author: ROWLEY, Judge:

text:
    488 A.2d 303
    L & J EQUIPMENT COMPANY, INC. v. UNITED MINE WORKERS OF AMERICA, United Mine Workers District Four, and United Mine Workers District Five. Appeal of UNITED MINE WORKERS OF AMERICA, United Mine Workers District Four, and United Mine Workers District Five, Thomas Edward Samek and Marshall Morris.
    Superior Court of Pennsylvania.
    Argued Aug. 2, 1984.
    Filed Feb. 1, 1985.

      James T. Davis, Uniontown, for appellants.
    William M. Radcliffe, Uniontown, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

The United Mine Workers of America, United Mine Workers Districts Four and Five (Union), Thomas Edward Samek and Marshall Morris, appeal from the Order of May 14, 1984, adjudging them in contempt of court for violating the court’s previous orders of July 29, 1983 and October 14, 1983, enjoining the use or threat of force on picket lines and the prevention of ingress to and egress from the worksite of L & J Equipment Company (L & J). Pursuant to the contempt adjudication, Marshall Morris received a suspended sentence, Thomas Samek was sentenced to not less than one month or more than six months in the Greene County jail, and the Union was fined $2,500.00. Appellants argue that the contempt proceedings were in the nature of indirect criminal contempt and, thus, they were entitled to the right to be notified of the accusations against them and the right to demand a jury trial in accordance with 42 Pa.Cons.Stat. § 4136(a). Appellants further claim that the penalties imposed upon them exceeded the statutory máximums set forth in 42 Pa.Cons.Stat. § 4136(b). We agree, and therefore, we reverse the order and vacate the sentences imposed.

These proceedings were commenced by a complaint in equity filed by L & J against the Union on July 26, 1983, seeking injunctive relief against unlawful and unreasonable picketing of L & J’s surface mining operation in Greene County. Thomas Samek was a rank and file union organizer assigned to the L & J picket line and Marshall Morris was a striking employee of L & J who was a picket at the worksite. Upon consideration of L & J’s complaint, on July 26, 1983 a preliminary injunction was granted against unlawful picketing and the number of pickets was limited. Following hearings held on July 28 and 29, 1983, the court entered an Order enjoining the members and employees of the Union: 1) from causing or threatening the use of force on or about the picket line; 2) from exercising or using physical restraint on vehicles entering or using L & J’s premises; and 3) from maintaining more than a specific limited number of pickets at main access roads. A subsequent Order finding appellants in contempt of the July 29, 1983 injunction was entered on October 14, 1983, but no sentence was imposed. The October 14, 1983 Order modified the previous Order by authorizing picketing in an area where it had previously been prohibited, enjoining the use or display of weapons at the worksite, and enjoining physical obstruction of ingress to and egress from the worksite.

Thereafter, on March 6, 1984, L & J filed a petition alleging numerous violations of the court’s injunction. The petition requested that the Union be held in contempt of court and that Thomas Samek and Marshall Morris be barred from the picket line. On May 4, 1984, L & J filed a supplemental petition alleging further violations of the court’s Orders regarding conduct that occurred near the worksite on April 26, 1984. The Union also filed a petition on May 4, 1984, requesting that L & J be held in contempt of the court’s Orders. A hearing was held concerning the contempt petitions before Judge Glenn Toothman on May 14, 1984. The court found that Marshall Morris had obstructed the path of a delivery man to the worksite and threatened the safety of the driver and his family. Union organizer Thomas Samek was found to have assaulted Frederick Sparks, a L & J employee, causing facial lacerations and trauma of the head. At the close of the hearing the court found the Union, Marshall Morris and Thomas Samek in contempt of court. Morris received a suspended sentence on the condition that his actions on the picket line would not re-occur, Samek was sentenced to not less than one month or more than six months imprisonments, and the Union was fined $2,500.00.

On May 16, 1984, appellants filed an Application for a Stay, an Application for Bail and a Motion for a New Trial. All motions were denied. On May 16, 1984, appellants also filed a notice of appeal with this court and applied for a stay of Samek’s sentence pending appeal. On May 17, 1984, Judge John Brosky granted a temporary stay of sentence and, on May 21, 1984, the stay was continued pending disposition of this appeal.

Both parties to this appeal agree that the contempt proceedings herein were in the nature of indirect criminal contempt. Moreover, the trial judge’s opinion, filed on May 31, 1984, states:

At the time of sentencing the contempt finding was viewed in the light of a civil contempt, rather than a criminal contempt and the sentences which were imposed were made with that in mind. However, since making our findings and reviewing the applicable law regarding contempt proceedings, we are now convinced that the contempt finding must be considered criminal in nature, since the dominant purpose of the Court was at that time to vindicate the authority of the Court and also to protect the interest of the general public, i.e. to insure the safety of persons and property...
In conclusion, this Court was necessarily interested in maintaining peacefulness and orderliness on the picket line. The picketing has continued now for nearly a year and there have been several incidents in which the Sheriff and State Police were called in. We have only the desire and intention of maintaining lawfulness and order in the process.

The dominant purpose and objective of the court’s order is the controlling factor in determining whether a contempt is civil or criminal. In re Martorano, 464 Pa. 66, 78, 346 A.2d 22, 28 (1975); Brocker v. Brocker, 429 Pa. 513, 519, 241 A.2d 336, 338 (1968); Knaus v. Knaus, 387 Pa. 370, 376-77, 127 A.2d 669, 672 (1956). If the court’s purpose is to vindicate the dignity and authority of the court and to protect the interest of the general public, and the sanction imposed is designed to punish the contemnor, then the citation is one for criminal contempt. Commonwealth v. Charlett, 481 Pa. 22, 27-28, 391 A.2d 1296, 1298-99 (1978); In re Martorano, supra. In light of these principles and the observations of the trial judge, the contempt citation herein must be considered criminal in nature.

Because indirect criminal contempt is a crime in every fundamental respect, an accused in such a proceeding must be accorded essential procedural safeguards. Commonwealth v. Charlett, 481 Pa. at 26, 391 A.2d at 1298; Marco Industries, Inc. v. United Steelworkers of America, 401 Pa. 299, 164 A.2d 205 (1960); Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979). The procedural protections applicable in an indirect criminal contempt proceeding for violation of an injunction are set forth in 42 Pa.Cons. Stat. § 4136, which provides:

§ 4136. Rights of persons charged with certain indirect criminal contempts

(a) General rule. — A person charged with indirect criminal contempt for violation of a restraining order or injunction issued by a court shall enjoy:

(1) The rights to bail that are accorded to persons accused of crime.
(2) The right to be notified of the accusation and a reasonable time to make a defense, if the alleged contempt is not committed in the immediate view or presence of the court.
(3) (i) Upon demand, the right to a speedy and public trial by an impartial jury of the judicial district wherein the contempt is alleged to have been committed.
(ii) The requirement of subparagraph (i) shall not be construed to apply to contempts:
(A) committed in the presence of the court or so near thereto as to interfere directly with the administration of justice, or to apply to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, orders, or process of the court; or
(B) subject to 75 Pa.C.S. § 4108(c) (relating to nonjury criminal contempt proceedings).
(4) The right to file with the court a demand for the withdrawal of the judge sitting in the proceeding, if the alleged contempt arises from an attack upon the character or conduct of such judge, and if the attack occurred otherwise than in open court. Upon the filing of any such demand, the judge shall thereupon proceed no further but another judge shall be designated by the court. The demand shall be filed prior to the hearing in the contempt proceeding.

(b) Punishment. — Except as otherwise provided in this title or by statute hereafter enacted, punishment for a contempt specified in subsection (a) may be by fine not exceeding $100 or by imprisonment not exceeding 15 days in jail of the county where the court is sitting, or both, in the discretion of the court. Where a person is committed to jail for the nonpayment of such a fine, he shall be discharged at the expiration of 15 days, but where he is also committed for a definite time, the 15 days shall be computed from the expiration of the definite time.

42 Pa.Cons.Stat. § 4136 (Supp.1984-85) (renumbered from § 4135). Since the proceedings in the trial court were in the nature of indirect criminal contempt, appellants were necessarily entitled to the rights specified in Section 4136, including the right to admission to bail, the right to be notified of the accusations against them, and upon demand, the right to a trial by jury. Moreover, as the trial judge recognized in his opinion, the punishment for indirect criminal contempt of the court’s injunction should not have exceeded the máximums set forth in § 4136(b).

Appellee concedes that the sentences imposed by the trial court were illegal. Appellee argues, however, that the procedural safeguards outlined in Section 4136(a) were substantially satisfied in this case. Thus, appellee maintains that the contempt citation should be affirmed and the sentences amended to comply with Section 4136(b). We do not agree.

Although appellants did not demand a jury trial in this case, it is clear that they were not advised at any time prior to the contempt adjudication that the proceedings were in the nature of indirect criminal contempt. Compare Marco Industries, Inc. v. United Steelworkers of America, supra (trial court held, prior to trial, that the contempt alleged in the petitions filed by both parties was an indirect criminal contempt; accordingly, the court directed that respondents were to be afforded a jury trial). The petitions charging the Union with contempt requested only that certain employees and members of the Union be barred from participating in picketing at the L & J worksite. The trial judge never characterized the proceedings nor did the parties; in fact, the trial judge operated under the assumption that the contempt was civil in nature. The alleged contemnors were unaware that they might be sentenced to determinate terms of imprisonment or fixed fines which they could not escape by purging themselves of the contempt. See In re Martorano, 464 Pa. at 78-80, 346 A.2d at 28-29. Under these circumstances, appellants were entitled to an explanation of the nature of the proceedings and the opportunity to demand a trial by jury, in accordance with 42 Pa.Cons.Stat. § 4136(a). Commonwealth v. Charlett, 481 Pa. at 28-29, 391 A.2d at 1298-1300.

Accordingly, we reverse the court’s Order and vacate the sentences imposed incident thereto. The case is remanded for further proceedings consistent with 42 Pa.Cons.Stat. § 4136.

Jurisdiction is relinquished.

      . After observing that the contempt proceedings were in the nature of indirect criminal contempt, the trial judge further stated:
      Consequently it now appears that our sentence is erroneous and under the provisions of 42 Pa.C.S.A., Rule 4135, the punishment must be limited to a maximum of 15 days. This determination is more firmly persuaded by the case of Commonwealth v. Martorano, 346 Atl. 2d p. 22. Thus, as to the sentence of Thomas Samek it is excessive and must be modified and as to the named defendants, the fine cannot exceed $100.00 as to each.
      (Opinion of Toothman, J., May 31, 1984).


source: Caselaw Access Project

author: WIEAND, Judge: SPAETH, President Judge,

license: Public Domain

text:
    488 A.2d 307
    COMMONWEALTH of Pennsylvania v. Joseph LAHOUD, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed Feb. 1, 1985.
    Petition for Allowance of Appeal Denied Aug. 7, 1985.

      Richard J. Jacobs, Bethlehem, for appellant.
    Christopher T. Spadoni, Assistant District Attorney, Bethlehem, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Does a trial court abuse its discretion when it refuses a defense request to exercise extraordinary steps for obtaining the presence at trial of a paid police informant who has been accepted into the federal witness protection program? We hold that there was no abuse of discretion where, as here, the defendant failed to show that the witness had information favorable to the defense.

During the summer of 1981, federal and state law enforcement agencies launched an extensive undercover investigation into an international drug trafficking operation believed to be working out of a pizza parlor located in an Easton shopping center. As part of the operation, undercover agents set up a “Game Room” next door to the pizza parlor. This “Game Room” was rented and operated by Ted Riviello, a paid police informant. Riviello and undercover narcotics agents used the “Game Room” to hold themselves out as drug dealers. In this manner they attempted to infiltrate the drug ring believed to be operating next door. Joseph Lahoud, who was not a suspect and who had previously been unknown to the police, entered the “Game Room” on November 17, 1981 and offered to sell both hashish and heroin to Riviello and his “partner,” Wallace E. Mignault, an undercover agent of the Federal Drug Enforcement Agency. Mignault went with appellant to appellant’s home to retrieve “samples,” after which they returned to the “Game Room” with two “bricks” of hashish. Riviello broke off a piece from one of the bricks and at a later time turned it over to the proper authorities. Appellant again met with Riviello and other undercover officers on the following day, and also on November 24, 1981 and December 2, 1981, to discuss arrangements and prices for the sale of hashish and heroin. Appellant was arrested on January 15, 1982 after the drug ring operating from the pizza parlor had been broken. When Lahoud was arrested, he was found to be carrying 26 grams of hashish. He entered a plea of guilty to the possession of this hashish. However, he denied guilt and was tried on charges arising out of his prior contacts with drug agents. He defended these charges on grounds that criminality, if any, had been the product of duress and/or entrapment. A jury found Lahoud guilty of possession of hashish and possession with intent to deliver. He was also found guilty of solicitation to commit a crime and of delivering hashish. He was acquitted on charges of attempting to sell heroin.

Post-verdict motions were denied, Lahoud was sentenced to a term of probation, and this appeal followed. Although Lahoud’s appeal was filed after the judgment of sentence had been imposed, the notice of appeal erroneously stated that the appeal was being taken from the order dismissing post-verdict motions. See: Pa.R.A.P. 301(c). Because the appeal is otherwise proper, we will treat this defect as harmless and proceed to consider the merits as if the notice of appeal had correctly referred to the judgment of sentence. See: Pa.R.A.P. 105(a).

Prior to trial, appellant’s counsel attempted to interview Ted Riviello, only to learn that Riviello had been sentenced on unrelated state charges and had been remanded to federal custody to serve his sentence under the federal government’s witness protection program. Riviello’s whereabouts were known only to federal authorities. Defense counsel learned also that the Commonwealth did not intend to call Riviello as a prosecution witness. Therefore, counsel obtained a writ of habeas corpus ad testificandum directing the United States Marshall’s Office to produce Riviello for trial on July 12, 1982. The Marshall refused to comply because, he said, the witness was beyond the compulsory process of the state court. On June 15, 1982, appellant’s counsel requested the trial court to issue a rule to show cause why Riviello should not be produced at the trial to commence on July 12. At a hearing on June 30, an inspector employed by the United States Marshall’s Office testified that Riviello was a federal prisoner and, as such, was beyond the jurisdiction of the court and would not be produced in response to compulsory process. The inspector testified that the federal government would agree to produce Riviello if, but only if, the costs of producing and safeguarding the witness were paid in advance to the federal government. These arrangements, which included elaborate security precautions, the inspector refused to describe. However, he said that the cost of an appearance for one day would be $3,602.68, and the cost of a two day appearance would be $5,101.32. The court estimated that the cost of producing Riviello as a witness at trial could rise as high as $10,000 and refused to direct the County of Northampton to advance funds to procure the presence of the witness.

“It is clear that under both our state and federal constitutions, a criminal defendant has a right of compulsory process to obtain witnesses in his favor. Pa. Const, art. I § 9. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).” Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d 624, 627 (1983). See: Commonwealth v. West, 321 Pa.Super. 329, 330, 468 A.2d 503, 504 (1983). “The right to compulsory process encompasses the right to meet the prosecution’s case with the aid of witnesses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial. This constitutional right, though fundamental, is not, however, absolute.” Commonwealth v. Jackson, 457 Pa. 237, 243, 324 A.2d 350, 354-355 (1974) (emphasis added). See also: Commonwealth v. Allen, supra; Commonwealth v. West, supra. Accord: Ross v. Estelle, 694 F.2d 1008, 1010 (5th Cir.1983); Blaikie v. Callahan, 691 F.2d 64, 66-67 (1st Cir.1982); State v. McKnight, 191 Conn. 564, -, 469 A.2d 397, 406 (1983); Ashley v. State, 433 So.2d 1263, 1269 (Fla.Dist.Ct.App.1983); Eubank v. State, Ind., 456 N.E.2d 1012, 1014 (1983); State v. Smith, 639 S.W.2d 677, 680 (Tenn.Ct.App.1982); Weaver v. State, 657 S.W.2d 148, 150 (Tex.Crim.App.1983). The constitutional right of compulsory process is not violated merely because a witness in a criminal case leaves the jurisdiction or is otherwise unavailable. See: United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (witnesses deported by government); Commonwealth v. Allen, supra (invocation by witness of privilege against self-incrimination); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (invocation by witness of privilege against self-incrimination upon advisement by prosecution); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946) (compelled attendance excused by witness’ advanced stage of pregnancy). The Constitution does not require that a defendant be given the right to secure the attendance of witnesses which he has no right to use. Commonwealth v. Jackson, supra, 457 Pa. at 243, 324 A.2d at 350, citing Washington v. Texas, supra. See: Commonwealth v. Coffey, 230 Pa.Super. 49, 52, 331 A.2d 829, 831 (1974). The constitutional right to compulsory process does not grant to a defendant “the right to secure the attendance and testimony of any and all witnesses: it guarantees him ‘compulsory process for obtaining witnesses in his favor.’ United States v. Valenzuela-Bernal, supra 458 U.S. at 867, 102 S.Ct. at 3446, 73 L.Ed.2d at 1202 (emphasis in original), quoting U.S. Const, amend. VI. See: Pa. Const, art. I, § 9; Commonwealth v. Coffey, supra 230 Pa.Super. at 52, 331 A.2d at 831.

The law both in Pennsylvania and most other jurisdictions, therefore, is that “[t]he trial court has discretion on motions to secure witnesses.” Commonwealth v. Sullivan, 484 Pa. 130, 135, 398 A.2d 978, 980 (1979). See: Commonwealth v. Scott, 469 Pa. 258, 264, 365 A.2d 140, 142-143 (1976); Commonwealth v. Kent, supra 355 Pa. at 152, 49 A.2d at 391; Commonwealth v. Stanton, 294 Pa.Super. 516, 525-526 n. 10, 440 A.2d 585, 590 n. 10 (1982). Accord: United States v. $64,000 in United States Currency, 722 F.2d 239, 246 (5th Cir.1984) (trial court has discretion with respect to issuance of writ of habeas corpus ad testificandum); United States v. Leon, 679 F.2d 534, 539 (5th Cir.1982) (same); Maurer v. Pitchess, 530 F.Supp. 77, 80 (C.D.Cal.1981) (same); Bolender v. State, 422 So.2d 833, 835 (Fla.1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983) (same); Eubank v. State, supra, 456 N.E.2d at 1014 (same); State v. Hines, 645 S.W.2d 88, 90 (Mo.Ct.App.1982); Goodson v. State, 564 P.2d 260, 262 (Okla.Crim.App.), cert. denied, 434 U.S. 863, 98 S.Ct. 193, 54 L.Ed.2d 137 (1977) (same); State ex rel. Amek Bin Rilla v. Circuit Court for Dodge County, 76 Wis.2d 429, 432-435, 251 N.W.2d 476, 479-480 (1977) (same).

The witness in the instant case was a paid police informant. He was also a witness which the Commonwealth had intended to use in establishing appellant’s guilt. Although he clearly was in possession of information relevant to the issue of appellant’s guilt, the record reveals no basis for believing that his testimony would have been favorable to the defense. Appellant’s trial counsel propounded questions which she would have liked to ask Riviello, but there is no basis for believing that the answers of the witness would have been favorable to the defense. The Commonwealth had decided to forego the presence of the witness. Defense counsel, if the witness had been present under the circumstances, would not have been entitled to call the witness as of cross-examination. If he were called as a defense witness, the defense would be required to vouch for his veracity. When viewed in this light, the record fails to demonstrate that Riviello was material to the defense or that he had information favorable to appellant.

Implicit in the requirement of materiality is a concern that the absent witness have information which might have affected the outcome of the trial. Thus, the Supreme Court in United States v. Valenzuela-Bernal, supra, quoting from United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 2401-2402, 49 L.Ed.2d 342, 354-355 (1976), explained:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt---- This means that the omission must be evaluated in the context of the entire • record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

Id. at 868, 102 S.Ct. at 3447, 73 L.Ed.2d at 1203.

Appellant was not relieved of the burden of showing that the missing witness would have given favorable testimony merely because the defense did not have prior access to the witness. A contrary contention was rejected by the Supreme Court in United States v. Valenzuela-Bernal, supra, where it said:

In such circumstances it is of course not possible to make any avowal of how a witness may testify. But the events to which a witness might testify, and the relevance of those events to the crime charged, may well demonstrate either the presence or absence of the required materiality.
In addition, it should be remembered that respondent was present throughout the commission of this crime. No one knows better than he what the [missing] witnesses actually said to him, or in his presence, that might bear upon whether he knew that Romero-Morales was an illegal alien____ We thus conclude that the respondent can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received from the testimony of the [missing] witnesses.

Id. at 871, 102 S.Ct. at 3448-3449, 73 L.Ed.2d at 1205 (footnote omitted). Compare: Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (prejudicial error to permit government to withhold identity of informant who was sole participant, other than the accused, in the transaction charged).

Riviello was in federal custody and, therefore, not subject to the trial court’s compulsory process. He could not be produced by subpoena or by writ of habeas corpus ad testificandum. Special Prosecutor of New York v. United States Attorney for the Southern District of New York, 375 F.Supp. 797 (S.D.N.Y.1974) (state court cannot issue compulsory process to secure the presence for testimonial purposes of witness in federal “custody” under witness protection program). See: Ponzi v. Fessenden, 258 U.S. 254, 260-262, 42 S.Ct. 309, 310-311, 66 L.Ed.2d 607, 611-612 (1922); Tarble’s Case, 80 U.S. (13 Wall.) 397, 406-407, 20 L.Ed. 597, 600-601 (1872); Ableman v. Booth, 62 U.S. (21 How.) 506, 523-524, 16 L.Ed. 169, 175-176 (1859); Commonwealth v. Swenor, 3 Mass.App. 65, 67, 323 N.E.2d 742, 744 (1975). Riviello could have been made available to the defense only by extraordinary arrangements made and carried out at substantial, public expense. In the absence of a record showing that the witness had information favorable to the defense, we are unable to say that the trial court abused its discretion in refusing appellant’s request to order the production of Riviello for questioning at trial by the defendant.

Because the witness was not present, appellant requested the court to give a “missing witness” instruction which would have permitted the jury to infer, from the failure of the Commonwealth to call him as a witness, that Riviello’s testimony would have been unfavorable to the Commonwealth. The court properly refused such an instruction. In the first place, the witness was not subject to the Commonwealth’s power to subpoena witnesses or otherwise control his appearance. See: Commonwealth v. Newmiller, 487 Pa. 410, 419-420, 409 A.2d 834, 839 (1979) (plurality opinion); Commonwealth v. Bird, 240 Pa.Super. 587, 591-592, 361 A.2d 737, 739 (1976); Commonwealth v. Trignani, 185 Pa.Super. 332, 340, 138 A.2d 215, 219, aff'd, 393 Pa. 140, 142 A.2d 160 (1958). Accord: Bulman v. Myers, 321 Pa.Super. 261, 266, 467 A.2d 1353, 1356 (1983). Secondly, the Commonwealth had offered a reasonable explanation for Riviello’s absence. See: Commonwealth v. March, 308 Pa.Super. 343, 454 A.2d 567 (1982); Commonwealth v. Paull, 250 Pa.Super. 416, 378 A.2d 1006 (1977); Commonwealth v. Gibson, 245 Pa.Super. 103, 369 A.2d 314 (1976).

Judgment of sentence affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

In Commonwealth v. Terry, 258 Pa.Super. 540, 393 A.2d 490 (1978), we held that Article 1, Section 9, of the Pennsylvania Constitution was violated where a trial court refused to produce a witness who was in federal custody. We stated that “the lower court wrongfully denied appellant the availability of a known eyewitness as well as the possibility of an adequate opportunity to present his version of the incident complained of to the jury”, and that “[t]he lower court usurped appellant’s prerogative in making the value judgment that [the witness’s] testimony would be cumulative at best and have little, if any, probative value.” Id., 258 Pa.Superior Ct. at 546, 393 A.2d at 493. Here, appellant’s position was that the absent witness would substantiate his defenses of duress and entrapment. Contrary to the majority’s statement that “the record reveals no basis for believing that [the absent witness’s] testimony would have been favorable to the defense”, Majority op. at 311, most of appellant’s testimony refers to the various acts of duress and entrapment alleged to have been perpetrated by the absent witness.

I also cannot agree with the majority’s conclusion that appellant had no right under the Sixth Amendment to have the witness present. In United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Supreme Court held only that an appellant “can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received from the testimony of the [absent] witness.” Id. at 871, 102 S.Ct. at 3448 (footnote omitted). Here, appellant claimed that the absent witness had both coerced and entrapped him. This evidence, if it had been presented, would have assisted appellant’s defense. “Just as the accused has a right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. The right is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

I therefore conclude that the trial court’s refusal to take admittedly available steps to procure the attendance of a material witness violated appellant’s rights under the Federal and Pennsylvania Constitutions.

The judgment of sentence should be vacated and the case remanded for a new trial at which the witness should be produced.

      . We have examined appellant’s final argument that the Commonwealth failed to prove a full and complete chain of custody for the hashish obtained from appellant. There is no merit in this argument. The issue was adequately reviewed and discussed in the opinion of the trial court.


author: WIEAND, Judge: BROSKY, Judge,

text:
    488 A.2d 313
    Elizabeth DUNN, Administratrix of the Estate of James E. Dunn, Deceased, Appellant, v. MARYLAND CASUALTY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 27, 1984.
    Filed Feb. 13, 1985.

      Thomas J. Carlyon, Hazelton, for appellant.
    Roger N. Nanovic, Jim Thorpe, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

In this action • to recover benefits for accidental death under a group policy of life insurance, the trial court entered a compulsory nonsuit because the plaintiff failed to show that her decedent’s death had been caused directly by accident and independently of all other causes. After the trial court refused to remove the nonsuit, an appeal was taken to this court. We affirm.

James E. Dunn, a volunteer fireman in the Borough of Weatherly, Carbon County, was insured under a group life insurance policy purchased by the Citizens Fire Company and the Weatherly Fireman’s Relief Association from Maryland Casualty Company. The policy provided for a death benefit of $5,000 in the event that an insured’s death were caused by cardiovascular disease such as coronary thrombosis. The policy also provided for a lump sum payment of $15,000 in the event of an accidental death “which results directly and independently of all other causes.” The accidental death benefit was restricted, however, and was specifically excluded where death was “caused or contributed to by ... [sjickness or disease or bacterial infections.”

Similar clauses have frequently been before the appellate courts in Pennsylvania, and the controlling law is clear.

Where the liability of the insurance carrier is restricted as in the policy here in controversy, it is well settled in this Commonwealth that it is insufficient for plaintiff merely to show a direct causal relation between the accident and disability or death. The burden is on her to establish the death was caused solely by external and accidental means. Real Estate Tr. Co. of Philadelphia v. Metropolitan L. Ins. Co., 340 Pa. 533, 17 A.2d 416. If the proof points to a pre-existing infirmity, which may have been a contributing factor, plaintiff must also produce evidence to exclude the possibility. Johnson v. Kentucky Central Life Insurance Co., 144 Pa.Super. 116, 18 A.2d 507. Where it appears that insured’s death resulted from accidental injury acting in conjunction with a pre-existing and substantial physical infirmity, there can be no recovery.

Rodia v. Metropolitan Life Insurance Co., 354 Pa. 313, 315, 47 A.2d 152, 153 (1946). Accord: Lucas v. Metropoli tan Life Insurance Co., 339 Pa. 277, 14 A.2d 85, 131 A.L.R. 235 (1940); Dauphin Deposit Trust Co. v. Lumbermens Mutual Casualty Co., 171 Pa.Super. 86, 87-88, 90 A.2d 349, 350 (1952); Mulholland v. Fidelity & Casualty Co. of New York, 161 Pa.Super. 425, 427, 55 A.2d 561, 562 (1947); Puszkarewicz v. Prudential Insurance Co. of America, 161 Pa.Super. 500, 502-503, 55 A.2d 431, 432 (1947); Brandeis v. Metropolitan Life Insurance Co., 116 Pa.Super. 558, 561, 176 A. 789, 790 (1935); Lubowicki v. Metropolitan Life Insurance Co., 114 Pa.Super. 596, 599, 174 A. 649, 650 (1934). See also: Frame v. Prudential Insurance Co., 358 Pa. 103, 56 A.2d 76 (1948). It has been suggested that a better rule would allow recovery, irrespective of the stringencies of policy language, where the accident is a proximate cause of death even though the death would not have occurred except for the pre-existing condition. See: IB Appleman, Insurance Law and Practice § 393 (1981). Unless and until this rule is adopted and followed by the Pennsylvania Supreme Court, however, we are obliged to follow the law established by the decided cases.

Dunn, at 49, had a history of hypertensive, cardiovascular disease and was receiving regular treatment therefor. On the evening of March 3, 1977, he responded to an alarm by driving a pump truck to the scene of a fire in Weatherly. In an attempt to improve the pumper’s water pressure, he repeatedly struck a pump with a mallet. At the scene of the fire, Dunn suffered a massive heart attack which caused his immediate death.

Maryland Casualty paid a $5,000 death benefit but denied liability for an additional, accidental death benefit. Elizabeth Dunn, the administratrix of the decedent’s estate, commenced an action in assumpsit in which she contended that her decedent’s death had been accidental. The insurer denied liability, and the action came on for trial before the Honorable John P. Lavelle and a jury. The only factual issue in dispute was the cause of Dunn’s death.

The rules regarding a compulsory nonsuit are well established. A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together will [sic] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Flagiello v. Crilly, 409 Pa. 389, 390-391, 187 A.2d 289, 290 (1963). See Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 591-592, 379 A.2d 111, 112 (1977).

Morena v. South Hills Health System, 501 Pa. 634, 638, 462 A.2d 680, 682-683 (1983). See: Target Sportswear, Inc. v. Clearfield Foundation, 327 Pa.Super. 1, 9, 474 A.2d 1142, 1147 (1984). Our review of the record establishes that the compulsory nonsuit in this case was properly entered.

The certificate of death listed the cause of Dunn’s death as “acute myocardial infarction due to hypertensive cardiovascular disease.” Dr. Slovak, Dunn’s treating physician, was called as plaintiff’s witness and testified that for more than twelve years he had been treating Dunn for hypertension, elevated cholesterol, and arteriosclerosis and had diagnosed his condition as cardiovascular disease. He expressed the opinion that his patient’s death had been caused by a massive heart attack brought on by exertion. He conceded, however, that the preexisting, cardiovascular disease was a contributing cause of the infarction. Dr. Field, called as an expert in cardiac related death cases, testified in response to a hypothetical question that in his opinion “the physical labor performed by [Dunn] precipitated a sudden and instantaneous cardiac death, secondary to acute myocardial infarction.” At the close of his direct testimony, he was asked by plaintiff’s counsel whether there was any question that Dunn “died as a result of an acute myocardial infarction due to hypertensive cardiovascular disease," and his answer was “No, there is not.”

From the plaintiff’s own evidence, therefore, it was clear that Dunn’s pre-existing, hypertensive cardiovascular disease had been a contributing cause of death. The additional fact that the myocardial infarction had been brought on by physical exertion did not alter the undisputed fact that Dunn’s pre-existing condition had been a contributing cause of his death. Appellant was unable to show that an accident, acting independently of the pre-existing cardiovascular disease, had caused the death of her decedent. Under the terms of the policy, therefore, the appellant was not entitled to recover an accidental death benefit.

The facts of this case must be distinguished from those cases where there has been evidence that death occurred independently of the insured’s pre-existing condition. Where there is evidence from which a jury can find that death occurred either because of an accident or because of a pre-existing condition or disease, it is improper to take the case from the jury. See, e.g.: Parrish v. Equitable Life Assurance Society of United States, 376 Pa. 611, 103 A.2d 678 (1954) (conflicting evidence as to whether death caused by fall or brain lesion due to pre-existing condition); Real Estate Trust Co. of Philadelphia v. Metropolitan Life Insurance Co., 340 Pa. 533, 17 A.2d 416 (1941) (conflicting evidence whether death caused by pre-existing disease or blow to head suffered in collision); Kelly v. Prudential Insurance Co. of America, 334 Pa. 143, 6 A.2d 55 (1939) (conflicting evidence whether death caused by pre-existing heart disease or fall down steps); Dickerson v. Prudential Insurance Co. of America, 158 Pa.Super. 596, 46 A.2d 33 (1946) (conflicting evidence whether death caused by pre-existing brain tumors or fall down stairs); Shugart v. Metropolitan Life Insurance Co., 116 Pa.Super. 359, 176 A. 546 (1935) (conflicting evidence whether death caused by fall or by progressive bone disease). Here, appellant’s witnesses were agreed that Dunn’s pre-existing cardiovascular disease was a contributing cause of death. By virtue of the specific language of the policy, therefore, accidental death benefits were not payable.

Finally, appellant argues that the decedent’s pre-existing heart disease was an affirmative defense which appellee waived by failing to plead it properly. This argument is lacking in merit. The decided cases, as we have observed, have uniformly placed the burden on the plaintiff to prove coverage, i.e., that death was caused solely by external and accidental means. The decedent’s pre-existing disease, therefore, was not an affirmative defense. Moreover and in any event, the presence of pre-existing heart disease in this case was in fact raised as new matter in appellee’s answer and was asserted constantly throughout the proceedings. The defense was not waived; and appellee was not barred from relying thereon at trial. The issue before this court is simply whether appellant’s evidence was sufficient, if believed, to establish a right to recover the restricted accidental death benefit under the terms of the policy issued by appellee. For the reasons hereinbefore discussed, we hold that plaintiff failed to prove coverage. The trial court, therefore, could properly enter a compulsory nonsuit.

Affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

Although I agree with the result reached by the majority, I would treat appellant’s final argument in a different fashion than does the majority. As noted in the majority opinion the policy in question contained a basic “caused solely by accident” clause and an express exclusion clause. Appellant contends, however, that appellee waived the express exclusion clause by failing to plead the facts necessary to give rise to the exclusion. See Janco v. John Hancock Mutual Life Insurance Company, 160 Pa.Super. 280, 50 A.2d 695 (1947), Pa.R.C.P. 1030. She concludes that this failure meant that the insurance policy should have been construed by the lower court as one in which there was only one restrictive clause, the basic “caused solely by accident” clause.

The distinction between policies with only one restrictive clause and those with two restrictive clauses is dispositive as to what a claimant must show in order to satisfy his burden of proof. As explained in Johnson v. Kentucky Central Life and Accident Insurance Co., 144 Pa.Super. 116, 124, 18 A.2d 507, 511 (1941),

Where the liability of the insurance carrier is limited by both restrictive clauses, it is not sufficient for the insured or his beneficiary in case of death to establish a direct causal relation between the accident and the death or disability. He must show that the resulting condition was caused solely by external and accidental means, and if the proof points to a pre-existing infirmity or abnormality which may have been a contributing factor, the burden is upon him to produce further evidence to exclude the possibility.
The rule established by the Kelley case, [Kelley v. Pittsburgh Casualty Co., 256 Pa. 1, 100 A. 494 (1917)], however, is as follows: Where the liability of the insurance carrier is limited by the one restrictive clause referred to, that exception in the policy will not relieve the insurer if the accident is the moving, sole and proximate cause of the death, even though a pre-existing disease or physical infirmity be a necessary condition to the result.

In other words, where a policy contains a “caused solely by accident” clause alone, an award in favor of the claimant is required once it is established that an accident was the direct cause of death, whether or not a pre-existing infirmity was a contributing factor in the death. Instantly, appellant contends that, given her argument that the policy contained, in effect, only the one restrictive clause, her evidence that the decedent’s heart attack was the direct cause of death was sufficient to submit the case to the jury.

I would disagree with appellant. As noted by the majority, appellee pled the facts of decedent’s pre-existing disease in its new matter and argued them in the trial court.

In the cases cited by appellant the insurer relied solely on an exclusionary clause for its defense and, therefore, had to plead and prove the facts necessary to give rise to the exclusion. However, Johnson, supra, holds that where an exclusionary clause is relied on in conjunction with another primary restrictive clause, a “caused solely by accident” clause, the burden of proof shifts to the claimant to exclude the possibility that a pre-existing infirmity was a contributing factor to the death, if the proof at trial point to such a possibility. The rule that appears to emerge from a consideration of these cases together is that the insurer must plead the facts giving rise to the exclusion before it can be considered in conjunction with the primary restrictive clause. The only burden the insurer would then bear would be a possible burden of going forward with evidence that a pre-existing infirmity contributed to the death if the evidence adduced during the claimant’s case in chief did not point to such a possibility.

In the instant case, appellee pled the facts necessary to give rise to the second restrictive clause (the exclusionary clause), and thus, appellant had the burden of excluding the possibility that a pre-existing infirmity contributed to the death when the evidence in her case in chief pointed to that possibility. Since the evidence she presented, if believed, would not have excluded such a possibility, I agree with the majority that a compulsory nonsuit was properly granted by the lower court.


author: BECK, Judge:

text:
    488 A.2d 317
    Konstantinous TSIOUKAS, Appellee, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1984.
    Filed Feb. 13, 1985.

      Joseph F. Leeson, Bethlehem, for appellant.
    John R. Vivian, Jr., Easton, for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   BECK, Judge:

Appellant insurance company prevailed in a compulsory arbitration proceeding initiated by appellee claimant who sued under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. §§ 1009.101 et seq. Appellee claimant filed a Notice of Appeal in the trial court from the arbitration award. See Pa.R.C.P. No. 1308. Appellant filed a Motion to Quash the appeal based on untimeliness. Appellant’s Motion to Quash was denied, and appellant asks this court to determine whether the denial was proper.

The threshold question is whether the trial court order denying appellant’s motion to quash appellee’s appeal from the arbitration award is an appealable order for purposes of Superior Court review. For the following reasons we find that the instant trial court order is not appealable, and therefore we quash appellant’s present appeal to the Superi- or Court.

In denying appellant’s Motion to Quash appellee’s appeal from the arbitration award, the trial court placed the parties in a posture to proceed in court on the merits of their dispute. Since the trial court’s order thus did not put the parties out of court or end the parties’ litigation, the trial court’s order refusing to quash appellee’s appeal was an interlocutory order. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

Interlocutory orders are appealable only if rendered appealable by statute or general rule promulgated by the Pennsylvania Supreme Court. Pa.R.A.P. 311-312; Sections 702 and 5105 of the Judicial Code, 42 Pa.C.S. §§ 702 & 5105.

Citing Turner, appellant argues that the trial court’s interlocutory order should be deemed appealable. In Turner, as in the case sub judice, the trial court denied a Motion to Quash an appeal from an arbitration award. In accordance with Section 1 of the Act of March 5, 1925 (“Act”), P.L. 23, 12 P.S. § 672, which provided for immediate appeals from trial court jurisdictional rulings, Visscher v. O’Brien, 274 Pa.Super. 375, 418 A.2d 454 (1980), we held that the trial court order in Turner was an appealable interlocutory order.

However, the basis for our rationale in Turner does not exist in the case before us. Section 1 of the Act was repealed by Section 2(a)[1069] of the Act of April 28, 1978, P.L. 202 (effective June 27, 1980), and the repealer was in effect when the trial court denied appellant’s Motion to Quash appellee’s appeal from the arbitration award. The subject matter covered by Section 1 of the Act now appears at Section 5105(c) of the Judicial Code, 42 Pa.C.S. § 5105(c). Hence, the present case is governed by Section 5105(c) of the Judicial Code which has been implemented by Pa.R.A.P. 311. See Note following Pa.R.A.P. 311.

Currently, there is no statute or rule of court which makes automatically appealable a trial court’s interlocutory order denying a motion to Quash an appeal from an arbitration award. See Pa.R.A.P. 311. Consequently, the instant appeal is quashed without prejudice to appellant’s right to raise any jurisdictional issue in a subsequent appeal.

      . In pertinent part, Section 1 of the Act of March 5, 1925, P.L. 23, 12 P.S. § 672, states that whenever “the question of jurisdiction over the defendant or of the cause of action ... is raised in the court of first instance, it shall be preliminarily determined by the court ... and the decision may be appealed to ... the Superior Court, as in cases of final judgments."

      . A court’s ruling .on the timeliness of an appeal constitutes a ruling on subject matter jurisdiction. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

      . Section 5105(c) of the Judicial Code, 42 Pa.C.S. § 5105(c), states in relevant part that “[t]here shall be a right of appeal from such interlocutory orders ... as may be specified by law. The governing authority ... shall establish by general rule rights to appeal from such classes of interlocutory orders ... from which appeals are regularly permitted pursuant to section 702(b) [42 Pa.C.S. § 702(b) ].”

      . See Section 7320 of the Uniform Arbitration Act, 42 Pa.C.S. § 7320, for an example of legislation which renders appealable certain types of orders relating to statutory arbitration.


author: CERCONE, President Judge: WIEAND, Judge,

text:
    488 A.2d 319
    COMMONWEALTH of Pennsylvania v. Robert TURNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Feb. 13, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   CERCONE, President Judge:

Appellant was convicted in Philadelphia Municipal Court of violating Section 6106 of the Crimes Code, 18 Pa.C.S. § 6106 (Firearms not to be carried without a license) and sentenced to one year non-reporting probation and payment of a $60 fine. He filed a timely petition for a writ of certiorari to the Court of Common Pleas which subsequently denied the petition and thereby affirmed the Municipal Court’s judgment of sentence. This appeal followed.

Crimes Code Section 6106 reads in part:
(a) Offense defined. — No person shall carry a firearm in any vehicle or concealed on or about his person except in his place of abode or fixed place of business, without a license therefor as provided in this sub-chapter.
(b) Exceptions. — The provisions of subsection (a) of this section shall not apply to:

18 Pa.C.S.A. § 6106(a) & (b). Subsection (b) goes on to enumerate ten exceptions to subsection (a). We have previously held that the exceptions in subsection (b) are not elements of the offense which the Commonwealth must prove beyond a reasonable doubt if a conviction is to be sustained, but are rather affirmative defenses which must be proven by the accused. See Commonwealth v. Hughes, 268 Pa.Superior Ct. 536, 408 A.2d 1132 (1979). On the other hand, the Supreme Court has held that lack of a license for the firearm in question is an essential element of the offense proscribed by Crimes Code Section 6106 and the burdens of proof and persuasion lie on the Commonwealth. See Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) . And see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Cf. Commonwealth v. Stoffan, 228 Pa.Superior Ct. 127, 323 A.2d 318 (1974). But cf. Commonwealth v. Bigelow, supra, (Lack of license not essential element of offense proscribed by 18 Pa.C.S. § 6108 “Carrying firearms on public streets or public property in Philadelphia”). The question presented on appeal, however, deals with neither of those two lines of cases. Rather, appellant contends that the Commonwealth bears the burden of proving that the unlicensed firearm found in his possession was found on him outside his “place of abode or fixed place of business.” See 18 Pa.C.S. § 6106(a).

Appellant argues that “except in his place of abode” should be read as a material element of the offense just as “without a license” was read in Commonwealth v. McNeil, supra. And he argues that the Commonwealth did not make out its case against him because it failed to present any evidence in its case in chief that he was not in his “place of abode” when found with the prohibited firearm. He contends the Municipal Court should have granted his demurrer to the evidence based on this contention. Finally he argues that the trial judge improperly took “judicial notice” that he was not in his “place of abode” when found with the gun based on information contained in the record but not introduced into evidence or adduced at trial. The Commonwealth responds that “place of abode” should be construed to be an affirmative defense and not an essential element of the crime as defined in Section 6106(a), and that the burden therefore should rest on the accused. It further argues that by presenting a defense appellant waived the demurrer, but that such an argument on appeal will be treated as an attack on the sufficiency of the evidence. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976) . And the Commonwealth contends that the evidence adduced at trial was sufficient to sustain the verdict.

Primary among the rules of statutory construction is that our goal in considering the statute before us is to ascertain and effectuate the intention of the legislature. 1 Pa.C.S. § 1921(a). And see Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979); Commonwealth v. Hughes, supra. We are rightly called upon to use a common sense approach, construing words and phrases according to their common usage and the rules of English grammar. 1 Pa. C.S. § 1903(a). There is a presumption that the Legislature did not intend a result that is absurd, unconstitutional or impossible of execution. 1 Pa.C.S. § 1922(1). Furthermore, penal provisions shall be read strictly in favor of an accused. 1 Pa.C.S. § 1928(b)(1). And see Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979); Commonwealth v. Darush, 256 Pa.Superior Ct. 344, 389 A.2d 1156 (1978). We may look to the heading or title of a particular section in construing that section, but that alone will not control. 1 Pa.C.S. § 1924. Cf. Commonwealth v. Bigelow, supra. Moreover, “provisions shall be construed to limit rather than to extend the operation of the clauses to which they refer,” 1 Pa.C.S. § 1924, and “[e]xceptions expressed in a statute shall be construed to exclude all others.” Id. We may also look to the structure of the statute as an aid in its construction. See Commonwealth v. McNeil, supra; Commonwealth v. Bigelow, supra. With these rules of construction as our guide we proceed to the merits of appellant’s argument.

In Commonwealth v. Stoffan, 228 Pa.Superior Ct. 127, 323 A.2d 318 (1974), this court found Commonwealth v. Neal, 78 Pa.Superior Ct. 216 (1922) useful in interpreting certain exemption clauses in the Controlled Substance, Drug, and Cosmetic Act, 35 P.S. § 780-113(a)(14).

“In deciding whether the exemption clauses referred to elements [of charged crimes] this court enunciated the following test:
‘When a statute defining an offense contains an exception, in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enought to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is matter of defense and must be shown by the accused.’ ” Neal, 78 Pa.Superior Ct. at 219, in Stoffan, supra 228 Pa.Super. at 140, 323 A.2d at 324.

While this test refers to the wording of an indictment, the question is the same one that is involved in this case, whether a clause phased, like an exception states a necessary element of the crime with which the defendant is charged, in which case the burden of proving the exception rests on the Commonwealth.

The Stoffan case then proceeds to enumerate four factors which must be considered in this situation where the wording of a statute is involved.

... [T]he wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is essential to complete the general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e., sets forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant. Id., 228 Pa.Superior Ct. at 141, 323 A.2d at 324.

The first of these factors appears to support the interpretation that “except in his place of abode or fixed place of business” constitutes an element of the crime. Subsection (a) of the statute contains the definition of the proscribed activity. Subsection (b) contains exceptions to that proscription. Looking to the headings of the subsections we see that subsection (a) is styled “Offense defined” whereas subsection (b) is titled “Exceptions.” Both the structure of the statute and the subsection headings seem to indicate that “place of abode” is not an exception, and thus the Commonwealth must prove that the offense did not occur in appellant’s “place of abode.”

Moreover, remembering Section 1924 of the Statutory Construction Act, the expression of the exceptions, clearly delineated such, as in subsection (b), should be read to exclude all other exceptions. Following this line of reasoning, “place of abode” is not an exception to the proscription of Section 6106(a) but rather an element of the offense. This conclusion is bolstered by what this court wrote in Commonwealth v. Hughes, where we said:

[W]e note the language defining the offense in section 6106(a) of the Act clearly, accurately, and fully describes the conduct sought to be punished without resort to subsection (b) of 6106 (Exceptions). Grammatically, section 6106(b) is completely divorced from the more specific provisions of 6106(a) which defines the essential elements of the crime.

Id., 268 Pa.Superior Ct. at 546, 408 A.2d at 1137-1138. Thus it would appear that applying these rules of construction yields the conclusion that the legislature intended that the Commonwealth prove that the offense did not take place in appellant’s place of abode.

Nevertheless, this court concludes, as did the trial court, that it was not the intention of the legislature to impose this burden upon the Commonwealth.

The heading for section 6106 is “Firearms not to be carried without a license.” Even a cursory reading of the title would seem to indicate that the gravamen of the offense is the simple carrying of an unlicensed firearm. Indeed, the Court of Common Pleas so concluded when it considered the question on appellant’s petition for writ of certiorari. The fact that the phrase in question is set off by commas and begins with the word “except” would also tend to indicate that it was meant as a proviso to the definition of the offense rather than as an element thereof, for as the Supreme Court stated in Commonwealth v. Bigelow:

Material placed in a proviso is not an element of the crime but rather a matter of defense and need not be either plead or proved by the prosecution. United States v. Winnicki, 151 F.2d 56, 58 (7th Cir.1945) and cases cited therein. Id., 484 Pa. at 482-483, 399 A.2d at 395.

The Crimes Code, in Section 103, defines “Material element of an offense” as

[a]n element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with:
(1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or
(2) the existence of a justification or excuse for such conduct.
18 Pa.C.S.A. § 103.

In concluding that the “harm or evil ... sought to be prevented” by Section 6106 was the mere possession of an unlicensed firearm regardless of the location, the trial court compared Section 6106 with Sections 6107 and 6108 of the Uniform Firearms Act. The most striking distinction between them is that violations of Section 6106 can occur not only on public streets or public property, but on private property. That is, there is a general prohibition against carrying a concealed firearm not only on public streets or property, but in private homes or places of business. Section 6106(a) provides a blanket prohibition against carrying an unlicensed weapon anywhere. Thus, this is the “general prohibition intended” by the act; the exception for place of abode is not required to complete it. On the contrary, the exception for “place of abode or fixed place of business” clearly makes “an excuse or justification for what would otherwise be criminal conduct” and, therefore, represents an affirmative defense. The crime is technically committed even if the home is that of a parent, a son or daughter, or any other person with whom the defendant may have had the most close and personal relationship, so long as it is not his own abode; similarly, the crime is committed if the weapon is concealed upon his person while at a business establishment of people with whom he regularly does business, if this is not his “fixed place of business”. Commonwealth v. Carr, 334 Pa.Superior Ct. 459, 483 A.2d 542 (1984).

Finally, the fourth factor in Stoffan, “whether the matter is peculiarly within the knowledge of the defendant,” also supports the exception as an affirmative defense. Whether a location in which a defendant is found to be carrying a concealed unlicensed firearm is indeed his “place of abode” is often within a defendant’s own knowledge. And, in these cases, there is no central accessible record upon which the Commonwealth may draw to determine a defendant’s place of abode. The legislature did not intend to place on the Commonwealth the burden of establishing the “place of abode” when only a defendant or the witnesses within his control contains the necessary information.

Having concluded, then, that the trial court correctly interpreted the charged crime, we turn to appellant’s contention that the evidence was insufficient to support his conviction beyond a reasonable doubt. In considering the sufficiency of the evidence to sustain the verdict we must read all the evidence, from whatever source, in the light most favorable to the Commonwealth as verdict winner, drawing all reasonable inferences therefrom likewise favorable to the Commonwealth. Commonwealth v. Carter, 304 Pa.Superior Ct. 142, 450 A.2d 142 (1982).

The Commonwealth’s only witness, Officer Ryan, testified that he responded to a radio call and went to 2830 North 22nd Street in the City of Philadelphia. Upon arriving there he was waved down by a woman. He proceeded into a beauty shop at that address. At the rear of the shop was a second room used as a residence. He stated that he saw appellant seated there, whom he frisked. The officer found a .22 caliber six-shot revolver in appellant’s pocket. Appellant was immediately arrested and subsequently booked. Appellant testified that at the time of his arrest he was living with his paramour in the rear room of the beauty shop, and that his paramour owned the shop. He also testified that after his release from police custody he returned to the North 22nd Street address. On cross-examination he testified that he occasionally stayed at his sister’s home at 4639 North 12th Street. He also testified that when he was arrested he gave North 12th Street as his address. Evaluation of a witnesses’ credibility is for the finder of fact, who may believe all, part, or none of the testimony before it. See Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Darush, supra. Clearly, the trial judge was not obliged to accept appellant’s testimony that the residence in which he was arrested was his “place of abode.” Just as clearly, the trial judge could have believed appellant when he testified that he stayed with his sister from time to time. Based on these conclusions as to credibility, the trial judge could reasonably have concluded that appellant was found in possession of the pistol outside his “place of abode”. Thus, we conclude that the evidence is sufficient to show that appellant was found in possession of this weapon outside of his “place of abode,” and that the verdict is therefore sustainable.

Appellant’s final contention is that the trial judge erroneously took “judicial notice” of the fact that appellant had listed his address as 4639 N. 12th Street on certain papers contained in appellant’s file when he ruled on the demurrer. Because his “place of abode” was not a material element of the offense, taking judicial notice of the address listed on the papers in question was innocuous.

For the above reasons, order denying petition for writ of certiorari and judgment of sentence are affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

Although I acknowledge the great care with which the majority has approached a difficult problem, I must nevertheless dissent. In my judgment it is an essential element of the offense defined at 18 Pa.C.S. § 6106 that possession of an unlicensed firearm occur at a place other than the possessor’s “place of abode or fixed place of business.” See: Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974). I would hold, therefore, that when there is evidence from whatever source that the defendant’s possession of an unlicensed firearm occurred only at his place of abode, the burden is then on the Commonwealth to prove beyond a reasonable doubt that his possession of the unlicensed firearm was criminal, i.e., that possession of the unlicensed firearm occurred at a place that was not his place of abode. See: Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). See also: Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981); Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975); Common wealth v. Rittle, 285 Pa.Super. 522, 428 A.2d 168 (1981). In the instant case, the only evidence was that appellant had been in his place of abode when found in possession of an unlicensed firearm. Thus, the Commonwealth failed to prove a violation of 18 Pa.C.S. § 6106(a). I would reverse the judgment of sentence and discharge the appellant.

      . In Stoffan, this court found that a clause beginning with the word “except" did not define a defense but, rather, a necessary element of the crime.

      . § 6107. Prohibited conduct during emergency.
      No person shall carry a firearm, rifle or shotgun upon the public streets or upon any public property during an emergency proclaimed by a municipal or State government executive unless that person is:
      (1) Actively engaged in a defense of his life or property from peril or threat.
      (2) Licensed to carry firearms under section 6109 of this title (relating to licenses) or is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

      . § 6108. Carrying firearms on public streets or public property in Philadelphia.
      No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:
      (1) such person is licensed to carry a firearm; or
      (2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

      . Unlike the Commonwealth’s record of licenses to carry firearms. McNeil, supra.

      . On two occasions during his cross-examination appellant, as found by the trial court on remand by this court for correction of the record, twice misstated the 2830 North 22nd Street address, which caused some confusion.


author: CERCONE, Judge:

text:
    488 A.2d 324
    COMMONWEALTH of Pennsylvania ex rel. Linda LORING v. Wolson LORING, Appellant.
    Superior Court of Pennsylvania.
    Argued July 25, 1984.
    Filed Feb. 13, 1985.

      Blaine J. DeSantis, Reading, for appellant.
    James R. Hevalow, Reading, for appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Berks County granting appellee-mother’s petition for child support. A master heard the evidence, including the fact that the parties are parents of two minor daughters. They have been divorced since 1971 and no prior support order was ever entered. The master recommended that appellant pay $50 per week for the support of both children, as well as $8 per week on arrearages. The court of common pleas adopted the findings and decision of the master. This direct appeal by the father followed.

Appellant-father argues on appeal that the lower court abused its discretion in refusing to consider his current living expenses and debts, in failing to take into consideration the weekly earnings of one of the daughters, and in reducing appellant’s net pay to an amount less than $50 per week, which he alleges is below the guidelines of the Berks County Domestic Relations Court. Because we find that the trial court did not arrive at the amount of support in accordance with established precedent, we are constrained to vacate the order and remand for further proceedings.

Initially, our review is confined within certain parameters.

“The amount of a child support order is largely within the discretion of the trial judge____ A child support order must be fair, not confiscatory, and must be consistent with the parent’s station in life and customary standard of living, making due allowance for the reasonable living expenses of the parent.” Shank v. Shank, 298 Pa.Superior Ct. 459, 444 A.2d 1274 (1982) (citations omitted).

Moreover, our Supreme Court has said recently:

In order to define the support obligation of each parent, a court must first determine the needs of the children: a court has no way of arriving at a reasonable order of support unless it knows how much money is actually required to care for the children involved, (footnote omitted) Melzer v. Witsberger, 505 Pa. 462, 470, 480 A.2d 991, 995 (1984).

Finally, our scope of review in child support proceedings is limited; absent a clear abuse of discretion, we will defer to the order of the lower court. Jaskiewicz v. Jaskiewicz, 325 Pa.Superior Ct. 507, 473 A.2d 183 (1984).

At the hearing on appellee’s petition on October 12, 1982, Mrs. Loring testified that she is the sole support of five children, three from another marriage, and that she is on public assistance, and has been for about ten years. Appellee testified that in eleven years she has never received any support from appellant. It was established that Belinda earns between $32 and $35 weekly at a part-time job. This proceeding was the first court support request Mrs. Loring had made of Mr. Loring, but they had had a private support agreement that appellant pay $10 weekly for each child. This was the extent of appellee’s testimony.

Appellant assumed the stand and testified, without challenge, as to his income and expenses. He is employed as a supervisor at a canning factory, earning a net income of $248 per week minus $35.50 in a payroll deduction for support of two other children of a subsequent marriage. Appellant’s monthly mortgage payment is $273.06. He is paying $60 per month on an installment loan, $57 per month on a car loan, an average electric bill of $30, car insurance of about $16 per month, fuel oil amounts to $176.49 per month, a payment of $82 per month on a $1722 loan, $21.50 per month toward a cemetery plot, $25 per month for a gas bill, and $11.50 per month in life insurance payments. In addition, reference was made to certain expenses of appellant related to his father’s death. However, the amounts do not appear of record. These are all justifiable expenses which when totaled amount to approximately $752.55 out of a monthly net income of $850.00.

While the trial court described this situation as “defendant’s financial predicament,” it upheld the master’s order that appellant pay $50 support plus $8 in arrearages per week with the explanation that

“[Pjroper consideration of the testimony presented herein convinces us that defendant’s unstable financial condition is a product of his own making. Consequently, it should not operate to deprive the children of his previous marriage of an award of support or diminish the amount thereof.”

We could agree with the lower court’s reasoning that appellant’s debt in this case, because it is a product of his own making, is not a factor to consider in making an award of child support, if there were any evidence that appellant assumed his debt in order to avoid his support obligations, which are “well nigh absolute.” Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Superior Ct. 32, 457 A.2d 98 (1983). Cf. Weiser v. Weiser, 238 Pa.Superior Ct. 488, 491, 362 A.2d 287, 288 (1976) (It is undisputed that a father or husband cannot intentionally reduce his actual earnings and then use the reduction in earnings to obtain a reduction in the amount of support he must provide for his family.) However, there is no such evidence of this here.

It appears, that, while the lower court did “consider” appellant’s expenses in that it listed them, it did not actually use them in arriving at an amount of support. So, in effect, by ignoring them, the court did not really “consider” them, as is mandated by our case law. We hold that where, as here, a trial court disregards the reasonable living expenses of a parent in awarding support, such constitutes an abuse of discretion. We therefore vacate the order of the court and remand for a hearing on the amount needed to provide for the children and on the current reasonable expenses of appellant. In determining the proper amount to be awarded, the court should arrive at what the children need, commensurate, as fairly as possible, with appellant’s ability to pay.

The order of the trial court is vacated and the matter is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Belinda, born April 13, 1966 and Catrina, born July 3, 1970. (We note that 'Belinda is now eighteen years of age.)

      . In Melzer, the Court, per Larsen, J., in an attempt to organize the relevant principles to be applied to a child support order, propounded a formula for courts to follow. However, the Court was clear that such a formula was most useful in complex cases. We do not feel it is applicable here.

      . This $850 amount has been adjusted to reflect the $32.50 weekly payroll deduction for support of appellant’s children of the subsequent marriage.

      . As for appellant’s second contention regarding the part-time employment of Belinda, we find, contrary to appellant's allegation, that the award did reflect a consideration of her weekly earnings.


author: WIEAND, Judge:

text:
    488 A.2d 327
    COMMONWEALTH of Pennsylvania v. Randolph JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed Feb. 15, 1985.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before SPAETH, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Randolph Johnson was tried by a jury which found him guilty of robbery and criminal conspiracy. On direct appeal, he contends that it was error to deny a defense request to interrogate a co-defendant out of the hearing of the jury and to allow the Commonwealth to place the co-defendant on the witness stand and interrogate him before the jury when it was known that the co-defendant would assert his Fifth Amendment right to remain silent and refuse to answer questions. We agree and reverse.

The holdup which gave rise to criminal charges in this case occurred at or about 10:40 p.m. on August 21, 1981 at the 7-Eleven Store at 69th Avenue and Old York Road in Philadelphia. Monica Ritinski, the cashier, testified that a man identified as Darryl Montoute had held a shotgun, which he pointed at her, while a companion, whom she could not identify, removed the drawer from the cash register. As the two men beat a hasty retreat from the store, they encountered Roger Oliver who was about to enter. He was told to get out of the way, and the man carrying the shotgun, whom he identified as Darryl Montoute, menacingly pointed the gun in his direction. Oliver saw the two men get into a red Ford; before they drove away, he was able to obtain and record the license number of the vehicle. With this information the police were able to determine that Ronald Stephens was the registered owner of the car. When they went to Stephens’ residence, they found Stephens, Montoute, Johnson, and a person known as “Box”, who was intoxicated. A sawed-off shotgun was found in the red Ford, and the drawer of the cash register was found in a trash can at the rear of the residence. Oliver, who unequivocally identified Montoute as the person who had held the gun, was unable to identify the other man who had fled from the scene of the robbery. Stephens testified that on the night of the robbery he had leased his car to Montoute and Johnson.

Montoute filed a pre-trial motion to sever the charges against him from those pending against Johnson. During a hearing thereon, he testified that Johnson had been the other robber but that he, Montoute, would not testify as a Commonwealth witness if Johnson were present. Johnson had threatened him, he said, and he feared for his life. After the motion to sever had been denied, Montoute entered a plea of guilty to the charges which had been brought against him.

At trial on the charges against Johnson, the Commonwealth announced its intention to call Montoute as a witness. Objections were made by counsel for Montoute and also by the attorney for Johnson. The trial court, however, approved a Commonwealth grant of immunity to Montoute and said that he would be allowed to testify. Defense counsel objected and requested the court to interrogate Montoute out of the hearing of the jury because it was believed that Montoute would refuse to testify. To claim the privilege against self-incrimination in the presence of the jury, it was argued, would be prejudicial to Johnson, especially so because Montoute would be appearing in prison garb. The trial court overruled the objection and required Montoute to testify before the jury. The following is what occurred:

BY MR. CARPENTER:
Q. Mr. Montoute, good afternoon.
A. Good afternoon.
Q. Mr. Montoute, on August 21, 1981, were you arrested?
A. I don’t wish to answer any questions.
BY THE COURT:
Q. You refuse to answer questions?
A. I don’t refuse. I just don’t wish to answer any questions.
Q. Are you claiming a privilege under the 5th and 14th Amendments?
A. Yes, I am.
THE COURT: I have already signed an Order granting you immunity so the testimony may not be used against you. I hereby order you and direct you to answer the questions.
BY MR. CARPENTER:
Q. Mr. Montoute, on August 21, 1981, were you arrested?
A. I don’t wish to answer any questions.
THE COURT: I am ordering and directing you to answer questions.
THE WITNESS: I don’t wish to answer any questions.
BY MR. CARPENTER:
Q. Mr. Montoute, on August 21, 1981, were you arrested?
A. I don’t wish to answer any questions.
Q. Do you understand there has been an Order signed by the Judge, signed also by the District Attorney, Edward Rendell, saying anything that you say here in Court today cannot be used against you?
A. I understand perfectly. I don’t wish to answer any questions.
Q. Did you plead guilty to robbing a Seven Eleven? MR. GLOYIN: Objection.
THE COURT: Overruled.
THE WITNESS: I don’t wish to answer any questions.
BY MR. CARPENTER:
Q. You may not wish to, but you must. Did you plead guilty to robbing a Seven Eleven?
A. I don’t wish to answer any questions.
BY THE COURT:
Q. Tell me why you refuse to answer?
A. I don’t wish to answer any questions.
MR. CARPENTER: Will you instruct him to answer?
THE COURT: I have already instructed him.
BY THE COURT:
Q. Do you realize by refusing to comply with my Order, you are now in contempt of Court? Do you understand that?
A. Yes, I do.
Q. Do I take it you are not going to answer any questions put to you by Mr. Carpenter at all?
A. Yes.

Record, pp. 331-333.

The applicable law is clear. In Commonwealth v. Du Val, 453 Pa. 205, 307 A.2d 229 (1973), the Supreme Court held “that the prosecution, once informed that a witness intends to claim a privilege against self-incrimination, commits error in calling that witness to the stand before the jury where the witness is a person (co-defendant, accomplice, associate, etc.) likely to be thought by the jury to be associated with the defendant in the incident or transaction out of which the criminal charges arose.” Id., 453 Pa. at 217, 307 A.2d at 234. See also: Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981). The necessity for proceeding out of the hearing of the jury is not obviated because a co-defendant has entered a plea of guilty. See: Common wealth v. Davenport, 453 Pa. 235, 239-240, 308 A.2d 85, 87 (1973). Similarly, it is not an adequate answer that the court or the prosecution believes the assertion of the privilege is invalid. “The witness’ known intent to invoke the privilege coupled with the prosecutor’s opinion that the testimony sought can be nevertheless compelled presents the risk that, [as occurred in this case], the witness might prove not only reluctant to testify but contumacious as well. If the fact of invocation of the privilege is, as [the Supreme Court has held], irrelevant to the issues and prejudicial to the defendant, it is that much more prejudicial to permit the jury to observe that the recalcitrant witness (a person likely to be associated in the jurors’ minds with the defendant) elects to remain silent notwithstanding the order of the court that he testify.” Commonwealth v. Du Val, supra 453 Pa. at 217, 307 A.2d at 234.

In the instant case, defense counsel properly requested the trial court to question Montoute out of the hearing of the jury. In this manner, the entire issue could have been settled without impairing the jury’s ability to reach a just and fair determination based solely on relevant evidence. Instead, after the co-defendant had asserted the privilege against self-incrimination and had repeatedly refused to answer questions, the jury heard the prosecuting attorney ask him if he had entered a plea of guilty. The jury was also told that the witness was in contempt of court. This was error. The information thus imparted to the jury was wholly irrelevant to the issue of Johnson’s guilt or innocence.

The Commonwealth does not contend otherwise. It argues, instead, that appellant caused Montoute’s refusal to testify by threatening him and that, in any event, the error was harmless because evidence of guilt was overwhelming. We reject these arguments. The trial record does not disclose the reason why Montoute elected to assert the privilege against self-incrimination. Although Montoute had testified during a pre-trial hearing regarding threats made by appellant, this testimony was not repeated at trial, and there is no basis for concluding that the prior threats, if made, were the cause of the co-defendant’s refusal to testify at trial. On the contrary, the only inference to be drawn from statements made by Montoute’s counsel is that Montoute’s unwillingness to testify was prompted at least in part by an uncertainty regarding the efficacy of the Commonwealth’s grant of immunity to one who had already entered a plea of guilty. This also explains Montoute’s announced decision to seek a withdrawal of his plea of guilty if compelled to testify in exchange for a grant of immunity. In any event, the reasons for Montoute’s unwillingness to testify and the nature and effect of the immunity being tendered by the Commonwealth in exchange for Montoute’s testimony were matters that could better have been resolved out of the hearing of the jury before Montoute was placed on the stand in the jury’s presence.

Without Montoute’s testimony, the Commonwealth’s evidence implicating appellant in the robbery was entirely circumstantial. The eyewitnesses were not able to identify appellant, and their description of the second robber was meager. In view of the fact that the jury’s guilty verdict was based on inferences to be drawn from the Commonwealth’s evidence, we are unable to hold, as the Commonwealth would have us do, that the trial court’s error was harmless. Rather, it appears that appellant may well have been prejudiced unfairly by an improper inference drawn from the irrelevant refusal of a co-defendant to testify on Fifth Amendment grounds.

The error was not corrected by cautionary instructions. During the delivery of jury instructions, the trial court told the jury unequivocally that Montoute had entered a plea of guilty to the robbery, explained the immunity which had been granted to him, and told the jury that the witness was in contempt of court by nevertheless refusing to testify. The court concluded:

I do not mean to imply you should read into his conduct of not testifying as being an admission of guilt on the part of the defendant. Because he did not testify you are unable to evaluate his testimony. My purpose in referring to it is so you completely understand what was meant by the grant of immunity____

(N.T. 542-543).

“Whether or not prejudicial error can be cured by appropriate instructions can be answered only through an objective evaluation of the capability of the average juror to follow the instruction and thus refrain from ... use of evidence improperly admitted.” Commonwealth v. DuVal, supra, 453 Pa. at 218, 307 A.2d at 235. In the instant case, the unfair prejudice was such that it was unlikely that it could be corrected by appropriate instructions. We need not make that determination, however, for in any event the instructions by the trial court in this case were far from adequate. The jurors knew, because the court told them, that Montoute had entered a plea of guilty to the same offense for which appellant was being tried. The jury also learned from the evidence that the car had been leased to Montoute and appellant and that appellant had been in Montoute’s presence when the latter had been apprehended after the robbery. The potential for transferring Montoute’s admission of guilt adversely to appellant, therefore, was great. Moreover, the trial court’s instructions merely told the jury what the court was not implying. It did not expressly tell the jury that the jury should not infer appellant’s guilt from Montoute’s admitted guilt and refusal to testify. See: Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973). See also: Commonwealth v. DuVal, supra. Instead, the court told the jury that Montoute was not only guilty of robbery but reprehensibly contemptuous of the court for refusing to implicate appellant. An error of this magnitude requires that a new trial be granted.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 903.

      . The grant of immunity extended only to the non-use of Montoute’s testimony in the criminal proceedings pending against him, where pleas of guilty had already been entered.

      . The trial court apparently had misunderstood an earlier defense objection and believed that counsel had objected to Montoute’s giving testimony in camera. The nature of the objection was thereupon restated, and the record is clear that defense counsel requested an in camera determination of what Montoute would say and objected to the witness being placed on the stand in the presence of the jury before he had been interrogated in camera.

      . Defense counsel objected to these instructions as compounding the prejudice previously suffered by the co-defendant’s refusal to testify in the presence of the jury.

      . Appellant has also argued that the attorney for the Commonwealth was guilty of prosecutorial misconduct in his closing argument to the jury and during his questioning of the witness, Joan Clark. Our examination of the record fails to disclose such misconduct. The mere fact that the prosecution commented upon the strategy of defense counsel and suggested that he had put roadblocks in the way of the Commonwealth was not per se improper. The effect of these comments was not to prejudice the appellant by forming in the jurors’ minds a fixed bias or hostility so that they were unable to weigh the evidence objectively and return a true verdict. With respect to the witness, Joan Clark, she was held to be a hostile witness, and the prosecution was permitted to cross-examine her. We perceive no error, and even appellant has been unable to identify error in her cross-examination which is sufficiently egregious to require a new trial.


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    488 A.2d 331
    COMMONWEALTH of Pennsylvania v. Ruth MADRON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1984.
    Filed Feb. 15, 1985.

      Andrew W. Hood, West Chester, for appellant.
    Stuart B. Suss, Assistant District Attorney, Reading, for Com., appellee.
    Before CAVANAUGH, WIEAND and MONTGOMERY, JJ.
   WIEAND, Judge:

Ruth Lee Madron was found guilty of theft by receiving stolen property. She withdrew post-trial motions pursuant to a plea agreement which required her also to enter a plea of guilty to a second charge of theft by receiving stolen property. The plea agreement called for a total sentence of imprisonment for not less than six nor more than twenty-three months, together with restitution’ and fines in amounts to be determined by the court. After hearing, the court ordered Madron to make restitution jointly and severally with two co-defendants. The restitution ordered to one victim was in the amount of $25,000; the sum of $20,000 was to be paid to the other. On direct appeal, Madron argues that the restitution ordered by the court is excessive because it cannot be paid from current income and will compel her to sell a residence which she owns in order to make restitution to her victims. There is no merit in this contention; and, therefore, we will affirm the judgment of sentence.

This Court has never held that an order of restitution must be in an amount which can be paid from a defendant’s current earnings. Rather, we have said that in many instances

it will be necessary for a defendant to make substantial sacrifices in order to make restitution to the victims of his crimes. This is not an obstacle to an order requiring such restitution. Rather, where sacrifice is necessary, the probationer or parolee may learn to consider more carefully the consequences of his or her acts and thereby strengthen the offender’s sense of responsibility. Thus, an order of restitution may properly require additional or alternate employment, a reduction of expenses, and even a temporary change in lifestyle in order to achieve that sense of responsibility which signals effective rehabilitation. The true rehabilitative purpose of restitution is well served when a probationer or parolee is called upon to make reasonable sacrifices in order to compensate those who have sustained losses as a result of his criminal conduct. The rehabilitative goal is defeated only when the payments ordered by the court are so unreasonable in view of the defendant’s financial circumstances and ability to work that, despite good faith efforts, the defendant cannot hope to comply.

Commonwealth v. Wood, 300 Pa.Super. 463, 468, 446 A.2d 948, 950 (1982). Where the defendant owns assets in an amount sufficient to make restitution, he or she may be called upon to sell or borrow on the security of those assets and use the proceeds to make restitution. The rights of a victim to be made whole will not be made subservient to the criminal’s desire to retain an unencumbered title to capital assets.

In the instant case, the record discloses that appellant is the owner of a residential property whose value is approximately $60,000, with a mortgage of less than $7,500.00. This suggests that appellant’s financial circumstances are adequate to allow her to make restitution for the losses of $45,000 which her criminal conduct caused to others. Finding no abuse of discretion on the part of the sentencing court, the judgment of sentence will be affirmed.

Affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. I would hold that the restitution order was excessive and remand for resentencing directing the court below to fashion a restitution order not in excess of Fifteen Thousand Dollars ($15,000.00).

      . The first victim (Romanelli) had sustained a loss of $33,734.54; the second victim (Pennell) had sustained a loss of $27,710.00.

      . Rehabilitation of the criminal is not the only purpose to be served by restitution; it also serves to compensate or aid in compensating the victim.

      . This was the unpaid balance in 1976. Monthly payments of 193.48 have been made regularly since that time.


author: CIRILLO, Judge:

text:
    488 A.2d 333
    CITY OF PITTSBURGH v. ALLEGHENY COUNTY DISTRIBUTORS, INC., S.C. Hamilton, President of Allegheny County Distributors Inc. and Harley-Davidson, Inc. Successors to Allegheny County Distributors, Inc. Appeal of PITTSBURGH HARLEY-DAVIDSON, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1984.
    Filed Feb. 15, 1985.

      Robert Federline, Pittsburgh, for appellant.
    Kellen McClendon, Pittsburgh, for appellees.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal by appellant, Pittsburgh Harley-Davidson, Inc., from an order of the Court of Common Pleas of Allegheny County refusing to open a confessed judgment. We affirm.

Early in 1957, Allegheny County Distributors, Inc. (ACDI) entered into a written month-to-month lease agreement with the City of Pittsburgh, for the use and possession of certain real property. Among the terms of the lease were: a confession of judgment and warrant of attorney clause; a provision for thirty days’ notice to vacate; and a clause providing that:

All rights and liabilities herein given to or imposed upon either of the parties hereto, shall extend to the heirs, executors, administrators, successors and assigns of each party. If the Tenant lawfully occupies the premises after the end of the term, this Lease and all its terms, provisions, conditions, covenants, confession, or confession of judgment, waivers, remedies, and any and all of Lessor’s rights herein especially given and agreed to, shall be in force for another month and so on from month to month as long as the relation of Landlord and Tenant continues. (Emphasis added).

In 1975, ACDI changed its name to Pittsburgh Harley-Davidson, Inc. (PHDI). The name change was effectuated for better advertising and identification of appellant’s business. In the words of the president of PHDI: “It is the same company under a different name ... same officers, same location, same store, same dealership.”

The circumstances giving rise to the instant action began in March, 1983, when the City gave PHDI notice that the lease was terminated and requested that the property be vacated. Approximately two months later, the property not having been vacated, the City filed a complaint in confession of judgment for possession of the property. The following day, the City caused a writ of execution for possession of the property to be issued by the Prothonotary.

PHDI then filed a petition to set aside or stay execution and to strike or open the confessed judgment. The trial court issued a rule to show cause why the judgment should not be stricken and stayed execution on the judgment. The court denied the issuance of a rule to show cause why the judgment should not be opened. From the court’s refusal to open the judgment, PHDI has appealed.

It is well-established that our scope of review on appeals from the grant or denial of a petition to open a judgment by confession is very narrow. Lincoln Bank v. Kelly, 282 Pa.Super. 261, 422 A.2d 1106 (1980). Such petitions are appeals to the equitable and discretionary powers of the trial court, and absent an abuse of discretion or manifest error, we will not disturb its decision. Tony Palermo Construction v. Brown, 326 Pa.Super. 566, 474 A.2d 635 (1984); First National Bank of Fryburg v. Krielbel, 311 Pa.Super. 428, 457 A.2d 961 (1983); Lincoln Bank v. Kelly, supra.

In order to open a confessed judgment, the petitioner must first comply with the requirements of Pa.R.Civ.P. 2959(b). Section 2959(b) requires the trial court to first determine whether the petition states a prima facie ground for relief. If such grounds do not exist, the court may not issue a rule to show cause why the confessed judgment should not be opened. This threshold requirement of subsection (b) must be met before the other procedures outlined in Rule 2959 are to take place.

Appellant’s first contention is that the confessed judgment should have been opened so as to permit PHDI to demonstrate that the City lacked authority to enter the judgment. This argument, however, must fail. PHDI did not state a prima facie ground for relief that would require the trial court to issue a rule to show cause. The allegations contained in appellant’s petition are merely conclusions of law which are not supported by any allegations of fact. Consequently, the trial court did not err in refusing to grant a rule to show cause why the judgment should not have been opened.

Appellant’s remaining arguments are in actuality the conclusions of law appellant stated in its petition to open. We need not address these claims since we have already determined that the conclusions of law were insufficient to state a prima facie ground for relief.

Order affirmed.