text:
    478 A.2d 854
    COMMONWEALTH of Pennsylvania v. Frederick MAXWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted February 1, 1984.
    Filed July 13, 1984.

      David A. Soltz, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from a judgment of sentence for robbery and related offenses. Appellant argues 1) that his Rule 1100 rights were violated; 2) that the complaint should have been dismissed because of an eighteen month delay between the incident and arrest; 3) that the photographic identification should have been suppressed; 4) that the victim’s wallet should have been suppressed; and 5) that the trial court should have declared a mistrial because of a witness’s reference to a homicide detective. We find these arguments without merit, and we therefore affirm.

The facts of the incident, as recited by the trial court, are as follows:

James P. Davis, the complainant, was sitting in his automobile, parked in the 2600 block of Germantown Avenue, in Philadelphia, on June 2, 1979. He was hacking, i.e., seeking taxicab passengers without a license. He was approached by the defendant, Frederick Maxwell, and a companion named Mobely. The pair entered Davis’ automobile and asked to be driven to Broad Street and Glen-wood Avenue. While being driven to this destination, the defendant pulled a revolver from his brief case. The pair then forced Davis to go into the back seat of his car, tied him up with tape, and threatened to kill him. They then robbed him of his wallet, which contained $14 in cash, and drove to a small park in the neighborhood, where they let him out. They drove off in his car, which was later recovered by the police.
Trial court slip op. at 2.

The police obtained a search warrant for appellant’s house, on the basis of an unrelated incident. During the search, Davis’s wallet was found on a mantelpiece. An arrest warrant was issued on June 7, 1979, but appellant fled the jurisdiction. Over a year later, on the basis of an anonymous tip, the police discovered appellant in New York City. Appellant was arrested on July 28, 1980, and was returned to Philadelphia to stand trial.

Appellant’s only argument in support of his Rule 1100 claim is that the complaint was signed on June 6, 1979. However, the complaint was dated December 11, 1980, and Davis testified that it was his signature on the complaint. In addition, he testified that what he signed in June of 1979 was his statement concerning the incident. N.T. 3/10/82 at 50. When questioned about the date that he signed the complaint, Davis stated that he didn’t sign the complaint in June but he couldn’t remember when he did sign it. N.T. 3/10/82 at 52. We find that the record adequately supports the trial court’s finding that “the complaint was not signed by [Davis] until December, 1980.” Trial court slip op. at 6.

Appellant claims that the eighteen month delay between the incident and the arrest resulted in a denial of due process. To support this claim, appellant must show actual prejudice resulting from delay by the Commonwealth. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). Appellant argues that an alibi witness died and a key defense witness was unable to remember where appellant was on the day of the incident. We find no denial of due process. Appellant was a fugitive for thirteen of the eighteen months so that most of the delay is attributable to him; he has shown no prejudice resulting from delay by the Commonwealth.

Appellant claims that the photographic identification should have been suppressed because the array was unduly suggestive. The trial court found “no credible evidence that the photographic displays were suggestive.” Trial ct. slip op. at 9. In any event, the in-court identification of appellant had an independent basis. Commonwealth v. Farrell, 265 Pa.Super. 41, 401 A.2d 790 (1979). Davis had ample opportunity to view appellant in broad daylight, and he gave a detailed description of appellant to the police.

The trial court has adequately disposed of appellant’s claim that Davis’s wallet should have been suppressed. We only add that the search warrant covered personal papers so that the officers were justified in searching in the mantelpiece. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Finally, appellant argues that a mistrial should have been granted when the following occurred at trial:

Q. [ASSISTANT DISTRICT ATTORNEY]: Despite the fact that it was not put on that piece of paper, is there any doubt in your mind that that wallet was in that residence on that day?
A. [DETECTIVE BITTENBENDER]: No, sir; I, inspected the wallet and found it under that mantelpiece myself. I then gave it to Detective Kelly to give to Detective Starr from Homicide.
MR. SOLTZ [DEFENSE COUNSEL]: Objection, Your Honor, and move for a mistrial.
MR. KLEIN [ASSISTANT DISTRICT ATTORNEY]: Can we go to side bar?.
N.T. 3/10/82 at 318-19.

Appellant claims that the reference to the homicide detective “conveyed to the jury other criminal activity in the Maxwell residence and perhaps by Mr. Maxwell himself.” Brief for Appellant at 12.

It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that “[t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.” Commonwealth v. Trowery, 211 Pa.Superior Ct. 171, 173-74, 235 A.2d 171, 172 (1967).

Commonwealth v. Allen, 448 Pa. 177, 181-82, 292 A.2d 373, 375-76 (1972). Not all references indicating prior criminal activity warrant reversal, however. Commonwealth v. Nichols, 485 Pa. 1, 400 A.2d 1281 (1979).

In a criminal case, the possible prejudicial effect of a witness’s reference to prior criminal conduct of the defendant may, under certain circumstances, be removed by an immediate cautionary instruction to the jury. Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978). In Commonwealth v. Williams, supra [470 Pa. 172], 470 Pa. at 178, 368 A.2d [249] at 252, this Court stated:
[W]e have never ascribed to the view that all improper references to prior criminal activities necessarily require the award of a new trial as the only effective remedy. Our decisions have indicated that there are situations where the taint, resulting from an improper reference to an unrelated criminal act, may be expunged without resort to the extreme remedy of aborting an otherwise fair trial____
The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Id. at n. 4.
Commonwealth v. Richardson, 496 Pa. 521, 526-27, 437 A.2d 1162, 1165 (1981).

Passing references and innocuous and unintentional comments may often be cured by appropriate instructions to the jury. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977); Commonwealth v. Nichols, supra; Commonwealth v. Whitman, 252 Pa.Super. 66, 380 A.2d 1284 (1977); Commonwealth v. Markle, 245 Pa.Super. 108, 369 A.2d 317 (1976) . In some cases, however, “reference to prior unrelated criminal conduct ... would be so offensive and prejudicial as to mandate a mistrial.” Commonwealth v. Williams, supra, 470 Pa. at 179, n. 4, 368 A.2d at 252, n. 4 (1977) . Thus, in Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979), the Court held that a mistrial should have been granted where the Commonwealth elicited from a Commonwealth witness the fact that the defendant had been in a United States Penitentiary. Similarly, in Commonwealth v. Durant, 268 Pa.Super. 191, 407 A.2d 1311 (1979) we held that a mistrial should have been granted where a Commonwealth witness stated that she didn’t know the defendant “was out of jail”. We found that the witness’s response was intentional unelicited by defense counsel and “could only result from a strong desire to convict the [defendant].” Id., 268 Pa.Superior Ct. at 193, 407 A.2d 1312. In addition, we found that “[b]ecause of the nature of the testimonial reference, ... curative instructions would have been inadequate.” Id.

In this case, we find that the witness’s reference to a homicide detective did not warrant a mistrial. It was not elicited by the Commonwealth, and it could have been cured by an appropriate explanation or cautionary instruction. The witness had been instructed by the Commonwealth not to mention anything about homicide detectives, N.T. 3/10/82 at 323, and other than the one reference, the Commonwealth witnesses avoided mentioning appellant’s involvement in a homicide investigation. Certainly the reference was susceptible of one interpretation prejudicial to appellant. However, it was susceptible of other interpretations, and the Commonwealth offered to provide one. Defense counsel, however, rejected the offer, and also, did not request any cautionary instruction:

MR. KLEIN [ASSISTANT DISTRICT ATTORNEY]: I have been thinking about this stupid remark of this witness. I think maybe we can correct it by me asking the detective, “Detective, you mentioned some title of Detective Starr. Aren’t you mistaken about it? You have it mixed up with another case?”
MR. SOLTZ [DEFENSE COUNSEL]: I think it will just draw attention to it. You are playing with fire.
THE COURT: Look, I have ruled on it and I don’t think it’s the kind of — in the first place, he didn’t indicate and there is no indication that the defendant was ever charged with homicide, the fact that you give a picture to a detective, a homicide detective in my opinion is no indication for a mistrial.
N.T. 3/10/82 at 327.

Cf: Commonwealth v. McFadden, 464 Pa. 265, 346 A.2d 550 (1975) (witness’s explanation of police records dispelled improper inference).

In these circumstances we find no error. Where it appears that an explanation by the witness or a curative instruction by the court would dispel any improper inference from an ambiguous remark, defense counsel has the obligation to make a choice, either to ask for an explanation or instruction, or to disregard the comment so as not to draw attention to it.

Affirmed.

      . There is some question whether the wallet was found on the mantelpiece or in a mantelpiece with a movable top.

       There are certain limited exceptions to this general rule, none of which are applicable here. For example, evidence of a different crime can be introduced to prove k common scheme or design. See, e.g., Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). It is likewise permissible in some instances to impeach credibility by proof of a prior criminal record. See, e.g., Commonwealth v. McIntyre, 417 Pa. 415, 208 A.2d 257 (1965). After a verdict of guilty of murder in the first degree, evidence of the commission of other crimes is admissible as an aid to the jury in fixing the penalty. See, e.g., United States ex rel. Bolish v. Maroney, 409 F.2d 1404 (3d Cir.1969), cert. denied, 396 U.S. 893 [90 S.Ct. 187, 24 L.Ed.2d 168] (1969) and Commonwealth v. Bell, 417 Pa. 291, 208 A.2d 465 (1965). See also, Note, "Use of Prior Crimes To Affect Credibility And Penalty in Pennsylvania”, 113 U.Pa.L.Rev. 382 (1965).

      . Appellant does not allege that counsel was ineffective in failing to request a cautionary instruction.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    478 A.2d 858
    Rodney W. KINTNER, Appellant v. CLAVERACK RURAL ELECTRIC CO-OPERATIVE, INC. Rodney W. KINTNER v. CLAVERACK RURAL ELECTRIC CO-OPERATIVE, INC., Appellant. Rodney W. KINTNER, Appellant v. CLAVERACK RURAL ELECTRIC CO-OPERATIVE, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1983.
    Filed July 13, 1984.

      Laurence M. Kelly, Montrose, for Kintner, appellant (at Nos. 1342 and 1559) and appellee (at No. 1558).
    Lucille Marsh, Scranton, for Claverack, appellant (at No. 1558) and appellee (at Nos. 1342 and 1559).
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   SPAETH, President Judge:

These appeals arise from a trespass action by Rodney W. Kintner against Claverack Rural Electric Co-Operative, Inc., to recover damages for the loss of 14 dairy cows electrocuted when some power lines came down during a storm, on June 5, 1979. The jury returned a verdict for Kintner of $31,000. Both parties moved for judgment n.o.v. or a new trial. Claverack’s motions raised issues of both liability and damages; Kintner’s motions raised only issues of damages. The trial court dismissed both parties’ motions, but remitted $8,250 of the verdict, holding that it had improperly charged the jury on damages for lost profits and unborn cattle. Both parties appealed. We affirm.

-1-

In support of its motion for judgment n.o.v., Claverack argues that the evidence of its negligence was insufficient. In considering a motion for judgment n.o.v., the evidence must be viewed in the light most favorable to the verdict winner. Sperrazza v. Cambridge Mutual Fire Ins. Co., 313 Pa.Super. 60, 459 A.2d 409 (1983). So viewed, the evidence was as follows.

During a storm, part of a tree fell on power lines maintained by Claverack, bringing the lines into contact with each other. They burned through, and fell onto Kintner’s cows, electrocuting them. N.T. 55-56. Kintner’s expert, Willard Kresge, testified that several feasible precautions would have prevented the accident: trimming the trees; insulating the wires; using a heavier gauge wire; using higher poles; using a different method of attaching the wires, known as spacer-type construction; and installing a circuit breaker. N.T. 87-100. Kresge also testified that industry standards required trimming trees that might interfere with the lines, or insulating the wires where trimming was impractical. N.T. 71-74, 87-92.

Claverack, as a supplier of electricity, was required to exercise the highest degree of care practicable. Karam v. Pa. Power & Light Co., 205 Pa.Super. 318, 208 A.2d 876 (1965). On the basis of Kintner’s testimony, the jury could find that Claverack had not taken a feasible precaution and that this failure caused the loss of Kintner’s cows. The trial court therefore properly denied Claverack’s motion for judgment n.o.v.

In support of its motion for new trial, Claverack argues that the trial court should not have read several of Kintner’s points for charge to the jury because the points misstated the law and facts. Specifically, Claverack argues that the points incorrectly assumed that the failure to take a particular precaution was a violation of industry standards, and misstated the testimony on whether the reclosure device malfunctioned. However, Claverack has not preserved these arguments, for it did not make them at trial. See Crosbie v. Westinghouse Elevator Co., 297 Pa. Super. 304, 443 A.2d 849 (1982); Rosato v. Nationwide Ins. Co., 263 Pa.Super. 340, 397 A.2d 1238 (1979). Particularly will waiver be found when the error alleged is a factual misstatement that could have been easily corrected had it been called to the trial court’s attention. Rodgers v. Yellow Cab Co., 395 Pa. 412, 147 A.2d 611 (1959). Claverack did argue at trial, and argues to us, that the jury could have understood that it was required to conclude that each of the precautions was reasonable, and that not having taken any was negligence. This argument is without merit. The jury was instructed that a breach of the highest duty of care was a permissible finding if it found that Claverack had failed to take one of the enumerated precautions and found causation (“... then you may find____”). This charge was not inaccurate, misleading or confusing.

Also in support of its motion for new trial, Claverack argues that several statements made during Kintner’s closing argument were improper and prejudicial. Again, this argument has not been preserved. Counsel did not object during closing and ask to have the relevant remarks steno-graphically recorded. We therefore have no record to review. Johnson v. O’Leary, 277 Pa.Super. 223, 419 A.2d 742 (1980).

-2-

Kintner testified that the 14 cows had an average market value of $1,650 and that he had received $350 in salvage, for a net loss of $22,750. He argued to the trial court, and argues on appeal, that he was entitled, in addition to damages for lost profits. N.T. 15-16. He identified several exhibits as showing that his milk production dropped after the accident. N.T. 19-24. He also attempted to show that before the accident his production had increased by a certain percentage, and to use that percentage to increase the difference between expected and actual production after the accident, thereby increasing his lost profits. The trial court admitted the evidence showing the drop in production, but not the evidence in support of the claimed percentage increase. N.T. 23, 139.

The jury’s verdict was for $31,000. The trial court remitted the verdict to $22,750, i.e., the fair market value of the cows, explaining in its opinion that “one who receives the full value of a chattel destroyed through the negligence of another ordinarily cannot recover for the value of the use thereof after it was destroyed.” Slip op. at 8 (citations omitted). Both parties argue that the trial court erred. Kintner argues that damages for loss of use are proper and that the jury’s verdict should be reinstated. He also argues that the evidence about his expected production increase should have been admitted and that this error warrants a new trial limited to damages. Claverack argues that the remittitur was not appropriate because the issues of liability and damages were inseparable, and that therefore it should be granted a new trial, on both liability and damages.

Pennsylvania law allows recovery of damages for the loss of use of personal property when the property is repairable. Holt v. Pariser, 161 Pa.Super. 315, 54 A.2d 89 (1947); Koren v. George, 159 Pa.Super. 182, 48 A.2d 139 (1946); see Restatement of Torts § 928. We find no Pennsylvania appellate decision on the question of the recovery of damages for loss of use when the property has been completely or substantially destroyed; several trial courts have held that such damages are not recoverable. Some jurisdictions permit recovery only when the property is repairable. E.g., Joe Sartain Ford v. American Indem. Co., Ala., 399 So.2d 281 (1981); Skinner v. Scott, 238 La. 868, 116 So.2d 696 (1959); Hayes v. Freight Lines, Inc. v. Tarver, 148 Ohio St. 82, 73 N.E.2d 192 (1947). Others, however, permit recovery as well when the property has been destroyed. See Allanson v. Cummings, 81 A.D.2d 16, 439 N.Y.S.2d 545 (1981), and cases cited therein.

The rule denying recovery seems to be based on the idea that the plaintiff has been made whole upon receiving the full market value of the property as of the date of destruction and has the presumed ability to enter the marketplace and purchase a replacement. Id. at 18-19, 439 N.Y.S.2d at 547. This reasoning has been found unpersuasive by the Court of Appeals for the Third Circuit in the case of Dennis v. Ford Motor Co., 471 F.2d 733 (3rd Cir.1973):

The latter approach [permitting recovery] represents more modern thinking, and it is the position which we believe a Pennsylvania appellate court would adopt if faced with this issue. Damages are supposed to compensate the injured person for the wrong which has been done to him. Guido v. Hudson Transit Lines, Inc., 178 F.2d 740 (3d Cir.1950); Restatement of Torts, § 910. Consequently, this Court fails to see any logical or practical reason for a distinction between repairable and unrepairable damage to a commercial vehicle which would justify loss of use for the former and not the latter even though the owner suffers loss because he cannot immediately replace the vehicle. In both instances the owner has lost the same thing, the use of his vehicle, and he should be able to recover this loss of use in either case.
Id. at 736.

We agree with the Third Circuit, and hold that damages for the loss of use of personal property are recoverable whether or not the property is repairable.

It does not follow from this conclusion, however, that Kintner was entitled to recover damages for the loss of use of his cows. One claiming loss of use damages when the property is repairable must show that the method of repair and the time taken to make the repair were reasonable. Holt v. Pariser, supra. Similarly, one claiming loss of use damages when the property is not repairable must show that the method of acquiring a replacement for the property and the time taken for the replacement were reasonable. Reynolds v. Bank of America National Trust & Savings Ass’n., 53 Cal.2d 49, 345 P.2d 926 (1959); Long v. McAllister, Iowa, 319 N.W.2d 256 (1982). Kintner did not make this showing. He testified that he had chosen to replace the cows by raising others from his herd. N.T. 44. However, he also testified that he could have replaced the cows within three days if he had paid $1,800 each, although it would “probably [have] take[n] all fall unless you went far away,” N.T. 46, to have replaced them at $1,650. Finally, he testified that a cow is not milked until it is two to three years old. N.T. 41. Thus, whatever loss of use damages Kintner suffered was self-inflicted in that it could have been readily avoided by replacing the cows promptly by buying mature cows. Perhaps the trial court, in ordering the remittitur, should have awarded damages of $1,800 per cow instead of $1,650. However, Kintner has not objected on appeal to the court’s evaluation of $1,650, and we cannot ourselves substitute an evaluation of $1,800. Moreover, since Kintner did not meet a condition necessary to the recovery of damages for loss of use, any error by the court in refusing to admit the milk production evidence was harmless.

Finally, Claverack’s argument that the remittitur was not appropriate because the issues of liability and damages were inseparable is without merit. The remittitur was ordered because the court concluded that it should not have instructed the jury that it could award damages for unborn cattle and lost profits. The issues of liability and damages were not inseparable; to the contrary, the evidence on liability was distinct from that on damages, and nothing suggests that this is a case of a compromise verdict. See Stathas v. Wade Est., 251 Pa.Super. 269, 380 A.2d 482 (1977); Lambert v. PBI Industries, 244 Pa.Super. 118, 366 A.2d 944 (1976).

Appeal No. 1342 Philadelphia 1982 is quashed. On appeals No. 1558 Philadelphia 1982 and No. 1559 Philadelphia 1982, the orders are affirmed.

      . The appeal at No. 1342 Philadelphia 1982 was taken by Kintner before final judgment had been entered. Therefore, this appeal is quashed. Pa.R.A.P. 301(a). Kintner’s appeal at No. 1559 Philadelphia 1982 was taken after final judgment was entered.

      . The jury was also instructed that it could award damages for unborn cattle. The trial court later ruled that this instruction was improper. Kintner does not argue on appeal that this ruling was error.

      . Cowher v. Dornhaffer, 47 Pa.D & C 2d 190 (1969); Flint v. Fosnaught, 5 Pa.D & C 2d 423 (1955); Dixon v. Priester, 85 Pa.D & C 109 (1952). Contra Nelson v. Johnson, 55 Pa.D & C 2d 21 (1970).

      . We therefore disapprove of the cases of Cowher v. Dornhaffer, supra; Flint v. Fosnaught, supra; and Dixon v. Priester, supra.

      . See Snyder v. Bio-Lab, Inc., 94 Misc.2d 816, 405 N.Y.S.2d 596 (1978). There, plaintiffs replaced their lost cows with younger cows. The evidence showed that young cows produce less milk than more mature cows, and that replacement cows of comparable quality to those lost were available in three months after the accident. Plaintiffs were permitted to recover only the profit that the lost cows would have generated for three months, taking into account the value of the milk produced by the younger cows during this time. The court stated:
      Plaintiffs intentionally balanced the benefit of investing in younger cows against the expected loss in their production during their early years. The low production rate of the replacement cows did not result from the defendant's negligence but from plaintiffs’ business decision.

        Id. at 819, 405 N.Y.S.2d at 598.


author: WICKERSHAM, Judge:

text:
    478 A.2d 863
    COMMONWEALTH of Pennsylvania v. Richard SANTANA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1984.
    Filed July 13, 1984.

      Stephen P. Gallagher, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

On July 8, 1977, appellant, Richard Santana, was arrested and charged with criminal conspiracy and theft by receiving stolen property; and thereafter moved to have certain physical evidence suppressed, which motion was denied on December 8, 1977 by the Honorable Abraham J. Gafni. After waiving a jury trial, the appellant was found guilty of both charges by the Honorable Marvin R. Halbert on April 5, 1978. On January 3, 1979, Judge Halbert granted appellant’s motion in arrest of judgment on the conspiracy conviction, but denied any post-verdict relief on the theft by receiving stolen property conviction. Appellant was then sentenced to six (6) to twenty-three (23) months imprisonment. This appeal timely followed.

In this appeal, appellant challenges the suppression court’s ruling that the police officers had probable cause to effect a warrantless arrest and search and that, therefore, the seizure of the physical evidence (air conditioners) was entirely proper. Specifically, appellant states the issues as follows:

1. Whether the suppression court erred in refusing to suppress physical evidence seized in a private residence at night without a warrant in violation of the fourth amendment protections against unreasonable search and seizures.
2. Whether the suppression court erred in refusing to suppress physical evidence seized without probable cause and without a warrant in violation of the fourth amendment.

Brief for Appellant at 2.

We must examine the circumstances surrounding the crime and the subsequent search and arrest in order to determine whether the police officers’ actions were proper. At approximately 8:30 p.m. on July 8, 1977, Officer Wayne Schmidt and Officer John Dzara, of the Philadelphia Police Department, were patrolling the 900 block of Marshall Street in an unmarked vehicle when they heard a burglar alarm go off. The two plain-clothesmen exited their vehicle and began checking the stores in the immediate vicinity. During this search, the officers received a message over their portable radio indicating that there was a burglary in progress at 921 North Sixth Street. As the officers looked toward Sixth Street (one block away from Marshall), they observed “three Spanish males coming from a vacant lot, carrying air conditioners.” N.T. at 16. Officer Schmidt testified that he saw appellant and another male carrying an air conditioner and standing outside a residence at 917 North Sixth Street. The third man had an air conditioner in his hands and was going up the stairs and into the residence at the aforementioned address.

As a result of another radio call, the officers drove around to 921 North Sixth Street, which is adjacent to the vacant lot, and found that the front door to the Hahnemann Medical Center was broken. The lock was hanging and the door jam was apart. After observing the front of the building, Officer Schmidt walked along the side of the structure, through the vacant lot, and towards the rear of the building. At this time, he observed three windows which were covered by a large metal screen. Holes were cut in the windows and alongside the metal screen were parts of broken air conditioner vents hanging from the window frames. All three windows were on the first floor, street level.

Thereafter, the two officers walked over to and knocked on the door at 917 North Sixth Street, which is the house on the other side of the vacant lot and the residence into which appellant and the other two males were observed carrying the air conditioners. The door was opened by a small child and the officers could see an air conditioner lying on the floor of the hallway. The officers identified themselves, and appellant’s brother, Efran, one of the three males who was observed earlier carrying the air conditioners, ran upstairs. Officer Dzara pursued Efran upstairs and arrested him along with Albert Santana, another brother of appellant, who was about to take a bath in the second floor bathroom. Also, a second air conditioner was located upstairs and confiscated by the police. During this time, Officer Schmidt checked the first floor bathroom and found appellant washing his hands. He also was arrested.

The appellant moved to have the air conditioners suppressed. The suppression court denied the motion, and gave the following explanation for the denial:

[T]he officers in the opinion of this Court had probable cause to believe that a erime had been committed having heard the scene, the broken lock, the missing area of the air conditioners and had probable cause to believe that the individuals who had committed this crime were the individuals who were in fact seen in the immediate vicinity at that time when the burglar alarm was going on which they heard, carrying air conditioners into 917 North Sixth Street.
Having had that reason to believe that the crime had been committed and these were the individuals who were in fact committing the crime, they had the right under those circumstances to follow these individuals into their home to arrest them and in fact to seize the evidence under the circumstances.
The Court would therefore find that the actions of the police in this matter were lawful and as a result the motion to suppress is to be denied both with respect to the arrest and seizure of evidence pursuant to that search and arrest.

Addendum to lower ct. op.

Appellant’s argument is two-fold: (1) the police officers were required to secure a warrant prior to the arrest and search; and (2) even were a warrant not required, there was not sufficient probable cause to justify the arrest and search.

Appellant’s first argument is that the physical evidence (the air conditioners) should have been suppressed because they were the fruits of an illegal arrest, i.e., a warrantless arrest in his home absent exigent circumstances, and thus violative of the Pennsylvania Supreme Court’s decision in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978). In Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), however, our supreme court held that Williams would not be applied retroactively, but would apply only to arrests made subsequent to the date of the Williams decision, November 18, 1978. See Commonwealth v. Norris, 305 Pa.Super. 206, 451 A.2d 494 (1982). Instantly, appellant was arrested on July 8, 1977, almost one and one-half years before Williams was handed down. In light of the Miller holding, the appellant cannot seek the protections afforded by the Williams decision. See Norris, supra.

Appellant further contends that his arrest and the subsequent search and seizure were illegal because the police lacked probable cause. We disagree. The officers were first alerted to a crime in the area by the sound of a burglar alarm. When they went to investigate, they observed three males carrying two air conditioners into a residence at 917 North Sixth Street. The officers were informed through a radio transmission that there was a burglary at 921 North Sixth Street. The officers proceeded to that building and noticed that the front door had obviously been forced open. Further investigation established that holes were cut into three of the first floor windows. Broken air conditioner vents were hanging from the window frames. The officers then proceeded to 917 North Sixth Street, the residence into which appellant and his brothers had carried the air conditioners. They knocked and the door was opened for them. They identified themselves as police officers and appellant’s brother Efran fled upstairs. They also observed an air conditioner in plain view in the hallway.

These factual circumstances support a finding of probable cause. Upon viewing the windows from which air conditioners had obviously been removed, the officers had probable cause to believe that a crime had been committed and that the individuals who they had seen earlier had, in fact, committed it. Thus, the officers were justified in going to 917 North Sixth Street to investigate. We note that the officers acted reasonably in knocking at the door and identifying themselves. When the door was opened they observed an air conditioner in plain view on the hallway floor. Also, one of appellant’s brothers fled upstairs. Clearly, the combination of the officers’ observations at 921 North Sixth Street and the observation of the air conditioner in appellant’s home, together with Efran’s flight, was sufficient to establish probable cause to arrest appellant and his two cohorts. Thus, we find that appellant’s warrantless arrest was based upon probable cause and, was, therefore, valid. Since appellant’s arrest was valid, the air conditioners seized during the search were admissible evidence.

Judgment of sentence affirmed.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended, Act of April 28, 1978, P.L. 202, No. 53, § 7(2), 18 Pa.C.S. § 903.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3925. The appellant had automatic standing to maintain a motion to suppress. In Commonwealth v. Sell, 504 Pa. 46, -, 470 A.2d 457, 469 (1983), our supreme court said:

        In the instant case, appellant was charged with receiving stolen property, 18 Pa.C.S. § 3925. That offense is defined in the Crimes Code as follows:
      (a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
      (b) Definition. — As used in this section the word "receiving” means acquiring possession, control or title, or lending on the security of the property.
      18 Pa.C.S. § 3925.
      From the definition of "receiving” in section 3925(b), it is clear that possession is an essential element of the crime charged herein. See also Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980); Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978). We therefore conclude that appellant is entitled to "automatic standing” under Article I, section 8 of the Pennsylvania Constitution to maintain a motion to suppress.

      . Even if we were required to apply the Williams criteria, we would hold that the officers’ actions did not violate the protections afforded by that decision.
      In Williams, the supreme court enumerated the following considerations in determining whether exigent circumstances existed: (1) whether a grave offense was involved, particularly one of violence; (2) whether the suspect was reasonably believed to be armed; (3) whether there was a clear showing of probable cause, rather than a minimal.showing of probable cause, to believe the suspect committed the crime; (4) whether there was strong reason to believe the suspect was on the premises being entered; (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended; (6) whether the entry was made peaceably; and (7) whether the entry was during the daylight or nighttime hours.

        Commonwealth v. Pytak, 278 Pa.Super. 476, 486, 420 A.2d 640, 645 (1980).
      Instantly, although the crime was not violent, it was a serious offense. As further explained in the opinion, the officers clearly had probable cause to believe that appellant and his brothers committed the crime. The officers knew that appellant was on the premises as they had observed him going into the residence. The officers knocked and identified themselves and thus made a peaceable entry. The arrest took place at approximately 8:30 p.m. on July 8. Although this was obviously not during the daytime, the entry did not occur in the middle of the night either.
      We believe that a balancing of all the relevant factors indicates that there were exigent circumstances that permitted the officers to effect an arrest of appellant in his home without a warrant. Thus, Williams was not violated.


author: WIEAND, Judge:

text:
    478 A.2d 866
    Michael DEVERGILIUS, Jr., Kimberly Ann Devergilius v. Michael DEVERGILIUS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 14, 1984.
    Filed July 13, 1984.

      Peter J. Comerota, Scranton, for appellant.
    Joseph A. O’Brien, Scranton, for appellees.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

This is an appeal from an order requiring Michael DeVergilius, the appellant, to pay twenty ($20) dollars per week for the support of two children, Michael DeVergilius, Jr. and Kimberly Ann DeVergilius, while they attend college. An independent review of the record persuades us that the entry of the order was an abuse of discretion. In the first place, appellant has not agreed that he would continue to support his children while they sought a college education. Secondly, appellant is not able to pay support for his college age children without undue hardship to himself and his new family. Finally, the appellee children are themselves beneficiaries of a substantial trust fund. The order, therefore, will be reversed and set aside.

Michael DeVergilius, age 20 at the time of hearing, and Kimberly DeVergilius, age 18, are the children of Michael DeVergilius and Frances Serafini. The parents are divorced. A separation agreement is ambiguous. Although it implies that the parties contemplated college educations for their children, it does not impose upon the appellant father an affirmative duty to pay therefor. The children, since the separation of their parents, have resided with their mother; they have not maintained contact with their father. They now attend Ithaca College.

Appellant has remarried and is now the father of a three and one-half year old daughter born of his second marriage. He is employed by PennDOT and takes home weekly a net salary of $313.67. He has no other income; he rents a home and is the sole support of his second family. His expenses for necessaries average $1,169.50 per month.

During the summer preceding the hearing, Michael, Jr. was employed by Empire Contracting Company and earned $3,600. Thereafter, he took employment as a legislative aide in his uncle’s office at a biweekly salary of $225. He owns an interest in several pieces of land in the Borough of Taylor, Lackawanna County, and is the beneficiary of a trust created by his grandmother. He receives $2,300 per year in interest and $1,630 per year in dividends.

Kimberly earned wages of $492.45 from a summer job. She, too, is the owner of an interest in real estate with her brother and the beneficiary of a trust fund created by her grandmother. She received interest of $1,523.80 and dividends of $1,631.57 during the year preceding the hearing. She also receives a financial grant of $500 per semester to aid her in obtaining a higher education.

Frances Serafini, the mother of the two children, is employed as a school teacher and earns a net weekly amount of $263.82. She is the principal life beneficiary of the trust created by the terms of her mother’s will. The trustee can invade principal for her benefit and upon her request. Upon her death, the children succeed to her interest in the trust estate.

The law is well established that a father who has not agreed to assist a child in obtaining a college education will not be ordered to support a child who attends college unless he has sufficient estate, earning capacity or income to pay the order without undue hardship. See: Emrick v. Emrick, 445 Pa. 428, 284 A.2d 682 (1971); Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984); Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981); Commonwealth ex rel. Grallnick v. Grallnick, 279 Pa.Super. 347, 421 A.2d 232 (1980); Commonwealth ex rel. Brown v. Weidner, 208 Pa.Super. 114, 220 A.2d 382 (1966); Commonwealth ex rel. Rice v. Rice, 206 Pa.Super. 393, 213 A.2d 179 (1965); Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963).

In this case, the circumstances are such that appellant cannot pay the court order without undue hardship. Moreover, the evidence demonstrates that the children are financially secure and will obtain a college education with or without assistance from their father. Under these circumstances, we are constrained to conclude that it was an abuse of discretion to compel appellant to continue the support of his children while they attend college.

That portion of the order which directs appellant to continue to support his children while they attend college is reversed and set aside.

      . The order also directed appellant to pay certain arrearages at the rate of ten dollars per week. This portion of the order has not been challenged on appeal.


text:
    478 A.2d 868
    Valerie SIMS v. Allen FEINGOLD, individually and t/a A.L. Feingold Associates, Appellants.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed July 13, 1984.

      Allen Feingold, in propria persona.
    Harold F. Kaufman, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

In this action for legal malpractice, the trial court entered a default judgment in favor of the plaintiff, Valerie Sims, after the defendant, Allen Feingold, Esquire, had adamantly and repeatedly refused to comply with a court order directing defendant to produce for examination certain documents from his file. The defendant immediately appealed. Plaintiffs damages, however, have not yet been determined. Because a final order has not been entered, we quash the present appeal.

“Final orders are those which make a final determination of the rights of the parties relating to the subject matter of the action, leaving nothing further to be done____” Navarro v. Ohio Casualty Insurance Co., 295 Pa.Super. 151, 154, 441 A.2d 394, 395 (1982). See also: Rigidply Rafters, Inc. v. Aetna Casualty and Surety Co., 311 Pa.Super. 549, 457 A.2d 1318 (1983). “An order granting a summary judgment on one issue, where genuine issues remain, is generally a nonappealable interlocutory order.” 16 Std.Pa.Prac.2d § 86:32 (1983). Thus, “where judgment is entered for liability only, reserving the question of damages, [the] judgment is ‘interlocutory’. Such a judgment is ... not appealable.” Williams v. Erie Insurance Exchange, 290 Pa.Super. 279, 280, 434 A.2d 752, 753 (1981), quoting 2 Goodrich-Amram 2d § 1035(b):10 (1976). See also: Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 408, 435 A.2d 1290, 1291 (1981); Newill v. Piccolomini, 228 Pa.Super. 220, 323 A.2d 40 (1974). Similarly, where a judgment has been entered against a defendant by default, but the question of damages remains undetermined, an appeal must await the assessment of damages.

Appeal quashed.


text:
    478 A.2d 869
    Daniel J. RUBIN, a minor, by his parents and natural guardians, Gregory RUBIN and Anita Rubin, his wife, Appellants, v. HAMOT MEDICAL CENTER, John G. Guthleben, M.D., Bayview Obstetrics & Gynecology, Inc., Richard B. Eisenberg, M.D., Pathology Association of Erie, Inc. and Regional Clinical Laboratories of Northwestern Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1984.
    Filed July 13, 1984.

      Robert Lesuer, Erie, for appellants.
    Irving Olds Murphy, Erie, for appellees.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

May a child afflicted with Tay-Sachs disease maintain an action to recover damages against laboratories and physidans who failed to determine prenatally that the child was or probably would be so afflicted in sufficient time to prevent his birth? The trial court held that a “wrongful life” action could not be maintained and sustained preliminary objections in the nature of a demurrer to the child’s complaint. We affirm.

“Upon demurrer, a reviewing court must regard as true all well pleaded facts and reasonable inferences deducible therefrom.” Klein v. Raysinger, 504 Pa. 141, —, 470 A.2d 507, 508 (1983). However, a court is not bound by the conclusions of law advanced in the complaint. Cunningham v. Prudential Property and Casualty Insurance Co., Pa.Super. (Slip Op. at 3-4) (J. 1759/83; filed March 2, 1984). “Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.” Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 318, 471 A.2d 856, 858 (1984), quoting Rose v. Wissinger, 294 Pa.Super. 265, 270, 439 A.2d 1193, 1196 (1982).

The complaint in the instant case contains averments that Gregory Rubin was identified in 1977 as a carrier of Tay-Sachs disease. Tests performed on his wife, Anita, were inconclusive. Therefore, in October, 1978, Mr. and Mrs. Rubin consulted Richard Eisenberg, M.D., who made arrangements for Mrs. Rubin to be tested for Tay-Sachs at Hamot Medical Center in Erie. These tests were completed on October 26, 1978, according to the averments of the complaint, and were positive. Nevertheless, neither Eisenberg nor Hamot conveyed this information to the Rubins. Anita Rubin became pregnant in June, 1979. John G. Guthleben, M.D., attended Mrs. Rubin throughout her pregnancy and delivered Daniel, a male child, on March 21, 1980. Although Dr. Guthleben knew that Gregory Rubin was a carrier and that Anita Rubin had been tested at Hamot Medical Center, it is alleged that he neglected to inquire or otherwise ascertain the results of the tests performed at Hamot Medical Center. Daniel is now afflicted with TaySachs. The failure of the physicians and testing laboratories to ascertain and notify the Rubins that both parents were carriers, it is alleged, was negligence which caused Daniel’s conception and prevented a timely abortion. It is also alleged that the child was a third party beneficiary of the contracts for medical and testing services which his parents entered with appellees. Damages are sought on behalf of Daniel for the pain and suffering caused to him by Tay-Sachs disease.

In Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979), this Court held that the claim of a child born with neurofibromatosis for damages in permitting her wrongful birth did not present a legally cognizable action at law. The Court said:

In the instant case, we deny Francine’s claim to be made whole. When we examine Francine’s claim, we find regardless of whether her claim is based on “wrongful life” or otherwise, there is a failure to state a legally cognizable cause of action even though, admittedly, the defendants’ actions of negligence were the proximate cause of her defective birth. Her claims to be whole have two fatal weaknesses. First, there is no precedent in appellate judicial pronouncements that holds a child has a fundamental right to be born as a whole, functional human being. Whether it is better to have never been born at all rather than to have been born with serious mental defects is a mystery more properly left to the philosophers and theologians, a mystery which would lead us into the field of metaphysics, beyond the realm of our understanding or ability to solve. The law cannot assert a knowledge which can resolve this inscrutable and enigmatic issue. Second, it is not a matter of taking into consideration the various and convoluted degrees of the imperfection of life. It is rather the improbability of placing the child in a position she would have occupied if the defendants had not been negligent when to do so would make her nonexistent. The remedy afforded an injured party in negligence is intended to place the injured party in the position he would have occupied but for the negligence of the defendant. Thus, a cause of action brought on behalf of an infant seeking recovery for a “wrongful life” on grounds she should not have been born demands a calculation of damages dependent on a comparison between Hobson’s choice of life in an impaired state and nonexistence. This the law is incapable of doing.
Finally, we hold that the impossibility of this suit as to Francine comes not so much from the difficulty in measuring the alleged damages as from the fact, unfortunately, that this is not an action cognizable in law. Thus, the recognized principle, not peculiar to traditional tort law alone, that it would be a denial of justice to deny all relief where a wrong is of such a nature as to preclude certain ascertained damages, is inapposite and inapplicable here. Accordingly, plaintiffs’ complaint insofar as Franeine’s claim for damages for “wrongful life” is concerned, does not present a legally cognizable action at law.

Id., 268 Pa.Superior Ct. at 364-365, 408 A.2d at 508 (footnote omitted) (emphasis added). This portion of the Superior Court’s decision was affirmed by an equally divided Supreme Court. See: Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981). Writing in support of affirmance, Justice Roberts wrote:

None of the highest appellate courts of other jurisdictions has recognized such a cause of action [for “wrongful life”]. Indeed, Alabama, Elliott v. Brown, 361 So.2d 546 (Ala.1978), Delaware, Coleman v. Garrison, 349 A.2d 8 (Del.1975), New Jersey, Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), New York, Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978), and Wisconsin, Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975) have specifically refused to do so. Even Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (2nd Dist.1980), the decision of a panel of California’s intermediate appellate court upon which the opinion of Mr. Justice Flaherty relies, has recently been called into question by a subsequent panel of that same intermediate appellate court. See Turpin v. Sortini, 119 Cal.App.3d 690, 174 Cal.Rptr. 128 (5th Dist.1981) (Curlender rejected as “unsound under established principles of law and as a sortie into areas of public policy clearly within the competence of the Legislature”).

Speck v. Finegold, supra, 497 Pa. at 89, 439 A.2d at 116 (Opinion by Roberts, J., joined by O’Brien, C.J.). Since our Supreme Court divided on this issue, the Supreme Court of California, in Turpin v. Sortini, 31 Cal.3d 220, 643 P.2d 954, 182 Cal.Rptr. 337 (1982), expressly rejected the Curlender analysis and adopted a contrary view.

In general, it can be said that the unanimous view of courts which have considered this issue is that a child will not be allowed to recover for pain and suffering caused by the wrongful birth of such child. 62 Am.Jur.2d Prenatal Injuries § 10 (1972); Annot., 83 A.L.R.3d 15, 66-76 (1978). In addition to the reasons recited by the Superior Court in Speck v. Finegold, supra, courts have cited “policy reasons against allowing tort damages for failing [or refusing] to take an embryonic life.” 62 Am.Jur.2d Prenatal Injuries § 10. See: Coleman v. Garrison, supra at 13; Gleitman v. Cosgrove, 49 N.J. 22, 30, 227 A.2d 689, 693 (1967).

These considerations are also determinative of the novel argument advanced on behalf of Daniel that he was a third party beneficiary of the contracts which his parents had entered with the several appellees. “In the last analysis and evaluation, and irrespective of the category of claims made, we hold plaintiffs’ complaint sounds essentially in negligence, tortious breach of contract, and/or medical malpractice. As in any cause of action based on these grounds, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of damages suffered by the injured parties.” Speck v. Finegold, supra, 268 Pa.Super. at 364, 408 A.2d at 507-508. As in Speck, Daniel’s claim in the instant case, by whatever name it is known, is an action for medical malpractice. For the same reasons that the law does not recognize a “wrongful life” claim in tort, it cannot sanction an action in assumpsit which seeks the same relief. Placing the child in a position he would have occupied had appellees not committed the alleged wrongful act, whether it be a tort or a breach of contract, is impractical, for to do so would render the child nonexistent. Unless and until the law is altered by the Legislature or the Supreme Court, we decline to allow a child to recover damages for its own wrongful birth. Such an action is not cognizable under the law of Pennsylvania.

Order affirmed.

      . A separate action by the parents for their damages remains undetermined in the Court of Common Pleas of Erie County.

      . It is suggested by averments of the complaint that when both parents are carriers, the chances of a child’s being born with TaySachs are 25 percent.

      . See also: Stribling v. deQuevedo, 288 Pa.Super. 436, 441, 432 A.2d 239, 242 (1980); Gildiner v. Thomas Jefferson University Hospital, 451 F.Supp. 692, 694 (E.D.Pa.1978).

      . The Supreme Court also held that the parents of Francine had a legally cognizable action for their separate damages.

      . The California Supreme Court agreed with this court and others that with respect to the child’s claim for pain and suffering, the assessment of injury and damages was impossible and would not be allowed. However, with respect to the child's claim for extraordinary medical expenses occasioned by its defects, the Supreme Court held that it would be illogical and anomalous to permit only parents, and not the child, to recover for the cost of the child’s own medical care. Turpin v. Sortini, supra 31 Cal.3d at 238, 643 P.2d at 965, 182 Cal.Rptr. at 348. We express no opinion with respect to this conclusion.


author: OLSZEWSKI, Judge:

text:
    478 A.2d 872
    COMMONWEALTH of Pennsylvania v. Robert Mark PLANK.
    Superior Court of Pennsylvania.
    Submitted April 4, 1984.
    Filed July 13, 1984.

      Richard K. Renn, Assistant Public Defender, York, for appellant.
    Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This appeal follows judgment of sentence for rape. Appellant argues (1) the trial court erred when it refused to allow him to present an insanity defense; and (2) the prosecution failed to establish sufficient proof of forcible compulsion to sustain the jury’s verdict of guilty of rape as a felony of the first degree.

The facts of rape are undisputed. Appellant entered the victim’s home one Sunday morning. He threatened the woman, raped her and fled.

At trial, appellant attempted to «¡ítroduce an insanity defense. The court refused to allow the testimony to go to the jury.

At trial, appellant did not testify. The court did hear, in camera, the testimony of Dr. Stanley E. Schneider, a clinical psychologist, on the issue of appellant’s alleged insanity.

The doctor testified that appellant suffered from a mental disorder, “an adjustment disorder with depressed mood and disturbance of conduct.” He traced the illness to appellant’s chronic abuse of alcohol. The disease manifests itself in alcoholic blackouts. Ingestion of alcohol results in periods during which appellant appears to be in control, but about which he can recall little if anything later.

On the evening before the attack, appellant had fought with his wife. He spent the night drinking. Sunday morning at seven, he raped the victim. The doctor testified that he believed appellant did not understand the harmfulness of his actions at the time of the attack. Further, the doctor believed appellant could not completely understand the consequences of his actions at that time. Dr. Schneider felt appellant’s reasoning was defective and his ability to control himself diminished. He testified that “but for” appellant’s Saturday drinking, the Sunday rape would never have occurred.

The judge again refused to allow an insanity defense. A jury found appellant guilty of rape, a felony of the first degree. Timely post-verdict motions were filed, heard and denied. Appellant received a term of five (5) to ten (10) years.

Appellant challenges the court’s rejection of his insanity defense.

The trial court made a threshold determination that appellant had failed to raise the issue of insanity. See Commonwealth v. Thompson, 274 Pa.Super. 44, 417 A.2d 1243 (1979). It concluded as a matter of law that appellant could not escape liability under the M’Naghten Rule.

We recognize the problems faced by an indigent attempting to raise an insanity defense. On review, we give the proposed testimony a “fair reading.” See id., 274 Pa.Superior Ct. at 50, 417 A.2d at 1246. We assume, that had the jurors heard the testimony, they would have credited it. We turn then to the question of law.

The insanity defense reflects “a societal judgment as to the minimal mental capacity that must be possessed by the actor to be held criminally responsible for his acts.” Commonwealth v. Hicks, 483 Pa. 305, 311, 396 A.2d 1183, 1186 (1979) (per Nix, J.). We will not convict a defendant who, at the time he committed an otherwise criminal act, was “laboring under such defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or, if he did wrong, that he did not know he was doing wrong — ” The Queen v. M’Naghten, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843); Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 (1960). To the extent we focus on the disorder to excuse the act, etiology is irrelevant. See Commonwealth v. Simms, 462 Pa. 26, 333 A.2d 477 (1975) (insanity defense allowed where defendant, at the time of the crime, was allegedly acting as a result of a blow or blows to the head); cf. Commonwealth v. Hicks, 483 Pa. at 311 n. 5, 396 A.2d at 1186 n. 5 (the Court reserved the question of “the applicability of the defense of insanity where the mental disease is traceable to habitual long term abuse of drugs.”).

The court’s refusal to allow Dr. Schneider to testify before the jury collided with appellant’s right to present a defense. “To deny a defendant an opportunity to present competent proof in his defense constitutes a violation of a fair trial and of due process.” Henderson v. Fisher, 631 F.2d 1115, 1119 (3rd Cir.1980), on remand 506 F.Supp. 579 (W.D.Pa.1981). Had appellant fairly raised the insanity defense, the Commonwealth would have had the burden of proving beyond a reasonable doubt appellant’s sanity at the time of the crime. Exclusion of the evidence carried the danger of impermissibly lessening the Commonwealth’s burden of proof. See Commonwealth v. Neely, 298 Pa.Super. 328, 347-48, 444 A.2d 1199, 1208 (1982).

Because we find the excluded testimony irrelevant as a matter of law, we conclude that the court below committed no reversible error.

“The question is not whether it is fair to punish chronic alcoholics, but rather whether or not they possessed, at the time of the criminal act, the requisite mens rea to find them criminally culpable.” Commonwealth v. Kuhn, 327 Pa.Super. 72 at —, 475 A.2d 103 at 110 (1984) (Montemuro, J., concurring). See Note, Chronic Alcoholism as a Defense to Crime, 61 Minn.L.Rev. 901, 902-05 (1977). We predicate liability on some degree of criminal responsibility. Appellant adduced evidence of a mental disorder which predisposed him to alcoholic blackouts. He also presented proof that “but for” his drinking Saturday night, the Sunday rape would not have occurred.

“It is obvious that an actor should not be insulated from criminal liability for acts which result from a mental state that is voluntarily self-induced. Commonwealth v. Hicks, 483 Pa. at 311, 396 A.2d at 1186. Appellant took the alcohol by his own hand. If he drank voluntarily, the insanity defense is barred because appellant induced the infirmity. Id.

Involuntary intoxication may, "in certain instances, provide a defense to the criminal charge. See Commonwealth v. Kuhn, 327 Pa.Superior Ct. at ——, 475 A.2d at 113 (Spaeth, P.J., dissenting); cf. Commonwealth v. Simms, 462 Pa. 26, 333 A.2d 477 (1975) (blows to head may result in temporary insanity). However, “involuntary intoxication cannot, as a matter of law, be established through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol.” Commonwealth v. Kuhn, 327 Pa.Superior Ct. at -, 475 A.2d at 108.

If we cannot excuse the antecedent act, appellant’s proposed defense dissolves.

Additional concerns impel our decision today. Allowance of the defense based upon a purported ungovernable impulse to drink raises practical problems. “Because clear guidelines would be impossible to draw, jury discretion would be substantial. This could lead to inconsistent and discriminatory results, as well as a burdensome increase in spurious claims by defendants hoping for a sympathetic jury.” Note, Alcohol Abuse and the Law, 94 Harv.L.Rev. 1660, 1685 (1981). We believe admission of the evidence in this case would be contrary to the clear expression of legislative policy. See 18 Pa. C.S. § 308 (evidence of voluntary intoxication legally irrelevant to an accused’s intent); Commonwealth v. Rumsey, 309 Pa.Super. 137, 454 A.2d 1121 (1983). Finally, we express our concern for the victim of the rape. “[Sjociety’s interest in safety would be ill served by weakening sanctions against inebriates who intentionally cause harm to others, especially since their crimes often involve violent attacks on the person.” Note, Alcohol Abuse, supra.

Appellant’s remaining argument, that there was insufficient evidence on the issue of force, lacks merit. The victim testified that appellant told her “Come on lady, don’t make me shoot you.” She saw no weapon.

Under Section 3121 of the Crimes Code, “A person commits a felony of the first degree when he engages in sexual intercourse ... by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution----” 18 Pa. C.S. § 3121 (emphasis added). We see no reason to disturb the jury’s finding.

The judgment of sentence is hereby AFFIRMED.

      . 18 Pa. C.S. § 3121.

      . Appellant filed pre-trial motions for an incompetency examination. On April 23, 1982, he gave notice of intent to present an insanity defense. See Pa.R.Crim.P., Rule 305 C(l)(b), 42 Pa.C.S.A. Before trial, he moved for- permission to present the defense. The court refused to allow it.

      . Appellant applied to the court for an order directing an incompetency examination. See 50 Pa. S. § 7402(c). However, Dr. Schneider explained, “[t]he psychological tests that I administered are not sophisticated enough to pick up any neurological or organic problems resulting from the long history of alcohol use or abuse.” N.T. 71. See generally A. Goldstein, The Insanity Defense, Chapter Nine "Expert Witnesses and an Effective Defense; The Special Problems of the Indigent Accused” (Yale 1967).
      The court shall, on an indigent defendant’s motion, allow reasonable compensation for a psychiatrist of defendant’s choice. 50 Pa. S. § 7402(f). The problem inheres that the wealthy can afford more and "better” psychiatric testimony.

      . As Judge Cavanaugh recognized in Thompson, "it would work an unreasonable mischief if at the conclusion of every case the court on request had to send an insanity issue to the jury simply on the insistence of the defendant that a view of all the evidence raises the issue and requires a determination of whether the Commonwealth has proven sanity.” 274 Pa.Super. at 49, 417 A.2d at 1246.
      However, we agree with Justice Roberts in Rose that "... the accused has no obligation to introduce any particular evidence in support of his claimed defense.” Commonwealth v. Rose, 457 Pa. 380, 394-95, 321 A.2d 880, 887 (1974) (Roberts, J., concurring); accord Commonwealth v. Demmitt, 456 Pa. 475, 483-85, 321 A.2d 627, 632-33 (Nix, J., concurring). But see Commonwealth v. Frisbie, 318 Pa.Super. 168, 464 A.2d 1283 (1983), where the trial judge, as fact-finder, found proffered testimony "unworthy of belief’ and so, insufficient to raise the insanity defense.
      We believe the approach adopted today best serves these competing interests, judicial economy and substantive due process.

      . The legislature has since shifted the burden to the defendant to prove "by a preponderance of the evidence that [he] was legally insane at the time of commission of the offense.” 18 Pa. C.S. § 315, Act 1982, Dec. 15, P.L. 1262, No. 286, § 1. The law operates prospectively, see id., § 4, and has no bearing on this case.

      . We distinguish this case on the facts from Hicks. There Justice Nix found a fatal weakness in Hicks’ claim — the absence of any allegation of "a defect of reason resulting from a disease of the mind." 483 Pa. at 310, 396 A.2d at 1185 (emphasis in the original). The court here heard uncontroverted testimony that appellant does suffer from a mental disorder.

      . We note that a Motion for Allowance of Appeal by the Supreme Court was filed in Kuhn on April 23, 1984.


text:
    478 A.2d 876
    In the Interest of LESLIE H. Appeal of HARRY and Donna H.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed July 13, 1984.

      Thomas K. Wynne, Lebanon, for appellants.
    Rosamond A. Presby, Assistant District Attorney, Lebanon, for participating party.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN.
   OLSZEWSKI, Judge:

This appeal follows an order remanding custody of appellant’s daughter to the Lebanon County Children and Youth Services.

On December 17, 1982, Lynn E. Richards, an investigator for the Lebanon County Children and Youth Services, filed a petition alleging sexual abuse of the sixteen year old girl by her father. The agency claimed the girl was, as a result, an abused and dependent child without proper parental care or control necessary for her physical, mental or emotional health, or morals. See The Juvenile Act, 42 Pa.C.S. §§ 6301 et seq.; The Child Protective Services Law, 11 P.S. §§ 2201 et seq. It assumed temporary custody of the girl. On January 6, 1983, a hearing was held in chambers before Judge John Walters. The court found the girl to be a dependent child, and ordered her custody remanded to the agency for placement in foster care or its equivalent.

Appellants challenge the sufficiency of the evidence of record to support the finding of dependency. They argue that the court below based its decision on evidence improperly admitted. If the inadmissible testimony were excluded, appellants contend that the basis of the adjudication of dependency would vanish.

We agree.

The court heard, over objections, testimony of the agency investigator chronicling a history of abuse allegedly suffered by the girl at her father’s hand. Again over objections, it listened as the girl’s best friend told of the girl’s reaction to the abuse.

That testimony forms the sum of the evidence on record of sexual abuse. A court may find a child dependent only on proof by clear and convincing evidence. In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983). The testimony offered by the Commonwealth, that of an agency investigator and the girl’s best friend, was hearsay, incompetent to prove the truth of the matter asserted. In Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981). That testimony discounted, little remains on record to support the lower court’s finding. Accordingly, we vacate the order and remand the case for a new. hearing.

The facts, if properly admitted, would sustain a finding of dependency. For that reason, the child should remain in the protective custody of the Lebanon County Children and Youth Services pending a rehearing of the case on remand.

With an eye to the rehearing on remand, we examine the procedure below. There, after both the Commonwealth’s and appellants’ witnesses had testified, the judge took the girl in chambers and spoke with her alone. Neither parties nor counsel were present; no record was made of the testimony. Relying on this in camera testimony, the court adjudicated the girl dependent.

We appreciate the difficulties faced by the court below. The hearing was, in essence, an accusatory matter. An adjudication of dependency came only after the girl spoke out. In the presence of the court, she had to raise her finger and point it at appellant, her father. The judge acted to help the girl by hearing her testimony in camera. In the process though, he circumvented appellants’ rights.

“It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother.” In re Rinker, 180 Pa. at 148, 117 A.2d at 783. By closing the proceeding entirely, the court ignored the parents’ rights. It denied them relevant information and violated their due process rights to confront and cross-examine the girl. In Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671.

On remand, we suggest the court follow the procedure approved in Cruz v. Commonwealth, Department of Public Welfare, 80 Pa.Cmwlth. 360, 472 A.2d 725 (1984). That case also involved a hearing on alleged child abuse. The two minors in Cruz were questioned in camera, with only attorneys present. The court on review rebuffed a due process challenge to the proceeding:

Here, every procedural safeguard was observed short of allowing the appellant to be present when the children testified: the appellant’s attorney was present and cross-examined the children; a transcript was made of the children’s testimony; and the appellant knew the identity of the witnesses [his children] and had an opportunity to advise his attorney of any factors which he thought might cause them to testify out of bias, revenge or malice. Id., 80 Pa.Cmwlth. at 366, 472 A.2d at 728.

The procedure employed in Cruz, viz., attorneys present and testimony transcribed, seems to us to strike a rational balance between the competing interests. We adopt, then, those safeguards as the minimum necessary to satisfy due process concerns.

Order vacated and case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

WICKERSHAM, J., concurs in the result.

      . Per a Voluntary Placement Agreement with appellants.

      . Appellants and their other daughter provided the remaining evidence of record. The father denied the allegations; the mother disbelieved the daughter and the sister testified that any contact with the father occurred "only when we were fooling and stuff, and tickling."
      The court spoke with the girl alone, out of the presence of counsel and the parties. Infra.

      . A court could properly admit the testimony of what the child has told other people to establish what was in the mind of the child and the impact of the parent’s conduct upon the child. In re Rinker, 180 Pa.Super. 143, 154, 117 A.2d 780 (1955). The record fails to establish that the court so limited use of the testimony.


text:
    478 A.2d 879
    In the Matter of the ESTATE OF George B. RUDY, Jr., Deceased. Appeal of Mary C. LAU and Margaret A. Lau, Exceptants.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed July 13, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Lewis P. Sterling, York, for appellant.
    Byron H. LeCates, York, for Williams, participating party.
    Robert M. Strickler, York and Lawrence Barth, Deputy Attorney General, for The Visiting Nurse, participating party.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the final decree of the Orphan’s Court of York County dismissing appellant’s exceptions to the Chancellor’s decree nisi and adjudication. For the reasons below, we affirm.

On June 23, 1980, George B. Rudy died, leaving a will dated April 1, 1976, and a codicil thereto dated February 9, 1979. Item III of the will stated: “I give my personal effects and all items of Rudy Family memorabilia ... to ... George W. Williams, III [appellee]____” Item VIII of Mr. Rudy’s will bequeathed all of his real property, “together with the contents thereof”, to his friends, Mary and Margaret Lau [appellants]. The residue of the estate was placed in trust, with the income thereof payable perpetually to several charitable organizations, among them the York College of Pennsylvania.

Appellants contest the disposition of certain items found locked in a filing cabinet on the deceased’s premises. These items, with an estimated fair market value well in excess of $500,000 include: municipal bonds, corporate stock, a collection of rare coins, several valuable watches, a sizable amount of cash and an assortment of fine jewelry.

Shortly after Mr. Rudy’s death, a proposed account and distribution was filed for audit by the executor of the estate. The Chancellor held that the above mentioned assets passed to appellee as “personal effects” under Item III of the will. Appellants excepted to this finding; they claimed these assets were “contents” of Mr. Rudy’s home that belonged to them by virtue of Item VIII of the will. The court en banc, agreeing with the logic of the Chancellor, dismissed appellants’ exceptions and awarded assets to appellee.

Appellants challenge the validity of that disposition. They raise myriad substantive issues. Before we address those issues, we must resolve appellants’ sole procedural claim.

I.

Appellants argue that the lower court erred when it allowed appellee to file an untimely objection to the account. Appellee filed the objection after the statutory period for such filing had expired. The record reveals that the account had originally been filed for audit on July 1, 1981. Before this audit, appellants filed several objections challenging the proposed account. At the call of the audit list, the audit was continued pending disposition of those objections. Thereafter, on July 17, 1981, appellee filed his objections to the account. Appellants now contend that this latter filing was untimely under Rule 70.2 and 70.3 of the local rules of court in York County. We do not agree.

In Gertzens Estate, 18 Dist. 925 (1909), it was specifically held that where the filing of exceptions to an adjudication has suspended confirmation thereof, other exceptions may be filed nunc pro tunc after the time for filing exceptions had expired. Here, appellants’ filing of objections delayed the audit beyond its original call date. Under Gertzens Estate, supra, appellee thus became entitled to file objections after the original deadline for filing had expired. Therefore, we will not view appellees objections as untimely.

II.

This procedural obstacle behind us, we focus on appellants’ main contentions. Appellants argue that the Chancellor erred in holding that testator’s bequest of the “contents” of his house did not include the cash, stock, bonds, rare coins, jewelry and watches found therein at the time of his death.

The Chancellor, in his decision, relied primarily upon McCartney’s Estate, 61 D. & C. 112 (1947), where it was held that a bequest of a home and the entire contents thereof, did not include bonds, stock certificates, insurance policies, gold coins, and other personal effects of the testator. We find this case on point with the instant matter.

Similarly, our Supreme Court recently held that a devise of a house “as well as all furnishings within said house”, did not include stock certificates, a vehicle title, and a mortgage payable to testator which were found locked in a safe in the devised premises. In re Estate of Baker, 495 Pa. 522, 434 A.2d 1213 (1981).

In light of this explicit authority, we hold that the Chancellor properly concluded that testator’s bequest of the “contents” of his house did not include the cash, stock, bonds, old coins, watches and jewelry found therein.

Appellants next contend that the testimony of testator’s lawyer, secretary, doctor, banker and accountant, was improperly admitted as evidence of testator’s subjective interest.

It is well established that extrinsic evidence is not ordinarily admissible to vary, contradict, or add to the terms of a will to show a different intention on the part of the testator than that disclosed by the language of the will. See Estate of Felice, 487 Pa. 342, 409 A.2d 382 (1979); Dinkey Estate, 403 Pa. 179, 168 A.2d 337 (1961). However, when the court charged with construction of a will cannot, in good faith, distribute the estate by reference to that document alone, then it is proper and necessary to refer to sources beyond the will itself. Soles Estate, 451 Pa. 568, 304 A.2d 97 (1973).

In Soles Estate, supra, our Supreme Court specifically upheld the admissibility of extrinsic evidence in a similar setting. “[T]he court must ‘place itself in the armchair’ of the testatrix and examine not only the document she designated as her will, but also the circumstances surrounding her at the time she did so.” 451 Pa. at 574, 304 A.2d at 100 (citations omitted) (emphasis added). The trial judge in the instant case felt the offered testimony would aid in distributing the testator’s estate. Since the testimony did not impermissibly intrude into the subjective intent of the testator, but rather referred only to the circumstances attendant to the execution of testator’s will and codicil, we find no error in its admission.

Appellants next argue that the court erred in refusing to find a conflict of interest where appellee and a residuary beneficiary were both represented by the same counsel.

The source of the alleged conflict is a cache of gold coins located in a safe deposit box. The coins were claimed by appellee as part of testator’s “personal effects” under Item III of the will. When this claim failed, the coins passed to the York College of Pennsylvania, the designated charitable beneficiary.

We can think of no practical reason why appellants raise such a meaningless argument when it is perfectly clear that they have no possible claim of right to the property in question.

Furthermore, we fail to see even a potential for conflict when the opposing parties — appellee and the York College of Pennsylvania — have stipulated that the coins should undoubtedly pass to appellee.

Appellants final argument focuses on a particular factual finding of the lower court, namely, that testator was occasionally irritable, confused, forgetful, and sometimes incapable of transacting his business affairs. They argue that this finding was not supported by sufficient evidence.

It is well established that a judge’s finding of fact, approved by the court en banc, is entitled to the weight of a jury’s verdict and will not be disturbed on appeal if supported by adequate evidence. See In re Estate of DiPietro, 306 Pa.Super. 238, 452 A.2d 532 (1982) (and cases cited therein). Instantly, the trial judge based his findings on the testimony of Dr. Langer, the deceased’s personal physician. Dr. Langer testified that he had had the opportunity to examine testator on several occasions. During these examinations, he noted several distinct mental characteristics displayed by testator. These characteristics included forgetfulness, loss of memory and confusion. This testimony, based upon personal observance, provided a sufficient basis to support the lower court’s finding. Appellants final assignment of error is without merit.

III.

We are fully aware of the complexities facing trial judges as they attempt to dispose of estates in accordance with the terms of given wills. Instantly, we feel the Chancellor, as well as the court en banc, did an excellent job in interpreting the provisions of George Rudy’s will and distributing his estate accordingly. We therefore affirm the final decree dismissing appellants’ exceptions to the Chancellor’s decree nisi and adjudication.

Decree affirmed.

      . The York County Local Rules of Court provide as follows: "Rule 70.2 Objections to Account — Filing—Service at Copy, (a) Objections may be filed as of course, with the clerk, on any day prior to the session of court when the account objected to is listed for audit, or at, but not later than, such session.”
      Rule 70.3 provides: Objections to Audit — Continued Audit. "When objections to an account have been filed, the audit of the account will be continued, at the time of the call of the audit list, and at that time a date will be fixed by the court for auditing the account and hearing the objections.”

      . Although Gertzens Estate, supra, deals with exceptions filed to an adjudication, whereas the instant case deals with objections filed to an account, we feel the principle contained in Gertzen is equally controlling in this instance.

      . Furthermore, the Chancellor found that none of the parties would be taken by surprise or prejudiced by appellee’s late filing. From this finding, he reasoned that the "interests of equity and justice" dictates that appellee’s objections be heard at the same time and in the same manner as those of appellants. We agree with this reasoning and do not feel the Chancellor exceeded his discretion in so holding.

      . See also Lamb Estate, 445 Pa. 323, 285 A.2d 163 (1971) (holding that a devise of a house "including the contents thereof” included the furniture and furnishings but not a savings account, checking account, saving bond certificates or uncashed checks. The nature of those assets resembles that of the assets involved here.

      . Furthermore, testimony at trial established that testator had transferred the stocks and bonds from his bank to his personal residence solely for his personal convenience. This fact further supports the Chancellor’s conclusion that the testator did not intend for these items to become part of the "contents” of his personal residence.

      . This testimony revealed that testator had set up a revocable trust for the benefit of appellants. This trust, which was created in July 1961, had been amended on June 30, 1975 — a few months prior to the time testator had signed his present will.

      . Indeed, appellants openly admit in their brief that they are not in any righteous position to challenge the disposition of this specific item of testator’s estate.

      . Appellants also raise an additional argument that the Chancellor erred in failing to admit into evidence, bank safety deposit records of the testator. The court en banc accurately noted that appellants, by way of stipulations, had initially agreed to certain facts concerning the testators safe deposit box. Appellants are now forclosed from introducing additional evidence to contradict the facts admitted in their prior stipulations.


author: POPOVICH, Judge:

text:
    478 A.2d 883
    COMMONWEALTH of Pennsylvania v. Robert D. McCANN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed July 13, 1984.
    Richard W. Epstein, Sharon, for appellant.
    Charles S. Hersh, District Attorney, Hermitage, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This decision is pursuant to an order of remand from the Pennsylvania Supreme Court which reversed the Order of this Court wherein we vacated the judgment of sentence and remanded for a new trial. The Supreme Court reinstated the judgment of sentence imposed upon Robert D. McCann, appellant, by the Court of Common Pleas of Mercer County, after a jury found him guilty of aggravated assault. We herein resolve the remaining issue raised by appellant and affirm the judgment of sentence.

On direct appeal, appellant raised three issues: (1) whether the trial court erred in not instructing the jury concerning the consequences of a verdict of not guilty by reason of insanity; (2) whether trial counsel for the defendant was ineffective for failing to request in his points for charge that the trial court instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity; and (3) whether trial counsel for the defendant was ineffective for failing to take specific exception to the trial court’s failure to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity.

The Superior Court at Commonwealth v. McCann, 302 Pa.Super. 442, 448 A.2d 1123 (1982) found that appellant’s trial counsel was ineffective for failing to request the court to instruct the jury concerning the consequences of returning a verdict of not guilty by reason of insanity and, accordingly, vacated the judgment of sentence and remanded for a new trial. The Commonwealth petitioned the Pennsylvania Supreme Court for allowance of appeal, which was granted. The Supreme Court stated:

“... our inquiry is limited to the question of whether there was a reasonable basis for trial counsel’s failure to request this instruction and/or failure to object to the charge given by the trial court.”

Commonwealth v. McCann, 503 Pa. 190, 197, 469 A.2d 126, 129 (1983) and held that since it was proper for trial counsel “to conclude that commitment was only a possibility, and not a mandatory concomitant of a finding of not guilty by reason of insanity,” there was a reasonable basis for his “refusal to request a charge on the consequences of an insanity verdict and/or [his] refusal to object to the trial judge’s charge.” Id., 503 Pa. at 198, 469 A.2d at 130.

The Order of the Superior Court was accordingly reversed, and the judgment of sentence was reinstated. The case was remanded to this court for resolution of the remaining issue raised in appellant’s brief.

We hold that, absent a request for such an instruction, the trial court did not err in failing to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity. The Pennsylvania Supreme Court in McCann, noted that our court relied upon Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977) in its resolution of the ineffectiveness question. In Mulgrew, the Supreme Court overruled Commonwealth v. Gable, 323 Pa. 449, 187 A. 393 (1936), and held that

“When insanity is raised as a possible defense to criminal charges, a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after the return of a verdict of not guilty by reason of insanity.”

Commonwealth v. Mulgrew, 475 Pa. at 277-278, 380 A.2d at 352. The Pennsylvania Supreme Court in McCann elucidated their holding in Mulgrew as follows:

“The holding in Mulgrew as in all cases, must be read in the context of its facts. In that case, defense counsel specifically requested a charge on the consequences of a verdict of not guilty by reason of insanity. The trial judge denied that request, and on appeal, it was this denial which was under scrutiny. Although there is broad language in the holding of Mulgrew, i.e., ‘a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after a return of a verdict of not guilty by reason of insanity’ Id., 475 Pa. at 278, 380 A.2d 352; implicit therein is the condition that upon request such an instruction must be given. As noted by the learned trial judge, this interpretation is consistent with that applied in a number of jurisdictions.” (cites omitted)
“... Mulgrew was not intended to announce a per se rule requiring in all cases, regardless of whether or not requested, an instruction on the consequences of a not guilty by reason of insanity verdict. Consequently, we find no error in the trial judge not having sua sponte given the charge in question.” McCann, 503 Pa. at 193-197, 469 A.2d at 128-129.

Judgment of sentence affirmed.

      . In post-verdict motions, trial counsel raised the issue of whether the court erred in not charging the jury on possible psychiatric treatment and commitment of the accused if a verdict of not guilty by reason of insanity was returned. Since the charge was neither requested nor was its omission objected to, the court noted that counsel’s effectiveness was at issue and permitted trial counsel to withdraw and appointed new counsel for the purpose of filing and arguing additional grounds in support of a motion for new trial and in arrest of judgment. New counsel asserted trial counsel’s ineffectiveness for failing to request such an instruction and for failing to specifically object to its absence.

      . The Supreme Court in its order of remand referred to the remaining "issues” raised by appellant; however, we note that it disposed of both ineffectiveness questions. Since trial counsel was not ineffective for failing to request the instruction concerning the consequences of a verdict of not guilty by reason of insanity, he is likewise not to be faulted for not excepting to the lack of such an instruction.