author: CIRILLO, Judge:

text:
    652 A.2d 378
    COMMONWEALTH of Pennsylvania v. Larry G. KELLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1994.
    Filed Dec. 28, 1994.

      George B. Stegenga, Washington, for appellant.
    Ralph C. Warman, Dist. Atty., Uniontown, for appellee Com.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

Larry G. Kelley appeals from a judgment of sentence entered in the Court of Common Pleas of Fayette County following his conviction of driving under the influence of alcohol. 75 Pa.C.S.A. § 3731(a)(1). We reverse.

On October 23, 1992, at approximately 1:30 a.m., Sylvia Panzone, an emergency medical technician, was driving on Tippecanoe Road when she came across a one-vehicle accident. A car had landed in an embankment on the side of the road; its headlights were on. Panzone called the fire department and returned to the scene. She observed Kelley in the front seat of the vehicle slumped over the steering wheel. The passenger door was locked, and the driver’s door was against the embankment.

An ambulance arrived and Dan Hall, one of the ambulance personnel, punched out the passenger window. After the door was opened, both Panzone and Hall smelled a strong odor of alcohol. Panzone stated that, as she got closer to Kelley’s face, the alcohol odor was overwhelming. Hall also smelled a strong odor of alcohol on Kelley when the two were in the ambulance together.

Trooper David G. Fordyce arrived at the scene at approximately 2:15 a.m. He described Tippecanoe Road as a two lane, hilly, winding, country road with a 55 mile per hour speed limit.' He stated that at the location of the accident, the westbound lane curves to the right, and that if one failed to negotiate that curve, his or her vehicle would hit the embankment. Trooper Fordyce noticed a strong odor of alcohol in Kelley’s vehicle and found a beer bottle on the floor in front of the passenger seat. Trooper Fordyce arrived at Brownsville Hospital just before 3:00 a.m„ at which time he spoke with Kelley. While questioning Kelley, Trooper Fordyce smelled a strong odor of alcohol, observed bloodshot eyes, and noted that Kelley had slurred and incoherent speech. Kelley admitted to Trooper Fordyce that he was driving the vehicle and that he was involved in an accident. At approximately 3:10 a.m., blood was drawn from Kelley for a blood alcohol test, the results of which revealed a .18% blood alcohol content (BAC). Trooper Fordyce testified that, based on his eight and one-half years of experience with DUI cases, Kelley was under the influence of alcohol to a degree which rendered him incapable of safe driving.

Kelley admitted to drinking three or four twelve ounce beers that evening at his brother’s home. He also attested that, while at his brother’s, he got into a flstfight and was hit on the left side of his head with a whiskey bottle, which rendered him unconscious. He vaguely remembers people kicking and hitting him before he blacked out for a second time. Kelley estimated that he left his brother’s home between 10:00 p.m. and 10:30 p.m. On the way home, he averred that he had extreme pain in his head, and felt nauseated and shaky. He attributed his difficulty in driving to his head injuries. He did not remember running into the embankment or talking to the trooper. According to Kelley, his jaw was broken and he needed reconstructive surgery. It was not determined whether that injury was a result of the car accident.

Kelley was charged with 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4). A suppression hearing was held, at which time the Commonwealth agreed to the dismissal of the 75 Pa.C.S.A. § 3731(a)(4) charge, and consented to proceed only with the 75 Pa.C.S.A. § 3731(a)(1) charge. A jury trial ensued, and Kelley was found guilty of section 3731(a)(1). Kelley was sentenced to a term of imprisonment of not less than sixty days and no more than twelve months. This appeal followed.

Kelley raises the following issues for our consideration:

(1) Was there sufficient evidence to convict Kelley of a section 3731(a)(1) violation, and was the trooper’s opinion based on conjecture and not on fact?
(2) Was the use of the blood test in the instant case prejudicial to Kelley, and should not the motion in limine have been granted?
(3) Was the sentence for a first time offender excessive where there appeared to be no reason for a sentence above the minimum?

For purposes of clarity, we will address Kelley’s second issue first. Kelley claims that the use of his blood test results in evidence was highly prejudicial, and that the test results should have been suppressed. Prior to trial, Kelley filed a motion to suppress the results of the blood test, pointing out that the time period between the time he operated his vehicle and the time of the blood test was more than three hours. A hearing was held on this matter. During this hearing, the Commonwealth agreed to dismiss the 75 Pa. C.S.A. § 3731(a)(4) charge, and indicated that it would proceed with the section 3731(a)(1) charge. Unfortunately, for reasons uncertain, there is no official transcript of the suppression hearing. We have only the order from that suppression hearing as part of the record. The order, issued by the Honorable William J. Franks, provides:

AND NOW this 14th day of October, 1993, pursuant to agreement by counsel for the Commonwealth and counsel for the defendant at the hearing on a Motion to Suppress, it is hereby Ordered and Directed that the driving while under the influence charge against the defendant at Case No. 419 of 1993 which is filed pursuant to 75 Pa.C.S.A. Section 3731(a)(4) is hereby dismissed. The Commonwealth may still proceed against the defendant on the charge of driving while under the influence filed pursuant to 75 Pa.C.S.A. Section 3731(a)(1).

Kelley argues that when the District Attorney agreed to pursue only the section 3731(a)(1) charge, for which a blood test result is not necessary, the District Attorney was, in effect, agreeing with the relief sought, i.e., suppression of the blood test result. We must disagree. While the trial court was remiss in not making its determination more clear, the plain reading of the order indicates that it did not suppress the blood test results; rather, it only dismissed the section 3731(a)(4) charge. In fact, after the order was issued, Kelley filed a motion in limine, once again attempting to preclude the use of the blood test results. The motion was denied by the trial court.

Kelley contends that, in any event, it was error to admit the blood test results at trial, and that doing so was prejudicial. Again, we must disagree. There exists both statutory and case law authority ruling that blood alcohol content test results are admissible in section 3731(a)(1) cases. Specifically, it has been determined that, “[I]n a § 3731(a)(1) prosecution, so long as the defendant’s blood alcohol level exceeds .05%, the Commonwealth may introduce evidence regarding that defendant’s blood alcohol level.” Commonwealth v. Kemble, 413 Pa.Super. 521, 526, 605 A.2d 1240, 1242 (1992) (citing Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988)); see 75 Pa.C.S.A. § 1547(d)(2), (3). “[Wjhere a defendant is only charged with section 3731(a)(1), a .10% test result is but one piece of evidence to be considered in deciding whether the person was under the influence.” Commonwealth v. Sloan, 414 Pa.Super. 400, 411, 607 A.2d 285, 290 (1992).

Although we have concluded that the trial court did not err in admitting Kelley’s blood alcohol test results, we find that even though Kelley’s BAC revealed a .18%, the evidence adduced at trial was not sufficient to sustain a conviction for a violation of section 3731(a)(1). In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “This standard is equally applicable to. cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, it matters not whether the appellant finds a witness’s testimony lacking in credibility; such matters are solely within the province of the jury as trier of fact and, as such, will not be assailed on review by this court. Swerdlow, supra.

In order to establish Kelley’s guilt under 75 Pa. C.S.A. § 3731(a)(1), the Commonwealth was required to prove that (1) Kelley was the operator of a motor vehicle, and (2) that while he was operating the vehicle, he was under the influence of alcohol to a degree that made him incapable of driving safely. See 75 Pa.C.S.A. § 3731(a)(1); Commonwealth v. Sharpe, 388 Pa.Super. 301, 302-303, 565 A.2d 496, 497 (1989). Our review of the record and pertinent case law indicates that the Commonwealth has not met its burden. Kelley admitted to driving the vehicle at the time it was involved in the accident, thus satisfying the first element of the crime. The Commonwealth, however, has not proven that, at the time he was operating the vehicle, Kelley was so impaired as to violate the statute.

We do not dispute the Commonwealth’s proposition that intoxication is a matter of common observation and lay persons are permitted to tender their opinion on the issue. See In the Interest of Wright, 265 Pa.Super. 278, 401 A.2d 1209 (1979); see also Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979) (intoxication is not a condition outside the realm of understanding or powers of observation of ordinary persons). A police officer may utilize both his experience and personal observations to render an opinion as to whether a person is intoxicated. Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993). While these are valid propositions, they are not persuasive when applied to the facts of the instant case.

The Commonwealth and the trial court rely upon Commonwealth v. Neiswonger, 338 Pa.Super. 625, 488 A.2d 68 (1985), for its determination that a police officer, if he has observed a defendant’s appearance and acts, is competent to give his opinion as to the defendant’s state of intoxication and to his ability to drive safely. Id. at 629, 488 A.2d at 70. In Neiswonger, the appellant was stopped for speeding by one officer and asked to perform sobriety tests. During the tests, a second police officer (the testifying officer) arrived, observed that the appellant was performing the test poorly, smelled alcohol on the appellant’s breath, and noticed that the appellant was staggering. Even though the second officer did not see the appellant driving, this court decided he was able to make a determination as to the appellant’s intoxicated state and ability of the appellant to drive safely.

Thus, while it is true that an arresting officer need not actually see a defendant operate a motor vehicle to make a determination of intoxication, in this case, such an observation is considerably weakened by the time frame involved. Here, rescue workers smelled alcohol near Kelley when they came upon the accident scene. No one observed the manner in which Kelley was driving before the accident. Trooper Fordyce, who arrived at the accident scene at 2:15 a.m., was not able to determine the time of the accident. He admitted that it could have taken place at midnight or some other hour. It was not until approximately 3:00 a.m. that Trooper arrived at the hospital. There, he observed Kelley on a table in the emergency room, smelled an odor of alcohol, observed'bloodshot eyes, and opined that Kelley had trouble speaking. On cross-examination, Trooper Fordyce admitted that Kelley was suffering from serious head injuries and a broken jaw, and conceded that he could not determine whether the slurred speech and bloodshot eyes were due to intoxication or the injuries. However, Trooper Fordyce testified, over objection, that based on his observations, Kelley was intoxicated to a degree which rendered him incapable of safe driving. At about 3:10 a.m., Kelley’s blood test revealed a BAO of .18%.

The Commonwealth has proved only that Kelley had an odor of alcohol about him and that his BAC was .18% at least one hour and forty minutes after the accident. There is nothing in the record to indicate how long Kelley had been unconscious in his automobile. Arguably, judging from the time Kelley estimated leaving his brother’s home, the accident could have occurred as early as 11:00 p.m. The facts proven do not lead inescapably to the inference that Kelley was intoxicated to a degree which rendered him incapable of safe driving at the time he was operating his vehicle. The Commonwealth did not prove when the accident occurred. This is the only point at which Kelley’s impairment is relevant and, since the Commonwealth did not establish even an approximate time for the accident, it was impossible to conclude beyond a reasonable doubt that Kelley violated section 3731(a)(1) at the critical time period. There are simply too many variables and not enough corroborating facts in the evidence to support the verdict.

A verdict may not be supported where the jury must guess at any essential fact in favor of a party having the burden of proving it. Cuthbert v. Philadelphia, 417 Pa. 610, 209 A.2d 261 (1965). The evidence established here, even when viewed in the light most favorable to the Commonwealth, proves only that Kelley was intoxicated at the time of the investigation, not at the time of the accident. The fact that the Commonwealth did not establish a time period for the occurrence of the accident required the jury to guess as to an essential element of the Commonwealth’s case, that is, whether Kelley was under the influence of alcohol to a degree to render him incapable of safe driving while he was operating the vehicle. Accordingly, we must reverse Kelley’s conviction.

Judgment of sentence reversed.

      . (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
      (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving;
      (4) While the amount of alcohol by weight in the blood of the person is 0.10% or greater!)]
      75 Pa.C.S.A. §§ 3731(a)(1), (4).

      . Due to our disposition of this case, we do not reach Kelley’s third issue.

      . (d) Presumptions from amount of alcohol. — If chemical testing of a person's breath, blood or urine shows:
      (2) That the amount of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence of alcohol. This provision shall not negate the provisions of section 373l(i).
      (3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731.
      75 Pa.C.S.A. § 1547(d)(2), (3).

      . Section 3731(a)(1) and section 3731(a)(4) have been determined to be separate and distinct offenses. Commonwealth v. Crum, 362 Pa.Super. 110 n. 2, 523 A.2d 799 n. 2 (1987) (citing Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986)). The Pennsylvania Supreme Court has recently ruled that once the Commonwealth has established that a driver’s BAC reflects an amount above .10%, the Commonwealth has made a prima facie case under section 3731(a)(4). Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994). The defendant is then permitted to introduce expert testimony to rebut the Commonwealth’s prima facie evidence. Id. This rule has not been extended to a BAC result above .10% introduced in a section 3731(a)(1) case. Our Supreme Court distinguished the facts in Yarger from those in Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), where it was held that the Commonwealth did not prove beyond a reasonable doubt that either driver’s BAC exceeded the proscribed limit while they operated their vehicles based on the lapse of at least one hour between the time when the drivers were operating their vehicles and at administration of the blood tests, the small amount by which the test results surpassed the proscribed level, and the Commonwealth’s expert witnesses’ testimony that each drivers’ BAC may have been below .10% before the test was given. The Yarger Court recognized that the majority decisions in Jarman and Modaffare did not address the expert testimony issue; Yarger, however, as stated above, did address the issue.

      . The instant case can be distinguished from those cases involving section 3731(a)(1) where a time of driving/time of accident has been established to some degree, thus making it much easier to find sufficient evidence to support a conviction. See Commonwealth v. Mahaney, 373 Pa.Super. 129, 540 A.2d 556 (1988) (Cirillo, J. dissenting) (sufficient evidence established the time at which appellant’s one-car accident occurred to support a conviction under section 3731(a)(1) where an officer observed appellant visibly intoxicated, debris remained in a routinely patrolled highway suggesting the accident had happened immediately before the officer arrived, and a blood alcohol test revealed a .17% BAC); see also Commonwealth v. Hogans, 400 Pa.Super. 606, 584 A.2d 347 (1990); Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982); Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981) (similar holdings).


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    652 A.2d 383
    Mark A. DETTINGER, Appellant v. Cheryl McCLEARY and Michael McCleary, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1994.
    Filed Dec. 28, 1994.
    Donald B. Swope, Hellam, for appellant.

      Thomas A. DiMaggio, York, for appellees.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   DEL SOLE, Judge:

Appellant takes this appeal from a trial court order which dismissed his complaint for custody in response to the preliminary objections filed by Appellees: The trial court’s action was based upon its conclusion that Appellant was unable to rebut the presumption that the child at issue was a child of Appellees’ marriage. Because we have determined that this matter was prematurely concluded, we reverse and remand.

In October of 1991, the child at issue was born to Appellee (mother) at a time when she was married to Appellant (husband). Appellant claims to be the biological father of this child and filed the underlying action for custody. Appellant averred that since prior to the birth of the child, mother and her husband have resided together for only sporadic periods of time, and were not residing together during the time the child was conceived or when she was born. He further alleges that mother has resided with a certain named male individual as well as “various other individuals” since the birth of the child. He contends that he was informed by mother that husband has commenced divorce proceedings and that these were pending at the time of this action. These alleged facts are all offered by Appellant in support of his statement that mother and her husband did not constitute an “intact family.”

Appellant also maintains that the child was not held out to be a child of the marriage in that the parties mutually agreed to undergo blood testing of Appellant, mother and the child, which indicated that the probability of paternity of Appellant was 99.67%. The Paternity Evaluation Form which is attached and made part of the complaint includes a statement signed by mother which reads: “I CHERYL McCLEARY, do hereby submit to having blood drawn for the purposes of paternity determination on myself and my natural child (children). To the best of my knowledge MARK ALLEN DETTINGER [Appellant] is the natural father of said children.” In support of his claim that mother and her husband acknowledged Appellant’s biological relationship -with the child, Appellant further averred that he had been permitted to exercise rights of partial physical custody every week-end from a time shortly subsequent to the birth of the child up to the date the complaint was filed, and he contends he paid for the medical costs associated -with the child’s birth.

When considering these allegations the trial court remarked that even were Appellant able to prove all of the above, he would not be entitled to prevail because he would be unable to overcome the presumption that the child was born of the marriage. In support of its ruling, the court cited to Coco v. Vandergrift, 416 Pa.Super. 444, 611 A.2d 299 (1992), where a trial court’s decision to grant preliminary objections and dismiss a complaint for custody was affirmed. Therein the appellant sought custody of a four year old girl, who was born to a married woman. Appellant, who was not the mother’s husband sought custody and claimed that mother did not engage in sexual intercourse with her husband during the period in time in which the child was conceived and that mother and her husband facilitated the development of a meaningful relationship between the appellant and the child. The court focused on the strength of the presumption and referred to the Supreme Court decision in John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990). The language of that decision was said to reveal the Supreme Court’s view that the presumption should be irrefutable in cases where the mother, child and husband live together as a family, with the husband assuming parental responsibility. The conclusive nature of the presumption was said to stand where the above situation existed even if the outside party claimed non-access or impotency of the husband.

Even more recently, however, the Supreme Court of Pennsylvania considered the principles it applied in John M. In Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), the court expounded the rationale for its John M. decision and distinguished it from the case before it. The court stated “In John M., our rationale grew out of this Commonwealth’s concern for the survival of the family unit.” Id. at 106, 634 A.2d at 206. In considering whether a determination of the putative father’s paternity was necessary to resolve a child support claim made by mother, the court remarked that it was appropriate to do so since there were “no intact family consideration present.” Id. at 107, 634 A.2d at 207. The court pointed to the following factual circumstances in reaching this conclusion:

In this case, however, we agree with the trial court and are convinced that the facts indicate that the presumptive father and mother repudiated their marriage vows long ago. Additionally, we have evidence that the presumptive father did not accept the child as his own. The circumstances before us, as found by the trial court, are that the presumptive father has never financially or emotionally supported Katie. Moreover, the trial court found that during the time Katie was conceived, Jones was not sexually involved with the presumptive father because he was impotent, and this testimony was not rebutted by either the presumptive father or the putative father. Thus, we agree with the Superior Court that there being no intact family considerations present, a determination regarding Tojak’s [putative father’s] paternity is necessary to resolve the child support claim made by Jones [mother].

Id.

The Jones court found that the mother was not barred by the doctrine of estoppel from proceeding with her claim against the putative father, because she had presented convincing evidence that her husband had not accepted the child as his own. This was determined despite the putative father’s evidence that the husband took his wife to the hospital to give birth, signed the consent forms for a Caesarean delivery, paid the costs of hospitalization by means of his insurance and listed himself as the father on both the birth and baptismal certificates. However, because mother was able to prove that her husband had not accepted the child as his own, mother was able to proceed with a paternity claim with the aid of blood tests.

While the posture of the present case differs from Jones in that here the putative father is seeking to establish his paternity of the child which is being resisted by mother and her husband, and in Jones the mother was seeking to establish the putative father’s paternity which he resisted, what we can glean from the court’s decision is that the result is dependant upon the particular factual circumstances of the parties. Jones teaches that this Commonwealth has a concern for the “family unit.” The existence of this “unit” is created where the presumed father assumes a parenting role in the life of the child and begins the development of, what is hoped to be, a lifelong bond. While the marriage of mother and husband may ultimately falter, where a parent-child relationship has developed, the Commonwealth’s interest in maintaining this relationship remains, as will the presumption that the child is a child of the marriage. However where no “family unit” has ever existed because husband has not taken on the role as parent to the child, the preservation of a “family unit” is not at issue in resolving paternity matters. WTiere a parent-child relationship has never existed and husband has not taken on the role of parent to the child, the purpose of the presumption, which is to preserve an existing relationship, is no longer served. Therefore critical to a resolution of any paternity claim is a determination of the relationship of the parties based upon the facts.

In this case Appellant has offered facts, which call into question the paternity of the child at issue and the familial relationship of mother, husband and the child. Appellant has alleged that mother was not sexually involved with her husband during the period of conception, and that mother’s marriage to husband was not, and is not, intact. He asserts that mother has acknowledged that Appellant is the father of the child and that blood tests, to which the parties consented, demonstrate that probability. Appellant, as the putative father, also maintains that the parties permitted him to exercise partial custody rights every weekend and accepted his payment of medical expenses relating to the birth of the child. Because this case was dismissed on preliminary objections no evidence has been taken to support or refute these allegations. The trial court was unable to determine, based upon the posture of the case, whether husband ever assumed a parental role concerning this child causing a family bond to develop, or whether Appellant was acknowledged all along to be the father of the child. If, as Appellant alleges, such disruption existed in the relationship so that a family unit was never established, then there are no family interests to preserve.

The particular averments made by Appellant made it premature for the trial court to make a ruling based upon preliminary objections. It would be inappropriate for the court to render a decision regarding the paternity of this child absent the receipt of testimony to determine whether mother, husband and child ever existed as a family unit, such that family bonds began to develop. It is because Appellant has raised sufficient allegations to warrant further inquiry, that we remand this matter to the trial court to make a determination regarding the relationship of the parties. If upon the receipt of testimony the court concludes that mother, husband and the child exist as a family, or that they once did so, allowing a parent-child bond to develop, the presumption will stand. If however the court concludes, as in Jones, that there is no “family unit” to protect because a familial relationship was never created or because the parties acknowledged Appellant’s role as father to the child, then Appellant is to be permitted to offer evidence of paternity. In the later instance the purpose for the presumption no longer exists. The order is reversed and the case is remanded to the trial court for proceedings consistent with this opinion.

Jurisdiction relinquished.


author: HESTER, Judge:

text:
    652 A.2d 386
    COMMONWEALTH of Pennsylvania, Appellant, v. Bernard JONES.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1994.
    Filed Jan. 11, 1995.

      Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    John J. McMahon, Jr., Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This is a Commonwealth appeal from the November 8, 1993 order in which the trial court granted appellee, Bernard Jones, a new trial based on its conclusion that trial counsel rendered ineffective assistance when counsel failed to present character evidence at appellee’s trial. We reverse.

The relevant facts follow. Appellee initially was tried and convicted of aggravated assault, robbery, and three related charges on May 29, 1991. His defense in 1991 was alibi, and he presented evidence that he had been shoveling snow at the time of the incident. He won a new trial following that conviction based on the fact that the public defender’s office was ineffective for failing to present evidence regarding the level of snow fall both prior to and on the day of the robbery. The Commonwealth elected not to appeal that ruling.

The evidence presented at appellee’s second trial follows. Eddie Green testified that on December 13, 1989, he was working in the store which he had owned for sixteen years at 6373 Chew Avenue, Philadelphia. At approximately 5:15 p.m., while alone in the middle of the store, he bent over to get himself a soda when appellee entered the store holding one of his hands behind his back. Mr. Green looked up, saw him, and bent back down to retrieve the soda. When he looked up again, appellee was displaying a sawed-off shotgun and shaking it in his face.

Mr. Green immediately recognized appellee since approximately two days prior to the incident, appellee had entered his store in order to sell him an item. Fearing that it was stolen, Mr. Green declined to buy the item and informed appellee that he did not deal in stolen goods. Mr. Green also knew appellee from casual contact in the area. Mr. Green stated that appellee would pass by “my store a lot of times on the street and sometimes I’d be standing in the door because no one is in the store and I was catching a little fresh air and I saw him walking up and down the street lots of times.” Notes of Testimony, 12/10/92, at 107.

When appellee displayed the sawed-off shotgun,' he informed Mr. Green that “this is a stickup.... And he said if I pull my gun he said he’ll blow my head off.” Id. at 108. Mr. Green, who did keep a gun behind the counter, stated that he had no money, but he nonetheless began walking toward the cash register. Mr. Green suddenly bent down to pick up a crate located on the floor, and appellee fired the gun at Mr. Green’s face, missing it by inches. The victim fell back against a video machine and threw the crate at appellee, who dropped the gun and fled. Mr. Green immediately telephoned police.

Philadelphia Police Officer Albeon Slade testified that he was cruising in a marked-vehicle and was the first officer to respond to the report of the robbery. Officer Slade saw the sawed-off shotgun on the floor of the store, took it into custody, and then took a description of the perpetrator. By that time, Philadelphia Police Officers Robert Stott and Charles Yeiter had arrived. Mr. Green described his assailant as a black male and “[a] fairly short gentleman, approximately five six, five seven, scruffy looking, had on what appeared to be ... a three-quarter length jacket, it was dark in color, possibly black or brown.” Id. at 72.

Officers Stott and Yeiter immediately left to search for the suspect. They went one block to 6700 Musgrave Street where they observed appellee, who had a mustache and was wearing a black leather jacket, walking briskly. The officers stopped appellee, and Officer Stott testified:

I interviewed him and asked him where he was coming from.
His first answer was that he was pulling the trash out from his girlfriend’s apartment.
I asked him some personal information about his name, his address and things of that nature.
Then I again asked him where he was coming from the second time.
At that time he told me he was going to a store to get a soda.
I asked him a couple other questions, his Social Security number, things of that nature.
Then I asked him a third time where he was coming from. He said he was going to I think a friend’s apartment is how he put it.
At this time he was being a little evasive. And he matched the description that was given to us.

N.T., 12/11/94, at 38. Since appellee matched the description of the perpetrator and answered questions inconsistently, Officers Stott and Yeiter transported him to the store, where Mr. Green immediately and positively identified him as the assailant.

In his defense, appellee presented numerous witnesses for whom he had shoveled snow that winter in an attempt to establish that he was shoveling snow at the time of the robbery. However, the witnesses were vague about the times and dates that appellee shoveled snow for them since he did it according to his own schedule. In rebuttal, the Commonwealth introduced the testimony of Officer Yeiter who stated that appellee had no snow-shoveling equipment with him at the time he was stopped. We also observe that this alibi defense conflicted with Officer Stott’s testimony about what appellee told the officer on the day of the incident when the officer questioned appellee about what he was doing at the time of the crime.

Based on this evidence, appellee was convicted of robbery, carrying a prohibited offensive weapon, attempted theft, simpie assault, and aggravated assault. Following the verdict, appellee moved for a new trial, and trial counsel argued, inter alia, that she had rendered ineffective assistance in failing to present character evidence in appellee’s defense.

The argument was two-fold. Counsel argued that she was ineffective in failing to present a motion in limine regarding appellee’s eleven-year-old conviction of possession of a prohibited offensive weapon, positing that due to the age of the conviction, the trial court would not have permitted cross-examination of character witnesses regarding their knowledge of the same. Once the motion in limine was granted, counsel continued, she then would have presented the character witnesses.

A hearing where appellee was represented by new counsel was held. The Commonwealth first expressed its frustration and noted that this was the second time the public defender’s office was arguing its own ineffectiveness. At the first trial, defense counsel, well aware that appellee’s defense was that he was shoveling snow, failed to procure the relevant weather reports.

Appellee’s second trial counsel, who had nine years experience with the public defender’s office, admitted at the hearing that she was aware of the age and nature of appellee’s prior conviction before trial. She also acknowledged that she deliberately decided not to pursue a motion in limine since the prior offense, possession of a prohibited offensive weapon, was so similar to the weapons offense at issue in this action. She was candid that she did not consider presenting character witnesses because she “thought it was dangerous to get into an area that the prior gun case might come out since a'gun was in this case....” N.T., 11/8/93, at 24.

At the hearing, no one mentioned the name of a single proposed character witness. However, trial counsel speculated that she should have asked the alibi witnesses who testified whether appellee had a reputation in the community for being law-abiding citizen. No evidence at the hearing was offered to establish that the alibi witnesses would have testified that they knew appellee’s reputation in the community. Likewise, there was no evidence presented that the witnesses would have been able to testify that appellee’s reputation was that of being law-abiding. Compare Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992), where the post-trial evidence included testimony of numerous witnesses who said they would have testified as to defendant’s good character and as to the bad character of defendant’s estranged wife. Further, the Weiss case involved allegations that the defendant abused his daughter and that his wife had manufactured the allegations so that the testimony was of extreme importance.

After appellee was granted a new trial due to counsel’s failure to present character evidence, the Commonwealth filed this appeal. Initially, we must observe that there is a presumption that trial counsel rendered effective assistance, and the party challenging the propriety of counsel’s conduct bears the burden of proving otherwise. Commonwealth v. Cross, 535 Pa. 38, 634 A.2d 173 (1993).

If the allegation is that counsel was ineffective for failing to present a witness or witnesses, the defendant has a four-fold test to meet. In Commonwealth v. Stanley, 534 Pa. 297, 632 A.2d 871, 872 (1993), our Supreme Court stated:

The Superior Court in Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987), has properly assessed the elements determinative of a claim of ineffectiveness for failure to interview and/or present a witness. The existence and availability of the witness must be shown, as well as counsel’s actual awareness of, or duty to know of the witness; the witness’ willingness and ability to cooperate and appear on the defendant’s behalf; and the necessity for the proposed testimony in order to avoid prejudice. Id. at 377, 534 A.2d at 485.

In the present case, appellee had the benefit of a full hearing to establish the merits of his claim. It is clear that there was absolutely no evidence presented at that hearing that proposed witnesses were willing and able to substantiate that appellee had a general reputation in the community for being a law-abiding citizen. Indeed, not one witness was named. There was one vague reference to the fact that the alibi witnesses should have been asked questions about appellee’s character in the community. However, there is no indication at all that these witnesses either knew appellee’s reputation in the community or knew that appellee’s character was that of a law-abiding citizen.

We recently stated:

Our Supreme Court has held that the failure to call a witness is not per se ineffective assistance of counsel. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). The decision whether to call a witness generally involves a matter of trial strategy. Commonwealth v. Davis, 381 Pa.Super, 483, 554 A.2d 104 (1989). “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland v. Washington, 466 U.S. [668], 688, 690-91 [104 S.Ct. 2052, 2064-65, 2066, 80 L.Ed.2d 674] (1984). The failure to call a possible witness will not be equated with a conclusion of ineffectiveness, absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Davis, 381 Pa.Super. at 496, 554 A.2d at 111 (citing Commonwealth v. Bulard, 305 Pa.Super. 502, 451 A.2d 760 (1982).

Commonwealth v. Poindexter, 435 Pa.Super. 509, 522, 646 A2d 1211, 1216-17 (emphasis added). Herein, there was no positive evidence that any specific witness would have presented evidence helpful to the defense. Accordingly, there was no evidentiary basis upon which the trial court could have granted appellee a new trial.

Finally, the evidence at the hearing established that counsel had all the relevant facts at her disposal prior to trial. She deliberately, as her testimony conclusively establishes, decided not to question the witnesses about appellee’s reputation due to appellee’s prior conviction of possession of a prohibited offensive weapon. Now, in hindsight, she faults herself and attempts to gain a new trial for appellee. This is the second time the public defender’s office has expressed that it has made a mistake and then requested a new trial for appellee based solely on protestations of its own error. “Self-accusations of ineffectiveness by prior counsel by their very nature could never be conclusive proof of ineffectiveness.” Commonwealth v. Wells, 396 Pa.Super. 70, 578 A.2d 27, 33 (1990) (emphasis in original). This rule is necessary to prevent trial counsel from making deliberate decisions to seed a trial with an ineffectiveness claim in order to win a new trial if necessary. Id. The only proof appellee has to the effect that character evidence should have been presented at trial is his counsel’s vague, unsubstantiated claims to having made a mistake which was made deliberately with all relevant facts at her disposal.

Order reversed and case remanded for resolution of appellee’s remaining post-trial motions and if appropriate, for sentencing. Jurisdiction relinquished.

      . The shotgun was introduced into evidence at trial and had one spent shell inside it.

      . Trial counsel initially claimed that she did not know that the firearm which appellee was convicted of possessing was a pen-gun which is a pen which has been converted into a gun. However, the notes of testimony of appellee's suppression hearing establish that counsel knew that it was a pen-gun. N.T., 12/17/92, at 96-97.


author: OLSZEWSKI, Judge:

text:
    652 A.2d 390
    COMMONWEALTH of Pennsylvania, Appellant, v. Phillip TILGHMAN.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed Jan. 12, 1995.

      Ronald Eisenberg, Deputy Dist. Atty. and Norman Gross, Asst. Dist. Atty., Philadelphia, for appellant.
    John Gross, Asst. Public Defender, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE, and BECK, JJ.
   OLSZEWSKI, Judge:

This case presents the question of whether a common pleas court retains jurisdiction in matters regarding parole when although the maximum aggregate sentence is two or more years, each component sentence imposed has a maximum of less than two years. Our answer today, as it has been each time this issue has come before us, is no.

Phillip Tilghman was granted early parole from two consecutive sentences for robbery and conspiracy. On February 8, 1993, Mr. Tilghman entered a negotiated guilty plea in exchange for a sentence of eleven and one-half to twenty-three months’ incarceration for robbery, a consecutive sentence of six to twelve months for conspiracy, and a sentence of two years’ reported probation for an additional charge of possession of an instrument of crime. The sentences were aggregated to a minimum of seventeen and one-half months to a maximum of thirty-five months’ incarceration. After serving twenty-six months of his sentence, Mr. Tilghman petitioned the court for early parole. The Honorable Mary D. Collins granted parole and denied the Commonwealth’s motion for a stay of the parole order pending appeal. The Commonwealth now appeals the order granting Mr. Tilghman parole.

The Commonwealth argues that the trial court improperly usurped the exclusive statutory authority of the Parole Board by granting early parole. We first note that when a sentence is ordered to be served consecutively with another being imposed or previously imposed, the two sentences are automatically aggregated. Commonwealth v. Har ris, 423 Pa.Super. 190, 197, 620 A.2d 1175, 1179, allocatur denied, 535 Pa. 668, 634 A.2d 1115 (1993). We also note that

[u]nder Pennsylvania law, the authority to parole convicted offenders is split between the common pleas courts and the Pennsylvania Board of Probation and Parole (Parole Board). When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant or revoke parole is vested in the Parole Board. See 61 P.S. §§ 331.17, 331.21, 331.26; see also Wile, Probation and Parole, 58 Pa.B.A.Q. 119, 121 (1987); Wile, An Overview of the Parole Revocation Process in Pennsylvania, 92 Dickinson L.Rev. 1, 2-3 & n. 1 (1987).

Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239-40 (1988).

We stated in Commonwealth v. Evola, 421 Pa.Super. 595, 618 A.2d 969 (1992), allocatur denied, 535 Pa. 666, 634 A.2d 1114 (1993), and more recently in Commonwealth v. Harris, supra, that when such sentences are aggregated, the Parole Board maintains exclusive authority over parole matters as long as the aggregate maximum sentence equals or exceeds two years. Harris, 423 Pa.Super. at 197, 620 A.2d at 1179; see also Evola, 421 Pa.Super. at 598 n. 3, 618 A.2d at 971 n. 3 (holding that the court of common pleas has no authority to grant early parole when defendant’s aggregate sentence for imposed consecutive sentences is two or more years); McDermott, 377 Pa.Super. at 631, 547 A.2d at 1240 (“The common pleas court loses its authority to parole an offender sentenced to a maximum term of less than two years when a subsequent sentence is imposed consecutively to the previous sentence and the new aggregate maximum sentence exceeds two years.”) (citation omitted).

We based our holding in Harris on an application of Gillespie v. Commonwealth Department of Corrections, 106 Pa. Commw. 500, 527 A.2d 1061 (1987), allocatur denied, 518 Pa. 614, 540 A.2d 535 (1988), and Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 590 A.2d 782 (1991); and on an interpretation of the clear statutory provisions of 61 P.S. Section 331.17. Both we and the Commonwealth Court in Ford-Bey and Gillespie, respectively, interpreted 42 Pa.C.S.A. Section 9757 to mandate the automatic aggregation of sentences once a consecutive sentence has been imposed. Even when a sentence of two or more years is the result of such aggregation, however, 61 P.S. Section 331.17 gives exclusive jurisdiction to the Parole Board.

The [Parole Board] shall have exclusive power to parole and reparole, commit and recommit for violations of parole, and to discharge all persons from parole heretofore or hereafter sentenced by any court of this Commonwealth to imprisonment in any prison or penal institution thereof.... Provided, however, That ... the powers and duties herein conferred shall not extend to persons sentenced to a maximum period of less than two years, and nothing herein contained shall prevent any court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years: And provided further, That the period of two years herein referred to shall mean the entire continuous term of sentence to which a person is subject, whether the same be by one or more sentences, either to simple imprisonment or to an indeterminate imprisonment at hard labor, as now or hereafter authorized by law to be imposed for criminal offenses.

61 P.S. § 331.17 (footnote omitted). The decision, therefore, whether to parole prisoners whose aggregate maximum consecutive sentence imposed equals or exceeds two years is within the domain of the Parole Board, even if each and every individual component maximum sentence would have been less than two years. Harris, 423 Pa.Super. at 197-201, 620 A.2d at 1179-81. “Upon aggregation the trial court loses its authority over the aggregated sentence.” Id. at 201, 620 A.2d at 1181.

The trial court relied upon the Commonwealth Court’s opinion in Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa.Commw. 81, 615 A.2d 814 (1992), aff'd, 535 Pa. 122, 634 A.2d 214 (1993), in supporting a contrary proposition to our holding in Harris. In Abraham the Commonwealth Court stated that “for the purpose of determining place of confinement and parole, a county sentence shall not be aggregated with any later-imposed sentence.” Id. at 95, 615 A.2d at 820. The only issue in Abraham, however, was determining the proper place of confinement for prisoners whose aggregate maximum sentence is five or more years. Because the court in Abraham was dealing with the situs of a prisoner’s confinement, any reference to a determination of who has the authority over the decision to grant parole was obiter dictum.

We reaffirm our recent analysis of Abraham: “Decisions of the Commonwealth Court are not binding on this Court and should be followed only when the reasoning contained therein is persuasive. Based on our own analysis of the pertinent statutes ... we find that the Commonwealth Court’s discussion in Abraham was not only unnecessary but unpersuasive.” Harris, 423 Pa.Super. at 207, 620 A.2d at 1184 (citation omitted). In Harris we held that the Commonwealth Court ignored “the plain meaning of the language of section 331.17.” Id.

The only reason we revisit this issue is because our Supreme Court affirmed, per curiam, the order in Abraham. Abraham v. Dept. of Corrections of Pennsylvania, 535 Pa. 122, 634 A.2d 214 (1994). Appellees argue that this decision by the Supreme Court overruled, sub silentio, our decision in Harris. We disagree. “[A] sub silentio overruling will rarely be found to [be] ... intended.” Commonwealth v. Cragle, 281 Pa.Super. 434, 422 A.2d 547, 549 (1980). The Supreme Court’s ruling only affirmed, without opinion, the Commonwealth Court’s order issued in Abraham, an order dealing strictly with assigning the appropriate (state or county) place of confinement. We do not believe that the Court intended to overrule Harris. See Commonwealth v. Johnson, 399 Pa.Super. 266, 272, 582 A.2d 336, 339 (1990) (refusing to find a holding overruled sub silentio when different issues were presented); cf. Harris, 423 Pa.Super. at 201, 620 A.2d at 1181 (finding that a sentencing court was not given power to parole a criminal defendant serving a five- to ten-year sentence by our Supreme Court’s per curiam order issued in Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986), when that order did not mention this type of aggregate sentence). We hold that Harris is still fully applicable to cases such as the one sub judice. The decision of whether or not to parole a person whose aggregate maximum consecutive sentence is equal to or exceeds two years is the Parole Board’s, notwithstanding the fact that each of the individual component sentences had a maximum of less than two years.

Appellee was improperly granted an early parole. Order reversed. Remanded for proceedings consistent with this decision. Jurisdiction relinquished.

      . The Commonwealth intends to raise this same issue in its appeal from the orders granting early parole in the following cases: Commonwealth v. Hall, 438 Pa.Super. 372, 652 A.2d 858 (1995); Commonwealth v. Jamison, 438 Pa.Super. 378, 652 A.2d 862 (1995); Commonwealth v. Palmer Daley, No. 1351 Philadelphia 1994; Commonwealth v. Jack Glover, Nos. 1449 and 1509 Philadelphia 1994; Commonwealth v. Clifford Ferron, Nos. 1660 and 1663 Philadelphia 1994; Commonwealth v. Donald Brown, No. 1943 Philadelphia 1994; Commonwealth v. Richard Sanders, No. 2258 Philadelphia 1994; Commonwealth v. Marcellus Hopkins, No. 2441 Philadelphia 1994.

      . “Whenever the court determines that a sentence should be served consecutively to one being imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S.A. § 9757. See also Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa. Commw. 81, 615 A.2d 814 (1992), aff’d, 535 Pa. 122, 634 A.2d 214 (1993) (aggregating consecutive sentences is mandatory; since this is not discretionary with the trial court, this interpretation of 42 Pa.C.S.A. Section 9757 does not violate the separation of powers doctrine).

      . The court in Abraham was applying 42 Pa.C.S.A. Section 9762 to cases where a prisoner's aggregate maximum consecutive sentence, as opposed to the individual component sentences imposed, equals or exceeds five years. This section reads:
      § 9762. Sentence Proceeding: place of confinement
      All persons sentenced for a total or partial confinement for:
      (1) maximum terms of five or more years shall be committed to the Bureau of Correction for confinement:
      (2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court:
      (3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.


author: CIRILLO, Judge.

text:
    652 A.2d 393
    Gerald A. LUSTIG, Individually and as Shareholder to Camp Weequahic, Inc., a Pennsylvania Business Corporation, Appellant v. Gayle LUSTIG a/k/a Gail Lustig, Joan (Lustig) Seffer, Mollie Lustig, and Camp Weequahic, Inc.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1994.
    Filed Jan. 12, 1995.

      Anthony J. Martino, Bangor, for appellant.
    Thomas F. Ford, Wilkes-Barre, for appellees.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge.

Gerald A. Lustig (“Appellant”), individually and as a shareholder of Camp Weequahic, Inc., appeals from an order entered in the Court of Common Pleas of Wayne County, dismissing his amended complaint as having been incorrectly filed as an action at law. We quash this appeal.

Appellant commenced an action against his two sisters, Gayle Lustig (a/k/a Gail Lustig) and Joan (Lustig) Seffer, and his mother Mollie Lustig (collectively referred to as “Appellees”). The parties to the action represented all of the stockholders of Camp Weequahic, Inc. (the “Company”). Appellees filed preliminary objections to the complaint. Thereafter, Appellant filed an amended complaint, naming the Company as an additional defendant. The amended complaint alleged various injuries to the Company.

Appellees filed preliminary objections in the nature of a demurrer to the amended complaint. The trial court sustained Appellees’ preliminary objections and dismissed the amended complaint. The trial court held that because “the entire tenor of the Amended Complaint is that the actions of the Defendants [Appellees] have inflicted direct injury on the corporation,” the action should have been commenced as a stockholder’s derivative action in the equity side of the court. Pa.R.C.P. 1506. While Rule 1509(c) of the Pennsylvania Rules of Civil Procedure allows a trial judge to transfer an improperly filed equity case to the law side of the court, there is no rule allowing the converse — a transfer from law to equity.

The order sustaining preliminary objections and dismissing the amended complaint was issued on March 25, 1994 and entered on March 28, 1994. On April 4, 1994, less than one week after the order was entered, Appellant filed an identical complaint with the equity side of the court. Notwithstanding the pending equity action, Appellant filed a notice of appeal from Judge Conway’s dismissal of his amended complaint from the law side of the court.

Generally, an order sustaining preliminary objections and dismissing a complaint is a final order. Estate of Gasbarini v. Medical Center of Beaver County, Inc., 487 Pa. 266, 270, 409 A.2d 343, 345 (1979); see also Scott v. Adal Corp., 276 Pa.Super. 459, 419 A.2d 548 (1980). In contrast, an order certifying a case from the equity side to the law side of the court, generally, is not appealable as a final order, unless the order puts a party out of court. McFarland v. Weiland Packing Co., 416 Pa. 277, 279-80, 206 A.2d 18,19 (1965) (citing Nachod v. Nachod, 402 Pa. 60, 166 A.2d 18 (1960); White v. Young, 402 Pa. 61, 166 A.2d 663 (1960)); Pa.R.C.P. 1509(c); see also 5 Goodrich-Amram 2d § 1509(c):4 (1990). To determine whether an order is final, however, the court must look beyond the technical effects of the adjudication to its practical ramifications. Husted v. Board of Directors, 57 Pa.Commw. 520, 522-24, 427 A.2d 272, 274 (1981) (citing T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977)).

In City of Philadelphia v. Pennrose Management Co., 142 Pa.Commw. 627, 598 A.2d 105 (1991), the City of Philadelphia commenced an action at law against the municipality and its collection agency, alleging that Pennrose Management Company (taxpayer) failed to pay city wage taxes and incorrectly paid taxes to the municipality’s collection agency. Id. at 627-29, 598 A.2d at 105-106. Count IV of the five count complaint sought various forms of equitable relief. The defendants filed preliminary objections in the nature of a motion to strike Count IV because it sought equitable relief in a civil action at law. The trial court sustained the preliminary objections, finding that the City’s request for both legal and equitable relief in the same complaint in a civil action at law constitutes a misjoinder of causes of action. The City appealed. Id.

On appeal, the City claimed that Rule 1020 of the Pennsylvania Rules of Civil Procedure requires that all causes of action against a person arising from a single transaction or occurrence be joined in a single action. Pa.R.C.P. 1020(d)(1). However, there is no authority in the Rules of Civil Procedure permitting the joinder of an action at law with an action in equity. See D’Allessandro v. Wassel, 526 Pa. 534, 587 A.2d 724 (1991). For this reason, the Commonwealth Court opined that, instead of dismissing the equitable count, the trial should have severed the equitable claim from the complaint, with leave to assert the claim in a separate civil action in equity. Pa.R.C.P. 1501-1550. Pennrose, 142 Pa.Commw. at 635-36, 598 A.2d at 110; see also Husted v. Board of Directors, 57 Pa.Commw. 520, 427 A.2d 272 (1981) (quashing as interlocutory an appeal from an order which sustained preliminary objections and dismissed a complaint in equity, but which granted plaintiff leave to file the complaint on the law side of the court within twenty days).

Here, although Judge Conway’s order technically dismissed Appellant’s amended complaint without leave, Estate of Gasbarini, supra, the practical effect of his order was to transfer the case from law to equity. McFarland, supra. Unlike Rule 1509(c), Judge Conway was not provided with a procedural vehicle with which he could transfer the Appellant’s action to the equity side of the court. He, therefore, dismissed the complaint, but, in no uncertain terms, recommended that the Appellant file his complaint with the equity court. Specifically, Judge Conway opined:

The Court’s action is not intended to deny the Plaintiff [Appellant] his day in Court. Rather, it is only intended to insure that the action filed does not violate any procedural or substantive rules. .

It is clear from the tone of Judge Conway’s 1925 opinion that had there been a procedural rule allowing him to transfer the case to the equity side of the court, he would have done so. Nonetheless, we find that Judge Conway’s dismissal and the subsequent refiling of Appellant’s complaint has had the same effect.

The General Assembly, by Act of June 21, 1937, P.L. 1982, as amended, 17 P.S. § 61 et seq. (repealed), vested in the Supreme Court of Pennsylvania the power to prescribe by general rule the practice and procedure in civil actions for the courts of common pleas. Pursuant to such rule making power, we implore the Supreme Court and the Civil Procedure Rules Committee to amend Rule 1028 or promulgate a new rule that would empower a trial judge sitting at law, upon proper objection, to certify an action to the equity side of the court.

The decision reached in this case is also consistent with recently amended Rule 341 of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 341 (“A final order is any order that ... disposes of all claims or of all parties.”). Because all of Appellant’s claims are presently before the Court of Common Pleas of Wayne County, whether they be labeled at law or in equity, we find that the order appealed from in this case is not final and appealable. Pa.R.A.P. 341; Pennrose, supra; Husted, supra.

Appeal quashed.

TAMILIA, J., concurs in the result.

      . The action before the "equity” side of the Court of Common Pleas of Wayne County is docketed at No. 9-Equity-1994. The fact that Appellant has filed an identical complaint with the "equity” side of the court, however, is not part of the certified record on appeal. Pursuant to Pa.R.A.P. 1926, therefore, this court, via a separate order, has directed the trial court to certify and transmit a supplemental record containing the complaint in equity at docket No. 9-Equity-1994 to be made part of the record on appeal.


text:
    652 A.2d 396
    COMMONWEALTH of Pennsylvania, v. James NELSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed Jan. 13, 1995.

      Michael C. Schwartz, Asst. Public Defender, Philadelphia, for appellant.

      Louis D. Lappen, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge:

Appellant James Nelson and three others were charged with crimes stemming from a string of robberies that occurred on September 28, 1991. After a bench trial before the Honorable Anthony J. DeFino of the Court of Common Pleas of Philadelphia County, appellant was found guilty of robbery, burglary, theft, criminal trespass, recklessly endangering another person, aggravated assault, possessing an instrument of crime, criminal conspiracy, and firearms violations. The trial court denied post-verdict motions and sentenced appellant to an aggregate term of five to ten years incarceration. This appeal followed.

Appellant presents two claims for review: (1) whether the trial court erred in denying his pre-trial motion to dismiss based on Rule 1100; and (2) whether the trial court abused its discretion and violated appellant’s due process and Sixth Amendment rights by admitting a witness’s preliminary hearing testimony at trial.

I.

Rule 1100 of the Rules of Criminal Procedure sets out the number of days within which a criminal defendant must be brought to trial. Pa.R.Crim.P. 1100. If a defendant is released on bail, Rule 1100 requires the trial to commence within 365 days from the date of the Criminal Complaint. Pa. R.Crim.P. 1100(a)(3). Rule 1100, however, also allows for excludable time, which is not counted in determining the “run date” by which the defendant must be brought to trial. Pa. R.Crim.P. 1100(c)(3). If a defendant requests a pre-trial lineup, the time elapsed during the course of that delay is excludable. See Pa.R.Crim.P. 1100(c)(3)(ii); see also Commonwealth v. Potts, 368 Pa.Super. 408, 511-13, 534 A.2d 501, 503 (1987), appeal denied, 520 Pa. 603, 553 A.2d 966 (1988) (finding that a defendant’s request for a line-up resulted in 37-day delay, all of which was excludable time under Rule 1100).

In the present case, the criminal complaint was filed against appellant on January 31, 1992, resulting in an original Rule 1100 run date of January 29, 1993. Appellant’s trial began on February 25, 1993; 27 days after the original run date. Appellant requested a line-up, however, which delayed the start of the preliminary hearing by a minimum of 35 days of excludable time and resulted in an amended Rule 1100 run date of March 5, 1993. Since appellant’s trial began on February 25, 1993, we find no Rule 1100 violation.

II.

Appellant’s second claim arises out of the testimony admitted at trial. At appellant’s preliminary hearing, one of his alleged co-conspirators, Michael Sudler, testified that appellant was the driver of the “get away” van on September 28, 1991, when the string of robberies was committed. This testimony was significant because appellant was never identified by the victims. Appellant was held over for trial, which began on February 25,1993. At trial, Sudler was called to the stand, but refused to testify. Based on his refusal to testify, the trial court found that Sudler was unavailable and admitted the transcript of his preliminary hearing testimony. Appellant asserts that the transcript should not have been allowed into evidence.

The admissibility of evidence is a matter within the trial court’s discretion, and its decision will not be upset absent an abuse of discretion. Commonwealth v. Wharton, 530 Pa. 127, 144-46, 607 A.2d 710, 719 (1992); Commonwealth v. Smith, 436 Pa.Super. 277, 285, 647 A.2d 907, 911 (1994). While hearsay statements are generally not admissible, there are numerous exceptions to this general rule. See Commonwealth v. Bujanowski, 418 Pa.Super. 163, 169, 613 A.2d 1227, 1230 (1992), appeal denied, 533 Pa. 642, 622 A.2d 1374 (1993). One such exception is for former testimony. It allows the “admission of prior recorded testimony from a preliminary hearing provided that: (1) the witness responsible for that testimony is presently unavailable; (2) the defendant had counsel; and (3) the defendant had a full and fair opportunity to cross-examine the declarant during the earlier proceeding”. Smith, 436 Pa.Super. at 286, 647 A.2d at 911. At issue in the present case is whether the witness was unavailable and whether the defendant had a full and fair opportunity to cross-examine.

In determining the unavailability of a witness, the appropriate question is whether the prosecution has “made a good faith effort to produce the live testimony of the witness and, through no fault of its own, is prevented from doing so.” Id.; see also Commonwealth v. Melson, 432 Pa.Super. 1, 11-13, 637 A.2d 633, 638 (1994). In this case, there can be no doubt that the prosecutor made every reasonable attempt to produce live testimony. The record illustrates repeated attempts by the prosecution to elicit a response from Sudler. N.T. 3/22/93 at 16-32. The prosecutor asked numerous questions, repeated questions, offered notes of testimony to refresh recollection, and promised not to ask any questions about Sudler’s unrelated homicide indictment. Id. In response, Sudler steadfastly refused to answer any questions or to read any prior statements to refresh his recollection. Id. Finally, the prosecutor asked the court to hold Sudler in contempt. The court complied, but Sudler still refused to testify. Id. at 28. In this case, there was nothing more that the prosecution could do. Therefore, we find that the Commonwealth made a good faith effort to produce Sudler’s live testimony and Sudler was properly found unavailable.

The remaining issue is whether appellant had a full and fair opportunity to cross-examine Sudler at the preliminary hearing. Appellant asserts that he lacked four crucial pieces of evidence: (1) a police report indicating that Sudler could have been driving the van; (2) a police summary of Sudler’s statements indicating that co-conspirator Franklin directed the group to a victim’s house; (3) a copy of the written plea agreement between Sudler and the Commonwealth; and (4) information regarding Sudler’s recent crimes and pending charges.

A copy of the written plea agreement would not have added anything to appellant’s cross-examination of Sudler. Appellant was already aware that Sudler had struck a deal with the Commonwealth and took the opportunity at the preliminary hearing to question Sudler at length regarding a possible bias. The specifics of that deal, as set forth in a written agreement never actually signed by Sudler, would not have provided any stronger ammunition for cross-examination purposes.

Similarly, the evidence of Sudler’s other recent crimes and pending charges would not have added anything to appellant’s opportunity to cross-examine Sudler. Appellant knew that Sudler had been charged with the September 28th robberies. He knew that Sudler had struck a deal with the Commonwealth. He used his opportunity at the preliminary hearing to fully explore any possible bias on Sudler’s part. Any information on additional, unrelated crimes would have been cumulative to the evidence already available. See Commonwealth v. Lane, 533 Pa. 276, 279-81, 621 A.2d 566, 568 (1993) (holding that trial court erroneously prohibited defense from cross-examining witness on all his crimes, but defense still had full and fair opportunity to cross-examine because jury was already aware that witness had pending crimes which could give rise to a pro-Commonwealth bias).

The two remaining pieces of evidence are more problematic, as appellant is not claiming that the evidence itself could be used to impeach Sudler; rather, appellant claims that knowledge of the evidence would have allowed counsel to ask more pointed questions during cross-examination. While it is certainly true that this information could have given rise to more pointed interrogatories, the question remains whether the lack of such information constitutes a violation of appellant’s Sixth Amendment and due process rights. We find that it does not.

Our Supreme Court, in Commonwealth v. Bazemore, stated that it would be a denial of due process and a violation of the Sixth Amendment to allow former testimony if the defendant was not allowed to test the reliability of that testimony on the prior occasion. 531 Pa. 582, 614 A.2d 684 (1992). The key factor in Bazemore was that the Commonwealth’s sole witness had given police a prior inconsistent statement that presented a completely different version of the events in question. When the Commonwealth failed to disclose this crucial impeachment evidence to the defense prior to the preliminary hearing, it denied the defense a full and fair opportunity to cross-examine. Similarly in Smith, we held that a defendant did not have a full and fair opportunity to cross-examine when he was denied certain information regarding the witness’s prior criminal history and pending criminal charges at a preliminary hearing. 436 Pa.Super. at 289-294, 647 A.2d at 913-15. We found that such information, which could test the possible bias of the witness, was essential if the defendant was to have a full and fair opportunity to cross-examine. Id. In both of these cases, courts were dealing with the kind of classic impeachment evidence that is at the heart of the right of confrontation.

In the present case, appellant complains that he was unable to ask Sudler if he, rather than appellant, was driving the van and if appellant was involved in the planning of the house robbery. Sudler had already testified that appellant was the driver of the van and that appellant had been involved in the planning of the house robbery. If asked again, Sudler would have presumably responded in the same manner and appellant would have been unable to confront Sudler with the police reports implying otherwise. Unlike the right to confront a witness with his own prior inconsistent statement, or with his own criminal record and possible bias, the right to pose additional questions, which the witness has already answered in his direct testimony, involves only limited confrontation and does not lie at the heart of the Sixth Amendment. In such an instance, one can adequately impeach the witness indirectly by calling other witnesses to contradict his testimony.

In sum, we find that the trial court did not abuse its discretion in finding that appellant had sufficient information to allow for a full and fair opportunity to cross-examine. Appellant knew that Sudler’s testimony was the Commonwealth’s most substantial piece of evidence. He had a strong motive and a full and fair opportunity to cross-examine this key witness at the preliminary hearing. His counsel fully challenged Sudler’s credibility and potential bias based on evidence that was already available. The additional evidence sought by appellant would not have substantially affected the exploration of Sudler’s credibility or bias during cross-examination. Therefore, we find that appellant’s Sixth Amendment and due process rights were not violated by the admission of this former testimony.

Judgment of sentence affirmed.

      . It is unclear exactly when the defense requested the line-up; however, the Quarter Sessions Report lists a continuance on February 14, 1992, "[j]ust for status of line-up". Therefore, we can conclude that the lineup was requested on or before February 14, 1992.

      . The preliminary hearing was first scheduled for February 7, 1992. On that date, the case was listed as "protracted” and continued until February 14, 1992. The case was again continued on February 14, 1992, because the Commonwealth was not prepared to address the lineup issue. On February 19, 1992, the line-up issue was mooted and the case was continued until the earliest possible date for a preliminary hearing: March 26, 1992. The delay from the date of the defense’s request for a line-up until the earliest possible date to resume the hearing .after the line-up issue was resolved is excludable time. If February 14 is used as the date of the defense’s request for a line-up, the excludable time amounts to 40 days. Even if we charge the five days between February 14 and 19 to the Commonwealth for not being prepared, the delay still amounts to 35 days.

      . The written agreement was later introduced at trial, so the fact-finder did have the opportunity to examine the specifics of the agreement. N.T. 3/22/93 at 47, 50.

      . Michael Sudler was charged with simple assault on February 26, 1992 and two additional robberies, one of which involved a shooting, on October 15, 1991. N.T. 3/22/93 at 9-11, 51-53. He was also indicted on an unrelated homicide charge after the preliminary hearing .in this case. Id.

      . The first piece of evidence, a police report based on testimony of other witnesses who saw Sudler exiting from the driver’s side of the van, could indicate that Sudler rather than appellant was driving the van. However, as a police summary of the out-of-court statements of third-party witnesses, it is classic hearsay that would not be admissible either for its substantive value or for impeachment purposes. Commonwealth v. Baez, 494 Pa. 388, 392-95, 431 A.2d 909, 912 (1981) (holding that a witness cannot be confronted with the out-of-court statements of other witnesses on cross-examination). The second piece of evidence was a summary of Sudler’s statements to the police, in which Sudler indicated that co-conspirator Franklin directed them to the victim's house. Since this statement does not truly contradict Sudler’s testimony that appellant was involved in the planning of the house robbery, it is not inconsistent and could not be used to impeach Sudler. Commonwealth v. Bailey, 322 Pa.Super. 249, 263, 469 A.2d 604, 611 (1983) (holding that a witness cannot be impeached with his or her prior statements unless such statements are truly inconsistent).

      . At trial, appellant did examine the witnesses who saw Sudler exit from the driver’s side of the vehicle and the fact-finder had the opportunity to consider that evidence in assessing Sudler’s credibility. N.T. 2/25/93 at 119-20, 136-37, 165-67. Similarly, the summary of Sudler’s statements to police regarding the planning of the house robbery were admitted at the post-verdict motion hearing, so the fact-finder also had the benefit of that evidence. Brief for appellant, Exhibit B, at 17-18.


author: JOHNSON, Judge.

text:
    652 A.2d 400
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph SURINA.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1994.
    Filed Jan. 5, 1995.

      George S. Leone, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Mark E. Gottlieb, Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   JOHNSON, Judge.

The Commonwealth appeals from the order granting Joseph Surina’s motion in limine to exclude his breathalyzer test results, denying the Commonwealth’s request for an appeal from that ruling, and discharging the case. For the reasons set forth below, we reverse the order of the trial court and remand this matter for further proceedings.

The facts are as follows: After returning from a fire, Firefighter Edward Wrenn was standing at the rear of the fire engine to prevent cars from passing behind the truck as it backed into the fire station. N.T., Preliminary Hearing, August 3, 1992, at 4. Surina was observed driving toward the station at a high rate of speed. Id. Though Wrenn was in full gear, including reflectors, and the fire engine driver blew the airhorn, Surina struck Wrenn, who sustained serious injuries. Id. at 4, 14. Surina then drove another half-block before coming to a stop. The fire engine driver ran to Surina’s car and noticed a strong odor of alcohol on Surina’s breath. Id. at 5, 6. After arriving on the scene, a police officer also detected an odor of alcohol on Surina’s breath. Id. at 17. Subsequently, Surina consented to a breathalyzer test, which revealed his blood alcohol content (BAC) to be .120%. Id.

Surina was arrested and charged with driving under the influence of alcohol (DUI), aggravated assault, simple assault and recklessly endangering another person (REAP). At the preliminary hearing, Surina was held for trial on the charges of aggravated assault, simple assault and REAP. The judge, without explanation, dismissed the DUI charge.

Prior to trial, • Surina’s counsel made an oral motion in limine to preclude the introduction of the breathalyzer test results because the DUI charge had been dismissed at the preliminary hearing. N.T., Motion in Limine, July 26, 1993, R.R. at 40a-41a. Throughout argument on the motion, the Commonwealth indicated that its ability to present the case would be materially impaired by the exclusion of the breathalyzer results. Id. at 42a, 45a, 51a. Further, the Commonwealth informed the court that if it excluded the results, the Commonwealth “could not go forward on this case.” Id. at 45a. Nevertheless, the court granted Surina’s motion. Id. at 50a. At that point, the Commonwealth asked for time to appeal from the trial court’s ruling, but the court denied this request and discharged the case. Id. at 51a-53a. This appeal followed.

On appeal, the Commonwealth argues that the trial court (1) erred in granting Surina’s motion in limine to exclude his breathalyzer test results, and (2) improperly discharged the case in response to the Commonwealth’s request to appeal from the court’s ruling. For purposes of review, we will address the Commonwealth’s issues in reverse order.

First, the Commonwealth contends that the trial court improperly discharged the case in response to the Commonwealth’s request to appeal from the grant of Surina’s motion in limine. The Commonwealth may appeal from an adverse evidentiary ruling on a motion in limine upon certification “that the order had the effect of terminating or substantially handicapping the prosecution.” Commonwealth v. Deans, 530 Pa. 514, 517, 610 A.2d 32, 33 (1992), citing Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992); see also Commonwealth v. Johnson, 399 Pa.Super. 266, 582 A.2d 336 (1990) (Commonwealth was permitted appeal from pretrial order granting motion in limine excluding testimony of Commonwealth expert where Commonwealth certified that order substantially handicapped its prosecution), ajfd, 534 Pa. 51, 626 A.2d 514 (1993). Furthermore, “[t]he Commonwealth’s certification that its prosecution is substantially handicapped is ‘not contestable.’ The certification, ‘in and of itself, precipitates and authorizes the appeal.’ ” Commonwealth v. Apollo, 412 Pa.Super. 453, 456, 603 A.2d 1023, 1025 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992), quoting Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985).

In the present case, the Commonwealth has complied with the dictates of the above-stated cases by certifying, both at the hearing on the motion and in its brief filed with this Court, that the grant of Surina’s motion effectively terminated or substantially impaired its prosecution. See N.T., Motion in Limine, supra, R.R. at 42a, 45a, 51a; Brief for Appellant at 1. Because the Commonwealth satisfied the certification requirement, we find that it had a right of appeal to this Court to test the validity of the order granting the motion in limine. In light of this conclusion, we must review the evidentiary issue in this case.

Next, the Commonwealth asserts that the trial court erred in granting Surina’s motion in limine to exclude his breathalyzer test results. “A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered.” Johnson, supra, at 269, 582 A.2d at 337. Our Court reviews the grant of such a motion “by applying the scope of review appropriate to the particular evidentiary matter at issue.” Id. We note that this Court may reverse rulings on the admissibility of evidence only if it is shown that the trial court abused its discretion. See Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, — U.S. -, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). Further, if in reaching a conclusion, the trial court overrides or misapplies the law, “ ‘discretion is then abused and it is the duty of the appellate court to correct the error.’ ” Commonwealth v. Bellini, 333 Pa.Super. 526, 532, 482 A.2d 997, 999 (1984), quoting Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 125 (1981).

In the present case, the trial court excluded the breathalyzer test results because it believed that such evidence was admissible only to prove a charge of DUI, and here that charge had been dismissed. See Trial Court Opinion, filed May 26, 1994, at 3-4. The Commonwealth submits that this decision was in error. We agree. As previously stated, Surina was held for trial on the charges of aggravated assault, simple assault and REAP. 18 Pa.C.S. §§ 2702(a)(1) & (2), 2701(a)(1) and 2705, respectively. Each of these crimes requires the Commonwealth to prove that a defendant acted “recklessly.” Id. “A person acts recklessly -with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.... ” 18 Pa.C.S. § 302(b)(3).

After a review of relevant case law, we find that a breathalyzer test establishing BAC is relevant and admissible, not only in DUI prosecutions, but also in prosecutions of drivers for other crimes such as those charged here.

For example, in Commonwealth v. Scofield, 360 Pa.Super. 552, 521 A.2d 40 (1987), appeal denied, 517 Pa. 593, 535 A.2d 82 (1987), the- appellant, while driving, struck a pedestrian and was convicted of aggravated assault and REAP, but was acquitted of a DUI charge. A breathalyzer test revealed appellant’s BAC to be .04%. Although it was determined that the results were insufficient to prove that appellant was driving under the influence, this Court found the breathalyzer result to be probative of recklessness:

[W]hile driving under the influence specifically presents special problems of proof, the fact that some degree of intoxication was present is relevant in considering whether the elements of related offenses have been established. We would hold that the observations of the officer and witness on the record and the evidence from the urinalysis and breathalyzer were sufficient to establish that the [appellant] was suffering from some degree of alcohol/drug intoxication. While evidence of drinking alone is insufficient to establish [DUI], it most certainly may be considered in determining whether the appellant was driving while consciously disregarding a substantial and unjustifiable risk of injury to others.

Id. at 558-59, 521 A.2d at 43 (citation omitted). Similarly, in Commonwealth v. Gbur, 327 Pa.Super. 18, 21, 474 A.2d 1151, 1153 (1984), this Court concluded that the Commonwealth could introduce evidence of intoxication at the appellant’s trial on charges of involuntary manslaughter and homicide by vehicle, even though the DUI charge had been dismissed prior to trial. See also Commonwealth v. Eichelberger, 364 Pa.Super. 425, 428-29, 528 A.2d 230, 232 (1987) (defendant acquitted of DUI and homicide by vehicle while DUI, but trier of fact could consider defendant’s consumption of alcohol prior to accident, resulting in BAC of .09%, in weighing defendant’s conduct to determine if he was guilty of homicide by vehicle).

Because evidence of intoxication may be admitted in the prosecution of offenses other than DUI, we are constrained to conclude that the trial court erred in ruling that Surina’s breathalyzer test results must be excluded.

Based on the foregoing, we reverse the trial court order granting Surina’s motion in limine, and remand the case for further proceedings consistent with this Opinion.

Order Reversed. Case Remanded.