later identified as appellant, was a white male with blond hair and sunglasses. Mr. Garber’s best view of the driver was from the side, several feet from his own vehicle. It lasted only a few seconds, but it was daylight and Mr. Garber said he was able to see the driver. Mr. Garber followed the robbers’ vehicle for some time, but eventually lost sight of them.

Although the witness did not observe appellant for a great length of time, we are satisfied that under the circumstances, he had an adequate opportunity to see him. His attention was completely focused on the car and its inhabitants.

When the suspects were returned to the parking lot, Mr. Garber was taken to see them. The police officer who asked him if appellant was the driver testified at a preliminary hearing that he had Mr. Donley remain in the vehicle because the witness had seen him sitting, never standing.

The identification was made close in time to the robbery. See Commonwealth v. Aaron, 255 Pa.Super. 289, 386 A.2d 1006 (1978). The circumstances under which appellant was identified were similar to those under which the witness had seen the driver.

We find no unfairness.

Appellant’s remaining claim is that the identification procedure violated his sixth amendment right to counsel. However, we have held that the right to counsel has not yet attached to a prompt, post-arrest, on-the-scene confrontation between a witness and a suspect. See Commonwealth v. Gray, 262 Pa.Super. 351, 396 A.2d 790 (1979).

Accordingly, judgment of sentence is affirmed.

      . Act of July 9, 1976, P.L. 586, No. 142, §2, as amended.


source: Caselaw Access Project

license: Public Domain

text:
    455 A.2d 162
    COMMONWEALTH of Pennsylvania v. John L. GOLDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1981.
    Filed Jan. 21, 1983.

      Kenneth B. Skelly, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

Appellant entered guilty pleas to two charges of robbery and one of criminal conspiracy on March 19, 1980. He was sentenced to terms of imprisonment of five to fifteen years on the robbery charges, the sentences to run concurrently, and five to ten years on the conspiracy count, also to be served concurrently. Restitution was also ordered. On appeal, Mr. Golden challenges the validity of the criminal informations filed against him and also alleges sentencing error. We affirm.

Appellant contends that the criminal informations were defective because they did not contain the signature of the District Attorney as is required by Pa.R.Crim.P. 225(b). The informations were affixed only with a “rubber stamp” facsimile of the signature of the District Attorney of Dauphin County. Recently, our court held that the mere stamping of signature does not satisfy the requirements of Rule 225(b). See Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982), in which we upheld an earlier decision of our court in Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981), that the rubber stamp alone was not enough.

We agree, therefore, with appellant’s contention that the information should have been signed. However, we find that any claim as to the deficiency has been waived.

- Appellant raises this issue for the first time on appeal but argues that he may do so because the absence of a signature renders the information void ab initio. We expressly rejected this theory in Veneri, supra, in which we held that “the signature requirement of Pa.R.Crim.P. 225(b) is directory only and ... its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash,” pursuant to Pa.R.Crim.P. 306. (306 Pa.Super. 402, 452 A.2d at 788.)

We must conclude, as we did in Veneri, that since no pretrial motion to quash the informations was filed, appellant has waived this claim.

We turn next to appellant’s sentencing arguments.

It is clear that our scope of review is quite narrow as to the legality and propriety of a particular sentence. Sentencing is left to the discretion of the trial judge whose determination will be reversed only when the sentence exceeds the statutorily prescribed limits or is manifestly excessive. Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). Great deference is given to the trial court’s decision since it is in a far better position to weigh the various factors involved in deciding on an appropriate sentence. Commonwealth v. Pauze, 265 Pa.Super. 155, 401 A.2d 848 (1979).

In Commonwealth v. Doyle, 275 Pa.Super. 373, 380, 418 A.2d 1336, 1340 (1979), we explained:

... The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

Our review of the record indicates that the lower court properly considered appellant’s character as well as the seriousness of the offenses for which he was being sentenced.

Appellant urges that his drug and alcohol addiction problems were not given proper consideration by the court. However, at sentencing the lower court acknowledged that appellant had such problems but noted that previous attempts to rid himself of them had been of limited duration. Therefore, the court did not believe that the prospects for long term improvement in his behavior were likely to be enhanced by a term of probation. Rather, the court concluded that a term of imprisonment was necessary to impress upon appellant the seriousness of the crimes to which he pleaded guilty.

At the sentencing hearing, appellant, his wife and a psychologist, who was treating him, all testified. The lower court indicated throughout the hearing that he understood their position and, in fact, saw some merit to it, but nonetheless believed the circumstances involving two armed robberies called for a prison sentence. Given our limited scope of review, we cannot reverse this decision. As we explained in Commonwealth v. Campolei, 284 Pa.Super. 291, 299, 425 A.2d 818, 822 (1981):

It is not our function to decide whether we agree with this statement [of the trial court’s reasons for sentence] in the sense that if we had been the sentencing court, we should have said the same thing and imposed the same sentence. We must rather decide whether the sentence is “manifestly excessive.” In making this decision, we must evaluate three factors: whether the confinement imposed on appellant is consistent with the protection of the public, the gravity of appellant’s offenses, and appellant’s rehabilitative needs.

As was the case in Campolei, appellant points to his improved life-style as a reason to avoid a prison sentence. We are concerned as we were in that case that an extended prison term may have the effect of undoing whatever rehabilitation appellant has achieved. However, this concern does not justify a reversal of judgment of sentence within the statutory limits, given the seriousness of the crime, the need to protect the public from other such offenses, and finally, given the lower court’s assessment of appellant’s rehabilitative needs.

Judgment of sentence affirmed.

      . We note briefly related claims made by appellant. Our review of the record indicates that he was in fact permitted to testify at the sentencing hearing as were character witnesses on his behalf.
      As to the disparity in sentences imposed upon appellant and his accomplice, we note that his accomplice was convicted only of robbery whereas appellant was convicted of two charges of robbery and one of criminal conspiracy. Furthermore, as is discussed above, the court considered appellant’s character and background in determining his sentence, as is required by our individualized sentencing procedure. See Commonwealth v. Harris, 286 Pa.Super. 601, 609, 429 A.2d 685, 689 (1981).
      Finally, although the sentencing judge did not specifically refer to the Sentencing Code Guidelines, its assessment of appellant’s character, the circumstances of the crime and the seriousness of it indicate to us that he did consider and apply them. See Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982).

       Act of December 6, 1972, P.L. 1482, No. 334 § 1301, added December 30, 1974, P.L. 1052, No. 345, 42 Pa.C.S.A. § 9701 et seq.


author: BROSKY, Judge: McEWEN, Judge,

text:
    455 A.2d 164
    COMMONWEALTH of Pennsylvania v. Charles R. GREINER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1981.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied June 1, 1983.

      Clayton R. Wilcox, Assistant Public Defender, Gettysburg, for appellant.
    Gary Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

This is an appeal from a judgment of sentence for possession of marijuana and criminal conspiracy. The dispositive issue before us is whether a new trial is required when a juror does not hear some testimony due to his being hard of hearing. The trial court held, inter alia, that since the problem was detected and efforts were made to cure it during the trial, a new trial was not necessary. We disagree and find that constitutional fair trial considerations mandate a reversal.

Appellant raises six issues on appeal. (1) Did the trial court err in granting the Commonwealth’s request for an extension of time to try appellant under the provision of Rule 1100? (2) Did the trial court err in not quashing the information for failure of the Commonwealth to establish a prima facie case at appellant’s preliminary hearing? (3) Did the trial court err in refusing appellant’s motion for mistrial and overruling its objections to repeating testimony missed by a juror when the juror indicated that he had not heard a substantial portion of the testimony of the Commonwealth’s chief witness? (4) Did the lower court err in refusing to suppress evidence seized from a locked automobile trunk immediately after appellant’s arrest? (5) Did the lower court err in holding that there existed probable cause to arrest appellant and to search the vehicle? (6) Did the lower court err in not suppressing the contents of a bag seized from a trunk of a vehicle and searched without a warrant?

Issue number six was not raised in the pre-trial suppression motion and is therefore waived on appeal. Carl v. Kurtz, 255 Pa.Super. 198 at 203, 386 A.2d 577 at 579 (1978).

As we reverse on issue number three, it is unnecessary for us to reach issues two, four and five. The post-trial opinion of President Judge Spicer adequately addresses the Rule 1100 issue, this being issue number one.

In issue number three, appellant contends that the trial court erred in not declaring a mistrial when a juror admitted during the trial that he had not heard some testimony. The relevant facts are as follows.

The first witness in this trial by jury was Jerry Lawrence. Lawrence was, according to the prosecution, the Commonwealth’s “chief witness” and an alleged coconspirator and coactor with appellant in the crimes with which he was charged. Twice during direct examination, the District Attorney asked Lawrence to raise his voice. During redirect, a juror requested that Lawrence speak louder. After a discussion at side bar, the Court addressed the jury in part as follows: "... I want to ask you now has there been any significant portion of this witness’ testimony that any of you have not been able to understand because of hearing difficulties? If so, would you raise your hand.” Juror number seven responded affirmatively to the query.

The Court then denied defendant/appellant’s timely motion for a mistrial and overruled his objections to the partial repetition by the prosecution of matters previously dealt with on direct. Juror' number seven exchanged places with another juror. All the jurors were cautioned by the Court to “speak up or raise your hand” “if you have any trouble hearing from now on.” No such responses occurred during the remainder of the trial.

In its post-trial opinion, the trial court stated that “enough testimony was presented after the situation arose” to cure the problem. The trial court also found a waiver of this issue in defendant’s failure to make “further motions after the examination of the witness has concluded.” We find this second holding without merit. Timely objections were made at trial and at all subsequent stages the issue was preserved for appellate review. We turn now to a treatment of the substantive issue. Did the juror’s hearing difficulties invalidate the conviction?

The leading case in this area, in this state, and, indeed, the leading case nationally, is Commonwealth v. Brown, 231 Pa.Super. 431, 332 A.2d 828 (1974). The judgment of sentence was reversed in Brown, due to a juror’s hearing difficulties, which were discovered when the jury was being polled. That juror had said that he had heard “most” of the testimony. “I heard practically everything.. I think I heard everything.” Brown, supra, 231 Pa.Super. at 434, 332 A.2d at 830. The Superior Court opinion, authored by Judge Price, was founded in the criminal defendant’s right to an impartial jury, guaranteed by Article 1, § 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the United States Constitution. The standard enunciated in Brown governs us here: “While a juror is not disqualified per se because of his deafness, where the deafness is of such degree as to indicate that the juror may have not heard material testimony, the juror must be disqualified, rendering any verdict he gave as meaningless.” Brown, supra, 231 Pa.Super. at 436, 332 A.2d at 831 (citations omitted). See also State v. Berberian, 118 R.I. 413, 374 A.2d 778 (1977).

Two points distinguish the factual context of Brown from that before us. First, the juror in Brown was somewhat equivocal with regard to his hearing difficulties and the trial court made a determination, subsequent to a colloquy with the juror, that his hearing had been deficient. On the other hand, the juror’s responses in Greiner’s trial evinced no such uncertainty. He acknowledged without reservation that he had not heard some testimony. This point goes, of course, to strengthen the applicability of Brown to the decision to be made by us here.

The other distinguishing factual situation is that in Brown, the failure to hear all the testimony was discovered during the polling of the jurors, while that discovery was made in Greiner’s trial during the redirect of the first witness. We do not find this difference sufficient to make the rule of Brown inapplicable here. In order for the defendant to be denied a fair trial, it is not necessary that a juror’s deafness result in his not hearing testimony throughout the entire trial. A fair trial is clearly barred when, as here, a juror’s deafness results in his not hearing material testimony. This is not to say that if an isolated piece of testimony is not heard by a juror that a new trial is mandated—for such a response can be repeated by the witness or by the court reporter. Here, however, the direct, cross and portions of the redirect examinations of the Commonwealth’s chief witness had occurred before the Court was made aware of the juror’s hearing problems.

The court’s attempts to cure the problem—by moving the juror in question and instructing him to indicate when he couldn’t hear—were in vain. At that point the damage had already been done; a fair trial had been denied Greiner.

The case here is to be distinguished from Roberts v. State, 4 Md.App. 209, 241 A.2d 903 (1968). In Roberts, the high court of our sister state declined to disapprove of a trial court allowing two slightly deaf jurors to serve, while cautioning them both prior to the beginning of the trial to indicate when they experienced trouble in hearing any of the testimony. Here, the cautionary instructions occurred after testimony had been given and not heard.

We also distinguish the case sub judice from a long line of cases in which the competency of a juror with regard to hearing difficulties is left to the discretion of the trial court. Holder v. State, 556 P.2d 1049 (Okl.Cir., 1976). By forthrightly admitting that he had not heard some of the testimony, the juror in this case removed the issue from the purview of the trial court’s discretion to this extent: evaluation by the court of the existence of a hearing difficulty was not possible here.

Accordingly, we reverse the judgment of sentence and remand for a new trial.

McEWEN, J., files concurring opinion.

McEWEN, Judge,

concurring:

I concur in the result. While it is true the court resolved the hearing difficulty experienced by the juror while the first witness was still on the stand, it must be noted that this first witness was an alleged co-conspirator and accomplice of appellant who is acknowledged by the Commonwealth to be its “chief witness”. While it is also true that the additional examination of this first witness enabled that juror to learn the material parts of the evidence which the Commonwealth had submitted through the testimony of that witness, that juror did not receive the benefit of the cross-examination of that witness. Indeed, one might well question whether it is ever possible to fully achieve through a reenactment the full benefit and value of cross-examination, since any witness, once exposed to the issues that are the subject of cross-examination, as well as to the manner and method of the cross-examiner, is far better prepared to endure the rigors of so immediate a repetition of the cross-examination. That factor, as well as the fact that the credibility of this witness was a basic item for the scrutiny of the jury since his testimony was directly contradictory to the testimony of defendant, compels the conclusion that, as careful as was the effort of the trial judge to enable the juror to have a complete foundation for participation in the deliberation of the jury, that objective could not here be achieved.

While I concur in this result, it must be emphasized that it is the particular facts of this case that compel this determination and that it should not be said that the trial court must declare a mistrial in every situation of this type.

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 903.

      . The Court indicated to the jury that "we have no desire to repeat everything that has been brought out so far.”

      . Presumably, he moved closer to the witness stand, though the record does not reveal this detail.

      . Whether the fault could have been cured by reading to that juror alone the Notes of Testimony to that point, along with the other two actions taken by the trial court, is a question not before us today.


author: BROSKY, Judge: CIRILLO, Judge,

text:
    455 A.2d 168
    COMMONWEALTH of Pennsylvania v. Luis P. DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1982.
    Filed Jan. 21, 1983.

      Joseph M. Budicak, Beaver, for appellant.
    Edward J. Tocci, District Attorney, Beaver, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge:

On June 20, 1980, appellant was convicted by a jury of theft by unlawful taking, receiving stolen property, criminal conspiracy and burglary. Post-trial motions were denied and this appeal followed. Appellant argues that the lower court erred in denying his trial attorney’s motion to withdraw and in denying his motion for mistrial which was based on allegedly improper prosecutorial remarks. We agree that counsel should have been permitted to withdraw and, therefore, reverse and remand for new trial.

Appellant and two codefendants were charged with having robbed Allan’s Jewelry Store in Rochester, Pennsylvania, on January 17, 1980. Appellant and his codefendants, who faced the same charges he did, were all represented by the Public Defender’s Office. Each defendant was represented by a different attorney from that office.

One of the codefendants, Richard Ross, entered a guilty plea to the conspiracy charge and it became evident at the preliminary hearing that he would testify for the Commonwealth against appellant and his codefendant, Richard W. Evans. Appellant’s counsel then filed a motion to withdraw alleging that a conflict of interest arose from the Public Defender’s dual representation of defendant Ross and the other codefendant. The motion was denied.

In an appeal brought by codefendant Evans, in which the issue before us was also raised, we found that the lower court erred in denying the motion to withdraw. That decision is dispositive of the case before us. See Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373 (1982). As was the case with Evans, appellant in the present case clearly had a defense inconsistent with that of codefendant Ross who testified in part, “[Davis] said it would only take thirty seconds to a minute, a minute to thirty seconds to rob it and get away.” (N.T. 149) Ross also testified, “We drove back to Allen’s Jewelry Store, stopped the car. Luis [Davis] got out. I let him out. We pulled up the street aways. Then that’s when the place got robbed.” (N.T. 147).

In Evans, id., we found that appellant had demonstrated actual harm in the representation by the Public Defender of Ross and the other defendants. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), which held that to establish a violation of the Sixth Amendment rights, a defendant must show that an actual conflict existed and that the conflict adversely affected the lawyer’s performance. See footnote 1, Evans, supra.

We must reach the same conclusion in the present case and therefore find error in the denial of counsel’s motion.

Judgment of sentence reversed and case remanded for new trial. This court does not retain jurisdiction.

CIRILLO, J., files dissenting statement.

CIRILLO, Judge,

dissenting:

I respectfully dissent on the basis of my Dissenting Opinion in Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373 (1982).

      . Because we have determined that appellant is entitled to a new trial on these grounds, we need not and will not reach appellant’s other argument.

      . As in Evans, we need not determine whether Cuyler has changed the standard in Pennsylvania which heretofore has required a defendant to show only a showing of potential harm from dual representation.


author: McEWEN, Judge:

text:
    455 A.2d 169
    COMMONWEALTH of Pennsylvania v. William KENNEDY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1981.
    Filed Jan. 21, 1983.

      Robert S. Robbins, Philadelphia, for appellant.
    Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

We here consider an appeal from a judgment of sentence imposed after appellant was convicted by a jury of simple and aggravated assault and sentenced to a term of probation for two years. We vacate the judgment of sentence and remand for a new trial.

This case arises out of an altercation which occurred at approximately 3:30 a.m. in the Kensington section of Philadelphia, and involved the occupants of two cars. The driver of one car, Andrew Brown, and his companions, Terry Hopkins and appellant William Kennedy, had stopped to allow Kennedy to see if one of his friends who lived on the street was at home. Philadelphia policeman James Speiser, who was off-duty and driving Theresa Way to her home, waited behind the first car, and when Brown failed to proceed, Speiser honked his horn. The testimony concerning events thereafter from the witnesses for the Commonwealth differs considerably from that of the witnesses for the defense.

According to the testimony of Commonwealth witnesses Speiser and Way, Brown started to move his car forward and then suddenly drove his car in reverse and thereby collided with the front of Speiser’s car. When Speiser got out of his car to see if any damage resulted from the collision, both Brown and Hopkins began to walk towards Speiser, while Brown threw his jacket on the ground and raised his fist. As a result, Speiser returned to his car, got his gun from the car, and announced that he was a police officer. Way then got out of Speiser’s car and attempted to intercede. At this time, appellant, who was holding a beer bottle in one hand, came up behind Way, grabbed her arm and poured out the contents of the beer bottle. After appellant stated that there was a shotgun in Brown’s car and that they would “get” Way, Brown ran towards his car. When Hopkins made a lunging motion towards Speiser, the officer fired two shots, one of which hit Hopkins in the stomach, while the other grazed Way’s finger before wounding appellant and causing the loss of one of his fingers.

The Commonwealth supplemented this testimony with testimony of other witnesses who had seen portions of the incident. One witness testified that she drove up behind Speiser’s car and that she saw two men get out of Brown’s ■ car, one of whom threw his jacket to the ground. This witness also saw a third man pour beer out of a bottle. Another Commonwealth witness, who lived in a nearby house, testified that she looked out of her bedroom window, saw a man holding a woman by the arm, with his fist next to her head, and heard him state that he would “get” the woman. The Commonwealth also presented testimony from two policemen who testified that they removed two beer bottles and a jacket from the street.

The defense sought, by means of the testimony of the appellant and Brown, to prove that appellant did not assault Way. Appellant testified that he did not touch Way, but rather, he only used her as a shield to protect himself from Speiser. Brown corroborated this version of the occurrence by testifying that appellant neither had a bottle in his hand nor did appellant place his hand on Way’s arm.

Appellant presents two contentions, each of which he claims entitle him to relief. The first assertion is based on the claimed ineffectiveness of trial counsel for failing to object when the trial court gave an accomplice instruction concerning the testimony of defense witness Brown. Appellant also argues that the trial judge erred when he restricted the defense in the conduct of the cross-examination of Commonwealth witness Way. Since we conclude that the claim of ineffectiveness requires that the judgment of sentence be vacated and the case remanded for a new trial, we need not address the second alleged error.

A judicial study of a claim of ineffectiveness begins with the determination of whether the claim is of arguable merit. If the underlying claim is of arguable merit, we must then determine whether the strategy chosen by the lawyer had some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Pittman, 295 Pa.Super. 234, 441 A.2d 436 (1982). Thus, we first determine whether there is arguable merit to the contention that the trial judge erred when he gave the following accomplice instruction to the jury:

Ladies and gentlemen of the jury I am not going over the testimony with you, I will just kind of give you some instructions on the testimony of Mr. Brown who was called by the defense. If Mr. Brown is an accomplice, then there are certain principles of law that you should use in judging his credibility. But first you must decide our principles of law as to an accomplice as it applies to the defendant in this case. Now the definition of an accomplice is one who knowingly and voluntarily cooperates or aids another in the commission of a crime. If you find that Mr. Brown is an accomplice, then you should consider his testimony or look upon his testimony with disfavor because it comes from a corrupt and polluted source. You should examine his testimony closely and accept it with caution and care. You should consider whether or not his testimony is supported in whole or in part with other evidence aside from his own testimony, for if it is supported by independent evidence it is more dependable. However, if you believe Mr. Brown’s testimony, even though it is not supported by any other evidence, then you are justified, if you believe.

Preliminarily, there would seem to be some question as to whether the participation of Andrew Brown in the occurrence was such that an accomplice charge should have been delivered in any event. Indeed, as the brief of the Commonwealth notes:

Because Brown, unlike defendant and Hopkins, never made verbal threats and was in or near his car at the point in time the assault occurred, the jury simply could not have reasonably concluded that he was an accomplice.

We need not scrutinize this issue, however, since we conclude upon other grounds that the instruction was error. The rationale for an accomplice charge and the application of this charge to particular circumstances was discussed by the distinguished Pennsylvania Supreme Court Justice Samuel J. Roberts in Commonwealth v. Russell, 477 Pa. 147, 152-53, 383 A.2d 866, 868-69 (1978), when he stated:

Giving an ‘accomplice charge’ when an accomplice testifies on behalf of the prosecution is a well-established practice. See Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969); see also Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) (citing cases). Giving such a charge when the witness testifies for the defendant, however, is far less common. There are few reported appellate cases from other jurisdictions directly passing on this issue, which is apparently one of first impression for this Court.
A legitimate basis exists for charging the jury to view an accomplice’s testimony with suspicion when the accomplice testifies for the Commonwealth. Such a witness, out of a reasonable expectation of leniency, has an interest in inculpating others. This basis is inapplicable, however, when the accomplice testifies on behalf of the defense. One implicated in a crime cannot reasonably expect such leniency by exonerating others, particularly where, as here, the witness has already been sentenced for committing the crime. Thus, it is unreasonable to infer, and improper for the court to charge, that because this defense witness stood convicted of the crime in question, his testimony must be viewed ‘with disfavor’ and accepted only with ‘caution and care.’ (footnotes omitted).

Our Supreme Court thus stated that the rationale for the accomplice instruction is certainly valid when an accomplice testifies for the Commonwealth but concluded that there is no logical basis for such an instruction when an accomplice—or, as in this case, the companion of the defendant—proffers testimony exonerating the accused. The credibility of Andrew Brown was crucial to the defense since it not only exonerated appellant but was the sole evidence of corroboration of the testimony of appellant himself. The distinguished trial judge himself expressed during post-trial argument his candid reservation that such an instruction was proper in view of the recent law upon the subject. We conclude it was error to include an accomplice instruction in the charge.

Once it has been determined that it was error to provide an accomplice charge in this situation, it does not seem possible to contend that this instruction was harmless error. The instruction included the following sentence:

If you find that Mr. Brown is an accomplice, then you should consider his testimony or look upon his testimony with disfavor because it comes from a corrupt and polluted source.

Surely this instruction could only have seriously damaged the defense since it so adversely affected the credibility of Andrew Brown. Therefore, the contention that trial counsel was ineffective by reason of his failure to object to the instruction seems beyond dispute. Trial counsel himself, while representing appellant in the post-trial proceedings, acknowledged that his representation had been ineffective by reason of his failure to object to the accomplice instruction. Counsel thereby concedes that there was no reason for his failure to object. Nor can we envision any such reason for a failure to so object. Therefore, it would be a futile procedure to remand this case to the Common Pleas Court for a hearing to determine if trial counsel had a reasonable basis for his failure to object to the accomplice instruction.

Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished.

      . Trial counsel first raised an objection to the accomplice jury charge in the post-trial motions. During argument on these motions, appellant asserted his own ineffectiveness in failing to object to the charge. Appellant is represented on appeal by new counsel.

      . This second ground for relief upon which appellant relies concerns the attempt by defense counsel during cross-examination to question Ms. Way as to her occupation as a belly dancer. The stated purpose of this question was to show that Way was engaged in an occupation where such a bruise would be likely to be caused by her audience, and the defense therefore sought to disprove the theory of the Commonwealth that the bruise on Way’s arm was suffered when appellant grabbed her arm. The trial court sustained the objection of the Commonwealth that this question was irrelevant.


author: CIRILLO, Judge:

text:
    455 A.2d 172
    Michael Lee LAMB, a Minor, by Carl V. LAMB and Nancy J. Lamb, his Guardians and Carl V. Lamb and Nancy J. Lamb, Individual v. Jeffrey L. GIBSON and T.H. Nelson. Appeal of Jeffrey L. GIBSON.
    Superior Court of Pennsylvania.
    Submitted May 20, 1982.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied May 12, 1983.

      James B. Yelovich, Somerset, for appellant.
    Eugene E. Fike, II, Somerset, for appellees.
    Before ROWLEY, CIRILLO  and VAN der VOORT, JJ.

       This case was assigned to the writer on October 25, 1982.

   CIRILLO, Judge:

This is an appeal from an Order dated April 27, 1981, granting a new trial. This arose as a result of an automobile accident, which occurred on September 5, 1974 on Legislative Route 601, Boswell Borough, Somerset County, Pennsylvania. The defendant-appellant, Jeffrey L. Gibson, was the operator of the pick-up truck owned by defendant, T.H. Nelson, which struck four-year-old Michael Lamb, who was crossing the roadway. The resulting injuries to Michael were extensive and the incurred medical expenses substantial. The actions in trespass were begun by Michael’s parents on their behalf and his against Jeffrey L. Gibson and T.H. Nelson. Subsequently, upon stipulation of the parties, Summary Judgment was granted in favor of defendant Nelson.

In 1977, the case was tried before a jury in the Court of Common Pleas of Somerset County, Judge Norman A. Shaulis presiding. The jury returned a verdict in favor of the defendant-appellant, Jeffrey L. Gibson. The appellees moved for judgment n.o.v. or a new trial. The trial judge, with the concurrence of President Judge Coffroth, filed an Opinion and entered an Order denying the motion for judgment n.o.v., but granting the motion for a new trial. The defendant-appellant, Gibson, appealed from the Order granting a new trial. Our Court, in an Opinion filed January 4, 1980, affirmed the lower court’s Order granting a new trial. Lamb v. Gibson, 274 Pa.Super. 7, 417 A.2d 1224 (1980).

For a second time, the case was tried before a jury in the Court of Common Pleas of Somerset County on September 9 and 10, 1980 before Judge Shaulis. The jury again returned a verdict in favor of appellant. The appellees again moved for judgment n.o.v. or a new trial. For a second time in this case, the learned trial judge, with President Judge Coffroth, concurring, filed an Opinion denying judgment n.o.v., but granted the motion for a new trial, “[bjecause the evidence presented at the second trial, even more strongly than that at the first trial, indicated that the defendant breached his duty of care toward plaintiff ...” We affirm.

There is no dispute between the parties as to the circumstances of the accident. It took place on September 5, 1974 at 3:30 p.m. under normal visibility. The appellant was traveling north on Route 601. After coming out of a curve, the appellant saw two small boys some 550 feet ahead of him, running from the right-hand or easterly berm of the road to its left-hand or westerly berm. Appellant testified that he continued to travel between 35 and 40 m.p.h., after seeing the boys for the first time and until striking Michael. Neither watching them nor reducing his speed, he continued driving toward a crest in the road. When he reached the crest, appellant saw the boys between the two lanes of traffic, running from the left-hand berm about 35 feet ahead of him. Appellant applied his brakes, but nevertheless struck one of the boys, the appellee Michael Lamb.

The testimony indicates that Michael has suffered permanent brain damage, with consequent physical and intellectual handicaps. His treatment has cost nearly $60,000 up to the time of trial. Eight persons witnessed the accident, including the two boys, the appellant, and a companion riding with him.

At the second trial, after return of the verdict and the appellees’ motion for a new trial, the trial court held that the appellant’s evidence did not conflict with the appellees’ evidence in regard to the material issue of whether or not the appellant breached his duty of care as imposed by the assured clear distance rule and the rule requiring greater than ordinary care when knowingly in the presence of children. See, Unangst v. Whitehouse, 235 Pa.Super. 458, 463-468, 344 A.2d 695 (1975) (explanation of the assured clear distance rule); Schweinberg v. Irwin, 379 Pa. 360, 363-64, 109 A.2d 181 (1954) (duty of care imposed when children are known to be in the vicinity). In his persuasive opinion accompanying the Order for a new trial, the learned trial judge noted:

At the second trial, counsel for plaintiff introduced a geographic profile showing that the contours of the roadway permitted the defendant to be aware of the presence of children when he was as far as 600 to 700 feet away and that he was traveling at approximately 35 to 40 miles per hour just before he applied the brakes. At the first trial, no profile was introduced into evidence, the defendant testified that his speed was lower and did not so clearly indicate the amount of warning he had of the children’s presence.

After reviewing the record and briefs by opposing counsel, we agree with the trial court that this evidence supports the appellant’s breach of the duty of care to proceed cautiously when knowingly in the presence of children.

In Lamb v. Gibson, supra, 274 Pa.Super. at 12, 417 A.2d at 1226, our Court clearly described the standard of review of an Order for a new trial:

While a trial judge does not sit as a thirteenth juror entitled to substitute his judgment for that of a jury, it is his duty to review the entire record and if he concludes that the verdict is against the clear weight of the evidence or that the judicial process has effected a serious injustice, he should grant a new trial. We will only reverse such a ruling if we conclude that he acted capriciously or clearly abused the discretion vested in him. (citation omitted).

The trial judge must see to it that no verdict contrary to the weight of the evidence or shocking to the judicial conscience be allowed to stand, no matter how many new trials must be granted in order that the ends of justice may be served. Clewell v. Pummer, 388 Pa. 592, 599, 131 A.2d 375 (1957); Bohner v. Eastern Express, Inc., 405 Pa. 463, 471, 175 A.2d 864 (1961); Bailey v. Pittsburgh Rwys. Co., 414 Pa. 238, 243, 199 A.2d 460 (1964); Denman v. Rhodes, 206 Pa.Super. 457, 460, 214 A.2d 274 (1965); Weaver v. Firestone Tire and Rubber Co., 267 Pa.Super. 548, 552, 407 A.2d 45 (1969). In the exercise of his discretion, the trial judge in the instant case precisely met his responsibility.

We find no basis in this case for holding that the lower court abused its discretion in granting a new trial.

Order affirmed.


author: BECK, Judge:

text:
    455 A.2d 175
    John LOCKMONIC, Appellant v. ROCHESTER & PITTSBURGH COAL COMPANY.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed Jan. 21, 1983.

      Kenneth Behrend, Pittsburgh, for appellant.
    Fred W. Dunton, Pittsburgh, for appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   BECK, Judge:

Appellant John Lockmonic appeals the order of the Court of Common Pleas, Allegheny County, which sustained without a hearing appellee Rochester and Pittsburgh Coal Company’s (R. & P.) preliminary objections to venue in Allegheny County and which transferred the case to Indiana County. Our Court has jurisdiction by Pa.R. Appellate P. 311(c), which grants interlocutory appeal as of right from an order changing venue and transferring matter to another court of coordinate jurisdiction.

This suit began as an action on Lockmonic’s part against R. & P. for wrongful discharge from employment. Lockmonic is also suing in defamation, deprivation of civil rights under 42 U.S.C. § 1983, and breach of implied contract. In his complaint, Lockmonic asserts that R. & P. is a Pennsylvania corporation, and that “Defendant has an office at 1166 South Negley Avenue, Pittsburgh, Pennsylvania... and the Oliver Building, Pittsburgh, Pennsylvania” both of which addresses are in Allegheny County. The defendant was successfully served at the Negley Avenue address, as well as its principal place of business in Indiana County. It was unsuccessfully served at the Oliver Building address, where the sheriff attempted to serve the person in charge of the United Eastern Coal Sales, “a subsidiary corporation” (R. 2).

Pa.R.C.P. 2179 states:

(a) Except as otherwise provided by an Act of Assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose; or
(4) a county where a transaction or occurrence took place out of which the cause of action arose.

Because R. & P. maintains its principal place of business in Indiana County, and Lockmonic worked and was terminated from his employment in Indiana County, Subsections (1), (3), and (4) of Rule 2179 do not apply. The question for the Court is whether Allegheny County is a proper situs for trial by virtue of 2179(a)(2), a county where the defendant regularly conducts business.

Nowhere in the complaint does Lockmonic explicitly assert that R. & P. regularly conducts business in Allegheny County. Appellant contends that the successful service on R. & P. at the Negley Avenue address constitutes strong evidence that the defendant does so (if not an admission of that fact). However, successful service is not proof that venue is proper by. 2179(a)(2). The issue of which county within a state may entertain an action is a question of venue, and not a question of jurisdiction. Hohlstein v. Hohlstein, 223 Pa.Super. 348, 296 A.2d 886 (1972). Venue and jurisdiction are two separate and distinct concepts. Encelewski v. Associated-East Mtg. Co., 262 Pa.Super. 205, 396 A.2d 717 (1978). Successful service does not establish that appellee regularly conducts business in Allegheny County in the face of R. & P.’s denial that it does any business in Allegheny County.

As the lower court correctly points out, Lockmonic has failed to establish any connection between United Eastern Coal Sales (United), the name of the corporation at the Oliver Building address, and R. & P. Lockmonic maintains, in his answer to R. & P.’s averments of fact, that the Oliver Building and Negley Avenue offices are sales offices of appellee, who has lease-hold interests there, office furniture and equipment, and automobiles. The purposes of these offices, he maintains, is for selling bituminous coal in Allegheny County and elsewhere in Pennsylvania.

We do not believe that Lockmonic’s failure to state that R. & P. regularly conduct business in Allegheny County should preclude a finding that Allegheny County satisfies the venue requirements of 2179(a)(2). Pa.R.C.P. 126 states that rules should be liberally construed and “the court at every stage ... may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”

Appellant claims that he will have difficulty obtaining a fair trial in Indiana County because R. & P. is a dominant corporation there, employing 3000 persons and affecting half of the county’s population through its economic activities. He claims that he has had difficulty obtaining legal counsel in Indiana County, and this his wife’s emotional injury (relating to the cause of action) will be adversely affected by local publicity should the trial be held in Indiana County.

Appellee admits that “If the Plaintiff had made a proper averment in the Complaint in line with the argument that is now set forth, the Court below would have had a reason to have a further hearing or order depositions to determine the question relating to whether R. & P. regularly conducted business in Allegheny County” (Brief for R. & P., p. 4). We believe that such is the proper course despite the absence of formal compliance with the letter of Rule 2179(a)(2).

Appellee relies on Craig v. W.J. Thiele & Sons, 395 Pa. 129, 149 A.2d 35 (1959) where it was stated that 2179(a)(2) had no application because the complaint did not aver that the defendant corporation maintained its registered office or principal place of business or that it regularly conducted business in the county. This objection is easily answered. In Craig, 2179(a)(2) had no application because the question for the court related to (a)(4), the place where the cause of action occurred.

We do not believe that because Lockmonic indicated that R. & P. does business in Allegheny County, but failed to aver that the corporation regularly does business there, should prevent him from showing, on the merits, the nature and quality of that business. We also believe that Lockmonic should be given the opportunity to establish a connection between United and R. & P. We therefore reverse the order of the lower court sustaining appellee’s preliminary objections and remand for an evidentiary hearing to determine (1) the relationship between United and R. & P., and (2) whether R. & P. regularly conducts business in Allegheny County.

Jurisdiction is relinquished.


text:
    455 A.2d 177
    COMMONWEALTH of Pennsylvania v. Floyd McCLOUD, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 25, 1982.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Denied Aug. 4, 1983.

      Arlan Ryna Mintz, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BECK, Judge:

Appellant, Floyd McCloud, was convicted by a jury of murder in the first degree and possessing an instrument of crime. Timely post-verdict motions were filed and denied, and appellant was sentenced to a term of life imprisonment on the former charge and a consecutive term of from two and one-half to five years on the latter.

Appellant alleges initially that trial counsel was ineffective for failing to request a jury charge stating the specific elements of self-defense and then failing to object when the court failed to instruct on self-defense. He admits that his trial counsel requested a “general” self-defense charge and that one was given to the jury, but he states that the trial judge “never specifically mentioned the elements of self-defense.” Appellant’s Brief at 8.

We find no support in the record for appellant’s claim that the specific elements of self-defense were not included in the jury charge. The Crimes Code delineates the elements of self-defense at 18 Pa.C.S.A. § 505:

(a) Use of force justifiable for protection of the person.—The use of force upon or toward another person is justifiable when the actor believes[] that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

Section 505(b)(2) sharply limits this defense when deadly force is used:

The use of deadly force[] is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat[.]

And section 505(b)(2)(ii) makes the defense unavailable where “the actor knows that he can avoid the necessity of using such [deadly] force with complete safety by retreating[.]”

We find that the trial judge specifically charged on self-defense. He correctly instructed the jury that the burden is upon the Commonwealth to disprove beyond a reasonable doubt self-defense. Commonwealth v. Adams, 273 Pa.Super. 484, 487, 417 A.2d 751, 753 (1979). He charged the jury that “[y]ou may find the defendant guilty only if you are satisfied beyond a reasonable doubt that [appellant] did not reasonably believe that the use of deadly force was then and there necessary to protect himself against death or serious bodily injury.” Notes of Testimony (“N.T.”) at 7.182-.183. He correctly defined deadly force according to the aforementioned definitional section. He also correctly tracked the language of section 505(b)(2)(ii): “[Y]ou may find the defendant guilty if you are satisfied beyond a reasonable doubt that the defendant knew that he could avoid the necessity of using deadly force with complete safety by retreating from Robert Dulaney outside on the street where the alleged incident occurred.” N.T. at 7.183.

We find the trial court’s charge correctly enunciated the elements of self-defense under section 505. Accordingly, we reject appellant’s claim that trial counsel was ineffective in failing to object when the charge was given to the jury. “[Cjounsel is not ineffective in failing to assert a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).” Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981).

Appellant next alleges that the trial court erred in charging the jury that testimony of Dr. Kenneth Kool, the defense psychiatrist, “is evidence of low quality and is not entitled to too much consideration.” N.T. at 7.160. This we find to be an accurate statement of the law and accordingly we find no error in so instructing the jury. While it is clear that psychiatric testimony is admissible to prove the defendant’s subjective belief that he is in danger of imminent death or serious bodily injury, see, e.g., Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), it is equally clear “that an opinion is only an opinion. It creates no fact. Because of this, opinion evidence is considered of a low grade and not entitled to much weight against positive testimony of actual facts such as statements by the defendant and observation of his actions.” The foregoing instruction was upheld as being a correct statement of the law in Commonwealth v. Woodhouse, 401 Pa. 242, 260, 164 A.2d 98, 107 (1960). We further find that the trial court was correct in charging the jury that the expert testimony was to be given little weight in this case where there was ample non-opinion testimony rebutting that of the expert. See, e.g., Commonwealth v. Cooper, 270 Pa.Super. 365, 411 A.2d 762 (1979).

Appellant claims finally that the trial court erred in excluding Officer Palmer’s testimony that the bullet entered through the victim’s chest rather than through his back. Defense counsel sought to qualify the police officer so that he could rebut the analysis of the medical examiner, Dr. Fillinger, who concluded and testified that the bullet entered through the victim’s back. We agree with the trial court’s conclusion that the officer did not qualify as an expert and we excerpt that portion of its opinion which thoughtfully supports that conclusion and upon which we will rely.

Defendant’s attempts to qualify Officer Edward Palmer as an expert for purposes of attacking the conclusions expressed by Dr. Fillinger is also meritless.
The Court held an in camera hearing in which defense counsel sought to qualify Officer Palmer as an expert for purposes of contradicting the conclusion that the back wound on the victim was an entrance wound and not an exit wound. Defense counsel presented a statement elicited by a Detective McCormack in an interview of Officer Palmer, which statement indicated that it was Officer Palmer’s belief that the victim was shot one time in the left side of the chest, with an exit wound in the center of the back.
It is clear that this may well be the natural conclusion of a layman untrained in the areas of forensic pathology where he finds the victim lying face up. Such a conclusion is not, however, based on even a shred of scientific evaluation as is required in these highly technical matters. During the in camera hearing, Officer Palmer made it obvious that his statement was the product of nothing more than a cursory observation; it was not the product of scientific evaluation of any sort (N.T. 6.196-6.201, 3-2-81).
Whether an alleged expert is qualified rests, to a very considerable extent, within the trial Court’s discretion. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). Generally, if a witness has any reasonable pretension to specialized knowledge on the subject under investigation, he will be permitted to testify and leave the weight to be given his testimony to the jury. Kravinsky v. Glover, supra. Further, a person will be permitted to testify as an expert even though his knowledge has been acquired through the medium of practical experience rather than through scientific study and research. Churbuck v. Union R. Co., 380 Pa. 181, 110 A.2d 210 (1955).
There being no reasonable evidence of scientific study or practical experience which would qualify Officer Palmer in the areas of forensic pathology or firearms examination, it was proper for the trial Court to refuse to allow him to testify as an expert witness capable of rendering an educated opinion.

Lower Court Opinion at 9-11.

Judgment of sentence affirmed.

      . Section 501 of the Crimes Code defines "believes” as "reasonably believes."

      . Section 501 defines “deadly force” as “[f]orce which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.”

      . Appellant claimed that the trial court failed to use the term self-defense anywhere in its charge. We note that this statement is erroneous as the trial court specifically used that term in its charge. N.T. at 7.169. We note, however, that section 505 does not use the term "self-defense,” and the trial court was not required to substitute that term for the words of the statute delineating the defense.


author: PER CURIAM: SPAETH, Judge,

text:
    455 A.2d 180
    HARDWARE WHOLESALERS, INC. v. Neil C. SWOPE and G. Grace Swope, his wife, t/d/b/a Evans City Hardware, Appellants.
    Superior Court of Pennsylvania.
    Argued March 15, 1982.
    Filed Jan. 21, 1983.
    Petition for Allowance of Appeal Granted April 15, 1983.

      John J. Dean, Pittsburgh, for appellants.
    Thomas W. King, Butler, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Appellants contend the lower court erred in refusing to open a default judgment. We disagree and, accordingly, affirm.

On January 30, 1981, appellee filed a complaint seeking to foreclose on appellants’ note. Appellants did not answer within the requisite twenty days, and appellee filed a ten-day notice of its intent to seek default judgment. Pa.R. Civ.P. 237.1. Appellants then requested and received two extensions. Appellants’ counsel referred to the second extension in a letter to appellee reading: “Unfortunately I have run into a problem in getting an answer up to you. I would expect to have it up to you by next Thursday. If there are any problems with this, let me know.” Letter from John J. Dean to Thomas W. King III (March 12, 1981). See N.T. at 13. Appellants did not file the answer by Thursday, and a default judgment was entered the following Tuesday, March 24. Appellants petitioned to open judgment on April 28, 1981. After a hearing, the petition was denied, and this appeal followed.

Appellants argue that their extension letter was so general as to require further notice under Pa.R.Civ.P. 237.1 before a default judgment. We disagree. Informal written extensions are permitted under Rule 237.1, but they “should be sufficiently specific to avoid argument over [their] terms.” Explanatory note to Pa.R.Civ.P. 237.1. Written agreements “couched in general language, without specifying a fixed date for compliance” entitle a party to an additional ten-day notice before judgment can be taken. Id. Consistent with the principle that written agreements are construed against the party preparing them, Central Transportation, Inc. v. Board of Assessment Appeals of Cambria County, 490 Pa. 486, 417 A.2d 144 (1980), counsel who requests an extension and specifies its length cannot excuse a default by claiming misapprehension. Horan v. R.S. Cook & Associates, 287 Pa.Superior Ct. 265, 430 A.2d 278 (1981). The letter sent by appellants’ counsel indicated a specific day for submission of an answer, and thus, having failed to meet these criteria, did not entitle appellants to a second notice.

Appellants argue also that their default was excusable, they have a meritorious defense, and their petition to open was timely filed. We disagree.

The well-established rule for opening a default judgment in an assumpsit case requires the existence of three factors: (1) a promptly filed petition; (2) a seemingly meritorious defense; and (3) an excusable reason for the default. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). The existence of these factors depends on equitable considerations, including a weighing of the prejudices to each party arising from opening, or refusing to open, judgment. Toplovich v. Spitman, 239 Pa.Superior Ct. 327, 361 A.2d 425 (1976). Accord, Provident Credit Corp. v. Young, 300 Pa.Superior Ct. 117, 446 A.2d 257 (1982).

Appellants give no reason for waiting over thirty days before filing a petition to open judgment. Their only explanation for the default was counsel’s preoccupation with other business and misapprehension of the deadline, an unacceptable excuse. See Horan v. R.S. Cook & Associates, supra. Because appellants’ defense can be raised in a separate proceeding, (1031 Pa.R.Civ.P.; Sobol v. Will Allen Builders, Inc., 244 Pa.Superior Ct. 486, 368 A.2d 825 (1976)), the equities do not weigh in favor of opening judgment. Thus, because the petition was not timely filed, the default was not excusable, and the appellants’ defense does not warrant opening judgment, we affirm the lower court’s denial of appellants’ petition.

Affirmed.

JOHNSON, J., concurs in the result.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

The difficulty I have with the majority opinion is, that in the name of a rule passed to require courtesy between counsel, it rewards discourtesy.

The facts, stated somewhat more fully than they are by the majority, are these. Appellee filed its complaint on January 30, 1981, seeking to foreclose on a note pursuant to which appellants had already paid $11,932.64. The complaint was filed because appellant had not paid the installment due on January 14, 1981; the balance at that time was $4,524.10, plus interest. When appellants did not answer the complaint within twenty days, appellee’s counsel, two days after the twentieth day, N.T. 3., sent appellants the ten-day notice required by Pa.R.C.P. 237.1. Before the end of the ten days, appellants’ counsel spoke to the secretary of appellee’s counsel, since appellee’s counsel himself was not available, and asked for an extension of ten days because he was on trial. “She left the phone and came back and said she had talked to [appellee’s counsel] and [he] said this was no problem.” N.T. 6/16/81, 11-12. When it became apparent to appellants’ counsel during this ten day extension period that he would need another extension, he again telephoned appellee’s counsel but again was able to speak only to his secretary. She said, “No problem. How long do you need?”, and appellants’ counsel replied, “Probably I can get it in by Thursday.” Id. 13. Appellants’ counsel then sent a confirming letter, which was dated March 12, 1981, and read:

Unfortunately I have run into a problem getting an answer up to you. I would expect to have it to you by next Thursday.

If there are any problems with this, let me know. When Thursday passed and the answer was not received, appellee’s counsel, without a telephone call to appellants’ counsel, took a default judgment on the next Tuesday, March 24. Appellants petitioned to open the judgment on April 28.

The majority starts its analysis by saying that appellants’ counsel’s letter must be construed against counsel as the person who wrote it. So construed, the majority says, the letter fixed a specific date by which the answer would be filed. Since no answer was filed by that date, the majority says, appellants’ counsel was not entitled to any further notice. At 181. This analysis, I suggest, is unfortunate, for it is contrary to the spirit and purpose of 237.1. Rule 237.1(a), provides:

(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

Rule 237.1 was adopted on the recommendation of this court. In Silverman v. Polis, 230 Pa.Superior Ct. 366, 371, 326 A.2d 452, 454-55 (1974), we said:

[Ajttempts to utilize every niggling procedural point for maximum advantage demean the legal profession, reducing its procedures to a vulgar scramble. No doubt it is for this reason that in so many cases, notice of intent to take a default judgment, or the lack thereof, is properly made a significant factor in reaching a just decision.

In their Explanatory Note to the Rule, the draftsmen say:

The increasing number of petitions being filed in the common pleas courts throughout the Commonwealth to open default judgments and the ensuing appeals have become a matter of concern to the courts.
One part of the problem arises from the entry of “snap judgments” without notice, a practice sharply disapproved by the Superior Court, and the lack of notice is frequently singled out as an important factor justifying the opening of a default judgment.
The Superior Court in Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974), and Brooks v. Surman Dental Lab, Inc., [262] Pa.Super. [369], 396 A.2d 799 (1977), recommended a requirement of prior notice of intent to enter a default judgment, and this has been required by local rule in a number of counties. New Rule 237.1 will make the prior notice a statewide requirement.

In explaining how they expected the Rule to work, the draftsmen say:

In most counties, what has been referred to in the decisions as “common courtesy” will result in informal agreements of attorneys for an extension of time. Often situations will arise where a dilatory attorney secures extension after extension and still fails to take action. The Rule recommends that such an extension should be in writing as provided in Rule 201, and should specify a time within which the required action must be taken. If this is done, no further notice under the new Rule need be given, and judgment may be entered at the end of the extension period.
If the opponent refuses a written extension, an application must be made to the court____
If a written extension between the parties is couched in general language, without specifying a fixed date for compliance, then a ten-day notice under the Rule will be required before judgment can be entered.

Explanatory Note.

In construing appellants’ counsel’s letter according to principles of contract law, the majority ignores this explanation, and goes against the spirit and purpose of the Rule. The principle that a writing will be construed against its author is appropriate when the parties are engaged in a bargaining struggle, each trying to get the better of the other. But that principle is most inappropriate in applying a rule intended to instill and enforce the habits of common courtesy between counsel. Counsel discussing a mutually agreeable extension are not adversaries, engaged in a bargaining struggle. Indeed, the adversary system won’t, and can’t, work—it will become just what we have here, the “vulgar scramble” we deplored in Silverman v. Polis, supra—unless opposing counsel have the maturity and self-control to know when they should be adversaries and when they shouldn’t be. Thus in the Ethical Considerations to Canon 7 of the Code of Professional Responsibility—the canon that provides that “a lawyer should represent a client zealously within the bounds of the law”—it is said:

EC 77-37 In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor towards opposing lawyers____ EC 7-38 A lawyer should be courteous to opposing counsel and accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client____
(Footnotes omitted.)

If one construes appellants’ counsel’s letter as it should be construed under Rule 237.1—as an exchange between counsel acting with common courtesy—one must conclude, I submit, that the letter is not “specific,” as the majority says it is, but open-ended, or tentative. Counsel “expect[s]” to file the answer by Thursday. Opposing counsel knows he has been on trial and has already had to ask for one, brief, extension. Surely a fair reading of “expect[s]” is not that “I definitely will,” but that “I think I will but I may be a bit delayed.” That’s why counsel concluded his letter by saying, “If there are any problems with this, let me know.” “[TJhis” refers to the possibility of some delay beyond Thursday. It couldn’t refer—as the majority would have it do—to the grant of an extension until Thursday, for there couldn’t be “any problems” about that; that had been agreed to: appellee’s counsel’s secretary, when asked for the extension, had said, “No problem. How long do you need?” Thus, in applying one principle of construction— construe a writing against its author—the majority ignores another—don’t construe a writing so that part of it becomes superfluous or meaningless.

In his brief, appellants’ counsel says, “In many respects this judgment has all the indices of a ‘snap judgment’ which has been abhorred by this court.” Appellants’ Brief at 10. I quite agree. The ten-day notice was first sent only two days after the twentieth day, and the default judgment was taken only four days (two of them being the weekend) after the Thursday by which appellants’ counsel had expected to file the answer. Nothing suggests that appellants’ counsel was acting in bad faith in missing his Thursday date. (He testified that the difficulty he had was getting his clients down to his office in Pittsburgh to sign the verification and go over the answer to the complaint. N.T. 5.) A telephone call by appellee’s counsel, as suggested by appellants’ counsel’s letter, would, it seems plain, have avoided the litigation we must now resolve. I regret the majority’s decision to reward counsel who did not make the call. In my opinion, the better result would be to construe appellants’ counsel’s letter as “couched in general language,” Rule 237.1, Explanatory Note, so that counsel seeking a default judgment was required to send a second notice, id. Thereby we should encourage courtesy between counsel, as the Rule intended.

A few concluding comments: The majority’s reliance on Horan v. R.S. Cook & Associates, 287 Pa.Superior Ct. 265, 430 A.2d 278 (1981), is misplaced. There the judgment was entered, not four days after the extension expired, as here, but twenty seven days. We specifically noted that because counsel waited so long, the judgment could not be characr terized as “snap.” Id., 287 Pa.Superior at 269, 430 A.2d at 280. If anything, Horan illustrates how much like a snap judgment the judgment here is. Also, I don’t understand the majority’s reasoning, that “[bjecause appellants’ defense can be raised in a separate proceeding ..., the equities do not weigh in favor of opening the judgment.” At 182. For my part, I don’t reach the issue of the merits of appellants’ defense, for as I have said, I believe that under Rule 237.1(a), correctly applied, appellee’s counsel could not take a default judgment without further notice. However, if, as the majority evidently has concluded, appellants’ defense is meritorious, it is no answer to say that it “can be raised in a separate proceeding,” that is, that appellants should now bring a separate action that could have been maintained as a defense to appellee’s complaint. That only puts both parties to additional expense and delay.

I should reverse the order of the lower court and grant the petition to open the default judgment.

       The lower court based its decision not to open judgment on appellee’s compliance with Rule 237.1. Although this rule was intended to eliminate default judgments taken without prior notice to the opposing party, it does not change or eliminate the test for opening default judgments. Since the elements of the test were argued below, we will decide this case on the merits.


author: PER CURIAM:

text:
    455 A.2d 185
    COMMONWEALTH of Pennsylvania v. Charles TURNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 17, 1982.
    Filed Jan. 21, 1983.

      David Samuel DeRose, New Kensington, for appellant.
    John J. Driscoll, District Attorney, Greensburg, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

On January 19, 1976, appellant Charles Turner pleaded guilty to charges of robbery and conspiracy and was sentenced to two to five years imprisonment. He appealed to this court which vacated the judgment of sentence and permitted appellant to petition to withdraw his plea. Through new counsel, appellant filed such a petition but it was subsequently withdrawn and the sentence reinstated. On October 2, 1981, appellant filed a pro se petition under the Post Conviction Hearing Act, 19 P.S. § 1180-1, et seq., alleging, for the first time, that his guilty plea counsel was ineffective for failing to challenge the validity of the information filed against him in that it bore only a rubber-stamped facsimile of the District Attorney’s signature. A third attorney was appointed to represent appellant. After a hearing on the merits of the P.C.H.A. petition, the Honorable Joseph A. Hudock denied appellant’s request for relief and dismissed the P.C.H.A. petition. Appellant then filed the instant appeal. We affirm the order of the lower court denying post-conviction relief and dismissing appellant’s P.C.H.A. petition.

In Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981), a panel of this court held that a rubber-stamped facsimile signature did not satisfy the requirements of Pa.R.Crim.P. 225(b). More recently, however, this court, sitting en banc, held that use of such a facsimile does not render the information void ab initio but merely voidable and curable by amendment if properly raised in a pre-trial motion. Commonwealth v. Veneri, 306 Pa.Superior 396, 452 A.2d 784 (1982). Veneri’s failure to raise the issue pre-trial, therefore, constituted a waiver.

In the instant appeal, this issue is framed in terms of counsel’s effectiveness; that is, was appellant’s guilty plea counsel ineffective in failing to file a pre-trial motion raising the signature defect? We assess counsel’s competence in light of the alternatives available at the time of trial. “The test is not whether other alternatives were more reasonable, employing a hindsight evaluation____” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Five years passed between the time of appellant’s guilty plea and the Emanuel decision. To assess counsel’s competence in 1976 in light of an appellate decision announced in 1981 would be to “impose upon trial counsel the qualities of a seer____” Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977). We will not hold counsel ineffective for failing to foresee changes in the law. See, Commonwealth v. Triplett, id.; Commonwealth v. Norris, 305 Pa.Super. 206, 451 A.2d 494 (1982).

Since no other allegations of ineffectiveness were raised in appellant’s P.C.H.A. petition, we affirm the order of the lower court denying P.C.H.A. relief and dismissing appellant’s petition.

      . Pa.R.Crim.P. 225(b) requires an information to be "signed” by the attorney for the Commonwealth.

      . It should be noted that the Veneri decision specifically found that failure to comply with the signature requirement of Pa.R.Crim.P. 225(b) was not so significant a breach as to justify the extreme remedy of discharge. In the instant case, the lower court noted that raising this issue pretrial may well have been futile since "the net effect of a successful quashing of the information for lack of a signature, would be that the District Attorney would refile the information with the proper signature____" (Lower Court Op. pp. 2-3)


author: VAN der VOORT, Judge:

text:
    455 A.2d 637
    Jeanine THOMAS, Trading and doing business as Thomas Bros. Coal Company v. ALLEGHENY & EASTERN COAL CO., Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Nov. 30, 1982.
    Reargument Denied Feb. 11, 1983.
    Petition for Allowance of Appeal Denied June 9, 1983.

      Laurance B. Seaman, Clearfield, for appellant.
    Carl A. Belin, Clearfield, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Plaintiff-appellee, Thomas, contracted by purchase order and several amendments thereto, to supply to defendant-appellant, Allegheny & Eastern Coal Co. (hereafter referred to as Allegheny) 20,000 tons of coal at $14.25 per ton. The coal was to be shipped f.o.b. the mines (in Pennsylvania) and consigned to “Allegheny & Eastern Coal Co. for the Acct. of Foreston Coal Internation, Inc.” The destination was Baltimore, Maryland. The stated “guarantees” on the “Purchase Order” read as follows:

Guarantees: SPECIFICATIONS:
B.T.U. 13000 Min. guaranteed (B.T.U.’s will be
determined by samples taken at Baltimore)
Penalty Premium Premium
20<t Per 100 B.T.U. over 13000 Penalty 40<t Per Hundred
under 13000
Sul. 1.5% Over 1.5% Rejection (Footnote supplied)

Thomas actually shipped 19,486.35 tons, and requested payment at $19.25 per ton, for a total of $277,680.49. Allegheny paid Thomas $218,417.41. Thomas filed the present suit in assumpsit seeking payment of the balance of $59,261.08.

Delivery was admitted in the pleadings, and the presiding Judge Reilly ruled that the burden lay with the appellant to prove the B.T.Ü.’s of the coal when delivered in Baltimore. In order to carry that burden Allegheny offered the report of a chemist, employed by Wiley & Co., Inc., a testing laboratory. Judge Reilly ruled that the report was inadmissible because it was not properly authenticated under the Uniform Business Records as Evidence Act. The Judge then directed a verdict for Thomas calculated at the basic price of $14.25 per ton. After the jury was discharged, the court molded the verdict to include interest.

On appeal, appellant-Allegheny raises four contentions:

A. That plaintiffs-appellee should have been nonsuited for failure to prove that the coal delivered to appellant met the specifications of 12,300 B.T.U.’s;

B. That the court should not have directed a verdict for appellee, because there was sufficient evidence in the case that the coal did not meet the requisite specification of 12,300 B.T.U.’s;

C. That the analysis reports of the testing laboratory should have been received in evidence; and

D. That the court erred in molding the verdict to add interest.

A. The burden of proof.

In essence, this first contention is dependent upon a determination of whether seller or buyer had the initial burden of proving a deviation from the contractually agreed quality of the coal of 12,300 B.T.U.’s.

By admission in the pleadings, appellee proved the contract, the delivery in Baltimore, the acceptance by the buyer, and the payment of a part of the contract price. The trial judge then ruled that the burden shifted to the appellant to prove any pertinent deviation of the B.T.U.’s from the stated standard of 12,300. In the posture of this case we believe the ruling was correct.

It is clear in this case that the tests for B.T.U.’s were to be made at destination (in Baltimore) by or on behalf of the buyer, or of his consignee. Since the tests were intended to be made, and in fact were made in this case in Baltimore, after delivery of the coal, by a testing laboratory chosen by the buyer’s consignee (Foresten Coal), and particularly since appellant was relying upon the results of those tests as a basis of an adjustment of the price to appellant’s advantage, common sense argues strongly that the burden of proof devolved upon Allegheny.

We find support for such a result under two different but related legal principles. If viewed as a warranty problem, the party claiming a breach of the warranty must present proof of it. Ricci v. Barscheski, 179 Pa.Superior Ct. 351, 116 A.2d 273 (1955); U.S. Gypsum Co. v. Birdsboro Steel FDY., 160 Pa.Superior Ct. 548, 52 A.2d 344 (1947). In this case, the agreement guaranteed coal of a quality of 12,300 B.T.U.’s; appellant argues the quality was less; appellant had the burden to prove it.

Another way to approach the current controversy is to decide whose burden it was to prove the negative, i.e., the noncompliance concerning the quality contracted for. Where the non-existence or the negative of a fact can be demonstrated more easily by one party than the other, the burden of proof may be placed on the party more readily able to demonstrate the negative. Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968); accord Meth v. Broad St. & Bonded B. & L., 346 Pa. 331, 30 A.2d 119 (1943). Here Allegheny assumed the responsibility of testing the coal; Allegheny performed the required testing. Therefore the court could properly burden appellant with the showing that the coal received did not comply with the agreement.

B. Evidence in the record of the B.T.U.’s.

Accepting arguendo that the non-suit was properly refused, the appellants contend that there was sufficient evidence, through the evidence of Thomas and of Ross W. Clawges, a field representative of the eventual consumer, Foreston, that the coal did not meet the 12,300 B.T.U. specifications, therefore, appellant claims the lower court erred in directing a verdict for Thomas. This contention is not directly answered either in the lower court’s opinion, or in appellee’s brief in the appellate court, although it was raised below in paragraph 7 of appellant’s post trial motions.

Clawges was present when at least some of the coal was being loaded on the train, and he made some spot analyses which indicated to him that the coal did not meet the 12,300 B.T.U. specification, and he so informed the appellee’s representatives. There was talk that coal of better quality would be added to raise the average to 12,300 B.T.U., but there is no evidence that this was ever done. Mrs. Thomas conceded that the coal shipped on the first half of the order was not meeting specifications. Those portions of the evidence do indicate some reasonable question as to what was the precise quality of the coal, but there is no sufficient proof of the amount of deviation from the standard of 12,300 B.T.U.’s to justify appellant’s imposition of a penalty under the formula set forth in the purchase order. As trial counsel recognized during the trial, proof of the amount of the deviation and penalty was dependent upon the analyses made in Baltimore after delivery.

On a motion for a directed verdict, the court should accept as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made and must reject all testimony and inferences to the contrary. Correll v. Werner, 293 Pa.Superior Ct. 88, 437 A.2d 1004 (1981); Stephens v. Carrara, 265 Pa.Superior Ct. 102, 401 A.2d 821 (1979); Hogan v. Bryn Mawr Hospital, 250 Pa.Superior Ct. 109, 378 A.2d 477 (1977). Without the admission of the analysis reports, Allegheny merely demonstrated that some of the coal did not comply to some degree. This was insufficient to allow the jury to decide whether the coal as a whole did not comply with the specifications. The jury could only offer conjecture as to the average B.T.U. content.

C. Admissibility of the analysis reports.

Foresten, the purchaser from appellant, employed Wiley & Co., Inc. to analyze the coal and submit reports to it. Those analyses and reports are contained in Defendant’s Exhibits O, P, Q and R, and copies are attached to appellant’s brief at pages 37-40. Judge Reilly ruled that the reports had not been properly authenticated and therefore refused to receive them into evidence. He ruled that without such evidence appellant had not successfully carried its burden of proof, and he directed a verdict for appellee. Appellant attempted to introduce copies of the reports in the testimony of Samuel William Wiley, Jr., “in charge of Wiley and Company since 1932.” Wiley described the business of his company; testified that he had supervised the taking of samples of the coal from the railroad cars, and that other persons at Wiley and Company, otherwise not identified, had performed the laboratory tests. No attempt was made to procure the testimony of the persons who performed the tests, or to explain their absence.

Appellant contends that the reports are admissible under the Uniform Business Records as Evidence Act, 42 Pa.C. S.A. § 6108. The Act provides in part:

(b) General Rule.—A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition, or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

(Emphasis supplied).

After reviewing Wiley’s testimony, and the testimony of a second witness for appellant, Judge Reilly concluded that the testimony raised a serious issue as to the trustworthiness or reliability of the report. The court expressed particular concern over the following points. The chemist remained unnamed and there was no explanation given for his or her absence resulting in Thomas being unable to cross-examine him or her on his or her qualifications or the testing. Nor was the report the original record of the analysis, but a compilation of other documents.

Whether a document should be admitted under the “business record” exception is within the discretionary power of the trial court provided such is exercised within the bounds of the Uniform Act. In Re Estate of Indyk, 488 Pa. 567, 413 A.2d 371 (1979); In Re Wildoner, 268 Pa.Superior Ct. 271, 407 A.2d 1351 (1979). In the current case, the unidentified chemist’s analysis would have supported Allegheny’s position, however in that the witness was not present, his testimony was hearsay and his analysis in his absence did not permit him to qualify as an expert. See Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). We can find no abuse of the trial court’s discretion as the lower court’s ruling is in agreement with the vintage holding of this court in Coale Corp. v. Blue Ribbon Coal Co., 84 Pa.Superior Ct. 228 (1924), where this court held the hearsay statements of an unknown chemist was incompetent proof of the quality of the coal.

D. The addition of interest to the directed verdict.

Unless appellant succeeded in proving that the coal supplied to it was below the standard of 12,300 B.T.U.’s, or appellee proved it was above that standard, appellant owed appellee $14.25 for each ton delivered, a sum readily calculated on the facts admitted in this case.

Judge Reilly cited Comn. to use Walters T.S. v. Nat. U.F.I. Co., 434 Pa. 235, 252 A.2d 593 (1969) and Oxford Mfg. Co., Inc. v. Cliff House B. Corp., 224 Pa.Superior Ct. 387, 307 A.2d 343 (1973) to support his awarding interest on the amount due to Thomas. Such action was proper. Walters T.S., supra, specifically permits a trial court to mold a jury verdict to include interest even though the question of interest had not been submitted to the jury. Nothing less can be permitted here where the court directs the very verdict to be molded.

Judgment affirmed.

      . This specification was later changed by agreement to 12,300 B.T.U.

      . The coal was billed to Foreston Coal at an agreed price of $15.00 per ton. So far as the briefs disclose, there was no controversy between Foreston and appellant as to that price.

      . Amended at the trial to $52,755.82.

      . 42 Pa.C.S. § 6108.