author: WICKERSHAM, Judge:

text:
    488 A.2d 628
    COMMONWEALTH of Pennsylvania v. Charles BRADFORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1984.
    Filed Feb. 21, 1985.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   WICKERSHAM, Judge:

Appellant Charles Bradford was arrested on April 26, 1976, and was subsequently charged with rape, unlawful restraint, and simple assault. Appellant was tried on January 18, 1977 by the Honorable Alfred J. DiBona, Jr., sitting without a jury, and convicted of all three charges. Post-verdict motions were filed and subsequently denied. On October 5, 1977, Judge DiBona sentenced appellant to five (5) to ten (10) years imprisonment for rape, and to two (2) years concurrent probation for unlawful restraint and simple assault.

Appellant filed a pro se notice of appeal to this court requesting that counsel be appointed to represent him. The Public Defender’s Association was appointed to perfect appellant’s appeal, but upon request to the court, the Association was permitted to withdraw its appearance. Two more attorneys were appointed to represent appellant on appeal; however, neither attorney filed a brief on appellant’s behalf. On March 27, 1979, this court dismissed appellant’s appeal for failure to proceed.

On October 31, 1979, appellant petitioned for collateral relief under the Post Conviction Hearing Act. An evidentiary hearing was held before the Honorable Edward J. Blake on December 17, 1982. On September 15, 1983, Judge Blake vacated appellant’s conviction and sentence on the unlawful restraint charge and permitted appellant to petition this court for leave to appeal nunc pro tunc from the judgment of sentence imposed by Judge DiBona on October 5, 1977. All other claims for relief were denied. Appellant now appeals nunc pro tunc from the judgment of sentence of October 5, 1977, and from Judge Blake’s order of September 15, 1983 partially denying the relief he sought in his P.C.H.A. petition.

Appellant presents the following issues for our consideration:

I. Where appellant was not brought to trial timely pursuant to Rule 1100, and where trial counsel contested the Commonwealth’s petition to extend, and filed a petition to dismiss, was post-verdict motions counsel ineffective for failure to argue trial counsel’s assignment of error and was appellant thereby deprived of effective counsel in derogation of the Sixth and Fourteenth Amendments and the applicable provisions of the Pennsylvania Constitution?
II. Where trial counsel announced his unpreparedness to go to trial, and failed to investigate the necessity for locating and subpoenaing an eye-witness, was appellant denied the effective assistance of counsel under the Sixth and Fourteenth Amendments and the applicable provisions of the Pennsylvania Constitution?

Brief for Appellant at v.

In his first issue, appellant avers that he was not brought to trial timely, pursuant to Pa.R.Crim.P. No. 1100. Specifically, appellant argues that the Commonwealth failed to show due diligence warranting an extension of the Rule 1100 run date.

The complaint was filed against appellant on April 26, 1976; the mechanical run date, therefore, was October 25, 1976. Defense continuances resulted in a number of ex-cludable days. Thus, appellant does not contest that the Commonwealth’s Petition for Extension Under Rule 1100(c) was timely filed on November 1, 1976. Rather, appellant argues that the Commonwealth did not produce sufficient evidence at the Rule 1100 hearing held on November 23 to show due diligence justifying an extension to December 9, 1976.

Of course, the Commonwealth must exercise due diligence in its attempts to bring a defendant to trial. Commonwealth v. Lewis, 287 Pa.Super. 64, 429 A.2d 721 (1981). It is now axiomatic that the burden is upon the Commonwealth to prove, by a preponderance of the evidence, that it has met the requirements of Rule 1100(c). Commonwealth v. Bolden, 336 Pa.Super. 243, 485 A.2d 785 (1984); Commonwealth v. Dancy, 317 Pa.Super. 578, 464 A.2d 473 (1983); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). When, despite the exercise of due diligence, the Commonwealth cannot bring a defendant to trial within the prescribed time period, a court may properly grant an extension. Commonwealth v. Bolden, supra; Commonwealth v. Colon, supra; Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981).

Instantly, the transcript of the Rule 1100 hearing clearly establishes that the court found that the Commonwealth requested only one continuance; all other delays were caused by court delay or defense requests. N.T., Rule 1100 Hearing, November 23, 1976, at 3. The lower court granted the Commonwealth’s petition for an extension on the ground that the only continuance requested by the Commonwealth was necessitated by the illness of a detective. The only evidence of the detective’s illness was a notation in the court record. Appellant points out that the Commonwealth presented no evidence or testimony regarding the detective’s illness and therefore, the Commonwealth failed to prove that it acted with due diligence. Thus, appellant argues that Rule 1100 was violated and that the charges against him should have been dismissed.

We disagree. In Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984), this court found that a court may, in effect, take judicial notice of uncontested notations in the court record in determining whether the Commonwealth has exercised due diligence in accordance with Rule 1100(c). Accord Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983); Commonwealth v. Bright, 303 Pa.Super. 98, 449 A.2d 596 (1982). Instantly, the court obviously studied all of the notations in the record and thereby found that the Commonwealth had exercised due diligence. Furthermore, we find no indication of record that appellant or his counsel ever challenged the validity of the notations upon which the lower court relied. Therefore, we find, pursuant to Bulling, Harris, and Bright, that the notations in the record provided an adequate foundation for the hearing judge’s decision to extend the Rule 1100 run date.

Since due diligence was established, appellant’s Rule 1100 claim is meritless and post trial counsel cannot be deemed ineffective for failing to argue it at appellant’s post trial motions hearing. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Courts, 315 Pa.Super. 108, 461 A.2d 820 (1983).

In his second issue, appellant alleges that trial counsel was ineffective in that he was unprepared for trial and that he failed to call an eyewitness to testify on appellant’s behalf.

Appellant’s statement of the facts, while incomplete, is an adequate distillation for the purpose of discussing the issue before us.

The evidence presented by the Commonwealth can be summarized as follows:
Renee Faqua [the complainant] testified she went to [appellant] Charles Bradford’s apartment at 4536 Wayne Avenue in Philadelphia at about 6 p.m. on April 26, 1976, because a taxi driver she had met the night before had given her information about an apartment for rent. She left her purse in the hall and followed Bradford upstairs where the discussion ranged from the apartment to religion, poetry and jewelry during the next hour and a half. Bradford while conversing was painting the room, and Faqua sat on a ladder or on the radiator.
She retrieved her purse from the downstairs hall, and told Bradford $20 was missing. A discussion ensued between Faqua and Bradford as to whether a boy named Percy [Holly] who was present had taken her money. After half an hour, she was angry. She said he invited her into the next room where a struggle ensued during which time she struck him with her fist and he forced her to take off her clothes and to submit to sexual intercourse. She said she was penetrated four or five times, and that he then accused her of stealing a ring. She gave him $60 and left.

Brief for Appellant at vi (citations to Notes of Testimony omitted).

Appellant alleges that trial counsel was ineffective for failing to locate the above-mentioned Percy Holly and call him to testify on appellant’s behalf at trial. In applying the standards for determining effective assistance of counsel espoused in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) to cases where defense counsel has failed to procure witnesses, this court has repeatedly relied on Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

If counsel’s decision not to secure [the witness’] appearance or to have the notes of [the witness’] previous testimony read to the jury was based on a reassessment of its worth and a conclusion that it was of little or no value in the posture of this case, then that decision clearly had some reasonable basis designed to effectuate [the defendant’s] interests. In such circumstances, counsel’s conduct would not constitute ineffectiveness____ Had counsel reached this decision on a basis designed to advance his client’s interest, this case would be analogous to those situations in which, as a matter of trial strategy, counsel decides not to call a witness at all.
If, however, counsel’s failure to seek compulsory process to obtain [the witness’] testimony or to have his prior testimony read to the jury was the result of sloth or lack of awareness of the available alternatives, then his assistance was ineffective. In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.

Id., 460 Pa. at 110-111, 331 A.2d at 443.

Instantly, appellant testified at his P.C.H.A. hearing that before his trial he brought Percy Holly to the Defender Association offices where Holly was interviewed. Thus, appellant avers that the Defender’s Association knew of the prospective witness’ existence. Appellant further alleges that he informed the public defender representing him at trial that he wanted Holly to testify at trial. Of course, “ineffective assistance of counsel can be established through the failure to call a witness about which counsel had been informed, absent investigation or adequate explanation.” Commonwealth v. Stockard, slip op. at 13 (J. 336/83, filed December 7, 1984). It is also true, however, that “claims of ineffectiveness cannot be abstractly reviewed in a vacuum.” Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). Accord Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307 (1983); Commonwealth v. Mayfield, 318 Pa.Super. 450, 465 A.2d 40 (1983).

When an appellant seeks to establish that counsel was ineffective for failing to call or investigate witnesses, it is not sufficient to merely allege the existence of “potential eyewitnesses who may have helped in establishing defendant’s alibi defense.” Rather, an appellant must also supply a factual basis indicating (1) the identity of the witnesses; (2) that counsel knew of the existence of the witnesses; (3) the material evidence that the witnesses would have provided; and (4) the manner in which the witnesses would have been helpful to his cause.

Commonwealth v. Torres, 329 Pa.Super. 58, 68, 477 A.2d 1350, 1355 (1984).

Instantly, appellant has identified the potential witness and has alleged that counsel knew of his existence. He did not, however, call trial counsel at his P.C.H.A. hearing to verify counsel’s knowledge of Holly’s existence. Since appellant called neither trial counsel nor the potential witness at the P.C.H.A. hearing, the only indication as to what evidence the witness might have provided is contained in appellant’s testimony at the P.C.H.A. hearing:

Q. Now, do you know what he [Percy Holly] told the Public Defender?
A. I do not know what he told the Public Defender but I know what he had told me.
Q. And what did Mr. Holly tell you?
A. He indicated to me that the Public Defender spoke with him and he actually told him exactly what he saw and that was when he brought her the juice upstairs and then he seen me coming downstairs after her and she ran out the door and I asked him, I called him and told him to stop her and he did not and she fled from the door into the street.

N.T., P.C.H.A. Hearing, at 23-24.

We fail to see how this testimony could have been helpful to appellant’s cause. Indeed, as the lower court found, “it would appear that Mr. Holly would have corroborated the victim’s testimony and would have not been of any aid to [appellant] at this trial.” Lower ct. op. at 5 (emphasis added).

In a P.C.H.A. proceeding, the petitioner bears the burden of establishing counsel’s ineffectiveness. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Instantly, it is clear that appellant has not met his burden of proof. Appellant called neither his trial attorney nor the proposed witness at the P.C.H.A. hearing, and he himself presented the only testimony on his behalf at that hearing. Appellant failed to demonstrate the manner in which the witness would have been helpful to his cause. Thus, the P.C.H.A. court properly denied appellant’s claim of ineffectiveness of counsel.

Judgment of sentence and order of the lower court denying in part appellant’s P.C.H.A. petition are affirmed.

      . Act of May 13, 1982, P.L. 417, No. 122, § 2; 42 Pa.C.S.A. §§ 9541-9551.

      . We note that appellant’s testimony as to what Percy Holly would have said at trial did not go uncontradicted during the P.C.H.A. hearing. Detective Frank Coward testified that he conducted an interview with Percy Holly. He then read the content of that interview into the record of the P.C.H.A. hearing:
      Q. The first question was: ‘Tell me what you know about this rape. ANSWER: I kept hearing screams as she kept saying get off me, get off me. QUESTION: How many times? ANSWER: A few. QUESTION: Where were you? ANSWER: I was on the steps outside the door where the bed is. QUESTION: Did you see Charles having sex with the woman? ANSWER: No. QUESTION: What else did you see? ANSWER: My boss said you’ll have to give me some money because you have my ring and she hit him in the temple. QUESTION: Did you hear anything else? ANSWER: All I kept hearing was the bed going squeak squeak.’
      N.T., P.C.H.A. Hearing, at 35.

      . Appellant also claimed that counsel was ineffective in failing to be prepared for trial. Other than counsel’s failure to call Percy Holly, however, appellant fails to specify how counsel's alleged unpreparedness denied him a fair trial. We have already noted that "claims of ineffectiveness cannot be abstractly reviewed in a vacuum." Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). Thus, it is unnecessary to discuss this allegation further.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    488 A.2d 633
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph V. RESTIFO, Appellant.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Feb. 21, 1985.

      Joseph V. Restifo, Philadelphia, appellant, in propria persona.
    Paul Gelman, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

Joseph Restifo, Esquire, was summarily found guilty of direct criminal contempt because of unspecified conduct occurring after a non-jury trial had been adjourned for the day and while the trial judge was leaving the bench. Our review of the record fails to disclose evidence sufficient to sustain a conviction for contempt. Therefore, we reverse.

Joseph Restifo, Esquire, was counsel of record for the plaintiff in a civil action being tried non-jury in the Court of Common Pleas of Philadelphia. The tone of the trial was set early when Restifo asked the trial judge if the judge had asked that the case be assigned to him. After a short recess called by the trial judge so that he could have “an opportunity to calm down,” the trial judge directed a tirade against counsel which accused counsel of suffering from a longstanding problem and suggesting that his “insulting and outrageously inflammatory question” may have been the result of “some deepseated need ... for attention from your clients.” The trial court suggested also that counsel’s question may “have been a deliberate attempt to cause a disruption of the trial and ... some form of judge-shopping since you were unsuccessful, and clearly so, in your last matter that was before this Court.” Finally, the trial judge told counsel that he had come “within a hair’s breath of ending up in the Sheriff’s cell” that the judge would refer the question asked by counsel to the Disciplinary Committee, and that “any further actions on your part along those lines would definitely be considered by me as a deliberate and intentional intent on your part to disrupt the orderly proceedings.” Counsel responded: “Your Honor, in view of your comments I really must ask you to excuse yourself from further proceeding with this case.” The motion for recusal was denied.

After the trial had been adjourned at 5:15 p.m. and the trial judge was about to leave the courtroom, defense counsel inquired about the effect of a Jewish holiday upon the next day’s proceedings. As a part of the trial judge’s answer, he impliedly blamed Restifo for prolonging the trial and said, as the judge concedes, that Restifo “could care less about the entire schedule of anyone involved.” What happened next is not clear. Because court had been adjourned for the day, no record of the succeeding interchange was made, and the versions of the trial judge and Restifo vary widely. The version placed on the record by the trial judge was that Restifo had become upset and had jumped up and begun shouting that he wanted to put something on the record. When told to be seated and to stop shouting and screaming, according to the trial judge, Restifo refused. This was denied by Restifo, who said that he had risen out of respect for the court and had spoken in a normal voice to make a request that the stenographer record the trial judge’s remark that counsel could care less about other persons involved in the trial. We cannot know counsel’s tone of voice in addressing the court. It is significant, however, that neither the version of the trial judge nor that of counsel contains any remarks by Restifo that were substantively contemptuous of the court. The record given to this Court for review suggests that counsel was courteous to the trial judge even in disagreement. Nevertheless, after the two versions had been placed on the record, the trial judge summarily found Restifo in contempt of court and sentenced him to pay a fine of $500.00 and undergo imprisonment for a period of five days.

The inherent power of a court to inflict summary punishment for contempt of court is restricted by 42 Pa.C.S. § 4131. The provision pertinent to a decision in this case is contained in Subsection (3), where a direct, criminal contempt is defined as:

“The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.”

“[The Supreme Court] has consistently held that subsection 3 requires proof beyond a reasonable doubt of (1) misconduct, (2) in the presence of the court, (3) committed with intent to obstruct the proceedings, which (4) obstructs the administration of justice. [T]he Pennsylvania summary contempt statute has been interpreted to require that in order ‘[f]or conduct to constitute an obstruction of the administration of justice, it must significantly disrupt judicial proceedings.’ ” Commonwealth v. Cameron, 501 Pa. 572, 575, 462 A.2d 649, 650 (1983) (citations omitted). See also: In the Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981).

The record in this case does not suggest misconduct by counsel intended to obstruct or which obstructed in fact the proceedings then being tried. The trial had been adjourned for the day. The trial judge, in response to an inquiry by defense counsel, had replied in a manner which Restifo deemed worthy of recording. Therefore, he requested that the court stenographer be allowed to include the trial judge’s remark as a part of the trial record. This apparently precipitated a dispute between counsel and the trial judge, but the subsequently recorded recollection of neither the court nor counsel has suggested that the disagreement was disruptive of the proceedings.

“A court of law,” it has been said, “is not the personal fiefdom of the individual who happens to be sitting on the bench____ If a lawyer can be denied the opportunity even to address the court on the subject of what he conceives to be valid objection, it is hard to imagine what part of his function as advocate is left to him.” In the Matter of Nugent, 494 Pa. 2, 7-8, 427 A.2d 1154, 1157 (1980), quoting Edmunds v. Chang, 365 F.Supp. 941, 948 (D.C.Hawaii 1973), rev’d on other grounds, 509 F.2d 39 (9th Cir.1975), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). It is the responsibility of counsel to represent zealously, but with due regard for the dignity of the judicial process, the position of his or her client. Commonwealth v. Rubright, 489 Pa. 356, 364, 414 A.2d 106, 110 (1980). A trial court will not be permitted to stifle an attorney’s advocacy by refusing to allow an objection, and a request intended to perfect the record for subsequent review will not support a conviction for contempt. See and compare: In the Matter of Nugent, supra. Mere affront to the trial judge is not enough. Remarks that are injudicious, or even disrespectful, will not, without more, justify a summary conviction for contempt of court. In the Matter of Campolongo, supra 495 Pa. at 633, 435 A.2d at 584; Commonwealth v. Garrison, 478 Pa. 356, 373, 386 A.2d 971, 979 (1978). Inappropriate and even ill-mannered conduct which does not obstruct or delay the trial “falls short of that misbehavior which may be punished under [42 Pa.C.S. § 4131(3)].” Commonwealth v. Rubright, supra 489 Pa. at 364, 414 A.2d at 110. “Judges are supposed to be [persons] of fortitude, able to thrive in a hearty climate. Trial courts ... must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Commonwealth v. Stevenson, 482 Pa. 76, 96, 393 A.2d 386, 396 (1978) (Manderino, J. dissenting), quoting In the Matter of Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708, 711 (1972).

Even if we assume in the instant case that appellant’s tone of voice was loud, or even insulting, his attempt to place on the record those remarks of the trial judge which were deemed inappropriate did not provide that requisite intent or that disruption of proceedings which is necessary to support a conviction for contempt. See: In re Cogan, 485 Pa. 273, 401 A.2d 1142 (1979).

Because the record does not support a conviction for contempt, we will reverse the order of the trial court and discharge the appellant. It is unnecessary, therefore, to consider appellant’s additional argument that he was deprived of a constitutional right to be judged by a neutral and dispassionate judge as required by Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).

The order of the trial court is reversed, and appellant is discharged.

      . It is not our purpose to find fault in connection with this exchange. We refer to it only because it appears relevant in setting the stage for the events which followed.

      . Restifo had initially estimated the length of trial to be several hours. Shortly before adjournment, he told the trial judge that he believed he would require all of the next day to present his evidence. The trial judge then suggested that counsel had prolonged the trial by conferring unnecessarily with his client throughout the proceedings.

      . The record discloses that the trial judge’s version was placed on the record without interruption. Restifo’s version was interrupted repeatedly by the trial judge to register disagreement with counsel’s version.


text:
    488 A.2d 636
    Edward L. KOPP v. Elizabeth A. KOPP, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1984.
    Filed Feb. 22, 1985.

      James T. Yingst, Hanover, for appellant.
    Mark D. Frankel, York, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Elizabeth A. Kopp appeals from the order of the Court of Common Pleas of York County dismissing her exceptions and making final an earlier decree that partitioned real estate owned by appellant and Edward L. Kopp.

Plaintiff-appellee Edward L. Kopp and defendant-appellant Elizabeth A. Kopp were formerly husband and wife. Prior to their divorce, they entered into a separation agreement dated November 6, 1970. Pursuant to the agreement, appellant relinquished all rights to support and maintenance. Appellee agreed that, in exchange, appellant would have sole occupancy of the family residence for herself and her children so long as she paid all mortgage payments, utility bills, and taxes. The agreement further provided: “Should the Wife no longer use the premises as her residence the same shall be sold at a price agreeable to both Husband and Wife and the net proceeds therefrom shall be divided equally between Husband and Wife.” R.R. at 29a. In the same provision, appellee “specifically waive[d] his rights to have the real estate of the parties sold pursuant to the provisions of the Act of May 10, 1927, P.L. 884 (68 P.S. § 501) as amended.” Id. The Act, referred to in the agreement, provided in pertinent part:

Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit in the court of common pleas, sitting in equity, of the county where the property is situate, against the other to have the property sold and the proceeds divided between them.

On December 26, 1979, appellee filed a complaint in equity seeking partition of the subject real estate pursuant to the Act of May 10, 1927, P.L. 884, § 1; as amended by the Act of May 17, 1949, P.L. 1394, § 1, 68 P.S. § 501 (hereinafter referred to as “the Act”). Appellant filed an answer asserting that the separation agreement entered into by the parties barred appellee from requesting partition of the property. Trial before the Honorable Emanuel A. Cassimatis was held on August 31, 1981. In an opinion and order dated October 22, 1981, Judge Cassimatis ruled that the separation agreement was not a bar to appellee’s statutory right to partition. Accordingly, Judge Cassimatis issued an order and decree to partition the parties’ real estate. Appellant filed exceptions which were orally argued before the court en banc. On May 17, 1983, appellant’s exceptions were dismissed and the order of October 22, 1981 was adopted and entered as a final decree. This appeal timely followed.

Appellant states the sole issue to be resolved as follows: Can an owner of an undivided interest in real property waive his right to have the same partitioned without violating the public policy of permitting the free alienation of real property?

Brief for Appellant at 2.

In its opinion, the trial court found that appellant had complied with the provisions of the separation agreement in that she had resided in the premises since the agreement was executed and had, in fact, paid off the mortgage. Further, there was no testimony by the appellee that appellant had failed to pay the utility bills or taxes or make the mortgage payments. However, despite the fact that appellant fully complied with the agreement, the court held that the agreement was not a bar to appellee’s request for partition. The lower court based its conclusion on Hyatt v. Hyatt, 273 Pa.Super. 435, 417 A.2d 726 (1979).

In Hyatt, a married couple entered into a written agreement which provided that upon divorce the former husband would remain in occupancy of the former marital domicile, then held by the entireties, in return for his promise to divide the proceeds of any eventual sale with his former wife (she also received a car and $1,000.00 in consideration of her husband’s promise). When she filed an action to partition, the husband argued that the written agreement barred any partition. This court stated:

The Act of May 10, 1977, P.L. 884, Sec. 1; 1949 May 17, P.L. 1894, Sec. 1; 68 P.S. 501 holds that once parties who have held property as entireties property are divorced the nature of their property is changed to a tenancy in common and that either party may then seek to have the property sold and the proceeds divided between the parties by bringing an action in equity for partition of the property. Among tenants in common partition of real property is normally a matter of right. Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973). However, the statutory right to partition may be modified or postponed for a reasonable time by agreement of the parties. Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976).

Id., 273 Pa.Superior Ct. at 437-38, 417 A.2d at 728.

The Hyatt court found that the agreement did not limit the wife’s absolute right to seek partition for any discernable time. The court held that this “indefinite postponement of the right to partition is contrary to the policy of the Commonwealth which is to encourage free alienation.” Id., 273 Pa.Superior Ct. at 440, 417 A.2d at 729. Since the agreement constituted an unlawful restraint upon alienation of the property, the Hyatt court ruled that the agreement was unenforceable and the property should be partitioned.

The trial court held that Hyatt controls the case at bar. The court en banc agreed, stating:

The Separation Agreement signed by [appellee] and [appellant], like the one in Hyatt, did not limit [appellee’s] absolute right to seek partition for any discernable time. The [appellee’s] right to seek partition was postponed until [appellant] “no longer uses the premises as her residence”. As such, [appellee’s] right is conditioned upon either [appellant’s] caprice or unfortunate demise. This indefinite postponement of the right to seek partition is contrary to the policy of the Commonwealth which is to encourage free alienation, see id., 273 Pa.Superior Ct. at 440, 417 A.2d at [729] and, therefore, we held the entire agreement is invalid.

Lower ct. op., 5-17-83, at 2.

We disagree with the court en banc's application of Hyatt to the instant case. It is true that any agreement to modify or postpone the time of partition may not place a restraint upon alienation that extends beyond a “reasonable” period of time. Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976). Furthermore, we believe that the Hyatt court properly held that by not limiting the wife’s absolute right to seek partition for any discernable time, the agreement constituted an unlawful restraint upon alienation of the property and was, therefore, unenforceable. A clear factual distinction exists, however, between Hyatt and the case at bar. The Hyatts’ separation agreement obligated the husband to divide the proceeds with the wife if and when a sale of the property were to occur. In the words of the court, “although a partition may be modified or postponed for a reasonable time by agreement of the parties, the instant agreement did not limit appellant’s absolute right to seek partition for any discernable time.” Hyatt v. Hyatt, supra, 273 Pa.Super. at 440, 417 A.2d at 729. Whether or not he continued to occupy the premises, there were no conditions placed upon the husband, the occurrence of which would have triggered the wife’s right to compel partition.

As was the husband in Hyatt, appellant in the case at bar was already occupying the residence at the time the separation agreement was signed; however, appellant’s ability to restrain partition in the instant case is conditioned upon her continued use of the premises as her residence. Appellee’s right to compel partition will be automatically triggered (1) if appellant no longer wishes to remain in the home, or (2) upon the death of appellant. Waiver of appellee’s right to seek partition for, at most, the lifetime of appellant seems to be postponement for a period both reasonable and sufficiently discernable.

The separation agreement into which the Kopps entered limits any restraint upon appellee’s power to compel partition to a period which cannot extend beyond the life of appellant. Such a time period, while not definite, is surely not unreasonable. See e.g., McDowell v. McDowell, 61 N.C.App. 700, 704, 301 S.E.2d 729, 731 (1983) (“[I]t is clear that an agreement providing for the wife’s continued possession of property for her life is valid and not subject to attack as an unreasonable restraint on alienation. In this case, the longest possible amount of time during which this property could remain in. the wife’s possession without agreement to sell is for her life.”). See also Condrey v. Condrey, 92 So.2d 423, 426 (Fla.1957) (“An agreement not to partition during the life of any of the tenants does not appear to us to be for an unreasonable time.”).

While Pennsylvania courts have not heretofore provided any clear guidelines as to what constitutes a “reasonable” period of time respecting restraints on alienation, the Restatement of Property (1944) offers some guidance:

§ 412. RESTRAINTS ON THE POWER TO COMPEL PARTITION.
A restraint on the power of a co-tenant to compel partition, created to last for a reasonable time only, is valid.

Comment c of § 412 states that “(t)he meaning of ‘a reasonable time’ is set forth in § 173, Comment c” which, in turn, provides in pertinent part:

c. What constitutes a reasonable period of time. The period of time for which the creator of a future interest can exclude the power to compel partition or the liability thereto must be “reasonable.” When the stipulated period of time is not measured by lives in being at the time of the creation of such future interest, or by a period of years not exceeding twenty-one, or by a combination of such lives and years, such period of time is not reasonable. When the stipulated period is measured by such lives, or by such period of years, it is reasonable. Situations between these two extremes present an issue of reasonableness.

(Emphasis added). See Rice v. Rice, 468 Pa. 1, 359 A.2d 782 (1976); accord Hale v. Scanlon, 88 Pa. D. & C. 506 (1953). We believe that this definition of reasonableness, adopted by analogy from the rule against perpetuities, is a sensible one. While it is the policy of this Commonwealth to encourage free alienation, the concerns underlying this policy are not present in a case such as the one before us. The agreement in the instant case was not an unreasonable restraint on alienation.

The Kopps entered into their agreement freely. Appellee does not appear to have been the object of overreaching or undue influence, and appellee signed the agreement only after having consulted his attorney in reference to it. By this agreement, appellee has waived his statutory right to force a sale of the property.

The final decree of the lower court is reversed and the court is directed to enter judgment in favor of the appellant. Jurisdiction is relinquished.

      . Subsequent to institution of this suit, the language of the Act was changed; the substance, however, remained the same.

      . As the Kopps have a present, fixed, and vested interest in the property at issue, the rule against perpetuities has no application.


author: JOHNSON, Judge:

text:
    488 A.2d 639
    COMMONWEALTH of Pennsylvania, Appellant, v. Jerald William DONALDSON.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1984.
    Filed Feb. 22, 1985.

      Dara A. DeCourey, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.
    Before BROSKY, ROWLEY and JOHNSON, JJ.
   JOHNSON, Judge:

The Commonwealth of Pennsylvania takes this appeal from the order of the trial court quashing that part of the Information which charged defendant, Jerald William Donaldson, with felony Aggravated Assault under 18 Pa.C.S. § 2702(a)(1), and which amended this Information to charge defendant with misdemeanor Aggravated Assault under 18 Pa.C.S. § 2702(a)(4). The Commonwealth argues that the court erred in holding that the police complaint did not afford defendant sufficient notice of the charge of felony Aggravated Assault. We agree with the Commonwealth and reverse.

The parameters for a properly drafted Information are set forth in Pa.R.Crim.P. 225 which, in relevant part, reads:

(b) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint____

Rule 225(b)(5) does not require that the crime charged in the Information be identical to that charged in the Complaint as long as the charge is cognate to the one laid in the Complaint. Commonwealth v. Taylor, 324 Pa. Super. 420, 471 A.2d 1228 (1984); Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980); Commonwealth v. El, 273 Pa.Super. 1, 416 A.2d 1058 (1979); Commonwealth v. Epps, 260 Pa.Super. 57, 393 A.2d 1010 (1978).

In Wilkinson, supra, we wrote:

As stated in Commonwealth v. Cortes, 182 Pa.Super. 602, 605, 128 A.2d 155, 156 (1956), “The police and other law enforcement officers and justices of the peace who formulate the complaints are not expected to be learned in the law.” If the complaint puts the defendant on notice of the substance of the crime for which he is being charged, it is sufficient.

278 Pa.Super. at 498 n. 6, 420 A.2d at 651 n. 6.

In the instant case, defendant was arrested on November 11, 1982 based on a complaint filed by police which, in relevant part, read:

2702 — That on or about October 23, 1982, in the Court [sic] of Allegheny, unlawfully and feloniously did then and there intentionally, knowingly and recklessly cause bodily injury to the person of one MAHDI WILLIAMS under circumstances manifesting extreme indifference to the value of human life, that is to say, said actor shot victim once in the back with a rifle, causing victim to remain in serious condition for several days in Presbyterian Hospital.

Upon receipt of the docket from the preliminary hearing showing that defendant was held for court on the Aggravated Assault charge, the Commonwealth, in accordance with Pa.R.Crim.P. 225, filed an Information charging defendant as follows:

The District Attorney of Allegheny County by this information charges that on (or about) October 23, 1982 in the said County of Allegheny JERALD WILLIAM DONALDSON hereinafter called actor, did commit the crime or crimes indicated herein; that is:
The actor intentionally, knowingly or recklessly caused serious bodily injury to Mahdi Williams, under circumstances manifesting extreme indifference to the value of human life, that is to say the actor shot the victim in the back with a rifle, causing severe injuries, in violation of Section 2702(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2702(a)(1).

Whereupon, defendant moved to quash the above-quoted section of the Information on the grounds that the initial police complaint and preliminary hearing did not cover the charge of felony Aggravated Assault. The trial court agreed with defendant, and the court sua sponte amended the Information to include the misdemeanor charge. The Commonwealth now argues that this was in error, and we agree.

The statutory provision defining felony Aggravated Assault reads:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life ...

18 Pa.C.S. § 2702(a)(1) (1983).

The subsection defining misdemeanor Aggravated Assault includes this description of the act:

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon. 18 Pa.C.S. § 2702(a)(4) (1983).

It is apparent that the language in the police complaint was sufficient to put defendant on notice that he could be tried for the felony charge. The police complaint charges defendant with acting “intentionally, knowingly and recklessly ... under circumstances manifesting extreme indifference to the value of human life.... ” This language is identical to that of Section 2702(a)(1). Furthermore, the complaint also alleges that defendant acted “feloniously.” We therefore find the complaint to be adequate to support an Information charging defendant under Section 2702(a)(1).

Additionally, we find that the trial court was without authority to sua sponte add a charge to the Information. Pa.R.Crim.P. 225(b) requires that “[t]he information shall be signed by the attorney for the Commonwealth.... ” The Supreme Court said of this Rule: “Basically, the interest to be protected by the signature requirement [either manual or facsimile signature] of Pa.R.Crim.P. 225 is the right of a citizen to be free from unjust or unduly oppressive government interference.” Commonwealth v. Emanuel, 501 Pa. 581, 587, 462 A.2d 653, 656 (1983). As our court observed in Commonwealth v. Williams, 323 Pa.Super. 512, 519-20, 470 A.2d 1376, 1380 (1984), the signature requirement “is to assure the authenticity of an information and to guarantee that the district attorney has inquired fully into all facts and circumstances attendant to a particular case and has made a reasoned evaluation of the propriety of initiating criminal proceedings against a defendant.” (emphasis added) (citations deleted). By adding, on its own motion, the misdemeanor count to the Information, the court removed from the district attorney the opportunity to fully review this new charge that would have been included on the Information above the district attorney’s signature. Therefore, we find that the charge of Aggravated Assault under 18 Pa.C.S. § 2702(a)(4) was improperly added to the Information.

Accordingly, the order of the trial court is reversed, and the case is remanded for proceedings consistent with this Opinion. This court relinquishes jurisdiction.

      . The Commonwealth may appeal from an order quashing an indictment Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977).


author: PER CURIAM: CIRILLO, Judge, JOHNSON, Judge,

text:
    488 A.2d 642
    COMMONWEALTH of Pennsylvania, Appellee, v. Felix Berrios RIVERA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1984.
    Filed Feb. 22, 1985.

      John D. Kuhn, Public Defender, Harrisburg, for appellant.
    Gary E. Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, JOHNSON, POPOVICH and CERCONE, JJ.
   PER CURIAM:

Felix Berrios Rivera was tried by jury and was found guilty of conspiracy, burglary, theft, robbery, and recklessly endangering another person as a result of the gunpoint theft of money and valuables from two women in Adams County. After post-trial motions had been denied, the trial court imposed a sentence of imprisonment for not less than four nor more than eight years. On direct appeal, Rivera raises two issues which require that we examine the complete trial record. A complete record, however, is not available to us. The trial court, we are advised, has declined to order a transcript of the entire trial and has directed that only a portion thereof be transcribed. Because of this unsatisfactory state of the record, we are unable to conduct an adequate review. Therefore, we will remand to permit the trial court and the parties to complete the record by transcribing all testimony offered during trial.

The first issue raised by appellant is the alleged insufficiency of the evidence to sustain the conviction for recklessly endangering another person. The evidence, it is argued, does not disclose whether the gun was loaded. Appellant argues from this Court’s decision in Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), which held that merely pointing an unloaded gun did not constitute reckless endangerment, that the Commonwealth’s evidence failed to support a finding that he had recklessly endangered the victims of his crime. This contention, in view of our earlier decision, would appear to have arguable merit sufficient to require this Court’s careful review of the evidence received at trial. The trial court rejected the argument because, it concluded, there was other evidence to support the jury’s verdict. This conclusion was reached by the court “[ajfter reviewing our trial notes and the portion of the trial transcribed____” (Trial Court Opinion, p. 3). The trial court’s notes, of course, are not available to this Court. The only portion of the trial which has been transcribed is the testimony of Kathy Laughman, an accomplice of appellant, who gave testimony as a Commonwealth witness. Her recollection of details was meager. No other testimony, not even that elicited from the victims, is before us. We have been advised by appellant’s counsel that a request made to the trial court to direct transcription of the remaining portions of the trial was rejected. Under these circumstances, we will remand with instructions to the trial court to complete the record and return it to us for further review.

The same deficiency suggests that we also delay decision on appellant’s second issue. The trial judge, when asked by the jury for additional instructions concerning the several definitions of robbery, told the jury that “there [was] no evidence in this case that could substantiate a finding of guilty of count 3.” N.T., June 30, 1982, at 38. This count contained an accusation that appellant had violated 18 Pa. C.S. § 3701(a)(l)(v), which makes it a felony of the third degree if a person, during the course of committing a theft, “physically takes or removes property from the person of another by force however slight.” The effect of this remark, the appellant contends, was to compel the jury, if it found that he had been one of the robbers, to convict him of violating 18 Pa.C.S. § 3701(a)(1)(h) or (iv). The first of these subsections provides that a felony of the first degree has occurred if, in the course of a theft, the thief “threatens another with or intentionally puts him in fear of immediate serious bodily injury.” The second subsection defines a felony of the second degree to occur when, during the course of a theft, the thief “inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury.”

Judge Johnson, writing in dissent, suggests that this issue is susceptible of decision upon the record now before us. A majority, however, is of the opinion that the parties and this Court will be better served by reserving decision until after a full and careful review has been made of a complete record of all evidence placed before the jury. The delay thus caused will not “reward” the defendant. Similarly, it will not serve to encourage laxity on the part of counsel. Neglect on the part of counsel has its own reward and can be dealt with by other means. Here, however, the efforts of counsel to complete the record were thwarted by the trial court which rejected a request for a full transcript and ordered that only a portion of the trial testimony be transcribed. Although we decry the delay caused by these circumstances, we are of the opinion that this Court will better be able tó fulfill its reviewing responsibility by requiring a complete record of all the evidence presented at trial to determine whether it supports the verdict of the jury and the instructions delivered by the trial court.

Remanded with directions to the trial court to obtain and forward forthwith to this Court a full transcript of the trial. Meanwhile, jurisdiction is retained.

CIRILLO, J., filed a dissenting opinion.

JOHNSON, J., filed a dissenting opinion in which McEWEN, J., joined.

CERCONE, J., did not participate in the consideration or decision of this appeal.

CIRILLO, Judge,

dissenting:

I respectfully dissent. Pa.R.App.P. 2117(c)(4) provides that:

Such pertinent quotations of specific portions of the record, or summary thereof, with specific reference to the places in the record where the matter appears (e.g. ruling of exception thereto, etc.) as will show that the question was timely and properly raised below so as to preserve the question on appeal.
Where the portions of the record relied upon under this subdivision are voluminous, they shall be included in an appendix to the brief, which may, if more convenient, be separately presented.

Pa.R.App.P. 2119(c) provides that:

Reference to record. If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears (see Rule 2132) (references in briefs to the record).

(Emphasis supplied).

These rules do not apply at the option of a party. If they did the consequence of non-compliance would be the result the majority suggests in this case. Whenever appellant deemed it beneficial to present a bald assertion of insufficiency of the evidence, or any other claim, the record and any reference to it would be omitted. The appellate court would be unable to rule in its absence and the case would be remanded for completion of the record without prejudice to appellant. This result would nullify the express mandate of the Pennsylvania Rules of Appellate Procedure.

In an analogous situation, President Judge Spaeth opined in Commonwealth v. Rozanski, 289 Pa.Super. 531, 546, 433 A.2d 1382, 1390, (1981) that:

Appellant also argues that the prosecutor engaged in inflammatory conduct by repeatedly playing the tape recording of appellant’s message to St. Stephen’s Church. Brief for appellant at 22. There is no merit to this argument either. As we have discussed, this evidence was properly admitted. In any event, this objection has been waived because appellant has failed to cite to the record, advising us either at what point in the trial the asserted objectionable use of the evidence occurred, or in what manner his objection was preserved for appellate review. See, Pa.R.A.P. 2117(c)(4).

(Emphasis supplied).

Likewise, in the instant case, appellant’s failure to comply with Pa.R.App.P. 2117(c)(4) renders his objection waived.

In Commonwealth v. Gigli, 287 Pa.Super. 347, 350, 430 A.2d 319, 320 (1981) in a per curiam order of the Court, a panel which was comprised of President Judge Spaeth, Judge Wickersham, and Judge Lipez, appellant’s brief was found to be inadequate for non-compliance with the rules of appellate procedure and the appeal dismissed. In cases such as these, a remand would not be in the interest of judicial economy.

Appellant argued that the evidence was insufficient to support a conviction for recklessly endangering another, or simply that the weapon used during the commission of the crime was incapable of being fired. The argument made no reference to the record.

Where reference is made to the evidence, appellant must set forth at least a reference to the place in the record where the matter complained of appears, Pa.R.App.P. 2119(c), and show that the question was timely and properly raised in the trial court so as to preserve the question for review, Pa.R.App.P. 2117(c)(4). The burden is on the appellant to comply with the rules of procedure. If he chooses not to comply, he must accept the consequences of his voluntary non-compliance.

The second issue raised by appellant does not rely on an incomplete record. It concerns the charge to the jury and we find the contention to be without merit. The charge in question was followed by an unequivocal instruction that the jury was to make a factual determination as to the robbery. We would therefore affirm the trial court with respect to the second issue.

JOHNSON, Judge,

dissenting:

I join in the Dissenting Opinion of my colleague, Judge Cirillo, and write separately to expand upon the reasons why I believe the judgment of sentence should be affirmed.

Appellant, Felix Berrios Rivera, raises two issues for our consideration, namely: (1) whether the trial judge committed reversible error, while giving the jury additional instructions, when he orally advised the jury that no evidence was presented by the Commonwealth that would warrant convicting appellant of robbery by physically removing property from the person of another; and (2) whether there was insufficient evidence to sustain appellant’s conviction for recklessly endangering another person.

On December 28, 1981, three males and one female entered the home of Mrs. Maybelle Jacoby, while another male remained in a car outside. When inside, the foursome sought to rob the Jacoby safe. Two of the assailants took turns holding a rifle on Mrs. Jacoby and Mrs. Decker, a tenant from an apartment in the Jacoby home. When the foursome was unable to obtain the combination from Mrs. Jacoby, they tied up Mrs. Jacoby and Mrs. Decker. The foursome took various items of property from the Jacoby home and left.

Subsequently, the female assailant became a Commonwealth witness who identified appellant as one of the foursome. Appellant was tried before a jury. There were three counts of robbery filed against appellant. The first count was based on 18 Pa.C.S. § 3701(a)(1)(h). The second count was based on 18 Pa.C.S. § 3701(a)(l)(iv), and the third count was based on 18 Pa.C.S. § 3701(a)(l)(v). The court instructed the jury on the law of robbery. After having begun its deliberations the jury, on three occasions, asked for additional instructions on robbery. On the third occasion, when the jury requested instructions on robbery, count 3 only, the court gave the following additional instructions to the jury over the objection of defense counsel:

I have told you that you are the sole judges of the facts in the case. That’s why I have been a little reluctant to tell you this up until this point but obviously you’re dealing with something that I feel in all fairness I must explain.
There is no evidence in this case that could substantiate a finding of guilty of count 3. The elements of that offense require the taking of property from the person of another. The section was added by the legislature in 1976, and it really covers purse snatching. There is no evidence in this case that anybody took anything from the person of either Miss Jacoby or the other lady.
However, if you disagree with my recitation of facts and if you find that there is evidence, and I again tell you that your finding of the facts is what governs and not mine. The elements are first of all that it must have been committed in the course of committing a theft. I have explained to you what that means. Theft is stealing. It’s taking property of another without right, privilege, authority or consent with the intention of depriving the owner of it permanently. The taking must have been from the person of another, not from the room or the building. It must be taken from the person of another. It must have been in the possession of the person from whom taken and there must be some force employed however slight.
The legislature added [sic] that I might tell you because the act of taking a purse from a persons [sic] hand does not require much force. That’s the significance that that particular crime was meant to cover. I wasn’t going to tell you this, but I guess it’s time to tell you.

N.T., Court’s Charge, June 30, 1982, at 38 and 39. Five minutes after this instruction the jury returned a verdict of guilty of robbery, based on count 1, burglary, theft by unlawfully taking property worth $200 or more, conspiracy and recklessly endangering another person. Appellant was not found guilty of the robbery, count 3. Appellant filed post-verdict motions, which were denied. Appellant was sentenced to imprisonment of not less than four (4) nor more than eight (8) years. This appeal followed.

Relying upon Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977) and Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972) for support, appellant argues that the trial judge improperly invaded the province of the jury when he stated that there was insufficient evidence to convict appellant of robbery, count 3. I do not agree.

In Commonwealth v. Archambault, supra, the trial judge, during his charge, told the jury that he thought “it would be a miscarriage of justice to find [the] defendant not guilty.” Finding the strongly worded opinion of the trial judge to have been of such coercive influence upon the jury that other instructions given during the lengthy charge about the jury’s role as the final arbiter of the facts and the verdict were unable to vitiate the impact of the trial judge’s opinion statement, it was held that the trial judge’s opinion improperly invaded the province of the jury. In Commonwealth v. Whitfield, supra, the Supreme Court, citing Archambault, held that a trial judge’s statement that the defendant was “guilty of murder or he [was] not guilty of any kind of unlawful homicide” improperly invaded the province of the jury to determine the degree of the defendant’s guilt.

To determine whether in the instant case the trial judge’s additional instructions invaded the province of the jury, we must examine the instructions as a whole, and it is the general effect of the instructions that controls our determination. Commonwealth v. Whiting, 501 Pa. 465, 462 A.2d 218 (1983).

The trial judge stated to the jury that no evidence was presented that would justify the jury in finding appellant guilty of robbery count 3. His comment related strictly to the state of the factual evidence presented at trial. It was not coercively phrased as was the opinion statement in Archambault. It did not imply or indicate that appellant was more appropriately found guilty of another offense or grade of robbery based on the evidence the jury had before it. More importantly, the trial judge, immediately after commenting on the lack of evidence, instructed the jury that it was free to disagree with his recollection of the evidence and that its recollection controlled over his. Consistent with this instruction the trial judge then reiterated the law regarding robbery count 3.

Although the trial judge’s statements reflected his opinion that appellant should be acquitted of robbery count 3 because of insufficient evidence, they were immediately followed by an unequivocal instruction that the jury was the final arbiter of the facts and that its decision was determinative. This instruction clearly conveyed to the jury that it could disagree with the trial judge and return a verdict of guilty on robbery count 3. The trial judge reinforced the effect of this instruction by reiterating the law regarding count 3. Thus, the impact of the trial judge’s comments as to the lack of evidence was immediately and unequivocally offset by the trial judge himself. See e.g., Commonwealth v. Whitfield, supra; Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977) (where the trial judge may express an opinion that the evidence does not support a voluntary manslaughter verdict as long as he instructs the jury inter alia that the jury is not bound by his comments on the evidence because the jury is the sole arbiter of the facts). Viewing the additional instructions as a whole, I conclude that the overall effect of the trial judge’s comments did not invade the factfinding function of the jury.

Appellant also argues that his conviction for recklessly endangering another person was founded on insufficient evidence that he possessed the actual present ability to place Mrs. Jacoby and Mrs. Decker in danger of death or serious bodily harm. He maintains that the evidence presented at trial failed to show that the rifle employed during the incident was loaded, as is required by our decision in Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978). Admitting that no direct evidence was presented to show the rifle was loaded, the trial court in its opinion rejected appellant’s argument citing, as circumstantial evidence of the actual present ability to inflict harm, the testimony of Mrs. Jacoby that one of her assailants, other than appellant, asked in a serious manner whether he should kill Mrs. Jacoby and Mrs. Decker. In this appeal, the Commonwealth relies upon this position of the trial court. Because of inadequacies in the record, the majority would remand for completion of the record. Hence this dissent.

The record certified to this court did not contain a complete transcript of testimony from appellant’s trial. Only a partial transcript containing the testimony of appellant’s female accomplice, Kathy Laughman, was transmitted to this court. Her testimony did not refer to the question the trial court relied upon in its opinion; nor did it provide an independent basis for concluding that appellant possessed the actual present ability to inflict harm. The testimony of Mrs. Jacoby is not part of the record transmitted to this court. As Judge Cirillo correctly observes, it is not our obligation to complete the record, but rather that of appellant.

Since there is no showing of record that appellant was prohibited from securing a transcript of the testimony at trial, and since the second issue, relating to the alleged invasion of the jury’s province by the judge during his charge, is answered by the record before us, I would affirm the judgment of sentence. Hence, this dissent.

      . The record discloses that the trial court initially ordered a transcript of the trial “beginning with the Court’s charge to the jury.” The record does not disclose why the testimony of the accomplice, Kathy Laughman, was also transcribed. Similarly, we are unable to confirm from the record the representation made by counsel at oral argument that the trial court rejected a request for a transcript of the entire trial.

      . The pertinent portions of the Crimes Code definition of robbery are as follows:
      § 3701 Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;
      (v) physically takes or removes property from the person of another by force however slight.
      18 Pa.C.S. § 3701(a) et seq.

      . See note 1 supra.

        . See note 1 supra.

      . 18 Pa.C.S. § 3502.

      . Id. §§ 3902, 3921.

      . Id. § 903.

      . Id. § 2705.

      . Submission of a partial transcript of testimony to this court is permissible under Pa.R.A.P. 1922(b)(2) and Pa.R.Crim.P. 9030(b). The record does not indicate at whose behest the court reporter transcribed only part of the trial record, containing the testimony of Kathy Laughman.


author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    488 A.2d 1110
    James BASCELLI v. RANDY, INC., and Anthony D. Pierantozzi and Patricia R. Pierantozzi, Ind. and T/A East Coast Cycle Supply. Appeal of RANDY, INC.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Jan. 18, 1985.
    Reargument Denied March 28, 1985.

      Charles J. Bogdanoff, Philadelphia, for appellant.
    Alexander A. DiSanti, Upper Darby, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

In this action to recover for personal injuries sustained in a one vehicle accident allegedly caused by the defective front end assembly of a motorcycle, the trial court excluded evidence of a post-accident admission made by the plaintiff-cyclist that the accident had not been caused by a defective motorcycle but by his loss of control while travelling at 100 miles per hour. A jury returned a verdict in favor of the cyclist and against the manufacturer for $1,750,000.00, on which judgment was entered following denial of post-trial motions. On appeal, we reverse and remand for a new trial.

On October 30, 1976, James Bascelli and Dana Tegler were driving their chopper-style motorcycles on Route 291, a four lane divided highway in Delaware County, when Bascelli lost control of his vehicle. His motorcycle veered to the left, jumped the medial strip, crossed two lanes for oncoming traffic, and crashed into the guardrail. Bascelli testified that prior to losing control of his motorcycle he had been travelling at a speed of 35-40 miles per hour. He said, and his evidence tended to show, that the handlebar assembly had loosened and that this was what had caused his loss of control. As a result of the accident Bascelli sustained serious injuries, including the loss of most of his right arm and multiple fractures of his left forearm.

The front end assembly had been manufactured by Randy, Inc., the appellant. It consisted of a handlebar, two risers and two cap screws. The assembly was sold to Bascelli with a container of Locktite, a screw-locking compound, in October, 1972, by East Coast Cycle Supply. It was thereafter assembled and installed by Bascelli on his Harley-Davidson motorcycle. The risers were attached to two prongs of a fork extending upwards from the front wheel by cap screws or bolts. Bascelli’s evidence tended to show that at the time of the accident the left cap screw measured only one inch in length, this being one-half inch shorter than the right cap screw. He contended that the left screw was defective because it extended only two or three threads beyond the end of the fork into which it was intended to fit. It was also alleged that the assembly contained a design defect because it. did not include a locking device to prevent a loosening of the screws. Evidence was produced which tended to show that a disengagement of the screw from the fork had impaired Bascelli’s ability to steer the motorcycle.

During pre-trial depositions, Anthony Pierantozzi, the retailer of the .front end assembly, described a conversation which he and Bascelli had had several months after the accident. In that conversation, according to Pierantozzi, Bascelli said that “nothing [had] really happened to the front end ...” and that the front end had begun to wobble and the bike had gone down while he was travelling at approximately 100 miles per hour. At trial, counsel for the manufacturer attempted to elicit Bascelli’s admission from Pierantozzi to show that the accident had been caused by excessive speed and not because of a defective front end assembly. The trial court sustained an objection thereto because the evidence tended to show contributory negligence which, the court said, was irrelevant in a products liability case.

Before a manufacturer can be found strictly liable for damages caused by his product, it must be shown that his product was defective and that the defect was a substantial factor in causing plaintiff’s injuries. Sherk v. Daisy-Heddon, 498 Pa. 594, 598, 450 A.2d 615, 617 (1982) (plurality opinion); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975) (plurality opinion); Swartz v. General Electric Co., 327 Pa.Super. 58, 66, 474 A.2d 1172, 1176 (1984). “The progress of the law in extending liability without fault to product suppliers [has not been] in disregard of fundamentals pertaining to the tort law of causation.” Oehler v. Davis, 223 Pa.Super. 333, 334, 298 A.2d 895, 895 (1972).

In the instant case, the cause for Bascelli’s losing control of his motorcycle was an issue of fact for the jury. An admission by Bascelli that he had lost control of the cycle while going 100 miles per hour was significantly relevant and extremely important evidence. It was admissible to show the cause of the accident; to exclude it for that purpose was error.

Because the evidence was relevant to show the cause of the accident it could not properly be excluded, as the trial court seemed to think, because other evidence tended to show that the loosening of the front end assembly had caused the operator to lose control. This, as we have already observed, was an issue for the jury. Similarly, the evidence could not be excluded merely because it "also tended to show “contributory negligence” on the part of the operator. It was admissible for the purpose of showing causation. See: Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir.1976) (evidence of drinking admissible to show causation); Englehart v. Jeep Corp., 122 Ariz. 256, 260, 594 P.2d 510, 514 (1979) (evidence of plaintiffs intoxication, though not admissible to show contributory negligence, may be admitted on issue of proximate cause); Honda Motor Co. v. Marcus, 440 So.2d 373 (Fla.Dist.Ct.App.1983) (failure to wear seat belt may be shown if it bore causal relation to injuries); Scott v. Bolan Ford, Inc., 420 So.2d 1345 (La.Ct.App.1982) (intoxication admissible if relevant to causation); Bendorf v. Volkswagenwerk Aktiengeselischaft, 90 N.M. 414, 416, 564 P.2d 619, 621 (N.M.Ct.App.1977) (negligence of plaintiff relevant if his wrongful driving was proximate cause of accident); Caldwell v. Yamaha Motor Co., 648 P.2d 519, 527 (Wyo. 1982) (negligence of motorcyclist admissible if offered to prove causation or to impeach his testimony).

Appellee, hard pressed to justify the exclusion of this relevant evidence, argues that appellant’s offer of proof was inadequate. This argument is lacking in merit. The record shows that as soon as appellant’s counsel had asked Pierantozzi about a meeting with Bascelli, the latter’s counsel asked for a side-bar conference, where he requested an offer of proof. When appellant’s counsel referred to the testimony which Pierantozzi had given during pre-trial depositions, he was interrupted before he had completed the offer of proof which Bascelli’s counsel had requested. No sooner had appellant’s counsel mentioned Bascelli’s admission that he had been going a hundred miles per hour than Bascelli’s counsel interjected, “So what?”. Appellant’s counsel answered this interjected question by saying that he wished to introduce Bascelli’s admission of speed to show the cause of the accident. Bascelli’s counsel argued that evidence of speed would be error because it would tend to show contributory negligence, which was not a defense to a claim resting on strict liability. The trial court agreed and sustained an objection to any such evidence despite a protest by appellant that evidence pertaining to the cause of the accident was being concealed from the jury. The court’s reason for sustaining the objection, as confirmed by subsequent opinion, was specifically its belief that the evidence was inadmissible because it tended to show that Bascelli had been guilty of contributory negligence.

The offer of proof, however, had contained a clear statement that Bascelli’s admission of excessive speed was being offered to show the cause of the accident. Such an offer was certainly sufficient “to state the purpose [of the evidence] in a manner that the court [could] perceive its relevancy.” Societa Palmolese Di Protezione E Beneficenza v. Maiale, 143 Pa.Super. 403, 407, 17 A.2d 925, 927 (1941). Accord: Martin v. Johns-Manville Corp., 322 Pa. Super. 348, 356, 469 A.2d 655, 658 (1983), appeal docketed, 33 W.D. Appeal Dkt. 1984 (April 2, 1984). Thus, even though appellant’s counsel was interrupted before completing his statement of the offer so as to include the entirety of Bascelli’s admission, the trial court had enough information to know that Bascelli had made an admission of a speed of 100 miles per hour and that this evidence was being offered to show the cause of the accident. When the trial court refused to allow the evidence for this purpose, it committed error. The evidence of excessive speed was not rendered inadmissible merely because it also tended to show contributory negligence on the part of the plaintiff.

Appellant has asserted additional trial errors which also have merit. The evidence at trial showed that when the front end assembly had been sold to Bascelli, it had come with a container of Locktite. Appellant offered to show that the properties of Locktite were such that it was a recommended screw-locking device. The trial court refused to allow the evidence on grounds that it was irrelevant to the condition of the assembly when it left the manufacturer. This was error.

One who sells a product in a defective condition unreasonably dangerous is subject to liability for physical harm caused thereby if “it is expected to and. does reach the user or consumer without substantial change in the condition in which it is sold.” Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966), quoting Restatement (Second) of Torts § 402A(l)(b) (1965). If a product is altered to make it safer after leaving the manufacturer but before reaching the consumer, the change is clearly relevant. In the instant case, the manufacturer was charged, inter alia, with defectively designing a product which lacked a locking device that would prevent a screw from being loosened by the jolting and bouncing to which a motorcycle would foresee-ably be subjected. It was relevant, in view of this claim, to show that when the front end assembly had been sold unassembled to the consumer, it was sold with a container of Locktite which, if properly applied, was calculated to lock the screw in place. The purpose for and the qualities of Locktite, therefore, were relevant facts for the jury to know in order to determine whether the front end assembly had been sold to the consumer in a defective condition. The evidence regarding Locktite was not rendered inadmissible merely because it had been supplied by the retailer rather than by the manufacturer. Contrary to the trial court’s belief, the relevant time for determining whether the front end assembly was defective was the time when it reached the consumer, not when it left the manufacturer. See: Lenkiewcz v. Lange, 242 Pa.Super. 87, 91, 363 A.2d 1172, 1175 (1976); Josephs v. Harris Corp., 677 F.2d 985, 987-988 (3d Cir.1982) (applying Pennsylvania law).

It was also error to remove from the jury the issue of Bascelli’s voluntary assumption of the risk. If either screw had been of inadequate length, this fact should have been readily observable by the person who installed the front end assembly and who inserted and tightened the screws. In this case, the front end assembly had been installed by Bascelli himself. He had previously worked in his father’s machine shop and admittedly had been aware that bolts came in different sizes and were susceptible to disengagement because of vibration. It was arguable, therefore, that Bascelli had knowingly made use of an inadequate screw to install the front end assembly on his motorcycle. There was also evidence from which, if believed, a jury could infer that he had used Locktite only on one screw.

In Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966) the Supreme Court held unequivocally that if a buyer knows of a defect and voluntarily and unreasonably proceeds to use the product or encounter a known danger, this will constitute a defense to and preclude recovery in an action based on strict liability under Section 402A of the Restatement (Second) of Torts. Id., 423 Pa. at 327, 223 A.2d at 748. Accord: Berkebile v. Brantly Helicopter Corp., supra 462 Pa. at 100, 337 A.2d at 901. Although voluntary assumption of the risk must rest upon a subjective awareness of the defect, this awareness can be proved by circumstantial evidence sufficient to permit an inference that the user was aware thereof and understood the risk. Weaver v. Clabaugh, 255 Pa.Super. 532, 536, 388 A.2d 1094, 1096 (1978); Restatement (Second) of Torts § 496D, comment d (1965). “Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.” Restatement (Second) of Torts § 496D, comment e (emphasis added).

This was not a case in which the issue of voluntary assumption of the risk could properly be taken from the jury and decided by the court. The issue should have been submitted to the jury upon proper instructions. There was evidence from which a jury could have inferred that Bascelli had voluntarily assumed a known risk or danger.

Because the case must be retried before another jury, we do not decide whether the amount of the verdict was excessive. Granting or refusing a new trial in the face of such an argument, it may nevertheless be observed, is within the discretion of the trial court whose exercise thereof will not be reversed in the absence of a clear abuse of that discretion. Dougherty v. Sadsbury Township, 299 Pa.Super. 357, 360, 445 A.2d 793, 795 (1982).

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

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. The majority concludes that the offer of proof was “adequate”. After reviewing the record and the briefs, I am constrained to disagree.

The offer when made must disclose all facts necessary to establish the admissibility of the testimony sought to be elicited. Further, the party making the offer must state its purpose in such a manner that the court may perceive its relevance. Cockcroft v. Metropolitan Ins. Co., 133 Pa.Super. 598, 3 A.2d 184 (1938); Hill v. Truby, 117 Pa. 320, 11 A. 89 (1887); see Weinstein on Evidence Sec. 103(03) (“counsel must first be prepared to explain the substantive point before he can show that the proffered evidence is properly admissible as proof on that point.”). It is no error to reject an offer of proof which fails to disclose the evidence is competent. Zubrod v. Kuhn, 357 Pa. 200, 53 A.2d 604 (1947).

It seems clear from the record before us that appellant’s offer failed of its essential purpose. The lower court in its opinion stated:

In addition the Defendant contends that it was precluded from showing that Plaintiff also admitted to Mr. Pierantozzi that there was nothing wrong with the motorcycle and that he simply lost control of the cycle. The record clearly shows that the offer of proof for Randy, Inc. was simply to elicit testimony from Mr. Pierantozzi that the Plaintiff allegedly admitted to him that he had been travelling 100 m.p.h. at the time of the accident. No mention was made of anything else in this offer of proof.

As plaintiff explained, speed as evidence of contributory negligence “would be the worst prejudicial error in this case.”

I note that appellant nowhere introduced or attempted to introduce the deposition into evidence. Nor did he explain that he wanted testimony of speed not to show contributory negligence but rather to establish an independent cause for the accident. Admission or exclusion of evidence lies within the sound discretion of the trial judge. Finding no abuse of that discretion, I would dismiss appellant’s first claim.

In rejecting the claim, I am mindful of the important ends served by an offer of proof. Backlogged courts should not be required to repeat trials, especially civil trials, because counsel has failed to make his position clear for the record. The fact that appellant lays out the argument for the first time on appeal does not excuse his failure to present it at trial.

A second problem follows the majority’s resolution of appellant’s first claim. The majority assumes without deciding that one defendant, under guise of cross-examination of a co-defendant, may establish a defense common to both. Counsel for defendant East Coast Supply had called Pierantozzi to the stand. When he concluded, appellant’s counsel questioned the witness. Our Supreme Court has held that prejudicial error results when counsel for one defendant is permitted to introduce a defense, common to both, through leading questions directed to another defendant who is, in fact, part and parcel of the same cause. In re Rogan Estate, 404 Pa. 205, 171 A.2d 177 (1961). “The fact that it was counsel for a defendant, other than the party-defendant being interrogated, is of no moment. The substantialities of the situation must be considered, not mere technicalities.” Id., 404 Pa. at 215, 171 A.2d at 181.

With respect to the remaining issues, I adopt the thoughtful and well-reasoned opinion of the Honorable William Toal, Jr.

I would affirm the order of the court below.

      . This was the fictitious name under which Anthony D. and Patricia R. Pierantozzi conducted a retail parts business in Delaware County.

      . The evidence was conflicting as to whether the two cap screws supplied with the assembly had been of unequal length. The manufacturer contended that Bascelli had used a screw different than the screws supplied by the manufacturer.

      . The evidence was not offered to impeach the trial testimony of the witness by showing a prior inconsistent statement; and, therefore, we have not considered its admissibility for that purpose.

      . The record discloses the following:
      MR. BOGDANOFF: ... in this deposition he said that the plaintiff was in his place, the plaintiff told him at the time of this accident he was going a hundred miles an hour—
      MR. RICHARD: So what?
      MR. BOGDANOFF: —the jury is entitled to know the circumstances under which this accident happened to determine for themselves what the cause of the accident was.
      MR. RICHARD: Your Honor, speed would be at best evidence of contributory negligence and nothing more and that would be the worst prejudicial error in this case.
      MR. BOGDANOFF: The cause of the accident, sir, is being hidden from this jury in a systematic fashion by excluding each and every one of the issues dealing with why the accident happened.
      THE COURT: I will sustain the objection to this line of questioning. (N.T. 676-677).

      . The author of the dissenting opinion suggests that our determination creates a second problem with respect to whether appellant’s counsel could elicit Bascelli’s admission from Pierantozzi by the use of leading questions. This is not an issue in the present appeal. Appellant’s counsel was not permitted to inquire regarding Bascelli’s admission by any questions whatsoever, leading or nonleading. Because it was not an issue in the trial court, it also is not an issue and has not been argued in this Court.