text:
    476 A.2d 44
    Cheryl F. SANDERBECK v. Richard H. SANDERBECK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1984.
    Filed May 18, 1984.

      Henry A. Hudson, Jr., Greensburg, for appellant.

      Ronald C. Makoski, Jeannette, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

Before we can reach the merits of this appeal, we must determine whether an order denying a request for blood tests in a support action is an appealable order.

Richard Sanderbeck, appellant, and Cheryl Sanderbeck, appellee, are the parents of two children who were born respectively on November 5, 1973 and August 7, 1978. By court order entered in Westmoreland County on June 7, 1979, appellant was directed to pay the sum of $200.00 per month for the support of his children. The parties were divorced by decree entered in Allegheny County on February 4, 1981. Thereafter, appellant filed in Westmoreland County a petition to terminate the order for the support of the two children. He also filed a petition requesting the court to order blood tests. He alleged that he had acquired information that he was not the biological father of the children and requested an order of court requiring blood testing of himself and the children which, he said, would determine the issue of paternity. The court, believing that appellant was collaterally estopped from denying paternity, refused to order blood tests. This appeal followed. The petition to terminate the support order, however, has not been decided.

Unless otherwise permitted by statute or rule of court, this Court has jurisdiction to hear appeals from final orders only. State Farm Mutual Automobile Insurance Co. v. Morris, 289 Pa.Super. 137, 140, 432 A.2d 1089, 1091 (1981). An order is final if it terminates litigation or disposes of the entire case. Adoption of G.M., 484 Pa. 24, 27, 398 A.2d 642, 644 (1979); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). An order is interlocutory and not final if it does not effectively put a litigant “out of court.” Alessandro v. State Farm Mutual Automobile Insurance Co., 487 Pa. 274, 281, 409 A.2d 347, 351 (1979); T.C.R. Realty, Inc. v. Cox, supra, 472 Pa. at 337, 372 A.2d at 724; DeWald v. Pauline, 312 Pa.Super. 391, 393, 458 A.2d 1016, 1016 (1983); Foulke v. Lavelle, 308 Pa.Super. 131, 135, 454 A.2d 56, 58 (1982). The rule is sound. Piecemeal appellate review of litigation in the trial courts is both costly and inefficient. If we were to allow appeals from interlocutory orders, legal actions would become mired in endless journeys up and down the judicial ladder, and final determinations would be needlessly delayed.

There is an exception to this rule which is applicable to collateral orders when the right involved is too important to be denied review and the question presented is such that if review were postponed until final judgment in the case, the claimed right would be irreparably lost. See: Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-545 (1978) citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528, 1536 (1949); Sutliff v. Sutliff, 326 Pa.Super. 496, 499, 474 A.2d 599, 600 (1984).

In the present cafee, appellant’s petition to terminate the support order has not been decided; he has not been put “out of court.” The order denying a request for blood tests as an aid to determining paternity is clearly interlocutory. The denial of appellant’s asserted right to blood tests can as readily be reviewed, if necessary, after a final order has been entered. The present appeal, therefore, is premature.

This determination is supported by the decided cases. In Givens v. Givens, 304 Pa.Super. 571, 450 A.2d 1386 (1982), this Court held an order unappealable which denied a motion for the appointment of a guardian ad litem for a minor child in a support action. In State Farm Mutual Automobile Insurance Co. v. Morris, supra 289 Pa.Super. at 140, 432 A.2d at 1091, we observed that “[a]s a general rule, orders requiring a party to submit to mental or physical examinations under Pa.R.C.P. No. 4010 are interlocutory and not appealable, because they do not preclude the party from further action.” In Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981), we held unappealable an order denying a pre-trial motion for sanctions and counsel fees in a discovery dispute. Finally, in In re McGovern, 291 Pa.Super. 222, 435 A.2d 878 (1981), we refused to allow an appeal from an order denying pre-trial discovery of a juvenile’s records for the purpose of assisting in preparation for trial. See also: Young v. Bradford County Telephone Co., 346 Pa. 90, 29 A.2d 533 (1943) (order allowing pre-trial inspection of books and records); Quinn v. Pennsylvania Railroad Co., 219 Pa. 24, 67 A. 949 (1907) (order directing production of documents).

For these reasons, the present appeal must be quashed. If the trial court subsequently enters an order denying appellant’s petition to terminate the support order, an appeal from that final determination will bring the entire proceeding, or so much thereof as appellant wishes to challenge, before this Court for review. Until a final order is entered, however, this Court will not review the interlocutory orders of the trial court.

Appeal quashed.

      . Although neither party has raised this issue, it is jurisdictional in nature and requires that we address it sua sponte. DeWald v. Pauline, 312 Pa.Super. 391, 458 A.2d 1016 (1983).

      . In Morris, the order in question was held appealable on independent grounds unrelated to the present inquiry.


source: Caselaw Access Project

author: DEL SOLE, Judge: MONTEMURO, Judge,

license: Public Domain

text:
    476 A.2d 46
    COMMONWEALTH of Pennsylvania v. Jeffrey Lynn GOSNELL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1984.
    Filed May 18, 1984.

      John J. Moran, II, York, for appellant.
    Clyde W. Vedder, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

This appeal followed a conviction for failure to properly identify oneself at the scene of an accident as mandated by 75 Pa.C.S.A. § 3742(a), (1977).

While driving along a poorly lit road, Appellant struck what he believed to be a large pothole. He had proceeded about two or three blocks before returning to investigate. At the scene, Appellant found the victim, severely injured, lying on the road. . He pulled the victim closer to the roadside and then ran to a nearby phone and anonymously summoned the police. When the police arrived, the Appellant, giving them his name, address and phone number, told the police that he had seen nothing and was the first to arrive at the scene. Appellant continued to assist the police and paramedics in the victim’s care. Six or seven hours after the Appellant had returned home he went to the police and told them it was most likely he who hit the victim, although evidence was presented at trial that one or two other vehicles may have run over the victim.

The issue in this case is whether Appellant, under the facts, violated 75 P.L. § 3744. We find he did not.

Section 3742, whose predecessor was 75 P.S. § 1027, sets forth the general requirements that a person who is involved in a motor vehicle accident, which results in personal injury, stop at or as close to the scene as possible and remain there until the more particular requirements of § 3744 are met, 1976, June 17, P.L. 162 No. 18, § 1, eff. July 1, 1977. Those requirements are that either the injured or the police be given the driver’s name, address, and registration number. Also, upon request, the driver should reveal his license and insurance information. Rendering reasonable aid to the victim is also required. Specifically at issue here is whether the Appellant properly made his identity known under the law. In Commonwealth v. Adams, 146 Pa.Super. 601, 23 A.2d 59 (1941), defendant was convicted of failure to render assistance to a person injured in a motor vehicle accident under § 1027. Defendant stopped at the scene where plaintiff had been hit by a car and run over by at least two other vehicles. After seeing plaintiff was being cared for, defendant made his identity known and left the scene. The Court reversed the conviction by saying that only assistance which is “necessary” under the circumstances is required, Adams, 146 Pa.Super. at 608, 23 A.2d at 62. When analyzing the Appellant’s behavior under this standard to determine whether it violated the Act, two things must be observed. One, the purpose of the Act must be considered. As the Commonwealth Court observed in Commonwealth v. Stamoolis, 6 Pa. Com. 617, 620, 297 A.2d 532, 533 (1972), the aim of the law was at preventing drivers from leaving the scene of an accident and trying to avoid their responsibilities. Second, in applying the law strictly an absurd result must not follow, Stamoolis, 6 Pa.Com. at 620, 297 A.2d at 533. While the court in Adams spoke of reasonableness in applying the law, the Superior Court in Commonwealth v. Robinson, 254 Pa.Super. 145, 147, 385 A.2d 567, 568 (1978), refused to convict defendant on a technical violation of the law. In that case, defendant’s car collided with plaintiff’s truck. After the defendant asked the plaintiff to forget the accident and the plaintiff refused, the defendant turned to leave the scene. The court found that regardless of his intentions and a technical violation of the law, defendant did essentially follow the requirements, Robinson, 254 Pa.Super. at 147, 385 A.2d at 568. The defendant in Stamoolis was convicted for failing to stop at the scene after he had driven one and one quarter miles on the same road before he was able to find a place he considered safe to stop. His conviction was reversed. Appellant’s behavior in this case also amounted to a substantial fulfillment of the Act. When he first realized he had hit something the origin of which needed to be investigated, Appellant was a few blocks from the scene. He then returned to the scene. In Commonwealth v. Bognar, 217 Pa.Super. 395, 397, 271 A.2d 875, 876 (1970), defendant was convicted for improperly identifying himself at the scene when he held up his license for the plaintiff who could only, read the operator’s number but not the address. Because the plaintiff didn’t ask for further information, the Court found no violation because the “spirit” of the statute was fulfilled. In all of these cases, technical applications of the law give way to considering the circumstances together with the purpose of the Act to reach a more desired result. The Appellant, though not revealing to the police his suspicions of his own involvement in the accident, nonetheless offered them his name and address and continued to assist in the victim’s care. He both returned to the scene and revealed his identity to the police. Given the circumstances of the accident where the Appellant was initially unsure of his involvement, his actions were reasonable. After he had returned home and had the opportunity to reflect, his suspicions surfaced, and he then went to the police. There is no incidence of Appellant’s trying to evade his responsibilities — only that of trying to realize his responsibilities. We feel that it is a better policy to promote cooperative behavior than to convict on technical violations of a law. Since Appellant’s conduct met with the substance of the Act, we find no violation.

Because the Judgment has been reversed on this basis, we find it necessary to consider the other issues raised by the parties.

Judgment of Sentence reversed. Appellant is dismissed.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

The majority holds that the evidence was insufficient to convict the appellant of violation of 75 Pa.C.S.A. § 3742(a). I respectfully disagree and shall therefore set forth my reasons in this opinion.

In Commonwealth v. Stamoolis, 6 Pa.Commw.Ct. 617, 297 A.2d 532 (1972), the commonwealth court construed 75 P.S. § 1027, the predecessor to the aforementioned statute. With regard to the former provision, the court stated:

The section is obviously aimed at those drivers who attempt to flee the scene of an accident in which they have been involved without making known their identity, thus seeking to evade their responsibilities, either criminal or financial, or both..... It is clear, therefore, that § 1027(d) should not be so narrowly and technically construed so as to reach an absurd result.

Id., 6 Pa.Commw.Ct. at 620, 297 A.2d at 533-34. It is my belief that the appellant was not in compliance with either the letter or the spirit of the statute.

Section 3742, and by incorporation Section 3744, imposes certain requirements upon “the driver of any vehicle involved in an accident resulting in injury or death of any person.” These requirements are: to stop; to identify oneself; and to render any necessary assistance. The purposes of this statute are obvious. First, it requires the drivers to take immediate measures to mitigate damage to property and injury to persons resulting from the accident. Second, it requires those involved in the accident to exchange certain information which will ensure their later availability to resolve questions of responsibility, and liability. In light of these statutory purposes, I believe the legislature intended that the driver of the vehicle must identify himself as having been involved in the accident. To construe this provision in any other manner will open the way for a myriad of abuses of the statute. Since the appellant admits that he did not identify himself as the driver of the vehicle. I would conclude that he has failed to meet the technical requirements as expressed by the letter of the statute.

In addition, the appellant’s conduct clearly violates the spirit of the statute. The majority states that: “There is no incidence of appellant’s trying to evade his responsibilities— only that of trying to realize his responsibilities.” Majority Opinion, at 469. I would suggest that the inference is not only unsupported in fact, but contrary to the basic legal principle that all favorable inferences are to be given to the verdict winner; in this case the Commonwealth. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982); Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982). Herein, the appellant was aware; (1) that he felt a bump while driving his vehicle; (2) that his vehicle sustained damage (the right front headlamp and reflector were broken and the radio antenna); and (3) that a mortally wounded man was lying in the street at approximately the location where he felt his vehicle being bumped. Despite these indications which would lead any reasonable man to conclude that he had struck the victim, the appellant chose to conceal his involvement, and in fact denied any knowledge of the accident when specifically asked by a policeman. (N.T. May 19, 1982, at 13).

The present case invites an interesting comparison to Commonwealth v. Hyman, 117 Pa.Super. 585, 178 A. 510 (1935). In Hyman, the defendant was driving east on West Chester Pike late one evening. He was temporarily blinded by the combined oncoming headlights of an automobile and a trolley car when he felt a brushing on the right side of his automobile. He stopped and returned to the point where the brushing occurred and seeing nothing there resumed his journey. When he reached his destination, he parked the vehicle in a public garage, whereupon, he noticed that the passenger side door handle was broken off.

The next day, the defendant read in the newspaper that a man had been killed by a vehicle on West Chester Pike the evening before; a broken off door handle was found at the scene of the accident.

A jury found the defendant guilty of failing to stop and render assistance. This court reversed, holding that there was insufficient evidence to prove the defendant knew that he had hit someone. The court cited the fact that the victim was thrown off the road and into the bushes by the impact with the car, and the fact that the defendant did not discover the damage to his vehicle until after he had reached his destination.

In the present case, the appellant knew that his car had been damaged, and further knew that an injured man was lying in the road at the approximate point the damage had been sustained. Under these circumstances, the jury could find, and I would submit did find, that the appellant knew that he struck the victim. I would therefore conclude that the appellant was required to identify himself as the driver of the vehicle which struck the victim, as soon as possible after his discovery that he was involved in an accident. Because he failed to do so, I would affirm the judgment of sentence.

      . An example pointed out by the Commonwealth is where an intoxicated driver is involved in a single car accident, goes home, sobers up and then returns to report his "suspicion" that he was involved in an accident. See Commonwealth v. Wetmore, 69 Pa.D. & C.2d 344 (1974).

      . We reiterate that the appellant's failure to proffer the registration number of the vehicle he was driving was also in derogation of the relevant statute.


author: JOHNSON, Judge:

text:
    476 A.2d 50
    HOSIERY CORPORATION OF AMERICA INC., Successor to Sleek Fit Hosiery Corporation, Appellant, v. Jerome RICH a/k/a Jerry Rich.
    Superior Court of Pennsylvania.
    Argued March 6, 1984.
    Filed May 18, 1984.

      John Curtis Van Sciver, Bensalem, for appellant.
    Arnold Dranoff, Philadelphia, for appellee.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

Plaintiff appeals from an order transferring its complaint in assumpsit/trespass from Bucks County to Philadelphia County on the basis of forum non conveniens. The appeal from an interlocutory order has been properly taken as of right, Pa.R.A.P. 311(c). Because the order has been entered based solely on preliminary objections and the answer thereto, we reverse and remand for further proceedings.

The preliminary objections filed by defendant raised (a) the pendency of a prior action, (b) a question of venue, (c) a demurrer raising the bar of an allegedly nonwaivable statute of limitations, and (d) a motion for a more specific pleading. The trial court made no determination as to (a), (c) or (d), above, but entered an order directing the Bucks County Prothonotary to certify and transmit the file to the Philadelphia County Court of Common Pleas, based on a finding of forum non conveniens. This was error.

The trial court stated in its opinion accompanying the order of transfer that “[t]here is no doubt that venue is legally proper.” We agree, inasmuch as the within action was brought in the county in which the defendant had been properly served. Pa.R.Civ.P. 1006(a). Since the venue was indeed proper, defendant was precluded from utilizing the device of preliminary objections to secure a transfer. Rule 1006(e) provides, in pertinent part:

(e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived.

(emphasis added).

Although plaintiff properly argued this point to the trial court in its Memorandum Contra Defendant’s Preliminary Objections, the issue was inexplicably not urged on appeal. Nevertheless, we conclude that where all parties agree that venue is proper, the device of preliminary objections may not be used to raise a forum non conveniens argument.

This is so because the trial court is prohibited from receiving evidence outside the pleadings, under these circumstances, in disposing of preliminary objections. A transfer under Rule 1006(e) is for the court to direct, and can be made automatically once improper venue is ascertained without any need for a hearing on “convenience.” United States Cold Storage Corp. v. Philadelphia, 431 Pa. 411, 419, 246 A.2d 386, 390 (1968).

Where venue is proper, as in the instant case, the proper procedure falls under Rule 1006(d), which provides:

For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.

(emphasis added).

It is clear that discretion is vested in the trial judge in determining whether or not to grant a petition brought under Rule 1006(d). A plaintiff’s right to choose his forum will only be disturbed for weighty reasons. Walker v. Ohio River Company, 416 Pa. 149, 205 A.2d 43 (1964). Rule 1006(d) will only be utilized where it is apparent that it will be more convenient for the parties and/or the witnesses to change the forum. Tarasi v. Settino, 223 Pa.Super. 158, 298 A.2d 903 (1972). And the court must find that the transfer is more convenient for both parties to the action or for the witnesses. Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969).

For all the above reasons, we conclude that a proper procedure under Rule 1006(d) necessarily implicates the requirements for petition and answer set forth in Pa.R.Civ.P. Rules 206 through 209, including the taking of evidence by deposition or otherwise on disputed issues of fact. This was not done in the instant case. While it is true that the depositions of two of the officers of the plaintiff corporation were, in fact, taken on January 27, 1982, well after the preliminary objections and answer thereto were filed in this case, it is not clear from an examination of the Notice(s) of Oral Deposition filed what the purpose of that action may have been. In any event, our review of the deposition testimony satisfies us that the officers were not deposed on the issue of the “convenience” of the parties or witnesses as to a transfer to Philadelphia County, the only issue on this appeal.

Because the trial court did not have before it a petition and answer conforming to Pa.R.Civ.P. 206, and because no evidence was presented upon which it could attempt to exercise its discretion relating to the convenience of the parties or the witnesses, we are required to reverse the order granting transfer and remand the case to the Bucks County Court for further proceedings consistent with this opinion.

We, of course, offer no opinion as to the propriety of any future action seeking transfer, since this must necessarily depend upon the averments, answers, and proof submitted to the trial court in accordance with the Rules of Civil Procedure.

Order reversed and case remanded with a procedendo.

Jurisdiction relinquished.

      . This is not a case where new issues of fact have been raised necessitating the taking of testimony before the propriety of the venue can be determined. See, 2 Goodrich-Amram 2d § 1028(c): 2, pp. 250-256.


author: WICKERSHAM, Judge:

text:
    476 A.2d 52
    Calvin E. SWAYZE, Jr.: Calvin E. Swayze, Jr. Administrator of the Estate of Gail I. Swayze, Deceased: Calvin E. Swayze, Jr., Executor of the Estate of Anna J. Swayze, Deceased, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1983.
    Filed June 1, 1984.
    P. Daniel Altland, Harrisburg, for appellant.

      Richard H. Wix, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WICKERSHAM, Judge:

Appellant instituted this action in assumpsit for recovery of survivors’ loss benefits and work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act as a result of an automobile accident that occurred on November 18, 1979 in Lancaster County. The accident resulted in the deaths of appellant’s daughter, Gail I. Swayze, and his mother, Anna J. Swayze.

In counts I and II of his complaint, appellant alleged that he was entitled to recover survivors’ loss benefits under the No-Fault Act as a result of the deaths of his daughter and mother. Appellee State Farm filed a motion for partial summary judgment as to counts I and II of the complaint. By order dated October 28, 1980, the Honorable Warren G. Morgan granted appellee’s motion and dismissed those counts. The court found as a matter of law that appellant was not financially and economically dependent upon either decedent at the time of death, and therefore, not entitled to recover survivors’ loss benefits under the No-fault Act. No appeal was taken from that order.

In counts III and IV of his complaint, appellant alleged that he was entitled to claim work loss benefits on behalf of the estates of his daughter and mother. By order of March 31, 1982, the Honorable Clarence C. Morrison dismissed counts III and IV of the complaint on State Farm’s motion for summary judgment. This timely appeal followed.

The sole issue raised in this appeal is as follows:

Whether work loss benefits are payable under the Pennsylvania No-Fault Motor Vehicle Insurance Act to the estate of a deceased victim who was not survived by a spouse or other relative dependent upon him for financial support.

Brief for Appellant at 3.

In Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), our court held that a deceased victim’s estate is entitled to work loss benefits. The Pennsylvania Supreme Court, speaking through Mr. Justice Larsen, affirmed our holding in Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983).

Upon a close and careful examination of the No-fault Act, we find no language which precludes the recovery of work loss benefits to the estate of a deceased victim.
Appellant argues that the language, ‘any victim or any survivor of a deceased victim is entitled to recover basic loss benefits,’ demonstrates the legislative intent that only survivors of a deceased victim and not the estate may receive wage loss benefits. Apparently, this is because the estate of a deceased victim is not specifically mentioned.
The appellant’s argument, however, overlooks the very basic and fundamental fact that a person who dies as a result of injuries sustained in a motor vehicle accident is, within the meaning of the No-fault Act, a victim.
That an injured victim is entitled to basic loss benefits under the Act is beyond question. The fact that a ‘victim’ dies as a result of his injuries and becomes, a ‘deceased victim,’ makes him no less a ‘victim’ entitled to benefits under the provisions of the Act. A personal representative in the person of the executor or administrator of his estate stands in the shoes of the deceased victim as far as entitlement to benefits is concerned. The event of a victim’s death activates the rights of statutory survivors to benefits under the Act. However, the activation of survivor’s rights does not diminish or erase the victim’s rights even though he now be a deceased victim. If it was intended that a victim’s right to benefits be extinguished at his death, the legislature could have and would have said so directly.

Id., 504 Pa. at —, 470 A.2d at 960-61 (emphasis in original).

Thus, Freeze has made it clear that the estate of a deceased victim may recover work loss benefits under the No-Fault Act. The order is reversed and the case remanded for disposition not inconsistent with this opinion. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

       'Victim' means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; ‘deceased victim’ means a victim suffering death resulting from injury, [emphasis supplied] Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 103, 40 P.S. §§ 1009.103.

      . Appellee argues that, in any event, the lower court’s order dismissing the work loss claim as to Anna Swayze should be affirmed because "it is clear that [the 84 year old decedent] sustained no work loss which would be recoverable by her Estate.’’ Brief for Appellee at 11. Of course, our holding does not require appellee to pay $15,000 in work loss benefits on behalf of each decedent automatically. Appellant must still meet all the requirements of the Act which necessitate a showing of the losses claimed. See Act of July 19, 1974, P.L. 489, No. 176, Art. II, §§ 201 and 205, 40 P.S. §§ 1009.202 and 1009.205. We hold that appellant should be given the opportunity to make the required showing of loss as to each decedent.


author: McEWEN, Judge:

text:
    476 A.2d 367
    ESTATE OF Marilyn Jane COX, Deceased. Appeal of Winifred POTTS, Veronica Hawthorne, Edward Potts, Alice Mainwaring, Edith Vandergrift and Evelyn Myers.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1983.
    Filed April 6, 1984.
    Petition for Allowance of Appeal Denied Aug. 28, 1984.

      Robert W. Costigan, Philadelphia, for appellants.
    Lawrence Barth, Deputy Attorney General, Philadelphia, for participating party.
    Before McEWEN, BECK and HOFFMAN, JJ.
   McEWEN, Judge:

This appeal was taken from the final decree of the Court of Common Pleas of Bucks County in which the learned Judge Harriet M. Mims ordered the Administrator of the Cox Estate to distribute the assets of the estate to the Commonwealth of Pennsylvania, pursuant to Section 2103(6) of the Intestate Succession Act. Appellants argue that Section 2103(5) of the intestacy statute, which creates two classifications of relatives in the fifth degree of consanguinity with a decedent and permits members of only one of these classifications to inherit, violates the Equal Protection clause of the United States Constitution. We have completed a careful review of the very interesting arguments advanced by appellants but conclude, nonetheless, that the Commonwealth’s intestacy statute does not violate the Equal Protection clause. We affirm.

Marilyn Jane Cox, the decedent herein, died intestate on March 4, 1978, without a spouse, issue, siblings or parents to survive her and left an estate valued at slightly more than $160,000.00. A search for relatives competent to inherit this estate, pursuant to the laws of intestacy of this Commonwealth, was undertaken but no eligible heirs were located. The Intestacy Act provides that, in default of those categories of relatives permitted by statute to take by intestacy, the estate passes to the Commonwealth.

Appellants Alice Mainwaring, Evelyn Myers and Edith Vandergrift, are the first cousins of the father of the decedent and appellants Winifred Potts McAllister, Veronica Hawthorne and Edward Potts, are the first cousins of the mother of the decedent, all six of whom are precluded by the terms of the intestacy statute from inheriting the estate of Marilyn Jane Cox, their first cousin once removed. Appellants assert that the intestacy statute is constitutionally infirm in that it deprives them of equal protection of the laws, Specifically, appellants note that the Act permits one class of first cousins once removed, those related to the decedent in the fifth degree of consanguinity (grandchildren of the aunts and uncles of the decedent), to take by intestacy but precludes intestate inheritance by another class of first cousins once removed who are also in the fifth degree of consanguinity to the decedent, (the children of great aunts and great uncles of the decedent).

It is well settled that there is a strong presumption of constitutionality appended to statutes lawfully enacted by the legislature. Shapp v. Sloan, 480 Pa. 449, 464, 391 A.2d 595, 602 (1978) (plurality opinion), appeal dismissed 440 U.S. 942, 99 S.Ct. 1415, 59 L.Ed.2d 630 (1929); Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977); The School Districts of Deer Lakes & Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (1975); Commonwealth ex rel. Schnader v. Liveright, 308 Pa. 35, 161 A. 697 (1932); Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853); In Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981). Thus, appellant bears the burden of demonstrating that the statute “clearly, palpably and plainly” violates the Constitution. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 154, 425 A.2d 419, 421 (1981) citing Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198, 203 (1975) and Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975). Accord Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 522, 412 A.2d 1094, 1099 (1980); Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932, 937 (1978); Shapp v. Sloan, supra 480 Pa. at 464, 391 A.2d at 602; Milk Control Commission v. Battista, 413 Pa. 652, 696, 198 A.2d 840, 843 (1964) appeal dismissed 379 U.S. 3, 85 S.Ct. 75, 13 L.Ed.2d 22 (1964); Commonwealth v. Walker, 298 Pa.Super. 387, 391, 444 A.2d 1228, 1230 (1982); Freezer Storage, Inc. v. Armstrong Cork Company, 234 Pa.Super. 441, 447, 341 A.2d 184, 186 (1975), aff'd 476 Pa. 270, 382 A.2d 715 (1978); In Re Street, 67 Pa.Cmwlth. 441, 444, 447 A.2d 1052, 1054 aff'd 499 Pa. 26, 451 A.2d 427 (1982); Robson v. Penn Hills School District, 63 Pa.Cmwlth. 250, 255, 437 A.2d 1273, 1276 (1981); Picariello v. Commonwealth, Department of Revenue, 54 Pa.Cmwlth. 252, 255, 421 A.2d 477, 479 (1980); Workmen’s Compensation Appeal Board v. Bethlehem Mines Corp., 23 Pa.Cmwlth. 517, 520, 353 A.2d 79, 80-81 (1976). Doubts are to be resolved in favor of sustaining the legislation. Hayes v. Erie Insurance Exchange, supra 493 Pa. at 154, 425 A.2d at 421; Parker v. Children’s Hospital of Philadelphia, supra 483 Pa. at 115, 394 A.2d at 937. Nonetheless, appellants suggest that a statute which distinguishes, for purposes of inheritance by intestacy, between two sets of relatives of equal degrees of consanguinity violates the Equal Protection clause of the United States Constitution.

When confronted with an equal protection challenge, the court must initially determine the proper level of judicial review to be applied. Where the challenged statute impinges upon a fundamental right or liberty or concerns a “suspect class”, the court is to undertake a “strict scrutiny” of the law. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). An intermediate standard of review, often referred to as “heightened scrutiny” is employed when the questioned statute affects a “quasi suspect” classification. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Finally, where the statutory classification concerns neither a suspect nor quasi suspect category nor fundamental rights or liberties, a minimal standard of review is to be employed: the court is merely to determine whether the statute is rationally related to a legitimate state purpose. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Estate of Kunkel v. United States, 689 F.2d 408 (3rd Cir.1982) (plurality opinion). The challenged classification created by the statute presented for our review is based upon neither race nor alienage and does not involve a fundamental right or liberty; “strict scrutiny”, therefore, is not the appropriate standard of review to be employed. The classification, moreover, is not based upon legitimacy or gender, which would trigger a heightened standard of review. Cf. James v. Southeastern Pennsylvania Transportation Authority, 312 Pa.Super. 512, 459 A.2d 338 (1983) (plurality opinion). It is apparent, therefore, that we must review the constitutionality of the intestacy statute under the rational relationship test, inquiring only into the existence of a proper purpose and means rationally designed to further that goal. This deferential standard mandates only that the statutory classification be “reasonable” and “rest upon a difference having a fair and substantial relation to the object of the legislation.” Snider v. Thornburgh, supra 496 Pa. at 166, 436 A.2d at 596, quoting F.S. Royster Guano Company v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990-91 (1920). Accord: Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 68, 436 A.2d 147, 155 (1981) appeal dismissed sub nom Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982); Hayes v. Erie Insurance Exchange, supra 493 Pa. at 156, 425 A.2d at 422; Kroger Company v. O’Hara Township, 481 Pa. 101, 119, 392 A.2d 266, 265 (1978); Moyer v. Phillips, 462 Pa. 395, 400-01, 341 A.2d 441, 443 (1975). It is recognized that “the Equal Protection Clause of the Constitution does not deny a state the power to treat different classes of persons in different ways”, providing that the classification meets the aforementioned standards. Gravinese v. Johns-Manville Corporation, 324 Pa.Super. 432, 441, 471 A.2d 1233, 1238 (1984).

We first consider whether the Commonwealth had a legitimate purpose in enacting this statute. Appellants do not deny that inheritance of a decedent’s estate by family members occurs only because of the benevolence of the sovereign. However, prior to the promulgation of the Intestate Act of 1947, there was no limit on the remoteness of a relative who could inherit by intestacy; the Commonwealth was entitled to the decedent’s estate only in the absence of known heirs. See Act of June 7, 1917, P.L. 429, § 24. The 1947 Act, however, provided, inter alia, that no ancestor more remote than a grandparent could inherit. Appellants recognize and accept the proposition that the state has a legitimate interest in assuring that the estate of a citizen, who dies without designating the beneficiaries of his property, is distributed in an orderly, accurate and efficient manner. Trimble v. Gordon, 430 U.S. 762, 770, 97 S.Ct. 1459, 1465, 52 L.Ed.2d 31 (1977); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). It may also be presumed that the legislature attempted to anticipate the unstated intent of those citizens who lacked the foresight to provide for distribution of their estate.

Appellants argue, however, that the statute, which does not provide for intestate distribution on the basis of degree of kinship but instead relies on the relationship of the decedent and a claimant to a common ancestor, is not rationally related to these legitimate purposes. We disagree. A statute which limits relatives able to take by intestacy to those who share a common ancestor no more remote than the grandparent of the decedent promotes an orderly and efficient distribution of the estate, as it is obvious that the further back one must trace a relationship, the more difficult it becomes to prove (or disprove) the familial relationship. Further, the statute provides for distribution to those relatives who would be the natural objects of the bounty of the decedent and we do not find that the legislature acted irrationally when it concluded that a decedent who failed to provide explicitly for family members joined through a more remote ancestor, would prefer to return his estate to the sovereign rather than have the fruits of his toil inure to such relations.

Where a legitimate purpose has been identified and a rational relationship between that purpose and the means chosen to foster it has been established, our inquiry into whether the statute violates the equal protection clause is at an end. Estate of Kunkel v. United States, supra at 416; Freezer Storage, Inc. v. Armstrong Cork Company, supra, 234 Pa.Super. at 447-448, 341 A.2d at 187. It is beyond our scope of review to ascertain whether an alternative means would have more appropriately served the sovereign’s purpose. Estate of Kunkel v. United States, supra at 416; McCoy v. Commonwealth, Board of Medical Education & Licensure, 37 Pa.Cmwlth. 530, 542, 391 A.2d 723, 729 (1978). “We will not overturn ... a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, supra, 440 U.S. at 97, 99 S.Ct. at 942, 59 L.Ed.2d 171 (emphasis added). Appellants have not met their burden of showing that the complained of statutory classification lacks a rational relationship to legitimate state interests.

Appellants direct our attention to the fact that, under the provisions of the very same statute which prevents them from participating in the distribution of the estate of Marilyn Jane Cox, the decedent could have inherited from the appellants, had any of them died intestate before her. The mere fact, however, that the statute does not provide for reciprocity in intestate succession does not, under the deferential standard with which we must review this legislative enactment, engender the conclusion that the statute is constitutionally infirm. This statute meets the test of validity under our rational relationship analysis.

Finally, appellants suggest that the adoption of Section 3540(b) of the Probate, Estates and Fiduciary Code eradicates the existence of any rational relationship between the recognized need for orderly distribution of an intestate estate and the selected means of a “cutoff” of intestate inheritance by relatives claiming through a common ancestor more remote than a grandparent of the decedent. It is true that this statute requires only that the court be satisfied that “all reasonable steps have been taken to determine [the possible existence of an additional distributee who would effect the distribution of the estate]”, 20 Pa.C.S. § 3540, but the statute does not purport to resolve the escalating difficulties of establishing or disproving the claims of those who seek inheritance through a more remote ancestor. It is not in our province to interfere with the determination of the legislature that no inquiry into the existence of claims through ancestors more remote than the grandparents of the decedent should be undertaken, for such a determination rationally advances the efficient distribution of the estate.

We have determined that Section 2103 of the Intestate Succession Act does not violate the Equal Protection Clause and, therefore, we affirm the order of Judge Mims.

Order affirmed. Jurisdiction relinquished.

      . The Intestate Succession Act, Act of June 30, 1972, P.L. 508, No. 164, § 2, eff. July 1, 1972, 20 Pa.C.S. § 2101 et seq, as amended, Section 2103 states:
      § 2103. Shares of others than surviving spouse
      (4) Grandparents. If no issue of either of the decedent’s parents but at least one grandparent survives the decedent, then half to the parental grandparents or grandparent or if both are dead, to the children of each of them and the children of the deceased children of each of them, and half to the maternal grandparents or grandparent, or if both are dead, to the children of each of them and the children of the deceased children of each of them, and half to the maternal grandparents or grandparent, or if both are dead to the children of each of them and the children of the deceased children of each of them. If both of the paternal grandparents or both of the maternal grandparents are dead leaving no child or grandchild to survive the decedent, the half which would have passed to them or to their children and grandchildren shall be added to the half passing to the grandparents or grandparent on the other side.
      The share of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse, shall descend in the following order:
      (1) Issue. To the issue of the decedent.
      (2) Parents. If no issue survives the decedent, then to the parents or parent of the decedent.
      (3) Brothers, Sisters, or their Issue. If no parent survives the decedent, then to the issue of each of the decedent's parents.
      (5) Uncles, aunts and their children, and grandchildren. If no grandparent survives the decedent, then to the uncles and aunts and the children and grandchildren of deceased uncles and aunts of the decedent as provided in section 2104(1) of this Code (relating to taking in different degrees).
      (6) Commonwealth. In default of all persons hereinbefore described, then to the Commonwealth of Pennsylvania.
      20 Pa.C.S. § 2103 This statute was amended by the Act of April 18, 1978, P.L. 42, No. 23 § 1, 20 Pa.C.S. § 2103 (1983-1984 Supp.), effective June 17, 1978. The amended statute is applicable only to those descendents dying after June 17, 1978. The decedent herein died on March 4, 1978 and the distribution of her estate is therefore controlled by the earlier version of the Intestate Succession Act.

      . To determine in what degree of consanguinity an individual is related to the decedent, one counts up from the decedent to the common ancestor and then down to the person whose relationship is to be determined. Each generation counts as one degree, both ascending and descending. McDowell v. Addams, 45 Pa. 430, 932 (1863).

      . Allocatur granted, at No. 88 E.D. allocatur docket 1983.

      . It has long been recognized in this Commonwealth that "[t]he right to transmit or to receive property by will or through intestacy is not a natural right but a creature of statutory grant . . . .” In Re Tacks Estate, 325 Pa. 545, 548, 191 A. 155, 156, (1937) and that ‘‘[i]t is only by the grace of the Commonwealth that heirs or legatees are permitted to receive any benefit from a decedent’s toil and energy.” In Re Links Estate, 319 Pa. 513, 516, 180 A. 1, 2 (1935). The Supreme Court of Pennsylvania has therefore concluded that "[the Commonwealth] reserves to itself the right, as it always has, to take the property of a decedent when under its laws there is no one in a position to inherit.” Id., 319 Pa. at 516-17, 180 A. at 2-3.

      . Appellants note, in their brief, that they are unaware of any data which would support such a conclusion. Brief of appellants at 25. “In equal protection cases of this type, however, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be considered to be true by the government decision makers." Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979) (citations omitted). See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981). The Pennsylvania Supreme Court has noted that "legislative classifications will not fail under an equal protection analysis ‘if any state of facts rationally justifying it is demonstrated to or perceived by the courts.'" Springfield School District v. Department of Education, 483 Pa. 539, 568, 397 A.2d 1154, 1169, appeal dismissed, 443 U.S. 901, 99 S.Ct. 3091, 61 L.Ed.2d 869 (1979) quoting United States v. Maryland Savings-Share Insurance Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 17-18, 27 L.Ed.2d 4 (1970) (per curiam) (emphasis in original).

      . Act of June 30, 1972, P.L. 508 No. 164 § 2 effective July 1, 1972, 20 P.S. § 101 et seq. Section 3540 provides in pertinent part:
      (b) Possibility of additional distributees. If the existence of a person or persons would affect the distribution of an estate but there is no proof that such a person ever existed, and the court is satisfied that all reasonable steps have been taken to determine whether such a person existed, the court may award distribution of the estate to those who would be entitled if no such person existed, with or without refunding bonds. Any such bond shall be without security, shall be in such form and amount as the court directs, shall be executed by each distributee and filed with the clerk, and shall provide that if, within seven years or any shorter period fixed by the court, it is later established that there is an additional person or persons entitled to share in the distribution of the estate, the distributee upon demand will return such portion or all of the property received by him as the court may direct or, if it has been disposed of, will make such restitution as the court deems equitable. Section 13 of the Act of July 11, 1980, P.L. 565, No. 118 provides that the provisions of this section "shall take effect immediately and apply to estates and trusts now existing or hereafter arising.” See Official Comment to 20 Pa.C.S. § 3540 (Supp. 1983-1984).


author: HESTER, Judge:

text:
    476 A.2d 374
    COMMONWEALTH of Pennsylvania v. James WHYATT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1983.
    Filed April 6, 1984.

      Eliot Harvey Lewis, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   HESTER, Judge:

Appellant, James Whyatt, was convicted by a jury of solicitation to commit sodomy, forcible rape, burglary and aggravated robbery. The convictions resulted from appellant’s participation with others on March 14, 1973 in the unauthorized entry into the apartment of the victim, the use of deadly weapons to remove personal property therefrom, the gang rape of the victim and the commission of certain grotesque acts of involuntary deviate sexual intercourse with the victim. The victim was three (3) months pregnant at the time.

Following conviction, appellant was sentenced to consecutive terms of imprisonment on each bill, resulting in a combined term of twenty-seven and one-half (27½) to fifty-five (55) years. On appeal from the judgment of sentence, this court affirmed at Commonwealth v. Whyatt, 235 Pa. Super. 211, 340 A.2d 871 (1975). Appellant’s subsequent petition for allowance of appeal was denied by the Pennsylvania Supreme Court on November 7, 1975.

Appellant comes before us again on appeal from the lower court’s denial of his petition for post conviction relief. Appellant alleges several instances of ineffectiveness of trial counsel as grounds for either discharge or a new trial.

Prior to addressing each of trial counsel’s alleged instances of ineffectiveness, we set forth the standard which controls once a counsel’s effectiveness is placed at issue. Of course, the Pennsylvania Supreme Court, in Commonwealth ex. rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), constructed the course repeatedly followed by our courts in reviewing ineffectiveness claims:

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Id., 427 Pa. at 604-605, 235 A.2d at 352

Furthermore, ineffectiveness occurs only where the alternative not selected “offered a potential for success substantially greater than the tactics actually utilized.” Id., 427 Pa. at 605, 235 A.2d at 353, Note 8; Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978).

First, appellant complains that trial counsel did not competently construct an alibi defense. Mrs. Hortense McAlister was the primary defense witness and accounted for most of appellant’s actions on the day of the crime. She first related how appellant, her husband Arthur and her uncle from North Carolina arrived at her house around noon that day. The three men departed soon thereafter but returned together at 2:00 p.m. Prior to the men’s return to Mrs. McAlister’s house, Mrs. McAlister’s sister-in-law, daughter Gloria and grandchild arrived. Then, the entire group departed Mrs. McAlister’s house around 3:30 p.m. or 4:00 p.m. to visit her uncle’s family. Her uncle, Harold Frank, and others from North Carolina were visiting relatives in Philadelphia.

The group traveled to Mrs. McAlister’s sister-in-law’s house, to another residence on 24th Street and then Mrs. McAlister, her husband Arthur, her twelve-year-old son, her daughter Gloria and appellant returned to Mrs. McAlister’s residence where the excursion originated. At 11:00 p.m., Mrs. McAlister prepared supper while the others, including appellant, watched television on the first floor. From 11:00 p.m. on March 14, 1973 until 3:00 a.m. on March 15, 1973, Mrs. McAlister was not continually in appellant’s presence. During that period appellant watched television with Gloria while Mrs. McAlister traversed from the kitchen to the television room. Each time she arrived in the television room, she observed appellant sitting with her daughter. The crime was committed between 10:00 p.m. and 11:00 p.m. on March 14, 1973.

Appellant points out that only Mrs. McAlister and her daughter Gloria were interviewed by counsel. At the post conviction hearing, counsel was asked why he failed to interview Mrs. McAlister’s husband, Arthur McAlister. Counsel explained that Arthur was subpoenaed to appear in court on August 27, 1973, the pre-trial date for appellant’s Motion to Suppress. Arthur McAlister was unable to appear on that date due to his in-patient status at a Philadelphia hospital. Furthermore, according to counsel, neither he nor another attorney from the- Philadelphia Defender’s Association interviewed Arthur prior to that date or at anytime thereafter. Mr. McAlister remained unavailable during both the pre-trial and trial periods due to this illness which required longstanding hospitalization.

Other potential alibi witnesses were Mrs. McAlister’s twelve-year-old son and her relatives from North Carolina. Counsel chose not to interview and call the son due to his belief that the child’s tender years would damage his credibility and diminish his value as a defense witness. Counsel explained that the North Carolina alibi witnesses were never within his control as a result of their nonresident status.

Notwithstanding the defense value of each alibi witness, appellant is of the opinion that counsel’s mere failure to interview Arthur McAlister, his twelve-year-old son and the North Carolina relatives was ineffectiveness in itself. Appellant directs our attention here to three Pennsylvania decisions holding trial counsel ineffective for neglecting to interview potential defense witnesses. In Commonwealth v. Adams, 465 Pa. 314, 350 A.2d 412 (1976), our Pennsylvania Supreme Court granted a new trial due to trial counsel’s failure to interview a witness capable of corroborating defendant’s contention that he fabricated a confession only to relieve himself of the physical beatings inflicted upon him by interrogating detectives. According to the Adams Court, ineffectiveness was demonstrated by the fact that “no conceivable trial strategy would have warranted the failure to introduce available evidence corroborating appellant’s testimony about the alleged police beatings.” Id., 465 Pa. at 322, 350 A.2d at 416. Moreover, the Adams Court noted that corroborating witnesses are particularly important where, as in that matter, the defendant’s testimony is measured against the contradictory testimony of Commonwealth witnesses.

Once again, as appellant correctly points out, our Pennsylvania Supreme Court, in Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976), found ineffectiveness where trial counsel failed to interview potential corroborating witnesses. It was immaterial that counsel chose not to conduct an interview because he believed that the potential witnesses were hostile. As the Mabie Court explained:

However hostile these witnesses may have appeared to be, there is no basis for the decision neither to interview them nor to attempt to do so. While hostile witnesses at trial may have presented added difficulties to appellant’s case, the question here is the decision not to interview them, not the decision to refrain from calling them at trial. Accordingly, there was no danger of hostile witnesses inflaming a jury during an interview to determine what each saw and their degree of potential hostility. Id., 467 Pa. at 475, 359 A.2d at 374.

Finally, in Commonwealth v. Williams, 273 Pa.Super. 147, 416 A.2d 1132 (1979), trial counsel did not interview witnesses because he believed that their testimony would be adverse to the defense. In following the Pennsylvania Supreme Court in Mabie, the Williams Court was unimpressed with the harmless consequences of counsel’s failure to interview.

We agree with appellant insofar as recognizing that, a counsel’s failure to interview potential defense witnesses may constitute ineffectiveness. However, Adams, Mabie and Williams did not hold that the failure to interview prospective defense witnesses is per se ineffectiveness. Indeed, this court in Commonwealth v. Barren, 273 Pa.Super. 492, 417 A.2d 1156 (1979), interpreted the Mabie decision accordingly:

[Mabie] should not be indiscriminately expanded to require defense counsel upon the threat of being declared ineffective, to interview all conceivable witnesses irrespective of the nature or extent of the potential information. Trial counsel’s failure to interview potential witnesses will not be equated with ineffective assistance in the absence of a showing that his or her testimony would have advanced the fact finding process. Id., 273 Pa.Superior Ct. at 498-499, 417 A.2d at 1159, citing Commonwealth ex rel. Washington v. Maroney, and Commonwealth v. Yarbough, 248 Pa.Super. 356, 375 A.2d 135 (1977); overruled on unrelated grounds, 501 Pa. 493, 462 A.2d 233 (1983).

Barren, then, qualifies and refines the decisions in Adams, Mabie and Williams by espousing the proposition that there must be some showing that the witnesses not interviewed were equipped with information which might expand the admissible evidence.

In Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980), in relying on Barren’s interpretation of the aforementioned cases, this Court declined to hold trial counsel ineffective for choosing not to interview prospective witnesses whose testimony was neither exculpatory nor probative. See also Commonwealth v. Womack, 307 Pa. Super. 396, 453 A.2d 642 (1982) for a demonstration of the need to show the usefulness of a pre-trial interview prior to finding ineffectiveness for failure to conduct said interview.

Here, counsel did not interview Hortense McAlister’s twelve-year-old son due to his belief that the child’s minority tarnished his credibility. Arthur McAlister’s interview was never conducted, according to counsel, because of Mr. McAlister’s lengthy and serious illness throughout the lower court proceedings. Finally, the unavailability of the remaining prospective alibi witnesses, who were residents of North Carolina, made their interview impractical and burdensome. We recognize, of course, that the difficulty alone in arranging an interview of nonresident witnesses may not justify foregoing use of their testimony at trial; nevertheless, there were additional grounds here which warrant consideration and preclude a finding of ineffectiveness.

First, counsel believed that the testimony of Arthur McAlister, his twelve-year-old son and nonresident relatives was cumulative to the testimony of Hortense McAlister, the sole alibi witness presented at trial. According to counsel, Hortense would account for appellant’s actions over a continuous period from 2:00 p.m. until 11:00 p.m. on the day of the crime. This period included the critical period from 10:00 p.m. to 11:00 p.m., the hour during which the victim was sexually abused and robbed and her apartment ransacked. Although Mrs. McAlister was not continuously within appellant’s presence from 11:00 p.m. until 2:00 a.m. (March 14th to March 15th), counsel did not consider that a critical or dispositive fact. First, the crime was completed prior to appellant no longer being in Mrs. McAlister’s continuous presence. Secondly, although Mrs. McAlister was not with appellant during every moment of the three-hour period from 11:00 p.m. to 2:00 a.m., she was convinced that he never left her residence. She explained that she was intermittently in his presence during that period as she entered the television room during respites from domestic chores. Insofar as the uncalled alibi witnesses could offer only cumulative testimony, counsel’s decision not to interview all prospective alibi witnesses, then, did have a reasonable basis toward furthering his client’s interest. More importantly, appellant offers no explanation of how the excluded witnesses could have contributed to the evidence introduced at trial.

Appellant’s second allegation of ineffectiveness is counsel’s failure to call the aforementioned uninterviewed witnesses and Gloria McAlister for trial. Counsel’s basis for not interviewing the aforementioned alibi witnesses similarly applies to his decision not to call them and Gloria McAlister for trial. We are compelled, however, to address an additional argument raised by appellant. Appellant makes much ado of this court’s opinion at Commonwealth v. Whyatt, supra, wherein we sanctioned the lower court’s charge allowing the jury to draw an adverse inference from the fact that counsel did not call the aforementioned prospective alibi witnesses for trial. In that appeal from the judgment of sentence, we affirmed the lower court’s finding that there were gaps in Hortense McAlister’s testimony which could have been filled by those witnesses not called; therefore, the excluded witnesses’ testimony was not cumulative. Where there are witnesses completely in control of one party whose testimony would not merely be cumulative to the testimony of witnesses utilized at trial, and these witnesses are not called to testify at trial, then the jury can infer that those witnesses would offer testimony adverse to that party’s case. Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974).

Appellant contends, therefore, that counsel was not justified in excluding Arthur McAlister, his twelve-year-old son, the North Carolina residents and Gloria McAlister as witnesses on the basis that their testimony was merely cumulative. After all, as appellant correctly points out, the lower court, whose judgment of sentence was affirmed by this Court, allowed an adverse inference charge on grounds that the testimony of these excluded witnesses was indeed not cumulative.

Although this argument appears formidable, we do not consider it relevant to this appeal from the denial of post conviction relief. It is counsel’s belief which dictates the disposition of an ineffectiveness claim. Counsel testified at the post conviction hearing that he disagreed with both the lower court and this Court’s opinion that the testimony of the excluded witnesses could fill the gaps in Hortense McAlister’s testimony. Counsel agreed that there was a period following the crime during which appellant and Hortense were not in each other’s company; however, for most of the day and throughout the entire period during which the crime was committed, counsel asserted that Hortense could account for appellant’s every movement. This was counsel’s position throughout the lower court proceedings. Nothing in the record indicates that at the time of trial counsel was unreasonable in assuming this position. It is inappropriate in this review of a claim of ineffectiveness to consider the trial court’s adverse inference charge and this Court’s affirmance of the judgment of sentence as evidence supplanting counsel’s basis for excluding certain alibi witnesses. To do so would be an improper application of hindsight, a tool unavailable to counsel at trial. Additionally, counsel’s decision not to call Gloria McAlister was further predicated upon his analysis of her demeanor, appearance, relationship with appellant and testimony itself. Counsel testified at the post conviction hearing that he routinely considered these factors in deciding whether to call a witness. We conclude, therefore, that counsel did have a reasonable basis for not calling these witnesses for trial.

For those reasons enumerated above, we also reject appellant’s argument that counsel was ineffective for failing to give proper notice to the Commonwealth of potential alibi witnesses Arthur McAlister, his twelve-year-old son and the North Carolina residents. (Counsel did notify the prosecution of potential alibi witnesses Hortense McAlister and Gloria McAlister). Counsel had a reasonable basis for concluding that these witnesses could offer testimony which was strictly cumulative in nature; therefore, he could reasonably believe that not to notify the prosecution of their role in the defense would not precipitate an adverse inference charge.

Appellant also contends that counsel was ineffective in failing to prepare for cross examination of Artie Simpson, appellant’s accomplice who testified for the prosecution. The prosecutor notified counsel prior to trial that Artie Simpson would be presented as a Commonwealth witness. Counsel did not believe Artie would testify despite this notice. This belief was premised upon the fact that counsel’s perusal of the visitor registration book, at the prison where Artie Simpson was detained, did not contain the signature of the prosecutor. Consequently, it appeared to counsel that Mr. Simpson was never interviewed by the prosecution. Also, counsel testified that Mr. Simpson informed him that he would not testify and that appellant was innocent. This belief was counsel’s basis for not preparing alternative counsel for trial; he did not expect to withdraw as counsel in order to present himself as an impeachment witness.

At trial, when Mr. Simpson was presented as a prosecution witness, counsel sought permission to testify against Mr. Simpson. Counsel intended to remain as counsel, yet to temporarily withdraw to serve as a witness for impeachment purposes only. When the court granted permission for counsel to testify, providing he withdrew completely from the case, counsel opted not to offer himself as an impeachment witness. Counsel testified at the post conviction hearing that he believed the danger of calling an unprepared replacement counsel outweighed his need to testify as an impeachment witness. Counsel also explained why he did not aggressively attack Mr. Simpson’s credibility on cross examination:

Q. In that case did you consider cross-examining Artie Simpson as to his prior inconsistent statements?
A. Yes.
Q. Did you cross-examine him?
A. To a very small portion.
Q. Why didn’t you cross-examine him extensively on the subject?
A. Basically because I was concerned as to why he changed his testimony. You must remember the District Attorney’s office has essentially said or told the world that there were no promises or threats made to Mr. Simpson to testify. Mr. Simpson was in the cell room in the same same block that Mr. Whyatt was in when I interviewed him. My client had informed me beforehand that Mr. Simpson was not going to testify and that he had admitted that Mr. Whyatt was not with him and when I interviewed Mr. Simpson he told me the same things. I was concerned that Simpson’s statement in front of the jury may have been he was threatened by Mr. Whyatt and that is the reason why he told me a lie. I wasn’t going to touch that without knowing what the answer was so I didn’t do it. If he came out with that, I figure I was down the drain and so was Mr. Whyatt in front of the jury so I did not go into that and that’s the reason I felt that a mistrial should have been granted. (N.T.P.C. H.A., pp. 48-49, November 5, 1980)

Appellant maintains, however, that irrespective of the basis for counsel’s disbelief that Mr. Simpson would appear as a prosecution witness, and irrespective of the grounds for his tentative cross examination, counsel was nevertheless ineffective for not asking appellant himself whether he had threatened Mr. Simpson. Whether appellant had actually threatened him is irrelevant. Counsel was concerned, and reasonably so, with whether Mr. Simpson would testify that appellant’s threats encouraged him to inform counsel that appellant was innocent and that he would not serve as a prosecution witness. Fear of what Mr. Simpson would relate on cross examination would not necessarily be assuaged by appellant’s denial of having threatened him. Therefore, to question appellant would be a meaningless gesture, the nonpursuit of which cannot be deemed ineffectiveness.

Next, appellant asserts that counsel’s trial tactics were abrasive and offensive, thereby degrading appellant’s position in the jurors’ minds. Appellant draws our attention to counsel’s displeasure, expressed in facial contortions directed to the jury, with several of the court’s rulings during trial. On one occasion, counsel responded to a ruling with: “You have got to be kidding me.” We do not endorse such behavior, nor do we make light of it. It was obviously severe enough to prompt reprimands from the bench, outside the jury’s presence. Counsel explained his strategy in employing such behavior at the post conviction hearing:

A. Mr. Lewis, I believe in front of the jury anything that can get your impression to that jury is important when you’re representing a person and if the impression I wanted to give to that jury was absolute and utter disgust that I was having, I thought that was important, I would do it. I don’t, however, agree that all of the things that Judge Ribner said were correct.
Q. You mean his ruling or his descriptions of what you were doing?
A. His descriptions of what I was doing. I believe if his descriptions were accurate, I would have been held in contempt. There are subtle ways of doing the things he suggested I did and I would suggest to you that I probably took the subtle approach or I would have been held in contempt.

(N.T.P.C.H.A., pp. 51-52, November 5, 1980).

Due to the fact that counsel genuinely believed that this particular jury would respond positively to his gestures of displeasure, we cannot conclude that such strategy had no reasonable basis designed to promote appellant’s case.

Finally, appellant contends that counsel was ineffective for failing to investigate whether the testimony of Artie Simpson was coerced by the prosecution. According to appellant, his counsel at sentencing, Thomas Branca, made a notation in the file that he believed that Simpson was pressured by the Commonwealth into testifying against appellant. This notation followed Mr. Branca’s conversation with an assistant district attorney who handled the prosecution at the pre-trial and post-trial stages.

This contention is devoid of merit. First, appellant does not demonstrate that this information was available to counsel at the time of the lower court proceedings prior to sentencing. Secondly, at the conclusion of the post conviction hearing on February 11, 1981, the trial prosecutor stipulated for the record that he was not under the impression that Mr. Simpson was compelled to testify, that no one in fact compelled him to testify and that he had no reason to believe that he was compelled to testify. Therefore, it confounds logic to attribute to counsel the knowledge or the reason to know that Mr. Simpson was coerced into testifying for the prosecution.

Order denying the petition for post conviction relief is affirmed.


author: SPAETH, President Judge:

text:
    476 A.2d 381
    COMMONWEALTH of Pennsylvania v. Emanuel BROWN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1983.
    Filed April 13, 1984.

      Robert M. Fellheimer, Doylestown, for appellant.
    Thomas J. Short, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before SPAETH, President Judge, and GRILLO and JOHNSON, JJ.
   SPAETH, President Judge:

This is an appeal from a judgment of sentence for burglary, criminal trespass, and criminal conspiracy. When the trial judge refused to appoint counsel to represent appellant at trial, appellant represented himself. Appellant argues that he was denied his constitutional right to counsel. We agree and therefore vacate the judgment of sentence and remand for a new trial.

On July 25, 1982, at about 2:45 a.m., police officers responding to an activated burglar alarm found appellant and his nephew in a storage room at the Blair Mill Village Mall in Montgomery County. Appellant was holding a bag of women’s clothing. He was arrested and charged with burglary, criminal trespass, and criminal conspiracy. On September 27, 1982, appellant asked the Montgomery County Public Defender to represent him. The Public Defender refused, and on October 28 appellant appeared before the President Judge of the trial court without counsel. When the attorney from the Public Defender’s office stated that appellant was “not qualified for a public defender”, N.T. 10/28/82 at 2, the President Judge continued appellant’s case to November 8, telling appellant that “you are going to have to obtain private counsel or go to trial without one”, id,, at 2. However, on November 8 appellant again appeared without counsel. The trial judge, after questioning the attorney from the Public Defender’s office and appellant, found that appellant was not eligible for court-appointed counsel, and ordered that the trial should proceed. Appellant represented himself, and was found guilty on all charges. The Public Defender did represent appellant on post-trial motions and at sentencing, and filed this appeal. Appellant asked the Public Defender to discontinue representing him, and at the request of the American Civil Liberties Union, private counsel entered his appearance on appellant’s behalf, and acting pro bono, has briefed and argued this appeal.

When appellant first appeared before the trial court without counsel, on October 28, 1982, the following colloquy ensued:

THE COURT: Now, Mr. Brown [appellant], do you have a lawyer?
THE DEFENDANT: No, Your Honor.
THE COURT: Why is that?
THE DEFENDANT: I can’t afford one. I tried the Public Defenders, but they did not — I don’t have the funds to obtain private counsel.
THE COURT: You say you applied to the Public Defenders?
MR. CONVER [attorney from Public Defender’s]: He’s not qualified for a public defender, Your Honor.
THE COURT: Then you are going to have to obtain private counsel or go to trial without one, either one or the other. You are employed, are you not?
THE DEFENDANT: Well, yes.
THE COURT: What kind of work do you do?
THE DEFENDANT: I work nights at a club.
THE COURT: What do you do there?
THE DEFENDANT: I’m the night manager.
THE COURT: Where is that club located?
THE DEFENDANT: Northwest Philadelphia.
THE COURT: Do you have any other income aside from that?
THE DEFENDANT: No.
THE COURT: How much do you earn there?
THE DEFENDANT: About $100 a week.
THE COURT: Do you own an automobile?
THE DEFENDANT: Yeah.
THE COURT: What kind of a car do you have?
THE DEFENDANT: 1970 Cadillac.
THE COURT: Well you have no choice, Mr. Brown. You are either going to trial with a lawyer or without one, but we are not paying for one. If you can afford a lawyer then you engage counsel. Do you want some time to hire a lawyer?
THE DEFENDANT: I don’t have the funds.
THE COURT: I didn’t ask you that. If you want to engage a lawyer of your own, you are going to have to work some arrangements with a lawyer in regard to paying him.
THE DEFENDANT: I’ll do the best I can.
N.T. 10/28/82 at 2-4.

When appellant next appeared before the trial court, on November 9, 1982, again without counsel, the trial judge asked appellant whether he wanted to go to trial without counsel. Appellant replied that he had asked Albert Becker, an attorney who had represented him before, to represent him but that Mr. Becker was not available to defend him. The trial judge replied: “Mr. Becker is not the only lawyer in the world.” Appellant said: “No, he isn’t, but what I’m saying, Your Honor, is that I didn’t have sufficient funds to retain the services of counsel. So, consequently, what happened was, I contacted the public defender’s office here in the Courthouse and they denied me. Naturally, after I was denied counsel from the public defender’s office, I had to appear in court [on October 28] in front of President Judge Lowe.” N.T. 11/9/82 at 4. The trial judge then asked the attorney from the Public Defender’s office to explain why appellant had been denied representation. The attorney explained:

First of all, he made the five hundred dollars bail in this case, Your Honor. The defendant is working, making a net of a hundred bucks a week at a nightclub____ He is also owner of a ’70 Cadillac in this regard.
As is stated, he had only made one attempt to obtain private counsel, and that was Albert Becker.
Because of the bail money, which is over four hundred dollars he’d get back, the fact that he’s working, and the fact he has no dependents, that hundred dollars all goes to him and not to anybody else. The rent is only a hundred and sixty dollars a month. It’s the only outstanding liability we saw in this matter. And because of the car he had, he could sell that or he might have obtained a bank loan.
I know if a person is working with bail money, unless he goes to approximately four or five attorneys and shows that the fees that they have charged are way beyond his means, we will not qualify him.
N.T. 11/9/82 at 6.

Appellant explained that his mother had posted the bail, and that the day before appearing for trial he had asked another attorney to represent him but that that attorney had demanded a $4,000 retainer. The trial judge thereupon ordered that the case should proceed to trial:

THE COURT: I’m going to direct this matter proceed to trial. In my judgment, the record supports the finding that Mr. Brown does not qualify for representation by the public defender.
He is gainfully employed, apparently has been for a number of years. He owns an automobile. And in view of the fact that he was advised as of, I assume, late September that he did not qualify—
MR. WALSH [the attorney from the Public Defender’s office]: That’s correct Your Honor.
THE COURT: He was informed of that judgment on September 27th, 1982—
MR. WALSH: That’s correct.
THE COURT: —and it’s now November 9th, 1982, so he was well aware of the fact that if he was to be represented, it was his responsibility to engage counsel.
The Court notes that there are many, many young lawyers who are involved in the defense of criminal cases who would more than gladly represent the defendant at a reasonable rate of compensation, and that arrangements could be made for deferred payments and all the rest of it. It seems to me that Mr. Brown has not fully explored those possibilities. And, so, I am going to direct this matter proceed to trial.
N.T. 11/9/82 at 11-12.

The United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. An accused unable to afford counsel has the right to have counsel appointed for him. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This right extends to everyone charged with an offense punishable by imprisonment, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and is binding upon the states, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

In recognition of the right to counsel, the Public Defender Act, Act of Dec. 2, 1968, P.L. 1144, No. 358, 16 P.S. § 9960.1 et seq., requires the Public Defender to “be responsible for furnishing legal counsel [in certain cases] to any person who, for lack of sufficient funds, is unable to obtain legal counsel. . . .” 16 P.S. § 9960.6(a). In addition, Rule 316(b) of the Rules of Criminal Procedure provides:

In all court cases counsel shall be assigned prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel.

“The public defender, after being satisfied of the person’s inability to procure sufficient funds to obtain legal counsel to represent him, shall provide such counsel.” 16 P.S. § 9960.6(b).

In some states there are statutory guidelines by which a defendant’s ability to procure counsel is determined, but in Pennsylvania the Public Defender Act provides no such guidelines, nor do the Rules of Criminal Procedure. As a result, it would seem, each county may have different guidelines, or no guidelines at all. In this regard, a nationwide survey conducted by the National Legal Aid and Defender Association (NLADA) revealed that

there is little uniformity among judges in the importance they attribute to various factors usually considered in the determination of eligibility. Thus the same defendant may be considered indigent in one county but ineligible in an adjacent jurisdiction simply due to judicial idiosyncrasies.

NLADA, The Other Face of Justice (1973).

The American Bar Association has also commented on this lack of uniformity:

Perhaps because statutes concerning eligibility are written in general terms, there are considerable disparities in eligibility determinations among the states and sometimes within the same state. The problem is exacerbated by the fact that in many areas of the country no principles or rules of any kind have been developed to implement broad statutory definitions of eligibility.
ABA Standards for Criminal Justice, 5-6.1 Commentary (footnote omitted).

Pa.R.Crim.P. 317 does contain an application form to be signed by a defendant who wishes court-appointed counsel:

Rule 317. Application Form for the Assignment of Counsel
The applicant _ residing at _ shows that: 1. I am named a defendant in the above entitled criminal cause of action alleging that I did commit the crime of_at the_of_in the County of _and State of Pennsylvania, on the_day of -, 19—
2. I am unable to obtain counsel to defend me in this matter for the reason that ___
3. I am unable to obtain funds from anyone, including my family and associates, by way of compensation for counsel and represent that the answers to the following questions are true to the best of my information and belief:
a. Do you have any money? If so, how much?
(1) On the person
(2) In custody of the Warden
(3) In the bank
(4) At home
(5) Elsewhere
b. Do you own an automobile?
(1) Year and make
(2) Cost
(3) I owe $___to
(4) It is now at
c. Do you own any real estate?
d. Do you own any other property or do you have any other assets? (If answer is “yes” furnish description thereof and specify its present location):
e. Does anyone owe you money? If yes, give the person’s name and address and the amount he owes you:
f. If married, what is name, age and address of your (wife) (husband)?
(1) When did you last live with your (wife) (husband)?
(2) Does your (wife) (husband) work?
(3) What is name and address of (her) (his) employer?
g. Do you have any children? (Give names, ages, and addresses.)
h. What is your home address?
i. Where did you work last?
j. What is your Social Security Number?
k. What salary or wages were you receiving?
l. What was the total amount of your income during the past 12 months?
m. Is there a job waiting for you? (Specify)
4. (Line out a or b, whichever does not apply)
a. I am presently in jail and unable to obtain bail.
b. I am presently released from jail on bail in the amount of $_ The cost of such bail was defrayed and paid by_, in the sum of $_
5. I have not previously been represented by an attorney in court except (give name of attorney, name of case in which you were represented and state whether or not your attorney was paid in this case and by whom.) WHEREFORE, petitioner prays:
That this Honorable Court assign counsel to represent (him) (her) in the above entitled criminal cause of action without fee or cost to the defendant.
COMMONWEALTH OF PENNSYLVANIA \ COUNTY OF............................f
SS
_, being duly sworn according to law, upon (his) (her) oath, deposes and says:
1. I am the petitioner in the above entitled action.
2. I have read the foregoing petition and know the contents thereof and the same are true to my own knowledge, except as to matters therein stated to be alleged as to persons other than myself, as to those matters I believe it to be true.
3. This affidavit is made to inform the Court as to my status of indigency and to induce the Court to assign counsel to me as an indigent defendant for my defense against the criminal charges that have been made against me.
4. In making this affidavit I am aware that perjury is a felony and that the punishment is a fine of not more than $15,000 or imprisonment for not more than seven years or both.
(Signature of Defendant)
Subscribed and sworn to before me this _ day of --, 19—

Obviously, this form is incomplete, and it should therefore not be the exclusive means of determining a defendant’s eligibility. The Public Defender Act allows the court to consider such information as may be required by the court to make a proper determination. 16 P.S. §§ 9960.6(b). Of special importance is consideration of information about the defendant’s liabilities. (The form provided in Rule 317, it will have been noted, asks only whether the defendant owes any money on an automobile.) As Justice DOUGLAS said in his concurring opinion in United States v. Kahan, 415 U.S. 239, 244-45, 94 S.Ct. 1179, 1181-82, 39 L.Ed.2d 297 (1974):

This Court in passing on applications to proceed in forma pauperis looks not only to what the applicant’s income and/or cash position is but what his periodic liabilities are. Thus a person with an income of $600 a month has been allowed to proceed in forma pauperis where his present obligations consume his entire income. The mere fact that one has money in the bank is therefore not enough to make frivolous his claim of indigency for purposes of in forma pauperis.

In addition to considering the defendant’s liabilities, the court should consider the cost of representation for the crime charged. See: NLADA, Standards for Defender Services 2.1(c); National Advisory Commission (NAC), Criminal Justice Standards and Goals 13.2(2).

Although the form provided by Pa.R.Crim.P. 317 includes a statement regarding the defendant’s ability to “obtain funds from everyone, including [the defendant’s] family and associates,” the ABA has disapproved of requiring such a statement: “Since an eligible individual has a constitutional right to counsel, it is obviously unfair — perhaps even unconstitutional — to deny counsel because of financial resources of relatives or friends.” ABA Standards for Criminal Justice 5 — 6.1 Commentary and cases cited therein. Accord: NAC, Standard 13.2(1); NLADA, National Study Commission Recommendations 1.5(a): NLADA, Standards for Defender Services 2.1(b). See generally, 51 A.L.R.3d 1108 § 4. In addition, the ABA has stated that “[c]ounsel should not be denied merely because ... bond has been or can be posted.” ABA Standards for Criminal Justice 5-6.1.

The ability to post bond is rejected as a basis for denying counsel because it requires the accused to choose between receiving legal representation and the chance to be at liberty pending trial. Since a person’s freedom prior to trial often is essential to the preparation of an adequate defense, placing the defendant in this dilemma is arguably a denial of the effective assistance of counsel. ABA, Standards for Criminal Justice 5-6.1 Commentary (footnotes omitted).

In this case, nothing in the record suggests that either the Public Defender or the trial court used any guidelines by which to determine appellant’s eligibility for court-appointed counsel. If indeed there are no guidelines, it is to be regretted, for the result can only be lack of uniformity, which is to say, arbitrariness, in determining eligibility. Nor does the record suggest that even the form contained in Pa.R.Crim.P. 317 — imperfect as that form is— was used. Nevertheless, it is plain from the limited inquiry that was made that appellant was eligible. We have already noted what that inquiry consisted of, and have quoted most of it verbatim. At this point, therefore, we need only summarize it.

On October 28, 1982, when appellant first appeared for trial, the attorney from the Public Defender’s office stated to the court that “[h]e’s not qualified for a public defender” but gave no explanation of the basis for this conclusion. The court then determined by questioning appellant that appellant “work[ed] nights at a club”, earned “[a]bout $100 a week,” and owned a “1970 Cadillac.” It is evident that this was insufficient information on which to make a determination of eligibility, for it disclosed nothing regarding appellant’s liabilities.

On November 9, 1982, when appellant again appeared for trial, and was required to go to trial without counsel, the court learned very little more than it had on October 28th. The attorney for the Public Defender’s office repeated the information regarding appellant’s earnings and automobile, adding that appellant “made the five hundred dollars bail in this case.” The attorney from the Defender then added that “[b]ecause of the bail money, which is over four hundred dollars he’d get back, the fact that he’s working, and the fact that he has no dependents, that hundred dollars all goes to him and not to anybody else. The rent is only a hundred and sixty dollars a month. It’s the only outstanding liability we saw in this matter. And because of the car he had, he could sell that or he might have obtained a bank loan.”

We cannot understand how someone supposed to represent indigent persons could make this statement, nor how the trial court could on the basis of it have denied appellant court-appointed counsel. In the first place, the statement was wrong: as appellant stated — and his statement was uncontradicted — his mother, not he, had posted the $500 bail. Therefore, putting aside the question whether appellant’s eligibility should depend on his bail status, it was his mother, not he, who would get most of the $500 back. In the second place, while the statement recited, it ignored appellant’s liabilities. If one deducts appellant’s monthly rent of $160 a month from his earnings of $100 per week— earnings, say, of $400 odd a month — the conclusion is that appellant had left some $60 a week, or about $10 a day, from which to buy food and clothing and to pay for his transportation. Finally, the suggestion that appellant “could sell that [his 1970 Cadillac] or he might have obtained a bank loan” strikes us as either callous or misinformed or both. How much in fact could appellant realize from selling his 12 year old Cadillac? (What sort of condition was it in?) If he did sell it, how would he get to work? And what bank would loan what amount of money to appellant, and on what security? No one on the record asked these questions, and nothing in the record answers them.

The only other justification offered by the attorney from the Defender for refusing to represent appellant was that appellant “had only made one attempt to obtain private counsel, and that was Albert Becker. . . . I know if a person is working with bail money, unless he goes to approximately four or five attorneys and shows that the fees that they have charged are way beyond his means, we will not qualify him.” If this statement meant — and we are by no means sure we understand it — that with the bail money “he’d get back”, appellant could retain private counsel, it ignored the fact that the bail money was not appellant’s but his mother's. In addition, nothing of record suggests that private counsel would have agreed to represent appellant for so small an amount. But even if private counsel would have so agreed, it was immaterial; an accused is not to be denied court-appointed counsel because, while he cannot afford counsel, his mother can. And finally, if the statement meant that it was the Defender’s practice not to represent an accused in appellant’s financial position until after the accused had unsuccessfully attempted to persuade “four or five” private attorneys to represent him, it was a confession that the Defender’s practice was to seek to have others assume its responsibilities. The Public Defender Act requires the Defender — not the private bar— to “be responsible for furnishing legal counsel” to an accused “who, for lack of sufficient funds, is unable to obtain legal counsel”, 16 P.S. § 9960.6(a). The trial judge should have ordered that responsibility fulfilled. Instead, by “not[ing] that there are many, many young lawyers who are involved in the defense of civil cases who would more than gladly represent the defendant at a reasonable rate of compensation, and that arrangements could be made for deferred payments and all the rest of it”, the trial judge condoned the Defender’s default.

It remains only to discuss the Commonwealth’s argument that appellant waived his right to counsel. For this proposition, the Commonwealth relies on Commonwealth v. Wentz, 280 Pa.Super. 427, 421 A.2d 796 (1980).

In Wentz, we held

that a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel.

Id., 280 Pa.Superior Ct. at 434, 421 A2d at 800 (emphasis added).

In Wentz, the appellant had no reasonable excuse: his excuse for appearing without counsel was “that he was from another county and didn’t know any attorneys ‘around here.’ ” Id., 280 Pa.Superior Ct. at 431, 421 A.2d at 798. But appellant’s excuse could not have been more reasonable: he was unable to afford counsel. Moreover, in Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-70, 202 A.2d 303, 305 (1964), the Court held that there must be “a penetrating and comprehensive examination of all the circumstances under which such [waiver of the right to counsel] is tendered,” quoting from Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Here, the court conducted no such examination, instead accepting the Defender’s assertions that appellant was ineligible for court-appointed counsel, without either asking how appellant could afford counsel when he had only about $10 a day to feed and clothe himself, or considering how possible it really was that appellant could pay counsel from the bail money, or from the proceeds of selling the 1970 Cadillac, or from a bank loan. The argument that appellant waived his right to counsel is therefore without merit.

The judgment of sentence is vacated and the case is remanded for new trial. If appellant continues to desire court-appointed counsel, the trial court shall conduct a hearing, consistent with this opinion, to determine his eligibility for such counsel. Jurisdiction is relinquished.

      . On post-trial motions and at sentencing, the Public Defender did represent appellant, and appellant also argues that he was denied effective assistance of counsel and that his sentence was excessive. We need not address these issues.

      . The court may "for cause” appoint counsel other than the Public Defender. 16 P.S. § 9960.7.

      . See: Alaska Stat. § 18.85.120; Ga.Code Ann. § 17-12-10; Idaho Code § 19-854; Ky.Rev.Stat. § 31.120; Vt.Sta.Ann. title 13 § 5236;' Wyo.Stat. § 7-1-112.

      . In some states it is required by statute that there be consideration of the defendant’s liabilities. See, e.g.: Alaska Stat. § 18.85.120; Ga.Code Ann. § 17-12-10; Idaho Code § 19-854; Ky.Rev.Stat. § 31.120; Vt. Stat.Ann. title 13 § 5236; Wyo.Stat. § 7-1-112. See also: ABA Standards for Criminal Justice 5-6.1 Commentary; Model Public Defender Act, National Conference of Commissioners on Uniform State Laws § 4.

      . Some state statutes provide that release on bail should not preclude a finding of need. See: Alaska Stat. § 18.85.120; Ga.Code Ann. § 17-12-10; Idaho Code § 19-854; Ky.Rev.Stat. § 31.120; Vt.Sta.Ann. title 13 § 5236; Wyo.Stat. § 7-1-112. See also: NAC, Standard 13.-2(3); NLADA, Standards for Defender Services 2.1(b); NLADA, National Study Commission Recommendations 1.5(a). See generally, 51 A.L.R.3d 1108 § 5.